Sir George Lowndes.-

The question for determination in this appeal is as to the respondent's right to share in the estate of one Karapaya Servai, a Madrassi Hindu, who seems to have acquired a considerable fortune in Burma. He died a lunatic in 1923. The respondent is the son of Karapayi (or Karupi), who is now admitted to have been the first wife of Karapaya, and the defence to his claim is a denial of his paternity. The appellants are two minor sons of Karapaya by his second wife, Nachiamma, and one Chellaya, a brother of Nachiamma, who had been appointed guardian in the lunacy, and was at the date of the suit in effective possession of the estate.

The suit was instituted by the respondent in the District Court of Pyapon, and the main issue formulated for decision was, "Is the plaintiff the son of the deceased lunatic Karapaya, begotten in lawful wedlock with Karapayi ?" The District Judge answered this question in the negative and dismissed the suit. The High Court on appeal took the opposite view, declaring the respondent's legitimacy and giving him a decree for a third share of the estate. It is common ground that the case is governed by S. 112, Evidence Act (1 of 1872), which is in the following terms:

"The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

The validity of the marriage between Karapaya and Karapayi was at first disputed-most unnecessarily, as their Lordships think-but was subsequently admitted, and there being no suggestion that it was afterwards dissolved the only question is whether it has been shown that Karapaya and Karapayi had no access to each other at any time when the respondent could have been begotten. The burden of showing this was, in their Lordships' opinion, rightly laid on the appellants. It was suggested by counsel for the appellants that "access" in the section implied actual cohabitation, and a case from the Madras reports was cited in support of this contention. Nothing seems to turn upon the nature of the access in the present case, but their Lordships are satisfied that the word means no more than opportunity of intercourse.

There can be no doubt that in December 1911, the parties came together after having lived separate for a considerable time. Karapaya was settled at Tamangyo in the Pyapon District with his second wife: Karapayi had been living in the Moulmein District, where her mother and brother resided. What exactly took place is uncertain, but it is admitted that she came to Tamangyo where she was refused admission to the house in which her husband and Nachiamma were living, and put up with one Viyani Maistry, a relative of Karapaya, in a neighbouring village. On 24th December 1911 an agreement in writing (a copy of which was put in at the trial by the appellants as Ex. 14) was come to between them in the following terms:

"This agreement is written and given on 9th Margali of Veerothukeruthu by Mawana Kunna Runa Karappiah Servai residing at Tamangyo in Pyapon Township in favour of his wife Karuppayi that the profit produced by cultivating his share of paddy field named Marutha Kammu China Aroken, Savari Muthu may be given to her Suna Pana Vellai Thever must look after my share by providing her the profit produced thereon in my share. If she had no money for expense let her write to me."

The document is signed by the husband and verified by the village headman of Tamangyo. He was examined on commission at the instance of the appellants and deposed to its execution, but his memory was obviously failing and his evidence carries the story no further.

The materiality of these facts, however, is that in December 1911, the parties were admittedly in