1. In this second appeal it is contended that the Additional Sub-ordinate Judge has not dealt in the right way with the first issue which was:
Is the plaintiff a legitimate son of the deceased Veerabhadra Pillai?'
2. Under ordinary circumstances, one would say that the findings of both the learned District Munsif and of the Subordinate Judge were questions of fact on the evidence. But Mr. Sesha Iyengar for the appellant has raised a point with regard to the decision of this first issue in that he says that what the Subordinate Judge has done is really to throw the onus of proving legitimacy on his client instead of starting with the presumption of legitimacy in his favour.
3. The learned District Munsif found the legitimacy of the plaintiff by reason of certain evidence, Exhibit E series, which it is not contended can be legitimately used; so that the ground on which the District Munsif decided has now definitely gone.
4. The Subordinate Judge has come to a contrary decision on a consideration partly of the evidence on this issue and partly on the evidence of the second point in the case as to the plaintiff's right to a portion of a certain house to which he would be entitled, if he were the legitimate son of Veerabhadra Pillai and therefore, the legitimate brother of the second defendant. With regard to this, although Mr. Sesha Iyengar did not press the second point, i.e., as to what portion of the house the plaintiff was entitled, I am satisfied that at no time up to the present has the plaintiff been in possession of this house. That this is so appears from the order of the District Munsif, dated 25th July, 1918, which is the order on the obstruction of the first defendant in consequence of which the plaintiff brought the present suit. The order was made on an application by the judgment-creditor-decree-holder for the delivery of possession of the house in question.
5. The learned District Munsif found that there had been a previous litigation namely, O.S. No. 15 of 1896, followed by O.S. No. 278 of 1898, wherein this question of legitimacy was apparently directly raised, and the matter was compromised. But the learned District Munsif says that it did not recognize the respondent's right to a half share in the house but merely provided that in consideration of the respondent No. 1 paying Rs. 300 to the decree-holder he should take a half-share. In the compromise decree the respondent's status as Vaarabhadra Pillai's second wife's son is not admitted. He also adds that at the time of the suit the respondent was not living in the plaint house. Now it should be noted that Veerabhadra Pillai was admittedly the father of both the plaintiff and the first defendant. So at the time he is said to have married the plaintiff's mother when he was a married man with a son. It is said that the law raises a presumption in favour of marriage under Section 114 of the Evidence Act. That presumption arises from the fact either that the parsons have lived together for length of time or that they have been recognised as husband and wife by a certain number of parsons. It cannot be said that there is a general presumption in favour of legitimacy without laying the foundation for it either under Section 112 or a presumption that a valid marriage had taken place between the father and mother of the person in question; so that I think the Subordinate Judge in this case was not wrong when ha refused to take P.W. 2's evidence as necessarily establishing the legitimacy of the plaintiff. It is said that there is no evidence on the other side, and, therefore, the legitimacy of the plaintiff must be taken as proved. But I do not think that that is the law, as one can see from the case cited for the respondents in Ma Wun Di v. Ma Kin (1908) 35 Cal. 232. In Sastry Valaider Aronegary v. Sembecuttly Vaigalie (1881) 6 A.C. 364 cited by Mr. Sesha Iyengar, a form of marriage was gone through. As far as I can see, in this case there is no evidence of any form of marriage being gone through except that of P.W. 2 whose evidence is disbelieved with regard to the second point, namely, that the plaintiff was ever living in the southern portion of the house and, therefore, I consider that the Subordinate Judge was justified in summing up the evidence of P.W. 2 in this way;
Than there is the evidence of P.W. 2 in the present suit who says that the plaintiff and the second defendant are sons of the deceased Vearabhadra Pillai. It may perhaps be that the plaintiff is an illegitimate son of Veerabhadra Pillai. This witness does not speak to any marriage between Veerabhadra Pillai and the mother of the present plaintiff. As a matter of fact, he does speak to a marriage having taken place. But I have been referred to his evidence and it is perfectly clear that he knows nothing personally of the matter. He was not present at the marriage. Although, perhaps, the Subordinate Judge was in error when ha said that the witness did nod speak of any marriage, I think that, for the reasons given, he was justified in coming to the conclusion ha did on the evidence of P.W. 2. I, therefore, hold that he was not wrong in his estimation of the evidence, nor did he go wrong on the question of presumption of legitimacy. It follows that the second appeal should be dismissed with costs.