1. This is an appeal on behalf of the plaintiffs in a suit for recovery of possession on the disputed lands on evicting the defendants therefrom. The suit was decreed by the Munsif of Barisal, but dismissed on appeal by the learned District Judge. Hence the present appeal to this Court. The plaintiffs claim to be 16 annas landlords and their case briefly is that they had let certain lands to one Abdul Aziz Munshi and that the latter in his turn sub-let a portion to the defendants. In 1987, the plaintiffs evicted their lessee, the said Abdul Aziz Munshi, from the holding, but the defendants refused to vacate the portion of which they were in occupation. The plaintiffs served on them a notice to quit on 5th May 1938, but without any result, and then commenced the present action on 22nd September, following.

2. The defence in substance is a denial of the plaintiffs' title to the full 16 annas of the landlords' interest. It is admitted that plaintiff 1 holds 12 annas 6 pies share. But the dispute is as regards the remaining 3 annas 6 pies. Plaintiff 2 claims to represent this interest as trustee to the estate of three brothers, called the D'Silvas, who between themselves are said to own it. But the defendants maintain that this leaves out of account the interest of another brother, E.C.N D'Silva, who was admittedly one of the original co-owners of this share. This D'Silva was alive when Abdul Aziz Munshi was inducted into the land, but had died at the time of his eviction. He met with an accidental death in a boat disaster on 21st March 1935. According to the plaintiffs his interest passed, upon his death, to his three surviving brothers as his next of kin, in which case there can be no question that plaintiff 2, as trustee to their estate, would fully represent the said three annas six pies share. The defence case, however, is that the deceased was survived by his widow, who accordingly would and did take a share, and the widow's interest passed from her to her mother one Mrs. Wilcox, as her only heir under the law. Admittedly Mrs. Wilcox's interest was not represented by plaintiff 2; nor she was a party to the present suit; neither, it may be added, had she been a party to the eviction of Abdul Aziz Munshi. On these facts, the defendants seek to resist the plaintiffs' claim to khas possession on the following grounds: (i) that all the landlords not having joined in evicting Abdul Aziz Munshi, his tenancy could not be lawfully determined and the plaintiffs were accordingly not entitled to re-enter; (ii) that this being an action in ejectment, as all the landlords were not parties to it, the suit was bound to fail.

3. It will thus be seen that the main question on which the case turns is whether or not Mr. E.C.N D'Silva was survived by his widow. This is a question of fact, but its determination is rendered difficult by the circumstance that both husband and wife are said to have perished in the same boat disaster, and there is no direct evidence on either side as to the precise sequence in which the deaths took place. There is some evidence on behalf of the plaintiffs regarding the circumstances in which the accident took place, but for the rest, the evidence of both parties is confined to the question of the comparative age and state of health of the couple. There is also evidence given by the plaintiffs to show that though after the death of the unfortunate pair, Mrs. Wilcox filed an application of Letters of Administration to the estate of her daughter, she limited her claim only to the ornaments and personal effects of the deceased and laid no claim to any immovable property. On this state of the evidence, the learned Munsif was inclined to think that Mrs. D'Silva I must have pre-deceased her husband and actually recorded a finding to the effect. In that view, he held that Mrs. D'Silva's mother had not acquired any share in the estate left by Mr. E.C.N D'Silva. On appeal, the learned District Judge, after pointing out the lack of direct evidence on the question in issue, went on to say that such evidence as there was on the record did not enable the Court to come to any definite conclusion. He was accordingly of opinion that the matter was to be treated as one which was “incapable of being determined”, and the ultimate decision would consequently have to be governed by the incidence of the burden of proof. According to the learned Judge, the burden in this case lay on the plaintiffs, this being action in ejectment, and as he held that this burden had not been discharged, he dismissed the suit. The question of survivorship in a common disaster was a source of perplexity to Courts in England until 1925, when for the first time the matter was sought to be placed on a statutory basis by Section 184 of the Law of Property Act, 1925. That section is in these terms:

“In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the Court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.”

4. If this statutory presumption could be applied in the present case, Mrs. D'Silva must, of course, be deemed to have survived her husband, and this would lend support to the defendants' case. It is obvious, however, that the provision of the English Law of Property Act cannot be invoked in this country, and we are accordingly left to decide the question without the aid of any statute. It is not necessary to refer to all the earlier cases in England from which no uniform principle can be deduced. It has sometimes been held that in the absence of direct evidence the Court ought to presume simultaneous death, and it has again been held that the presumption ought to be in favour of survivorship of the younger one. Thus, in the case in (1793) 91 E.R 497,1 Sir W. Wynne observed:

“With respect to the priority of death, it has always appeared to me more fair and reasonable in these unhappy cases to consider all the parties as dying at the same instant of time, than to resort to any fanciful supposition of survivorship on account of the degrees of robustness.”

5. In another case, (1838) 163 E.R 246,2 where husband and wife were drowned by the same accident, it was held that the presumption was that they died at the same time. On the other hand, it was pointed out by Sir John Nicholl in the case in (1815) 161 E.R 1137,3 that there was nothing to take away the ordinary presumption that a man was likely to survive a woman in a struggle in a case of this description. Then followed, in 1860, the decision of the House of Lords in (1860) 8 H.L.C 183 : also 11 E.R 397;4 affirming (1851-57) 4 De. G.M & G. 6335 which has in fact, been regarded as the leading case on the subject. In this case, two persons, husband and wife, made their separate wills. In the husband's will, the property was given to his wife, “and in case my wife shall die in my life time”, then to in trust for the children on their coming of age, and in case all of them should die under age, then to W for his absolute use and benefit. In the wife's will, made under a power given by her deceased father, in default of the exercise of which the property was to go to relatives specifically named, the property was given to the husband, subject to interests in the children, “and in case my husband should die in my life time”, then to absolutely. The husband and wife and two children perished at sea, being all swept off the deck by one wave and all disappearing together. It was held that there was no presumption of law arising from age or sex as to survivorship among persons whose death was occasioned by one and the same cause; nor was there any presumption that all died at the same time. The question is one of fact depending wholly on evidence, and if the evidence does not establish the survivorship of any one, the law will treat it as a matter incapable of being determined, the onus of proof being on the person asserting the affirmative. According to English law, therefore, it will be seen that there is no room for the application of any presumption, either of survivorship or of contemporaneous death. Prom first to last, the question is regarded as a pure question of fact, and the burden of proof of survival, or concurrent decease, or predecease lies solely on the party who asserts the fact. In India, the decisions have not been uniform. In the Bombay case in 47 Bom. 376 at p. 41, Macleod, C.J observed as follows:

