1. Defendants excluding defendant No. 3 are the appellants in this Second Appeal. Dibakar and Ratnakar were two brothers. Defendants 1, 2 and 4 are respectively the son, the widow and the mother of Dibakar. The plaintiff is the wife of Ratnakar. Defendant No. 3 is a purchaser of some of the suit properties from the appellants. The suit under appeal, which, was filed in May, 1956, is one for partition of the joint family properties of Dibakar and Ratnakar.
Ratnakar had gone out to work in Calcutta side, far away from his native place, in 1946. A rumour reached his family that he was dead. The plaintiff sent her brother and another to go and make necessary enquiries. On their return they informed the plaintiff that Ratnakar was dead, as a result of which the plaintiff became a widow in 1948. In 1950 the plaintiff transferred her entire interest in the suit land, on the assumption that there had been severance of joint family status between Ratnakar and the other branch. Thereupon the present appellants instituted Suit No. 147 of 1950 impeaching the transfer, and the plaintiff was a defendant to that suit.
The finding in that suit was that there was no severance of joint family status, and also there was no proof that Ratnakar was dead, and that he was only unheard of for about six years by the time of the said suit. It is thereafter that the plaintiff instituted the present suit under appeal for partition. The defence plea was that Ratnakar was still alive and so the plaintiff had no cause of action. No direct evidence about the actual death of Ratnakar, far from the date of his death, was given.
The trial court dismissed the plaintiff's suit, holding that the evidence adduced on the plaintiffs side, that Ratnakar was unheard of for more than seven years, was not reliable. The court of appeal took a different view and held that it had been established that Ratnakar had been unheard of and untraced for seven years preceding to the present suit, and so he was presumed to foe dead.
2. The date of death of Ratnakar was material to decide if the plaintiff had got any cause of action flowing from Ratnakar's death. The Hindu Women's Right to Property Act was brought into force in the district of Keonjhar (to which the parties belong) from 1-1-48. If Ratnakar died while in joint family status prior to 1-1-48, then the plaintiff had no cause of action for partition. The Court of appeal sought to get round this difficulty whether Ratnakar died prior to 1-1-48 or after 1-1-48) by observing:
'In view of the nature of defence the question of raising the contention under the Hindu Women's Right to Property Act will have no force, for the question for consideration will be that either Ratnakar is alive or if dead, he must have died after 1948 as according to the defence evidence he was seen in Calcutta alive only about three years back.'
3. The appellate Court's finding that Ratnakar was unheard of for more than seven years prior to the institution of the suit under appeal, which is based on a critical appreciation of the oral evidence on both sides, has not been sought to be challenged by the appellants. Their only contention is that though a legitimate presumption could be raised about Ratnakar's death, there could be no inference, as sought to be drawn by the appellate Court, that he died after 1-1-48.
4. Though a number of authorities have been sought to be cited before us regarding the inference that is to be drawn about the date of death, in a case covered by Sections 107 and 108 of the Evidence Act it is unnecessary to refer to any of them, in view of the decision of their Lordships in Lal Chand Marwari v. Ramrup Gir, AIR 1926 PC 9. Their Lordships have held:
'It is constantly assumed that, where the period of 'disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This is not correct. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if, instead of speaking of a person who had not been heard of for seven years, it describes the period of disappearance as one 'of not less than seven years.' If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.'
The present suit was brought in May 1956 and it has been established that since 1946 Ratnakar is unheard of, but to prove when he died, when the date of death is necessary to support the plaintiff's claim, was upon the plaintiff. If Ratnakar died prior to 1-1-48, obviously the plaintiff has no cause of action, whereas if he died thereafter, the plaintiff gets a right under the Hindu Women's Right to Property Act.
This burden has not at all been discharged by the plaintiff. The appellate Court sought to circumvent by saying that according to defendants' case, Ratnakar had been seen alive in Calcutta three years prior to the suit. If that case of the defendants would have been accepted, then there Was no room for drawing any presumption under Section 108 of the Evidence Act. When the said contention of the defendants was discarded, it could not be relied upon as a piece of admission in favour of the plaintiff that Ratnakar was not dead till three years prior to the institution of the suit under appeal. So, the appellate Court's finding, that Ratnakar must have died after 1-1-48, and not prior to that, has no basis to stand upon.
5. The learned counsel for the respondents sought to urge that as Section 108 of the Evidence Act is a proviso to Section 107 of the said Act, and when it was admitted that Ratnakar was alive within 30 years from the date of the suit, it has to be presumed, until the contrary is shown, that he was alive till the date of suit, and when it is proved that he has been unheard of for more than seven years, presumption of death is to be raised, and so death shall be presumed to have taken place from the date of the suit and not earlier. Both the presumptions under Sections 107 and 108 come into play after a suit is instituted.
The presumption of life prevails until displaced by the proof of actual death or proof of facts raising the presumption of death, and in the latter case presumption of death prevails till actual existence of life is proved. While initially the presumption of life extends over the whole period of 30 years, when the same is displaced, the presumption of death extends over the whole period of 'unheard of'. Any way, in view of the categorical pronouncement of their Lordships of the Privy, Council on the question, the contention raised is of no avail.
6. The learned counsel for the respondent sought to raise another contention to the effect that even if the plaintiff derived no right under the Hindu Women's Right to Property Act, she got the same under the Hindu Succession Act. To get any right under the Hindu Succession Act, the plaintiff had to show that the death of her husband took place after the coming of the said Act into force, that is, after 17-6-56, whereas in the present suit brought in May 1956 the plaintiffs case is that her husband died earlier.
7. In the result, holding that the plaintiff has failed to establish that Ratnakar died after 1-1-48, we allow the appeal and set aside the decree passed by the appellate Court, and dismiss the suit. In the circumstances of the case, however, we direct that each, party will bear its own costs throughout.
8. I agree.