1. This second appeal arises out of a suit brought by the plaintiffs-appellants as reversioners for the possession of a six-anna zamindari share in the village of Khero, district Jhansi, against one Mt. Saraswati and against certain transferees under transfers made by Mt. Janki, deceased mother of Mt. Saraswati. The plaintiffs' case was that the property in question belonged to one Girdhari whose estate was after his death held successively by his widow Durgai and his daughter Mt. Janki, that on the death of Mt. Janki, they became entitled to the estate as reversionary heirs both as against the transferees of Mt. Janki and as against Mt Janki's daughter, Mt. Saraswati, inasmuch as the estate according to Hindu law reverted on the death of Mt. Janki.
2. The suit was resisted inter alia on the ground that Girdhari had a cousin Ram Baksh who would be a nearer reversioner than the plaintiffs and whose sons and grandsons, if any would be nearer reversioners. It was maintained that there was no evidence to show that Ram Baksh had died and at any rate that he had died issueless.
3. The trial Court held (a) that Ram Baksh died issueless, but (b) that there was no evidence to prove that he predeceased Girdhari. The lower appellate Court upheld the second finding. Consequently both Courts dismissed the suit. In this second appeal it is argued that there was evidence to justify a finding that Ram Baksh predeceased Girdhari, and that in any case, if he was dead without issue at the time of the institution of the suit, the plaintiffs would have a title against Mt. Saraswati as heirs of this Ram Baksh.
4. Both the lower Courts were correct in holding that there was no presumption of law arising from the fact that at the date of suit Ram Baksh had not been heard of for thirty years, that he had been dead at the date of the death of Mt. Janki which occurred two years before suit in 1901. They appear, however, to have ignored the fact that independently of Section 108, Evidence Act, they were entitled to draw an inference of fact under Section 114, Evidence Act, that Ram Baksh was dead in 1921. Section 108, Evidence Act, provides that in certain circumstances a rebuttable presumption of law arises as to death. It does not follow that if those circumstances do not exist there cannot be a presumption, or inference of fact, under Section 114, Evidence Act, as to death. I have accordingly considered the evidence on the record with care to see if there was any evidence to justify an inference of fact by the Courts that Ram Baksh predeceased Girdhari. The only evidence is the fact that thirty years, or more ago Ram Baksh and his wife left the village for what is described as an outstation, and that at the time they left they had no children, (see the evidence of Badal first witness for the plaintiffs). There is no evidence that they were never heard of from that date by persons who would have been likely to hear them, and further no evidence that any inquiries were ever made by any body as to what happened to them after they left the village. In a case like this where a reversioner is suing persons who are merely trespassers, I do not consider that strong proof is required of the death of a nearer reversioner. A prudent man might within the meaning of the definition of 'proved' in Section 3, Evidence Act, consider the death of nearer reversioner sufficiently probable (in a suit by a person who, assuming that death, would be entitled to the property) on very little evidence. But even so I do not find that the evidence was sufficient. The plaintiffs could very well have proved the making off some inquiries, and they have furnished no evidence for this purpose. Even if the entries in the village papers show that his death was presumed by the revenue authorities, there is no evidence of the fact of death in a suit in a civil Court. I, therefore, concur with the finding of the lower Courts that there was no evidence of the death of the nearer reversioner Ram Baksh.
5. Still less was there any evidence to prove that he left no issue who would displace the plaintiffs as reversioners. The trial Court has said that the pedigree set up by the plaintiffs has been proved. In this predigree Ram Baksh was entered as issueless. Apparently, therefore, the Court held that the proof of the predigree proved him to be issueless. This is obviously absurd. When the witnesses say that they knew nothing of Ram Baksh after he left the village, how can any of them swear to his having no son. It is not shown that he left the village when so old as to be unlikely to have any issue. The plaintiffs' case, therefore, based on their being the nearest reversioners after the death of Girdhari clearly failed.
6. It was, however, urged in the memorandum of appeal to the lower appellate Court and also in the appeal to this Court that assuming that Ram Baksh died later than Girdhari, the last holder alleged in the plaint, his death may be presume at the data of suit, and that the plaintiffs are his (Ram Baksh's) heirs. This is to set up an entirely new cause of action to that alleged in the plaint. In the plaint the plaintiffs claimed as reversioners on the death of Girdhari and not on the death of Ram Baksh. If they had claimed in the latter capacity the defence might have been different. Any way assuming that they can be allowed to vary their case in appeal in this way, as pointed out above there is no evidence that Ram Baksh left no issue and no attempt appears to have been made to make inquiries as to his leaving no issue. The plaintiffs could not win this case without proving that they had made inquiries and failed to elicit anything as to Ram Baksh or as to any issue.
7. The consequence is that this appeal must be dismissed with costs. If the case had been concluded ab initio with greater knowledge of the law and greater care, it is possible that they might have been successful. As it is, I dismiss this appeal with costs.