Kumara Pillai, J.
1. This appeal arises out of a suit for redemption. Defendant 1 is the appellant. Plaintiff-respondent also has filed a memorandum of objections against the decree of the lower Court.
2. The plaint properties originally belonged to one Narayan Sankaran and his brother Narayanan Krishnan. In 1096 they hypothecated these properties to one Krishnan Govindan, and in 1097, after the death of Narayanan Krishnan, Narayanan Sankaran mortgaged them to one Sankara Kurup Narayana Kurup. Ext. XXXVIII is a copy of the hypothecation bond of 1096, and Ext. VI is the mortgage deed of 1097. On the hypothecation bond an assignee of the same obtained a decree, copy of which is Ext. C, on 1-2-1100.
To this decree the mortgagee under Ext. VI was not a party. Narayanan Sankaran, the surviving hypothecate, was defendant X in Ext. C. He too died after the decree, and on his death two persons, Narayanan Narayanan and Narayanan Farames-waran, were impleadcd in the execution proceedings in Ext, C suit as his legal representatives. Narayanan Narayanan was impleaded as additional defendant 3 and Narayanan Parameswaran as additional defendant 4.
Subsequently the plaint properties were sold in execution of Ext. C decree on 13-4-1115, and the sale was confirmed on 20-11-1115. Ext. L is a copy of the sale certificate. On 12-10-1119 the auction purchaser assigned his rights to the plaintiff by Ext. D. Since the puisne mortgagee under Ext. VI was not a party to Ext, G and his assignee was, in possession of the properties, after obtaining Ext. D assignment the plaintiff brought the suit which has given rise to this appeal, for redemption of Ext. VI mortgage. By successive assignment defendant 1 in this suit has obtained the mortgage right under Ext, VI and is now in possession of the plaint properties. He contested the suit. As only two of the contentions he advanced in the lower Court were pressed before us at the time of hearing here it is not necessary to refer in this judgment to all his contentions.
The two contentions which were pressed before us were, (i) the execution sale, Ext. L, is invalid as Narayanan Narayanan, additional defendant 3 in Ext. C suit, had died before the date of that sale and his legal representatives were not brought on record and that therefore the plaintiff has obtained no right to the plaint properties by virtue or Exts. L and D; and (ii) even if the execution sale is valid and the plaintiff has obtained a valid assignment of the rights of the auction purchaser, defendant 1, being a puisne mortgagee, is entitled to redeem the plaintiff whose claim is based on the earlier mortgage or hypothecation bond, Ext. XXXVIII. The lower Court repelled both these contentions and decreed the suit. So defendant 1 has filed the app'eal.
3. According to the appellant, Narayanan Narayanan had gone to Singapore and died there before the execution sale, Ext. L, and in support of the fact of Narayanan Narayanan's death he relies upon the presumption available under Section 108 of the Indian Evidence Act in the case of persons who have not been heard of for seven years. The documents relied upon before us in support of the allegation that Narayanan Narayanan has not been heard of after he went to Singapore are Exts. XV, XVIII and XIX. Ext. XV is a document executed by Narayana Narayanan's wife, D.W. 3, on 24-4-1124.
It is stated therein that Narayanan Narayanan haf gone to Singapore and that nothing has been heard about him for nearly twelve years. Ext. XIX is a partition deed executed in the tarwad of Narayanan Narayanan and Narayanan Parameswaran in 1113. Narayanan Narayanan has not taken part in the execution of that document, and it is stated therein that he was not in the locality. (Vernacular portion omitted -- Ed.) Ext. XV11I is another document of 1113. In it also it is stated that Narayanan Narayanan had gone away from home and that nothing was known about him at the time of the execution of that document. On the strength of these documents it is contended by the appellant's counsel that Narayanan Narayanan has not been heard of for more than seven years before the date of the execution sale and that he must be presumed to have died before that date.
