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Advocates
  • Mr. Rajagopala Ayyar for Messrs. K.S Ramamurthi and T.R Mani for Petr.
  • Mr. T.R Ramachandran for Respt.
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  • Ramachandra Iyer, C.J
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Advocates
  • Mr. Rajagopala Ayyar for Messrs. K.S Ramamurthi and T.R Mani for Petr.
  • Mr. T.R Ramachandran for Respt.
Judges
  • Ramachandra Iyer, C.J
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Smart Summary

Judgment Summary — S. Ramachandra Ayyar, C.J.

Factual and Procedural Background

One Velayudham Pillai, described in the record as a lunatic, instituted Original Suit No. 194 of 1122 (M.E.) in the Sub-Court, Nagercoil, for partition of family properties. The suit was filed through his wife Lakshmi as his next friend. During the suit it was stated that Velayudham disappeared on 24 November 1948; Lakshmi alleged he had been spirited away by the petitioner, who denied the allegation and indicated he believed Velayudham to be alive.

The trial Court dismissed the suit on 25 November 1954. Lakshmi, still acting as next friend, appealed to this Court in Appeal Suit No. 665 of 1956. No objection was taken in the appeal to its maintainability on the ground that Velayudham had died. On 14 September 1960 this Court (Rajamannar, C.J., and Veeraswami, J.) allowed the appeal and passed a preliminary decree for partition. By that time more than seven years had passed since Velayudham's disappearance, and he never returned thereafter.

After the preliminary decree, Lakshmi sought a final decree and filed an execution petition for costs. At that stage the petitioner applied to the lower Court to declare this Court's preliminary decree of 14 September 1960 null and void on the ground that the original suit had abated — asserting that Velayudham should be presumed to have died in 1955 (seven years after disappearance). The Subordinate Judge rejected that petition. The petitioner then brought this Civil Revision Petition challenging that rejection.

Legal Issues Presented

  1. Whether the court can now presume, after the fact, that a party to an appeal (Velayudham) should be taken to have died before the hearing of the appeal such that this Court lacked jurisdiction to dispose of the appeal without impleading his legal representatives.
  2. How the presumptions under Sections 107 and 108 of the Indian Evidence Act apply where a person has been absent and not heard of for seven years but no issue as to their being alive or dead was raised at the time the appeal was heard.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner argued that under Section 108 of the Evidence Act, a person not heard of for seven years should be presumed dead; applying that presumption, Velayudham should be presumed to have died in 1955 (seven years after his disappearance).
  • On that basis the petitioner contended that the judgment in the appeal (delivered in 1960) was void because the appeal had been disposed of without impleading Velayudham's legal representatives (the suit having abated on his presumed death prior to the hearing).
  • Counsel for the petitioner (Mr. Rajagopala Ayyar) relied on a passage from Taylor on Evidence (twelfth edition) and on decisions such as Bal Naicken v. Achama Naicken to support the contention that, where disappearance exceeds seven years, there is a presumption of death which could operate to fix the time (or at least to justify treating death as occurring not later than the seventh year in certain contexts).

