GOPAL BHIMJI AVTE Vs. MANAJI GANUJI PADVAL

JUDGEMENT

(1.) The facts relating to this second appeal are these: One Rakhma was the owner of the property in suit. He is said to have disappeared about the year 1898 or 1899, and has not been heard of since then. In 1908 the step-grandmother of Rakhma sold the property to one Ramji, who in his turn sold it in 1914 to the present plain tiff No. 1. The plaintiffs filed this suit against the defendants alleging that they were dispossessed by them sometime after they had obtained possession of the land, and that though they had succeeded in obtaining possession under the decree in a suit under Section 9 of the Specific Relief Act, as that decree was ultimately reversed, the defendants got back the possession in April 1917. The defendant No. 1 appeared. The other defendants did not appear. The contention raised by him was that the property belonged really to his nephew, Rakhma: that he was last heard of in 1906; that the property had come into his, possession from Rakhma; that Ahilau, the step-grandmother of Rakhma who had sold the property to Ramji had no right to do so, and that the claim was barred by limitation. Various issues were raised, and the Trial Court found that the plaintiff had purchased the land from Ramji, that Ramji had purchased from Ahilau, and that Ahilau was competent to convey the property to Ramji in 1908. In the result a decree was passed against defendant No. 1 for possession of the property.

(2.) The defendant No. 1 appealed, and the Appellate Court held that it was not shown by the plaintiff that Rakhma was dead before the year 1908, that no presumption under Section 108 of the Indian Evidence Act could be made in favour of the plaintiff that Rakhma died at the end of the first seven years after he was last heard of, but that he must prove the date of his death in order to establish affirmatively that at the date of the conveyance by Ahilau in favour of Ramji in 1908 Rakhma was dead. In declining to draw the presimiption in favour of the death of Rakhma having taken place at me end of the seven years after Rakhma was last heard of, the lower Appellate Court relied upon certain decisions: and as there was no other proof of Rakhma having died before 1908 the lower Appellate Court reversed the decree and dismissed the plaintiffs suit.

(3.) The plaintiff No. 1 has now appealed to this Court, and it is urged on his behalf that the lower Appellate Court has not properly applied the provisions of Section 108 of the Evidence Act, and has erred in not drawing the presumption that Rakhma died seven years after he was last heard of, i.e., sometime before 1908, and that it ought to have thrown upon the defendants the burden of proving that he was alive at that date. In support of this contention Diwan Bahadur Rao has relied upon the rule of English Law as stated in Halsbury's Laws of England, Volume XIII, page 500, Taylor on Evidence, page 192, 10 Edition, and also upon certain English decisions, of which In re Phehe's Trusts (1870) 5 Ch. 139 : 39 L.J. Ch. 316 : 22 L.T. 111 : 18 W.R. 303 may be mentioned as a type. He also relies upon the decision in Jayawant Jivanrao V/s. Rdmchandra Naray an Joshi 33 Ind. Cas. 484 : 40 B. 239 : 18 Bom. L.R. 14