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Case Number

A.S No. 7 of 1125

Judges

Koshi, C.J
Govinda Pillai, J.

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Smart Summary

Judgment Summary — Govinda Pillai, J.

Factual and Procedural Background

The plaint schedule properties belonged to the family of Hari Vadyar. Hari Vadyar died in Mithunam 1119 leaving a son, Ranga Vadyar, and two daughters (the first plaintiff and the first defendant). The plaintiffs alleged that Ranga Vadyar died on 15-6-1121 leaving no wife or children, so that the first plaintiff and the first defendant inherited Ranga's rights in the plaint properties.

Before his death, Hari had executed certain documents (Exts. I–III) relating to the plaint properties which the plaintiffs asserted were invalid because he was not competent to dispose of original family properties. Under those documents the first defendant's husband (the 7th defendant) was appointed manager and was directed to hand over properties and any collected money to Ranga if he returned within one year after Hari's death. The 7th defendant was also the mukhtiyar holder of the first defendant.

The 7th defendant filed suits (O.S. 240, 138 and 225 of 1120 and O.S. 355 of 1119) for arrears of rent regarding parts of the buildings in the plaint property occupied by the first and fourth plaintiffs and obtained decrees. The plaintiffs sought relief including injunctions restraining execution of those decrees and eviction proceedings. The defendants (1–6) and the 7th defendant resisted the suit; plaintiffs 2–4 were impleaded as reversioners.

The court below found it was not possible to hold positively whether Ranga pre-deceased Hari and held that the plaint schedule properties belonged to the family; the defence that Ranga had surrendered his rights was rejected. The decrees obtained by the 7th defendant for rent were allowed to stand. The suit was dismissed without costs. The plaintiffs appealed; the respondents filed a cross-appeal contesting the costs order and some findings.

Legal Issues Presented

Whether Ranga Vadyar pre‑deceased Hari Vadyar (i.e., the question of the date of Ranga's death and resulting succession to the plaint properties).
Whether the documents executed by Hari Vadyar (Exts. I–III) were valid to dispose of original family properties or whether they conferred only a managerial role on the 7th defendant.
Whether the decrees obtained by the 7th defendant in the rent suits against the plaintiffs are valid and binding on the plaintiffs.
Whether the plaintiffs are entitled to partition and a half share in the plaint schedule properties, and if so, what immediate relief (possession, accounts, and distribution of income) should follow given subsequent events (notably the death of the first plaintiff during the appeal).
Application of the evidentiary principles in Section 107 (and Section 108) of the Evidence Act when a person's date of death is in dispute and the parties cannot establish a definite date.

Arguments of the Parties

Appellants (Plaintiffs)

Asserted that Ranga Vadyar died on 15-6-1121 leaving no descendants and that, upon his death, the first plaintiff and the first defendant inherited rights in the plaint properties (each entitled to a half share).
Contended that the documents executed by Hari Vadyar were invalid because he was not competent to dispose of original family properties.
Claimed possession of a portion of the building in her own right with Hari's consent and denied liability to pay rent on that portion.
Prayed for injunctions restraining the 7th defendant from executing decrees and pursuing eviction petitions.
Alleged a half share in moveables in plaint B schedule.

Respondents (Defendants 1–6 and 7th Defendant)

