Velayudhan Sarojini v. Sankaranarayanan Sivanandan

The Judgment of the Court was delivered by

Govinda Pillai, J.:— (23-8-1954): The plaintiff is the appellant. The parties are Ezhavas governed by the Ezhava Act Defendants 1 and 3 are the children of defendant 2. Defendants 4 to 10 are the childiren of defendant 3. Besides defendant 1, defendant 2 had another son by name Sadasivan. He married the plaintiff in Makaram 1115 and left for, Singapore on 2-11-1115. He had not been heard of ever since. It has therefore to be presumed that he is dead.

2. The plaintiff's suit is for partition of the plaint schedule properties and for giving her the half share of the properties that Sadasivan would be entitled had he been alive, with past and future profits. The plaint A schedule properties belong to the subtarwad of defendants 1 to 10 and Sadasivan. The plaint B schedule consists of properties given in the names of defendant 2 and her mother by the deceased father of defendant 2 and plaint C schedule properties are those which defendants 1 to 3 and Sadasivan obtained from their deceased father Sankaranarayanan. On 9-8-1120, the defendants effected a partition of the properties obtained by them. Sadasivan must be presumed to have become divided from the other members of the tarwad from that date. No separate properties had been allotted for his share at the time of partition. But there is a provision in the partition deed that defendants 1 to 10 should give, from the properties allotted to them under the partition, the share to which Sadasivan would be entitled, on demand by him after his return.

3. There are ten members in the subtarwad and there are four persons who are entitled to inherit the properties left by Sankaranarayanan. Since-the plaintiff is Sadasivan's wife and as it has to be presumed that he is dead she is entitled; to ask for partition of the one-half share which she will get under the Ezhava Act in the properties belonging to Sadasivan.

4. According to her 1/10th of the properties in Schs. A and B and ¼th of the properties in Sch. C would be the legitimate share to which Sadasivan would be entitled. She is entitled to a half share in those properties so that she was to get 1/20 in A and B schedule propertied and ⅛ share in the plaint C schedule properties.

5. It was stated in the plaint that Sadasivan should be deemed to be dead from 2-11-1122, that is on the expiry of seven years from the date he was last heard of, and so she put forward a claim for mesne profits from 2-11-1122. She also stated that if the defendants had realised any sum from the outstandings mentioned in C schedule, she should be given her share in the amounts so realised by them.

6. Defendant 1 contested the suit. He put the plaintiff to prove that she had been legally married by Sadasivan. Defendant 1 admitted that plaint A schedule properties were obtained by the sub-tarwad in the partition in the main tarwad in 1102, that B schedule properties were those given by defendant 2's father to defendant 2 and her mother and that C schedule properties belonged to his father till his death.

7. While admitting the execution of the Partition deed on 9-8-1120 he denied that the defendants had effected an individual partition or decided to effect such a partition. He put the plaintiff to prove the fact that Sadasivan was alive on 9-8-1120 when the partition deed was executed. He contended that the reference to Sadasivan in the partition deed of 9-8-1120 did not confer on him any share in the properties or invest any right in respect of his share and that even if the plaintiff was Sadasivan's wife she would not get any right in the plaint C schedule properties unless she proved that Sadasivan was alive after 5-12-1119 on which date his father died.

8. It was further contended that the plaintiff could not get a share from B schedule properties unless she proved that Sadasivan was alive after 12-1-1120 when defendant 2's mother died and that the plaintiff would not get any right in the plaint A schedule properties unless it was proved that Sadasivan was alive on 9-8-1120. Defendant 1 also disputed the extent of the interest claimed by the plaintiff.

9. According to him, under the gift by defendant 2's father one-half of the properties belonged exclusively to defendant 2 and the other half to defendant 2's mother and it was only the latter share that was inherited by her Thavazhi under Section 19 of the Ezhava Act. He contended that there were 13 members in the Thavazhi including defendant 1's three children at the time of the dteath of defendant 2's mother, and that the plaintiff could get only 1/26 of B schedule properties even if Sadasivan was alive on 12-1-1120.

10. He therefore pressed for the dismissal of the suit. The Court guardian appointed for the minor defendants 4 to 10 supported defendant 1. The plaintiff filed a replication reaffirming the plaint allegations.

11. The lower Court found that the plaintiff was the legally wedded wife of Sadasivan by virtue of the marriage under the Ezhava Act on 27-6-1115. It was further held that the onus of proving that Sadasivan was alive on 5-12-1119, 12-1-1120 and 9-8-1120 was on the plaintiff, that she had not proved the same and so was not entitled to claim any share in the properties. Issues 2, 7, 12 and 14 were left open and the plaintiff's suit was dismissed. The parties were directed to bear their costs.

12. In appeal the plaintiff attacks the findings against her by the Court below. Defendant 1 has ??? an objection memorandum claiming his costs of the trial Court. The important question for consideration in this case relates to the onus of proof as regards the existence of Sadasivan on the dates when his father and maternal grandmother died, and also on 9-8-1120 when the defendants had admittedly effected a partition of the properties.

13. The plaintiff's position was that since Sadasivan was not heard of for seven years after he left this place in Mithunam 1115, he should be presumed to be dead after the expiry of that period, or at least when the suit was filed, whereas the respondent contended that since the sustainability of the plaintiff's claim depended on the existence of Sadasivan when the succession opened with the death of his father and grandmother the burden of proving that he was alive on those dates was on the plaintiff.

14. It has been admitted by both sides that after Mithunam 1115 Sadasivan had not been heard of for more than seven years by those who would naturally have heard of him if he had been alive. In such circumstances the Courts are to be guided by the presumption laid down in Sections 107 and 108 of the Evidence Act which read as follows: Section 107:

“When the question is whether a man is alive or dead, and it is shown that he was alive within 30 years, the burden of proving that he is dead is on the person who affirms it.”

Section 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”.

15. The present suit was filed on 20-6-1124. It was admitted that within 30 years of this date Sadasivan was alive that is he was alive on 2-11-1115. So the burden of proving that he was dead is on the person who affirms that fact. But this burden is shifted by the proviso mentioned in S. 108; that is, if he had not been heard of for seven years then the burden of proving that he is alive after that date is on the person who affirms it.

16. Where a person is not heard of for seven years and no specific date of death can be proved, the earliest date to which death can be presumed can only be the date when the suit is filed. It cannot have a further retrospective effect. This was the dictum laid, down in “Jeshankar Revashankar…Defendant v. Bai Divali…Plaintiff .” AIR 1920 Bom 85 (2)(A).

17. In the following cases “Mahomed Chiragh v. Abdul Huq” 64 Ind Cas 468 (Lah)(B), “P. Adayya v. J. Burreya” AIR 1923 Mad 182 (C) “Wall Mohammad v. Gaman” AIR 1944 Pesh 29 (D) “Nafki v. Lal Sahu” 37 Cal 103 (E) “Unnitan Ouseph v. Narayanan Krishnan” 49 Trav LR 32 (P) and “Rama Bai v. Saraswathi” AIR 1953 Trav C 114 (G) it was held that when a person is not heard of for seven years the presumption that arises under S. 108 is that he is dead at the time when the question is raised, that is, the date of suit and not some antecedent date.

18. The Madras High Court in Bai Naicken v. Achama Naicken, AIR 1921 Mad 285 (H) had further laid down that in a case where the point of time to which 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 to the contrary is offered by the other side.

19. In laying down this dictum their Lordships differed from certain observations made in Mohammed Shariff v. Bande Ali, 34 All 36 (PB)(I) and Ellamandayva v. Lakshmayva, AIR 1918 Mad 455 (2)(J).

20. In the case reported in 34 All 36 (PB)(I) it had been mentioned that if the evidence showed the person had not been heard of for 14 or 15 years instead of 7, there would merely be the presumption that the man was dead, but there would be no presumption that he died at any particular moment of the period during which he had not been heard of and that if any one sought to establish the precise period during those seven years at which some person died he must do so by actual evidence. Reliance was also placed on the case in Re Phene's Trusts, (1869) 5 Ch A 139 (K), where the dictum laid down ran as follows:—

“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 the grounds of decision in Doe d Knight v. Nepean, (1833-37) 5 B and Ad 86 (L) 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 (M) or with the dictum of Rolt L.J when he said in In re, Benham's Trusts, (1867) 4 Eq 416 (N) 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 Doe v. Nepean (L) or with the judgments in Rex v. Inhabitants of Harborne, (1835) 2 Ad and E 540 (O) and Reg v. Lumley, (1869) 1 CCR 196 (P) or with the principles to be deduced from the judgment in Underwood v. Wing, (1854-55) 4 D M and G 633 (Q).

The true proposition is, that those who found a right upon a person having survived, a particular period must establish the fact affirmatively by evidence; the evidence will necessarily differ in different cases, but sufficient evidence there must be, or the person asserting title will fail.”

21. In following this, their Lordships of the Allahabad High Court were guided by the English law where there is no presumption as laid down, in Section 107 of the Indian Evidence Act. As mentioned at page 823 of Sarkar's Law of Evidence, in England the period of seven years was inserted in the old statute of Charles TI concerning leases for lives and it has since been adopted by analogy, in other cases.

22. But in India there is the presumption which is allowed to be drawn by S. 107 also. If a man was shown to be alive within 30 years the burden of proving that he was dead was on the person, who affirmed it. So a continuity in life for a period of 30 years is recognised by S. 107 and there is no corresponding provisior in the English law.

23. For purpose of ??? of proof a provision shifting the burden on the party who alleges life after seven years is ??? on to the party who makes that allegation. At page 633 of Halsbury's Laws of England, Vol 13 Edn. 2, it is mentioned that where legal rights depended on the fact, or date, of the death of a person, have to be adjudicated, and such fact or date cannot be determined on evidence or presumption and the question cannot be solved by the incidence of the burden of proof, the Court will make the best order that it can in the circumstances.

24. This being the state of law in England, it is not possible to rely on the English rules of evidence relating to this matter particularly when there is a different provision in the Indian statute. In the case reported in 34 All 36 (FB)(I) mentioned above, their Lordships had not evidently considered the effect of the onus of proof laid down in Section 107 of the Evidence Act.

25. The presumption allowed to be raised by both the sections 107 and 108 had been considered in AIR 1920 Bom 85 (2)(A) where Macleod, C.J observes as follows:

“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’, 23 Bom. 296 (R). 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.”

26. The question was also discussed in detail in AIR 1944 Pesh 29 (D). There all the important decisions had been considered and it was laid down that where there is a dispute in a suit as to the date of death of a person from whom his relations have not heard for more than seven years, it shall first be for the person who alleges a particular date to prove that date affirmatively, but if no one can prove any specific date then the Court shall draw a presumption that he was dead on the date of the institution of the suit. This was followed by this High Court in AIR 1953 Trav-C 114 (G) already referred to.

27. The onus of proof as regards the presumption and an allegation against that presumption had been considered in— ‘Gopal Bhimji v. Manoji Ganuji’, AIR 1923 Bom 163 at p. 165 (S) and the following passage from the judgment of Shah J: being pertinent is quoted.

“As regards the presumption under Section 108 of the Evidence Act, it seems to me that it relates to a presumption as to the fact of death, and has no reference whatever to the date of the death. When the present suit was filed 1917, it was open to the Court on proof of the fact that Rakhma had not been heard of for more than 7 years, to presume, unless the contrary was shown by the other side, that Rakhma was dead.

