Venkatasubba Rao, J.
1. The only point to be decided is, whether the plaintiff is the legitimate daughter of Moses. Pakkiam, the plaintiff's mother, was married to Moses about 1870, but on 2nd March, 1880, there was a deed of separation, Ex. I. It recites that owing to want of harmony between the husband and the wife, they decided to separate, the wife receiving, according to the caste custom, a sum of money, and she goes on to declare that she will in future have no concern either with Moses or with his property. Pakkiam died in 1922 and Moses in June, 1923; the suit was brought in December, 1923, and on the date of its institution, the plaintiff, who was born in 1883, was about 40 years old. Both the Lower Courts have held that the plaintiff is the daughter of Moses and awarded her a share in his property. The parties are Indian Christians, and I may observe that the plaintiff's legitimacy is disputed by all the relations of Moses impleaded as defendants (twelve in number), including his brother and sisters.
2. The Lower Courts have rejected the contention put forward for the defence, that the deed of separation amounted to a divorce. I shall assume (without deciding the point) that notwithstanding the deed, the marriage did not become dissolved.
3. Both the Lower Courts have proceeded upon a wrong interpretation of Section 112 of the Indian Evidence Act. Says the District Munsiff:
Both Moses and Pakkiam continued to live in that small village where they must have often met each other subsequently...And since the plaintiff was born during the subsistence of what in spite of Ex. I was a lawful wedlock, I hold on the first issue that plaintiff was born of Moses and Pakkiam.
4. The observations of the Subordinate Judge are to the same effect:
Moses and Pakkiam continued to live in the same village even after the date of Ex. I. I hold, agreeing with the learned District Munsif, that the plaintiff was born during the subsistence of lawful wedlock and that plaintiff was born of Moses and Pakkiam.
5. In short, the Lower Courts seem to have thought that the word 'access' in Section 112 means ' opportunity of access'. If that be the right meaning of the word, no exception can be taken to the decision of the Lower Courts. Does the fact that Moses had opportunity of access to his wife lead to the irrebuttable presumption that the plaintiff is the legitimate daughter of her mother's husband The moment opportunities of access have been made out, an irrebuttable presumption of legitimacy arises--that is the view of the Lower Courts. This view, as I have shown in my judgment in Jagannatha Mudali v. Chinnaswami Chetti (1931) Mad. 243 : 61 M.L.J. 878, is clearly wrong. The following observation from my judgment may be quoted:
In my opinion, there can be no possible doubt that the word means sexual intercourse. That was declared after great deliberation to be the law in the Banbury Peerage case (1811) 1 Sim. & St. 153 : 57 E.R. 62. It was there pointedly stated that access in this connection means sexual intercourse and nothing short of it. Now the learned Judges go so far as to use the word 'access' in the sense of sexual intercourse to distinguish it from non-access or non-generating access. 'The expression ' opportunities of access' is also found used by the Judges as something different from actual intercourse.
6. 'Access' in Section 112 is used, as stated above, in the sense of sexual intercourse. In spite of the fact that the husband and the wife had opportunity of access, it is open to the party, who disputes the child's legitimacy, to prove that in point of fact such access did not take place between them as by the laws of nature is necessary for the man to be in fact the father of the child; in other words, it is not the opportunity of access that matters but sexual intercourse. In dealing with this subject, it is necessary to remember that there are two presumptions; one rebuttable, the other irrebuttable. First, there is a presumption, to start with, in favour of the legitimacy of the child born during wedlock; in other words, there is a presumption that the husband had intercourse with the wife at the time' the child must have been conceived. But this is a rebuttable presumption and evidence may be adduced to show that there was in fact no access, that is to say, no sexual intercourse. The second presumption is this: if sexual intercourse be proved, the law will not permit an enquiry whether the husband or some other man was more likely to be the father of the child; the presumption to be drawn here becomes an irrebuttable one:
However many men she has had connection with, nothing can bastardise the child unless non-access of or non-intercourse by the husband can be proved.' Warren v. Warren (1925) P. 107 at 112.
7. As I pointed out in my judgment in Jagannatha Mudali v. Chinnaswami Chetti I.L.R. (1931)Mad. 243 : 61 M.L.J. 878 to which I have just referred, these two presumptions are often confused and Section 112 is in consequence misunderstood.
8. The Lower Courts not having approached the evidence in the case from the proper point of view, their decision cannot be sustained. It has therefore become necessary for me to examine the evidence myself. I have been carefully taken through it by Mr. S. Thyagarajan, the learned Counsel for the respondent, and I have come to the conclusion that the finding of the Lower Courts is wrong. No doubt the name of Moses appears as that of the plaintiff's father in the baptismal register of 1897, but I am not prepared to attach any weight to it; it has not been shown that the name was furnished by the father or by any responsible relation. The evidence of D. W. 3, who was 75 years old at the time he was examined, appears credible, and he deposes that the plaintiff. who was born three years after the so-called divorce, never lived with Moses and was never brought up by him. He attested the deed of separation and he speaks in detail to the events that led to it. He says that Pakkiam was suspected to be unchaste, that thereupon a panchayat was held and that it was decided that she should be divorced. That Moses did go through a form of marriage with the 2nd defendant's mother is clear beyond doubt. The fact that Moses and Pakkiam lived near each other and in the same village proves of course that there were opportunities of access, but the circumstances to which I have referred make it extremely improbable that they had sexual intercourse and the presumption of legitimacy arising from the birth of the plaintiff during wedlock has, in my opinion, been rebutted. The evidence of D. W, 3, is confirmed in material respects by that of D. Ws. 4 and 5, also very old men, whose evidence I see no reason to distrust. I must therefore hold that the plaintiff is not entitled to any share in the property of Moses.
9. The result is that the second appeal is allowed and the suit is dismissed. But I direct the parties to bear their respective costs throughout.
10. Leave to appeal is refused.