The opinion does not set out in detail any opposing party's specific legal arguments beyond the procedural history and the Court's own analysis.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Bal Naicken v. Achama Naicken (1921) 41 M.L.J. 295 Discussed the presumption that a person not heard of for seven years is presumed dead, and stated there is no presumption as to the precise date of death within that period; but in some situations a presumption in favour of death after lapse of seven years may arise when the question falls indifferently within or after the seven years. The Court noted this decision was relied upon by the petitioner but distinguished it: such cases applied the presumption when the question of existence was actually before the court and do not establish a fixed rule that death is to be presumed at the close of seven years irrespective of when the issue is raised.
Madhavan Nair, J., S.A. No. 55 of 1922 (47 M.L.J. (Short Notes) 23) Held that at the end of seven years from disappearance the presumption of death arises and the burden shifts accordingly (applied to a legatee situation). The Court observed this was another instance where Section 108 was applied when the question was directly before the Court; it therefore does not support a general rule that death should be presumed to have occurred immediately after seven years in every context.
In re Plum's Trusts (1869) L.R. 5 Ch. 139 Expressed the classical formulation: if a person has not been heard of for seven years there is a presumption of law that he is dead, but the time of death within that period is not presumed and must be proved. The Court cited this source (as quoted in other authorities) to underline that the presumption relates to the fact of death when the issue arises, not to any specific date of death within the disappearance period.
Lal Chand Marwari v. Ramrup Gir (1925) L.R. 53 I.A. 24 : 50 M.L.J. 289 (P.C.) Confirmed that there is no difference between the law of India (as in the Evidence Act) and the law of England on the point: presumption of death after a period of not less than seven years applies to the fact of death when questioned, not to the time of death within that period. The Privy Council authority was relied on by the Court to dispel the misconception that disappearance for more than seven years gives a presumption as to the precise date of death; it supported the Court's interpretation that the presumption operates only when existence is in issue at the relevant time.
Seshi Ammal v. United India Life Insurance Co. (1959) 2 M.L.J. 53 Held that Section 108's presumption extends to the fact of death but not to the time of death; the exact time is a matter of proof if required for establishing rights dependent on that date. The Court cited this case as reinforcing the proposition that the presumption concerns the fact of death at the time the question is raised and does not establish a date of death within an antecedent period.
Gnanamuthu v. Anthoni (reported; no full citation provided in text) After analysis of Sections 107 and 108, observed that presumption under Section 108 is as to fact of death when the question is raised, not to a particular antecedent time. Used by the Court to support the conclusion that presumption under Section 108 cannot be used to fix the date of death retrospectively where the issue was not raised at the time of the earlier proceeding.
Jyotirmoy v. Biswanath (1949) 53 C.W.N. 713 Considered application of Section 108 where death was presumed and legal representatives were sought to be impleaded; held there is no presumption as to the date of death and that courts should direct impleading of legal representatives unless convinced the application to bring them on record was not made within statutory time (ninety days). The Court relied on this decision to show that the presumption under Section 108 does not relieve a party of proving date of death when it matters, and that courts should be cautious before denying impleadment of representatives absent affirmative proof regarding timing of death and compliance with procedural time limits.
Halsbury's Laws of England (3rd ed., vol. 15) (text cited) States there is no legal presumption that a person was alive up to the end of seven years or that he died at any particular point in that period; only presumption is that he was dead at the time the question arose if he had not been heard of for the preceding seven years. The Court quoted Halsbury to emphasize that the presumption under Section 108 is temporal to the moment the question is raised and does not fix any antecedent date of death.

Court's Reasoning and Analysis

The Court framed the legal backdrop by stating the burden rules in Sections 107 and 108 of the Indian Evidence Act: normally the burden of proving death lies on the person affirming it if the person was alive within thirty years (Section 107); Section 108 shifts the burden to the person who affirms life if a person has not been heard of for seven years by those who would naturally have heard of him.

The Court's central analytical point was that the presumption under Section 108 arises only when "the question as to whether a man is alive or dead" is actually in issue before the Court. If no such question is raised at the time of hearing, no legal presumption of death automatically operates retrospectively to invalidate earlier proceedings.

Applied to the facts: when this Court heard and decided the appeal (delivered 14 September 1960), no question had been put before it as to whether Velayudham was alive or dead. The petitioner had not raised the point in the appeal proceedings. Consequently, the petitioner cannot now rely on the presumption under Section 108 to assert that the Court lacked jurisdiction on account of the alleged prior death.

The Court surveyed authority (Bal Naicken, Madhavan Nair J.'s note, Lal Chand Marwari, Seshi Ammal, Gnanamuthu, Jyotirmoy v. Biswanath, and relevant text authorities) and distilled a consistent principle: such authorities applied Section 108 when the issue of life or death was directly before the court at a specific time; none established a general rule that the presumption of death fixes a specific antecedent date (for example, immediately at the end of seven years) irrespective of when the question is raised. The presumption is that the person is dead at the time the question is raised if he has not been heard of for seven years, not that he necessarily died at the close of the seventh year or some other particular point within the absence period.

Therefore, because the existence (alive/dead) question only arose later in Interlocutory Application No. 76 of 1961 before the lower Court and was not raised at the time of the appeal hearing, the presumption under Section 108 could not be invoked to overturn the earlier appellate judgment or to conclude that this Court lacked jurisdiction when it passed the preliminary decree.

Holding and Implications

Holding: The Court concluded that there can be no presumption that Velayudham died at any time prior to the appeal hearing such that this Court lacked jurisdiction to decide the appeal. Accordingly, the Court ordered:

The Civil Revision Petition fails and is dismissed with costs.

Direct consequences and practical implications:

  • The preliminary decree passed by this Court on 14 September 1960 is valid and not nullified by any presumption of death based on seven years' disappearance.
  • The Civil Revision Petition by the petitioner is dismissed; costs were awarded (advocate's fee Rs. 100 as specified in the judgment).

Broader precedent impact: The judgment reinforces the settled principle (as reflected in Sections 107 and 108 and the cited authorities) that the presumption under Section 108 operates only when the question of life or death is in issue at the relevant time, and that there is no legal presumption fixing the precise date of death within the disappearance period. The opinion does not purport to lay down a new rule beyond applying these established principles to the facts; therefore, no novel legal doctrine is announced.

