1. The judgments of the two subordinate Courts are very vague and they have not considered the question of the proprietary title of the plaintiff after fully understanding the law as to the presumption to be drawn under Section 108 of the Evidence Act. The latter will have to be referred again to the lower Appellate Court for a decision whether Mahadeo has been proved to have been dead on the llth of February, 1927, when Kumar executed a sale-deed of one-third of the property in favour of the plaintiff. In considering the question of presumption both the subordinate Courts missed the very important point that the only presumption they were entitled to draw by the fact Mahadeo not having been heard of for 15 or 16 years prior to the institution of the suit by those who would be likely to hear of him had he been alive was that he was dead on the date of the institution of the suit. There could be no presumption whether he died a day prior to the institution of the suit or whether he died 15 or 16 years previously, the beginning of the period during which he has not been heard of. Such was held in. 1911 by a Full Bench of this Court in Muhammad Sharif v. Bande Ali 11 Ind. Cas. 474 : 34 A. 36 : 8 A.L.J. 1052, and that ruling has been consistently followed in this Court. It was followed in a Bench ruling of the Bombay High Court in Gopal Bhimji v. Manaji Ganuji Padval 81 Ind. Cas. 449 : 47 B. 451 : 25 Bom. L.R. 134 : A.I.R. 1923 Bom. 163. The observations of the learned Chief Justice in that case are pertinent in the present case. At page 460 Page of 47 B.--[Ed.] of the report he has observed: 'It is for the plaintiff to establish his title and for that purpose it is essential for him to establish that before 1908 Rakhma was dead; and that the grand-mother Ahilau was entitled to sell the property as the heir of Rakhma at that time. 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.'
2. I have to remand for a fresh finding because both the subordinate Courts write vaguely of news of the death of Mahadeo having arrived in the village 16 or 18 years ago. There should be a definite finding whether apart from the presumption which is only to the effect that Mahadeo was dead on the date of the institution of the suit there is any other evidence on which a finding can be recorded that Mahadeo was dead on the date of the purchase by the plaintiff. That date would be sufficient to establish the plaintiff's claim. Whether Sukhdeo died first or Mahadeo died first, in either case, If there is evidence that Mahadeo was dead on the date of the execution of the sale-deed in favour of the plaintiff, Kumar would be entitled to the property in suit and to effect the sale.
3. Further oral and documentary evidence may be admitted. This evidence may under the direction of the Appellate Court be recorded and received by the trial Court but the findings shall be recorded by the lower Appellate Court. Return shall be made within two months of to-day's date when ten days shall be granted to make objections.