All that these documents can be said to prove at the most is only that Narayanan Narayanan had not been heard of between 1108 and 1120. They do not show that he had not been heard of for more than seven years before the date of the execution sale, Ext. L, or that he died before that date. All [hat Section 108 of the Indian Evidence Act warrants is that when a person is shown to have been not heard of for seven years there is a presumption of the fact of his death. Regarding the actual time of death there is no presumption available under that section. The time of death has to be affirmatively proved by the person who alleges that death occurred at a particular time and who seeks to enforce rights or consequences that flow from the fact of the death at the particular time alleged by him.
In other words, when a question is raised whether a person is alive or dead, under Section 108 the Court can presume that he is dead at the time the question is raised if it is shown that he has not been heard of for seven years arid there is no evidence to show that he is actually alive, but it is not open to the Court to say that he died at a particular time before which the question was raised unless there is evidence to show the actual time of death.
In the present case defendant 1 alleges that Narayanan Narayanan had died before the execution sale in 1115 and that therefore the execution sale, Ext. L, is invalid. The invalidity of the execution sale is a consequence of Narayanan Narayanan's death before 1115. The burden is therefore upon defendant 1 to prove that Narayanan Narayanan had died before 1115. That burden has not been discharged in this case. The nature of the presumption under Section 108 of the Indian Evidence' Act has been referred to by Sarkar in his book on Evidence, 9th Edition, at p. 825. The learned author says:
''If a person is not heard of for seven years there is a presumption of the fact of death, but the exact time of death is not a matter of presumption but of evidence and the onus of proving that 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.'
In the same page he has also given an exhaustive list of the decisions on the subject, both Indian and English. Very recently on a difference of opinion between K. S. Govinda Pillai and T. K. Joseph, JJ., the learned Chief Justice of this Court had to consider this very question in Vclayudhan Sarojini v. S. Sivanandan, 1956 Ker LT 126: ((S) AIR 1956 Trav-C 129) (A). Agreeing with Joseph, J. His Lordship has held in that case that a person who has not been heard of for seven years is presumed to be dead, but there is no legal presumption as to the time of the death and that the fact of his having been alive or dead at any particular period during the seven years must be proved by the party relying on it. As defendant I has not discharged the burden that was on him to prove that Narayanan Narayanan had died before the execution sale we hold that the lower Court was right in repelling his contention regarding the validity of that sale.
It has also to be noted in this connection that the evidence of D.W. 3 tends to belie the contention that Narayanan Narayanan had died before 1115. According to her, though he had not been heard, of for a number of years he died only seven or eight years before her examination. She was examined on 13-6-1932 A.D. corresponding to 31-10-1127 M. E. If that evidence is true, he could have died only in 1119 or 1120.
4. The appellant's second contention also is equally groundless. The plaintiff's claim for redemption of Ext. VI is based not upon the hypothecation bond of 1096 but upon the Court sale of the equity of redemption in Ext. C suit. No doubt that plaintiff being the assignee of the decree-holder-auction-purchaser in Ext. C suit has obtained the rights under the hypothecation bond of 1096, which is the first mortgage in this case.
But by virtue of the Court sale of the equity of redemption in Ext. C suit the auction purchaser obtained the rights of the mortgagor also and became competent to redeem the subsequent mortgage, Ext, VI, and his rights have now been obtained by the plaintiff under the assignment, Ext. D. The Court sale though not binding on the subsequent mortgagee is binding upon the mortgagor, and the equity of redemption belonged to the mortgagor alone and the subsequent mortgagee had no right to it. Therefore defendant 1, who is only a mortgagee is liable to be redeemed by the plaintiff who is the present owner of the equity of redemption.
5. Thus both the grounds urged by the appellant in this Court fail and the appeal has to be dismissed.
6. The plaintiff-respondent did not press the grounds taken in the memorandum of objections. The memorandum of objections also has therefore to be dismissed.
7. In the result the decree of the lower Court is confirmed and the appeal and the Memorandum of Objections arc both dismissed with costs.