Lallubhai Shah, Kt., Acting C.J.
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-grand-mother of Rakhma sold the property to one Ramji, who in his turn sold it in 1914 to the present plaintiff No. 1. The plaintiffs filed this suit against the defendants alleging that they were dispossesped 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 presumption in favour of the death of Rakhma having taken place at the 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 1903 the lower appellate Court reversed the decree and dismissed the plaintiff's 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 Indian 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 Dewan Bahadur Rao has relied upon the rule of English law as stated in Halsbury's Laws of England, Vol. XIII, p. 500, Taylor on Evidence, 10th Ed, p. 192, and also upon certain English decisions, of which In re Phene's Trusts (1870) L.R. 5 Ch. 139 may be mentioned as a type. He also relies upon the decision in Jayawant v. Ramchandra I.L.R. (1915) 40 Bom. 239 : 18 Bom. L.R. 14
4. It is urged, on the other hand, that the lower appellate Court was wrong in assuming that Rakhma was last heard of in 1898 or thereabout, and that there was evidence to show that ha was last heard of somewhere in 1905. It is further urged that the decision in Jayawant v. Ramchandra does not conflict with the other Indian decisions which are all in favour of the view that Section 108 of the Indian Evidence Act enables a Court to presume that a particular man who has not been heard of lot more than seven years is dead unless the contrary is proved and that it justifies no presumption at all an to the date of his death, Reliance is placed on behalf of the respondents on the decisions in Narki v. Lal Sahu I.L.R. (1909) Cal. 103; Muhammad Sharif v. Bande Ali I.L.R. (1911) All. 36; Narayan v. Shriniwas (1905) 8 Bom. L.R. 226 and Jeshankar v. Bai Divali. (1919) 22 Bom L.R. 771
5. It may be mentioned at once that the trial Court found as a fact on a consideration of the evidence in the case that Rakhma disappeared in or about 1898, and has not been hoard of since then by any of the persons who would hear of him if he were alive. The appellate Court has accepted that fact. It says that according to the plaintiffs he disappeared about twenty years ago and was unheard of during the interval by his relatives. It is not open to the respondents now to contend that he was last heard of somewhere in 1905 as it is entirely a matter of evidence. The contentions of the parties must be considered on the footing that Rakhma was last heard of in 1898 or thereabout. I may also mention that Ahilau died about the year 1915, though the exact date of her death has not been stated, and is not material.
6. As regards the presumption under Section 108 of the Indian Evidence Act, it seems tome that it relates to a presumption as to the fact of death, and has no reference whatever to the date of the death. When the present suit was filed in 1917, it Was open to the Court on proof of the fact that Rakhma had not been heard of for more than seven years, to presume, unless the contrary was shown by the other side, that Rakhma was dead. But Section 108 does not justify any presumption as to the date of that person's death, that fact must be proved like any other fact by the party who is interested in establishing that he died on or before a particular date. The onus of proving that the death took place on or before a particular date would lie upon that party who has to establish it in order to succeed, That is the view which is taken in all the Indian decisions upon which reliance is placed on behalf of the respondents. The decision in Jayawant v. Ramchandra does not help the appellant. It is there pointed out that the plaintiff reversioner, who had tiled a suit long after the expiry of the seven years, after the person concerned was last heard of, was required to establish affirmatively that the estate had fallen into possession within twelve years prior to the date of the suit. If any presumption had been made in that case that Rangubai was dead seven years after the expiry of her having been last heard of, she would have been presumed to have been dead more than twelve years before the suit unless the plaintiff could establish that she was alive up to some time within twelve years prior to the suit: and in any case the burden of proving that he had filed his suit within twelve years from the date of the widow's death would be upon him. The decision in that case, therefore, does not in any way conflict with the view taken in Muhammad Sharif v. Bande Ali; Narayan v. Shrinivas and Jeshankar v. Bai Divali. It is true that there are certain observations in Jayavant v. Ramchandra at p. 247 which may appear to show at first Bight that the presumption was not confined merely to the fact of death, but extended to the date of the death after the expiry of the seven years. It seems to me, however, that the observations in that case which have been relied upon by Dewan Bahadur Rao must be read with reference to the facts of that case ; and it is pointed out that in holding that the plaintiff had to prove affirmatively that he had brought his suit within twelve years from the actual death of the widow, the decision did not run counter to any Indian decision upon Section 108 of the Indian Evidence Act. It was not intended to lay down any rule in conflict with the decision which were referred to in the course of the arguments in that case ; and I may add as a party to that decision that in my opinion it does not lay down any rule which conflicts with the other decisions of the Indian Courts.