“……therefore, when the evidence on the question who died first is so evenly balanced, I think we are entitled to say that the probabilities are in favour of the younger man surviving the elder.”

6. On the other hand, there is a decision of the Chief Court of Oudh reported in 9 Luck. 461,7 in which Nanavutty, J. on a consideration of the case law both in England and India, laid down the rule much on the lines of the leading English case in (1860) 8 H.L.C 183. It seems to me, having given the matter my best consideration, that the safest rule, to follow will be that laid down in the House of Lords' decision, so long as there is no express provision by statute in this country, corresponding to Section 184 of the Law of Property Act, 1925. The presumption of death taking place at the same moment is so patently opposed to probabilities that the Court might well hesitate to act upon such a basis. As Bennett, J. said in a recent case, 1942 Ch. 377 : (1942) 2 ALL. E.R 46,8 where for the first time the effect of Section 184 of the Law of Property Act, came to be considered:

“Time being infinitely divisible, the fact of two persons dying at exactly the same moment of time is so highly improbable that the evidence relied upon to prove it must be looked at closely and critically.”

7. The matter had been put even more clearly by Lord Cranworth L.C in (1835) 4 De. G.M J & G. 633, afterwards affirmed by the House of Lords in (1860) 8 H.L.C 183 (supra):

“It cannot be assumed to be proved or probable or possible that two human beings should cease to breathe at the same moment of time, for that is hardly within the range of imagination, and to adjudicate on such a principle would, I think, be to proceed on false data.”

8. The other presumption, that of survivorship, based on the age or sex or state of health of the parties might no less be no more than a purely artificial or arbitrary rule, and therefore, only an equally conjectural basis for ascertaining the truth. On these grounds, as I have said, it would certainly be better to treat the question as one of fact to be disposed of on the evidence. If the evidence is sufficient to support a finding of survivorship, well and good, but where evidence is lacking or the evidence establishes a perfect equipoise, the determining factor should be the rule regarding, the burden of proof. In the present case, the learned District Judge, although he has not referred to the case law on the subject, seems to me all the same to have applied the correct principle. He has held that the evidence in this case did not establish the survivorship of either the husband or the wife, and the matter was accordingly to be treated as one incapable of being determined.

9. The question arises on whom, in these circumstances, the burden of proof lay, whether on the plaintiffs who asserted that Mrs. D'Silva had predeceased her husband, or on the defendants whose case was that Mr. D'Silva had predeceased his wife. In one sense, either party was asserting an affirmative and would accordingly be bound to prove its case. The learned Munsif took the view that as the defendants here were claiming on the basis of Mrs. D'Silva's survivorship, the onus was on them to prove such survivorship, but that they had practically adduced no evidence on the point. The learned District Judge, on the other hand was inclined to think that this might be the correct rule of evidence, if the suit was a title suit between the D'Silvas on one part and Mrs. Wilcox, on the other, but that was not the case here. This was a suit for ejectment, and it was accordingly for the plaintiffs to prove their title, which meant that they were called upon to show that the D'Silvas whom plaintiff 2 claimed to represent in the suit constituted the whole group of 8 annas 6 pies landlords. On the admitted facts, this could not be established unless the late E.G.N D'Silva had left only his brothers, and not his widow as well surviving him as his heirs. The plaintiffs had, however, failed to offer any direct evidence to show that Mrs. D'Silva had died before her husband, and such evidence as they had given regarding the age and state of health of the pair left the matter wholly inconclusive. I think, in the circumstances, the learned District Judge was right in the view he took regarding the burden of proof in this case, and it must accordingly be held that the plaintiffs failed to establish affirmatively that the whole of the 16 annas landlord's interest was represented by them.

10. This takes us to the question as to whether this means that the suit must be dismissed in its entirety. Mr. Gupta, on behalf of the appellants, contended that in any case the plaintiffs were entitled to a decree for joint possession with the defendants to the extent of the share which they had succeeded in establishing. The initial difficulty however in accepting this contention is that if there was a fraction of the landlord's interest outstanding in Mrs. Wilcox at the date Abdul Aziz Munshi was evicted, there could have been no valid determination of the tenancy. It was not a case of the plaintiffs, as cosharer landlords, acquiring the interest of their lessee, but it was a case of alleged eviction of the lessee from the holding. I think, it is well settled that there cannot be a lawful eviction of a tenant so as to cause a determination of, the tenancy unless all the landlords join in it. As on the findings that cannot be said to have been established here, it must follow that Abdul Aziz Munshi's interest in the tenancy still subsisted, notwithstanding the alleged eviction, and in that case the defendants, as sub-lessees, would be fully protected. The result, in my opinion, therefore, is that the judgment and decree of the learned District Judge must be affirmed, and this appeal dismissed with costs. Leave to appeal under cl. 15, Letters Patent, is granted.

G.N

11. Appeal dismissed.