Defendants 1–6 contended that Hari Vadyar received the plaint A schedule paramba in partition (Ext VIII) and that he made improvements with his own funds; they asserted that Hari gave the A schedule properties to the first defendant and her children out of free will and that neither the plaintiffs nor any other person had rights over these properties.
Maintained that Ranga Vadyar had left long before Hari's death, surrendered his rights to his father, and was treated as dead; alternatively asserted abandonment, relinquishment and waiver by Ranga.
Claimed plaintiffs were not entitled to partition and that the decrees obtained by the 7th defendant for rent were valid (having been obtained after keen contest).
The 7th defendant supported defendants 1–6; his written statement admitted that the A and B schedule properties belonged to the family but otherwise resisted the plaintiffs' contentions (with a specific admission that Ranga was alive when Hari died in para 2 of his WS but claims of nonappearance later).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Narki v. Lal Sahu, 37 Cal 103	Held that when a person has not been heard of for seven years, the presumption under Section 108 of the Evidence Act is that he was dead at the time the question was raised (i.e., at the date of suit) rather than at some earlier date.	The court relied on this principle to treat the absence of satisfactory proof of Ranga's exact date of death as giving rise to a presumption that he was dead at the date of the suit when no specific earlier date could be proved.
Unnitan Ouseph v. Narayanan Krishnan, 49 Trav LR 32	Accepted the dictum that the presumption arising when a person has not been heard of for seven years is that he was dead at the date of suit, not at an antecedent date.	The court cited this authority to reinforce the application of the seven‑year presumption when parties cannot establish an exact date of death.
Wali Mohd v. Gaman Kala Khan, AIR 1944 Pesh 29	Held that where there is a dispute about the date of death of a person not heard of for more than seven years, the party alleging a particular date must prove it; absent proof of a specific date, the court should presume death on the date of institution of the suit.	The court applied this principle (as discussed in the judgment) to conclude that, since neither side could satisfactorily prove a definite date of Ranga's death, the presumption must be that he was dead on the date of the suit.

Court's Reasoning and Analysis

The court examined documentary and oral evidence and proceeded in steps:

Title and partition evidence: Ext VIII (partition deed) showed Hari obtained the plaint A schedule paramba in partition; the assigned portion originally had no building and the family gave Hari Rs. 200 in 1081 for putting up a building. The court found that even if Hari spent more than that sum, he could not claim exclusive rights over buildings erected on family paramba; thus the defence claim of exclusive ownership by Hari was rejected.
Validity of paternal documents: The court considered Exts. I–III (documents executed by Hari) and noted that the directions in those documents indicated Hari wished to preserve Ranga's rights and ordered the 7th defendant to manage the family affairs and hand over properties to Ranga if he returned within one year. This undercut the defence that Ranga had surrendered all his rights.
Question of Ranga's death: Both sides agreed Ranga was dead but disputed the date. The defendants could not affirmatively prove an earlier date of death; the 7th defendant's written statement included an admission that Ranga was alive when Hari died. Given the absence of satisfactory proof for a definite date and the parties' mutual inability to prove an exact date, the court applied principles under Section 107 of the Evidence Act and relevant authorities (Narki v. Lal Sahu; Unnitan Ouseph; Wali Mohd) to hold that, in such circumstances, the presumption is that the person died on the date of the suit.
Consequence of presumed date: Taking the admission that Ranga was alive at Hari's death and the presumption that Ranga died after Hari (i.e., on the date of the suit when date could not be fixed), the court concluded Ranga inherited the plaint A schedule properties on Hari's death. Ranga had no wife or children; therefore his sisters (the first plaintiff and the first defendant) were his heirs and each entitled to a half share (a limited estate) in the properties or income.
Effect of subsequent events on relief: The court recognized that partition need not be decreed because the first plaintiff died while the appeal was pending; as the surviving co-heir, the first defendant was entitled to retain possession of the entire properties. However, the first plaintiff's legal heirs are entitled to one half of the profits/income that had accrued up to the first plaintiff's death.
Role and liabilities of the 7th defendant: The 7th defendant had acted only as manager for the estate pursuant to Exts. I–III; the decrees he obtained against plaintiffs 1 and 4 in his managerial capacity are final and binding, so those plaintiffs cannot now deny liability on those decrees. The court directed that profits which would have accrued to Ranga (had he returned) and income accrued after Hari's death until the first plaintiff's death be brought into hotchpot for division.
Moveables claim: The plaintiffs did not prove the existence of the moveables in plaint B schedule; their claim to those moveables was disallowed.
Remedy ordered: On these bases the court reversed the lower court decree and directed the lower court to take accounts of profits collected by the 7th defendant (or for which he had decrees) up to the first plaintiff's death; one half to be paid to the legal heirs of the first plaintiff. The lower court may adjust decree-debts due from plaintiffs 1 and 4 to minimize hardship. The order was to be treated as a preliminary decree, with a final decree to follow after accounts.
Costs: Given the circumstances, the court directed that parties bear costs in both courts; the lower court should make provisions regarding future costs in the final decree.