But S. 108 does not justify any presumption as to the date of that person's death. That fact must be proved like any other fact by the party who is interested in establishing that he died on or before a particular date. The onus of proving that the death took place on or before a particular date would be upon that party who has to establish it in order to succeed.”

28. Thus the presumption allowed to be drawn under Ss. 107 and 108 appears to be that if a person was proved to be alive within 30 years when the question was raised then the party who asserted his death at any particular period within 30 years should prove it. The burden of proving that the individual died within 7 years after he was last heard of does not lie on the party who claims the right under that individual if he has not been heard of for seven years.

29. What is only laid down in S. 108 is that the onus of proof would be on the party who asserted that he was alive after seven years. So the burden of proving the death within seven years or within the period when the question was raised when that period exceeded seven years would be on the party who asserted that person was dead.

30. Applying this principle it has to be held that Sadasivan should be presumed to have died when that question was raised for the first time in this suit and not on an earlier date. If any party asserted that he died before he will have to prove the same for otherwise there would be no meaning to the onus of proof referred to in S. 107.

31. There are some cases relied on by the respondents' learned Advocate to show that the above conclusion is not correct. The first was 23 Bom 296 (R). It was laid down there that death was to be presumed after a certain interval (seven years); but that there was no presumption as to the time of death, that if therefore, any one had to establish the precise period during these seven years at which a person died; he must do so by evidence and could neither rely, on the one hand, upon the presumption of death, nor, on the other, upon the continuance of life, and that there was no presumption of law that because a person was alive in 1877 therefore he was alive in 1878.

32. In the course of the judgment their Lordships who decided the above case observed thus:

‘If it is necessary to establish the exact date of his death he, upon whom the onus of establishing that date is cast, must establish it or otherwise he must fail.”

33. For laying down this proposition, their Lordships relied on the case in (1869) 5 Ch. A 139 (K) without however considering the importance of the onus of proof laid down in Section 107 of the Indian Evi. Act. As already mentioned the English law on this point is not a safe guide as there is no provision there corresponding to Section 107 of the Indian Evidence Act which lays down the principle of continuance of life.

34. The next case relied on was— ‘Moolla Cassim v. Moolla Abdul Rahim’, 33 Cal 173 (PC)(T). The facts of the case are briefly these:—A Muhammadan by name Hashim died in 1884. A son of his by name Ahmed had left his native place in 1870 and was not heard of since. Ahmed's son claimed a share in Hashim's properties as the heir of Ahmed. He could get that only if Ahmed had survived Hashim.

35. The trial and appellate Courts held that the plaintiff had failed to prove that Ahmed had been either seen or heard of after 1870 and that under the provisions of Section 108 of the Evidence Act the burden was on him to establish that his father had Survived Hashim. This finding was accepted by their Lordships in the Privy Council and it was held that the plaintiff could not succeed.

36. But the peculiar facts of that case would show that Ahmed was not heard of after 1870 till 1884, so that Ahmed should be deemed to have died before 1884 and that was the reason why the burden of proof was shifted on his son to show that Ahmed was alive at the time when Hashim died in 1884. The decision in this case does not therefore go against the principle mentioned in para 11.

37. The next case relied on was— ‘Fani Bhushan Banerji v. Surjya Kanta’ 35 Cal 25 (U). In that case the plaintiff had to prove that his stepbrother was dead at a particular time in order to entitle him to succeed to the estate of his uncle.

38. The step-brother was not heard of for over seven years. Geidt, J., in concurring with Maclean, C.J, held that the question for which provision was made in S. 108 was the question whether a man was alive or dead, that is whether he was alive or dead when the question was raised: not whether he was alive or dead at some antecedent date & that the presumption that may, in certain circumstances, be raised was a presumption that the man was dead when the question was raised, and not a presumption that he was dead at some antecedent date.

39. This only refers to the presumption of the death of a man who was not heard of for seven years when the question was raised. Their Lordships also mentioned that the law raises no presumption as to the time of death.

40. The next case was 37 Cal 103 (E) which follows 35 Cal 25 (U) where it was laid down that the presumption under S. 108 was that the person who was not heard of for seven years was dead when the question was raised and not on some antecedent date.

41. The next case was— ‘Lal Chand v. Ramrup Gir’, AIR 1926 PC 9 (V). It was pointed out there that the usual assumption that where the period of disappearance exceeded seven years, death, which might not be presumed at any time during the period of seven years, might be presumed to have taken place at its close, was not correct; that the presumption was the same if the period exceeded seven years, and that the period was one and continuous, though it might be divisible into three or even four periods of seven years.

42. It was also pointed out that 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”.

43. Their Lordships, however, decided the case on another principle, namely that where the plaintiff claimed as heir to a life-holder who was not heard of since over seven years and defendants were in possession for over 12 years, Article 144, Limitation Act would apply, and that the plaintiff must prove the date of death within 12 years of the suit. Hence this decision also does not go against the principle mentioned in para 11.

44. Therefore, if a person was not heard of for seven years, by those who would naturally have heard of him if he had been alive he has to be presumed to be dead at the time when the question was raised, and it does not appear to be justifiable to ask a person to prove that he was alive on a particular date within that period. If it was possible to prove that he was alive within the said period then there was no scope for the presumption allowed to be drawn in S. 108.

45. Reading Sections 107 and 108 of the Indian Evidence Act together the proper working rule would appear to be that the person 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.

46. This would be the reason for laying down the rule that the presumption of death would be on the date on which the question was raised and not on an antecedent date. If the person is not presumed to, have died on an antecedent date prior to the one on which the question is raised the natural inference is that he was alive till the question is raised.

47. Being so, if the defendants are to succeed in this case they are to show that Sadasivan was not alive in 1120 when his grand-mother died, or in 1119 when his father died or 9-8-1120 when the partition was effected. The party who is to prove the death in order to succeed is to prove the date of death.

48. Such burden is not on the party who relies on Section 107 of the Evidence Act and asking the Court to infer the life of the person concerned, between the date of his disappearance and the date when the question of his death is raised. The plaintiff has therefore to succeed and she is entitled to a share in the properties which Sadasivan would have inherited had he been alive on the three crucial dates mentioned by the defendants.

49. The decree of the lower Court has therefore to be vacated and the case sent back for decision of the other questions raised and for passing a proper decree in the case. The plaintiff will get the costs of this appeal from defendant 1, who will bear his own. The costs of the trial Court will be the costs in the cause.

50. Since the costs of the lower court are directed to be the costs in the cause there is no necessity to pass any order on the objection memorandum filed by defendant 1 claiming his costs in the lower court. that also will be remanded for fresh decision by the trial court.

T.K Joseph, J.:— I regret I am unable to agree to the decree proposed by my learned brother. The plaintiff-appellant claims title to the properties described in the various schedules appended to the plaint on the allegation that she is the widow of Sadasivan who has not been heard of since the date of his departure from this country for Singapore on 2-11-1115.

51. In order to succeed the plaintiff has to establish the following points:— (i) that the plaintiff is the lawful wedded wife of Sadasivan; (ii) that Sadasivan is dead; (iii) that Sadasivan was alive on 5-12-1119, the date of which his father died, (iv). that Sadasivan was alive on 12-1-1120, the date on which his grand-mother died; and (v) that Sadasivan was alive on 9-8-1120, the date of the partition deed.

52. As regards the first point, the trial Court found that the plaintiff was the wife of Sadasivan and this finding was not objected to by the respondents. The defendants did not dispute either in the lower Court or in this Court that Sadasivan was dead on the date of the suit.

53. Thus, if Sadasivan had obtained a share in the properties described in the plaint schedules by reason of the fact that he was alive on the three dates mentioned above, the plaintiff would be entitled to a decree. The question is whether he did inherit or get a share in these properties. No evidence was adduced by the plaintiff or the defendants as to when Sadasivan died, although both sides were agreed that he was not alive on the date of the suit.

54. In my opinion the question for decision resolves itself into one of burden of proof. Sections 101 and 102 of the Evidence Act are as follows:

Section 101:— Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

55. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

56. Section 102:— The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The plaintiff who claims a share in these properties has to prove affirmatively that Sadasivan was alive on the three dates mentioned above and she cannot succeed merely on the strength of a finding that Sadasivan was dead or could be presumed to be dead on the date of the suit. As the fact that Sadasivan was not alive on the date of the suit is not disputed, there is really no need in this case to rely on the presumptions in Sections 107 and 108 of the Evidence Act.

57. When a person has been shown to have been living at a given time within 30 years and there is nothing to suggest the probability of his death, the continuance of life will be presumed under S. 107 and the person who asserts the contrary has the burden to prove it. In view of the presumption of continuance of life under S. 107, a counter presumption when a person's death would seem more likely from the nature and circumstances of the case than the continuance of life, is enacted in S. 108.

58. The effect of the decisions on the subject is that when a person is continually absent from home for a period of seven years, unheard of by persons who would normally receive 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. The presumption under S. 108 cannot by itself help the plaintiff because that refers only to the question whether a man is alive or dead and not whether he was alive or dead on a specified prior date.

59. 33 Cal 173 (P.C)(T) is a decision of the Privy Council on this point. The plaintiff Molla Kasim was a son of Moolla Ahamed whose father Moolla Hashim died on 27-1-1884. The dispute related to the distribution of Moolla Hashim's estate. The plaintiff's father had left Rangoon in the year 1870 and had not since heard of. The plaintiff in order to succeed had to prove that his father had survived his grand-lather Moolla Hashim who died in 1884. The learned Judges of the Chief Court of Lower Burma held:—

“In order to succeed, Moolla Cassim must show that his father Moolla Ahmed is dead now, and was alive in 1884. The case is governed by the provisions of the Evidence Act, as was held in the case of — ‘Mazhar Ali v. Budh Singh’, 7 All 297 (FB)(W). Moolla Ahmed had not been heard of for more than seven years— in fact, for more than 30 years— before the date of the institution, of the suit. Therefore the burden of proving that he was alive on that date was on the person, if any, who affirmed it.

In other words, failing any proof to the contrary the fact that he was dead at the time of the suit would be presumed. But, as was pointed out in 23 Bom. 296 (R) though the presumption is that Moolla Ahmed is now dead, there is no presumption as to the date of his death.

If it is necessary to establish the exact date of his death, he upon whom the onus of establishing that date is cast must establish it; or otherwise he must fail— that is to say, because Moolla Ahmed had not been heard of for seven years before the date of his father's death in 1884, there is no presumption that he was dead on that date.

On the other hand, the same principle applies to the presumption of continuance of life under Section 107 of the Evidence Act; and the fact that Moolla Ahmed had been alive within thirty years before the date of his father's death does not justify the presumption that he was still alive on that date. Neither Section 107 nor Section 108 of the Evidence Act refers to the question whether a man was alive or dead on a specified prior date.

Each section refers only to the case where the question is, whether a man is alive or dead not whether he was alive or dead at some previous time. There is therefore no presumption in this case that Moolla Ahmed was alive, or that he was dead on the date of his father's death in 1884.

The question resolves itself into one of the burden of proof. The burden of proving that Moolla Ahmad was alive on the date specified was on the plaintiff-appellant, who affirmed it. He failed altogether to discharge the burden by shewing affirmatively that Moolla Ahmed was alive on that date. His suit therefore could not succeed.”

