H.G. Richards, C.J.
1. This appeal arises out of a suit in which the plaintiffs sought to redeem two mortgages. It was necessary in order that they should succeed in their suit that they should establish that they were the heirs of one Madad Ali. -- They proved that they were the heirs of Dildar Ali, and Dildar Ali would have been one of the heirs of Madad Ali provided that he had survived him. The defence was that Dildar Ali predeceased Madad Ali. The court below finds that Dildar Ali died seven or eight years ago. The plaintiffs gave evidence which went to show that Madad Ali had not been heard of for some seventeen or eighteen years by persons who would naturally have heard of him if he had been alive. Beyond this they were able to give no affirmative evidence that Madad Ali was dead. Upon these facts the plaintiffs'claim that they are entitled to succeed. They rely upon the provisions of Section 108 of the Evidence Act, which is as follows:
Provided 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.
2. They contend that it must be presumed that Madad Ali died some time during the first seven years during which, according to' the evidence he was not heard of, and that upon the expiry of the first seven years it must be presumed that he was dead.
3. In my opinion this contention is not correct. The mere fact that the evidence adduced by the plaintiffs went to show that Madad Ali had not been heard of for more than seven years raises no greater presumption of his death than if the evidence had been confined to the exact period of seven years. In other words the only presumption is that Madad Ali is dead. ' There is no presumption that he died in the first seven years or in the last seven years. The presumption merely is that he was dead at the time the question whether he was alive or dead arose, the burden of showing that he was alive being thrown upon the defendants if it was necessary for them to do so.
4. The plaintiffs rely on the case of Dharup Nath v. Gobind Saran (1886) I.L.R. 8 All. 614.It was decided in that case that the presumption which the plaintiffs contend for did arise. With all respect to the learned judge who delivered the judgment in the case, I think that he misinterpreted and misunderstood the passage from Taylor on Evidence which he quotes. The period of seven years which the learned author there speaks of, is in my opinion, the minimum period during which it is necessary for the plaintiff to show that the person whose life or death is in question has not been heard of, and that if the evidence shows the person had not been heard of for 14 or 16 years instead of seven, the presumption would not be carried one bit further. There would be merely the presumption that the man was dead; but there would be no presumption that he died at any particular moment of the period during which he has not been heard of. In the last edition of Taylor on Evidence the passage is as follows :--'although, however, a person who has not been heard of for 7 years is presumed to be dead, the law raises no presumption as to the time of his death, and if any one seeks to establish the precise period during those seven years at which some person died, he must do so by actual evidence.' It is said that the anomalous position is created that if Dildar had sued during his lifetime, he would have succeeded, and that now his heir is not entitled to succeed. It seems to me that this argument proceeds upon the assumption that if Dildar had sued during his lifetime, the evidence as to the disappearance of Madad Ali would have been exactly the same This would be a very rash assumption. Seven or eight years ago there must have been many persons who might have heard of the existence of Madad Ali who are now dead and gone.
5. Reliance was also placed upon the case In re Phene's Trusts (1869) L.R., 6 Ch. A., 139. In that case the question was whether or not Nicholas Phene Mill had survived his uncle who died on the 5th of January, 1861, leaving certain property by will to his nephews in equal shares. Nicholas Phene Mill was one of his nephews. Sir G.M. Giffard, L.J., examined the authorities upon the question of presumption and finally decided that it lay upon the administrator of Nicholas Phene Mill to show by affirmative evidence that the latter had survived his uncle. At page 151 the Lord Justice says:
It is a general well-founded rule that a person seeking to recover property must establish his title by affirmative proof. This was one of the grounds of decision in Doe v. Napean and to assert as an exception to the rule that the onus of proving death at any particular period, either within the seven years or otherwise should be with the party alleging death at such particular period, and not with the person to whose title that fact is essential, it not consistent with the judgment of the present Lord Chancellor, when Vice-Chanoellor, in In re Green's Settlement, or with the dictum of Lord Justice BOLT when he said in In re Ben-ham's Trusts, that the question was one, not of presumption hut of proof; or with the real substance of the actual decisions, or the sound parts of the reasoning, in Doe v. Napean or with the judgments in Bex v. Inhabitants of Harborne and Beg v. Lumley or with the principles to be deduced from the judgment in Underwood v. Wing. 'The true proposition is, that those who found a right upon a person having survived a particular period must establish the fact affirmatively by evidence; the evidence will necessarily differ in different cases, but sufficient evidence there must be, or the person asserting title will fail.
6. In my opinion these remarks apply with equal force to the, case where it is essential for the plaintiff's claim that he should establish the death of an individual at a particular period.
7. Lastly, the appellants relied upon the judgment of Karamat Husain, J., in the case of Musammat Akbari-un-nissa v. Syed Bashir Ali S.A. No. 486 of 1909. With great respect I think the learned Judge fell into the same error as the Judges who decided the case of Dharup Nath v. Gobind Saran and that he also misunderstood the judgment in Phone's Trusts case.
8. The view I take was taken in the case of Narayan Bhagwant v. Shriniwas Trimbak (1905) L.R. 8 Bom. 226 and in the case of Fam Bhushan Barterji v. Surjya Kanta Roy Chowdhry (1907) I.L.R 33 Calc. 25 This last ruling was cited with approval in the case of Srinath Das v. Probodh Chunder Las (1910) 11 C.L.J. 580. Mookerjee, J. says at page 585:
The only presumption which is enacted by Section 107 of the Indian Evidence Act, is, that the party is dead at the time of the suit, but there is no presumption as to the precise time of his death.
9. In my opinion there can be no doubt whatever that on the true construction of Section 108 of the Evidence Act it lay upon the plaintiffs to show by affirmative evidence that Dildar Ali survived Madad Ali. Having failed to do so, the suit could not succeed. I would dismiss the appeal.
10. I am of the same opinion. The case turns upon the construction of Section 108 of the Indian Evidence Act. Under that section there is no doubt a presumption that a person who has not been heard of for seven years should be deemed to be dead, but there is no presumption as to 'the time of his death. The true construction of the section has, in my opinion, been correctly laid down in the note to Section 108 in Ameer Ali and Wookerjee edition of the Evidence Act. The learned authors say:
The rule is the same whether only seven years or more than seven years have elapsed. There is no presumption either as to the time of death within the period of seven years, or that the person died at conclusion of the period. * * * The only presumption enacted by the section is that the party is dead at the time of suit, but there is no presumption in any case as to the time of his death.
11. The weight of authority to which reference has been made by the learned Chief Justice is in support-of this view, and I do not think that I can profitably add anything to what he has said. I agree in the order proposed.
12. I concur. The order of the Court will be that the appeal is dismissed with costs.