1. The point in this appeal is one of the onus of proof as to the date of the death of one Baji. The suit is an ejectment suit. The defendants have been in possession under a Court sale since 1889. The plaintiff, who is the appellant, relies for his title on a conveyance in 1910 by one Dwarkabai, who was a sister of Baji. The suit was brought as long ago as February 1911, and has already been remanded once by the High Court for an amendment of the pleadings. On that amended case, the plaintiff's case is that Annapurnabai, the wife of Baji, was a widow at the date of her death in 1908, and that Dwarka accordingly was a reversioner, and the plaintiff sues in right of Dwarka as reversioner. A further amendment was asked for on the remanded trial, which will be found in paragraph 28 of the judgment of the learned Trial Judge, viz., to add Dwarka as a co-plaintiff. But that amendment was refused.
2. Now the plaintiff is suing for possession, and the onus of proof is on him to make out his title to the property. It is clear that that property was at one time in the ownership of Baji, he being a son of one Anant, who died prior to 1872, Baji married Annapurnabai about 1872, and it appears that some time after that date he left the village. He apparently came back after two years, stayed only a couple of months, and then went away again. There is some conflict of evidence as to when he was last heard of, but it appears that on a judicial-enquiry held in Miscellaneous Application No. 64 of 1880, it was held that he was then alive. Next in a mortgage-deed of 1886, Exhibit 64, there is a recital that Baji was wandering from home for many years. That recital is relied on as showing that he had not been then heard of for over seven years, but the learned Judges came to the conclusion that that recital in the face of other evidence was not sufficient to establish that fact.
3. We come then to the question on whom the onus of proof lies. The appellant contends that defendants must prove that Baji was dead in 1889 when the defendants purchased the property. But it is clear, to my mind, that that is not the right way in which to begin the consideration of this case. Baji' is the, last person proved to have been the owner. If the plaintiff claims under some reversioner or heir of Baji, the onus is on him to establish his title. That being so, the plaintiff next asks the Court to presume that Baji was dead in 1910 when the plaintiff -purchased the property from Dwarka.
4. It has been held in a large number of cases in India, and only recently by this Appellate Court in Second Appeal No. 856 of 1920 [Gopal Bhimji Avte v. Manaji Ganuji Padval 81 Ind. Cas. 25 Bom. L.R. 134 A.I.R.1923 Bom. 163 that the only presumptions in Indian law as to the fact of death are contained in Sections 107 and 108 of the Evidence Act. It has further been held that Sections 107 and 108 only relate to the date when the suit was brought, that is to say, as to whether a man is alive or dead, as the case may be, at the date of the suit, and not at some particular period anterior to the suit. Accordingly on those decisions it would or might be presumed in the present case, that Baji was dead in 1911 when this suit was filed. But those decisions also establish that there is no presumption as to whether a particular person was dead at any time within the period in question. Consequently, stopping there, there would be no presumption that Baji was dead in 1910, because that was a date anterior to the date of the filing of the suit.
5. I may quote from what Mr. Justice Crump says in the above recent case. 'The result in the present suit would be that the burden of proving that Rakhama was dead at the date of the suit would lie upon the defendants. Therefore, in the absence of evidence the Court would hold that Rakhama was dead at that date. This result does not assist in any way the determination of the question whether Rakhama 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 that 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 the burden of proof would lie on plaintiff. Though it is proved that Rakhama disappeared twenty years ago, there is nothing to authorise the presumption that he was dead at the end of the first seven years of that period.'
6. Assuming then in favour of the present appellant that Section 107 does not apply for the above reason or for the reason that it is not shown that the appellant was alive within 30 years from the date of the suit, and assuming further in favour of the appellant that Section 108 is not applicable either, then we are brought to consider the matter irrespective of Sections 107 and 108. The appellant asks us to say that, because according to his view Baji was not heard of for 30 years prior to 1910, that, therefore, the presumption under Section 114 is that he was dead at the end of those 30 years.
7. It seems to me, however, in the first place that the appellant has taken the wrong period. On his case as he has framed it after due, deliberation on the remand by the Court, it is necessary for him to prove that Annapurnabai was a widow at her death in 1908, for otherwise Dwarka would not be a reversioner. Therefore, the 30 years would be the 30 years prior to 1908. On the other hand, as I have already pointed out, by the judicial finding in 1880, Baji was found to be alive then, and, therefore, the appellant does not satisfy the test of 30 years which he asks us to adopt.
8. But irrespective of that, and even assuming we have to take the period as being 30 years before 1910, admittedly there is no authority that he can produce for the proposition that under Indian law when a man has not been heard of for 30 years, he is presumed to be dead at the end of that time. On the contrary the passage I have already quoted from Mr. Justice Crump's judgment would appear to negative that proposition. There can hardly be any magic in 30 years as compared with 20 apart from the fact that 30 years is mentioned in Section 107.
9. Further in Narayan Bhagwant v. Shriniwas Trimbak 8 Bom. L.R. 226 it will be found that over 30 years had elapsed between the disappearance of Trimbak, the person' in question there, and the date when that suit was brought. There Sir Lawrence Jenkins held that the lower Court arrived at no error of law in holding that it was not proved that Trimbak had predeceased his brother Appa who died in 1880.
