PONDURI ADEYYA Vs. JALADI BURREYYA

JUDGEMENT

(1.) This is an appeal against an order of remand passed by the District Judge of Guntur in a suit brought by the plaintiffs to recover the properties of one Tirupathayya deceased as the persons entitled to them as his heirs or nearest reversioners. The plaintiffs case is that their father Kotayya and the deceased Tirupathayya's father, Virayya were divided brothers, that Virayya died long ago, that Tirupathayya died nine months before suit and that their father Kotayya had not been heard of for nearly ten years before the date of suit. They therefore claimed that it should be presumed that Kotayya was dead and that they were thus the nearest reversioners to Tirupathayya.

(2.) Defendants denied the allegation that Kotayya was not heard of for some years, and on that an issue was framed, "whether plaintiff's father Kotayya was not heard of for ten years as alleged in the plaint." The District Munsif tried this issue and held that, even if Kotayya had not been heard of for ten years, there was no presumption as to the exact date of his death and that, as plaintiffs were claiming as the heirs of Tirupathayya, they were bound to show that Kotayya died before Tirupathayya, and in that view of the issue, he dismissed the suit.

(3.) The District Judge has now held in appeal on the question of fact that Kotayya was not heard of for over ten years and that plaintiffs are therefore the nearest reversioners to the deceased Tirupathayya, and has remanded the case for disposal on the remaining issues raised. It is difficult to see exactly what importance there is in the fact that Kotayya died before Tirupathayya. It makes no difference in the rights of the plaintiffs in this case. So far as appears from the allegations in the plaint and in the written statement, whether Kotayya should be taken as dead before or after, plaintiffs will be the persons entitled to succeed. It is not alleged anywhere that there are other heirs who would come in any event. If we apply the presumption that arises under Section 107 of the Evidence Act that no doubt does not enable us to say exactly when Kotayya should be taken to have died. See Veeramma V/s. Chenna Rcddy (1912) I.L.R. 37 Mad. 440, Muhammad Sharif V/s. Bunde Ali (1911) I.L.R. 34 All. 36, and Nurke V/s. Lal Sahu (1909) I.L.R. 37 Cal. 103. But it certainly enables us to say that before the date of the suit he must be treated as dead. That being so, plaintiffs would come in as heirs of Tirupathayya or of their own father and be entitled to sue.