MORRAMREDDI RAMI REDDI Vs. KUNDANALA ARAVINDAMMA

JUDGEMENT

(1.) Defendants 3 and 4 are the Appellants in this appeal filed against the decree and judgment in O.S.No.81 of 1974 on the file of the Subordinate Judge, Cuddapah. The suit was filed by the plaintiff who is the daughter of one Seshacharyulu. Kandalam Seshacharyulu had two wives. By the first wife, he had a son by name Ramanujacharyulu and a daughter, the plaintiff. After the death of his first wife, Seshacharyulu married his second wife and by that alliance he had a daughter.

(2.) Seshacharyulu died intestate on 2.11.1971 leaving behind him the plaintiff-daughter, the second wife-1st defendant and the daughter by his second wife-second defandant. Ramanujacharyulu's whereabouts were not known since the year 1966. After the death of Seshacharyulu, his second wife and the daughter had sold away certain properties to third parties. Now, the plaintiff-daughter filed a suit for declaration of her title to an extent of 3/4 share of the suit property, for recovery of posession and mense profits. The suit was dismissed as regards Item No.6 with which we are not concerned in this appeal. But the suit was decreed as regards Items 1 to 4. The suit Items 1 and 2 were purchased by the third defendant-first appellant in this appeal under Ex.B-4 dated 10.7.73 for a sum of Rs.8000/-. Item 3 was purchased by the 4th defendant on the same date for a sum of Rs.3000/-. The 4th defendant is the second appellant in this appeal. These properties have been sold by the first defendant-second wife of Seshacharyulu.

