SHANKAREPPA Vs. SHIVARUDRAPPA

JUDGEMENT

(1.) This appeal which raises an interesting question of law about which there is considerable conflict of judicial opinion was referred to a Bench by Kalagate, J and therefore it is before us. In this appeal the true scope of Section 107 of the Evidence Act comes up for consideration.

(2.) The facts of the case are no more in dispute. Both the Courts below have concurrently come to the conclusion that Parappa the propositus died a few years prior to the suit. He had four sons, viz., Irappa, Maharudrappa, Shivalingappa and Mallappa. Even during the lifetime of Irappa there was a partition in his family. Under the partition the family properties were divided only between the four sons. The two survey numbers, viz., 577/2 and 579/2 of Sattigeri village in Belgaum District had been given to Parappa for his maintenance. In other words these two survey numbers remain undivided. The evidence discloses that Irappa was slightly demented; that he left the family house long time back and that he had not been heard of for about twenty years prior to this suit. At the time he disappeared he had left behind him his wife Somawwa and a young son. That son died 2 or 3 years after Irappa disappeared. Thereafter In the year 1950 Somawwa adopted the plaintiff to her husband Irappa, assuming that Irappa is dead. After the adoption in question the plaintiff brought suit No. 143/1954 on the file of the Civil Judge, Junior Division at Bailhongal claiming half share in survey numbers 577/2 and 579/2 on the allegation that he had purchased the 1/4th share of Maharudrappa and that he is entitled to a further 1/4th share as the adopted son of Irappa. In that suit the Court granted only a 1/4th share to the plaintiff. His claim as the adopted son of Irappa was negatived as the Court was of the opinion that he had not satisfactorily established that Irappa was dead on the date of his adoption.

(3.) In view of the decision in Suit No. 143/1954 Somawwa again adopted the plaintiff on 15-8-1955. On the basis of that adoption the plaintiff has brought the present suit. Both the Courts below have held that the factum of adoption is proved. The trial Court decreed t-he plaintiff's case. In appeal the plaintiff's suit was dismissed on the ground that the evidence on record is insufficient to establish that Irappa was dead on or before 15-8-1955, i.e., the date of adoption. The first appellate Court has agreed with the trial Court that for about 20 years prior to the adoption, Irappa was not heard of by persons who should have heard of him if he was alive; but, in its view the only presumption that could be drawn under Section 108 of the Evidence Act, if the requirements laid down are satisfied, is that the person whose death is in issue is presumed to have been dead on. the date of the suit. That presumption according to the first appellate Court is not sufficient to prove that Irappa was dead on the date of the adoption. The question for our decision is whether the view of the law taken by the first appellate Court is correct.