1. This appeal raises a short but important question and is directed against the judgment of the District Judge, Machilipatnam given on 27th March, 1967. The short facts relevant for the purpose of this appeal are that the plaintiff and defendants 4 to 7 are the daughters of one K. Venkatakrishnaiah a resident of Vijayawada. Defendants 1 to 3 are his sons and the 8th defendant is his wife. Venkatakrishnaiah was the owner of the immovable property described in the plaint schedule which was his self-acquired property. Venkatakrishnaiah was seen for the last time in the last week of December, 1955. From then he was not heard of by those who ought to know about him. The plaintiff claimed 19th share in the plaint schedule property on the ground that Venkatakrishnaiah would be presumed to have died either at the end of seven years from the date when he was last seen as he was not heard of for over seven years since then or in any case on the date of the suit and consequently she is entitled to that share under the Hindu Succession Act (XXX of 1956).

2. The suit was resisted by the defendants on the ground that no such presumption can be made and that the plaintiff is not entitled to any share in the property.

3. Both the Courts below have found that the plaintiff has not proved that Venkatakrishnaiah died after the commencement of the Act and as a result dismissed the suit. It is against this concurrent opinion of the two Courts below that the appeal is preferred.

4. The principal contention of Sri N. Rajeswara Rao the learned Advocate for the appellant is that when it is admitted that K. Venkata Krishnaiah was alive till the end of December 1955, he must be presumed to be living at least for a reasonable period and the burden of proving that he died within seven years after he was last heard of lies on the party who alleges that he so died within the period of the said seven years. He contended that under Sections 107 and 108 of the Indian Evidence Act it must be presumed that K. Venkata Krishnaiah was alive till the question of his life or death was raised after the expiry of seven years from the date on which he was last heard of. Since the burden was not discharged by the respondents to prove as to on what date within 7 years the deceased died it must be presumed that either K. Venkata Krishnaiah died at the end of seven years from the date when he was last heard of i.e December 1962 or in any case on the date when the present suit was laid in 1966. In either case it is argued that the plaintiff who is one of the daughters of Venkata Krishnaiah is entitled to a share in his self-acquired property under the Hindu Succession Act. Reliance is placed in support of this contention on the following decisions: Ramanna v. Appayya, 1956 Andh WR 137, H.J Bhagat v. L.I Corporation, AIR 1965 Mad 440. Parikhit Muduli v. Champa Del, AIR 1967 Orissa 70, and Lal Chand v. Rampur Gir., AIR 1926 PC 9.

5. In order to appreciate the implications of this argument it is necessary to refer to Sections 107 and 108 of the Indian Evidence Act.

“Section 108:

6. 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.

Section 108:

7. Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of fan 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”.

8. These two sections and section 109 are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until a contrary is established by evidence, either direct or circumstantial.

9. Section 107 deals with the presumption of continuance of life and S. 108 deals with the presumption of death. Both the presumptions under sections 107 and 108 come into play after a suit is instituted. These sections deal with the procedure to be followed when in such a suit a question is raised before a court as to whether a person is alive or dead. Section 107 enjoins that when a person's existence is in question, and if he is shown to have been living at a given time within thirty years and there is nothing to suggest the probability of his death, the continuance of life will be presumed and the person who asserts the contrary has the burden to prove it.

10. In view of the presumption of continuance of life embodied in Section 107 it was thought necessary to provide for a counter presumption where a person's death would seem more likely from the nature and circumstances of the case than the continuance of life. Section 108 therefore provides that where a person is continually absent from home for a period of seven years unheard of by persons, if any who would have naturally received intelligence from him, he is presumed to be dead and the burden of proving that he is alive is shifted to the person who affirms that he is not dead.

11. In either case, it would be evident that the presumption is always rebuttable. It is not an absolute presumption. The presumption embodied in S. 108 is by way of a proviso to section 107.

