Sir George Lowndes:-

This appeal was before the Board in June 1933, when a preliminary point was considered as to the admissibility of certain evidence which had been rejected by the Indian Courts. As the result of that hearing an order of His Majesty in Council was promulgated by which the evidence in question was declared to be admissible, and the case was remanded to the High Court for fresh findings upon certain of the issues to which the evidence related. It now comes back to the Board, with the findings of the High Court, for final disposal of the appeal. The relevant facts are set out at length in the judgment delivered by Lord Russell of Killowen on 30th June 1933 : Krishnayya Surya Rao v. Rajah of Pittapur,1933 PC 202=145 IC 216=60 IA 336=57 Mad 1 (PC), and it is only necessary now to summarise them very briefly. The suit out of which the appeal arises was brought by the respondent praying for a declaration that the adoption of the first appellant by the first defendant, since deceased, and now represented by the second appellant was invalid. The adoption involved the right of succession to the Gollaprolu estate which had formed part of the Pittapur Raj, an important zemindary of the Madras Presidency. This estate had been granted in 1869 by the then Raja of Pittapur, Gangadhar Rama Rao (hereinafter, as in the former judgment, referred to as the late Raja) to his brother Venkata Rao, who died childless some two years later, and at the time of the disputed adoption was in the possession of his surviving widow, the first defendant. She adopted the first appellant on 15th February 1914.

The respondent has been, since the late Raja's death in 1890, the owner of the Pittapur Raj, and claims to be the aurasa son of the late Raja. His legitimacy has been in dispute for over 40 years, and though the question has been formally raised by litigation in the family it has never heretofore been finally decided. Before the respondent's birth the late Raja, having then no son, duly adopted one Ramakrishna, who in 1891 claimed the estate as adopted son, denying the legitimacy of the respondent. The result of his suit, which eventually came up to the Board, [Ramakrishna Rao v. Court of Wards, (1899) 22 Mad 383=26 IA 83=7 Sar 481 (PC)], was that the respondent was held entitled to the estate under the will of the late Raja the question of his legitimacy, upon which a large body of evidence had been given at the trial, being left undecided. It was this evidence which formed the subject of the previous judgment of the Board, Relying upon it the appellants contended that the respondent was not the aurasa son of the late Raja, that he accordingly had no reversionary interest in Gollaprolu, and that his suit was therefore incompetent.

The case was heard upon the remand by a bench of three Judges of the Madras High Court, who after considering the further evidence at great length came to the unanimous conclusion that the respondent's legitimacy was established. The correctness of this conclusion is strenuously denied by the appellants and is the first question which their Lordships have now to decide, as upon it admittedly depends the respondent's right to sue.

The evidence is voluminous and unpleasant. Their Lordships have listened to its recital by counsel and the review of it by the High Court for the greater part of six days. They think it unnecessary to say more than that they are not prepared to disagree with the findings of the High Court upon it. They only wish to add on this part of the case that having regard to the terms of S. 112, Evidence Act, it was suggested in the course of argument that it may be doubted whether on such an issue evidence of impotence is not admissible. They have not thought it requisite to hear counsel for the respondent on the legitimacy question, and they therefore make no pronouncement upon the section. Assuming, but not affirming the evidence to be admissible, they think it is not sufficient to establish that