Norman Macleod, Kt., C.J.
1. This litigation has arisen from the disappearance of one Lallu, who had mortgaged his property to Motilal Nathu. In 1913 Jugal, the first cousin of Lallu, purported to sell the equity of redemption to Jeshankar Rewashankar, the 2nd defendant in this suit. In 1914 the 2nd defendant filed a suit against the 1st defendant for redemption, and in 1915 this suit was filed by Diwali the wife of Jamnadas, a more remote relation of Lallu than Jugal. It was admitted that she could only succeed if she could prove that the sale of the equity of redemption to the 2nd defendant was invalid. In the trial Court the plaintiff's suit was dismissed. In the lower appellate Court the plaintiff got a decree for redemption and the 2nd defendant was restrained from in any way interfering with the plaintiff redeeming and recovering possession of the plaint property as above directed.
2. One point to which the attention of the Court was not directed was whether the sale by Jugal in 1913 was a valid one, or whether it was invalid, not because he had ronounced the world and therefore could not succeed to Lallu's estate, but because there was no heir at all at that time of Lallu as no one could say that Lallu was dead. A man is presumed to be alive until he is dead. A person asserting that a particular man is dead has to prove it. If he could show that the man has not been heard of for seven years, then the Court will presume the death: see Bango Balaji v. Mudiyeppa ILR (1898) 23 Bom. 296. But the earliest date to which the death can be presumed can only be the date when the suit was filed. It cannot have a further retrospective effect. Therefore one must take it that Lallu was alive in 1913 unless it can be positively established that he was dead. That apparently no one could do. There can be no heir to a man who is still alive and Jugal had nothing to sell. The result would be that the 2nd defendant gets nothing by his sale-deed. But if he is in possession, then the plaintiff who wants to redeem the 1st defendant cannot oust the 2nd defendant in possession unless she can show that she is the nearest heir to Lallu. A question would then arise whether Jugal is the nearer heir or whether he has lost his inheritance by his having become a Yati. Therefore the best course for us to pursue is to set aside the whole of the proceedings and to remand the case to the trial Court for disposal after making Jugal a party. There will be three contesting parties to the right to redeem, Jugal, the plaintiff and the 2nd defendant, and if the 2nd defendant is in possession, then the plaintiff before she can succeed will have to show that Jugal has been ousted from inheritance. The plaintiff must have leave to amend the plaint and the defendants must have leave to submit further written statements. Costs costs in the suit.
3. think that is a proper order to make. The case has essentially really, although it does not so appear, been wrongly decided on a preliminary point, and this preliminary point is a misunderstanding of Sections 107 and 108 of the Indian Evidence Act. Owing to a misunderstanding of these sections the lower Courts have gone on the wrong lines in disposing of this matter. I think, therefore, we can properly regard it as a wrong disposal on a preliminary point and send back the case to the original Court to be tried over again. The misunderstanding is this. The Court seems to have thought, that if you prove that a man has not been heard of for seven years by those who would naturally have heard of him if he had been alive, then you have shown that he is to be regarded as dead after those seven years. But Section 107 of the Indian Evidence Act tells us that if a man is shown to have been alive within thirty years the burden of proving that he is dead is on the person who affirms it. Now in this case it is not denied that Lallu was alive within thirty years. So that as the suit started, it started on the presumption that he was alive, and it was for any one who asserted that he was dead to prove that ho was dead. The parties seeking to prove that he was dead failed to prove it, but they did prove that he had not been heard of for more than seven years, so that the burden of proof was shifted, as is provided by Section 108, and as thereafter the other side were unable to show that Lallu was alive, it was taken that he was dead. But that can only mean that he was taken to be dead either at the moment when the pronouncement was made by the Judge or at the time the suit was brought. For the issue was and is: whether Lallu is alive or dead? It was not whether he was alive or dead in 1913, that is at a date prior to the suit. If it had been it would have had to be proved that he was dead then and this has not been proved. It might be a matter for very nice argument to determine which of those times should be taken: the date of suit, or the date of judgment. But I see in their Commentary on the Law of Evidence, Ameer Ali and Wood-roffe state in a foot-note to Section 108 as follows: 'The only presumption indicated by the section is that a party is dead at the time of suit but there is no presumption in any case as to the time of his death.' I am content to follow that reading of the law, and so all that was proved here was that when the suit was brought Lallu was dead. The Courts, however, have thought that what was established was not merely that Lallu had died at some unknown period previously but at any rate that he was dead in 1913, and therefore, that Jugal at that time had succeeded to the property, or would have succeeded if he had not become a Sanyasi, and that if he succeeded to the property, he would have power to transfer the equity of redemption to defendant No. 2. The whole of that part of the decision of the lower Court is fallacious. The suit has become now so complicated by reason of the various parties interested, and the fact that there has been another redemption suit by defendant No. 2, that really the only possible way of getting a proper and clear disposal of the matters in dispute is by making the order which my Lord the Chief Justice has proposed and in which I concur.