12. And the office of a proviso is well known. To quote from Statutory Construction by Francis, J. Me Caffrey (1953) para 56, page 115, the office of a proviso is “either to except something from the enacting clause, or to qualify or restrain its generality or to exclude some possible ground of misinterpretation of it, as extending to pases not intended by the legislature to be brought within its purview.”.

13. In para 91 (page 121) of the same book, it is stated:

“A proviso is a clause added to an enactment for the purpose of acting as a restraint upon or as a qualification of the generality of the language which it follows.”

14. Craies on Statute Law (6th Edition), observes at page 217 as follows:

“The effect of an excepting or qualifying proviso according to the ordinary rules of construction is to except out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it; and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect”.

15. And it is well established that a proviso should not be interpreted so as to ave greater effect than strict construction of the proviso renders necessary. See Re. Tabrisky, 1947 Ch. 565 (C.A).

16. If the two sections are read together it would be evident that it would be erroneous to seek to apply both sections 107 and 108 to one and the same case and at the same time because a person cannot at the same time both be alive and dead. The court therefore should not attempt to apply to a given case both the presumptions relating to the continuance of life and the counter presumption relating to death. It must always be borne in mind that section 108 although separately enacted comes only as a proviso to section 107.

17. To a case where the proviso i.e, section 108 is attracted the enacting section viz., section 107 can have no application. The function of the proviso is obviously ignored while advancing the argument as stated above by the learned Advocate for the appellant. The fallacy in the method of such interpretation is not lar to seek. It sins against the fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. The argument treats it as if it were an independent enacting clause Instead of being dependent on the main enactment. It would therefore not be proper to read into these two sections any idea which is not to be found therein and which would alter its operative effect, because of provisions found in section 108. If that provision is applicable, then it is obvious that section 107 will have no application.

18. It is true that section 107 presumes that a person shown to be alive at a given time which is within 30 years is presumed to be alive until the contrary be shown, for which reason the onus of showing the death of K. Venkatakrishnaiah Page: 249under section 107 originally lay in this case on the defendants. It is however, a common ground and the defendants have also shown the death of K. Venkatakrishnaiah by proving his absence for over seven years and his not having been heard of for seven years by those who naturally would have heard of him; whence arises at the end of those seven years another presumption of law under section 108 replacing the earlier presumption under section 107 viz., that Venkatakrishnaiah is not then alive. Therefore, the argument that K. Venkatakrishnaiah should be presumed to be alive under Section 107 for any length of time in the presence of the counter presumption of his death cannot be correct and ought to be rejected. When the question of life or death of K. Venkatakrishnaiah has arisen in this suit and it is a common case that he has not been heard of by those who ought to have heard of him for over seven years from December 1955 K. Venkatakrishnaiah must be presumed to be dead.

19. A dose reading of section 108 can leave no one in doubt that death is to be presumed after a certain interval, that is seven years, but there is no presumption as to the time of the person's death. The actual time of death on the basis of which any right is claimed by the plaintiff has to be proved by him like any other fact by admissible evidence, direct or circumstantial.

20. Now the question is whether there is any warrant either on the language of section 108 or on the authority of the decided cases thereunder for the view that if the exact date of death is not proved the earliest date on which the death could be presumed is the date on which the suit was filed. A plain reading of section 108 in my view does not warrant any such contention. Section 108 relates to burden of proof. It must be remembered that the presumption of life under section 107 can get rebutted because of the counter presumption available under section 108, and if the counter presumption holds the field, there is no place for the presumption of life under section 107 because that stands replaced.

