1. This is an appeal against an order of remand passed by the District Judge of Guntur in a suit brought by the plaintiffs to recover the properties of one Tirupathayya deceased as the persons entitled to them as his heirs or nearest reversioners. The plaintiffs' case is that their father Kotayya and the deceased Tirupathayya's father, Virayya were divided brothers, that Virayya died long ago, that Tirupathayya died nine months before suit and that their father Kotayya had not been heard of for nearly ten years before the date of suit. They therefore claimed that it should be presumed that Kotayya was dead and that they were thus the nearest reversioners to Tirupathayya.
2. Defendants denied the allegation that Kotayya was not heard of for some years, and on that an issue was framed, 'whether plaintiff's father Kotayya was not heard of for ten years as alleged in the plaint.' The District Munsif tried this issue and held that, even if Kotayya had not been heard of for ten years, there was no presumption as to the exact date of his death and that, as plaintiffs were claiming as the heirs of Tirupathayya, they were bound to show that Kotayya died before Tirupathayya, and in that view of the issue, he dismissed the suit.
3. The District Judge has now held in appeal on the question of fact that Kotayya was not heard of for over ten years and that plaintiffs are therefore the nearest reversioners to the deceased Tirupathayya, and has remanded the case for disposal on the remaining issues raised. It is difficult to see exactly what importance there is in the fact that Kotayya died before Tirupathayya. It makes no difference in the rights of the plaintiffs in this case. So far as appears from the allegations in the plaint and in the written statement, whether Kotayya should be taken as dead before or after, plaintiffs will be the persons entitled to succeed. It is not alleged anywhere that there are other heirs who would come in any event. If we apply the presumption that arises under Section 107 of the Evidence Act that no doubt does not enable us to say exactly when Kotayya should be taken to have died. See Veeramma v. Chenna Rcddy I.L.R.(1912) Mad. 440, Muhammad Sharif v. Bunde Ali I.L.R. (1911) All. 36, and Nurke v. Lal Sahu I.L.R. (1909) Cal. 103 . But it certainly enables us to say that before the date of the suit he must be treated as dead. That being so, plaintiffs would come in as heirs of Tirupathayya or of their own father and be entitled to sue.
4. One argument requires to be noticed in this connection. It was urged that the rule under Section 107 of the Evidence Act does not apply to this case as it is a case regarding inheritance of properties of a deceased Hindu and therefore' the rule of the Hindu Law governing the question as to what length of time should elapse before a man unheard of should be treated as dead to be applied; that rule is that at least twelve years should elapse. Some authorities have been cited to us by Mr. Ramadas in support of his contention that we should apply the 12 years' rule and not the 7 years' rule under Section 107 of the Evidence Act. Janmojay Muzumdar v. Keshab Lal Ghose 2 Beng L.R. 134 , Guru Das Nag v. Motilal Nag 6 Beng. L.R. Appx. P. 16 . These cases, it will be noticed, were before the Evidence Act I of 1872 was passed as is pointed out in the case brought to our notice on the opposite side, Dharup Nath v. Gobind Saran I.L.R. 8 All. 614. They cannot therefore be taken as of any authority after the passing of the Evidence Act. The case of Parmeshar Rai v. Besheshar Singh I.L.R. 1 All. 53 , was also cited to us; but there the decision was not that the 12 years' rule should be applied but the 7 years' rule in the particular circumstances of the case. The observation by the learned Judges, especially of Spankie, J., was in favour of the contention that the seven years' rule applies. We are dealing here not with any question of inheritance or succession under the Hindu Law but only with a question of a rule of evidence and the Hindu Law will not apply. That view has been accepted and expressly followed by Sir Charles Sargant, C.J., and Nanabhai Haridas, J., in Dhondo Bhikaji v. Ganesh Bhikaji I.L.R. 11 Bom. 433. Again in Mazhar Ali v. Budh Singh I.L.R. 1 All. 53, (he question had to be considered with reference to Muhammadan Law, and it was held by that Court that the rule of Muhammadan jurisprudence of allowing ninety years to pass before a person who is absent is to be taken as dead was only a rule of evidence and was no longer applicable after the passing of the Evidence Act.
5. In these circumstances we hold that the twelve years, rule cannot now be applied at all but we should apply the rule under the Evidence Act, and accepting the District Judge's finding that, Kotayya was not heard of for the last ten years, he must be presumed to have died on the date of suit. Plaintiffs therefore are entitled to maintain the suit and the order of the District Judge is correct.
6. We dismiss this appeal against order, and direct the appellants to pay the costs of the respondents.