Rajendra Nath Mittal, J.
1. This regular second appeal has been filed by the plaintiff against the judgment and decree of the District Judge, Hoshiarpur, dated October 14, 1969. In order to appreciate the facts, the following pedigree table would be helpful:--
| | Tabba
Sunder Labhu ___________________|__________________
| | | | |
Ishri Parshini Waryam Munshi |
daughter widow (Issuelees) (issueless) Tulal
(Plaintiff) (Defdt. 4) |
| | |
Mulkh Bai Karnail Gahia
(Defdt. 3) (Defdt. 2) (Defdt. 1).
2. Labhu was the last male holder of the propertv in dispute. He died in early fifties. On his death, his property was inherited by his widow Mst. Par-shinni as life estate. She became full owner of the property after coming into force of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act'). She had not been heard of for the last more than seven years before the filing of the suit by the plaintiff and others who would have heard of her in case she was alive. Therefore, she should be presumed to have died. The plaintiff is the daugher of Sunder, the brother of Labhu, and thus is an heir to the estate of the husband of Mst. Parshinni. The defendants 1 to 3 are in illegal and wrongful possession of the propertv left by her. She instituted the suit for possession of the propertv in dispute. The suit was contested by the defendants 1 to 3. The defendants, inter alia, pleaded that she was not the daughter of Sunder son of Shehzada, that the defendants were in possession of the propertv in dispute for more than 13 years after the death of Labhu and had become owner by adverse possession and that the plaintiff was not entitled to inherit the property. On the pleadings of the Parties, the following issues were framed:--
1. Whether the plaint has been pro-perly valued for purposes of court-fee and jurisdiction O. P.
2. Whether Parshinni widow of Labhu has not been heard of for the last seven years by the persons who would naturally have heard of her O. P.
3. Whether the plaintiff is the heir of Mst. Parshinni O. P.
4. Whether Parshinni had died after the enforcement of the Hindu Succession Act of 1956? O. P.
5. If issue No. 3 is proved whetherthe defendants have become owners ofthe land in suit by adverse possession O. D.
3. The trial Court found that the plaint was not properly valued for the purpose of court-fee. The plaintiff made up the court-fee as ordered by the Court. It held that Mst. Parshinni had not been heard of for more than seven years by the persons who would have naturally heard of her if she were alive, that the plaintiff was an heir of Mst. Parshinni and that defendants 1 to 3 had not become owers by adverse possession. The trial Court, however, did not give any specific finding on issue No. 4. In view of the aforesaid findings, it decreed the suit of the plaintiff. Defendants 1 to 3 went up in appeal before the District Judge Hoshiarpur, who observed that the only issues contested before him were issues Nos. 3 and 4. He held that in the absence of any evidence regarding the exact date of death of Mst. Parshinni, the plaintiff would fail. He conseauentlv decided issue No. 4 against her. He reversed the finding of the trial Court on issue No. 3 in view of finding on issue No. 4. Consequently, he accepted the appeal and dismissed the suit of the plaintiff. She has come up in appeal to this Court.
4. The contention of the learned counsel for the appellant is that the learned appellate Court has not decided issues Nos. 3 and 4 correctly and that it has erroneously upset the judgment and decree of the trial Court. He further submits that the appellant is entitled to inherit the property of Mst. Parshinni.
5. I have heard the learned counsel for the parties at a considerable length. The Question that arises for determination in the present case is whether Mst. Parshinni will be presumed to have died after coming into force of the Act or earlier to that and who is to prove that fact. It is admitted case of the parties that in case she died prior to coming into force of the Act, defendants 1 to 3 were preferential heirs of the propertv in dispute and in case she died subseauent to the Act, the plaintiff-respondent shall be entitled to inherit the same. The evidence led by the parties does not clearlv estab-ish as to when she died. Labhu, according to the death entry, Exhibit P-7, died on March 1, 1951. Ishri, plaintiff, in her statement admitted that Parshinni left the village just after the death of Labhu. The case set uP by defendants 1 to 3 is also the same, namely, that Parshinni left the house and the propertv of her husband after a few days of his death. D. W. 1 Karnail Singh also made a similar statement. Thus from the statements, it is clear that Parshinni left the house of her husband after a few days of his death. Section 107 of the Indian Evidence Act, 1872, says 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 ig dead is on the person who affirms it. Section 108 says that the burden of proving that a person is alive who has not been heard of for seven years, is shifted to the person who affirms it. The aforesaid section is as follows :--
'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 natural-ly 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.'
The aforesaid section shows that the presumption extends merely to the fact of death at the expiration of seven years but not to the time of death. There is no presumption that the death of a person took place after the end of the period of seven years or at any particular time within that period. The law in India and England is the same on this matter. It has been held in Re Phene's Trusts. (1870) 5 Ch A 139, which is a leading case on the subject, as under:--
'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. There is no presumption of law in favour of the continuance of life, though an inference of fact may legitimately be drawn that a person alive and in health on a certain day was alive a short time afterwards.'
