1. This second appeal has arisen in the somewhat peculiar circumstances. One Mal Singh whowas to be charged with murder absconded. Hisproperty was attached and taken possession ofby Government under the pro visions' of Ss. 87 and88 of the Criminal Procedure Code. This tookplace several years ago. In 1946 the plaintiffsBachan Singh and Tara Singh claiming to be thenext reversioners of Mal Singh brought a suitfor the possession of the attached property onthe ground that Mal Singh must be presumed tobe dead, and they being his next heirs were entitled to succeed to his property. The plaintiffsalso impleaded Mst. Santo who was originallymarried to Mal Singh but has now remarried asecond time.
2. The plaintiffs' suit, therefore, was based on the presumption arising under Section 108 of the Indian Evidence Act. The most important issue in the case was the first one namely:--
Whether Ma] Singh absconder can be presumed to be dead? If so, what is its effect?
3. If Mal Singh cannot be presumed to be dead, the plaintiffs' suit must be dismissed. The Courts below held that since Mal Singh's whereabouts had not been heard of for more than seven years he must be presumed to be dead. The plaintiffs suit was accordingly decreed. The Government appeals.
4. Section 108 is nothing more than a proviso to Section 107 and the two sections must, therefore, be read together in order to appreciate their full import. The sections read :
'107. 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
108. 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 aPffirms it.'
5. The important phrase in Section 108 is 'those who would naturally have heard of him if he had been alive.' In the present case MalSingh was absconding from justice in order to(sic)vade a trial upon a charge of murder. He would, therefore, not communicate with any relation in the natural course of events because to do so swould reveal his whereabouts and he might be apprehended by the police and prosecuted. It is(sic)n evidence that after the alleged commission ofthe murders he ran away and remained in hid-(sic)ng. In a case of this nature no presumption,therefore, can arise because it is Section 107and not Section 108 which would apply.Shifting of the onus under Section 108 wouldhave taken place only if the plaintiffs 'wouldnaturally have heard of him if he had been alive.'
Now, the plaintiffs being the reversioners, MalSingh would not communicate with them. Indeed,(sic)he would not communicate with anyone in the village. One of the witnesses examined by theplaintiffs is the father of the two men who are alleged to have been murdered by Mal Singh, andthis man would be the last person to whom MalSingh would reveal his whereabouts or with whom he would communicate.
6. I, therefore, find that in the circumstances of this case no presumption regarding Mal Singh's death can arise. It is Section 107 which must be applied and not Section 108. The plain-tiffs, therefore, cannot claim Mal Singh's property as he has not been proved to have died. Their suit is liable to be dismissed and allowing the appeal of the State I would dismiss it with costs.
7. It was brought to our notice that Mst. Santo respondent had died and the question arose whether it was necessary to bring her legal re-preservatives on the record. I have already indicated in the beginning of my judgment that Mst. Santo was no more than a pro forma defendant. She had married a second time and had, therefore, lost all rights in Mal Singh's property. Her death does not make any difference to these proceedings. There was no decree in her favour and, therefore, there can be no question of any abatement.
8. I agree.