Holding and Implications

Core Ruling: Decree reversed.

Direct consequences and specific relief ordered:

The lower court's dismissal was reversed; the lower court is to take accounts of profits from the plaint A schedule properties collected by the 7th defendant or for which he obtained decrees, or which accrued due up to the death of the first plaintiff.
One half of such profits/income is to be paid to the legal heirs of the first plaintiff.
The lower court is authorized to adjust the decree‑debts due from plaintiffs 1 and 4 to avoid undue hardship.
The order is to be treated as a preliminary decree; a final decree will be passed after settling accounts as directed.
The plaintiffs' prayer for partition is refused because the first plaintiff died during the appeal; the surviving co-heir (first defendant) retains possession of the properties, subject to the accounting directions.
The 7th defendant is recognized only in his capacity as manager; decrees he obtained in that managerial capacity remain final and binding on the plaintiffs who were parties to those decrees.
The plaintiffs' claim to moveables in plaint B schedule was disallowed for lack of proof.
Costs: parties directed to bear costs in both courts; the lower court to provide in the final decree for costs to be incurred hereafter.

Broader implications: The court applied established evidentiary principles (including the seven‑year presumption discussed in the cited authorities) to resolve an uncertain date of death; the opinion furnishes directions for accounting and distribution between heirs but does not purport to establish any new precedent beyond applying the cited authorities to the facts of this case.

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Ramabai And Others v. Saraswathi And Others

Govinda Pillai, J.:— Plaintiffs 1, 3 and 4 are the appellants. The plaint schedule properties belong to the family of one Hari Vadyar. He died in Mithunam 1119 leaving a son, Ranga Vadyar, and two daughters, who are the first plaintiff and the first defendant. This Ranga Vadyar was alleged to have died on 15-6-1121 without leaving any wife or children. The first plaintiff and the first defendant had, therefore, inherited the rights of Ranga Vadyar over the plaint properties. The plaintiff stated that, before the death of Hari Vadyar, he had executed some documents relating to the plaint properties. These documents were invalid, as he was not competent to dispose of the original family properties by such documents. Under these documents the first defendant's husband, the 7th defendant, was constituted manager of the family. He had been directed to hand over the properties and money, if any collected, to Ranga Vadvar if he returned within one year after the death of Hari Vadyar.

2. The 7th defendant was also the Mukthiyar holder of the first defendant.

3. He had filed suits O.S 240, 138 and 225 of 1120 and O.S 355 of 1119 for arrears of rent as regards certain portions of the buildings in the plaint property occupied by the first and fourth plaintiffs. Decrees were obtained thereon. The first plaintiff would state that, she was in possession of a portion of the building in her own right with the consent of Hari Vadyar and that she was not liable to pay any rent. There was also a prayer in the plaint for an injunction to restrain the 7th defendant from executing the decrees and also from proceeding with the petitions filed by him be lore the Rent Controller for eviction. The plaint B schedule items are said to be moveables in the possession of the first defendant. The first plaintiff claimed also a half share in these properties. Plaintiffs 2 to 4 were impleaded on the ground that they were reversioners. Defendants 1 to 8, by one written statement and the 7th defendant, by another, resisted the suit.

