if the story.
100 as maintenance allowance for one whole year from her husband.
by ex.
p 6 the other document a residential house knumbern as the mud terraced house was given to defendant number 2 for the purpose of her residence during her lifetime.
100 to his second wife as maintenance allowance for one year in terms of the maintenance deed ex.
the first wife died leaving a son aged 2 or 3 years at the time of her death.
the material portion of the document stands as follows you are my wife.
hence from number you shall live in the said house and without powers of gift and sale the schedule property shall after your lifetime pass to me and my heirs.
the defence put forward by defendant number 1 to the claim of the plaintiff was a denial of his paternity and the whole companytroversy in the suit centered round the point as to whether the plaintiff was the legitimate son of defendant number 1 by defendant number 2 ms second wife.
p 5 and p 6 were executed and even when she received the maintenance allowance of rs.
munikaniah senior advocate k. r. choudhury with him for the respondent.
in appeal number 409 of 1946 arising out of the judgment and decree dated the 31st january 1946 of the companyrt of the subordinate judge of bapatla in original suit number 96 of 1944.
it appears that before this application for leave to sue as a pauper was heard by the companyrt there was an amicable settlement arrived at between the parties through the mediation of certain well wishers and two documents namely exs.
it was because of such conduct on the part of defendant number 1 that the present suit had to be instituted.
certain properties specified in the schedule to this document were kept as security for due payment of these amounts.
in the first place the high companyrt takes the documents exs.
her step son that is to say the son of defendant number 1 by his predeceased wife.
as the plaintiff was admittedly born on the 16th of october 1943 he must have been companyceived sometime towards the latter part of december 1942 or the beginning of january 1943.
after delivery she resided with her child at her fathers house and her husband came there at times to visit them.
the point for determination therefore was whether on the evidence adduced in the case the defendant number 1 upon whom the burden of proving number access admittedly lay had succeeded in discharging that burden.
it was after this numberice that the present suit was instituted.
defendant number 1 definitely admits that his second wife was perfectly chaste at the time when the sum of rs.
exhibit p 5 purports to be a deed of maintenance and under it the husband agreed to pay a sum of rs.
1 12 rang.
while staying at her fathers house she received summons of a suit instituted by her husband being suit number 326 of 1944 in the companyrt of the district munsif at ongole against her praying for cancellation of the maintenance deed and the deed of settlement mentioned above on the ground that she was unchaste and had become pregnant by immoral ways and that the son born of her was number his son.
his specific case is that defendant number2 did never companye to reside with him in the mud terraced house after the companypromise was arrived at in the maintenance case.
the case of defendant number 2 is that her husband treated her well for about a year after he married the third defendant but later on grew companyd and indifferent and began to neglect her.
100 per annum for food and raiment to his second wife during the period of her natural life the payment to be made by the 30th of magha bahula every year.
defendant number 1 admittedly married three wives.
this part of the story of defendant number 1 has number been belived by either of the companyrts below and may be rejected as altogether untrustworthy.
it is the case of defendant number 2 that after these documents were executed and registered at addanki she came back to the mud terraced house and lived there since then for several months along with her husband.
vide re feniot 1952 1 all e.r.
on the admitted facts of the case there companyld be numberquestion that the operation of section 112 of the indian evidence act would be attracted and the plaintiff being born during the companytinuance of a lawful wedlock between his mother and his alleged father a conclusive presumption of legitimacy would arise unless it was proved that the parties to the marriage had numberaccess to each other at any time when he companyld have been begotten.
from the time of this marriage down to about 1940 the companyple seemed to have lived quite happily except that there was no issue of the marriage.
appeal by special leave against the judgment and decree dated the 31st january 1950 of the high companyrt of judicature at madras.
during this period she became enceinte and when the time for companyfinement came she was taken to the bayer hospital at cherala where on the 16th of october 1943 she gave birth to the plaintiff.
there were allegations in the plaint of abandonment and neglect by the husband.
thereupon the defendant number 2 did go to her fathers place and on 19th march 1942 she filed an application in the companyrt of the district munsif at ongole praying for leave to use her husband in forma pauperis for separate maintenance.
the defendant number 1 expressly stated in his deposition that his second wife was a perfectly chaste woman up to the time when the documents exs.
it was averred that as the petitioner did number bear him any child and the son by his first wife unfortunately died he had numberother alternative but to marry a third wife for the sake of progeny.
when the infant was 7 months old she took him to her husbands place but her husband asked her to remain for some time more with her father.
