MT. SAROO MALI Vs. YESHWANT NARAYAN MALI

JUDGEMENT

(1.) THE question at issue in this appeal is about the legitimacy of defendant 2, Shamrao. His mother is defendant 1 Mt. Saroo. The plaintiff Yeshwant is her husband. He sues for a declaration that Shamrao is not his son. The plaintiff's case is that his wife left his house about five years before suit and went to live with her father; that she has not lived with him since, and he has had no access to her in the interval. Consequently, he claims that the child who was born on 25th May 1927, about two and a half years after the mother had left his house, is not his son. The defendant' case is that the mother lived with the plaintiff till she was in the sixth or seventh month of her pregnancy and that the child was begotten by the plaintiff who is his father.

(2.) THE lower appellate Court after setting out these two cases states: "It has to be seen which of the two stories is correct." It then considers the evidence and believes the plaintiff's story that his wife left him some two and a half years before the birth of the child and has lived in her father's house ever since. The defendant's story of conception in her husband's house is rejected. The learned Judge then remarks that the very fact that the wife lived away from her husband for so many years indicates that the relations between them could not have been cordial enough for her to admit the husband to her embraces at odd intervals in her father's house. He also rejects the theory as improbable because the father's house consists of only one small room in which the entire family resides. He therefore findes that defendant 2 is illegitimate. The defendants have appealed. They contend that the presumption of legitimacy is conclusive Under Section 112, Evidence Act, unless it can be shown that the parties had no access to each other at any time when the child could have been begotten. I am referred to the evidence that the parties live in the same small village, in houses only two or three doors from each other. It is also urged that the possibilities which that class of persons have of access to each other in the nalas and fields of the village show that non-access has not been established. The defendants' learned Advocate contends that impossibility of access must be proved and that nothing short of that will suffice. He quotes Dalipa v. Rala AIR 1914 Lah 106 and Basu's Evidence Act, pp. 1098 and 1099, togather with the cases cited there.

(3.) THIS judgment was concurred in by Lord Macnaghten, Lord Davey, Lord Robertson and Lord Lindley. There was no dissentient voice. They then acted on the husband's evidence and declared the first claimant illegitimate. That settles the matter. The lower appellate Court admitted a document into evidence, which had not. been produced in the first Court, to explain the delay there had been in filing the suit. The only reason given for admitting it is that it is a public document. But it related to facts which the defendant was entitled to meet. Consequently I agree this was illegal: see Parsotim Thakur v. Lal Mohar Thakur AIR 1931 PC 143. But I am satisfied that this has not influenced the finding on the merits; and even if it had, I would have no jurisdiction to interfere. Their Lordships of the Privy Council decided in Durga Chowdhrani v. Jewahir Singh (1891) 18 Cal 23, that the fact that the Court had given weight to evidence to which it was not entitled, and has thus been led totally to misconceive the case, was not enough to justify interference in second appeal upon a finding of fact "if the Court had evidence before it proper for its consideration in support of the finding." That also concludes the matter. The appeal is dismissed with costs.