CHILUKURI VENKATESWARLU Vs. CHILUKURI VENKATANARAYANA

JUDGEMENT

(1.) This appeal is directed against a judgment and decree of a Division Bench of the Madras High Court dated the 31st January 1950, reversing on appeal, those of the Subordinate Judge, Bapatla, passed in Original Suit No. 96 of 1944.

(2.) The suit, out of which the appeal arises was commenced by the infant plaintiff, now appellant before us, represented by his maternal uncle as next friend, for recovery of possession on partition, of a half share in the properties described in the schedule to the plaint on the allegation that they were the joint family properties of himself and his father, the defendant No. 1. In which he had an equal share with the latter. The plaintiff is admittedly the son of defendant No. 2, who is one of the legally married wives of defendant No. 1 but the latter denied that he was the father of the plaintiff and charged the plaintiffs mother with misconduct. The defendant No. 3 in the suit, who is the other living wife of defendant No. 1 and has no issue of her own, is alleged to have developed illfeeling and jealousy towards the plaintiff and his mother and poisoned her husband' s mind against them, so much so that the defendant No. 1 had actually instituted a suit in the court of the District Munsif at Ongole questioning the legitimacy of the plaintiff. It was because of such conduct on the part of defendant No. 1 that the present suit had to be instituted.

(3.) The defence put forward by defendant No. 1 to the claim of the plaintiff was a denial of his paternity, and the whole controversy in the suit centered round the point as to whether the plaintiff was the legitimate son of defendant No. 1 by defendant No. 2 his second wife. On the admitted facts of the case, there could be no question that the operation of Section 112 of the Indian Evidence Act would be attracted and the plaintiff being born during the continuance of a lawful wedlock between his mother and his alleged father a conclusive presumption of legitimacy would arise, unless it was proved that the parties to the marriage had no access to each other at any time when he could have been begotten. The point for determination, therefore, was whether on the evidence adduced in the case the defendant No. 1 upon whom the burden of proving non-access admittedly lay, had succeeded in discharging that burden. The trial court decided this point in favour of the plaintiff and against defendant No. 1 and in that view substantially allowed the plaintiff's claim. On an appeal being taken against this decision by defendant No. 1 to the Madras High Court, the learned Judges, who heard the appeal, came to the opposite conclusion and held that from the facts and circumstances of the case an inference of non-access between the husband and the wife could reasonably be drawn. The result was that the decision of the trial court was reversed and the plaintiff's suit dismissed. It is the propriety of this decision of the Madras High Court that is challenged before us on behalf of the plaintiff, to whom special leave to file the appeal 'in forma pauperis' was granted by this court.