4. According to defendants 1 to 6, Hari Vadyax got the paramba in plaint A schedule in partition in the family. It was a verumpattom land obtained from the Thirumala Devaswom; & Hari Vadyar had executed a pattom-chit in 1094. He had made improvements in the property with his own funds. He occupied a portion of the building & let out the remaining portion. The only son of Hari Vadyar was Ranga Vadyar, & he had left this place long before Hari Vadyar's death, surrendering all his rights in the properties. He was not heard of for a very long time; and so his father and all his relatives were treating him as dead. Hari Vadyar had nobody to look after him in his old age except the first defendant and so he gave away the plaint A schedule properties to the first defendant and her children, out of his own free will. Neither the plaintiffs nor any other person had any right over these properties.

5. The allegations in para 3 of the plaint that the properties of Hari Vadyar devolved upon his son Ranga Vadyar and that the plaintiff became entitled to a half share in the properties on the death of Ranga Vadyar were denied. The plaintiffs were put to proof of these allegations. The documents referred to in the plaint were executed by Hari Vadyar of his own free will. They are Exts. I to III. He was also competent to do so as the sole surviving co-parcener of a joint Hindu Mithakshara family. The plaintiffs were entitled to bring a suit for partition. There was also an alternative prayer that as Ranga Vadyar had pre-deceased Hari Vadyar it had to be taken that he lost all rights to the properties by abandonment, relinquishment and waiver. The decrees obtained by the 7th defendant against the plaintiffs were all valid and binding on them. They were passed after a keen contest. They, therefore, opposed the plaintiffs' suit. The 7th defendant supported defendants 1 to 6. There was, however, a statement in para 2 of his written statement that all the allegations in para 2 of the plaint, except that the plaint A and B schedule properties belonged to the family, were admitted.

6. It is in para 2 of the plaint that the plaintiffs allege that Hari Vadyar died in Mithunam 1119 and that he had a son by name Ranga Vadyar at the time of his death. He had, however, in para 8 of the written statement stated that Ranga Vadyar had left this place for north India in 1098 after surrendering all his properties to his father, that he had sent letters till 1924 and that there was no information about him thereafter. The court below held that there was no positive proof whether Ranga Vadyar died and, if so, when. It had stated that from the evidence on record, both oral and documentary, it was not possible to hold that Ranga Vadyar pre-deceased Hari Vadyar. The plaint schedule properties were however, held to belong to the family. The defence contention, that Ranga Vadyar surrendered all his rights to Hari Vadyar, was also found against. The decrees obtained by the 7th defendant for rent were allowed to stand. The suit was, however, dismissed without costs. The appeal is against this decree. The respondents have filed a cross appeal questioning the order relating to costs. Objection was also taken to the findings against their contentions.

7. Hari Vadyar got the plaint A schedule property under a partition deed, Ext VIII, between himself and other members of his family. It was by this document that he got the paramba in the plaint A schedule. There was no building in the portion allotted to him and, so, the other members gave him Rs. 200/- for putting up a building. This was in 1081. Though Hari Vadyar might have spent more money than that obtained by him from the family for putting up the building in the family paramba, he could not claim any special right over the buildings thus put up. The defence contention, therefore, that the buildings belonged exclusively to Hari Vadyar could not be accepted. There is also no evidence to show that Ranga Vadyar had surrendered all his rights in the family property to his father. On the other hand, the directions in Exts I to III would show that the father was anxious to see that his son, Ranga Vadyar, did not lose his rights over the properties. The 7th defendant had been directed to manage the affairs of the family and to hand over the properties and income to Ranga Vadyar if he returned within one year of his death. So this case of the defendants is also not made out.

8. If Ranga Vadyar had survived Hari Vadyar, there is no doubt that he would have been the owner of plaint A schedule properties. Hari Vadyar admittedly died on Mithunam 1119. The plaintiff's case was that Ranga Vadyar died in Makaram 1121. Both sides agree that Ranga Vadyar is dead. But there is difference of opinion between the contesting parties as to the time of Ranga Vadyar's death. The defendants did not say when he died. They would only say that he was not heard of after 1924, though the 7th defendant in his written statement had admitted that Ranga Vadyar was alive when Hari Vadyar died. In the nature of these contentions, the principles laid down in Section 107 of the Evidence Act have to be applied to this case.

