(MISIR) BHAIRON PRASAD Vs. MT GOPI KUNWAR

JUDGEMENT

(1.) This is an appeal from the High Court at Allahabad in a suit which had been commenced in the Court of the Subordinate Judge at Mainpuri, in which the plaintiff claimed that he and his brother Jwala Prasad were members of a joint Hindu family, and claimed possession of the property from the widow of Jwala Prasad. The widow alleged in the case that she had given birth to a posthumous son of Jwala Prasad, and also that before the death of her husband there had been a separation.

(2.) The substantial issue in the case as it eventually developed was the question whether or not the widow had, in fact, given birth to a son. The deceased man had died on 26 October 1918. The child was alleged to have been born on 7 July 1919, and it is sufficient to say that if in fact there was a child born of the body of the widow, Gopi Kunwar, then that child must be taken to be the son of Jwala Prasad. There is no suggestion to the contrary and the ordinary presumption of paternity would apply and the times are quite sufficient to allow of the husband being the father of the child.

(3.) The substantial issue was whether or not, on 7 July 1919, the widow did, in fact, give birth to a son. Upon that there was a good deal of evidence. There is no doubt that she had given notice to the plaintiff, who is the brother of her husband, after her husband's death that she was pregnant. Her case was that after her husband's death she had continued to live in the house at Etah, where they had lived together, but that as the time of her delivery approached, some time early in June or the end of May, she, having at that time become engaged in a dispute with the brother, which had taken the form of a question as to the mutation of the property, desired to have her child born at her father's house, and so she removed to her father's house at Kheri-Lakimpur, where the child, according to her, was born. In support of the birth of the child, she called the lady doctor, a Miss Mitra, who gave evidence that she had been summoned from Lucknow, and had delivered the lady of a son ; she called the midwife, she called her mother, she called her father, she called the nurse who had nursed the child, and there was evidence which, if believed, was conclusive that she had given birth to a child. All this evidence was attacked by the plaintiff. It was said that she had never been pregnant, that this was a supposititious child, that Miss Mitra had been suborned to give this false evidence, and so had the nurse, and that the father and mother were speaking to a concocted story.