R.K. Das, J.
1. This is an appeal by defendants 1, 2 and 3 against the affirming judgment of the Additional Subordinate Judge. Puri arising out of a suit for partition.
2. Bharat had two sons. Parikhit (defendant 1) and Chakra the husband of the plaintiff Kaviraj and Gopal defendants 2 and 3 respectively are sons of Parikhit Defendants 4 and 5 are purchasers from Parikhit in respect of Kha schedule properties: Plaintiff who is governed by the Mitakhara School of Hindu Law, has filed the suit for partition of schedule Ka property claiming an allotment of eight Annas' share out of the same She further prayed for a declaration that the registered sale-deeds executed by defendant 1 on 2-1-1958 in favour of defendants 4 and 5 in respect of Kha Sch. properties and the sale-deed dated 2-12-55 executed by defendant 1 in favour of his two sons, defendants 2 and 3 in respect of Sch. Ga properties are not binding upon her, as they are not for consideration and legal necessity.
3. The specific case of the plaintiff is that her husband Chakra left for Burma since about twenty years and is not heard of since then Thus, on the basis of a legal presumption available under Sections 107 and 108 of the Evidence Act, he shall be deemed to be dead and the plaintiff as his widow, is entitled to claim partition in respect of her husband's share by virtue of the provisions of the Hindu Women's Rights to Property Act, 1937, (hereinafter referred as 'the Act'). She alleged that the properties conveyed under the aforesaid sale-deed may be available for partition.
4. The plea of the defence is that Chakra is still alive, and could not return to India due to passage difficulties. The family of the defendants has not observed the Sudhi ceremony of Chakra and as such, he cannot be said to have met with death. The plaintiff has filed the present suit under the ill-advice of her relations Defendant 1 has transferred the schedule Kha and Ga properties to meet the house hold expenses and the joint family legal necessities and that the transfers were made with the knowledge of the plaintiff, and are binding on her.
5. Both the Courts found that Chakra was not heard of for more than seven years and is presumed to be dead so as to entitle the plaintiff to claim a partition of the joint family property, on the footing that she is the widow of Chakra. They also held that the alienation made by defendant 1 in favour of defendants 4 and 5 was for legal necessity and thus directed the exclusion of that property from partition. They, however, held that the alienation made by defendant 1 in favour of his two sons, defendants 2 and 3 is not supported by any legal necessity and as such, the said property shall be liable to partition. In the result, they directed partition of the suit properties except schedule Kha property and passed the preliminary decree allowing the plaintiff her eight annas interest in the family properties. Hence this appeal by the defendant 1 to 3.
6. The main contention of Mr. Dasgupta, the learned counsel for the appellant is that; (i) There is no right of suit on the footing of a civil death; (ii) Assuming that there is legal presumption that Chakra is dead, there is no evidence to show that he died after the passing of the Act of 1937, so as to give the plaintiff right of inheritance and partition.
7. There is no dispute that Parikhit and Chakra constituted a joint family and were living joint when Chakra left for Burma. There can be no controversy that in case it is found that the Act applied to this case, the plaintiff would be entitled to a half share in the property. The concurrent findings of fact regarding Kha and Ga schdule properties are based upon good evidence arid are not rightly challenged in this Court.
8. Broadly stated the contention of Mr. Dasgupta is that civil death is merely a question of presumption and is a rebuttable presumption and cannot take the place of a physical death and unless there is proof of a physical death of Chakra, his widow has no right of suit. He contends that the plaintiff herself admits that she has not observed widowhood, nor has the family performed his Sudhi ceremony so as to treat Chakra as dead to the family. No doubt, some evidence has been led on the side of the defendants to show that Chakra was still alive. Some witnesses have been examined to say that they accompanied Chakra to Burma and stayed there together and he if still alive, and is unable to return to this country on account of difficulties of pass-port, etc.
