Abdur Rahman, J.
1. Whether Madurai Naicken was the legitimate son of Narayanaswami Mudali is the only question that falls to be determined in this appeal. Both Narayanaswami and Vanajakshi were members of the Naick community and were alleged by the plaintiff to have been married. The marriage was found to have been established by the trial Court and from the manner in which the judgment of the lower appellate Court proceeds, it may be assumed that this finding was affirmed. In spite of this, however, their conclusions on the question of Madurai's legitimacy were conflicting. The District Munsif's finding is in para. 20 of his judgment. It is in the following words:
I am of opinion that there is no evidence worth the name, or even any attempt to prove non-access as between the married husband and wife.
2. The District Judge on the other hand, found that the presumption raised by Section 112, Evidence Act, had been effectively rebutted. This inference was drawn from certain circumstances which will have to be considered by me in due course. But before I do so, let me see, as contended for by learned counsel for the respondent, if the allegation of fact to the effect that in the event of Narayanaswami's marriage having been established, he could not have had access to Vanajakshi at any time when Madurai could have been begotten was made by the defendant. This is important as a question like this, which is purely one of fact, if not definitely raised in the pleadings should not, in my opinion, be permitted to be raised during the course of arguments even in the trial Court much less so in a Court of appeal. The relevant portion of the written statement filed on behalf of defendant 1 reads as follows:
She, (Vanajakshi) remaining unmarried, was following the dancing girl's profession till her lifetime. Narayanaswami Mudali is not her husband nor is he the father of the minor Madurainayakam Mudali nor heir. The suit house never belonged to Narayanaswami Mudali at any time after the death of Madurainayakam Mudali, nor was it in his possession.
3. If I understand this plea correctly, it only meant to deny the marriage between Vanajakshi and Narayanaswami. There was no allegation in this written statement that even if these two persons were found to have been married to each other, they were living separately and they did not have any access or could not have had any access to each other and hence Madurai could not have been an offspring of this marriage. That is why no attempt was made by the contesting defendant, according to the trial Court, 'to prove non-access as between the married husband and wife.' In the absence of any specific plea on that point, as urged by learned counsel for the appellant, this aspect of the case ought not to have been permitted to be raised or discussed by the lower appellate Court and much less to have formed the sole basis of its judgment. This would be sufficient to dispose of the appeal. But, since the circumstances which have led the lower appellate Court to come to the conclusion that the parties to the marriage have had no access to each other have been considered in the judgment under appeal at some length, it appears to be preferable to consider them with the object of testing the inference drawn from them. Had I been even of the opinion that one could have legitimately arrived at the conclusion which the lower appellate Court has drawn from the circumstances mentioned in its judgment, I would have had either to set aside the same on the ground that no such case was ever put forward on behalf of defendant 1 or at any rate remanded the case for further evidence and a fresh decision. But since I am of opinion that even if held to have been established, they are inconclusive, such a contingency does not arise in this case. These circumstances, may, at the most, show that the parties were not living in one house tut are wholly insufficient to establish that Narayanaswami could not have had any access to Vanajakshi when both of them were living in the same city.
4. The first circumstance on which reliance was placed by the learned District Judge was that a will Ex. J executed by Vanajakshi in 1902 under which a bequest of her property was made by, her to her husband Narayanaswami was revoked by her on 20th May 1903 (Ex. 9). There is undoubtedly a reference in this exhibit to certain grievanees, which Vanajakshi had against her husband at the time when the will was revoked; but this does not show that the relations between them continued to remain as strained in the following four years as they were in 1908. The lower appellate Court observes after this that there was no reliable evidence showing reconciliation. But who was to show that there was no reconciliation or that they were not on visiting terms? The burden of proving that there was no access lay clearly on defendant 1 who alleged Madurai Naicken to be illegitimate and it was for her to show that they were not reconciled before Madurai could have been begotten or that the feelings between the two continued to remain as bitter and strained as they were in 1903. It is a matter of common knowledge that husbands and wives very often fall out but these differences are made up more often than not and in the absence of a divorce or such other circumstances that may lead me to draw an inference of their continuance, it will be wholly unsafe to assume that they continued to do so. The third circumstance on which a great deal of reliance was placed was an entry in the birth register in which the name of the father was given by one Varathappa Naicken in the first instance as Chinnaswami but that statement was withdrawn at once and the name of the mother was substituted instead the father's name not having been disclosed at all.
5. Learned counsel for the respondent has not placed any reliance on the entry which was scored off, although he laid considerable stress on the fact that the name of the mother appeared in the entry and not that of the father. Reliance was placed in this connexion on the decision of a learned Judge of this Court in Sivakami Ammal v. Kooliyandi Chettiar A.I.R. 1934 Mad 318 in which an entry in the birth register was considered to be relevant. The entry in the birth register may be relevant under Section 35 to show the date of the birth; but how far would the fact that the name of the mother was given and not that of the father by the informant bear on the question of the child's legitimacy depends, even if assumed to be relevant in regard to which I have grave doubts, largely on the means that the informant may be shown to have possessed of the knowledge in connexion with the child's birth. If the informant happens to be a stranger, who did not know the father as a reference to Chinnaswami would seem to point, the statement may be, even if relevant, wholly unimportant. The entry becomes of no value when I find that the informant was not examined and no explanation has been given for the omission to do so. Moreover, in a decision appearing in the same volume in Guruswami Nadar v. Irulappa Konar : AIR1934Mad630 the relevancy of such a document was doubted by Varadachariar J.
