S. 112 of the Evidence Act, which creates a presumption of legitimacy for a child born within three months of the marriage, applies to Muslims and overrides the Mohamedan law relating to legitimacy to the extent of any inconsistency between the two.

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, Tirupattur, 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 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 1964, Defendants 1 and 2 are the first and second wives respectively of the said Mohammed 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 brother 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 the plaintiff's mother, the second defendant was married to Mohamed Hussain on 26-1-1952, that the plaintiff was born on 26-4-1952, 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, Ex. B-7, the nikkah register extract for the marriage, and Ex. A-1 the birth register extract for the plaintiff, that the plaintiff was born three months from the date of the marriage between Mohammed 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 plaintiff, 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 S. 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 S. 112 is applicable even to persons governed by Mahomedan Law and that S. 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 S. 112 of the Evidence Act overrides the Mohammedan 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 said presumption of illegitimacy under the Mohamedan Law cannot be said to have been superseded by S. 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 26 of 1937), which came into force on 7-10-1937 and the provisions 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 S. 112 of the Evidence Act.

7. The question whether S. 112 of the Evidence Act supersedes the rules of Mohamedan Law as to legitimacy was left open in Md. Allahad Khan v. Md. I