BALAMBAL Vs. KANNAMMAL ALIAS PAZHANIAMMAL DIED

JUDGEMENT

(1.) THE above second appeal has been filed by the second defendant in O. S. No. 70 of 1977 on the file of the I Additional Subordinate judge, Pondi cherry.

(2.) THE second defendant- appellant is indisputably the daughter of late Sambasiva Pathar through his first wife Angammal , who was said to have died in 1931. THEreafter Sambasiva Pathar married for the second time one Saraswathi who had no issues and after her death, married Kannammal the plaintiff who was said to have begotten one son by name Ramalingam and one daughter Kokilamballe the first defendant. Sambasiva Pathar died in 1952 and Ramalingam was the only male issue. He was said to be studying in Loyola College of Madras and from there he was missing from 27. 2. 1964. Neither he returned any time thereafter nor was he heard of by his mother, his relatives and friends in spite of his mother-the plaintiff having taken all steps to find out her only son. It was also claimed that the mother not only caused search and enquiries to be made in the house of relatives but wide publicity in the Press was also given in addition to the complaints made to the police and the correspondence entertained with the college authorities at Madras, and also the Ministry of home Affairs, New Delhi and with several Mutts. Since Ramalinga m disappeared without giving any clue of his existence till the date of the suit, he was presumed to be dead as per law. During the absence of the said Ramalinga m , the plaintiff had to administer all the properties of her son and accordingly she also obtained an order from the French Court appointing her as a court guardian, on 2. 12. 1966. But even after 10 years of the same, the whereabouts or the information as to existence of Ramalingam was not known. Taking advantage of the extension of the provisions of the Hindu Succession Act and Evidence Act to the Union territory of Pondicherry , the plaintiff has filed the suit in question for a declaration of the civil death of the plaintiff's only son and consequential declaration that the plain- tiff being the only heir of her son, is the absolute owner of the suit schedule properties.

(3.) MR. V. Prabakar , learned counsel appearing for the appellant contended regarding the maintainability of the suit in a different form and tangle altogether and though admittedly, such issue in them that Court was not urged before courts below having regard to the fact that the point sought to be urged by learned counsel for the appellant was a substantial question of law going to the root of the matter, I allowed him to argue the same and learned counsel for the respondents was also given sufficient time to meet the new aspect of the maintainability urged by learned counsel for the appellant. The sum and substance of the only ground of challenge projected and pursued at the time of hearing of the appeal is that the provisions contained in Sec s. 107 and 108 of the Indian Evidence Act are more procedural in nature delin - eating merely procedure or mode of proof to be adopted in case any dispute about the existence or otherwise of a person is involved and being a rule of procedure the presumption engrafted in Secs. 107 and 108 of the Evidence Act cannot by itself be the basis or part of the claim of substantial relief itself before a civil court and therefore, the very suit is liable to be dismissed.