60. Their Lordships of the Privy Council confirmed the decision of the Chief Court.

61. In 35 Cal 25 (U) the plaintiff had to prove that his step-brother was dead and that he died before his aunt. It was held that all that could be presumed was that the step-brother who had not been heard of for seven years was dead and that the law raised no presumption as to when he died. Geidt, J. held:—

“It is argued by the appellant that as it has been shown that Moni Mohan had not been heard of for seven years before Putimoni's death, a presumption arises under Section 108 of the Evidence Act that at the time of Putimoni's death Moni Mohan was dead. But it does not appear to me that S. 108 has any such effect.

The question for which provision is made in that section is the question whether a man is alive or dead that is whether he is alive or dead when the question is raised, not whether he was alive or dead at some antecedent date, and the presumption that may, in certain circumstances be raised is a presumption that the man is dead when the question is raised and not a presumption that he was dead at some antecedent date.

If we were to accede to the appellant's contention, we should be reading S. 108 as though it ran ‘when the question is whether a man was alive or dead on a certain date, and it is proved that he had not been heard of for seven years before that date by those who would naturally have heard of him if he had been alive on that date, the burden of proving that he was alive on that date is shifted to a person who affirms it.’ Such a construction would be an extension of the scope of the section which is not warranted by its wording.”

62. The decisions reported in 37 Cal 103 (E) : 34 All 36 (PB)(I) : AIR 1926 PC 9 (V) : AIR 1929 Bom 163 (S); ‘Ramchandra Sadasiv v. Keshav Dhondu’, AIR 1923 Bom 208 (X); Rekhab Das v. Sheobai, AIR 1923 All 495 (Y) : AIR 1920 Bom 85 (2)(A); “Gurdi Singh v. Jangi Singh’, 124 Ind Cas 25 (All)(Z) : AIR 1923 Mad 182 (C), and AIR 1953 Trav-C 114 (G) are to the same effect.

63. I may state that I am in complete agreement with my learned brother's view that there is no presumption under S. 108 that a person who has not been heard of for seven years died at a particular time within the period of seven years.

64. Shri M.N Parameswaran Pillai, learned counsel for the appellant, contended that the plaintiff could succeed on the strength of the presumption in Section 107 of the Evidence Act. The argument advanced was that since Sadasivan had not been heard of for seven years after his departure on 2-11-1115 he should be presumed to be dead on the date of the suit and that the plaintiff could sue as his widow and that as he was alive in 1115, the burden of proving that he died before he could acquire a share in the properties was on the defendants.

65. This argument is fallacious and is based on a misconception of the true scope of Sections 107 and 108 of the Evidence Act. These Sections relate only to the question whether a man is alive or dead and not he was alive or dead at a particular antecedent period. There is no scope for relying on S. 107 because both sides admit that Sadasivan was dead on the date of the suit.

66. The real point for decision is whether he was alive on 5-12-1119, 12-1-1120 and 9-8-1120. No presumption can be drawn under S. 107 that: a man who was admittedly dead on the date of the suit was alive on a prior date. A person can be presumed to be either alive or dead on the date of the suit if the circumstances contemplated either in S. 107 or S. 108 exist.

67. Sadasivan's death being an admitted fact, there is no justification for drawing a presumption under these Sections that his death occurred only after the crucial dates, merely because he was alive within 30 years of the date when the question arose for decision. High Courts in India have accepted the principle laid down in the leading English case: In re Phene's Trusts (K). The privy Council held in AIR 1926 P.C 9 (V).

“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: 23 Bom 298 (R) 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 Phene's Trusts (K)’, run 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.”

68. A Full Bench of the Allahabad High Court adopted this principle in 34 All 36 (FB)(I). It is useful to extract the following passage from the judgment of Giffard L.J in ‘In re Phene's Trusts (K)’.

“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 the grounds of decision in ‘Doe d-Knight v. Nepean (L)’, 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 (M)’ or with the dictum. Lord Justice Rolt when he said in ‘In re, Benham's Trusts (N)’, 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 ‘Doe d v. Nepean (L)’, or with the judgments in ‘Rex v. Inhabitants of Harborne (O)’ and ‘Reg v. Lumley (P)’, or with the principles to be deduced from the judgment in ‘Underwood v. Wing (Q)’.

The true proposition is, that those who found a right upon a person having survived a particular period must establish the fact affirmatively by evidence; the evidence will necessarily differ in different cases, but sufficient evidence there must be, or the person asserting title will fail.”

69. The Bombay High Court followed this view in 23 Bom 296 (R). Candy, J. held:

“Sections 107, 108, Evidence Act relate to the question whether a man ‘is’ alive or dead. On this point there is in the present case no doubt. Bala has never been heard of since his disppearance in 1877; therefore the burden of proving that he is alive is shifted to the person who affirms it. That burden admittedly is not discharged. But the question here is whether Bala is proved to have been alive in 1878.

Mr. Field in his notes to Sections 107, 108 of the Evidence Act quotes Taylor, S. 157, showing that though death is to be presumed after a certain interval, there is no presumption as to the time of death, and, therefore, if any one has to establish the precise period during these seven years at which the 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.”

70. It was also held that Sections 107 and 108 of the Evidence Act have made no difference to the statement of law in ‘In re, Phene's Trusts (K)’. This was followed in AIR 1923 Bom 163 (S). Crump, J. observed:

“The leading English case upon the point is in ‘In re, Phene's Trusts (K)’.

The rule to be discovered from that case is as follows: ‘The presumption of law relates only to the fact of death and the time of death whenever material must be the subject of distinct proof. This rule does not differ from Section 108 of the Evidence Act and that is the general rule where no statutory provision exists such as that contained in S. 494, Indian Penal Code or in the corresponding English Statute on the offence of bigamy’.”

71. The Madras High Court in AIR 1923 Mad 182 (C) followed the view of the Allahabad High Court in the case reported in 34 All 36 (FB)(I) and of the Calcutta High Court in 37 Cal 103 (E) and held that Section 107 of the Evidence Act would not enable the Court to say exactly when a person who was not heard of for over seven years died.

72. It was contended by the learned counsel for the appellant that the learned Judges who decided the cases cited above overlooked the provisions of Section 107 of the Evidence Act and also that there was no statutory provision in England corresponding to Section 107 of the Evidence Act. I do not feel justified in making such an assumption.

73. On the other hand their Lordships have held that since the presumptions which may arise under either of these sections do not relate to a point of time before the question of continuance of life or death was raised, the onus was on the plaintiff who asserted title to prove the same by showing that such title was acquired by the death of a particular individual at a particular point of time.

74. It would not be quite correct to say that there is no presumption in English law of continuance of life. The following passage from Phipson on Evidence refers to cases in England where this presumption was acted upon:

“The presumption from previous existence has been held to apply to human life— ‘Lapsley v. Grierson’, (1848) 1 HLC 498 (Z1) : (1869) 5 Ch A 139 (K) : (1869) 1 CCR 196 (P); in which cases it was held that, though there was no presumption of law as to the continuance of life, an inference of ‘fact’ might legitimately be drawn, that a person alive and in health at a certain time was alive a short time after; while in— ‘R. v. Wiltshire’, (1881) 6 QBD 366 (Z2) and— ‘R. v. Jones’, (1882) 15 Cox CC 284 (Z3), this doctrine was further extended, proof that A was alive in a certain year being held evidence that A was alive respectively eleven and seventeen years later (See also— ‘Macdarmaid v. Att. Gen.’, (1950) P. 218 (Z4)(1952) Edn. p. 108).

75. Reference has to be made to two decisions which were said to support the appellant's arguments based on Section 107 of the Evidence Act. The first was AIR 1920 Bom 85 (2)(A). This arose out of a suit filed by Bai Divali in 1915 for redemption of a mortgage executed by Lallu to defendant 1 in the case.

76. Jeshankar Revashankar, defendant 2 in the suit had filed another suit in 1914 against the mortgagee for redemption, basing his title to the equity of redemption on a sale deed executed in 1913 by Jugal, the first cousin of Lallu. Bai Divali was the wife of Jamnadas a more remote relation of Lallu than Jugal.

77. It was admitted that she could succeed only if she could prove that the sale of the equity of redemption to defendant 2 was invalid and this depends on the question whether Lalu was dead in 1913. The trial Court dismissed Divali's suit but the lower appellate Court gave her a decree from which defendant 2 preferred the second appeal.

78. Their Lordships remanded the suit to the trial Court for disposal after making Jugal a party to the suit. It was held that the attention of the lower Courts was not directed to the question whether the sale by Jugal in 1913 was valid or invalid. The sale could be held valid only if Jugal could convey title and he could do so only if Lallu was dead at that time. Macleod, C.J said:

“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 ma has not been heard of for seven years then the Court will presume the death. See 23 Bom 296 (R) 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. Bu if he is in possession, then the plaintiff who want 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 & 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.”

79. Taken out of context, the earlier portion of the passage might appear to support the appellant to a certain extent. But the real question to be decided was whether defendant 2 who asserted title under Jugal had to prove the same by showing that Lallu was dead in 1913 and it was held that if defendant 2 was in possession, the onus would be on the plaintiff to establish that she was the nearest heir of Lallu.

80. As a question would then arise whether Jugal had lost his inheritance by his having become a Yati he was directed to be made a party. This decision in my opinion supports the respondent who contends that the plaintiff who asserts title must prove it.

81. The second case on which reliance was placed by the appellant is the decision of Mir Ahmad, J. in AIR 1944 Pesh 29 (D). The decisions in Jeshankar Revashankar…Defendant v. Bai Divali…Plaintiff . (A) Gopal Bhimji v. Manoji Ganuji (S), Ramachandra v. Keshav Dhondo (X), and Mahomed Sharif v. Bande Ali (I) were followed & it was held:

“Where there is a dispute in a suit as to the date of death of a person from whom his relations have not heard for more than seven years, it shall first be for the person who alleges a particular date to prove that date affirmatively but if no one can prove any specific date then the Court shall draw a presumption that he was dead on the date of the institution of the suit. I find myself in perfect agreement with the view of the Bombay and Allahabad High Courts.”

82. However in stating his conclusion the learned Judge said:

“It has been concurrently found by the Courts below that the plaintiffs have not been able to prove the exact date on which Dosa died. The record snows that tnis finding is correct. Dosa must, therefore, be presumed to have died on the date of the institution of this suit, viz. 15-3-1949.”

83. This conclusion is inconsistent with the decision in the four cases relied on in the judgment, so that what the learned Judge intended to decide appears to be that Dosa ‘was dead’ on the date of the institution of the suit and not that ‘he died on that date’: otherwise the conclusion would not be warranted by Section 108 of the Evidence Act or the decisions which the learned Judge followed in coming to the conclusion. These two cases cannot in my opinion help the appellant.

84. Where a party's case depends on establishing that a given person who is presumed to be dead was alive or dead at a particular time within the seven years period and there is no evidence at all on the subject, success or failure will depend on whether the party has succeeded in proving the date of death.

85. The plaintiff seeks to recover possession of properties from the persons in possession on the basis of her alleged title and she has to establish the same by proving that her deceased husband had title to the same. As she has failed to prove that her husband was alive on the three crucial dates or that he died only later, her suit must fail. This is the conclusion reached by the Court below and the same has to be confirmed. The appeal must therefore be dismissed with costs.

86. (This appeal suit coming on again for hearing on 28-7-195 before Koshi, C.J, the Court on 29-9-1955 delivered the following:)

JUDGMENT

Koshi, C.J:— This appeal comes before me for determination under S. 23. Travancore-Cochin High Court Act, 1125, on account of the disagreement between K.S Govinda Pillai and T.K Joseph, JJ. as to the decision to be made in respect thereto. The learned Judges delivered separate judgments.

87. According to Govinda Pillai, J. the appeal is to be allowed and the case remitted back to the District Court for disposal ‘de novo’ after determination of certain issues left undecided, while Joseph, J. was for dismissing the appeal confirming the decision of the learned District Judge of Trivandrum that the plaintiff had not established her title to the olaint schedule properties.

88. Tne plaintiff sued for partition and delivery to her of a one-half share of her husband's share in the plaint schedule properties. The suit was brought on 10-6-1124. Her husband had left this country for Singapore on 2-11-1115, some five months after he married her.

89. During the interval of well nigh nine years that elapsed since his departure and the institution of the suit, his whereabouts remained unknown and it was on the assumption that he was dead the plaintiff claimed the half share due to her under the Trvancore Ezhava Act, (3 of 1100), of the properties which according to her, her husband became entitled to during the period.

90. Admittedly, when he left for Singapore, he had no separate or self-acquired property. The other facts necessary for a proper understanding of the question involved are all set out in the judgment of Govinda Pillai, J., and it is unnecessary to reiterate them here.

91. The learned District Judge (now Kumara Pillai, J.), who disposed of the suit, and learned Judges of the Division Bench are agreed that, had Sadasivan the plaintiff's husband, been not alive on the three crucial dates mentioned in their judgments viz., 9-8-1120, when his sub-tarwad effected a division of the plaint schedule properties, 12-1-1120 when his grand-mother died and 5-12-1119, when his father died the plaintiff's claim must fail.

92. In other words, if Sadasivan was not alive on the date of the sub-tarwad partition or if he had not survived his grand-mother or his father he-would have got no property himself of which on his death or on the assumption that he is dead, the wife could claim a share. The difference between the learned Judges of the Division Bench is whether the plaintiff should prove that Sadasivan remained alive on the three dates mentioned or whether the defendants who resist the plaintiff's, claim should prove that he was not alive on any of those dates.

93. In a commendably brief judgment the learned District Judge held that though under Section 108 of the Indian Evidence Act, 1872, on the facts admitted and proved in the case it was open to the Court to presume that he was not alive on the date of the institution of the suit, in order to succeed in her action, the plaintiff must prove that he was alive on the three relevant dates.

94. According to the learned District Judge then and then alone a share in the plaint schedule properties would have gone to him for the plaintiff to claim a one-half share now. Joseph, J., agreed with this view.

95. On the other hand, Govinda Pillai, J., has held that as a result of the combined operation of Sections 107 and 108 of the Evidence Act, the presumption in favour of continuance of life would remain operative until: the counter-presumption under S. 108 comes into-play and that as such until the lapse of seven years from the date of Sadasivan's disappearance or even until the date of the institution of the suit Sadasivan must be deemed to be alive and that consequently the plaintiff's action should succeed.

96. The decision of the question as to which-of these two views is correct is not free from difficulty. A learned article on the subject of “The-Presumption of Death” appearing in the issue of the Modern Law Review, November, 1954, opens-with a reference to this aspect of the subject in the following terms:

“The disappearance of a person leaving no trace behind gives rise to curious and baffling problems in various branches of the law. The authorities show that these problems are by no means as easy to resolve as the books on Evidence suggest. The reason for this complexity is that an unresolved conflict of policies underlies this topic and indeed the whole subject of presumptions.

On the one hand there is the dislike of being forced into conclusions of fact by rules of law rather than logic; on the other hand there is the binding: necessity of giving some decision in each case, even though the evidence is logically insufficient. On-this conflict there is no simple or uniform resolution. Both the facts giving rise to the presumption— the basic facts— and the presumed facts-differ according to the type of case before the-Court.”

97. I shall have to refer to the said article again during the course of this judgment. However, before I proceed to discuss the question arising for decision in the case I consider it advantageous to state even at the outset that on principle and authority I feel bound to hold that the view taken by Joseph, J., in agreement with that of the learned District Judge, gives the correct answer to it and that my decision of the case will be in accord with that view.

98. If I may say so with respect, certain fallacies lie beneath the reasoning and conclusion of the judgment of Govinda Pillai, J., which I shall now advert to.

99. In the first place, I venture to think that, it is erroneous to seek to apply both S. 107 and S. 108 to one and the same case. In the same way as, a person cannot at the same time both be have and dead a Court cannot seek to apply to a given case both the presumption relating to the continuance of life and the counter-presumption relating I to death.

100. Section 108 comes as a proviso to S. 107. To, a case where the proviso is attracted the enacting section can have no application. To quote from Statutory Construction by Francis, J. McCaffrey (1953) para 56, p. 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 cases not intended by the Legislature to be brought within its purview—“Minis v. United States’, (1863) 15 Pet. 423 at p. 445 (Z 5)”.

101. In para 91 (p. 129) of the same work it is seen stated:

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

102. Craies on Statute Law (5th Edn. 1952) observes as follows regarding the rules of construction to be applied to a proviso:

“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;……….”

103. In my view it is needless to add further authority in support of the view that Section 107 of the Evidence Act cannot be sought to be applied to a case to which its proviso, S. 108 is attracted. It is common ground in the case on hand that the rule in S. 108 has to be applied to decide whether Sadasivan was dead or alive on the date of the suit.

104. Govinda Pillai, J., applies S. 108 to hold that Sadasivan must be deemed to be dead on the date of the institution of the suit, but to hold that he was alive till then, or at any rate, until after the expiration of seven years from the date of his departure for Singapore on 2-11-1115, applies the rule in S. 107. Paragraph 12 and the extract below from para 18 of his judgment will bear this out:

“Reading Sections 107 and 108 of the Indian Evidence Act together the proper working rule would appear to be that the person 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. This would be the reason for laying down the rule that the presumption of death would be on the date on which the question was raised and not on an antecedent date.

If the person is not presumed to have died on an antecedent date prior to the one on which the question is raised the natural inference is that he was alive till the question is raised. Being so, if the defendants are to succeed in this case they are to show that Sadasivan was not alive in 1120 when his grandmother died, or in 1119 when his father died, or on 9-8-1120 when the partition was effected.

The party who is to prove the death in order to succeed is to prove the date of death. Such burden is not on the party who relies on Section 107 of the Evidence Act and asking the Court to infer the life of the person concerned, between the date of his disappearance and the date when the question of his death is raised.

The plaintiff has therefore to succeed and she is entitled to a share in the properties which Sadasivan would have inherited had he been alive on the three crucial dates mentioned by the defendants.”

105. The learned Judge's approach, as stated earlier, is opposed to all recognised canons of construing a proviso and I shaft in due course endeavour to show that it is also opposed to the authority of decided cases. Decisions of the various Indian High Courts have been brushed aside by the learned Judge on the ground that they overlooked Section 107 of the Evidence Act.

106. Another consideration which influenced the decision of Govinda Pillai, J., is his view that the English Law relating to the presumption of continuance of life differed from that enacted by the Indian Evidence Act. The absence in English law of a statutory provision analogous to the rule embodied in Section 107 of the Indian Evidence Act has been repeatedly commented upon by the learned Judge.

107. Joseph, J., has quoted from p. 108 of the Phip-son on Evidence (1952 Edn.) to show that while there is no presumption ‘of law’ in England as to the continuance of life, an inference of fact is invariably drawn that a person alive and in health at a certain time was alive sometime later. Taylor on Evidence may usefully be referred to here. Section 196 on p. 176 (12th Edn.) begins by stating:

“196. Other presumptions are founded on the experienced ‘continuance’, or immutability, for a longer or shorter period, of human affairs. When, therefore, the existence of a person, or personal relation, or a state of things, is once established by proof, the law presumes that the person, relation, or state of things continues to exist as before, till the contrary is shown, or till a different presumption is raised, from the nature of a subject in question.”

108. The rest of the section and the succeeding S. 197 deal with various instances where such presumptions have been drawn from time to time by Courts of law Sections 198, 199 and 200 give instructive information as to instances of inferences of fact drawn with respect to human life. These sections read:

“198. Where a person is once shown to have been living, the law, in the absence of proof that he has not been heard of within the last seven years, will in general presume that he is still alive, unless after a lapse of time considerably exceeding the ordinary duration of human life. In the civil law the legal presumption of life ceases at the expiration of one hundred years from the date of the birth, and the same rule appears to have been adopted in Scotland, but in England, no definite period has been conclusively fixed, during which the presumption is allowed to prevail. In several old cases, where feoffments for terms varying from ninety-nine to eighty years had been made to particular tenants, the possibility of their surviving the expiration of the terms was neglected in determining the nature of the remainders, and the book of a tithe-collector, written seventy-four years before, has been admitted in evidence, without proof that any inquiries had been made for the writer.

In one case a receiver's account was allowed to be read after the lapse of fifty-four years only, though no proof was tendered respecting the writer's death.

“199. On the other hand, where a term was for sixty years, the Court took into consideration the possibility of the termor living after its expiration, and the deposition of a witness taken sixty years before the trial has been rejected, no search having been made for the deponent, and no account being given of him……..

“200. 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 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. Thus where a person whose life is insured has not been heard of for seven years, those who have effected the insurance are, at the end of that period, entitled to have it paid. The period of seven years was inserted in the old statute of Charles II concerning leases for lives, and it has since been adopted, by analogy, in other cases. It is also recognised in the various Acts relating to bigamy; and if, on an indictment for that crime, it appears that the prisoner and his first wife had lived apart for seven years before he married again, mere proof that the first wife was alive at the time of the second ceremony will not warrant a conviction, but some affirmative evidence must be given that the prisoner has known his wife, to be alive at some time during the seven years. 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. The burden of proving that the person was alive at any particular period within the seven years is upon the person asserting it.”

109. A foot-note marked (m), seeks to coz-rect Taylor's view that in Scotland the presumption of life ceased at the expiration of one hundred years and it is said that ‘a precise limit to this presumption has not been fixed’. The same view as to the English Law on the subject is to be found in Best on Evidence. I shall quote paras 408 and 409 at page 348 (12th Edn.). Paragraph 408 reads:

“408. We next proceed to the presumptions of the continuance of human life. There is certainly, in the English law, no ‘presumptio juris’ relative to the continuance of life, in the abstract. The death of any party once shown to have been alive is matter of fact to be determined by a jury; and as the presumption of fact is in favour of the continuance of life, the onus of proving the death lies on the party who asserts it.”

110. Paragraph 409 states:

“409. The fact of death may, however, be proved by presumptive as well as by direct evidence. When a person goes abroad, and has not been heard of for a long time, the presumption of fact of the continuance of life ceases at the expiration of seven years from the period when he was last heard of, though the burden of proof that he was alive at a particular time within that period so as to be entitled as legatee to a share of a testator's estate as having survived the testator, lies upon those claiming under him, and must be proved by affirmative evidence……….”

111. The opening words of paragraph 409 are:

“Where a party has been absent for seven years without having been heard of, the only presumption is that he is dead; there is no presumption as to when, in the seven years, he died and if it be sought to establish the precise time of death, this must be done affirmatively, by evidence of some sort beyond the mere fact that seven years have elapsed since such person was last heard of.”

112. Dr. G.D Nokes, some time Judge of the erstwhile High Court of Travancore, in his book “An Introduction to Evidence”, deals with the presumption as to death as follows:

“‘Death’. If a person has not been heard of, by those with whom he might naturally be expected to communicate, for a period of seven years or longer, there is a presumption that he is dead. It is probably a presumption of law, though it has also been described as a mixed presumption and a presumption of fact.