6. On the death of Vanajakshi certain applications were made by defendant 1 for Madurai's guardianship in 1910. But Narayanaswami was not even referred to in those applications. No notice of those applications was ever given to him. In fact, in those applications Vanajakshi was described as a dancing woman and the petitioner in those applications, who is now defendant 1 in the case, asked for the custody of the child. The lower appellate Court appears to have attached considerable importance to those proceedings. But I cannot understand how various orders in those proceedings are relevant in this case, particularly when Narayanaswami was not even made a party or no notice of the application was given to him. The petitioner in that case was not interested in disclosing Vanajakshi's husband's name, as Narayanaswami has now been found to be and the omission of his name from those proceedings is very significant and makes the orders passed in those proceedings, which were not proceedings in rem, irrelevant. Section 41, Evidence Act, to which reference was made by learned counsel for the respondent has absolutely no application. Nor could an order like this be relevant under Section 13 of the Act as the right that may be taken to have been recognized in that case was that of the guardianship claimed by defendant 1 and had nothing to do with the parentage of the child which is in issue now. These proceedings might have been of value if Narayanaswami had been notified and failed to allege that he was the father of the boy.
7. A reference was made by the lower appellate Court to Ex. E, an order passed by the Court in connexion with the application for guardianship, whereby defendant 1 was permitted to take possession of the property which had devolved on the minor on the death of his mother. This property happened to be in the possession of certain members of the community. But it cannot be forgotten that the plaintiff's case was that the property was entrusted to them by Narayanaswami himself. Whatever may be the truth, the fact that the persons who got the property did not raise objection to the order of delivery of possession passed by the Court, cannot raise the assumption that Narayanaswami had not delivered possession of the property to them as he had become an ascetic (a fact which was to some extent found by the learned District Judge to have been established) and did not want to deal with the property himself.
8. A reference to the sale deed by Narayanaswami in favour of the plaintiff in 1925 and the plaintiff's delay in filing the present suit after a notice had been given by him in 1925 appear to my mind to be entirely irrelevant to show what the defendant was required to establish that Narayanaswami could not have had access to Vanajakshi. A great deal of emphasis was laid by learned counsel for the respondent on Narayanaswami's conduct towards the child. But the only finding on that point is that there was no evidence on the record that he took any interest in that child. This by itself could not be of much value. The fact whether Narayanaswami did or did not perform the funeral obsequies of his wife would not be of very great assistance either although there appears to be evidence on the record that he did perform them. In the end, adverse conclusion appears to have been drawn against the plaintiff by the fact that Narayanaswami himself was not examined. But he was summoned by the plaintiff and could not be served. For this the plaintiff could not have been blamed. The oral evidence of the plaintiff, it is true, has not been accepted by the lower appellate Court and the evidence of the defendant's witnesses 2 and 3 has been accepted on the point that Vanajakshi was leading the life of a dancing girl. But neither the rejection of the plaintiff's witnesses nor the acceptance of the statements of D.Ws. 2 and 3 on this point could have any bearing on the question that the Court was called upon to decide. There was no allegation that the marriage that had come into existence between the parties could have been and was ever dissolved and in the absence of any such allegation the only thing that the defendant should have proved was, in the words of the section, that the parties had no access or, as their Lordships of the Privy Council interpreted that word in Karapayya Servai v. Mayandi to mean, had no opportunity for sexual intercourse at any time as a result of which Madurai could have been begotten. That she has definitely failed to do and it is impossible to deduce that conclusion from the circumstances detailed in the lower appellate Court's judgment.
9. My attention was drawn by learned counsel for the respondent to the decisions in Mayandi Asari v. Sami Asari A.I.R. 1932 Mad 44 and in Jagannath Mudali v. Chinnaswami Chetti A.I.R. 1932 Mad 39 and to 6.Morris v. Davies (1831) 7 E.E. 365 But the law was not laid down in those decisions in any way differently except to the extent that the definition of the word, 'access' given in the second of these was not the same. This was not accepted by their Lordships of the Privy Council in Karapayya Servai v. Mayandi . When a child is born during lawful wedlock and that is how Section 112 has been drafted, he will have to be assumed to be the child of the man who was at the time the husband of the mother unless it is shown that they had no opportunity of sexual intercourse in consequence of which the child could have been begotten. Since every assumption is to be made in favour of legitimacy of a child who is found to have been born in lawful wedlock, the onus of proving non-access or that of illegitimacy has been laid on the party who alleges the same. The law requires, in suck cases the positive proof of a negative fact, that is, non-access as between the parties to the marriage and the mere fact that they are living separately in two different houses is insufficient to establish non-access. The non-access has to be proved like any other physical fact and may be established both by direct and circumstantial evidence of an unambiguous character but unless such evidence is forthcoming, it will not be possible for a Court 'to believe it to be probable that there was no access.' For the above reasons, the appeal must be accepted and the order of the first Court restored. The plaintiff will have his costs in this Court and in the lower appellate Court. (Leave to appeal refused.)