Norman Macleod, Kt., C.J.
1. The plaintiff sued to recover possession of the properties, moveable and immoveable, mentioned in the plaint, with mesne profits, alleging that he was the son of one Shivshankar Bulakhiram, who died on November 18, 1921, and that the properties, which were claimed in the suit, were ancestral properties of himself and his father. Defendant No. 1 is another widow of Shivshankar, while defendant No. 2 is his step-sister. Defendants Nos. 3 to 8 were added as persons who were aiding defendants Nos. 1 and 2 in resisting the paintiff's claim to the possession of the suit properties. It was alleged that defendants Nos. 3 and 4 had poisoned the mind of the deceased against the plaintiff's mother, so as to bring about a disagreement between them, and that all the defendants, in collusion with each other, got up false evidence to prove that the plaintiff was illegitimate, and that his mother was of immoral character, and that the deceased had made a will An application had been made to the District Court for the appointment of a guardian of the properties and person of the minor, when the properties were allowed to remain with the defendants on their giving security by an order ot July 8, 1922, which suggested that a regular suit should b' brought to establish the plaintiffs right to the properties. Defendants Nos. 1 to 6 put in a written statement, Exhibit 13, pleading that the plaintiff was illegitimate, though admitting that he was the son of Bai Reva and that the suit properties were ancestral.
2. Defendants Nos. 7 and 6, though served, did not appear.
3. Plaintiff put in an inventory, Exhibit 34, 'as the list of the properties he claimed.
4. The Court found pro forma against the absent defendants that plaintiff was born of Bai Reva, the wife of Shivshankar.
5. On the issues raised between the contesting parties the Judge found :-
1. That the defendants did not prove that the deceased and Bat Reva had no access to each other at any time when the plaintiff could have been begotten.
2. That the will relied upon by the defendants had not been made by the deceased when in a sound disposing state of mind.
3. That the will was not binding upon the plaintiff and could not affect his rights.
4. That the plaintiff was entitled to recover possession of the properties in question.
6. Shivahankar died on November 18, 1921. The plaintiff was born on December 18, 1921, Section 112 of the Indian Evidence Act enacts that-
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties...had no access to each other at any time when he could have been begotten.
7. The defendants, in order to discharge the onus which lay upon them, to prove non-access, rely upon documentary and oral evidence. The documents consist of letters written by and to Shivshankar.
8. The Judge says: 'Non access may be proved by means of such evidence as is admissible in every other case in which it is necessary to prove a physical fact', citing as an authority Woodroffe and Ameer Alli's Law of Evidence, 6th Edition, p.707.
9. Now, the law in England is that the declarations of a father or mother cannot be admitted to bastardise the issue born after the marriage, Lord Birkenhead in Russell v. Russell  A.C. 687 said (p. 698):-
The rule as laid down is not limited to any special class of case. It is absolutely general in the comprehensiveness of its expression. It has no geographical qualification. It does not, for instance, lay down that where husband and wife are present in the same bed; the same bedroom; the same house; or the same town, the evidence roust be repelled; but that it may on the other hand be received if the husband has (for instance) been absent from the country for twelve months before the birth of the child. It says, Upon the contrary, that such evidence shall not be given at all; and the reason given is that it would tend, if given, to bastardize the issue and to invade the vary special sanctity inherent in the conjugal relation; and the reason is assigned which led first the Delegates and then the ordinary Courts to a conclusion so widely expressed. It is a reason founded upon 'decency, morality, and policy.
10. In that case the question was whether this rule, which admittedly was applicable in all cases where the legitimacy of a person whose status, rights and treatment were before the Court, was directly in issue and had to be determined, could be extended to proceedings instituted in consequence of adultery.
11. It is said that no such rule is to be found in or implied from the Indian Evidence Act: Woodroffe and Ameer Ali, 8th Edition, at p. 769.
12. In Rozario v. Ingles I.L.R. (1893)18 Bom. 468 the respondent was charged by one Mrs. Eozario, a married woman, with the maintenance of her three illegitimate children under Section 488 of the Criminal Procedure Code. It was argued that a wife could not confess her adulterous connection unless and until the fact of her husband's non-access had already been proved by independent evidence. It was held that there was no authority in the Indian Evidence Act for laying down the order in which evidence would be lad to prove the tact of non-access in accordance with Section 112 and that Mrs. Rozario was a competent witness under Sections 118 and 120 of the Act. This ruling was fallowed in John Howe v. Charlotte Howe I.L.R. (1913) Mad. 466 .