21. It is true that before a presumption under section 108 is raised, it has to be found out by making an appropriate enquiry that the person has not been heard of for seven years by those who ought to have been heard of him. In that enquiry it is permissible to show that the allegation that the person has not been heard of for over seven years is not true and that there is evidence to show that he is alive or has been heard of within that period. If it is proved that the person has been heard of within seven years, it is obvious then that the presumption of death under section 108 cannot be raised. And in such a situation the presumption of life under section 107, since he has been shown to be alive within 30 years will continue to hold the field. There is however, no warrant for any contention that under section 108 not only a person who has not been heard of for seven years shall be presumed to have died but further that he shall be presumed to have died on the date of the suit in which the question of his life or death has arisen. Any such contention would mean that the proviso is being interpreted so as to give it a greater effect than strict construction of the proviso i.e, section 108 renders necessary. This is not permissible. The exact time of death is not a matter of presumption but is a matter of evidence and the onus of proving that fact is not cast under section 108 but is cast under the general principles of burden of proof. That death took place at any particular time whether prior to seven years before the suit was laid or within seven years prior to the said suit lies upon the person who claims a right to the establishment of which the exact date of death of the said person is essential. There is no presumption that death took place at the close of seven years or earliest on the date of the institution of the suit. No provision of law warrants any such presumption.

22. The view that the death in such a case should be presumed to have occurred on the date of the suit is, if I may say so with respect, based on a total misunderstanding of In re Phene's Trusts, (1870) 5 Ch. A. 139 and AIR 1926 P.C 9.

23. In re Phene's Trusts (1870) 5 Ch. A. 139 the facts were that one Nicholas Phene Mill was not heard of since June 1860. Francis Phene, his uncle, executed a will and subsequently died on 5th January, 1861. Under the will the testator bequeathed his residuary estate to his nephews and nieces in equal shares.

24. The share to which Nicholas Phene Mill would, if living at the testator's death, have been entitled was deposited in the Court because of uncertainty as to whether Nicholas Phene Mill had survived the testator. His brothers, after obtaining letters of administration to the estate of Nicholas Phene Mill on 24th April, 1869 presented a petition for payment of the fund deposited in the Court to him.

25. The points which were established in the case were that Nicholas Phene Mill was born in 1829, that he left his parents' home on the 19th August, 1853 and went to America, that he frequently wrote thence to his family, that he wrote to his mother a letter dated 15th August 1858, but he never wrote again nor did any of his family afterwards hear anything Page: 250of him except a communication from the American Officials that he had deserted on the 16th June, 1860 while on leave from New York to join the Philadelphia station and had not since been heard of.

26. Vice Chancellor James, before whom the application for payment of the fund in deposit was made ordered payment to the petitioner. The nephews and nieces, who had survived the testator, presented the appeal.

27. Sri G.M Giffard, L.J observed that the Vice-Chancellor ordered the petition in deference to the authority of three cases which were decided by Vice-Chancellor Kindersley and a fourth by the Vice-Chancellor Malins although Vice-Chancellor James was not inclined to agree with the opinion expressed in those cases. But he thought that they were binding upon him Next the learned Lord considered the aforesaid four cases. While noting the fact that in In Re Benham's Trusts (1867) 4 Eq. 416 at p. 419 the decision of the Vice-Chancellor Malins was discharged by the appellate Court said that the three cases decided by Vice-Chancellor Kindersley laid down the three propositions which the learned Lord referred to at page 144 of the Judgment. The learned Lord then observed that Vice-Chancellor Malins went a step ahead of the said propositions in holding that “if you cannot presume death at any particular period during the seven years, then at the end or expiration of the seven years you must presume for the first time that the person was dead, and you must also presume that within that time he is alive.”.

28. Considering then some more authorities of the Equity Courts, the learned Lord referred to the leading case of Doe v. Nephean, (1833-37) 5 B. & Ad. 86. The Exchequer Chamber adopted the doctrine of the Court of the Queens Bench in these terms viz.

“We adopt the doctrine of the Court of Queen's Bench, that the presumption of law relates only to the fact of death, and that the time of death whenever it is material must be a subject of distinct proof.” (1837) 2 M & W 894 (914).

29. The learned Lord on the consideration of these cases reached the conclusion that the view expressed by the Vice-Chancellor Malins went beyond what was laid down by the Vice-Chancellor Kindersley. After examining the two judgments referred to therein and considering the argument at the bar the learned Lord approved of the doctrine laid down by Vice-Chancellor Kindersley which was as follows.