10. Then in Moolla: Cassim v. Moolla Abdul Rahim 33 C.173 : 2 C.L.J. 236 : 10 C.W.N. 3 which was an appeal from Burma, it will be found on reading the judgment of the learned Judges of the Burma Court at page 176 that on the dates there, more than 30 years had elapsed. They say, for instance, 'Moolla Ahmed' 'had not been heard of for more than seven years in fact for more than 30 years--before the date of the institution of the suit.' Notwithstanding that, they held the onus of proof was on the person there who alleged that Moolla was alive at the particular date.
11. In the present case the question is of proving the man was dead, but in my opinion it is merely an accident as to whether the particular fact that has to be proved, is whether the person is alive or has survived at particular period or whether he is dead. In each case we have merely to consider on whom the onus of proof lies.
12. The point as to these 30 years is dealt with in the judgment of the learned Trial Judge in paragraph 8 and the conclusion he arrived at is this. 'So I simply presume that Baji is dead and there is absolutely no evidence in the case directly or indirectly proving when he died. On the contrary plaintiff's own admission shows that apart from the legal fictions of presumptive death or civil death Baji's wife till her death conducted herself as a wife of a living husband in private life, and in legal business with others as regards her property. Men of Baji's age are yet alive and so there is no presumption of his death, but for the rules in Sections 107 and 108. Plain it is that I simply presume Baji's death for this trial, but make no presumption as to the time of his death either after the expiry of seven years or after the expiry of 30 years.
13. In my opinion on the Indian authorities the learned Judge arrived at a correct conclusion. Speaking for myself I wish to say that sitting in this Court I merely follow the previous decisions on these points without expressing any opinion of my own on law in question. Nor do I express any opinion on the question as to what is the corresponding law in England, viz., whether the period of seven years may be any period of seven years, or whether, as has been held in India, it must be confined to a period of seven year's before suit. There is a conflict of opinion on that point between the Allahabad and the Calcutta Courts as to the English law on the point, and for the purpose of this case the matter may rest there. Whatever the law may be in England, I am sitting here as an Indian Judge, and all we have to do is to administer Indian law as laid down by the Courts of this country. In view of the carefully considered judgments of my brothers Shah and Crump in the recent case, I think that it is quite unnecessary for us in the present case to consider the whole question de novo. It is sufficient for us to say that this latest decision is one binding on us in this Court.
14. The result is that, in my opinion, the appellant has failed to discharge the onus of proof which lies on him to show either that Baji was dead in 1908 or in 1910. Consequently in my judgment the judgments of the lower Courts, were correct, and this appeal should be dismissed with costs.
15. I concur that the appeal should be dismissed with costs, and agree generally with the reasons given by my learned brother.
16. The appellant's main ground of appeal is that lower Courts were wrong in their interpretation of Sections 107 and 108 of the Evidence Act. But this is certainly not correct in regard to the judgment of the Subordinate Judge who tried the suit, for in paragraph 17 of his judgment he has referred to the main cases that deal with the construction of Sections 107 and 108 and he has rightly held that under those rulings all that he can presume under those sections is that Baji was dead at the date of the suit, and that he could not presume that he had died at any particular time. The Assistant Judge in dealing with this part of the case says that in February 1911 when the plaint was filed Baji will have to be taken to be no longer living and that in March 1889 Baji was alive. The latter conclusion is no doubt one which is not justified by Section 108 under the rulings already referred to. But this does not vitiate the judgment he has given against the appellant, and as has been shown fully in my learned brother's judgment, Sections 107 and 108 do not really help the appellant's case. His first difficulty is that he has to show that Annapurnabai was a widow in 1908, and that throws on him the burden of proving that Baji had died prior to 1908. I fully concur with my learned brother that there is no ground for answering that issue in the affirmative.
17. It was said by Mr. Kane that the claim in the plaint as a reversioner of Baji was one of mere false description and that the plaintiff should also be held to be claiming as an heir of Baji. But that argument is clearly not open to the appellant, in view of the proceedings under which he was allowed to amend the plaint so as to claim as a reversioner, but the request to add Dwarka as a co-plaintiff was disallowed.
18. Then it was said that the onus of proving the date of Baji's death should fall Upon the respondents, because if he was dead in 1889, they merely purchased Annapurnabai's interest in the property as a widow and the suit being within twelve years of her death would be in time. On the other hand, if he was alive in 1889, they could only claim by a title from adverse possession as against Baji, so that the burden would be on them to show that Baji was alive in 1889. There seem to me to be two objections to allowing this argument. First of all, the plaintiff has not got over the initial stage of sustaining his title as a reversioner of Baji, to which I have already referred. Secondly, supposing the question of adverse possession by the respondents arises, the Evidence Act clearly puts them in a better position than the appellant. For under Section 110 of the Evidence Act their admitted possession from 1889 throws the burden of proving that they are not the owners of property upon the plaintiff-appellant. And apart from that, I think, that, under Section 103 the burden of proving that Baji was not alive in 1889 would really lie on the appellant, for there is a strong probability, that he was alive in 1889, and if so, the respondents clearly obtained a good title to the property by reason of adverse possession.