Decided on October 11,1935



John Wallis, J. - (1.) IN this case Bhagwan Baksh Singh, the first plaintiff, hereinafter referred to as the plaintiff, who gives his age as twenty-one, instituted the present suit on March 7,1929, 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 the first and second defendants, who are surviving members of the joint family, and the third and fourth defendants, 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, the second, plaintiff.
(2.) IT is not now in dispute that at the time of the plaintiff's birth, his mother, Musammat 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 connection, 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 twenty-four years old, that is to say, he was born in 1905, and that, as Chatarpal would not then have been more than thirty-two, if he had lived, he was eleven years old at the utmost when the plaintiff was born. If, however, Chatairpal would have been only thirty-two in 1929, he must have been born in 1897 and would have been, only eight 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 Section 112 of the Indian 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 this 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 he 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 case 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 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 thirteen 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, 4.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 necessary in the first place to prove the precise age of the husband at the date of conception, and in the j second place to negative the possibility of premature virility at that age owing to precocious development. In their Lordships' opinion it is impossible to arrive at a finding as to the precise age of the husband at the date of conception on the evidence in this case. As was perhaps only to be expected, there has been great exaggeration on both sides. The defence on this question is based entirely on oral evidence given at the trial, supplemented by the oral evidence in the inquiry by the Revenue Court in the mutation proceedings immediately after the husband's death, which it is now contended was inadmissible. They have been unable to produce any documentary evidence on the question of the husband's age in the shape of birth certificate, horoscope or otherwise. For the plaintiff an extract from a register of births maintained by a village chowkidari, who could neither read nor write, has been exhibited, giving the date of the plaintiff's birth as September 10, 1907, and also an extract from a school register for 1903 which gives the husband's age at the date of admission on July 10,1903, as eleven years and six months. According to this entry he must have been born in January or February, 1892, which would make him more than fifteen and a half at the time of the plaintiff's birth as given in the register of births, and so fully establish his physical capacity at the date of the plaintiff's conception. The Subordinate Judge, however, has hesitated to act on this register which has not been produced from the proper custody; and the Chief Court after carefully examining the school register have satisfied themselves that it has been tampered with for the purposes of this case and is utterly useless. The evidence of Indian witnesses on questions of age is notoriously often very vague and unreliable; and in their Lordships' opinion it would be very unsafe to base a finding of physical incapacity on the part of the husband on the evidence in this case. Further, if the finding of the Chief Court that the husband in this case, was thirteen at the date of conception could be accepted, and the defendants had failed to prove non-access in the ordinary sense of that term, their Lordships would hesitate to hold that incapacity to procreate at that age could safely be inferred from the sole fact that Lyon's Medical Jurisprudence, a work dealing with Indian conditions, accepts as applicable to India Taylor's statement with reference to this country where climatic conditions are so different, that fourteen is the earliest age at which procreative power has been recorded.
(3.) THEIR Lordships will now proceed to deal with Mr. de Gruyther's contention that concurrent findings of the lower Courts should not be accepted, because the depositions exhibited by both sides of witnesses who gave evidence at the inquiry in the mutation proceedings, but died before the trial, were inadmissible in evidence. The Subordinate Judge has stated in his judgment that they were admissible under Section 32, Clause 5, of the Indian Evidence Act, 1872, but they were clearly inadmissible under the proviso to that section because they were made after the present dispute arose. They were admissible, if at all, under Section 33 as statements made in judicial proceedings between the same parties; and under the third proviso to this section such statements are only admissible if the questions in the mutation proceedings were substantially the same as the questions in issue in this suit. Mr, de Gruyther has contended that the questions were not substantially the same because in the mutation proceedings the Collector was required by statute to base his decision, as he did, on possession and not on title. He has further contended that statements which are inadmissible under this section cannot be made admissible by consent of i the parties to the suit as evidenced by the fact that depositions of witnesses in the mutation proceedings were exhibited by both sides. As regards the latter contention it appears from the notes on this section in Ameer Ali's and Wood-ruffe's Indian Evidence Act that three of the Indian High Courts have decided the other way; and in view of the facts that the objection was taken for the first time at the hearing before the Board and has, not been argued on the other side owing to the absence of the respondents, their Lordships do not propose to decide it, because, in their opinion, under Section 167 of the Indian Evidence Act, the finding of the Subordinate Judge that Chatarpal had no access to his wife prior to the plaintiffs birth may be supported on the other evidence in the case excluding the depositions to which objection has been taken. Their Lordships will now proceed to deal on this footing with the question of non-access. In dealing with this question- in a case of child marriage among Hindus much depends on the question whether the case presented on either side is reconcilable with the established customs and usages of Hindus as regards these child marriages, and their Lordships have derived great assistance in deciding it from the fact that both the lower Courts in judgments written by Hindus concur, as will be seen, in finding that the plaintiff's case as to alleged access is irreconcilable with such customs and usages.;

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