Chandrasekhara Ayyar, J.
1. The plaintiffs have preferred this appeal from a decree of the Subordinate Judge of Chittoor, dismissing their suit brought for partition on the ground that they are the legitimate sons of the fourth defendant and members of the' coparcenary consisting of themselves and defendants 1 to 4. They claim to be the children of the fourth defendant by his wife Venkatamma. It was urged against this claim that their mother Venkatamma was an unchaste woman who was kept by the village manigar as his mistress and that there were caste pancha-yats in which her unchastity was found and she was ex-communicated for this reason. So, it was contended by defendants 2 and 3 who resisted the plaintiffs' claim that they were the illegitimate children of Venkatamma and not the children of the fourth defendant. Applying Section 112 of the Evidence Act, the District Munsiff found in plaintiffs favour that as they were born during lawful wedlock, it must be held that they are the legitimate children of the fourth defendant even though the wife was leading an unchaste life and was living in her parents' house and having intimacy with her paramour Venkata Gowdu. On appeal the Subordinate Judge in a singularly perverse judgment has upset the finding of the District Munsiff on the extraordinary and ludicrous ground that there was no evidence available before him that the plaintiffs were born out of the seminal fluid of the fourth defendant. He went further and said that Section 112 of the Evidence Act has no application to marriages under the Hindu law which are sacraments and not capable of dissolution by act of parties, or intervention of a Court (unless caste custom permits the same). Such a view of Section 112 is palpably absurd and cannot be countenanced for a single moment. There is a presumption of legitimacy in favour of a child born in lawful wedlock and this presumption is conclusive unless it can be shown that the husband and wife had no access to each other at any time when the child could have been begotten. The District Munsiff found on the evidence, and perfectly rightly, that the husband and wife were living within a few yards of each other in the same village and that even though the wife was an unchaste woman, there was nothing to show that the husband had no access to her at the time when the plaintiffs could have been begotten.
2. Mr. Venugopalachari, the advocate for the respondent, tried to support the judgment of the Subordinate Judge by contending that the word 'access' in the section means actual sexual intercourse and not merely opportunity for intercourse and he was able to cite in his favour the decision of Venkatasubba Rao, J., in Jagannatha Mudali v. Chinnaswami Chetti : AIR1932Mad39 . If it was the decision of a Bench, it would be binding on me, however much I might disagree with the view taken. But unfortunately it is that of a single Judge. Further, there is the very definite pronouncement of the Privy Council in Karuppayya Servai v. Mayandi (1933) 66 M.L.J. 288 : I.L.R. 12 Rang. 243 (P.C) in support of the position that 'access' in Section 112 means no more than opportunity for intercourse. In the course of his judgment, Sir George Lowndes refers to the fact that a case from the Madras Reports was cited in support of the contention that 'access' in the section implied actual co-habitation. Possibly, that case is the case in Jagannatha Mudali v. Chinnaswami Chetti : AIR1932Mad39 . Further, if actual intercourse was meant, it should not at all have been difficult for the framers of Section 112 to have said so. They have designedly used the word 'access' to avoid the necessity for proof about absence of actual co-habitation. Mayandi Asari v. Sami Asari : AIR1932Mad44 and Bhagwan Bakhsh Singh v. Mahesh Bokhsh Singh (1935) 69 M.L.J. 868 were also relied on by the respondents, but they have little bearing on the point now under consideration. In the former decision, when absence of access was made out by proof that the man and woman were living apart from each other and that the woman had taken up her residence with her paramour in a distant village, its value was sought to be neutralised by the suggestion that the husband was now and then going to the village where she was residing with her paramour and might have had access there. The learned Judges point out,
The possibility of access in Melur accepted By the lower Court as a fact therefore was one not put forward by either side.
Therefore, they held that the appellants had discharged the onus of proving non-access sufficiently to throw on the plaintiff, the onus of proving access. This certainly is not an authority for holding that access means actual intercourse. The Privy Council decision in Bhagwan Bakhsh Singh v. Mahesh Bakhsh Singti : AIR1932Mad39 discussed the question of non-access from the point of view of the procreative capacity of the husband whose actual age was in question.
3. It was contended that, if Exhibit VII was a good document and had been acted upon as was found by the Subordinate Judge, the plaintiffs had no rights as the fourth defendant had relinquished his rights under the deed. This argument presupposes that the plaintiffs had not been born on the date of Exhibit VII about which however there is. no finding by the lower Courts. As a matter of fact it does not appear to have been even suggested that all the plaintiffs were born subsequent to Exhibit VII and therefore they had no rights.
4. The appeal is allowed and the decree of the District Munsiff restored with costs throughout. Leave to appeal is refused.