Macleod, C.J:— This litigation has arisen from the disappearance of one Lallu, who had mortgaged his property to Motilal Nathu. In 1913 Jugal, the first cousin of Lallu, purported to sell the equity of redemption to Jeshankar Rewashankar, defendant 2 in this suit. In 1914 defendant 2 filed a suit against defendant 1 for redemption, and in 1915 this suit was filed by Diwali, the wife of Jamnadas, a more remote relation of Lallu than Jugal. It was admitted that she could only succeed if she could prove that the sale of the equity of redemption to defendant 2 was invalid. In the trial Court the plaintiff's suit was dismissed. In the lower appellate Court the plaintiff got a decree for redemption and defendant 2 was restrained from in any way interfering with the plaintiff redeeming and recovering possession of the plaint property as above directed.
2. One point to which the attention of the Court was not directed was whether the sale by Jugal in 1913 was a valid one, or whether it was invalid, not because he had renounced the world and, therefore could not suooeed to Lallu's estate, but because there was no heir at all at that time of Lallu as no one could say that Lallu was dead. A man is presumed to be alive until he is dead. A person asserting that a particular man is dead has to prove it. If he could show that the man has not been heard of for seven years, then the Court will presume the death: see Rango Balaji v. Mudiyeppa (1). But the earliest date to which the death can be presumed can only be the date when the suit was filed. It cannot have a further retrospective effect. Therefore one must take it that Lallu was alive in 1913 unless it can be positively established that he was dead. That apparently no one could do. There can be no heir to a man who is still alive and Jugal had nothing to sell. The result would be that defendant 2 gets nothing by his sale deed. But if he is in possession, then the plaintiff who wants to redeem defendant 1 cannot oust defendant 2 in possession unless she can show that she is the nearest heir to Lallu. A question would then arise whether Jugal is the nearer heir or whether he has lost his inheritance by his having become a Yati. Therefore the best course for us to pursue is to set aside the whole of the proceedings and to remand the case to the trial Court for disposal after making Jugal a party. There will be three contesting parties to the right to redeem, Jugal, the plaintiff and defendant 2, and if the defendant 2 is in possession, then the plaintiff, before she can succeed, will have to show that Jugal has been ousted from inheritance. The plaintiff must have leave to amend the plaint and the defendants must have leave to submit further written statements. Costs costs in the suit.
Heaton, J.:— I think that is a proper order to make. The case has essentially really, although it does not so appear, been wrongly decided on a preliminary point, and this preliminary point is a misunderstanding of Sections 107 and 108 of the Evidence Act. Owing to a misunderstanding of these sections the lower Courts have gone on the wrong lines in disposing of this matter. I think therefore we can properly regard it as a wrong disposal on a preliminary point and send back the case to the original Court to be tried over again. The misunderstanding is this: the Court seems to have thought that if you prove that a man has not been heard of for seven years by those who would naturally have heard of him if he had been alive, then you have shown that he is to be regarded as dead after those seven years. But Section 107 of the Evidence Act, tells us that if a man is shown to have been alive within thirty years, the burden of proving that he is dead is on the person who affirms it. Now in this case it is not denied that Lallu was alive within 30 years. So that as the suit started, it started on the presumption that he was alive, and it was for any one who asserted that he was dead to prove that he was dead. The parties seeking to prove that he was dead failed to prove it, but they did prove that he had not been heard of for more than seven years, so that the burden of proof was shifted, as is provided by S. 108, and as thereafter the other side were unable to show that Lallu was alive, it was taken that he was dead. But that can only mean that he was taken to be dead either at the moment when the pronouncement was made by the Judge or at the time the suit was brought. For the issue was and is:
Whether Lallu is alive or dead? It was not whether he was alive or dead in 1913, that is, a date prior to the suit.
3. If it had been, it would have had to be proved that he was dead than, and this has not been proved. It might be a matter for very nice argument to determine which of those times should be taken: the date of suit, or the date of judgment.
4. But I see in their Commentary on the Law of Evidence, Ameer Ali and Woodroffe state in a footnote to S. 108 as follows:
“The only presumption indicated by the section is that, a party is dead at the time of suit, but there is no presumption in any case as to the time of his death.”
5. I am content to follow that reading of the law, and so all that was proved here was that when the suit was brought Lallu was dead. The Courts however have thought that what was established was not merely that Lallu had died at some unknown period previously, but at any rate that he was dead in 1913, and therefore that Jugal at that time had succeeded to the property, or would have succeeded if he had not become a sanyasi, and that if he succeeded to the property, he would have power to transfer the equity of redemption to defendant 2. The whole of that part of the decision of the lower Court is fallacious. The suit has become now so complicated by reason of the various parties interested, and the fact that there has been another redemption suit by defendant 2, that really the only possible way of getting a proper and clear disposal of the matters in dispute is by making the order which my Lord the Chief Justice has proposed and in which I concur.
G.P/R.K
6. Suit remanded.