Sadasiva Aiyar, J. — The plaintiff is the appellant. The suit was brought for the recovery off sums due under a mortgage deed executed in favour of the plaintiff's husband in 1903. The plaintiff sued as the heir of her only son who died after her husband and who according to her, solely inherited the properties of her husband. The defendants (mortgage-debtors) set up that the plaintiff's deceased son left two undivided step-brothers born to the plaintiff's husband by a co-wife of the plaintiff and pleaded that those step-brothers of the plaintiff's son are entitled by survivorship to the amount due under the mortgage bond in dispute and further pleaded that they had made payments in discharge of the plaint bond to those step-brothers.
The District Munsif found against the discharge pleaded by the defendants and, as regards the rights of the plaintiff's son's alleged step-brothers, he gave his finding as follows:—“My conviction is that Thyammal” (that is the alleged 3rd wife of the plaintiff's husband) “is a dasi of Venkataramanasami Goundan,” (that is the plaintiff's husband)” and her sons are his illegitimate sons as there is no evidence of law that the connection between Venkatararnanasami Goundan and Thyammal was adulterous or incestuous.”
On appeal, the Lower Appellate Court has made the following observations in its judgment. “The finding that Thyammal was not Venkataramanasami Goundan's wife is I think right. He was a Vellala Goundan of property and position, while she was an Okkiliya Goundan of no position at all. It is not, I observe, seriously denied that the persons whose title the 2nd defendant set up are the sons of Venkataramanasami Goundan and Thyammal.” It also appears that besides these two sons, Venkataramanasami Goundan and Thyammal were the parents of at least two daughters one of whom was married to P. W. 2. There can, therefore, be no doubt that the connection between Thyammal and Venkataramanasami Goundan was permanent and not fugitive. Then the question is whether it was not adulterous. Adultery being an offence under the Penal Code and the law always presuming innocence both in Civil and Criminal cases, the presumption is that the connection was not adulterous. (See Woodroffe and Amir Ali's Evidence Act pages 731 & 732 where the authorities are quoted in support of the proposition that there is a general presumption against misconduct of all kinds and there is no presumption more highly favoured in the law than that of innocence). Whether you call the stipulation that the connection should not have been of an adulterous nature, (1) a condition for an illegitimate son (not prima facie an heir) claiming the inheritance or (2) a limitation upon the right of an illegitimate son (prima facie an heir) to inherit, the burden of proving that the connection between the mother and the father of the illegitimate child involved that criminal offence and grave misconduct of adultery is, in my opinion, on the person who sets up that contention. (There is no question of incestuous connection in this case, the parties belonging to two well defined distinct sub-castes). On the finding of the Lower Appellate Court, the attack against which has, (as above shown) failed, the second appeal has to be dismissed. But as the defendants set up that Thyammal's sons were legitimate sons of Venkataramanasami Goundan and further set up the false plea of discharge by payment, I would direct the parties to bear their respective costs throughout.
Napier, J.—I agree.
C. K.Appeal dismissed.
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