13. If the English rule of evidence, to which I have referred, is excluded by the terms of the Indian Evidence Act, then, in my opinion, the Act should be amended. The reasons given for the existence of the rule are just as much applicable in this country as in England, and there is nothing to be said in favour of allowing either the husband or the wife to give evidence against the legitimacy of issue born in wedlock.
14. The admissibility in evidence of Shivshankar's letters has not been questioned in the lower Court. The Judge has referred to certain letters in the case including his, as showing that Bai Reva had gone to Shivshankar and both met together at the end of January, or beginning of February, 1921. Once the Judge was satisfied of that fact, the defendants' evidence, put at its very highest, could not possibly be said to have proved non-access. For, in order to succeed they would have to prove not merely that, in the circumstances of the case, it was improbable that there was access, but that during the whole of the time that Bai Reva and Shivshankar were in Bombay, which included the crucial period, there was no access.
15. It seemed to me that in spite of the strenuous argument of the appellants' pleader, it was hopeless for him, on the face of the record, to contend that this evidence went to this length, or anywhere approaching it, but it will be better to consider that evidence to satisfy the appellants that that opinion was justified,
16. In 1919, it is admitted that Shivshankar published a notice that his wife, Bai Reva, was of immoral character and had abandoned her forever.
17. In the beginning of 1921, Bai Reva went on a pilgrimage to Nasik, and on her return halted at Bombay where Shivshankar was living. It seems to me that all the documentary evidence, prior to Reva's arrival in Bombay, is absolutely useless for the purpose of proving non-access, as the Judge remarks at p. 6 in para 25 of the judgment: 'The oral evidence on behalf of the defendants ignores Reva's presence in Bombay. None of the defendants' witnesses speak about it. The defendants had only tried to show that it was impossible that Reva could have gone to and stayed with Shivshankar in his room at Bombay,' To my mind, that was a fatal lacuna in the evidence which was by itself quite sufficient to dispose of the case. Once it was proved that Reva and Shivshankar, husband and wife, were in Bombay, in February and March 1921, the defendants would have to prove definitely and not by implication that they did not come together.
18. Exhibit 136 is an affidavit made by Reva in the guardianship application in 1922. Therein she stated that, on her return from her pilgrimage, she stopped in Bombay and went to live with Shivahankar who was then living on the second storey of the Manek Building on the Girgaon Back Road, Shivsbankar's letter, Exhibit 70, of February 11, 1924, is conclusive evidence that Reva had come to him to stay. It is true that he also says that she was driven out, but it became impossible thereafter to prove non-access.
19. The Subordinate Judge has dealt with the evidence on either aide with regard to Reva's stay in Bombay in a most painstaking manner and we are not disposed to differ in any way from the conclusions at which he arrived, The appeal will be dismissed with costs.
1. I agree in holding that the decision of the learned trial Judge in this case is right.
2. One Shivshankar Bulakhiram died on November 18, 1921. The plaintiff, a minor, brought this suit, through his mother Bai Reva, to recover possession of the suit properties, alleging that he was the son of the said Shivshankar and that the said properties were the ancestral properties of himself and his father. Plaintiff was born on December 18, 1921.
3. The contesting defendants Nos. 1 to 6 admitted that Bai Reva was a married wife of Shivshankar and that the plaintiff was her son. They, however, contended that the plaintiff was illegitimate.
4. By Section 112 of the Indian Evidence Act, it is enacted that:
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, 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.
5. The marriage of Bai Reva with Shivshankar is admitted by defendants Nos. 1 to 6, and is otherwise proved. The plaintiff was born one month after Shivshankar's death. Bai Reva has remained unmarried. The material issue raised in the trial Court was the 3rd, namely-Do the defendants show that the deceased and Bai Reva had no access to each other at any time when the plaintiff could have been begotten ?
6. The burden of proving non-access of Shivshankar and his wife Bai Reva was on the defendants. They adduced evidence, oral and documentary, in order to discharge that burden. The documentary evidence consisted largely of letters written by and to Shivahankar. The defendants attempted by evidence, oral and documentary, to show that Bai Reva was a person of immoral character; that Shivshankar tried to correct her, but failing in his efforts he abandoned her altogether; that later Bai Reva tried to go to Shivshmkar's house but was not allowed admittance.