(3.) Aggrieved by the decree of the lowerCourt, the alienees from the second wife-first defendant in the suit, had filed this appeal. The point that arises in this appeal is rather too simple to admit any doubt or discussion. It is now accepted that the whereabouts of Ramanujacharyulu were unknown by the members of his family from the year 1965. Ex.A-3 is a letter written by Ramanujacharyulu to the plaintiff and that was dated 12.3.65 that was the last time when Ramanujacharyulu was heard of Thereafter, the parties were in agreement that Ramanujacharyulu was not heard of. It must, therefore, be held, applying the provisions of Section 108 of the Indian Evidence Act that Ramanujacharyulu was dead. But when did Ramanujacharyulu die? The plaintiff's case is that Ramanujacharyulu must be deemed in law to have been dead in the year of suit in 1974 which is subsequent to the date of the death of Seshacharyulu in the year 1971. If that were to be so, succession to the estate of Seshacharyulu would have opened up during the lifetime of Ramanujacharyulu and Ramanujacharyulu would have died after succeeding to his share. If Ramanujacharyulu had died after having succeeded to his share of property in the estate of late Seshacharyulu, the plaintiff would be entitled to succeed exclusively to the share of Ramanujacharyulu. Then the plaintiff would have been entitled to 3/4 share in the estate of Seshacharyulu. On the other hand, if it is not provided that Ramanujacharyulu died after the death of Seshacharyulu, the plaintiff would fail to get the share which would have otherwise belonged to Ramanujacharyulu. The plaintiff's suit is rested on the allegation of subsequent death of Ramanujacharyulu. But she did not prove it. She merely relied upon a presumption. Now, in this case as mentioned above, the lower Court found and it is not disputed here, that Ramanujacharyulu was not heard of from the year 1965. As Ramanujacharyulu was not heard of for over a period of seven years from the year 1965, it must b*e presumed that Ramanujacharyulu was dead. But the lower Court went further and held that the earliest point of time when Ramanujacharyulu was dead, must be presumed to be the date of the suit which was the year 1974. If that were to be so, it must be presumed that Ramanujacharyulu died after having succeeded to the estate of Seshacharyulu. If this finding is upheld the appellant's appeal should be dismissed. The only question, therefore, that arises for consideration is whether the lower Court's finding that Ramanujacharyulu should be presumed to have died after the death of his father, Seshacharyulu, is correctly made. I must say that answering this question, the lower Court acted erroneously. It must first be mentioned that the burden of proving the fact that Ramanujacharyulu died subsequent to the death of Seshacharyulu lies on the plaintiff, because she claims to succeed to the estate on that factual basis. It is clear that the plaintiff has not produced anyevidence to show when exactly Ramanujacharyulu died. The plaintiff should have failed. But she relied upon Section 108 of the Indian Evidence Act, as interpreted by a Division Bench of this Court, consisting of Viswanatha Sastry, J., and Bhimasankaram, J., reported in Ramamma v. Appayya, (1956) An.W.R. 137 holding that the person whose whereabouts had not been heard of for over a period of seven years should be presumed to have been dead at the earliest date of the filing of the suit. Following that judgment, the lower Court held that Ramanujacharyulu should be presumed to have died in 1974 because the suit was filed then. But, Mr. Narasimha Reddy, the learned Counsel for the Appellant, has attacked the validity of this finding. I think, he is absolutely correct and is fully supported both by the text of the Evidence Act and also by the decisions of this Court. Section 108 of the Indian Evidence Act, does not have anything to say on the question when a particular person is dead. It only says that when a person is not heard of, for a period of seven years by those who are expected to know about him, that person should be presumed to be dead. It does not go further and say that there any presumption as to the exact date of death. Section 108 of the Evidence .Act does not help us to fix the year of death. So, whenever it becomes necessary to establish in any particular; suit that a particular person, whose where abouts are not known for over seven; years, and who, therefore, may be presumed to be dead under Section 108 of the Indian Evidence Act, is dead on a particular date the party alleging that fact, viz., the specific date of his death must prove that fact. In other words, section 108 of the Indian Evidence Act, has nothing to do with laying down any presumption whatsoever as to the exact date of death of a person. This has been authoritatively laid down first by the Privy Council in Lal Chand Marwari v. Ramrup Gir and another, (1926) 53 I.A. 24 : 50 M.L.J. 289 : A.I.R. 1926 P.C. 9. The Privy Council in that case observed, quoting In re Phone's Trusts,. (1869) L.R. 5 C.H. 139: "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." The Privy Council, commenting upon the above passage observed: "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 is 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". Earlier, Their Lordships have observed: "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 alieve. There is no presumption at all as to when he died. That, like any other fact, is a matter of proof." This judgment of the Privy Council clearly says, in so many words, that there is no presumption as to the exact date of death and secondly that the exact date of death requires to be proved as a fact by any party relying upon that fact. This judgment of the Privy Council Lal Chand's case, (1926) 53 I.A. 24 has been fully refered to and followed in the judgment of the Division Bench of this Court reported in Ramamma v. Appayya, (1956) An.W.R. 137. In fact, the Division Bench judgment contains a categorical statement that under section 108 of the Evidence Act, as interpreted by the Privy Council, there is no presumption as to the exact date of death of any person. I quote the words of the Division Bench which read as follows: "The presumption under Section 108 of the Evidence Act merely extends to the fact of death at the expiration of seven years and not to the time of death at any particular period. There is no presumption that the death took place at the end of the period of seven years or at any other particular time within that period. The exact time of death is not a matter of presumption but of proof by evidence. The onus of proving that death took place at a particular time within the period of seven years lies on the person the claims a right to the establishment of which that fact is essential." Having said so, the Division Bench unfortunately allowed itself to make the following' observation on which the lower Court relied upon: "If the exact date of death is not proved, the earliest date on which death can be presumed under Section 108 of the Evidence Act is the date on which the suit was filed. The presumption under Section 108 cannot have a retrospective effect." These observations of the Division Bench which were followed by the lower Court, went directly contrary to the decision of the Privy Council although they fully support the plaintiff's case. But these observations are never followed in the Court as laying down the correct law. This is so firstly because that Section 108 of the Evidence Act has nothing to do as to the exact date of death and also because the Privy Council so interpreted Section 108 of the Evidence Act. A subsequent Division Bench consisting of Subba Rao, C.J., (as he then was) and Satyanarayana Raju, J., in Venkateswarlu v. Bapayya, (1957) 1 An.W.R. 55 : A.I.R. 1957 A.P. 380 had reiterated the view that there is no presumption that death took place at the end of seven years or at any particular time within that period. The subsequent Division Bench of Subba Rao, C.3., and Satyanarayana Raju, j., ruled "that the exact time of death is not a matter of presumption but to be proved by evidence and that the onus of proving that death took place at a particular time within the period of seven years lies on the person who claims a right for the establishment of which that fact is essential". These observations 'which are directly contrary to the observations made by the earlier Division Bench in Ramamma v. Appayya, (1956) An.W.R. 137 which are quoted above, are based not only on the above judgment of the Privy Coucil but also upon several decisions of the various High Courts on Section 108 of the Evidence Act. A learned single judge, Gopal Rao Ekbote, 3. (as he then was) noticed the confusion that the stray observation in the earlier Division Bench In T.R.Rathnam v. K.Varadarajulu, A . I. R . 1970 A.P. 246 held that in view of the judgment of the Privy Council Lal Chand's case, (1926) 53 I.A. 24 and the clear language of Section 108 of the Evidence Act, he would prefer to follow the later decision of the Division Bench consisting of Subba Rao, C.J., and Satyanarayana Raju, J., in Venkateswarlu. v. Bapayya, (1957) 1 An.W.R. 55. In T . R . R a t h n a m v. Varadarajulu, A.I.R. 1970 A.P. 246 Ekbote, J., reiterated the view that "the exact time of death is however not a matter of presumption but is a matter of evidence and the onus of proving that fact is not cast under Section 108 but is cast under the general principles of burden of proof. That death took place at any particular time whether prior to seven years before the suit was laid or within seven years prior to the said suit, lies upon the person who claims a right to the establishment of which the exact date of death of the said person is essential. There is no presumption that death took place at the close of seven years or earliest on the date of the institution of the suit. No provision of law warrants any such presumption". This is also the view which has been followed by a learned single Judge of the Madras High Court reported in H . J . Bhagat v. L.I.C., (1965) 2 M.L.J. 185 : 78 L.W. 347 : A.I.R. 1965 Mad. 440. No doubt, there is a judgment of the Bombay High Court reported in Jeshankar v. Bai Devali, A.I.R. 1920 Bom. 85 (2) which altogether struck a different note. But that judgment which earlier to the decision of the Privy Council should be taken to have been overruled impliedly by the Privy Council. It was delivered five years prior to the decision of the Privy Council and, therefore, it can no longer be 'held to be a good law. In view of what the Privy Council said in Lal Chand Marwari v. Ramrup Gir and another, (1926) 53 I.A. 24, I must set aside the finding of the lower Court that the death of Ramanujacharyulu should be presumed to have taken place some time after 1971 when Seshacharyulu died. The date of death can only be known to man, neither to God nor to Law. I accordingly set aside, the finding of the lower Court on the ground that the lower Court based that finding only upon a presumption of law but not on any proof of fact. If the above finding is set aside, the claim of the plaintiff to succeed to the estate of Ramanujacharyulu cannot be upheld. The result is that this appeal should be allowed and the decree of the Lower Court should be modified to the extent indicated above. The lower Court shall now divide the properties keeping the equities in view, between the plaintiff and the second wife and her daughter. In the peculiar circumstances of the case, I make no order as to costs in this Court. Appeal allowed.