KARAPAYA SERVAI Vs. MAYANDI

JUDGEMENT

(1.) The question for determination in this appeal is as to the respondent's right to share in the estate of one Karapaya Servai, a Madrassi Hindu, who seems to have acquired a considerable fortune in Burma. He died a lunatic in 1923. The respondent is the son of Karapayi (or Karupi), who is now admitted to have been the first wife of Karapaya, and the defence to his claim is a denial of his paternity. The appellants are two minor sons of Karapaya by his second wife, Nachiamma, and one Chellaya, a brother of Nachiamma, who had been appointed guardian in the lunacy, and was at the date of the suit in effective possession of the estate.

(2.) The suit was instituted by the respondent in the District Court of Pyapon, and the main issue formulated for decision was, "Is the plaintiff the son of the deceased lunatic Karapaya, begotten in lawful wedlock with Karapayi ?" The District Judge answered this question in the negative and dismissed the suit. The High Court on appeal took the opposite view, declaring the respondent's legitimacy and giving him a decree for a third share of the estate. It is common ground that the case is governed by S. 112, Evidence Act (1 of 1872), which is in the following terms: "The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

(3.) The validity of the marriage between Karapaya and Karapayi was at first disputed-most unnecessarily, as their Lordships think-but was subsequently admitted, and there being no suggestion that it was afterwards dissolved the only question is whether it has been shown that Karapaya and Karapayi had no access to each other at any time when the respondent could have been begotten. The burden of showing this was, in their Lordships' opinion, rightly laid on the appellants. It was suggested by counsel for the appellants that "access" in the section implied actual cohabitation, and a case from the Madras reports was cited in support of this contention. Nothing seems to turn upon the nature of the access in the present case, but their Lordships are satisfied that the word means no more than opportunity of intercourse.