Show full summary ...

    Narayana Pillai v. Velayudhan Pillai

    JUDGMENT S. Ramachandra Ayyar, C.J.

    1. This Revision Petition, though devoid of merits, raises a question of law. One Velayudham Pillai, a lunatic, filed through his wife Lakshmi, as his next friend, Original Suit No. 194 of 1122 (M.E.) in the Sub-Court, Nagercoil, a suit for partition of family properties against the petitioner herein. During the course of the suit, it was stated that Velayudham had disappeared on 24th November, 1948. Lakshmi complained that he had been spirited away by the petitioner but the latter repudiated the suggestion and even stated that he had reason to believe that the lunatic was still alive. The trial Court dismissed the suit on 25th November, 1954. Lakshmi continuing to represent Velayudham as his next friend, took up the matter in appeal to this Court in Appeal Suit No. 665 of 1956, no objection was-taken to the maintainability of the appeal on the ground that Velayudham had died, and the appeal came up for hearing before Rajamannar, C.J., and Veeraswami, J., who by their judgment, dated 14th September, 1960, allowed the appeal and passed a preliminary decree for partition. It will be noticed that by the time the judgment in the appeal was delivered, more than seven years had elasped since the disappearance of Velayudham, who it is admitted now, never returned to Lakshmi thereafter. After the passing of the preliminary decree, steps were taken by Lakshmi to have a final decree passed. She also filed an execution petition for recovery of the costs. It was at that stage that the petitioner filed an application before the: lower Court for declaring that the preliminary decree passed by this Court on 14th September, 1960, was null and void, as the suit had abated. Velayudham being presumed to have died in the year 1955, that is, seven years after the date of his disappearance. The learned Subordinate Judge rejected that petition and hence this Civil Revision Petition.

    2. The sole point for consideration is, whether it can now be presumed that this Court had no jurisdiction to dispose of the appeal on the ground that one of the parties to the appeal, namely, Velayudham, should be presumed to have died before the hearing thereof. The rule as to the burden of proving the death of a person is contained in Sections 107 and 108 of the Indian Evidence Act. They can be conveniently set out here:

    107. When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

    108. Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive is shifted to the person who affirms it.

    3. The latter section shows that the presumption arises only when the question as. to whether a man is alive or dead is in issue. In other words, there is no presumption, so long as there is no dispute about a man being alive, that a man died after a particular time after his disappearance. In the present case no question arose before this Court when it was dealing with the appeal, whether the appellant Velayudham was alive or dead. If really it was the petitioners case that he was dead, he should have raised that question before the appeal was disposed of; and there will be occasion then to raise the presumption. He not having done so, it stands to reason that he cannot rely on any presumption in law to show that he must have died long prior to the judgment. As I indicated earlier, the question whether he was alive or dead arose only at the time when Interlocutory Application No. 76 of 1961, was filed before the lower Court. That was long after the judgment of this Court in appeal.

    4. It was argued for the petitioner that as under Section 108 of the Evidence Act a man who has not been heard of for seven years should be presumed dead, one should presume that Velayudham was dead in the year 1955, and if so much can be accepted the judgment in the appeal without impleading his legal representatives would be void. In support of this contention Mr. Rajagopala Ayyar, who appeared for the petitioner, has referred to a passage in Taylor on Evidence (twelfth edition) page 180, where the learned Author has stated:

    Although the presumption of life will continue for a period exceeding half a century, if no proof be given either that the party whose death is relied upon has not been heard of by those persons who would naturally have heard of him had he been alive or, at least, that search has been ineffectually made to find him, this presumption will be bounded within far shorter limits, if evidence be furnished of his continuous unexplained absence from home, and of the non-receipt of intelligence concerning him. In such a case after the lapse of seven years, the presumption of life ceases, and the burden of proof is devolved on the party denying the death.... But, although a person, who has not been heard of for seven years, is presumed to be dead, the law raises no presumption as to the time of his death ; and therefore, if any one has to establish the precise period during those seven years, at which such person died, he must do so by evidence, and can neither rely, on the one hand, upon the presumption of death, nor on the other, upon the presumption of the continuance of life.

