John Wallis, J.

1. In this case Bhagwan Baksh Singh, plaintiff 1, hereinafter referred to as the plaintiff, who gives his age as 21, instituted the present suit on 7th March 1929, to recover possession with mesne profits of the share of Chatarpal Singh, his mothers husband, in the suit properties belonging to the joint family of which Chatarpal was a member, impleading defendants 1 and 2, who are surviving members of the joint family, and defendants 3 and 4, who are widows of deceased members. To raise money for this litigation he has alienated a half-share of the properties in the suit to Thakhur Mahadeo Singh, plaintiff 2. It is not now in dispute that at the time of the plaintiffs birth, his mother, Mt. Dilwant Kuer, the daughter of Nakched Singh, was the lawfully married wife of Chatarpal Singh, but it is alleged by the defendants in the written statement that, before the gauna or consummation, ceremony, it came to light that Chatarpals wife was pregnant as the result of an illicit connexion, that consequently she never came to Chatarpals house, the gauna ceremony never took place, and Chatarpal and his wife never lived together as husband and wife. It is further alleged that in June 1929, when the written statement was filed, the plaintiff was at least 24 years old, that is to say, he was born in 1905, and that, as Chatarpal would not then have been more than 32, if he had lived, he was 11 years old at the utmost when the plaintiff was born. If however Chatarpal would have been only 32 in 1929, he must have been born in 1897 and would have been only 8 years old in 1905, when according to the defendants the plaintiff was born. The written statement therefore raised the two-fold defence of non-access and of Chatarpals physical incapacity to procreate at the time when the plaintiff was begotten. As the plaintiff was admittedly born after his mothers marriage to Chatarpal, the onus of establishing these defences lies heavily on the defendants under Section 112, Evidence Act, which, so far as material, 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......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.

2. As regards the meaning of the word "access" in this section, the learned Judges of the Chief Court have held that access in this section means effective access, as is shown by the use of the words "when he could have been begotten," and the proposition that physical incapacity to procreate, if established, amounts to non-access within the meaning of the section has not been disputed in the argument before their Lordships. The Subordinate Judge dismissed the suit on the ground that in the case of this marriage the gauna or consummation ceremony never took place, because Dilwant Kuer was found to be already pregnant, and that the husband in fact never had access to his wife, but refrained from recording a finding as to the question of physical incapacity. The learned Judges of the Chief Court, whilst not dissenting from this finding, have found that Chatarpal must have been approximately 13 years of age when the plaintiff was begotten, and that at that time the husband was physically incapable of procreating issue. They accordingly affirmed the decree of the Subordinate Judge dismissing the suit. The Chief Court having refused to grant the necessary certificate, the plaintiff obtained special leave to appeal to His Majesty in Council. Unfortunately the defendants have not entered appearance and the appeal has been heard ex parte.

3. Their Lordships think it better at once to clear the ground by stating that in their opinion the defence based on the alleged physical incapacity of the husband is not made out. To brand a child born to a wife in lawful wedlock with illegitimacy on this ground, it would be necessary in the first place to prove the precise age of the husband at the date of conception, and in the second place to negative the possibility of premature virility at that age owing to precocious development. In their Lordships opinion it is impossible to arrive at a finding as to the precise age of the husband at the date of conception on the evidence in this case. As was perhaps only to be expected, there has been great exaggeration on both sides. The defence on this question is based entirely on oral evidence given, at the trial, supplemented by the oral evidence in the inquiry by the Revenue Court in the mutation proceedings immediately after the husbands death, which it is now contended was inadmissible. They have been unable to produce any documentary evidence on the question of the husbands age in the shape of birth certificate, horoscope or otherwise. For the plaintiff an extract from a register of births maintained by a village chowkidar, who could neither read nor write, has been exhibited, giving the date of the plaintiffs birth as 10th September 1907, and also an extract from a school register for 1903 which gives the husbands age at the date of admission on 10th July 1903, as 11 years and six months. According to this entry he must have been born in January or February 1892, which would make him more than 15 and a half at the time of the plaintiffs birth as given in the register of births, and so fully establish his physical capacity at the date of the plaintiffs conception. The Subordinate Judge however has hesitated to act on this register which has not been produced from the proper custody; and the Chief Court after carefully examining the school register have satisfied themselves that it has been tampered with for the purposes of this case and is utterly useless. The evidence of Indian witnesses on questions of age is notoriously often very vague and unreliable; and in their Lordships opinion it would be very unsafe to base a finding of, physical incapacity on the part of the husband on the evidence in this case. Further, if the finding of the Chief Court that the husband in this case was 13 at the date of conception could be accepted, and the defendants had failed to prove non-access in the ordinary sense-of that term, their Lordships would hesitate to hold that incapacity to procreate at that age could safely be inferred from the sole fact that Lyons Medical Jurisprunence, a work dealing with Indian conditions, accepts as applicable to Indian Taylors statement with reference to this country where climatic conditions are so different, that 14 is the earliest age at which procreative power has been recorded.

