Panchapagesa Sastry, J.
1. This second appeal arises out of a suit instituted by the plaintiff-appellantto recover certain jewels presented to his daughter-in-law at the time of her marriage with his son. It would appear that the son lived for sometime with his wife and thereafter disappeared. It is now more than seven years since he disappeared and nobody has heard from him. The second defendant, the daughter-in-law of the plaintiff, married another person in the year 1941. This suit was filed in December 1945 for recovery of the jewels or their value. The question to be decided by me now is one of limitation. The trial Court held in favour of the plaintiff and decreed the suit. On appeal, the District Judge reversed the decree of the trial Court. He was of opinion that the true cause of action is the remarriage of the second defendant and limitation commenced to run from the date of such remarriage. As it was more than three years, thereafter that the suit was brought, he dismissed the suit.
2. In the second appeal it is contended that this is a case where the remarriage is not consequent on divorce between the parties. This is a case where the remarriage proceeded on the footing of the husband being dead at the time of such remarriage. Nobody knew for certain whether the husband was really dead or not at that time. But it was certainly on the footing of his supposed or presumed death that the remarriage took place and it could be valid if at all only on that basis. Even now there is no definite proof that he died or that he died on any particular day. It is only by recourse to the presumption under Section 107 of the Evidence Act that the courts have to act on the basis that the husband is dead. Plaintiff's claim can be sustained only on the footing of his son's death. The difficulty in this case is caused by the fact that neither party is able to prove definitely as to when exactly plaintiff's son died. There is no presumption in law as to the time of death.
3. Article 49 of the Limitation Act is the articleon which both sides rely as applying to the case.The starting point would be when the possessionbecame unlawful. In the state of affairs as it wasin 1941, nobody can say that the retention of thejewels was unlawful. Whether it was lawful orunlawful, depended upon a fact which was unknown to the parties then, and equally unknowntill now, but by applying the presumption under Section 107 of the Evidence Act, one particular step inestablishing both the plaintiff's title to thejewels as also the unlawful character of the retention now is established and the court proceeds to act on that basis. In these circumstances the proper way of applying Article 49 of theLimitation Act to the peculiar facts and circumstances of this case is only to hold that it hasnot been shown that the retention of the jewelswas unlawful at any time prior to three yearsbefore the suit was instituted. In this view itfollows that the judgment and decree of thelower appellate court should be set aside and theappeal remanded to that court for disposal onthe other points. The costs of this second appealwill abide and follow the results of the rehearingof this appeal by the lower appellate court.Court fee paid on the memorandum of secondappeal will be refunded. Leave to appeal is refused.