1. The property in dispute in this case belonged to two brothers Ramchandra and Laxman, and it is not now disputed that they were joint. Ramchandra died first leaving a widow Bhagubai. Laxman died in 1902 leaving a widow Kalava, who succeeded to a widow's estate. She died in 1909, and after her came Bhagubai as the widow of gotraja sapinda. Bhagubai had a step-daughter Vithabai, and in the year 1918 she transferred the whole of her interest in the estate in suit to Vithabai, and shortly afterwards it is common ground that she obtained from Vithabai some document (not on record) which secured her a pension ofRs. 100 a year Bhagubai's interest was a life interest, and it is the case of the plaintiff that she died by drowning in the year 1921-19221 and that defendant No. 12 Shankar became entitled to the estate as the nearest heir of Laxman.
2. There was some litigation in connection with a mortgage in 1925. The land mortgaged is not now in dispute. The contest was between one Hazarat Patil who had purchased the equity of redemption from Shankar (defendant No. 12) and one Potdar an assignee of Vithabai's rights. In that suit it was held that Shankar's alienee could not succeed inasmuch as it was not proved that Bhagubai was dead. The suit ended in 1929, almost immediately and Shankar (defendant No. 12) sold his right, title and interest in the rest of the estate of Laxman to the present plaintiff, who filed the present suit on April 4, 1930, joining as defendants Vithabai who was in possession as defendant No. 1 and amongst others his vendor Shankar.
3. The learned Judge found on the evidence that (1) Bhagubai had not been heard of by persons who ought to have heard of her if she were alive for seven years prior to the sale to the plaintiff on May 1, 1929 (2) that Laxman, whose next reversioner was Shankar, had been the owner of the entire property, and (3) that Shankar was the owner at the date of the sale by him to the plaintiff. Accordingly he made a decree for the plaintiff for possession and mesne profits on the ground that Vithabai was in possession without title.
4. In this appeal the first question which we have to decide is whether Bhagubai is dead or may be presumed to, be dead. The plaintiff called as witnesses a number of persons from the village of Sankeshvar in which the property is situated and where Bhagubai's husband used to live and she herself used to live until, she disappeared. Their evidence has been attacked on the ground that they are Brahmins or that for other reasons they are interested in the plaintiff who is a Brahmin. I need not discuss these objections in detail since we find that the defendant Vithabai has not chosen to contest their evidence. She asserted in her pleadings and deposed later that Bhagubai had left Sankeshvar and gone on pilgrimage, that she had herself met her in 1929 (that is four years before she gave evidence) at the village of Kapshi, and that she had met her also at Nipani, but she never alleged at any time that Bhagubai had ever returned to Sankeshvar where she had lived before. It is in evidence that some time after Bhagubai transferred the property to Vithabai she (Vithabai) left Kapshi which was her husband's village and came to Sankeshvar. She had no connection with Kapshi except that it was her husband's village, and it is twenty-four miles from Sankeshvar. Bhagubai too had no other connection with Kapshi, and it is not understood why if she returned from pilgrimage at any time during the seven years before suit, she should have gone to Kapshi or to Nipani avoiding Sankeshvar where her husband had lived and her step-daughter was living. We think that there can be no doubt that the learned Judge was correct in his view that Vithabai's evidence and the statements made by her witnesses who said that they had seen, Bhagubai during the seven years following 1922 were false. The only evidence on which we have been asked: to rely is a post-card which is said to have been written by the witness Bhagoji from Pandharpur about three years before the suit. He deposed that he had written it on behalf of Bhagubai; but the learned Judge has held that it is not genuine. It may be genuine but it cannot be relied on for at the time there was in progress the litigation about the mortgage in which Bhagubai's existence was a relevant fact and it may have been written to create evidence in that suit.
5. I need not discuss the evidence any further. We are satisfied with the conclusion at which the learned Judge arrived that Bhagubai had not been seen or heard of in Sankeshvar where she would naturally have been heard of if she had1 been alive. We agree with him too that the evidence that she was drowned was unconvincing. Only one witness has deposed to having identified the body, and his statement is contradicted by another witness for the plaintiff. That only one witness has come forward to say that he saw the body is itself a justification for our believing the plaintiff's evidence generally for none of the witnesses seem to have exaggerated his case.