The rule was first recognised by the Courts merely as terminating the presumption of continuance of life, which is discussed below, because such a termination after a period of seven years' unexplained absence was recognised by two early statutes dealing with bigamy and leases for lives. But later during the last century the presumption was regarded as one of death; though its application is somewhat restricted.

In prosecutions for bigamy it usually has no place. It is true that if the accused can show that, at the time of remarriage, his or her former spouse had been continually absent for the seven years then last past, and was not known to have been living within that time, he or she may be acquitted, but this is a statutory defence. If the accused can show a ‘bona fide’ belief in the death of the former spouse, he or she may also be acquitted, but as this belief may be founded on an absence of less than seven years, no question of the presumption arises.

In cases of succession, the presumption is of no assistance in determining a time of death during the absence for seven years. Thus when the representatives of a legatee wished to prove that he had survived the testator, who died in 1861, evidence given in 1869 that the legatee was last heard of in 1860 was of no avail, for the presumption might show that he was dead in 1867 but would not show that he was alive in 1861 or later……….”

113. Again at page 61 under the heading Continuance the learned author states;

“…… The presumption of continuance has been applied to sanity, marriage, speed, partnership and numerous other matters, but, as shown above, it is not sufficient to support a claim involving survivorship.”

114. These recognised authorities on the English law of evidence clearly establish that though there is no presumption of law as to the continuance of life, an inference of fact is very often drawn with respect to the continuance of life and the presumption is sometimes extended even beyond the period recognised by Statute Law in India.

115. When we remember, that Section 107 of the Indian Evidence Act enacts only a rebuttable presumption of law, the absence of a statutory provision in English law enacting a presumption as to the continuance of life and fixing a time limit for it, does not really make the English law in substance any the different from the Indian law.

116. The difference is only to the extent that in India there is a rebuttable presumption of law as to the continuance of life while English law permits a presumption of fact to be made with respect to it. Presumptions of fact are, of course, always rebuttable.

117. Time and again, Indian Courts have had to consider whether the law in India differs from the law enunciated in the leading English case, ‘(1869) 5 Ch. A. 139 (K)’ regarding the presumption as to the continuance of life and that relating to death. Notwithstanding certain doubts expressed by some High Courts in ‘AIR 1926 PC 9 (V)’, their Lordships of the Judicial Committee said that upon this question there is no difference between the law of India as declared in the Evidence Act and the Law of England.

118. Lord Blanesburgh who delivered the opinion of the Board, cited with approval ‘23 Bom 296 (R)’. In that case after setting out the purport of the decision in ‘In Re Phene's Trusts (K)’, Candy, J., said that Sections 107 and 108 of the Evidence Act have made no difference to the statement of the law contained in the said English case.

119. So early as 1886 in “Dharup Natha v. Gobind Saran’, 8 All 614 (Z6) Mahmood, J., after quoting Ss. 107 & 108 said ‘at page 619’ of the report that the rule enunciated in these sections has obviously been borrowed with hardly any modification, from the English law of evidence as stated in Taylor's celebrated work. So saying the learned Judge quoted a passage from S. 157 (2nd Edn.) of Taylor which corresponds to S. 200 of the 12th Edn. quoted earlier.

120. Among other decisions which hold the view that the Indian Law on the subject is the same as the English Law the following decision may be cited: ‘AIR 1923 All 495 at p. 496 (Y)’, ‘AIR 1923 Bom 163 at p. 168 (S)’, ‘Punjab v. Natha’, AIR 1931 Lah 582 at p. 584 (FB)(Z7), ‘Ram Kali v. Narain Singh’, AIR 1934 Oudh 298 at d. 299 (FB)(Z8) and ‘Harnam Kaur v. Mt. Ratna’, AIR 1949 E.P 267 at p. 270 (Z 9). In ‘37 Cal. 103 (E)— the learned Judges expressed the view that the decisions in ‘33 Cal. 173 (T)’ and ‘35 Cal 25 (T)’ were not in accord with the decision in ‘In re Phene's Trusts (K)’.

121. In ‘AIR 1923 Bom 208 (X)— Marten, J. referred to this, but did not express any opinion of his own as to whether the Indian Law on the question differed from the English Law. However, in my opinion, after the Privy Council decision in ‘Lal Chand v. Mohant Ramrup Gir (V)’, there is no reason to doubt that the law in both countries is the same.

122. Earlier in this judgment I have said that the ground on which Govinda Pillai, J., holds that the English Law on the question is different from that embodied in Ss. 107 and 108 cannot be sustained. Here it may not be out of place to point out that the learned District Judge has quoted a passage from Monir's Law of Evidence to show that there is no difference between the law of India as declared in Sections 107 and 108 of the Evidence Act and the Law of England which was enunciated in ‘In re Phene's Trusts (K)’. The learned Judge referred to page 761 of the Second Edition of the work and the current (Third) Edition refers to the matter at page 810.

123. I am afraid Govinda Pillai, J., misunderstood the import of a passage he refers to in para 9 of his judgment as occurring at page 633 of Hals-bury's Laws of England (Second Edition), Vol. 13. The passage reads:

“Where legal rights, dependent on the fact, or date, of the death of a person, have to be adjudicated; and such fact or date cannot be determined on evidence or presumption, and the question cannot be solved by the incidence of the burden of proof, the Court will make the best order that it can in the circumstances.”

124. This refers to the safeguards Courts sometimes introduce when the facts of the case do not warrant a safe conclusion being drawn as to the fact, or date, or death of a missing man. Lest injustice should result from a decision of a Court, if the missing man were to reappear or evidence is subsequently forthcoming that on the date the Court presumed him to be dead he was really alive, by way of abundant caution the original order of the Court regarding his assets is not frequently made subject to terms as to security or even made provisional. Reference to the cases cited under foot-note (e) on page 633 (Halsbury) would make this aspect clear.

125. Had not Govinda Pillai, J., thought that Ss. 107 and 103 are both to be applied to the case and that the English law did not have a rule analogous to that in S. 107 I should think the learned Judge would unhesitatingly have upheld the learned Judge's view that the burden of Establishing that Sadasivan was alive on the three dates mentioned earlier was on the plaintiff and no evidence about it existing in the case, agreed to dismiss the suit.

126. In this context I consider it necessary to make a passing reference to one or two observations Joseph, J., has made concerning the application of Ss. 107 and 108 to the present case. In para 2 of his judgment Para 22 of this report the learned Judge states:—

“As the fact that Sadasivan was not alive on the date of the suit is not disputed, there is really no need in this case to rely on the presumptions in Sections 107 and 108 of the Evidence Act.”

127. Again in para 4 (Para 24 of this report) it is stated:

“There is no scope for relying on S. 107 because both sides admit that Sadasivan was dead on the date of the suit.”

128. Section 107 has no application to the case, not because of any admission, but on account of the fact that circumstances attracting the application of S. 108, the proviso to S. 107, are established on the evidence in the case. The common case the parties have that Sadasivan was not alive is based on S. 108 and not on any other basis as direct or circumstantial evidence as to death. The certainty of Sadasivan's death does not exist even now, although the Courts may presume it under s. 108 when legal proceedings are taken regarding the right to his properties or again if a question were to arise with respect-to a re-marriage by his wife. It is indeed only a legal presumption that Sadasivan is dead and as noted earlier, English authorities show that sometimes conditions are attached with respect to the disposal of the property of the person disappearing in the event of his return.

129. Having shown that the English law on the subject is the same as the Indian law, I shall first refer to some English cases. As a preliminary thereto it may be stated that Courts have invariably found, that there is no presumption as to the time, although there is as to the fact of the death. Section 108 does not enunciate anything more. While that Section entitles the Court to presume that Sadasvian was dead on the date of the institution of the suit, it does not help the Court to say as to when he died. There is no presumption that he lived for seven years.

130. The plaintiff is seeking to recover the property in suit as against Sadasivan's mother, his brother, his sister and her children who are in possession of them. She must, therefore, affirmatively prove that he was alive (i) when succession opened on his father's death, (ii) when on the death of his grandmother, her properties devolved on the sub-tarwad and (iii) when those properties and the properties that even formerly belonged to the sub-tarwad were divided. The English and the Indian authorities that will presently be referred to fully bear out the above view which found favour with Joseph, J., and the learned District Judge.

131. It is admitted on all hands that the leading English case on the subject is In re pnene's Trusts (K). There the testator died on 5-1-1861, having bequeathed his residuary estate equally between his nephews and nieces. One of his nephews N.P Mill had gone to America in 1853 while he was 24 years of age. He had frequently written home till August 1853 when he wrote on board an American ship of war, but from that time no letter had been recieved from him, and nothing was afterwards heard about him, except that he was entered in the books of the American Navy as having deserted on 16-6-1860, while on leave. It was held that his personal representative, on whom the onus of proof rested, had not established a title to any share to the testator's estate and that it must be divided among the nephews and nieces who were proved to have survived the testator. The opening paragraph of the head note to the case reads:—

“If a person has not been heard of for 7 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 that the onus of proving that the death took place at any particular time within the 7 years lies upon the person who claims a right to the establishment of which that fact is essential. There is no presumption of law in favour of the continuance of life, though an inference of fact may legitimately be drawn that a person alive and in health on a certain day was alive a short time afterwards.”

132. Extracts from the judgment of Sir G.M Giffard, L.J, delivered in that case have frequently been quoted by successive generations of judges and the judgments delivered in this case also contain extracts therefrom. I shall content with quoting one sentence which has become classic. It reads:—

“The true position 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, or the person asserting title will fail.”

133. Among the cases which the learned Lord Justice relies upon, reference may first be made to the two judgments Lord Denman, C.J, delivered, first in the Queens Bench Division in (1833-37) 5 B&Ad 86 (L) and next in the Court of Exchequer Chamber on a writ of error from the judgment of the Court of The Queen's Bench in Nepean v. Doe d. Knight; (1837) 2 M&W 894 (Z10). Copious extracts from the two judgments are to be found in In re Phene's Trusts (K) and for our purpose it is unnecessary to reproduce them here. To the report of the decision of the Queens Bench Division the head note is:—

“A person who has not been heard of for seven years, is presumed to be dead, but there is no legal presumption as to the time of his death, the fact of his having been alive or dead at any particular period during the seven years, must be proved by the party relying on it.”

134. In repelling the argument that death must be presumed to have taken place at the end of seven years the learned Chief Justice said:—

“…. that such a rule would in the very great majority of cases, nay in almost every case, cause the fact to be found against the truth; and, as the rule would be applicable to all cases in which the time of death became material, would in many, be productive of much inconvenience and injustice.”

135. Prom the decision of the Exchequer Chamber the following extracts may usefully be quoted here. Referring to the earlier decision before the Queen's Bench it was stated:—

“The doctrine there laid down is, that 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 last heard of. After fully considering the argument at the Bar, we are all of opinion that the doctrine so laid down is correct.

It is conformable to the provisions of the Statute of James I., relating to bigamy, more particularly to the statute 19 Car. II, c. 6, relating to this very matter, the words of which distinctly point at the presumption of the fact of death, but not at the time; it is conformable also to decisions on questions of bigamy and on policies of insurance, and it is supported and confirmed by the case of Rex v. Inhabitants of Harborne (O).

It is true, the law Presumes that a person shown to be alive at a given time remains alive until the contrary be shown, for which reason the onus of showing the death of Matthew Knight lay in this case on the lessor of the plaintiff.