7. As regards the English rule which has been referred to in the course of the argument as justifying a presumption at the end of seven years after the person is last heard of, as to the fact of his death, no decision has been cited by Mr. Rao, in which the material date, at which it was necessary to know whether a particular person was dead or not, fell after the expiry of the period of seven years. In most of the decisions cited by the learned pleader, and in some others which I have seen, the material date happened to be covered by the period of seven years, and the Courts held that there was no presumption that the death took place either at the beginning or at the end of that period, but that it must be proved affirmatively like any other fact as to when a person died during that period. It is quite true that the rule as stated in the texts referred to apparently lends support to the contention of the appellant to a certain extent that after the expiry of seven years the presumption should be made in favour of the death, If that presumption is made in the particular case, Rakhma must be presumed to have been dead before 1908, unless the contrary is established by the defendants. In the absence, however, of any express decision, I am not clear that even according to the English rule as to the burden of proof on this point, apart from any statutory provision, as for example as regards the offence of bigamy, on the facts of the present case the Court would assume that Rakhma was dead before 1908. If the observations in In re Phene's Trusts and in Nepean v. Doe d. Knight (1837) 2 M. & W. 894 are read without relation to the facts of the case, they may apparently support the contention ; but in both these cases, as in several other cases, the material date was covered by the period of seven years, and, therefore, they do not necessarily help the appellant in establishing that the presumption should be made as to the date of Rakhma's death as suggested on his behalf.
8. As regards the Indian decisions I have already stated that they are uniformly against the appellant's contention, and even the decision in Jayavant v. Ramchandra does not help him, The decision in Moolla Cassim v. Moolla Abdul Rahim (1904) L.R. 32 IndAp 177 does not appear to me to he decisive of the present question having regard to the facts of the case though, so far as it goes, it is consistent with the view taken by the Indian Courts.
9. Assuming that the English rule on this point would support the appellant's contention, having regard to the wording of Section 108, as also to the current of Indian decisions, I am satisfied that in the present case the only presumption that the plaintiff could invite the Court to make in his favour is that Rakhma was dead. It is for him to establish his title, and for that purpose it is essential for him to establish that before 1908 Rakhma was dead, and that the grandmother Ahilau was entitled to sell the property as th6 heir of Rakhma at that date. There is no evidence on that point; and I do not think that the appellant could ask the Court to presume under Section 108 that because the period of seven years had expired before 1908, Rakhma could be presumed to have been dead by that time. The fact must be proved by evidence; and as the plaintiff has not adduced any evidence on the point, it seems to ma that he must be held to have failed to establish his title derived through Ahilau. The lower appellate Court was right in declining to presume that Rakhma was dead before 1908. I would, therefore, dismiss the appeal and confirm the decree of the lower appellate Court with costs.
10. The facts of this case, as found by the Courts below are shortly as follows:
The property in suit belonged to one Rakhma. This Rakhma disappeared twenty years before the filing of the suit (December 5, 1917). In 1908 Ahilau, the next heir to Rakhma, sold the property to Ramji-Ramji in turn sold it to plaintiff-Ahilau was in possession in 1908. Defendants are now in possession, admittedly without title. Ahilau died four yean before the suit.
The question is whether Ahilau could give a good title, and that depends on whether Rakhma predeceased Ahilau. I put the question in that form having regard to the possible applicability of the principle contained in Section 43 of the Transfer of Property Act. The Courts have plainly negatived the contention that the entry in the Record of Rights in 1905 establishes that Rakhma was then alive. It has been pointed out that a. 135 J of the Bombay Land Revenue Code has no application and in any case there are no grounds for questioning this finding of fact.
11. The case thus presented turns entirely on the point whether the burden of proof that Rakhma was dead in 1908 lies upon plaintiff or upon defendant. Plaintiff sues in ejectment and must make out his title. Therefore the burden is on him. But here we have to consider the special rules contained in Sections 107 and 108 of the Indian Evidence Act where it is shown that a man was alive within thirty years the burden of proving his death lies on the person who affirms it. Therefore as Rakhma was admittedly alive within twenty years of this date the burden of proving that he is dead lies on plaintiff. That is the effect of Section 107. The proviso to this rule is contained in Section 108 which runs as follows: 'Provided that when the question is whether a man is alive or dead and it is proved that he Las not been heard of for seven years by those who would naturally have beard of him if he had been alive the burden of proving that he is alive is shifted to the person who affirms it.
