Vol. 12 · pages 586–590

565LAW OF EVIDENCE Meaning of non-access. 1934. 38 Bom. L.R. 394. Karapaya vs. Mayandi. Access does not imply actual cohabitation. It means no more than opportunity of intercourse. Kerapaya, a Madras Hindu acquired considerable property in Burma. He died a lunatic in 1923. Karapaya first married Karapayi and then married Nachiama. Kerapaya lived with Nachiama at Tamagyo while Karayappi was living at Houlmein with her mother and brother. In December 1911 an agreement made between (Left incomplete—ed.) (3) The conclusion cannot be demolished by giving evidence of inability to cohabit. 29. I. A. 17 Narendra vs. Ram Govind. 1901 Upendra was married to Tilottama. Upendra died on July 15 from the effects of a Carbuncle in his back, from which he had been suffering for sometime. After the death of Upendra, Tilottama gave birth to a son Narendra on April 18,1887 i.e. 9 months 10 days or 280 days after the death of Upendra. There were three questions to be considered : 1. Was Narendra the child of Tilottama—Upendra ? 2. Was he born within 280 days from the death of Upendra ? 3. Is it proved that he and she had no access to each other at any time when the appellant could have been begotten ? On the last issue the evidence was as follows: Tilottama was married when she was quite a child and lived with her parents. But shortly before his death in July 1886 she went to live with her husband. How long before it is not clear. Some witnesses said five or six days others said ten or twelve days.

566 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The important circumstances in the case were two : (1) That Upendra died from the effects of a Carbuncle from which he had been suffering for a fortnight. (2) That Upendra had made will on the 14th July 1886 appointing Tilottama as his Executrix and directing her to adopt a son. The contention was that if he was ill he could not have cohabited. The contention was negative. (3) Inability to cohabit must be distinguished from genital inability. 1935. (All India Reporter) P.O. 199 (for Physical inability). Query-If he was impotent. The Section abrogates the rules of Hindu and Mahomedan Law regarding Legitimacy. 10. All. 289. 1. According to Mahomedan Law a child born six months after marriage or within two years after divorce or death of the husband is presumed to be her legitimate offspring. 2. According to Hindu Law it is ten months after divorce or death of the husband. The section does not prohibit a person born after 280 days from proving he is the legitimate son. Only the burden of proof is upon him. 24 All. 445. 357 days after the death of the father. There is a difference between the English and Indian Law of Evidence regarding the competency of the Husband and wife on the issue of access when the question of the Legitimacy of the child arises. 1. Under the English Law they are incompetent. 2. Under the Indian Law they are competent. 38 Mad. 466. 28 Bom. L.R. 207. Section 113 1. The section deals with the Burden of Proof regarding the cession of a territory. How is it to be proved that a certain territory which was once a part of British India has ceased to be part of British India.

567LAW OF EVIDENCE The question is not merely academic. It is of great practical importance. It goes to the root of the question of the jurisdiction of the Court. If a territory is not a part of British India then it is not subject to the Jurisdiction of any Court. 2. Provision was made in Section 113. It said that a notification in the Gazette of India that a British Territory has been ceded to any native State Prince or Ruler should be taken as a conclusive proof that a valid cession of such territory took place at the date mentioned. 3. This Section has been declared to be ultra vires of the Indian Legislature and therefore void and of no legal effect by the Privy Council. 1. Bombay 367 Damodar Gordhan vs. Deoram Kanji. P.O.1876 The Governor General in Council being precluded by the 24-25 Vic. O. 67 Sec. 22 from legislating directly as to sovereignty or dominion of the crown on any part of its territory in India or as to the allegiance of British subjects cannot by legislative Act (E. G. Evidence Act. S. 113) purporting to make a notification in the Government Gazette conclusive proof of a cession of territory, exclude judicial enquiry as to the nature and lawfulness of that cession. Judgements as conclusive Proof. 1. Just as certain facts are deemed to be conclusive proof of certain other facts, similarly the Evidence Act treats certain Judgements as conclusive on certain issues. Sec. 41. 2. The judgements which are declared to be conclusive are :— (1) Final Judgement, order or decree of a Competent Court in the exercise of (1) Probate (2) Matrimonial (3) Admirality (4) Insolvency Jurisdiction which confers a legal character or takes away a legal character or declares a person to be entitled to a legal character or to a thing not against any specified person but absolutely.

568 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Are conclusive Proof: (1) That the legal character as given or taken away. (2) That it is given or taken away on the date of the Judgement. Section 41. This section deals with use of Judgements of Courts of Law for the proof or disproof of certain questions. Question is: (1) The right of a person to a certain status (2) When did such right accrue to him. Question is : Did (1) A particular person cease to have a status (2) If so, when. Question is whether any particular person was entitled to a certain property. The Section declares that certain Judgements will be conclusive evidence of these facts. What are these Judgements : (1) It must be a Judgement of a Competent Court. (2) It must be a Judgement in the exercise of (i) Probate (ii) Matrimonial (iii) Admirality (iv) Insolvency 1. Which declares conferring or taking away of a legal character on or from any person. 2. Which declares a person entitled to any specific thing not against any specified person but absolutely. 3. If it is a final Judgement, order or decree. Probate Jurisdiction. The Courts exercise testamentary and intestate jurisdiction under: (1) Indian Succession Act. (2) The Hindu Wills Act.

569LAW OF EVIDENCE (3) The Probate and Administration Act. Matrimonial Jurisdiction. Exercised under the Indian Divorce Act and other Acts relating to marriage and divorce. Admirality Jurisdiction. Letters Patent of the High Court and the Colonial Courts Admirality Act. 1890. Insolvency Jurisdiction. Charters and the Insolvency Acts. § Matters which parties are estopped from Proving. 1. The law of Estoppel is contained in Sections 115, 116, 117. Section 115 states the general rule of estoppel. Sections 116 and 117 enact particular kinds of estoppels. 2. Section 115. (i) Comparison of Section 115 with Section 31. Estoppel is like an Admission inasmuch as it is a statement of a fact. Most admissions can be withdrawn by the party who makes them. The fact that they were made remaains, but the party who made them can be heard to explain that he made them rashly and carelessly or under an honest misapprehension. Even he cluld be heard to say that he knew what he said to be false. But a statement may be made by one person to another in such an unequivocal manner and under such circumstances that it has a decisive effect on the conduct of the other. The law will not permit a person making such a statement to contradict it. The margine between an estoppel and an admission is very narrow and the answer to the question whether a statement is a mere admission or is a estoppel depends upon the nature of the statement and the circumstances appertain to it. (ii) What are the legal requirements of the Rule of Estoppel ? The rule of Estoppel comes into operation when the three following conditions are satisfied. 37 Bom. L. R. 544 P. C. (i) A statement amounting to a representation of the exsitence of a fact has been made by the defendant or an