6. The learned Judge however was wrong in law. Section 107 of the Indian Evidence Act lays down a rule that there is presumption that 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. Section 108 adds a proviso 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. The burden of proving (as Bhagubai had not been heard of by her neighbours for seven years before suit) that she was alive was on Vithabai, and she failed to satisfy that burden. But it has been held by the Privy Council in Lalchand Marwri v. Ramrup Gir that when the Court has to determine the date of the death of a person who has not been heard of for a period of more than seven years, there is no presumption that he died at the end of the first seven years, or at any particular date. See also Jeshankar v. Bai Divali (1919) 22 Bom. L.R. 771. The presumption, then in this case is that Bhagubai was dead at the date of the suit and not at the date of the sale as the learned Subordinate Judge has held. Mr. G.N. Thakor accepts this view of the law and agrees that it is sufficient for the plaintiff's purpose.
7. The learned Counsel relies on Section 43 of the Transfer of Property Act. He contends that defendant No. 1's title was extinguished at the date of the suit, that it passed to defendant No. 12, the1 plaintiff's vendor, and that the sale of 1929 then operated on defendant No. 12's title and transferred it to the plaintiff, so that he acquired a right to sue at the moment when he filed his plaint. He points to the illustration to the section which reads :-A, a Hindu, who has separated from his father B, sells to C three fields,X, Y and Z, representing that A is authorized to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition ; but on B's dying A as heir obtains Z, C, not having rescinded the contract of sale, may require A to deliver Z to him. Mr. Kane and Dr. Ambedkar on the contrary rely on Section 6 of the same Act and maintain that the illustration is bad law since it contradicts that section. Section 6 provides that the chance of an heir apparent succeeding to an estate cannot be transferred. In 1929, they say, it must be presumed that Bhagubai was alive since this is clearly the effect of Section 107 of the Indian Evidence Act; and they claim that all that defendant No. 12 had to transfer at that date was a spes successionis, a mere hope which is not transferable property.
8. We have been referred to no exact parallel to this case in the authorized series of reports. In Sri Jagannada Raju v. Sri Rajah Prasada Rao I.L.R. (1915) Mad. 554. an attempt was made to obtain specfic performance of the contract by a rever-sioner and in Pilu v. Babaji I.L.R. (1909) Bom. 165 : 11 Bom. L.R. 1291. a reversioner had relinquished all her rights of inheritance. Neither of these cases is parallel. But we have found an exact parallel case in Shyam Narain v. Mongol Prasada : AIR1935All244 . The sale there as here was not the sale of a reversionary right but of an estate which the vendee believed to be property of the vendor; and a bench of the Allahabad High Court held that where an erroneous representation is made by a transferor that he is the full owner (though in fact he has merely a spes successionis), then if the transferor happens later to obtain the real interest, previous transfer can operate on that interest. We agree with, the reasoning of this case for we think that it reconciles Section 43 with Section 6, and it is our duty to reconcile these sections if possible and we would confine the operation of Section 6 to cases in which the transfer purports to be that of spes successionis, or where the transferee knows that the transferor has no more to give. On this view defendant Not 12's interest which accrued at the date of suit passed to the plaintiff who can evict any person in possession without title.
9. Mr. Kane has complained that this was not the case of the plaintiff in the lower Court and that his clients had no chance to meet it. It appears that the plaintiff did not plead Section 43, but it is not necessary for a party to plead law, and it is not clear why a person in possession without any title should be allowed to plead that there was no consideration or any other defence which might have been open to defendant No. 12 when he himself was on record and did not choose to make such defence.
10. The result is that this appeal must fail except that Vithabai will not have to pay any mesne profits. The decree of the lower Court is therefore amended in this respect. The plaintiff will get a decree for possession with such mesne profits as may be found to be due to him after the inquiry under Order XX, Rule 12, which has been ordered. The appellants must pay the plaintiff's costs of this appeal.