While dealing with the matter, Sir G. M. Giffard, L. J. observed at page 147 as follows :--
'With reference to the argument of inconvenience, Lord Denman said; 'if for the sake of preventing inconvenience we were arbitrarily to lav down a rule that seven years' absence abroad (the partv not having been heard of) was prima facie evidence of his death at the end of the seven years, such a rule would in the very great majority of cases, nay, in almost every case, cause the fact to be found against the trust; and as the rule would be applicable to all cases in which the time of death became material, would in many be productive of much inconvenience and injustice'. The Exchequer Chamber adopted the doctrine of the Court of Queen's Bench in these terms, viz; 'We adopt the doctrine of the Court of Queen's Bench, that the presumption of law relates onlv to the fact of death, and that the time of death, whenever it is material, must be a subiect of distinct proof.'
The above case was followed by the Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir, AIR 1926 PC 9, wherein after reproducing a quotation from that case, it was observed as follows:--
'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 described the period of disappearance as one 'of not less than seven years'.'
This matter also came up before a learned Division Bench of this Court in Mehan v. Kishi, 1969-71 Pun LR 225. The learned Division Bench after noticing various cases, laid down as follows:--
'That presumption under Section 108 of the Evidence Act extends onlv to the factum of death at the expiration of seven years and not to the time of death at any particular period. No presumption under the section can be raised that the death of the person concerned took place on any particular date or even at the end of seven years or at any other Particular time within the period of seven years in question. The exact time of death is not a matter of presumption under the section but of proof by evidence which may be oral or circumstantial. The burden of proof that death took place at a particular time within the period of seven years lies on the person who claims right for the establishment of which that fact is essential.'
6. After considering the aforesaid cases I am of the view that a party alleging death at any particular time within a period of seven years should prove it by positive evidence. In case, he fails to prove the date which is essential for the determination of lis, his case will fail. There is no presumption about the exact time of death.
7. In the present case, the assertion of Mr. Sarin is that Mst. Parshinni shall be presumed to have died after a period of seven years from the year 1951. He further submits that if that is so, the appellant shall be a preferential heir as the Act came into force in June, 1956. In support of his contention, he has placed reliance on the following observations of the learned Division Bench in Mehan Singh's case, (1969) 71 Pun LR 225 (supra) :--
'It also appears to be clear from a study of the abovementioned cases that the burden of proof that death took place at a particular time within the period of seven years lies on the person who claims a right for the establishment of which that fact is essential.'
8. Mr. H. L. Sarin has vehemently argued that in view of the above observations, it was for the respondents to prove that she died before coming into force of the Act. I have examined this contention of the learned counsel for the appellant very carefully but find no force in it. The plaintiff has instituted the present suit on the allegations that Mst. Parshinni will be presumed to be dead after coming into force of the Act and therefore, she inherits the property. As al-ready observed above, no presumption can be raised under Section 108 of the Evidence Act regarding the date of death. The only presumption after the expiry of that period is that the person is dead. The date of death has to be proved by the evidence. Even no presumption can be raised under Section 108 that a person died after the expiry of seven years. The contention of the appellant in other words is that Mst. Parshinni remained alive upto the coming into force of the Act and died sometimes after that. The Privy Council in Lal Chand Marwari's case, AIR 1926 PC 9 (supra) has observed that the presumption is the same if the Period exceeds seven years as the period is one and continuous. In Re Lewes' Trusts, (1871) 6 Ch A 356. Sir G. Mel-lish, L. J.. observed as follows:--
'If at the end of seven years a person has not been heard of, the presumption is that he is dead, but there is no presumption as to when, during the seven years, he died. The person upon whom it rests to prove the affirmative, either that the legatee was alive or that he was dead at a particular period must establish the proposition by distinct evidence, and not by showing merely that he was alive at the beginning of the period.'
Article 624 at pages 345-46 of Halsbury's Law of England, Third Edition, Vol. 15, is in the following terms:--
'There is no legal presumption either that the person concerned was alive upto the end of the period of not less than seven years, or that he died at any particular point of time during such period, the only presumption being that he was dead at the time the question arose, if he has not been heard of during the preceding seven years. If it is necessarv to establish that a person died at any Particular date within the period of seven yeare, this must be proved as a fact by evidence raising that inference, for example, that when last heard of, he was in bad health, or exposed to unusual perils, or had failed to apply for a periodical payment upon which he was dependent for support. The weight of such evidence must be considered in the light of the knowledge available at the time when the proceedings are brought. Where a party's case depends on establishing that a given person, who is presumed to be dead, was alive or dead at a particular time within the period, and there is no evidence at all on the subject, success or failure will depend on the incidence of the burden of proof.'
In Lewin on Trusts. 1950 Edition, at page 257, it has been laid down that if a person is not heard of for seven years, in that case the law presumes for certain purposes that the person was dead at the expiration of the seven years, but not that he died at any particular moment of that period. It further lays down that the onus of proving at what particular time the death took place lies with the person asserting a right depending on the death having occurred at that time. It is a well founded rule of law that a person seeking to recover property must establish his title by affirmative evidence. A party which founds a claim upon a person having survived a particular period, must establish that fact by evidence. In case, he fails to do so, his case will fail. In my view, the observations made by the learned Division Bench do not help the appellant. It was for the appellant to have proved about the time of death of Mst. Parshinni as that is material for the decision of the present case. The appellant failed to Prove the time of her death as already stated. Therefore, the conclusions arrived at by the first appellate Court are correct and there is no scope for interference with them.
9. For the reasons recorded above, this appeal fails and the same is dismissed. In the circumstances of this case, however, I make no order as to costs.