“…. Where a person goes abroad, and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the beginning or the end of any particular period during those seven years; that if it be important to any one to establish the precise time of such person's death he must do so by evidence of some sort to be laid before the jury for that purpose beyond the mere lapse of seven years since such person was test heard of.”.

30. The learned Lord observed:

“After fully considering the argument at the bar we are all of opinion that the doctrine so laid down is correct.”.

31. The learned Lord concluded from the examination of Vice-Chancellor Kindersley's decisions as well as the decision of Vice-Chancellor Malins that these Judgments go to prove that there is no and ought not to be any presumption of law that the person must be presumed to have died at the end of seven years. In conclusion the learned Lord observed at page 151:

‘It is a general well-founded rule that a person seeking to recover property must establish his title by affirmative proof. This was one of lie grounds of decision in (1833-37) 5 B & Ad. 86 and to assert as an exception to the rule that the onus of proving death at any particular period either within the seven years or otherwise should be with the party alleging death at such particular period and not with the person to whose title that fact is essential is not consistent with the judgment of the present Lord Chancellor, when Vice-Chancellor in In Re Green's Settlement (1865) 1 Eq-288 or with the dictum of Lord Justice Roll when he said in In Re Benham's Trusts, (1867) 4 Eq. 416 that the question was one not of presumption, but of proof: or with the real substance of the actual decisions or the sound parts of the reasoning in (1833-37) 5 B & Ad. 86 or with the judgments in Rex v. Inhabitants of Harborne, (1835) 2A & E 540 and Reg. v. Lumley, (1869) 1 C.C 196 or with the principles to be deduced from the judgment in Underwood v. Wing, (1854) 4 D.M & G. 633; (1860) 8 H.L.C 183. The true proposition is that those who found a right upon a person having survived a particular period must establish that fact affirmatively by evidence; the evidence will necessarily differ in different cases, but sufficient evidence there must be of the person asserting title will fail.”.

32. Applying the principles laid down in that case to the facts of that case the learned Lord held at page 152:

“This case happens to be one of an alleged member of a class of legatees. Survivorship of a testator is requisite to clothe a person with the character of a member of that class. This is a tacit condition annexed by law to the gift, and it follows that the representatives of a person alleged to be a member of the class Page: 251must prove as against the other members of the class who prove their survivorship, that he survived the testator, otherwise he was not a legatee at all. For these reasons, and upon a review of the authorities, and the judgments on which they rest I am of opinion that there is no presumption of law as to the particular period at which Nicholas Phene Mill died, that it is a matter of fact to be proved by evidence and that the onus of proof rests on his representative”.

33. As the burden of proof was found so have been resting on the representative and as it was not properly discharged it was held:

‘It is enough, however, for me to state that in my opinion the burden of proof is on the representative of Nicholas Phene Mill and that Nicholas Phene Mill's representative has not proved affirmatively that Nicholas Phene Mill survived the testator a proof which I consider essential to his title.

The order must be discharged.”.

34. It is pertinent to note that the head note given by the Editor to this judgment in In Re Phene's Trusts, (1870) 5 Ch. A. 139 reads 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 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”.

35. It is immediately been that only a portion of the headnote appears to have been quoted in AIR 1926 PC 9 and although the learned Lord refers to these words as “taken originally from in Re Phene's Trusts” I could not find those words in the body of the judgment reported in (1870) 5 Ch. A. 139 and also as reported in 1869-1873 All England Law Reports 514. The learned Advocates appearing for the parties also could not point out to me these words which the Privy Council had quoted from any part of the Judgment in Re Phene's Trusts. The quotation therefore seems to have been taken from the Editors' note which I have extracted, above. The head note in turn seems to have been drafted, if I may say so with due respect to the Editor, without regard to what was really said by the learned Lord in the judgment. The words first “within that period” and second “within the seven years” do not reflect the judgment correctly. The judgment on the other hand categorically lays down that “there is no presumption of law as to the particular period at which Nicholas Phene Mill died.”.