    6. Mr. Rajagopala Ayyar argues that the rule, that there is no presumption as to the date of death, applies only to a case where it is claimed that the person was not heard of within a period of seven years died at a particular time within that period that where that period had expired, the only presumption will be that at the end of the seventh year the man died. Reliance is placed in support of this contention upon the decision in Bal Naicken v. Achama Naicken (1921) 41 M.L.J. 295, where, after referring to the rule that there was a presumption that a person was dead when he or she has not been heard of for seven years, and that there was no presumption as to the particular date on which he or she died, the learned Judges observed:

    But these remarks apply only when the point of time at which the death has to be placed falls necessarily within the seven years.... In our opinion, in a case where the point of time to which the death has to be referred, may be placed indifferently either during the seven years or after the lapse of the seven years (it not being necessary for the plaintiff to show that the person lived during the seven years), there is a presumption after the lapse of the seven years in favour of the death and it is for the other side to displace the presumption and the party relying on the presumption is entitled to succeed if no evidence is offered by the other side.

    7. This decision was followed by Madhavan Nair,J., in S.A. No. 55 of 1922 47 M.L.J. (Short Notes) 23 where it was held that at the end of seven years from the date of disappearance of a legatee, the presumption of death arose and the burden would be on the party who challenges the will to prove that he died at some later date. It will be noticed that in both the cases the presumption under Section 108 was applied when the question actually arose before the Court. Therefore, these cases are not authorities for the proposition that there is a fixed rule that the man died immediately after the lapse of seven years from the date of his disappearance. Section 108 lays down a presumption when the question as to a person's existence is raised in issue before the Court. If the question is raised before the Court at a particular point of time and more than seven years had elapsed by that time from the time when a man was last heard of, the presumption will be that he had died before the date when the question was raised. That is not the same thing as saying that when such a question is raised long after the seven years period is over there is a further presumption that he had died at any time during that period or at the end of seven years from the date of disappearance. In Halsbury's Laws of England (third edition), volume 15, dealing with this question, it is stated (at page 345):

    There is no legal presumption either that the person concerned was alive up to the end of the period of not less than seven years, or that he died at any particular point of time during such period the only presumption being that he was dead at the time the question arose, if he has not been heard of during the preceding seven years. If it is necessary to establish that a person died at any particular date within the period of seven years, this must be proved as a fact by evidence raising that inference;

    (The italics are mine).

    This question is put beyond doubt by the Privy Council in Lal Chand Marwari v. Ramrup Gir (1925) L.R. 53 I.A. 24 : 50 M.L.J. 289 (P.C.) Now upon this question there is, their Lordships are satisfied, no difference between the law of India as declared in the Evidence Act and the Law of England.... and, searching for an explanation of this very persistent heresy their Lordships find it in the words in which the rule both in India and in England is usually expressed. These words taken originally from In re Plum's Trusts (1869) L.R. 5Ch. 139 runs as follows:

    If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.

    Following these words, it is constantly assumed--not perhaps unnaturally--that where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This of course is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if, instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one 'of not less than seven years.

    8. It is implicit in the observations stated above that the presumption can arise only when the question for determination as to whether a man or woman is alive or dead is raised. In Seshi Ammal v. United India Life Insurance Co. (1959) 2 M.L.J. 53 Subrahmanyam, J., referred to the presumption under Section 108 and stated that it would extend to the fact of death and not to the time of death at any particular period. The learned Judge observed that the exact time of death was not a matter for presumption but of proof by evidence by a person who claims a right for the establishment of which the fact is essential. In a more recent case Gnanamuthu v. Anthoni , Ramaswami, J. after a full analysis of the provisions of sections 107 and 108 observed that the presumption under Section 108 would only be as to the fact of death at the time the question is raised and not at any particular antecedent time.

    9. These cases show beyond doubt that it is always for the party who pleads that a man died at a particular time, to show the date on which the death took place. It makes no difference whether the date of death pleaded is within or beyond the period of seven years from the time the person was last heard of. This question arose in a somewhat acute form in Jyotirmoy v. Biswanath (1949) 53 C.W.N. 713, where the point was whether in a case where the death was presumed under Section 108 and legal representatives of the deceased party were sought to be impleaded, there was scope for the operation of either the dismissal as contemplated in Section 3 of the Limitation Act or the abatement as provided for in Rule 3 of Order 22 of the Code of Civil Procedure. It was held that while under Section 108 of the Evidence Act, there could be a presumption of death of a person who had not been heard of for more than seven years, there was no presumption regarding the date and time of his death and that so long as the Court has not been affirmatively convinced that the application to bring on record the legal representatives had not been brought within the period of ninety days from the date of death, it should direct the legal representatives to be impleaded.

    10. It follows from the decisions set out above, that there can be no presumption, that Velayudham died on the date when this Court delivered the judgment in the appeal. The preliminary decree passed by this Court is, therefore, valid. The Civil Revision Petition fails and is dismissed with costs. Advocates fee Rs. 100.

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    Comments

    Narayana Pillai v. Velayudhan Pillai
    (Nov 30, 1962)