He has shown the death, by proving the absence of Matthew Knight, and his not having been heard of for seven years, whence arises, at the end of those seven years, another presumption of law, namely, that he is not then alive; but the onus is also cast on the lessor of the plaintiff of showing that he has commenced his action within twenty years after his right of entry accrued, that is, after the actual death of Matthew Knight.

Now, when nothing is heard of a person for seven years, it is obviously a matter of complete uncertainty at what point of time in those seven years he died; of all the points of time, the last day is the most improbable, and most inconsistent with the ground of presuming the fact of death.

The presumption arises from the great lapse of time since the party has been heard of; because it is considered extraordinary, if he was alive, that he should not be heard of. In other words, it is presumed that his not being heard of has been occasioned by his death, which presumption arises from the considerable time that has elapsed.

If you assume that he was alive on the last day but one of the seven years, then there is nothing extraordinary in his not having been heard of on the last day; and the previous extraordinary lapse of time, during which he was not heard of, has become immaterial by reason of the assumption that he was living so lately. The presumption of the fact of death seems, therefore, to lead to the conclusion that the death took place some considerable time before the expiration of the seven years.

It is true, the doctrine will often practically limit the time for bringing the action of ejectment in such cases; and circumstances may be supposed, as of a lease for seven years commencing on the death of A., or of a promissory note payable two months after A's death, & many other cases which might be put, in which it would be difficult to carry into effect certain contracts, or to have remedies for the breach of them, if the parties interested, instead of making inquiry respecting the person on whose life so much depended, chose to wait for the legal presumption.

Such inconveniences may no doubt arise, but they do not warrant us in laying down a rule that the party shall be presumed to have died on the last day of the seven years, which would manifestly be contrary to the fact in almost all instances. No such rule is enacted by the statute, nor is any one authority adduced in which any such rule has been laid down.

It is not necessary to make any election between the beginning of seven years and the end of them, and the period to which the death should be referred, as seems at one time to have been assumed. We adopt the doctrine of the Court of King'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.”

136. Another case followed in In re Phene's Trusts (K) is (1865) 1 Ec. 283 (M). In that case Mr. Green was murdered in the Indian Mutiny on 3-6-1857 and Mrs. Green on the 16th of November, following. The child of or and Mrs. Green escaped with its Indian nurse from the place on the 3rd of June, but was never afterwards distinctly heard of. After the lapse of seven years and upwards a Petition was presented and Vice Chancellor Sir William Page Wood, (later Lord Hatherly, L.C) in delivering the judgment said:

“…. The whole question is on whom is the onus of proof thrown. The lady on the devolution of whose estate the question arises is shown to have died on the 16th of November; her husband is shown to have died before her; a number of persons claim as her relatives, and prove their kindred within a certain degree; and, so far as now appears, there is no one nearer in kindred.

On the other hand the representative of another person claims the property also, and shews that the person through whom he claims was nearer of kin than the petitioners, and would have been entitled, if he survived his mother; but a person claiming under such a title must go further and must shew not only that the person through whom he claims would have been entitled if he survived, but that he actually was entitled, or, in other words, that he did survive.”

137. I do not propose to refer to any other case relied upon in In re Phene's Trusts (K). Subsequent thereto, that decision has been followed in a large number of cases. I shall refer but to four of them. In re Lewes' Trusts, (1871) 6 Ch A 356 (Z11) the substance of the decision is that where a legatee has not been heard of for seven years, his death will be presumed; and the onus of proving that he survived the testator lies upon those who claim under him.

138. In the absence of such proof, the legacy will be paid to the residuary legatee or the next of kin of the testator, as the case may be. In affirming the decision of Vice Chancellor Malins James, L.J said:—

“Death is presumed from the person not being heard of for seven years, and whoever has to make out the case of death at any particular time must prove it by affirmative evidence, and those who claim under a person who is said to have survived a particular period must prove the fact. Here the onus of proof is on those who claim under the legatee, and they have not succeeded.”

139. In a concurring judgment Mellish, L.J, said.—

“If at the end of seven years a person has not been heard of, the presumption is that he is dead, but there is no presumption as to when, during the seven years, he died. The person upon whom it rests to prove the affirmative, either that the legatee was alive or that he was dead at a particular period, must establish the proposition by distinct evidence, and not by shewing merely that he was alive at the beginning of the period.”

140. James, L.J reaffirmed the above view in In re, Walker, (1871) 7 Ch A 120 (Z12). In Hickman v. Upsall, (1875) 20 Eq 136 (Z13) in following In re Phene's Trusts (K) and In re Lewes' Trusts (Z11) Sir Charles Hall, Vice Chancellor said:—

“I think it is impossible to distinguish a case of presumption of death from one of presumption of life, for whoever has to make out a case in order to establish a title which depends upon the fact of either the death or the life of any person must prove that fact…….”

141. The fourth and the last case I cite as following In re Phene's Trusts (K) is In re Benjamin Neville v. Benjamin, (1902) 1 Ch 723 (Z14). In that case in September, 1892 one Philip Benjamin who was then 24 years of age disappeared and he had never since been heard of. Under his father's will he was entitled to a share of the residuary estate in the event of his surviving the testator. The testator died in June 1893.

142. Upon a summons taken out by the trustees in 1900 to have it determined how Philip Benjamin's share ought to be dealt with Joyee, J., held that Philip Benjamin must be presumed to be dead and in the absence of proof that he has survived the testator, gave the trustees liberty to distribute his share on the footing that he had pre-deceased the testator. It is clearly stated in the judgment that the onus was on those claiming under. Philip Benjamin to prove that he survived the testator.

143. I shall now revert to the Modern Review article. After the preliminary discussion of the subject, the writer of that article (G.H Treitel, Fellow of Magdalen College, Oxford) proceeds to discuss the effect of the presumption of death, first on the question of ‘Succession’. We get there an illuminating survey of the English case law bearing on the subject.

144. Among others the discussion of the particular topic of succession makes it clear that the Court in its endeavour to decide a question of succession to be founded on the presumption of death must in applying decisions keep well in view as to whose disappearance gives rise to the dispute, whether of a testate or intestate person whose property is claimed or of a legatee or a heir or a reversioner or a remainderman through whom the claim is made.

145. Failure to keep in mind this distinction has, in my view, brought about a lot of confusion and conflict in decided cases, both in England and India at the risk of making my judgment long, I would quote here in extenso that part of the discussion which has a bearing on this case:—

“Succession. Suppose that A disappeared in 1940 and B died in 1945 leaving property to A. The question now is whether A survived B or whether his legacy has lapsed. Some of the older authorities lay down that, as A is not presumed to be dead till the end of the seven years, he must during that time be presumed alive. Others proceed on the view that A's life must be proved to have continued beyond the relevant date by those who base their title on that fact.

In the latter group the apparently simple logic of the first group of cases is discarded; the mere fact that a person is not presumed dead does not-mean that he is proved alive. It is the second group of cases that prevailed in Re Phene's Trusts (K) which decided that where the representatives of a legatee base a claim on the fact of his having survived the testator, the burden of proving such survivorship is on the representatives.

There is in such cases no presumption of life to and the representatives. The result has been castigated as an “impotent conclusion” which was “not a solution of the problem but an admission of its insolubility.” Per Lord Macmillan in Hickman v. Peacey, (1945) AC 304 at p. 321 (Z15). With respect it is difficult to see the force of this criticism. In a case like Re, Phene's Trusts (K) there would appear to be three possible criteria by which the result can be judged; justice, logic and certainty.

Considerations of justice do not appear to weigh more heavily on one side than on the other; logic has insufficient material on which to operate; so that only the demands on certainty remain to be satisfied. The decision in Re Phene's Trusts (K) does at least make for certainty. Admittedly, a decision to the opposite effect would make for equal certainty.

There would seem to be nothing to choose between the rule in Re, Phene's Trusts (K) and its converse. All that matters is that the one or the other should be definitely established.

Suppose next a variation of the case put above; A disappears in 1940 and B dies in 1945, but this time it is A who has left property to B. In such a case B's claim will fail for just as in the first case A's representatives were unable to prove that A was alive in 1945, so in the second case B's representatives are unable to prove that A was dead in 1945.

At first sight the two cases appear to be inconsistent for the first appears to proceed on the footing that A was not alive in 1945 and the second on the footing that he was then alive. In truth there is no such inconsistency; there is simply no evidence whether A was alive in 1945, so that the rule governing the original incidence of the burden of proof is decisive in each case.

It is frequently said that, whenever a claim is based on survivorship, such survivorship must be proved by “affirmative” evidence. This would seem to preclude the establishment of survivorship by the and of presumption. Such utterances, however, are to be found largely in cases dealing with the disappearance of a legatee. In this context they are accurate enough; they merely mean that there is no such presumption as is alleged by the representatives of the legatee that is, no presumption of life.

But there is nothing to prevent a legatee or his representatives from establishing survivorship by the and of the presumption of death where it is the testator who has disappeared. If A leaves property to B and disappears more than seven years before B's death, then surely B's representatives can invoke the presumption of death to establish B's survivorship.

Thus in Re Westbrook's Trusts, (1873) WN 167 (Z16) on the disappearance of an intestate his property was divided among such of his next-of-kin as were alive seven years after his disappearance, to the exclusion of those who died before the expiration of the seven years. This decision was criticised by North, J. in ‘Re Rhodes’ ‘Rhodes v. Rhodes’, (1887) 36 Ch D 536 (Z17), as being inconsistent with Re Phene's Trusts (K), but, with respect, the learned Judge fell into the error of applying reasoning that originated in a case concerned with the disappearance of a legatee to one concerned with the disappearance of an intestate.

It is submitted that the principle underlying Re, Westbrook's Trusts (Z16) is perfectly sound. There are, it is true, statements in the reports and in the books to the effect that whoever relies on the death of a person at any particular period must prove such death; but such statements must be understood to mean at any particular period within the seven years after the disappearance if the presumption of death is to be of any use in the field of succession.

The first formulation would lead to the result that if A left property to B and then disappeared B could, seven years later, claim that property but if B died eight years later without having yet made his claim a claim by his representatives would fail. This cannot possibly be the law.

Again, it has been sought to reduce the answer to problems of this kind to the following generalisation:

‘Whoever has to make out a case to establish a title which depends on the fact of either the death or the life of a person must prove that fact.’ In a restricted sense this is accurate enough. For example, if a reversioner claims property on the death of the tenant for life undoubtedly his claim depends on the death of a person and he must prove it.

Conversely, if his claim is opposed on the ground that it is statute-barred he must prove that the tenant for life was alive within the period of limitation and to that extent his claim depends on the life of a person at a certain time.”

146. This critical survey of English cases makes it clear that their decided trend is to support the view which found favour with the lower court and Joseph, J.

147. Now I pass on to the Indian case law. First, the two Privy Council cases cited by Govinda Pillai and Joseph, JJ., in their judgments and adverted to earlier by me may be dealt with. In Moolla Cassim v. Moolla Abdul Rahim (T) the appellant before the Board claimed a share in the property of his grand-father, a Mohammadan, who died in 1884. The appellant's father disappeared in 1870 and was not since heard of.

