Sir John Wallis:-

In this case Bhagwan Baksh Singh, plaintiff 1, hereinafter referred to as the plaintiff, who gives his age as 21, instituted the present suit on 7th March 1929, to recover possession with mesne profits of the share of Chatarpal Singh, his mother's husband, in the suit properties belonging to the joint family of which Chatarpal was a member, impleading defendants 1 and 2, who are surviving members of the joint family, and defendants 3 and 4, who are widows of deceased members. To raise money for this litigation he has alienated a half share of the properties in the suit to Thakhur Mahadeo Singh, plaintiff 2. It is not now in dispute that at the time of the plaintiff's birth, his mother, Mt. Dilwant Kuer, the daughter of Nakched Singh, was the lawfully married wife of Chatarpal Singh, but it is alleged by the defendants in the written statement that, before the gauna or consummation ceremony, it came to light that Chatarpal's wife was pregnant as the result of an illicit connexion, that consequently she never came to Chatarpal's house, the gauna ceremony never took place, and Chatarpal and his wife never lived together as husband and wife. It is further alleged that in June 1929, when the written statement was filed, the plaintiff was at least 24 years old, that is to say, he was born in 1905, and that, as Chatarpal would not then have been more than 32, if he had lived, he was 11 years old at the utmost when the plaintiff was born. If however Chatarpal would have been only 32 in 1929, he must have been born in 1897 and would have been only 8 years old in 1905, when according to the defendants the plaintiff was born. The written statement therefore raised the two-fold defence of non-access and of Chatarpal's physical incapacity to procreate at the time when the plaintiff was begotten. As the plaintiff was admittedly born after his mother's marriage, to Chatarpal, the onus of establishing these defences lies heavily on the defendants under S. 112, Evidence Act, which, so far as material, 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......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.

As regards the meaning of the word "access" in the section, the learned Judges of the Chief Court have held that access in this section means effective access, as is shown by the use of the words "when be could have been begotten," and the proposition that physical incapacity to procreate, if established, amounts to non-access within the meaning of the section has not been disputed in the argument before their Lordships. The Subordinate Judge dismissed the suit on the ground that in the ease of this marriage the gauna or consummation ceremony never took place, because Dilwant Kuer was found to be already pregnant, and that the husband in fact never had access to his wife, but refrained from recording a finding as to the question of physical incapacity. The learned Judges of the Chief Court, whilst not dissenting from this finding, have found that Chatarpal must have been approximately 13 years of age when the plaintiff was begotten, and that at that time the husband was physically incapable of procreating issue. They accordingly affirmed the decree of the Subordinate Judge dismissing the suit. The Chief Court having refused to grant the necessary certificate, the plaintiff obtained special leave to appeal to His Majesty in Council. Unfortunately the defendants have not entered appearance and the appeal has been heard ex parte.

Their Lordships think it better at once to clear the ground by stating that in their opinion the defence based on the alleged physical incapacity of the husband is not made out. To brand a child born to a wife in lawful wedlock with illegitimacy on this ground, it would be nec