NARAYANA PILLAI Vs. VELAYUTHAN PILLAI

JUDGEMENT

(1.) THIS revision petition, though devoid of merits, raises a question of law. One Velayudhan Piliai, a lunatic, filed through his wife Lakshmi, as his next friend, o. S. No. 194 of 1122. (M. E) in the Sub Court, Nagarcoil, a suit for partition or family properties against the petitioner herein. During the course of the suit it was stated that Velayudhan had disappeared on 24-11-1948. Lakshmi complained that he had been spirited away by the petitioner but the latter repudiated the suggestion and even stated that he had reason to believe that the lunatic was still alive. The trial Court dismissed the suit on 25-11-1954. Lakshmi, continuing to represent Velayudham as his next friend, took up the matter in appeal to this court in A. S. No. 665 of 1956. No objection was taken to the maintainability of the appeal on the ground that Velayudham had died, and the appeal came up for hearing before Rajamannar C. J, and Veeraswami J. who by their judgment dated 14-9-1960 allowed the appeal and passed a preliminary decree for partition. It will be noticed that by the time the judgment in the appeal was delivered, more than seven years had elapsed since the disappearance of Velayudham, who, it is admitted now, never returned to Lakshmi thereafter. Atter the passing of the preliminary decree, steps were taken by Lakshmi to have a final decree passed. She also filed an execution petition for recovery of the costs. It was at that stage that the petitioner filed an application before the lower Court for declaring that the preliminary decree passed by this Court on 14-9-1960 was null and void, as the suit had abated, Velayudham being presumed to have died in the year 1955, that is, seven years after the date of his disappearance. The learned Subordinate Judge rejected that petition and hence this civil revision petition.

(2.) THE sole point for consideration is, whether it can now be presumed that this court had no jurisdiction to dispose of the appeal on the ground that one of the parties to the appeal, namely, Velayudhan, should be presumed to have died before the hearing thereof. The rule as to the burden of proving the death of a person is contained in Sections 107 and 108 of the Indian Evidence Act. They can be conveniently set out here:

(3.) IT is argued for the petitioner that as under Section 108 of the Evidence Act a man who has not been heard of for seven years should be presumed dead, one should presume that Velayudham was dead in the year 1955, and if so much can be accepted, the judgment in the appeal without impleading his legal representatives would be void. In support of this contention Mr. Rajagopala Aiyar who appeared for the petitioner has referred to a passage in Taylor on Evidence, 12th Edn. page 180, where the learned author has stated: