JAGANNATHA MUDALI Vs. PTCHINNASWAMI CHETTI (DEAD)

JUDGEMENT

(1.) This appeal raises a question regarding the construction of Section 112 of the Indian Evidence Act.

(2.) The 8 defendant is the wife of one Kuppathai Mudaili and defendants 3 and 4 are her sons. The plaintiff disputes their legitimacy alleging that the 8th defendant was living in adultery. The point to be decided is, whether defendants 3 and 4 are the legitimate sons of Kuppathai. The findings of fact, which, this being a second appeal, I must accept, are that Kuppathai married the 8 defendant about 1876, but discarded her in 1881 owing to some suspicion about her chastity, that he then married a second wife and lived at a place called Govindanpadi, whereas the 8 defendant left for Kilachur, a village within two miles of that place. There she was residing and the Subordinate judge thinks that she was having immoral relations with some person. The 3 defendant was born in 1891 and the 4 in 1898. It is not found that Kuppathai did not have opportunities of access to his first wife; on the contrary, the evidence seems to indicate that he had them. In regard to the period to which reference must be had, the evidence no doubt is very vague; but Kuppathai in 1902 purchased for her some property and in 1905 executed a document settling some lands on her and on her children. In this, Kuppathai describes the boys as the sons of the 8 defendant. I may remark in passing, that it the learned Subordinate Judge thinks, that these words strongly support the contention that the children are illegitimate. There are other passages on which the Judge relies, to which 1 need not refer. Later in the same year and again in 1906 Kuppathai bought for her some more property. The evidence also shows that he allowed the boys to visit him and took some kind of interest in them, though what precisely its nature was, it is difficult to say. In 1909 he executed a writing repudiating the children as illegitimate. That was attested by several persons including one Rasappa, a brother of the 8 defendant. This man has not been cited as a witness although the 8 defendant admits that they have been on friendly terms. What led to this repudiation, the evidence does not clearly show; but it is suggested, that it was some members of his caste, that induced Kuppathai to take this step. This was followed in 1915 by a deed which he executed revoking the settlement of 1905. then there was an op .1 quarrel which led to various proceedings in Courts--where the legitimacy of the boys was asserted by the one side and disputed by the other. 1 have forgotten to mention that in 1909, about the time when Kuppathai repudiated the boys, he married a third wife. He having died in 1918, his second and third wives sold a part of his estate to the plaintiff, who thereupon has brought the suit. It is in this way that the question of the legitimacy of defendants 3 and 4 has been raised. The Subordinate Judge, differing from the Trial Court, has decided the point against them.

(3.) Their counsel has not succeeded in showing that his findings, so far as they are questions of fact, can be attacked in second appeal. 1 have referred in this judgment to those facts alone which bear on the question, whether Kuppathai had opportunities of access to his wife or not. That being the important point with which I have to deal, as I shall show presently, 1 do not propose to refer to the other facts on which the Subordinate Judge relies. The question, as 1 have said, is, what is the effect of Section 112 of the Evidence Act?