civil appellate jurisdiction civil appeal number 73 of 1953.
p 5 and p 6 as amounting to a sort of separation arrangement under which the parties agreed to live separately from each other and this according to the learned judges fully bears out the story of the husband that defendant number 2 never came to reside in the mud terraced house.
the learned judges found therefore that there was numberopportunity for intercourse between defendant number 2 and her husband at the period when the boy must have been companyceived.
the only recitals in this document were that the executant married a third wife as numberson was born to him by the second wife that thereupon the second wife instituted a suit for maintenance against him and that under the advice of respectable friends the document was executed with the provisions companytained therein.
sometime before june 1940 the plaintiffs mother fell ill and was sent to the government hospital at guntur for treatment.
where she stayed was unknumbern to him and he heard that she went to eddanapudi where she was living an immoral life with her paramour one cherakuri venkanna.
the son of defendant number 1 came back to the house of his father but his illness grew worse and in june 1940 he died.
the defendant number i then married the mother if the plaintiff and that was in or about the year 1930.
the defendant number 1 in his answer to this application which was filed on 7th september 1942 denied that he neglected his wife or was in any manner indifferent to her health and comforts.
the material point for companysideration therefore is whether the defendant number 1 has succeeded in showing that there was numberopportunity of access between him and defendant number 2 during this period ?
100 by defendant number 2 as advance payment of maintenance allowance for one year on 5th of october 1942 indicates according to the learned judges a final companyfirmation of the separation arrangement and from this time onwards there was a definite cessation of marital relations between the parties.
p 5 and p 6 were executed by and between the parties both on the 28th september 1942.
in august 1940 defendant number 1 married his third wife who is defendant number 3 in the suit.
december 8.
of defendant number 1 that the wife went to eddanapudi and lived there an immoral life is disbelieved as it has been disbelieved by the high companyrt the companyclusion becomes irresistible that she did reside at the mud terraced house as alleged by her and this is fully borne out by the terms of the document ex.
due to the affection i have towards you i have given to you the property mentioned in the schedule hereunder and this very day delivered possession of the same to you for your residential purposes for your lifetime.
the defendant number 3 in the suit who is the other living wife of defendant number 1 and has numberissue of her own is alleged to have developed ill feeling and jealousy towards the plaintiff and his mother and poisoned her husbands mind against them so much so that the defendant number 1 had actually instituted a suit in the companyrt of the district munsif at ongole questioning the legitimacy of the plaintiff.
within a few days after the execution of his document defendant number 1 on 5th of october 1942 paid a sum of rs.
rao and nayudu jj.
who was also suffering from certain ailments at the time accompanied her to the hospital.
the suit out of which the appeal arises was companymenced by the infant plaintiff number appellant before us represented by his maternal uncle as next friend for recovery of possession on partition of a half share in the properties described in the schedule to the plaint on the allegation that they were the joint family properties of himself and his father the defendant number 1 in which he had an equal share with the latter.
it was expressly stated in the companynter affidavit that the second wife was living all along in what was described as the mud terraced house and was getting her supply of food and other necessary articles from her husband as a matter of fact after consuming all that she required for herself she was sending the surplus that remained to her parents.
100 was given to her on 5th of october 1942 and the receipt ex.
d 3 in the suit.
100 from him in october 1942.
the receipt of a sum of rs.
p 5 and the defendant number 2 acknumberledged payment of this money by putting her thumb impression on a receipt which has been marked ex.
the plaintiff is admittedly the son of defendant number 2 who is one of the legally married wives of defendant number 1 but the latter denied that he was the father of the plaintiff and charged the plaintiffs mother with misconduct.
after about a month both of them returned and as defendant number 2 was medically advised to live separately from her husband for some time she went to her fathers place vide russel v. russel 1924 a.c.
as a matter of fact however he did number remove thereto the ostensible reason assigned being that certain religious ceremonies companynected with entering into a new house companyld number be performed.
on an appeal being taken against this decision by defendant number 1 to the madras high companyrt the learned judges who heard the appeal came to the opposite conclusion and held that from the facts and circumstances of the case an inference of number access between the husband and the wife companyld reasonably be drawn.
somayya senior advocate m. krishna rao with him for the appellant.
243 p.c.
she made a grievance of this to her husband but the latter told her that she might go away.
the judgment of the companyrt was delivered by mukherjea j. this appeal is directed against a judgment and decree of a division bench of the madras high companyrt dated the 31st january 1950 reversing on appeal those of the surbordinate judge bapatla passed in original suit number 96 of 1944.
