KARTHYAYANI Vs. RAMAN

JUDGEMENT

(1.) The question raised in the Second Appeal is whether the decree in O. S. 91 of 1953 filed by the second defendant against Sankaran and the first defendant is valid and binding on the plaint items which belonged to Sankaran. O. S. 91 of 1953 is a suit to enforce a mortgage executed by Sankaran The plaintiff is the daughter of Sankaran. The mortgage was executed by Sankaran in 1122 to the second defendant, and immediately thereafter he left for Ceylon and according to the plaintiff he was not heard of thereafter and there is therefore a presumption under S.108 of the Evidence Act that he is dead. Though the learned Munsiff accepted the plea of the plaintiff the learned Judge overruled the same. The suit in O. S. 91 of 1953 was filed on 11-2-1953 and the decree therein is dated 19-5-1953. In execution of the decree the property was sold and purchased by the second defendant who subsequently transferred the same to defendants 3 and 4 for the benefit of the first defendant. The sale certificate is Ext. P 10 dated 4-11-1954 and the delivery receipt is Ext. P 11 dated 24-11-1954. The learned Judge took the view that though under S.108 of the Evidence Act there is a presumption that Sankaran is dead there is no presumption regarding the date of his death and the burden is upon the plaintiff to prove that Sankaran was dead on the date of the suit or on the date of the court sale and that plaintiff has not discharged the burden. The view taken by the court below is unexceptionable. In Sarkar on Evidence (Eleventh edition), page 932, it is observed:

(2.) It is seen from Ext. P 2 that Sankaran was alive in 1949. The filing of the suit and the court sale were all before the expiry of 7 years from the date of Ext. P 2, In these circumstances, the view taken by the court below is correct. The Second Appeal is dismissed but without costs.