RAM LAL Vs. RAM NIWAS

JUDGEMENT

(1.) THIS is a second appeal by the plaintiffs Ramlal minor and Madanlal in a suit for declaration against the judgment and decree of the Civil Judge, Tonk, dated the 6th August, 1953, reversing the judgment and decree of the Munsiff, Tonk and dismissing the plaintiffs' suit. The first appellant has filed the appeal through his next friend Madanlal.

(2.) THE following brief pedigree table which is not in dispute explains the relationship of the plaintiffs and the defendants Nos. 3 and 4 namely, Hariram and his son Ladu Ram and will be found helpful in understanding the contentions between the parties Shrilal Kishenlal Harbilas or Harvallabh Ramvallabh (died about 1932 A. D.) Ramdhan (died about 1910 A. D.) Govindram (died in 1946 A. D.) Ramratan (died issueless) Hariram (D. 3) Madanlal (P. 2) Ramlal (P. 1) Uttamram (alleged to have disappeared and not been heard of since about 1907 or 1908 A. D.) Ramlal Plaintiff No. 1 alleged to have been adopted ). Ladhuram (D. 4) Jalebiram

(3.) THE next question to determine is what are their respective shares. THE plaintiffs have claimed in their plaint that leaving aside defendants Nos. 1 and 2's half share, which is not disputed in the present case, out of the remaining half, plaintiff No. 1 Ramlal was entitled to one-fourth; and plaintiffs No. 2 and defendant No. 3 were entitled to the other quarter; in other words, each of the latter was entitled to one-eighth. THE trial court also came to the same conclusion. THE aforesaid view is obviously based on the assumption that Ramdhan's son Uttamram had disappeared some time about 1907 A. D. and must be presumed to have died at the end of seven years thereform, that is, about 1914 A. D. Reliance appears to have been placed in this connection upon sec. 107 and 108 of the Evidence Act. It was strenuously contended by leaned counsel for the defendants that, in the first place, it has not been alleged by the plaintiffs that Uttamram had died at any time before the present suit was filed, and secondly that it is wrong in law to say, even if any presumption of Uttamram's death were to be made, that he died in 1914 or thereabouts. Learned counsel placed his reliance on the decision of their Lordships of the Privy Council in Lalchand Marwari vs. Mahant Ramrup Gir (1 ). Sec. 107 and 108 of Evidence Act read as follows : " 107. When the question is whether a man is alive or dead and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. " " 103. Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him, if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. "