1. The first defendant in O. S. No.'42 of 1973, Sub-court, Kumbakonam, is the appellant in this Second Appeal which arises out of a suit for a declaration of title to the property and for a declaration with reference to certain amounts lying in court deposit instituted by one Natarajan Iyer, who figured as the plaintiff originally and whose legal representative's are respondents 1 to 7 in this second appeal. The 8th respondent. herein, who figured as the second defendant in the suit, claims to be a tenant in occupation of the disputed property. The property in dispute measures 10' east to west and 125 north to south in Big Street, Kumbakonam town. Originally, this property as well as a similar extent measuring in all 10 east to west and 259 north to south belonged to: one Visalakshi Ammal. One Kuthaperumal Vaidyar was a flourishing native doctor in Kumbakonam and he died in or about 1926. Through his first wife, he had a son Govindaswamy. Srinivasa was another son of Kuthaperumal through his second wife Lokambal. On 29-8-1927, Govindaswamy married to Kasarnbu (P.W.2) and it is not now in dispute that Govindaswami and Kasambu lived as husband and wife for a period of about 3 years after the marriage that they had no children and that thereafter Govindaswamy bas not been heard of. On 1-2-1928 Visalakshi, who was 4 entitled to the entirety of the property, sold the same to Govindaswamy and his brother Srinivasa, who was then a minor and was represented by his mother and guardian Logambal. In that document. Srinivasa was described as an undivided minor son in the family and there is no dispute that the house was purchased from Visalakshi in favour of Govindaswami and his then minor brother Srinivasa and that the acquisition was on behalf of the joint family, which then consisted of Govindaswamy and his minor brother Srinivasa. On 23-8-1970, Kasambu Animal purported to execute a sale deed in respect of the suit property in favour of Nataraja lyer, whose legal representatives are respondents 1 to 7 in this second appeal, for a consideration of Rs. 5,000/-. It is on the strength of this sale deed thai Nataraja lyer instituted 0. S. No. 42 of 1973, SubCourt, Kumbakonam, praying for a declaration of his title to the suit property and also for a declaration that he is entitled to claim certain amounts lying in court deposit to the credit of R, C, 0. P. No. 11 of 1971 instituted by the appellant against the 8th respondent herein. The appellant resisted the suit contending that Kasambu Ammal was an utter stranger and not the wife of Govindaswamy and had therefore no interest whatever in the suit property, that the sale deed in favour of Nataraja Iyer was a bogus transaction and would not operate to convey any title in. favour of either Natarajan Iyer or his legal representatives, that Govindaswamy and Srinivasa constituted members of a joint Hindu family and since Govindaswamy was n9t heard of for over 7 years, Srinivasa became the sole surviving coparcener and had also acquired title to the suit property by adverse possession and, therefore, under the sale deed executed by.Srinivasa ,on 10-9-1970, he had acquired title to the entirety of the property and, therefore, Nataraja Iyer was not entitled to the relief of declaration of title or even a declaration with reference to the amounts deposited by the 8th respondent herein to the credit of the eviction proceedings initiated by the appellant in R. C. 0. P. No. II of 1971. The 8th respondent contended that as a rival claim of the title to the property in his occupation was put forth by the appellant and respondents 1 to 7, he was prepared to execute a rent deed after a decision regarding title was Yendered, though an order of eviction had been passed against him in R. C. 0. P. No. I I of 1971 filed by the appellant herein. It was also his further plea that he was an unnecessary party to the suit and therefore, the suit as against him should be dismissed.