7. The trial Judge has examined the evidence adduced in the case very fully and with commendable care. His conclusion was that the defendants had failed to rebut the presumption in favour of legitimacy. He says :
On the whole the oral evidence on both the sides does not appear to me to be trustworthy. The onus lies very heavily on the defendants The documentary evidence as seen above goes to show that Bai Reva and Shivahankar had met in Bombay Whether they lived together for sufficiently long time, so that they could have sexual intercourse and the plaintiff could have been begotten, it is difficult to say for certain. But onus lies on the defendants to prove non-access. Giving very anxious consideration to the whole evidence, oral and documentary, I am unable to say that the defendants have succeeded in placing before me circumstance which can go further than merely to create doubt and suspicion as regards the plaintiff's legitimacy. The presumption of law in favour of the plaintiff's legitimacy must therefore prevail. I had to give a vary careful and anxious consideration to this matter as the interests of the minor plaintiff and minor defendant No. 1 are at stake. Under the circumstances of the case I must hold that no satisfactory proofs to rebut the presumption in favour of the minor plaintiff are forthcoming. I, therefore find the issue in plaintiff's favour.
8. He, therefore, allowed the plaintiff's claim as indicated in paragraph 47 of his judgment.
9. The first six defendants have brought this appeal against his decree.
10. 'It is a rebuttable presumption of law that a child, born during lawful wedlock, is legitimate, and that access occurred between the parents; and this presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities '-Phipson's Law of Evidence, 4th Edition, p, 627. It is for the defendants to rebut this presumption.
11. It must be conceded that the letters produced in this case show that, in the year 1917 and again in 1919, there was serious disagreement between Shivshankar and Bai Reva. In February 1919, he published a notice (Exhibit 65) stating that he had abandoned Bai Reva because of her immoral character. It is not necessary to consider in detail the letters during the period 1917 to 1920. The trial Judge has discussed these in paragraphs 16 to 23 of his judgment; and in paragraph 24 he says, and, in my opinion, rightly :-
It would be difficult from these letters to say that Bai Reva was really of bad character. I cannot draw any further conclusion than this from these letters, via., that Shivahankar's friends rightly or spitefully informed him that Reva was of bad character and he relied on the information so received by him and abandoned her, that he was anxious to keep up his resolution not to call her back and that Bai Rava in the meanwhile tried to go and live with him.
12. The material part of the evidence is that which shows that the husband and wife had met together in or about the month of February, 1921. Bai Reva says in her evidence (Exhibit 134) that, in or about January, 1921, she went from Dakor to Nasik, On her return she stayed in Bombay. Shivshankar was then in Bombay. On learning that Shivshankar was unwell, she went to his house and lived with him for about a month and a half. She also says that she then returned to Dakor; that later Shivshankar also went there; and that she lived with him in Dakor till his death. The trial Judge is not satisfied as to the reality of the story as to their living together in Dakor. But there is no doubt as to her being in Bombay and meeting her husband in February, 1921, In her affidavit (Exhibit 136) in Miscellaneous Application No. 15 of 1922 she stated that she had lived in Bombay with her husband from about January 22, till March 12, 1921. The story as to her presence in Bombay and meeting her husband is believed by the trial Judge and is corroborated by the letters, Exhibits 70, 78 and 68. It is significant that the defendants' witnesses, as the Judge puts it, altogether ignore Bai Reva's presence in Bombay during that period. The evidence leaves no doubt in my mind that Bai Rava is telling the truth when she says she was in Bombay at that time. In bar cross examination she was asked : 'Is it true that you had been to Bombay and tried to go to Shivshankar, but that he did not allow you to go to him ?' She answered : 'It is not true.' As the Judge says, the defendants having led no oral evidence to show when Reva went to her husband, for what time she stayed with him and how she was expelled, we have no means of expressing a definite opinion on that matter, I share the Judge's inclination to believe that the husband and wife did meet together for some time in February 1921. Witnesses were examined on behalf of the plaintiff to prove that Bai Reva lived with Shivshankar in Bombay, but they did not impress the Judge as very reliable witnesses. The evidence on both sides is unsatisfactory and open to suspicion. But I agree with the Judge that there is no satisfactory proof here that access between the husband and the wife at the necessary time was impossible or even highly improbable. In my opinion, the balance of the evidence adduced in this case warranted the conclusion arrived at by the trial Judge.
13. For these reasons, I agree in holding that this appeal fails.