Both the Courts, however, rejected the evidence of the defence that Chakra is still alive and treated him to be dead as he was not heard of for more than seven years. True it is that the widow admitted that she has not observed the obsequies connected with widowhood in accordance with the custom of the caste, but that itself is no bar to her claiming a partition if she is otherwise proved to be a widow. No authority has been cited before me in support of the contention that non-observance of the widowhood by the plaintiff would deprive her of her share in the property. The contention that without proof of physical death of her husband, the plaintiff cannot succeed has also no force. The case of the plaintiff is not based on the actual death of her husband, but is based upon the presumption of death under Section 108 is wholly unnecessary.
That section comes into play when no such evidence is available and the missing man has not been heard of for seven years. Section 107 of the Evidence Act lays clown that when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. A proviso however, has been added in Section 108 which says 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. Thus, Section 107 deals with the presumption of continuance of life and Section 108 with the presumption of death. If the presumption applied, then the missing man shall be taken to be dead in the eye of law and such presumption of civil or fictional death tantamounts to a physical death for giving the widow a tight of suit.
9. Mr. Dasgupta's next contention is that assuming he is dead, there cannot be any presumption as to the actual date of death, and that has to be proved like any other fact and there is also no presumption that on the close of seven years death has occurred. In support of his contention, he relied upon a decision reported in AIR 1926 PC 9, Lalchand v. Ramrup Gir, where it was held that it is not correct to assume that where the period of dis-sappearance extends to 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.
Mr. Dasgupta also relied upon a decision of this Court reported in AIR 1962 Orissa 3, Mukunda Behera v. Subarna Bewa, where the aforesaid dictum laid down by the Privy Council was followed There cannot be any doubt about the legal position that 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 seven years lies upon the person who claims a right to the establishment of which that fact is essential.
10. In the present case, however, proof of death at a particular time is not essential. In view of the evidence and the findings in this case, there cannot be any doubt that Chakra left home in 1940, some three years after the passing of the Act and is not heard of since about twenty years, that is, till the dale of the suit. Once the rule of presumption is invoked on the ground that a man is not heard of for seven years, the plaintiff is entitled to ask for the relief on the footing that the man is dead.
11. Mr. Pal for the respondent rightly contended that in view of the finding of the Courts below and the evidence in the case, the necessity of proof of death at any particular time is immaterial as admittedly the husband of the plaintiff left after the passing of the Act and was not heard of for more than seven years. He further urged that the presumption under Section 108 would be available at least from the date when the plaintiff comes to the Court and files the suit on the basis on such presumption. In a decision of the Madras High Court reported in AIR 1965 Mad 440, Huseinny J. Bhagat v. Life Insurance Corporation of India, it was held that the presumption under Section 108 relates to the point of time at which the question itself emerges in a legal proceeding and the presumption is that the missing man is dead at the date of the plaint. The burden of proof is on the party who sets up the plea that the man is still alive.
The Travancore High Court in a case reported in AIR 1953 Trav-Co 114, Ramabai v. Saraswathi, took the view that where there is a dispute in a suit as to the date of death of a person not heard of for seven years, in the absence of any evidence on either side, the Court should draw a presumption that he was dead on the date of the suit. The same view has also been taken by the Calcutta High Court in a case reported in (1910) ILR 37 Cat 103, Narki v. Lal Sahu. The Andhra Pradesh High Court in a case reported in AIR 1957 Andh Pra 380, Venketeswarlu v. Bapayya, have taken the same view. Thus, the position of law is well settled that the presumption under Section 108 of the Evidence Act is available al the point of time when the party approached the Court for necessary relief. The presumption of life prevails until displaced by proof of actual death or proof of facts raising the presumption of death, and in the latter case the presumption of death prevails till the actual existence of life is proved.
12. In view of this legal position, there cannot be any doubt that the plaintiff is entitled to succeed in her claim of eight annas interest in the joint family properties.
13. In the result, therefore, the decisionsof the Courts below are upheld and the appealis dismissed with costs.