JUDGMENT.- This is an appeal filed by defendants 13 and 16 in O.S. No. 62 of 1968, on the file of the Subordinate Judge, Tiruppattur, against the order of remand made by the lower appellate Court, remitting the suit to the trial-Court for fresh disposal.

2. The respondent herein filed the suit: for partition and separate possession of a half-share in the suit properties and for recovery of mesne profits for three years before the suit. Her case was that the suit properties belonged to her father, one Mohamed Hussain, and that as his daughter by his second wife, she has become entitled to the said half share after his death in l964. Defendants 1 and 2 are the first and second wives, respectively of the said Mohamed Hussain and defendants 3 to 9 and 15 to 17 are the legal representatives of his brothers. Defendants 10 to 14 are the alienees of some of the items of the suit properties.

3. The plaintiff’s claim was resisted mainly by some of the legal representatives of the brothers of Mohamed Hussain. and also by the alienees. One of the defences taken is that the plaintiff is not the legitimate daughter of Mohamed Hussain by the second wife. It was their case that th| plaintiff’s mother, the second defendant was married to Mohamed Hussain on 26th January, 1952, that the plaintiff was born on 26th April, 1952, within three months of the date of the marriage and that, therefore, the plaintiff cannot be taken to be the legitimate daughter of Mohamed Hussain.

4. With reference to this plea, the trial Court found on the basis of the evidence of P. Ws. 1 and 2, Exhibit B-7, the nikkah register extract for the marriage, and Exhibit A-1. the birth register extract for the plaintiff, that the plaintiff was born three months from the date of the marriage between Mohamed Hussain and the second defendant, that, therefore, the plaintiff cannot be taken to have been born to Mohamed Hussain and that even if she was born to him, she can only be his illegitimate child. In this view, the trial Court dismissed the suit.

5. On appeal by the plan tiff, the lower appellate Court has taken the view that even if the plaintiff was born three months of the marriage, she must be taken to be a legitimate child in view of the presumption contained in section 112 of the Evidence Act, that though under the Mohamedan law a child born within six months of the marriage between its parents is an illegitimate child, the presumption under section 112 is applicable even to persons governed by Mohamedan law, and that section 112 would certainly override the principles of Mohamedan law, relating to legitimacy. In this view, the lower appellate Court set aside the dismissal of the suit by the trial Court and remitted it for fresh disposal.

6. In this appeal Mr. Sundaram Iyer, learned counsel, appearing for the appellants contends that the view taken by the lower appellate Court that section 112 of the Evidence Act overrides the Mohamedan personal law relating to legitimacy and that, therefore, the plaintiff should be taken to be a legitimate child of Mohamed Hussain is erroneous, and that as the order of remand is based exclusively on that view, it cannot be sustained. According to the learned counsel, under the Mohamedan law, a child born within less than six months after the marriage is illegitimate and that the presumption of illegitimacy under the Mohamedan law cannot be said to have been superseded by section 112 of the Evidence Act. The learned counsel also points out that the lower appellate Court has overlooked the provisions of the Muslim Personal Law (Shariat) Application Act, 1937 (Central Act XXVI of 1937), which came into force on 7th October, 1937, and the provision of the Madras Civil Courts Act which according to him, clearly indicate that it is the Mohamedan personal law that has to govern and not the general provision contained in section 112 of the Evidence Act.

7. The question whether section 112 of the Evidence Act supersedes the rules of Mohamedan law a

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