2. Before the Sub-Court, Kumbakonam, on behalf of respondents 1 to 7, Exs. A.1 to A. 12 were marked and P. W. I to P. W. 8 were examined. while, on behalf of the appellant, Ex. B. I to Ex. B. 46 were filed and D. W. I to D. W. 6 were examined. On a consideration of the oral as well as the documentary evidence, the learned Subordinate Judge found that Kasambu Ammal was the wife of Govindaswamy and had title to and was in possession of an undivided half share in the property and, therefore, the purported sale by her of a definite portion viz., the front half of the property was invalid, that Kasambu Ammal was in possession of the property afong wfth Srinfvasa tilf about six or seven years prior to the filing of the suit, that the sale dt. 10-9-1970 executed by Srinivasa in favour of the appellant, though true and supported by consideration was not valid, that Srinivasa was not solely and absolutely entitled to the property and had also not perfected title by adverse possession and that the sale in favour of deceased Nataraja Iyer was fraudulent and ante dated. In effect, therefore, the learned Subordinate Judge found that neither the appellant nor deceased Nataraja lyer can be said to be the real owner of the disputed property and in that view, the suit was dismissed. Aggrieved by that, the appellant preferred an appeal in A. S. No. 182 of 1977 and respondents I to 7 preferred a memorandum of cross objection in so far as their claim was negatived by the trial court. The learned District Judge found that Kasambu was the wife of Govindaswamy, that the exact date of death of Govindaswamy was not known, that Srinivasa had not perfected title to the suit property either by ouster or adverse possession, that Nataraja 1yer had title to one-half of the entire property by reason of the sale in his favour under Ex. A. I I dt. 23-8-1970 executed by Kasambu in his favour, that the appellant would also be entitled to an undivided half share in the entire property on the strength of the sale executed by Srinivasa in his favour, that it would be open to the parties to file a separate suit for partition of the suit property and also for apportioning the amounts lying to the credit of R. C. 0. P. No. I I of 1971, Rent Control Court. Kumbakonam and accordingly a decree declaring that the appellant as well as respondents I to 7 are each entitled to an undivided half share in the entire house propertyand to half of the amount lying in court deposit to the credit of R. C. 0. P. No. II of 1971, Rent. Control Court, Kumbakonam was passed. In the result. the appeal as well as the memorandum of cross-objections were partly allowed and. it is the correctness of this that is challenged in this second appeal.
3. The principal contention advanced by the learned counsel for the appellant is that even at the time when the property in, dispute was acquired under Ex. B. I dt. I2-1928 from Visalakshi, Govindaswamy and Srinivasa constituted members of an undivided Hindu family and the family continued to remain as such and that though by reason of Govindaswamy not having been heard of for more than 7 years, a presumption that he died can be raised under S. 108 of the Evidence Act, yet, there was no such presumption with reference to the actual date of his death and unless respondents 1 to 7 establish clearly by evidence that Govindaswami died on or after 14-4-1937, when the provisions of the Hindu Women's Right to Property Act came into force, Kasambu Ammal could not have acquired any interest in the undivided half share which belong to Govindaswami and, therefore, she could not in turn have conveyed any interest in favour of Nataraja Iyer under the sale deed Ex. A. 11 dt. 23-8-1970 executed by her. It was also further submitted by the. learned counsel that in the absence of any evidence relating to the actual date of death of Govindaswami, the provisions of the Hindu Women's Right to Property Act would not apply so that by reason of the operation of the rule of suvivorship, Srinivasa became exclusively entitled to the entire property which 'he was competent to deal with and dispose of in any manner he liked and therefore the sale under Ex. B. 2 dt. 10-9-1970, which has been found to have been executed by Srinivasa in favour of the appellant even by the lower appellate court, would operate to convey title to the appellant in respect of the entirety of the property. On the other hand, the learned counsel for respondents 1 to 7 would contend that though Govindaswami was not heard of for a period of nearly 7 years leading to the drawing of a presumption regarding his death, yet, such a presumption should be so drawn to the effect that Govindaswami died on 14-4-1937 and that therefore the sale in favour of Nataraja Iyer, the predecessor-in-title of respondents I to 7 by Kasambu Ammal, wife of Govindaswami, would. be valid and operative to convey title in respect of half of the property at least. Alternatively, the learned counsel relied upon Ex. A. 12, a notice issued on 311-1967 to contend that Govindaswami left his usual abode only in 1941 and had not been since heard of and, therefore, if at all any presumption could be raised under S. 108 of the Evidence Act, he could be presumed to be dead only 7 years thereafter by which time, the provisions of the Hindu Women's Right to Property Act had already come into force and, therefore, the sale deed executed by Kasambu Ammal in favour of Nataraja lyer would not be subject to any infirmity.
4. Before proceeding to consider these rival submissions, it would be necessary to set out a few undisputed facts. Admittedly, Govindaswamy and Srinivasa constituted members of an undivided Hindu family and they acquired not only the property in dispute, but also a similar extent making up the entirety of the property under Ex. B. I dt. 1-2-1928 from Visalakshi Ammal. Thus, the acquisition of the property in question was by a joint family consisting of Govindaswami and his brother Srinivasa. Even according to the evidence of Kasambu, wife of Govindaswami, examined as P. W. 2, there was no division between Govindaswami and Srinivasa and that she and Govindaswami lived as husband and wife three years after the marriage on 29-8-1927 as shown by Ex. A. 8 and that thereafter the whereabouts of Govindaswami were not known. Even on the basis, therefore, of the evidence of P. W.,2, wife of Govindaswami, who is normally likely to have heard or sometime after August 1930. In such a situation, as per S. 108 of the Evidence Act, a presumption could be raised that not having been heard of for a period of seven years, by those who would naturally have heard of Govindaswami, if he had been alive, Govindaswami was dead. But S. 108 of the Evidence Act is silent about the precise point of time when such a person, who had not been so heard of for 7 years, could be presumed to be dead. In -other words, S. 108 of the Evidence Act merely enables the raising of a presumption with reference to the death of a person generally, but there is no such presumption that he had died at any particular time during the period of 7 years or at the end of the period of 7 years from the date from which he was not heard of. In Taylor on Evidence (12th Ed. para 200 at page 181) the legal position is summed up in the following passage:
'But. although a person, who has not been heard of for seven years, is presumed to be dead, the law raises no presumption as to the time of his death; and therefore, if any one has to establish the precise period during those seven years, at which such person died, he must do so by evidence, and can neither rely on the one hand. upon the presumption of death, nor on the other, upon the presumption of the continuance of life -.