4. Their Lordships will now proceed to deal with Mr. de Gruythers contention that concurrent findings of the lower Courts should not be accepted, because the depositions exhibited by both sides of witnesses who gave evidence at the inquiry in the mutation proceedings, but died before the trial, were inadmissible in evidence. The Subordinate Judge has stated in his judgment that they were admissible under Section 32, Clause 5, Evidence Act, but they were clearly inadmissible under the proviso to that section because they were made after the present dispute arose. They were admissible, if at all, under Section 33 as statements made in judicial proceedings between the same parties; and under the third proviso to this section such statements are only admissible if the questions in the mutation proceedings were substantially the same as the questions in issue in this suit. Mr. De Gruyther has contended that the questions were not substantially the same because in the mutation proceedings the Collector was required by statute to base his decision, as he did, on possession and not on title. He has further contended that statements which are inadmissible under this section cannot be made admissible by consent of the parties to the suit as evidenced by the fact that depositions of witnesses in the mutation proceedings were exhibited by both sides. As regards the latter contention it appears from the notes on this section in Ameer Alis and Woodroffes Indian Evidence Act that three of the Indian High Courts have decided the other way; and in view of the facts that the objection was taken for the first time at the hearing before the Board and has not been argued on the other side owing to the absence of the respondents, their Lordships do not propose to decide it, because in their opinion under Section 167, Evidence Act, the finding of the Subordinate Judge that Chatarpal had no access to his wife prior to the plaintiffs birth may be supported on the other evidence in the case excluding the depositions to which objection has been taken.

5. Their Lordships will now proceed to deal on this footing with the question of non-access. In dealing with this question in a case of child marriage among Hindus much depends on the question whether the case presented on either side is reconcilable with the established customs and usages of Hindus as regards these child marriages, and their Lordships have derived great assistance in deciding it from the fact that both the lower Courts in judgments written by Hindus concur, as will be seen, in finding that the plaintiffs case as to alleged access is irreconcilable with such customs and usages.

6. The families of the husband and wife reside respectively in the villages of Muraini and Bhawain, said to be 20 miles distant from one another; and it is admittedly the custom that after the celebration of the marriage the wife continues to reside for some years in her own family. She then goes to stay with her husbands family for the gauna ceremony and the consummation of the marriage, and shortly afterwards returns to her parents house; and after staying there for a period, it is said, of one or two years, goes to her husbands family for the thauna ceremony, and thereafter lives permanently with him. The case presented by defendants family in their objections to the wifes application after her husbands death for mutation of names in the plaintiffs favour was that, owing to the discovery that the wife, who was about a year older than the husband, had become pregnant as the result of an illicit connection, the gauna ceremony and consummation of the marriage never took place, that from that time the husband had nothing to do with her or her son, the plaintiff, who was admittedly born in her parents house, and that he shortly afterwards married another wife. The case put forward by the plaintiffs mother on his behalf in answer to these objections was that she had always lived with her husband but visited her father now and then; that, while she was on a visit to her father her husband died, and that when she returned to her husbands village his second wife, with the help of other persons, compelled her to return to her fathers village with the object of acquiring the whole property of the husband. There could, however, have been no such motive, as in the absence of male issue the husbands share would have passed by survivorship to the joint family, and the second wife would only have had a right to maintenance. In her deposition at this inquiry, on which she was cross-examined at the trial, the plaintiffs mother stated that the gauna and thauna ceremonies wore duly performed, and that the plaintiff was born ten years after the marriage at her fathers house; and her evidence at the trial was substantially to the same effect.