9. In — ‘Narki v. Lal Sahu’, 37 Cal 103, it was held that when a person was not heard of for seven years the presumption that arose under section 108 of the Evidence Act was that he was dead at the time when the question was raised and not at some antecedent date. This dictum had been accepted in —‘Unnitan Ouseph v. Narayanan Krishnan’, (49 Trav LR 32). it was mentioned there that the presumption that arose when a person had not been heard of for seven years was a presumption that he was dead at the time the question was raised, i.e, the date of suit and not at some antecedent date. The same was the principle adopted in — ‘Wali Mohd v. Gaman Kala Khan’, AIR 1944 Pesh 29. The important decisions on this question passed till then had been considered in that case. It was held that where there was a dispute in a suit as to the date of death of a person from whom his relations had not heard for more than seven years it should first be for the person who alleged a particular date to prove that date affirmatively, but if no one could prove any specific date then the court should draw a presumption that he was dead on the date of the institution of the suit. Though the plaintiffs have alleged that Ranga Vadyar died on 15-6-1121 and let in evidence regarding the same, the evidence is not satisfactory to enter a definite finding on the question. Since both sides had admitted that Ranga Vadyar was dead and as both sides were not able to give any satisfactory evidence as to the exact date of his death, it has to be presumed that he was dead on the date of the present suit.

10. There is also the further admission by the 7th defendant in his written statement that Ranga Vadyar was alive when Hari Vadyar died. Taking all these into account, the safest course would be to hold that Ranga Vadyar died sometime after Hari Vadyar's death. Being so, Ranga Vadyar had inherited the plaint A schedule properties. Since he had admittedly no wife or children, his sisters — the first plaintiff and the first defendant — would be his heirs. They would take only a limited estate. But, however, each of them is entitled to a half share in these properties or the income arising therefrom. In this case, it is not necessary to pass a decree for partition, as the first plaintiff died while this appeal was pending. So the first defendant, as the only survivor, is entitled to retain possession of the entire properties. The first plaintiff's heirs would, however, be entitled to a share in the income that had accrued till the death of the first plaintiff. The 7th defendant would only constitute as manager for the estate; and in that capacity alone he had obtained the decrees for money against plaintiffs 1 and 4. These plaintiffs cannot now be heard to say that they are not liable to pay those decree amounts; because the decrees against them have been final. But, in taking into account the profits that would have gone to Ranga Vadyar, had he returned after Hari Vadyar's death, and also the income that accrued after Hari Vadyar's death till the first plaintiff died, these sums also are to be brought to the hotchpot for purpose of division. The plaintiffs have not proved the existence of the moveables mentioned in the plaint B schedule and so their claim to the same is not allowed. The decree of the lower court is, however, reversed and the following decree is passed.

11. The lower court will take accounts of the profits from the plaint. A schedule properties collected by the 7th defendant, or for which he had obtained decrees, or which have accrued due till the death of the first plaintiff. One half of the same will be paid to the legal heirs of the first plaintiff. It will also be open to the court below to adjust the decree-debts due from plaintiffs 1 and 4, so that the least hardship is caused to the parties. The lower court will treat this as a preliminary decree; and pass a final decree after settling accounts in the manner indicated above. The plaintiffs' prayer for partition is not allowed because of the first plaintiff's death. The proper order relating to costs would, in the circumstances, be to direct the parties to bear the same in both the courts. As regards the costs to be incurred by the parties hereafter, the lower Court will make the necessary provision in the final decree.

12. Decree reversed.

Ramabai And Others v. Saraswathi And Others

Judgment Summary — Govinda Pillai, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants (Plaintiffs)

Respondents (Defendants 1–6 and 7th Defendant)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ramabai And Others v. Saraswathi And Others

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