148. Under the Muslim Law he could not succeed unless he had shown that his father had survived his grand-father. Though the Board was not called upon to decide on whom the burden of proof was to establish that fact, their Lordships affirmed the decision of the Chief Court of Lower Burma in its appellate jurisdiction, which affirmed a decree of a Judge of that court in its original jurisdiction to the effect that the onus was on the appellant to prove-that his father had survived his grand-father and that as he failed to prove that fact the share he claimed would go to the brothers and sisters of the missing man as preferable heirs to the appellant.

149. To my mind the plaintiff in this case stands in the same position as the appellant in that case stood, that is, her success depended upon establishing that the person through whom she claimed was alive on the three relevant dates and I find it difficult to hold otherwise than that the onus of establishing it is on her. Joseph, J. has quoted in his judgment the relevant portion of the appellate judgment of the Lower Burma Court and I shall quote here the concluding portion alone of the discussion:

“Neither Section 107 nor Section 108 of the Evidence Act refers to the question whether a man was alive or dead on a specified prior date. Each section refers only to the case where the question is, whether a man is alive or dead not whether he was alive or dead at some previous time. There is therefore no presumption in this case that Moolla Ahmed (father) was alive, or that he was dead on the date of his father's death in 1884.

The question resolves itself into one of the burden of proof. The burden of proving that Moolla Ahmed (father) was alive on the date specified was one on the plaintiff-appellant, who affirmed it. He failed altogether to discharge the burden by shewing affirmatively that Moolla Ahmed (father) was alive on that date. His suit therefore could not succeed.”

150. Govinda Pillai, J., distinguishes the case on the ground that when the grand-father died 14 years had elapsed after the disappearance of his son and that therefore the latter should be deemed to have died before his father. The suit was brought only in 1901 and S. 108 does not permit a court to hold anything more than that on the date of the institution of the suit the grand-father was not alive. I cannot, therefore, agree that the case has been rightly distinguished.

151. In Lal Chand v. Mahant Ramrup (V) the Judicial Committee said that a notion which had obtained currency 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 was not correct and that the presumption is the same if the period exceeds seven years.

152. Their Lordships further said the period is one and continuous though it may be divisible into three or even four periods. Govinda Pillai, J., quotes relevant extracts from the decision of the Board, but seeks to distinguish the case on these terms:—

“Their Lordships however decided the case on another principle, namely that where the plaintiff claimed as heir to a life-holder who was not heard of since over seven years and defendants were in possession for over 12 years, Article 144, Limitation Act would apply, and that the plaintiff must prove the date of death within 12 years of the suit.

Hence this principle also does not go against the principle mentioned in para 11”.

153. I am afraid if the above were the basis of the decision of their Lordships, the authority of the decision is dead against the appellant. In their Lordships' opinion, if their decision had to be rendered on the basis that the former Mahant had disappeared in 1892 and there was absence of any intelligence about him since then, the authority of the decisions an Doe d v. Nepean (L) & In re Phene's Trusts (K) would have made the success of the plaintiff in that case impossible.

154. Their Lordships, however, thought their decision need not be rested upon any such strict view of the law as the plaintiff had himself led evidence in a previous litigation of 1895 and in the cases giving rise to their Lordships' decision that the previous Mahant died in April 1892.

155. The suits brought in 1916 were, therefore, clearly barred by time. The previous litigation ended on 30-11-1897 and the suits giving rise to the decision were brought on 30-11-1916 alleging that the Mahant should be deemed to have died on the expiration of seven years from 30-11-1897 as no particulars had been known regarding him for seven years from the date of the judgment. This, their Lordships held to be a wrong view of the law and they expressed themselves upon it as follows:—

“Putting the case therefore at its highest for the plaintiff that is excluding altogether from consideration both Harihar Gir's direct evidence of death and the plaintiff's belief in its truth the position is that Bhawan Gir has not been seen or heard of since the year 1895. If so, on the principles set up by the plaintiff, he must be presumed to be dead by the end of 1902. Accordingly these suits commenced only in 1916 are clearly statute barred as against the defendants.

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 plaintiff's pleader hazards his whole case, is still so widely held, although it has so often been shown to be mistaken.

The learned Judges of the High Court have in these suits pointed out the plaintiff's error. Yet, in another part of their judgment, if their Lordships are not mistaken, they have themselves unconsciously fallen into it………………. 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 Rango Balaji v. Mudiyeppa (R) 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 Phene's Trusts (K) run 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, deatn, which may not be presumed at any time during the period of seven years, may lie 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’

To resume, however, it is manifest that the attempt made by the plaintiff in his plaint to com ply with O. 7, R. 1(e) and set forth the date where his cause of action arose has failed him on the facts. The result is to disclose, so far as he is concerned, a very serious position. It is made plain by the plaint that as against him the defendants had, at the institution of the suits, been by themselves and their predecessors in adverse possession of the properties in question for more than 12 years-in point of fact since 1895 at least when the earlier litigation against them was commenced by the plaintiff, and which is the last year in which any one proposes that Bhawan Gir was seen alive.

The plaint itself accordingly discloses a state of things to which Article 144, Limitation Act is applicable. In such circumstances, it may well be that it is the obligation of the plaintiff by the law of India, as it is by the law of England, to satisfy the Court that his action is not barred by lapse of time. See as to India, Rajah Sahib Perhlad Sein v. Rajender Kishore Singh, 12 Moo Ind App 292 at p. 342 (PC) (Z18); Mahomed Ibrahim v. Morrison, 5 Cal 36 (Z19) as to England:—

“There is no doubt” said the Court of Queen's Bench in Doe d. Knight v. Nepean (L) “that the lessor of the plaintiff must recover by the strength of his own title and, in order to do so, must prove that he had a right to enter on the lands sought to be recovered within twenty years before ejectment brought.”

To all of which may be added the comment by Giffard L.J on Doe d. Knignt v. Nepean (L), that the onus of proving deatn of any person at any particular period must rest with the person to whose title that fact is essential. In re Phene's Trusts (K) at pp. 151-152.

On this footing therefore the plaintiff here would fail in the absence of evidence of the death of Bhawan Gir within twelve years before the institution of the suits.”

156. Though their Lordships did not rest their decision on this view of the law, there is no gainsaying that their opinion is entitled to the highest weight and judged by that the plaintiff's failure in this litigation is inevitable.

157. Among the decisions of the Indian High Courts the proud place of having forestalled the above Privy Council decision must go to the decision of the Bombay High Court in Rango Balaji v. Mudiyeppa (R). In Moolla Cassim v. Moolla Abdul Rahim (T) the appellate bench of the Lower Burma Chief Court followed this decision and the Privy Council approved it.

158. We have seen that in Lal Chand v. Mohant Ramrup Gir (V) the Judicial Committee cited the above Bombay decision with approval. A portion of the head note to that case may usefully be quoted here:

“One Shankar died in September, 1878, leaving a widow Raghubai. This year before his death his only son (Bala), a child of eight years old, had left his home and was never heard of again. A few days before his death, Shankar adopted the plaintiff (his nephew) and executed a deed of adoption, which stated that he had no hope that his son Bala was alive, and that he had, therefore, adopted the plaintiff.

The deed further declared the plaintiff to be the owner of all Shankar's property with all the rights of a natural son, but provided that, in the event of the lost son returning, he should have half. In 1852 the plaintiff as Shankar's adopted son brought this suit to recover some of Shankar's property, which was in the hands of the defendants, who claimed it as Shankar's heirs. They (inter alia) impeached we plaintiff's adoption.

Held that, in order to recover the property as the adopted son of Shankar, it lay on the plaintiff to prove a valid adoption. It was a condition precedent to prove that, at the date of the adoption, Shankar was without a son. It was, therefore, for the plaintiff to prove that Bala was then dead.

There was, at that time, no presumption that Bala was dead, and there being no evidence on the point it was impossible to say when he died, or consequently that the adoption was valid.”

159. The legal position enunciated by the learned Judges Parran, C.J and Candy, J. is explained as follows in the opening paragraphs of the head note:—

“Death is to be presumed after a certain interval (seven years); but there is no presumption as to the time of death. If, therefore, any one has to establish the precise period during these seven years at which a 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 continuance of life. There is no presumption of law that because a person was alive in 1877 therefore he was alive in 1878.”

160. Other relevant decisions of the Bombay High Court bearing on the point are to be found in Jayawant Jivanrao v. Ram Chandra Narayan, AIR 1916 Bom 300 (Z20) : AIR 1923 Bom 163 (S) and AIR 1923 Bom 208 (X). Though Govinda Pillai, J., has understood the decision in Jeshankar Revashankar…Defendant v. Bai Divali…Plaintiff . (A) as supporting his view point I feel constrained to state that in sending the case back for fresh disposal the learned Judges had specifically stated that the lower courts had ignored to consider whether the assignee from the reversioner had obtained any right and that unless that is established the assignee who brought the suit on the basis of the assignment had no right to redeem the property.

161. It is clearly stated in the judgment that would depend upon the proof relating to the death of the widow whether it was before or after the assignment. As pointed out by Joseph, J., this is the actual decision in the case. The learned Judges there followed Rango Balaji v. Mudiyeppa (R). The two decisions cited above from AIR 1923 Bom 163 (S) and AIR 1923 Bom 208 (X) understood that decision in the sense now explained.

162. Jayawant Jivanrao v. Ram Chandra Narayan (Z20) followed Neapean v. Doe d Knight (Z10) and held that the widow on the termination of whose estate the reversioner claimed to be entitled to the property, cannot be deemed to have died on the date of the suit and that in order to succeed in the action the plaintiff had to show that the suit was brought within 12 years of the widow's death. The suit was in fact instituted forty-six years since the widow disappeared and forty-one years after her whereabouts became unknown. Gopal Bhimji v. Manaji (S) explains certain observations of Scott, C.J, at p. 302 of the report of the above case as having no bearing on the actual decision of the case.

163. In Gopal Bhimji v. Manaji (S) it has been held that the presumption under S. 108, relates only to the fact of death, and has no reference whatever to the date of the death; that fact it was held must be proved like any other fact by the party who is interested in establishing that the person concerned died on or before a particular date. Ramchandra v. Keshav Dhondu (X) reiterates the same principle.

164. Next the Calcutta decisions may be referred to. Fani Bhushan v. Surjya Kanta (U) held that Section 103 of the Evidence Act raises no presumption as to the time of a person's death and that it was incumbent on him, who alleges that a person died at some antecedent date, to prove that fact by evidence Narki v. Lal Sahu (E) followed that case, though not without some hesitation. In the Goods of, Ganesh Das Aurora, AIR 1926 Cal 1056 (Z21) is yet another decision of the High Court of Calcutta reiterating the principle referred to above. C.C Ghose, J., said there that the question for which provision is made in S. 108 is whether a man is alive or dead at the time the question is raised and that there is no presumption as to the time of his death, and if any one seeks to establish the exact period of such person's death, he must do so by actual evidence.

165. So early as 1911 in 34 All 36 (I) a Full Bench of the Allahabad High Court had reviewed the English and Indian case law then available and overruling some earlier decisions of that Court authoritatively laid down that the presumption which is permissible under Section 108 of the Evidence Act, 1872, does not go further than the mere fact of death and that the rule is the same whether only seven years or more than seven years had elapsed.

166. Banerji, J., in a judgment in which he concur-ed with the leading judgment delivered by Richards, C.J, cited with approval a passage from Woodroffe and Ameer Ali's commentaries on the Indian Evidence Act reading as follows:—

“The rule is the same whether only seven years have elapsed. There is no presumption either as to the time of death within the period of seven years, or that the person died at conclusion of the period. The only presumption enacted by the section is that the party is dead at the time of suit, but there is no presumntion in any case as to the time of his death.”

