JUDGMENT
1. In this case the Court has found that the alienation by the 1st defendant the undivided father of the 2nd defendant was made 276 days before the birth of the 2nd defendant and has come to the conclusion that it was made after the 2nd defendant was conceived and at a time when the 2nd defendant had acquired an interest in the property. This conclusion he has based on S, 112 of the Evidence Act which provides “that the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within the 280 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.” The presumption is that a child born within 280 days after possibility of access shall be deemed to be the legitimate child of the father. It is not that such a child was conceived 280 days before its birth. 280 days was no doubt the period chosen in the section because it is accepted as the average period of gestation, but Taylor and other medical authorities show that is only an average and that the period is often longer or shorter in individual cases. In these circumstances there does not seem to be any strong reason for raising a presumption that the particular child was conceived 276 days before his birth.
Writher he was or not is susceptible of proof as, where access has been continuous even the mother could not give the date of conception within a few days.
2. We have not been referred to any more or less arbitrary rule of Hindu Law fixing the date of conception at so many days before birth, and, as observed in Minakshi v. Virappa (1884) I.L.R. 8 M. 89 science has not arrived at such a point that, where there has been frequent opportunity of access between the parents a conclusive opinion can be formed as to the exact moment of conception. In this state of things the learned Judges observed that there are obvious reasons of convenience for holding that a purchaser for value is not bound to enquire whether the wife of the seller is enceinte and suggested that the rights of a son in the womb to ancestral property might possibly not prevail against an alienee for value. We abstain from discussing the question as it is unnecessary and the respondent is not represented before us.
3. For the purposes of the present case, it is sufficient to say that if the 2nd defendant desires to rely on the defence that he was conceived before the date of the alienation in question it is incumbent on him to prove it by clear and satisfactory evidence and this he has failed to do. We must allow the appeal and modify the decree accordingly with costs both here and below.