In Halsbury's Laws of England, 4th Ed. Vol. 17. para 116 at page 86, the rule as to proof of life or death at a particular point -of time is set out: as under 'He who asserts that a person was alive on a given date, or dead on that date, must prove the fact by evidence, since there is no presumption of continuance of life, and, generally, no presumption -of death at a particular time'.
It is thus manifestly clear that though a presumption regarding death could be generally drawn if a person had not been heard of for-seven years by those who would have ordinarily heard of him. had he been alive, yet, there is no presumption whatever regarding the precise date of death. The presumption under S. 108 of the Evidence Act could be raised to extend generally to the fact of death at the expiration of seven years and not to the date of death at any particular period, for as pointed out earlier, there is , no presumption that death took place at the end of seven years of at any particular time within that period of seven years. The precise date of death cannot be a matter of presumption on the language of S. 108 of the Evidence Act, but one of proof by evidence and undoubtedly, the onus of praying that death did take place at a particular point of time within the period of seven years or even later lies on the person who seeks to establish a right based on that fact. Equally on the language of S. 108 of the Evidence Act, death cannot be presumed to have occurred on the date on which the suit was filed, though it may perhaps be presumed that the person was not alive on. the date of the institution of ,the suit. There cannot, however, be a presumption that the person was dead on the date of the suit. That this is the position in law is indeed well settled. The Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir (1926) 50 Mad 289
AIR 1926 PIC 9 observed thus :
'Now upon this question there is, their Lordships are satisfied, no difference between the law of India as declared in the Evidence Act and the Law of England ....... and searching for, an explanation of this very persistent heresy, their Lordships find it in the words which the rule both in India and in England is usually expressed. These words taken originally from In Re -Phene's Trusts (1870) LR 5 Ch App 139 run as follows :'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'.Following these words, it is constantly assumed - not perhaps unnaturally 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, of course, is not so. 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'.'
It is evident from the passage above extracted that the question of presumption could arise only when the question whether a person is alive or de ' ad is raised. Again in In Re V. Seshi Ammal (1958) 2 Mad U 53 : AIR 1958 Mad 463Subrahmanyam, J., had occasion to refer to the presumption under S. 108 of the, Evidence Act and stated clearly that the presumption would extend only to the fact of death and ri~t to the time of death at any particular period. The exact time of death, according to the learned Judge, was not a matter of presumption, but of proof by evidence by a person who claims a right for the establishment of which that fact is essential. To similar effect is the decision in Gnanamuthu Udayar v. Anthoni : AIR1960Mad430 . After an analysis of the provisions of Ss. 107 and 108 of the Evidence Act, it has been laid down that the presumption under S. 108 of the Evidence Act would only be regarding the fact of the death at the time the question is raised and not at any particular anterior point of time. In Narayana Pillai v.Velayuthan Pillai : AIR1963Mad385 , Ramachandra Iyer, Chief Justice, had occasion to consider this question. After referring to the decisions of the Privy Council in Lalchand Marwari v. Ramrup Gir (1926) 50 Mad U 289 : AIR 1926 PC 9 in, re V. Seshi Ammal (1958) 2 Mad 53 : AIR 1958 Mad 463 and Gnanamuthu v. Anthoni : AIR1960Mad430 the learned Judge pointed out that it is beyond doubt that it is always for the party who pleads that a man died at a particular time to show the date on which the death took place and that it would make no difference whether the date of death pleaded is within or beyond the period of seven years from the time the person was last heard of. In the course of the judgment, reference has been made tothe decision in Balnaicken v. Achama Naicken : AIR1921Mad285 and an unreported judgment of Madhavan Nair, J., in Second Appeals Nos. 55 to 58 of 1922 and CRP No. 79 of 1922 Deva Ganugula Kanakamma v. Devaganugula Narasamma. In the first of the decisions the rule that there was a presumption that a person was dead when he or she was not heard of for seven years and that there was no presumption as to the particular date on which he or she died has been referred to. But thereafter the following observations occur.
