MAYANDI ASARI (DEAD) Vs. SAMI ASARI ALIAS MUTHUSAMI ASARI BEING MINOR REPRESENTED BY HIS NEXT FRIEND GANAPATHI ASARI

JUDGEMENT

(1.) This appeal is against the decision of the First Additional Subordinate Judge of Madura in a suit for declaration of title and recovery of possession of property. The plaintiff sued for the property of one Karuppannan Asari, deceased, whose son he claimed to be. The contesting defendants denied his paternity, and the main issue in the case was that question. The Lower Court held that the plaintiff's mother, 11 defendant, had been living apart from Karuppannan, her husband, for some years before his death and for some years before the plaintiff's birth, that she was unfaithful to her husband, but that, as the plaintiff was born during the period of continuance of the valid marriage between his mother and Karuppannan Asari, and as the defendants had not succeeded in proving non-access at or about the time when the plaintiff might have been conceived, the plaintiff was entitled under Section 112 of the Evidence Act to be declared the son of Karuppannan. It therefore gave him a decree. Defendants 1 to 10 appeal.

(2.) In appeal it is contended that the Lower Court has so interpreted Section 112 as to place an unfair burden on the appellants which it is practically impossible for them to discharge. The Lower Court found that the 11 defendant had been long living apairt from her husband, that in fact she was living with some paramour at Melur, but held that, as Melur is only nine miles from Karuppannan's village, Porusupatti, and as Karuppannan used occasionally to go to Melur to buy cattle in the market, it cannot be said that he had no opportunity of access to her at the time of the plaintiff's conception. It is plain that Section 112 lays a heavy burden on the contesting defendants, the burden of proving or "showing" non-access, but such proof is not different from any other species of proof under the Evidence Act, namely, "when after considering the matters before it the Court either believes" that there was non-access, "or considers its existence so probable that a prudent man ought in the circumstances of the particular case to act upon the supposition that it exists ( Section 3 of the Evidence Act). It is not necessary, in fact it is not possible in most cases, for a party to prove a negative by positive evidence, and the test laid down by the Lower Court comes very nearly to insisting on positive proof of a negative. Putting the most reasonable interpretation on the Lower Court's proposition, it amounts to this: that non-access cannot be proved so long as the parties are within reasonable distance of each other, unless there is the evidence of a witness available who can account for every minute of the parties time, which is of course practically impossible. It is the more necessary not to interpret Section 112 in such an unreasonable fashion in this country, because here among the majority of Hindus a valid marriage once contracted cannot be dissolved and therefore "continues" until the death of one party to it. In the circumstances of this case we have no hesitation in holding that the Lower Court's view that the legal burden on the appellants has not been discharged is wrong.

(3.) The suggestion that Karuppannan and the 11 defendant might have met at Melur is no part of the plaintiff's case. His case is that 11 defendant never left her husband's house. Karuppannan's habit of visiting Melur cattle market was put forward so casually in the cross-examination of one or two witnesses for the contesting defendants, that no suggestion was even put to any of them that Karuppannan ever was in the village at the same time as the 11 defendant or ever met her there. The 11 defendant herself of course never suggested that, since it is not her case. The possibility of access in Melur, accepted by the Lower Court as a fact, therefore was one not put forward by either side. The appellants had succeeded in proving that the 11 defendant had been driven out of her husband's house and had been living apart from him for years, that he had married again, that his visits to Melur were for the purpose of buying cattle, and the plaintiff had not suggested that he ever met the 11 defendant at Melur. In these circumstances we think that the appellants had discharged the onus of proving non-access sufficient to throw on the plaintiff the onus of proving access.