A.H. Khan, J.
1. The facts leading to this revision are that the plaintiffs brought a suit against the defendants for the partition of ancestral property and the plaint filed in the suit contained a pedigree. Of these defendants only one, namely Shivajirao while admitting the pedigree, alleged that Shripatrao, grandfather of Kashirao plaintiff was a Dasiputra (illegitimate son). The other defendants did not raise this plea.
2. The trial Court framed an issue about the illegitimacy and in the beginning placed the burden on the plaintiff Kesho Rao. Later on, the plaintiff submitted to the trial Court that the burden of proof should be thrown on defendant Shivajirao, who has admitted the paternity but merely challenged his legitimacy. The trial Court considered the objection, and placed the burden of the Issue (Issue No. 1) on the defendant Shivajirao. Aggrieved by this order, defendant Shivajirao has filed this revision.
3. The learned counsel for the applicant Mr. Patankar, contends that there is no presumption that a son born to a person ig a legitimate one. He has referred to Section 112 of the Evidence Act, and contends that the presumption of legitimacy can be raised only if the marriage is proved to have been contracted validly. He has referred to Kanhaiya Bux Singh v. Ram Dei Kuer, AIR 1944 Oudh 162 (A), but it is unnecessary to consider the Oudh ruling because the facts of that case and the present one are poles asunder.
In the Oudh case, recovery of the property was claimed by the plaintiff as a son of the lawfully married wife of a person, The defendant denied that the alleged wife ever gave birth to the child and further stated that the plaintiff was a son of a woman other than lawfully married wife. Their Lordships of the Supreme Court in Gurcharan Singh v. The State of Punjab, (S) AIR 1956 SC 460 (B), have observed that reference to a reported case can only be by way of an illustration and that each case has its own peculiar facts and it is, therefore, always risky to appeal to precedents on questions of fact.
4. This revision raises an important point, relating to the question of presumption, and, the burden of proof. The subject of presumption is an important branch of the law of Evidence. Presumption is defined
'as a rule of law, on the basis of which the Court may and shall draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved.'
The law of presumption is nothing more than the rule of common sense. This is evident from the observations of Sir James Stephen made at the time of introducing - the Evidence Act. He said that
'the effect of this provision (Section 114. 'Evidence Act) is to make it perfectly clear that the Courts of justice are to use their own common sense and experience in judging the effect of particular facts and that they are to be subject to no particular rules whatever on the subject.'
5. Bearing this in mind, let us now consider the question as to who should prove illegitimacy. A cohabitation between members of opposite sex should ordinarily give rise to an inference that a marriage has been solemnised between them. The act of cohabitation no doubt is susceptible of two contrary inferences: one that the persons cohabiting are married and the other that they are not.
But as is well known the Law in general presumes against vice and immorality, and, therefore the Court should give effect to the presumption of innocence and regard the cohabitation to be regular and moral. Ag a necessary corollary of such presumption, the offspring of such a presumed union, should also be regarded as legitimate.
The presumption of legitimacy must be regarded as the foundation on which the whole fabric of society rests. If the presumption is allowed to prevail the other way, there is no saying what consequences may have to be faced. For one thing, it will shatter the fabric of the whole society and plunge everyone in a state of utter confusion. In this view of the matter I hold thatlaw presumes in 'favour of marriage and against concubinage 'and on him who challenges the legitimacy must be thrown the burden of proving it.
6. In Dularey Singn v. Suraj Bali, AIR 1918 Oudh 103 (C), Lindsay J.C., has observed that where a party admits the paternity of the other party but pleads that he is of illegitimate descent, the legal presumption being in favour of legitimacy, the onus lies on the party alleging Illegitimacy to prove it. This case is on all fours with the one under consideration. In the instant case the defendant has admitted the paternity of the plaintiff, but asserts that the mother of the plaintiff's grandfather was not a lawfully married wife of Piraji Rao, the ancestor.
7. Similarly in a Division Bench case of the Madras High Court reported in Palani Ammal v. Kuppusami Goundan, AIR 1921 Mad 291 (D), it was observed that there is a general presumption against misconduct of all kinds and that there is no presumption more highly favoured in the law than that of innocence. It was held that the onus of proof that they (children) are the offspring of incestuous or adulterous connection is on the person setting up that contention.
8. I, therefore, both on reason and authority hold that the burden of proof has been rightly placed on the defendant and in consequence dismiss the revision with 'costs.