The heavy burden on contesting defendants to prove non-access under Section 112 of the Indian Evidence Act and the irrebuttable presumption of legitimacy once access of the husband is proved.

Venkatasubba Rao, J.

1. This appeal raises the question of the paternity of the plaintiff. He claims to be the legitimate son of the 1st defendant and impeaches the alienations made by him in favour of defendants 3 to 9. The 2nd defendant, the plaintiffs mother, was legally married to the 1st, about 30 years previous to the suit; but within three months of the marriage, the wife left the husband and lived in a village called Chintamani near her husbands village, with a paramour Kuttalam Chetty. The evidence is, that she has all through been living with this paramour and that there has been no kind of access between the husband and the wife. The plaintiff, on the date of the suit, was 26 years old and the 1st defendant repudiated the plaintiffs legitimacy not only in the suit but also in his will executed by him during the pendency of the action. The Trial Court, after carefully considering the evidence, has come to the conclusion that the presumption under Section 112 of the Indian Evidence Act in favour of the plaintiffs legitimacy has been clearly rebutted-Besides fully dealing with the large body of oral evidence, the learned Munsif refers to two important documents: Ex. V is an extract from the birth register of Chintamani village relating to the plaintiff--there his mothers name is given as the 2nd defendant and no reference is made to his paternity. Again, Ex. XVII is an extract from the death register relating to the same village and that show that the 2nd defendant lost a male child born to her. The 1st defendant married a second wife and had by her two daughters, defendants 10 and 11. The learned District Judge, though he differs in his conclusion from the Munsif, does not differ from him as regards the effect of the evidence. Referring to the evidence of D. W. 2, this is what the learned Judge says:

His statement that the 2nd defendant never lived with her husband all these 30 or 34 years except for 3 months following marriage may be perfectly true and yet the 1st defendant may have been the father of the plaintiff.

2. The observation of the learned Judge in regard to D. W. 8 may also be quoted:

It may generally be true that after the 2nd defendant came to live in Chintamani, the 1st defendant was not going to her and she was not visiting the 1st defendant. But from this it could not be said that the husband and wife had no access to each other at the beginning of 1901.

3. To make clear the reference to the year 1901 in the above passage, I may state that the 1st defendant married the second about 1897, that the wife deserted the husband in three months thereafter and that the plaintiff was born in October, 1901. I may extract another very important passage from the learned Judges judgment:

As I have stated before, assuming every word of what the witnesses have said is true, the result goes no further than raising a strong suspicion and perhaps even a probability that the plaintiff is not the son of the 1st defendant. But this is not enough to negative the presumption that arises in his favour under S.112 of the Evidence Act. . . . They were living in neighbouring villages. . . Opportunities for intercourse between the 1st defendant and 2nd defendant there were in abundance.

5. In a case decided by a Bench of this Court (Mayandi Asari v. Sami Asari AIR1932Mad44 ) the Subordinate Judge on facts more or less identical came to a conclusion similar to what has been reached by the present District Judge. It was there pointed out by the learned Judges that the Lower Court misunderstood the scope and effect of Section 112. In that case what happened was this: "The Lower Court found that the 11th defendant had been long living apart from her husband, that in fact she was living with some paramour at Melur, but held that, as Melur is only nine miles from Karuppannans village, Porusupatti, and as Karuppannan used occasionally to go to Melur to buy cattle in the market, it cannot be said that he had no opportunity of access to