The legitimacy of a child born more than 280 days after the dissolution of marriage is not automatically negated; the Court may still raise a presumption of legitimacy based on the common course of natural events, human conduct, and public and private business, and the burden of proof is on the party challenging legitimacy to establish illegitimacy beyond a reasonable doubt.

1. This is a Letters Patent appeal IN against the decision of Badkas, J., whereby he decreed the plaintiffs suit. The short facts are that one- Rajaram of village Andhrud died on 20th February, 1929. At his death, he left defendant No. 1 Uttamrao as the only child. Plaintiff No. 1 Sitaram alleged that he was a posthumous son of Rajaram through his wife Saijai having been born on 23rd December, 1929, i.e., 308 days after Rajarams death. Plaintiff No. 2 is an alienee of some property. Uttamrao, the son of Rajaram, is defendant No. 1 and Atari and Madhaorao, defendants Nos. 2 and 3, are his sons. Defendant No. 4 Saijai is the mother of plaintiff No. 1 and defendant No. 5 Salubai is the mother-in-law of Uttamrao. Since the death of Rajaram, all the properties stood in the names of Uttamrao and the plaintiff Sitaram. The suit out of which the appeal arises was filed in 1950 for partition and possession. The contesting defendants raised a number of pleas. They pleaded that Saijai was not the lawfully wedded wife of the deceased Rajaram. According to their case, the was the wife of one Bapurao and was kept by Rajaram as a concubine in a separate residence after the death of his second wife. As Rajaram was harassed before his death by her first husband, he sent Saijai to her village Gaikhed, and since about a year and a half before the death of Rajaram, she was living at Gaikhed away from Rajaram. She came to Andhrad after Raja-Tarns death to attend on the 13th day of the death and on that day she was not pregnant. She conceived subsequently and came to Andhrud to avert infamy. They also contended that Raja-ram was in a decrepit state, old and therefore incapable of procreation. In short, they challenged the legitimacy of the plaintiff No. 1

2. The trial Judge found that the plaintiff No. 1 s mother was the lawfully married wife of the deceased Rajaram and negatived the defendants contention that she was living separate from Rajaram at his death. He found that Rajaram died of some disease, call it eczema or anything. We says:

"He may have died of leprosy or diabetes; whatever the vernacular word Mihya may suggest, one thing is certain that he died of a disease which killed him by inches and consumed him by degrees."

He therefore held that ho was incapable of procreation when he died. He relied upon an alleged admission by Saijai that she delivered an illegitimate child five or six years after Rajararaa death calculated 366 days of gestation and held against the plaintiff No. 1 on the question of legitimacy. The plaintiffs appeal to the District Court failed.

3. The District Court confirmed the first finding of marriage, held that Rajaram was capable of procreation till his death, calculated 366 days of gestation and relying upon post-unchastity, confirmed the finding of illegitimacy against the plaintiff No. 1.

4. Badkas, J., was of the view that the lower Courts had not applied correct principles and that they had erred in calculating 366 days of gestation and in taking into consideration post unchastity long time after Rajarams death. He therefore did not accept the finding.

5. Mr. Phadke on behalf of the appellants has urged (i) that the learned Judge erred in applying the decisions of English law; (ii) that in any case he erred in relying upon the principles enunciated in cases not in legitimacy suits but in divorce proceedings, (iii) that in any case those cases occurred during wedlock and ought not to apply to the present case, (iv) that the learned Judge erred in not relying on post-unchastity of Saijai and (v) that the learned Judge was not entitled in second appeal to interfere with a finding of fact.

6. In respect of the first point, the learned Advocate invited our attention to Section 112 of the Evidence Act and argued that in India we are governed by a codified law of evidence and therefore the principles enunciated in the English, law cannot be applied. Section 112 provides for raising a conclusive presumption of legiti