7. As to the further period of ten years which, according to the plaintiffs case, elapsed between the plaintiffs birth and the husbands death, the plaintiffs mother stated at the inquiry that six months after the plaintiffs birth she went back to her husband, and that afterwards she remained in her husbands house. At the trial, after her brother and some other of the plaintiffs witnesses had given evidence that after the plaintiffs birth she and the plaintiff continued to reside with her father at Bhawain, she was put into the box at the close of the ease, and admitted that this was the case, and consequently that her statement at the inquiry was false. Apparently to account for her not having lived with her husband after the plaintiffs birth for the remaining ten years of his life, it was alleged in the plaint that after the plaintiffs birth a dispute arose in the gohin ceremony between her husbands and her own father which resulted in the husbands father marrying him to Birjpali Kuer as his second wife. But according to the evidence given for the plaintiff at the trial, the quarrel between the two fathers arose, not as rather suggested in the plaint in connection with herself or her son, but in connection with the marriage of her sister. According to that evidence the husbands father was angry because on this occasion he did not receive the present of a horse, and for this cause refused to have anything further to do with either mother or son. Their Lordships agree with the lower Courts that this explanation is absurd and incredible. There was at the time no male child in the husbands family which was threatened with extinction unless resort was had to the unsatisfactory substitute of adoption, and there was, therefore, every reason for welcoming the birth of the plaintiff if he had really been the husbands son. Further, it is not to be supposed that the mothers father would have acquiesced, as he apparently did, in this repudiation of his daughter and her son for such an inadequate reason. The whole position is well summarised in the following extract from the judgment of the Chief Court.



We cannot fail to be impressed by the conclusions drawn by the lower Court from the conduct of the family. As it happens there is no other male heir in the family if the plaintiff cannot establish his title. Yet he has never at any time been acknowledged by his father, by his grandfather or by his granduncle Dalpat Singh, who survived until 1926 and who was for many years the head of the family. No adequate reason is alleged for the refusal of Chatarpal Singh to admit to his home Dilwant Kuer and her son if he believed the boy to be his own child. A suggestion is made that Chatarpal Singhs lather Jang Bahadur had some quarrel with Nakched Singh, the father of Dilwant Kuer. The evidence as to this quarrel is feeble and incoasistent. In the plaint, paragraph 7, the suggestion clearly is that the dispute arose either at the gauna or some other ceremony connected with the marriage of Chatarpal Singh and Dilwant Kuer. According to Dilwant Kuer the quarrel arose on the occasion of a ceremony connected with the marriage of her sister. In any case it appears to have been a trivial matter and one which would surely have been forgotten after the death of Jang Bahadur which took place many years before the death of the son Chatarpal Singh. It also appears to us strange that the family of Dilwant Kuer, namely, her father and her brother, did not press for her recognition and the recognition of her son. In fact the only satisfactory explanation offered to us of the conduct of both families is that given by the defendants that the plaintiff is an illegitimate child.

8. The Subordinate Judge also regarded it as incredible that, in the case of a first-born son, the wife should have been allowed to go to her fathers house when pregnant and be confined there. The Subordinate Judge in his judgment has most carefully weighed and sifted the evidence of the witnesses on both sides, giving in each case his reasons for rejecting witnesses whom he considered unworthy of credit. Nine witnesses for the defendants, whom the Subordinate Judge apparently saw no reason to disbelieve, have given evidence that the gauna ceremony which according to the custom is a necessary preliminary to consummation was never performed because the wife was found to be with child as the result of illicit intercourse; that the husband and his family repudiated the plaintiffs mother and never acknowledged the plaintiff as her husbands son; and that both mother and son continued to reside in her fathers house and never went to her husbands village. Their Lordships see no reason for rejecting this evidence, confirmed as it is in the manner already mentioned. It has not been suggested that the husband could have had intercourse with the wife before the gauna ceremony which would never have been permitted by the respective families and was practically rendered impossible by the fact that the husband and wife lived in villages far apart from one another. For the reasons already given their Lordships are satisfied that the defendants have sufficiently discharged the onus of proving non-access, and are of opinion that the appeal should be dismissed. They will humbly advise His Majesty accordingly.