36. It will thus be seen that the conflict arose in my view because of extracting a portion of the head-note of the Judgment. In Re Phene's Trusts which head note does not reflect the judgment truly. It is true that it is only an Editor's note relating to the facts of that case. But since the Privy Council referred to it as if it was a part of the original judgment the judgments which followed thereafter and which took the contrary view have been basing their conclusions mostly on the quotation given by the Privy Council without of course keeping in view either the judgment in In Re Phene's Trusts (1870) 5 Ch A 139 or even the judgment of the Privy Council itself. It has already been seen very clearly that the judgment in In Re Phene's Trusts, (1870) 5 Ch. A. 139, in fact emphatically negatives such a contention.

37. It would be erroneous to say that the Privy Council in AIR 1926 PC 9 took the view that there is a presumption that the person died on the date of the suit apart from the presumption of his death under section 108. Any such contention Would almost amount to fly in the face of not only the conclusion of that case but a categorical observation made by the Privy Council. The following is the observation:

“But the law really is that on the facts now assumed there is no presumption as to Bhawan Gir being dead either in 1902 or 1904. There is only one presumption and that is that when these suits were instituted in 1916 Bhawan Gir was no longer alive. There is no presumption at all as to when he died. That, like any other fact, is a matter of proof. And Their Lordships would here observe that it strikes them as not a little remarkable that the theory on this point on which the plaintiffs pleader hazards his whole case is still so widely held, although it has so often been shown to be mistaken.”.

38. It is pertinent in this connection to note that the mistaken view which is persistently held had been characterised as a “persistent heresy by the Privy Council. In searching for an explanation of this very persistent heresy their Lordships found it in the words which their Lordships quoted from the head note given by the Editor to (1870) 5 Ch A 139 as extracted above. After quoting those words their Lordships have observed:

“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 Page: 252would 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.”.

39. It is really unfortunate that in spite of this very dear decision of the Privy Council firmly negativing this persistent wrong view and dearly holding that there is no presumption at all as to when he died that like any other fact is a matter of proof, there is no justification whatsoever to base any such erroneous view on the said decision of the Privy Council and argue that at the end of seven years during which a person was not heard of a presumption of his death arises and there also arises another presumption that such a person died either at the end of the said period of seven years or latest on the date when the suit was instituted in which suit the question of his life or death had arisen. The presumption in such a case is about the death and no more. A party who wants to found his case on the death of such a person at a particular time which gives him a certain right must prove the exact date on which the person died in order to entitle him to any such right. The mere fact that it is very inconvenient or difficult to prove the exact date on which the person died when he was not heard of for seven years does not alter the position in law. It is for such a person to prove that fact and if he fails to prove that fact he must be prepared to receive the consequences of such failure to prove. It will thus be very dear that the conflicting view which is still being taken by some of the courts has no basis whatsoever found other in the decision In re Phene's Trusts, (1870) 5 Ch A 139 or in the decision of the Privy Council. In fact these two decisions emphatically negative any such view.

40. I am fully fortified in my view by the following two decisions of this courts Venkateswarlu v. Bapayya, AIR 1957 Andh Pra 380 and Venkata Subbarao v. G. Subba Rao, AIR 1964 Andh Pra 326.

41. It is true that 1956 Andh WR 137 in spite of first laying down the law relating to presumption of death correctly nevertheless held: “If the exact date of death is not proved the earliest date on which death can be presumed under Section 108 of the Evidence Act is the date on which the suit was filed”. This observation is made as if it is supported by the above said decision of the Privy Council which I have already pointed out is not correct but on the other hand is patently inconsistent with it and also does not lend any support for such a presumption.

42. 1956 Andh WR 137 is explained in the later decision of AIR 1957 Andh Pra 380 in the following way:

“What the learned Judges apparently meant in 1956 Andh WR 137 is only that the presumption can be that a man is not alive by the date of the suit.”.