'But these remarks apply only when the point of time at which the death has to be placed falls necessarily within the seven years. In our opinion, in a case where' the point of time to which the death has to be referred, may be, placed indifferently either during the seven years or after the lapse of the seven years (it not being necessary for the plaintiff to show that the person lived during the seven years), there is a presumption after the lapse of the seven years in favour of the death and it is for the other side to displace the presumption and the party relying on the presumption is entitled to succeed if no evidence is offered by the other side.'
The decision of Madhavan Nair, J. held that at the end of seven years from the date of disappearance of a legatee, the presumption of death arose and the burden would be on the party who challenges the will to prove that he died at some later date. Even in these cases, a presumption under S. 108 was raised and applied only when the question actually arose for decision before the court and these cases cannot, therefore, be pressed into service in support of the proposition that there is a rigid and inflexible rule that a person died immediately after the lapse of seven years from the date of his not having been heard of or his disappearance. Besides, the decisions in Balnaicken v. Achama Naicken : AIR1921Mad285 and in Devaganugula Kanakamma v. Devaganugula Narasmamma S. A. 55 of 1922 47 MLJ 23 had been decided prior to the decision of the Privy Council in Lalchand Marwari v. Ramrup Gir AIR 1926 PC 9 : 50 MLJ 289. In Narayana Pillai v.Velayutham Pillai : AIR1963Mad385 , after referring to the decisions , in BaInaicken v. Achama Naicken AIR 1921 Mad 285 : 41 M U 295 andDevaganugula Kanakamma v. Devaganugula Narasamma 1924 47 MLJ 23,Ramachandra Iyer, Chief Justice held atP. 386 as follows :
'S. 108 lays down a presumption when the question as to a person's existence is raised in issue before the court. If the question is raised before court at a particular point of time, and more than seven years has elapsed by that time from the time when a man was last heard of, the presumption will be that he had died before the date when the question was raised. That is not the same thing as saying that when such a question is raised long after the seven year period is over there is a further presumption that he had died at any particular time during that period or at the end of seven years from the date of disappearance.'
I respectfully agree with the above reasoning. In T. R. Rathnam v. K. Varadarajulu : AIR1970AP246 , Gopal Rao Ekbote, J. considered the scope of the presumption under Ss. 107 and 108 of the Evidence Act and pointed out that it would be erroneous to seek t apply both Ss. 107 and 108 to one and the same case as at the same time, a person cannot both be alive and dead. It was also further pointed out that the exact time of death is not a matter of presumption, but one of evidence and the onus of proving that fact is not cast under S. 108, but under the principles of burden of proof. According to the learned Judge, that death took place at any particular time whether prior to seven years before the suit was laid or within seven years prior to the said suit lies upon the person who claims a right to the establishment of which the exact date of death of the said person is essential, that there is no presumption that death took place at the close of seven years or earliest on the date of the institution of the suit and that there is no provision of law which warrants any such presumption. The matter is now put .beyond any doubt by the decision of the Supreme Court in Gurdit Singh v. Munsha Singh, : 2SCR250 . In that decision, the Supreme Court had to consider whether the suits had been instituted in time within three years after the death of one Kishan Singh, who had not been heard of for more than seven years since 15-81945. In dealing with the scope of the presumption under S. 108 of the Evidence Act, the Supreme Court, after referring to Nepean v. Doe Knight ( 1837) 2 NI & W 894 : 7 LJ Ex 335 Lal Chand N4arwari v. Ramrup Gir AIR 1926 PC 9 Jiwan Singh v. Kuar Reoti Singh : AIR1930All427 , Kottapalli Venkateswarlu v. Kottapalli Bap4yya AIR 1957 AP 380. Punjab v. Natha AIR 193f Lah 582 and Ram Kali v. Narain Singh pointed out at page 646 that under S. 108 of the Evidence Act, the precise time of the death is not a matter of presumption, but of evidence and the onus of proving that the death took place at any particular time within sc en years lies upon the person who claims a right for the establishment of which the proof of that fact is essential and that the plaintiff in that case had not only to prove that Krishna Singh had not been heard of for a period of seven years, but also to prove particularly the point of time within seven years when Krishna Singh's death had occurred and as they had failed to prove it, the suits cannot be held to have been brought within three years of the accrual of the right to sue