12. If these words are read apart from any preconceived notions of what the law is, or should be, the meaning is plain and it is that when the question before the Court is whether the man is alive or dead at the present time and it is proved that he has not been heard of for seven years before the suit by those who would naturally have heard of him if he had been alive the burden of proving that he is alive at the present time is shifted to the person who affirms it. The rule as to the burden of proof operates only when the question arises, that is to say, at the date of the suit. The result in the present suit would be that the burden of proving that Rakhma was dead at the date of the suit would lie upon the defendants. There ore m the absence of evidence the Court would hold that Rakhma was dead at that date. This result does not assist in any way the determination of the question whether Rakhma predeceased Ahilau who died four years before that date. This is the reasoning of the lower appellate Court, and it is supported by authority apart from the apparent meaning of the section itself. Assuming this is the correct view the result is that Section 108 is inapplicable and the question must be considered apart from it In that case there is no special rule in the Indian Evidence Act and be burden of proof would lie on plaintiff though it is proved that Rakhma disappeared twenty years ago, here is nothing to authorise the presumption that he was dead at the end of the first seven years of that period.
13. The point has been before this Court more than once. In Narayan v. Shriniwas (1905) 8 Bom. L.R. 226 the suit was filed in 1903 and the facts were that one Trimbak disappeared in 1868 and one Appa died in 1880. It was necessary to decide whether Trimbak predeceased Appa. Jenkins C.J. comments thus on Section 108 of the Indian Evidence Act:
That section, according to its term, does not require that the Court should hold the person dead at the expiration of the seven years therein indicated. But merely provides that the burden of proving that he is alive at the time of the suit is shifted to the person who affirms it.
14. Again, in Jeshankar v. Bai Divali (1919) 22 Bom. L.R. 771 the matter arose as follows: One Lallu disappeared in 1903 and in a suit filed in 1915 the question arose whether Lallu was alive or dead in 1913 It was held by Macleod O. J. and Heaton J. that the earliest date at which death could be presumed was the date when the suit was filed.
15. These decisions are binding on us and were it not for the decision of this Court next cited it would have been unnecessary perhaps to discuss the point at any length. In Jayawant v. Ramchandra I.L.R. (1915) 40 Bom. 239 : 18 Bom. L.R. 14 plaintiff sued to redeem and recover possession of mortgaged property. Plantiff suid as the reversioner of one Shamrao admittedly the owner of the property this Shamrao left him surviving & widowed daughter-in-law Rangubai who dealt with the property, It was alleged that the suit was barred by limitation and the burden being on plaintiff it was incumbent on him to prove that his suit which was filed in 1911 was within twelve years of Rangubai's death. In other words plaintiff had to prove that Rangubai was alive in 1899. Rangubai disappeared in 1870, and Scott C.J. appears to have held that there was a presumption that Rangubai was dead in 1877, But it must be remembered that the finding was that the suit was barred, and that the result would have been the same had the presumption been that Rangubai was dead at the date of the suit, for 'it lay on the plaintiff to show affirmatively that ho brought the suit within twelve years of the death of Rangubai. 'The presumption that she was dead at the date of the suit is quite consistent with her death more than twelve years before the suit. Upon either view of law plaintiff would have failed. The remarks in question are therefore not authoritative upon the point now before us.
16. The decisions of the Calcutta High Court are clear upon this point. (See Fani Bhushan Banerji v. Surjya Kanta Roy Chowdhry I.L.R. (1907) Cal. 25 and Narki v. Lal Sahu I.L.R. (1909) Cal. 103 and the Allahabad High Court have adopted the same view in a Full Bench decision (Muhammad Sharif v. Bande Ali I.L.R. (1911) All. 36. In view of this consensus of authorities the law in India must be taken to be settled upon this point. It may be remarked that the decision of the Privy Council in Moolla Cassim v. Moolla Abdul Rahim I.L.R. (1905) Cal. 173 hardly touches the matter. It is clear on the judgment of the Original Court and the Appellate Court that the finding of fact would have been the same which ever view of Section 108 had been adopted, and their Lordships of the Privy Council merely accept that finding.
17. It has, however, been argued that in England when a man has disappeared for more than seven years at the date of a suit a presumption will be made that he was dead at the expiry of the first seven years. If that were so, it would not alone be a sufficient reason for refusing to interpret Section 108 of the Indian Evidence Act according to its plain meaning. It will, however, be seen that the Allahabad High Court in the case already cited have expressed the view that the English law is the same as the law in India upon this point. There is a contrary opinion expressed by the Calcutta High Court in Narki v. Lal Sahu. The leading English case upon the point is In re Phene's Trusts. (1870) L.R. 5 Ch. 439. The rule to be discovered from that Case is as follows: The presumption of law relates only to the fact of death and the time of death whenever material must be the subject of distinct proof.' This rule does not differ from Section 108 of the Indian Evidence Act-and that is the general rule where no special statutory provision exists such as that contained in Section 494 of the Indian Penal Code or in the corresponding English Statute on the offence of bigamy.
18. The result in the present case must be that there is a presumption that Rakhma was dead at the date of the suit but that the party who wishes the Court to hold that he died before Ahilau must establish the fact by affirmative evidence. In other words we are satisfied that Rakhma is now dead but we do not know when he died.