43. This explanation is characterised in the arguments as unsatisfactory and not in accordance with the judgment itself. It would have been of course better to have that decision declared as bad to that extent by referring the case to a Full Bench. Nevertheless the fact remains that the earlier decision has been explained in the later case. There is also a subsequent decision wherein the view taken in the later decision is reiterated. Although no reference is made to the second case but it is dear that in effect it was followed.

44. Even if it is assumed that 1958 Andh WR 137 still stands good as a precedent because of the unsatisftory way in which it is sought to be explained in the later case, even then the position would be that while 1956 Andh WR 137 takes one view about the presumption of the exact date of death of a person, two subsequent decisions which also are Bench Decisions take a contrary view holding that there is no such presumption available under Section 108. Even then I am at liberty to choose between the said two conflicting views and I am more inclined to follow respectfully the two subsequent decisions which, in my view take the correct view. That I am entitled to so choose between the two conflicting views expressed by two competent Benches of this Court finds sufficient support from what is said in W. & J.B Eastwood Ltd. v. Herrod (1968) 3 All ER 389 at p. 393. Lord Denning. M.R in a somewhat similar situation said:

“Are we at liberty however, to depart from the test of Thompson v. Milk Marketing Board, (1952) 2 All ER 344? I think that we are; and for this reason there are several other cases in this court which are in conflict with it”

“Seeing then that there are conflicting tests laid down in this court we are at liberty to choose between them. That is dearly stated in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293. It is true that in Gilmore v. Bakercarr, (1962) 3 All ER 230 and Geary v. Lee, (1968) RA 281 we did not realise that we were laying down anything in conflict with (1952) 2 All ER 344. So we distinguished it. Now we can take the next step and say that the test in Thompson's case, (1952) 2 All ER 344 is not merely distinguishable from the other cases but in conflict with them and hence we can depart from it. The cynic can comment on this process if he likes. It is a way round the strict doctrine of precedent: but I prefer it to the endless task of distinguishing the indistinguishable and reconciling the irreconcilable. That is the way we have Page: 253had to do it in the past and in so doing we have made confusion worse confounded. It is better to make a clean cut and to depart from prior precedent if we are satisfied that it is wrong. Has it not been said recently by high authority that ‘too rigid adherence to precedent may lead to Injustice in a particular case and also unduly restrict the proper development of the law.”.

45. From the above said discussion if would be clear that the decisions relied upon by the learned Advocate for the appellant such as AIR 1965 Mad 440, AIR 1967 Orissa 70, Narbada v. Ram Dayal, AIR 1968 Raj 48 and Shankareppa v. Shivarudrappa, AIR 1963 Mys 115 cannot be considered as good law.

46. The view which I have taken is not only supported by the two Bench decisions of this court to which reference has already been made but also supported by the following decisions: K. Suburamu Piilai Another v. Ramayi Ammal Others, (1965) 78 Mad LW 624; Narayana Pillai v. Velayuthan Pillai Unsound Mind Represented By Lakshmi, 1964-1 Mad LJ 246 - (AIR 1963 Mad 385) and Gnanamuthu v. Anthoni, AIR 1960 Mad 430.

47. What must follow from what is stated above is that it was for the plaintiff to prove that Venkatakrishnaiah died after the Act came into force because her right depended upon the provisions of the Hindu Succession Act. It is conceded by the learned Advocate for the Appellant that if no presumption is made in favour of the appellant that Venkatakrishnaiah died on the date of the suit and that the onus to prove as to whether Venkatakrishnaiah died after the Act came into force, is on the plaintiff then since the appellant has not adduced any evidence which can be said to prove that Venkatakrishanaih died after the Hindu Succession Act came into force, the plaintiff-appellant must fail I quite agree with the concession which was fairly made. That is the view which the lower Courts took and I do not find any valid reason to take a different view. The Second Appeal therefore must fail and is dismissed with costs. No leave.

48. Appeal dismissed.