5. Applying the aforesaid principles to the facts of this case, when the suit was instituted and the question of the death of Govindaswamy came to be considered, respondents 1 to 7 can at best be stated to have established by reason of the presumption under S. 108 of the Evidence Act that Govindaswami had riot been heard of for a period of seven )cars long prior to the suit and that, therefore, he should be presumed to be generally dead and it became necessary to consider that question in 1973 when the suit was instituted; but that would not suffice to enable respondents I to 7 to claim title to the interest of the Govindaswanii. Through Kasambu. Earlier, it as been noticed how Govindaswami and Srinivasa constituted members of an undivided Hindu family and how the entire property was also acquired in 1928 by both of them from Visalakshi. P. W. 2 had given evidence that there was no division between Govindaswami and Srinivasan. According to her evidence, from about August, 1930 onwards, Govindaswami was not heard of and therefore it could generally *be presumed that by about 1937, Govindaswarni was dead. But that would not assist respondents I to 7 to claim title to Govindaswami's interest in the joint family property. Admittedly, in this case, there is no proof that Govindaswami died after coming into force of the Hindu Women's Right to Property Act on 14-4-1937. In the absence of evidence to that effect, it cannot be assumed or presumed that Govindaswami died on -or after 14-4-1937 so that his interest in the joint family property viz., the house aoquired under Ex. B. I became available to Kasambu and she in turn was competent to convey the title to Nataraja Iyer and through him, respondents I to 7 could claim. In the absence of evidence to establish the precise date of death of Govindaswami, respondents 1 to 7, merely, on the strength of the presumption raised under S. 108 of the Evidence Act, cannot be heard to contend that Govindaswami must be deemed to have died on or after 14-4-1937 when the Hindu Women's Right to Property, Act came into force and therefore Kasambu, his wife, became entitled to his undivided interest in the property, which she was competent to convey in favour of Nataraja Iyer under Ex. A. I I dt. 23-8-1970. To put it differently, on the death of Govindaswami, in the joint family consisting of himself and Srinivasa, Srinivasa became entitled to the enitrety of the property by survivorship and therefore he was competent to deal with the property in favour of the appellant under Ex B. 2 dt. 10-9-1970. The appellant must therefore be held entitled to the entirety of the property as a result of his purchase from Srinivasa under Ex. B. 2.
6. The reliance placed on Ex. A. 12 by the learned counsel for respondents 1 to 7 does not in any manner advance their case. Earlier, the evidence of P. W. 2 had been referred to. With reference to the whereabout's of Govindaswamy, Kasambu Ammal, his wife' was the person to have known something about. Ex A. 12 purports to be a notice issued by one Chakrapani Chettiar to Srinivasa and Kasambu and others calling upon them to execute a sale deed conveying certain properties in accordance with the terms of an agreement dt. 26-4-1967. In the course of that notice, it has been stated that Govindaswami left the place in 1941 and had not been heard of since then and therefore the members of his family have treated him as dead. This statement in the notice addressed by a person claiming certain rights under an agreement of sale cannot be accepted in preference to the clear and convincing testimony of the wife of the very person, whose whereabouts were not known. Ex. A. 12 cannot, therefore, be accepted as establishing that Govindaswami was not heard of only from 1941 onwards hnd that he should be presumed to be dead in or about 1948 after the Hindu Women's Right to Property Act came into force.
7. Thus, on a careful consideration of the entire matter, the sale in favour of Nataraja Iyer executed by Kasambu Ammal conveying the suit property to him would not clothe Nataraja Iyer or respondents I to 7 in this second appeal with any title to the property sold there under as Kasambu Ammal herself did not have any title thereto. On the contrary, in the absence of any clear evidence with reference to the actual date of death of Govindaswarni by respondents 1 to 7, even giving effect to the presumption under S. 108 of the Evidence Act, Govindaswami, just be presumed to have generally ceased to be living in or about 1937 and therefore, his interest in the joint family property would not have passed but survived to Srinivasa, who as the sole surviving coparcener was competent to dispose of the entire property in favour of the appellant as he did under Ex. B. 2 dt. 10-9-1970. The result is, the appellant will be entitled to the entirety of the property on the strength of the sale deed executed in his favour under Ex. B. 2 dt. 10-9-1970 by Srinivasa and respondents I to 7 will have no title whatever thereto. Consequently, the second appeal is allowed and the judgment and decree of the learned District Judge are set aside and the suit in 0. S. No. 42 of 1973, Sub-court, Kumbakonam, will stand dismissed with costs throughout.
8. Before parting with this case, the court wishes to place on record the valuable assistance rendered by Thiru. G.Subramanian, who appeared as amicus curiae and placed before court all the relevant materials.
9. Appeal allowed.