167. Since this decision, the Allahabad High Court has consistently followed the view that a person claiming through another who has not been heard of for more than seven years must affirmatively prove the missing man was alive on the date property said to have come to him during the interval between his disappearance and the time when the question is raised.

168. The Position would be different, if the person whose death is in question is known to have property at the time of his disappearance and the claim relates to that property. The subsequent decisions of the Allahabad High Court which have to be noticed here are Rakhab Das v. Mt. Sheobai (Y); 124 Ind Cas 25 (All)(Z) and the appellate decision from the last-named case by Sulaiman, Ag. C.J and Sen, J., reported as Jangi Singh v. Gudri Singh, AIR 1932 All 365 (Z22). The head note to Rakhab Das v. Sheobai (Y) may usefully be quoted:—

“What the Court may presume under Section 108 of the Evidence Act, 1872 is confined to the factum of death. It cannot presume that, because the person has not been heard of, he died at any particular moment, or in any particular way, or from any particular cause. Muhammad Sharif v. Bande Ali (FB)(I) referred to.

In 1907 a Hindu aged 23, having been accused of embezzling money belonging to his employer, disappeared, having a childless wife. In 1916, the wife went through the form of adopting a son. The reversioner to her husband's property thereupon sued for a declaration that the adoption was void. That suit failed, because, although the court might be at liberty to presume (and did presume) that the husband was dead at the date of suit, it could not make the further presumption that he was dead at the date of the adoption.

In 1919 the wife made a further attempt to adopt, and on the strength of this adoption filed the present suit-for partition of the family property. The court of first instance, considering itself bound by the finding in the earlier suit to hold that the husband had died before 1916, and therefore before the adoption, decreed the claim.

Held on appeal by the defendant that the finding in the former suit as to the date of the husband's death could not amount to a res judicata, and that the only presumption which might be made in the present suit was, again, that the husband was dead at the time of the filing of the suit.”

169. In Madras the relevant authorities are Venkata Hanumanulu Garu v. Lachchamma, 14 Mad LJ 464 (Z23), Thiagaraja Mudaliar v. Kanthaswami Mudaliar, 19 Mad LJ 502 (Z24), Veeramma v. Chenna Reddi, AIR 1914 Mad 505 (Z25) : AIR 1918 Mad 455 (2)(J) & AIR 1921 Mad 285 (H) as supporting this view point but the learned Judges in that case have expressly said that it was not necessary for the plaintiff to show that the person lived during the seven years and that the point of time to which the death has to be referred could be placed indifferently either during the seven years or after the lapse of the seven years.

170. Apparently that is a case where the person whose death was in question had himself owned property when he disappeared and not a case where it was alleged property devolved on him during the interval. The decision contains a passage that the learned Judges were unable to follow the reasoning in Muhammad Shariff v. Bande Ali (PB)(I) and Ellamandayya v. Laskhmayya (J) and Govinda Pillai, J., has adverted to this comment, but neither the learned Madras Judges nor Govinda Pillai, J., cared to state in what respect they differed from the reasoning of the two above mentioned cases.

171. Bai Naicken v. Achama Naicken (H) opens with the following statement of law which will, in my view, support the conclusion which I take in this case. The learned Judges said:—

“It is true that it has been pointed out in several cases that while there is a presumption that a person is dead when he or she has not been heard of for seven years, there is no presumption as to the particular date on which he or she died (vide, Lord Denman, O.J) in Nepean v. Doe d Knight (Z10) Giffard, L.J in In re Phene's Trusts (K) and Venkata Hanumanulu Garu v. Lachehamma (Z23) and the burden of proving the actual date of death lies on the person who has to bring his suit after the death of the person who is unheard of, and within a particular period after the death.

But these remarks apply only when the point of time at which the death was to be placed falls necessarily within the seven years (vide the above cases & Haisbury's Laws of England, Vol. 13, p. 500, para, 692) or necessarily beyond the seven years, Veeramma v. Chenna Reddi (Z25).”

172. It clearly shows that the learned Judges were of the view that, when the plaintiff's success depended upon proof of the fact that the person through whom the claim was made lived to receive the property by inheritance or in other ways the plaintiff could succeed only on proof of that fact. Of the remaining Madras cases I propose to refer again only to Veeramma v. Chenna Reddi (Z25). The head note which correctly sets out the sense of the decision reads:—

“There is no presumption in law that a person was alive for seven years from the time when he was last heard of. Sections 107 and 108 of the Evidence Act deal with the procedure to be followed when a question is raised before a Court, as to whether a person is alive or dead, but do not lay down any presumption as to how long a man was alive or at what time he died.”

173. The following extract from the judgment of Sundara Ayyar and Sadasiva Ayyar, JJ., is really helpful and instructive for the purpose of the present case.

“The defendants put the plaintiff to the proof of her title and possession. The case that the plaintiff attempted to make out at the hearing was that she succeeded to the house as the heir of her husband. No positive evidence was adduced to show that her husband survived her father-in-law. She could not succeed unless the Court found that she did so.

It is argued by the learned Vakil for the appellant that the Appellate Court was bound to presume that her husband lived for a period of seven years after he left the village and that as the father-in law died before the expiration of the seven years the husband must be taken to have survived him. Reliance is placed on the combined effect of Sections 107 and 108 of the Evidence Act.

The former section states that if a person is proved to have lived within a period of 30 years and the question is whether he is alive or dead the onus is on the party who asserts that he is dead. This is qualified by S. 108 which lays down that when it is proved that a person 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 on the person who affirms it.

It is argued that inasmuch as under S. 107 it is enough to prove that a man was alive within 30 years to throw the onus of proving his death on the party who asserts it there is a presumption that he lived during the 30 years and that S. 108 modifies it only where it is proved that the person was not heard of for seven years. We are unable to agree with the appellant's vakil as to the meaning to be put on S. 107.

But Ss. 107 and 108 deal with the procedure to be followed when a question is raised before a Court as to whether a person is alive or dead. Neither of these sections in our opinion lays down any presumption as to how long a man was alive or at what time he died. The contention for the appellant is not supported by any Indian authority cited before us.

On the other hand, the view we take is supported by the pronouncement of the Calcutta High Court in Narki v. Lal Sahu (E) and of the Allahabad High Court in a recent Full Bench decision in Muhammad Sharif v. Bande Ali (FB)(I).”

174. The leading authority of the Lahore High Court on the subject is the decision in Punjab v. Natha (FB)(Z7) wherein overruling some prior decisions of that court a Full Bench held that where a person has not been heard of for seven years when a suit is instituted, S. 108 comes into operation and raises a presumption that at the institution of the suit he was dead, but that no presumption arises as to the date of his death, which has to be proved by the party whose claim depends upon it in the same way as any other relevant fact in the case.

175. Tani v. Rikhi Ram, AIR 1920 Lah 191 (Z26) which the decision in 64 Ind Cas 468 (Lah)(B) followed is expressly overruled by the Full Bench. Govinda Pillai, J., has cited with approval the latter case in support of the proposition that a presumption of continuance of life existed during the first seven years of a person's disappearance.

176. Earlier to Punjab v. Natha (FB)(Z7) in Feteh Ali v. Ahmad Din, AIR 1927 Lah 284 (Z27), Addison, ??? J., had expressed the same view as that the Full Bench took. The East Punjab High Court's opinion is also the same. See AIR 1949 EP 267 (Z9). Teja Singh, J., (as he then was) who delivered the decision of the Division Bench which heard the case said:—

“According to Section 108 of the Evidence Act, this only raises the presumption regarding death but not about the time of death which must be proved by other evidence. In this connexion I invite reference no a Bench decision of this Court in R.S.A No. 743 of 1947 (EP)(Z28) to which I was a party.

It was held in that case that S. 108 has nothing to do with the time of death of a person and when a plaintiff comes to Court on the allegation that the person to whose property he wishes to succeed died on a particular date, it is for him to establish this fact. It was also pointed out in that case that the law laid down in S. 108 is based upon the well-known English case (1870) 5 Ch A 139 (K) in which it was held that 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.

In the present case, since the plaintiff lays claim to the share of Karam Singh the onus lay upon him to prove that Karam Singh died after Dipa but during the life-time of Chanda, with the result that Chanda succeeded to him, and he being the collaeral of Chanda had the right to succeed to that land in preference to Mt. Harnam Kaur.

In this he has signally failed. Mr. Dev Raj Sawhney argued that the reason why his client did not prove the date of Karam Singh's death was that the point was not put in issue and he did not feel called upon to adduce any evidence thereon and he urged that the case should be remanded for this purpose.

In my judgment, there is no force in this contention because the plaintiff came to Court with the allegation that he was entitled to succeed to he land both of Dipa and Karam Singh & in order that Karam Singh's land should devolve upon him it was for him to establish that Chanda succeeded to it.”

177. In AIR 1934 Oudh 298 (Z8) a Full Bench of the Oudh Chief Court takes the same view of the question as the decisions so far referred to by me. The head note to the case reads:—

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

178. A word may now be said about the decision of the Peshawar Judicial Commissioner's Court reported in AIR 1944 Pesh 29 (D) referred to both by Govinda Pillai, J., and Joseph, J. I do not understand that decision as supporting the position of the plaintiff-appellant in this case.

179. Except for an unhappy passage occurring in the concluding part of the judgment (quoted by Joseph, in his judgment) to the effect that Dosa, whose state was in dispute, must be presumed to have did on the date of the institution of the suit, thee decision accords with the view I adopt here. Dosa's hereabouts remained unknown since 1922 and his sister's children claimed the estate in the right of their mother, who died in 1941 sometime prior to the suit.

180. The decision of all the three courts through which the case passed was that since the only presumption that could, in the circumstances of the case, be drawn was that Dosa was not alive on the date of the institution of the suit, the plaintiffs must fail as their mother died before the date on which Dosa could be presumed to be dead. Earlier to the passage quoted from that decision by Joseph, J., the learned Judge in that case had said:—

“……but if no one can prove any specific date then the Court shall draw a presumption that he was dead on the date of the institution of the suit.”

181. As noticed by Joseph, J., the subsequent statement of the learned Peshawar Judge is rather unhappily worded. The learned Judge indeed followed some of the authorities which are cited in this judgment and none of them says that when the presumption under S. 108 is called into play, the person whose death is in question should be presumed to have died on the date of the institution of the suit.

182. In AIR 1953 Trav C 114 (G) to which I was a party, no question of invoking the presumption under S. 108 really arose, though it followed the Peshawar case, notwithstanding the unhappy expression occurring there and adverted to above. The decision of this Court stated that, when a person is not heard of for seven years the presumption that arises under Section 108 of the Evidence Act is that he is dead at the time when the question is raised, namely, the date of the suit. The erstwhile Travancore nigh Court took the same view in 49 Trav LR 32 (F).

183. The position deducible from the long line of decisions and other authorities cited by me in this judgment is that in order that the plaintiff should succeed she should have established by evidence that, Sadasivan, her husband, was alive to receive his share when the sub-tarwad ??? the division, when his grand-mother died and on the date or the death of his fainer. Admittedly there is no proof on these matters and therefore, agreeing with the decision or the learned District Judge and the judgment of Joseph, J., I dismiss the appeal. In the circumstances of the case there will be no order for costs. The memorandum of cross-objection preferred by respondent 1 challenging the lower court's decision disallowing costs to him, will also stand dismissed.

184. Appeal dismissed.