John Wallis, C.J.
1. This is a suit brought by the plaintiff to declare that the properties in South Canara of the late Zalle Subraya, who appears from Exhibit N to have died in that district in the year Parthiva, 1825--6, escheated to the Crown for want of heirs on the death of his widow Manjamma, who appears to have died at an advanced age in January 1906 at Benares. The suit was brought against the defendant in possession, and the latter in his written statement set up the existence, among other alleged heirs, of the junior widow and the senior widow's daughter and daughter's son of one Venkatapathaya, who are described as residing at Shimoga in the Mysore State. The Subordinate Judge has rejected the case set up as to the other alleged heirs but has held that the descendants of Venkatapathaya are in the line of heirs of the deceased. Before dealing with the facts of this somewhat extraordinary case, it will be well to refer to what their Lordships have laid down in Gridhari Lall v. Bengal Government 1 B.L.R.P.C. 44 : 10 W.R.P.C. 31 : 2 Sar. P.C.J. 382, the leading Indian case, as to onus which lies on the Crown in claims to escheat. In the Course of the argument in that case Kelly, C.B., observed that in England in a writ of Intrusion or Ejecknent, the Crown must, to take lands by escheat, prove there was an entire failure of heirs, and so also of a Lord of the Manor with respect to copyholds on the death of a tenant without heirs, and cannot rely upon the want of title of the party in possession.
2. In that case the Calcutta High Court had rejected the claim of the appellant Gridhari Lall, who had been in possession and recognized by Government as heir but had decided that the decree against him should not be made absolute until the claims of other alleged heirs had been investigated, and had remanded the case with a direction to the District Judge to call upon these and any other claimants to come in and prove their case. Their Lordships, whilst disposing of the appeal on the ground that Gridhari Lall was an heir, deemed it right to take exception to the procedure adopted by the High Court and to point out that, as against a defendant in possession, the Crown was in the position of an ordinary plaintiff in an ordinary suit in the nature of an ejectment. Their Lordships went on to lay down that it lay upon the Grown to prove at least prima facie that the deceased left no heirs, and that the defendant was entitled to set up any jus tertii that might exist. The course taken by the High Court, in their Lordships' opinion would have had the effect of causing the other claimants who had intervened as objectors to litigate their title with Government, casting apparently the burden of proof on them, and seemed to their Lordships to deprive the appellant of his right to defend his. possession on the ground of an existing jus tertii. It had been objected for the Crown that it could not be called upon to prove a negative, and it was apparently with reference to that objection that their Lordships guarded themselves by saying that it lay upon the Crown to prove at least prima facie that the deceased died without heirs.
3. Coming now to the facts of the present case, the deceased Zalle Subraya died in the year 1826 leaving a widow Manjamma and apparently no other near relations. Manjamma died at Benares in January 1906, having survived her husband for 80 years and having about 50 years before her death alienated her husband's properties in South Canara and removed herself to Benares where she died. No pedigree or family tree showing the alleged relationship has been produced from proper custody, and the defendant is obliged to rely on the pedigrees or statements of relationship which are to be found in the pleadings in the litigation already mentioned. As the alleged common ancestor Venkappia is fourth in ascent from s the deceased who died in 1826, direct oral evidence is not to be looked for. Nor again is there any oral evidence worth considering that either Subraya or his widow ever recognized the alleged relationship a On the other hand there are denials, no doubt, of an interested character by Manjamma in the litigation already referred to. In view of this litigation and I of the conduct of Manjamma in alienating j her properties and removing to Benares, it is not perhaps surprising that no q communication should have passed between p her and Venkatapathiya's family after her emoval to Benares, but the result is that there is no evidence of recognition any more than there is any direct evidence of relationship in support of the defendant's the case. We are in effect left to rely on evidence of assertion of title as reversioners by Vratapithy's line in certain suits filed between 1847 and 1872, in one of which the alleged relationship was found no not to be proved. The Subordinate Judge lays much stress upon the improbability that Venkatapathy's family would have his persisted so long in their claims if they;he had been concocted, but I cannot attach much weight to this argument, and I do not lot think the evidence of assertion it such as it would justify us in holding the alleged Relationship proved in view of the fact that res every assertion appears to have been met to with a denial by Manjamma, and that in ed the only case where the issue was tried there was a finding against it.
4. Exhibit N is the judgment in Original Suit No. 280 of 1847 in the Court of the in Sudder Amin of Honnavar, an unsuccessful is suit brought against Manjamma and others is by the widow of one Jalle Gundappa, he was alleged to be the undivided or brother of the deceased. Paragraph 11 shows that Venkatapathiya's grandfather 's Zalle Venkatapathiya had presented a petition id stating that he was the undivided dayadi of the deceased and that his claim should not d be prejudiced by the suit. The petition was recorded with the observation that if his w allegation was true he might bring a separate, suit.
5. This judgment was pronounced on 8th March 1852, and it was only some years later that Venkatapathiya's father Timmarasayya brought two suits, Original Suit No. 731 of 1862 and Original Suit No. 15 of 1864, in the Court of the Taluq Munsif of Kundapur. The plaintiff sued to recover the T properties of the deceased as his undivided dayadi from the widow and her alienees, and in her written statement she denied that he was a member of her family and alleged that r he had no right whatever in the property. In I Exhibit M which is a translation of the judgment from the Canarese, the Munsif observed in paragraph 11 the first question to be considered is whether the plaintiff and the first defendant are members of the same family, and whether either the plaintiff or his ancestors have either enjoyed the suit property or obtained the benefit thereof. In respect of this he has examined four witnesses in Kavelidurga Taluq (in Mysore, then under a Chief Commissioner) and four witnesses in this Court. Of these only two have given some particulars of the family, but they did not explain satisfactorily how they came to know them. From the evidence of the remaining witnesses nothing has been proved. It appears that the first defendant is a lonely woman without any relations whatever and having property, has been enjoying the same absolutely from the beginning of the year--(illegible). It appears from the general statement of the witnesses that the 1st defendant brought and had (sic) the plaintiff in her house and got writing and other work done by him, that thereafter, as ill-feeling arose between them, she turned out the plaintiff; that formerly he used to come in this manner from the ghauts occasionally from time to time staying for some days and go away. As these facts alone are not sufficient for establishing any rights--.' Some word is missing after this, but it, cannot affect the sense, and this judgment seems to me to contain a finding as 'between the plaintiff in that suit, Venkatapathiya's father, and the widow Manjamma, that the plaintiff had failed t prove his relationship with the deceased. The fact that Venkatapathiya's father failed in a contested suit to prove the relationship of his line with the deceased fifty years ago when such an issue was much more susceptible of proof than it is now is, in my opinion, evidence against the' existence of the right of that line to claim as heir of the deceased within the meaning of Section 13 of the Evidence Act. This seems to be in accordance with the ruling of this Court in Natesa Gramani v. Venkatarama Reddi 17 M.L.J. 518, to which I was a party, and on a re-perusal of the judgment of Beaman, J., in Mahamad Amin v. Hasan 9 Bom. L.R. 65, which was cited on the other side and impressed me at the time, I think that this case, where the alleged relationship admitted of assertion, denial and recognition in a series of transactions extending over a long series of years, comes precisely within the class of cases to which Beaman, J., held the section specially applicable at page 153 of his judgment. If relevant, this evidence is, in my opinion, of great importance as it practically stands uncontradicted, seeing that the Subordinate Judge has rightly, in my opinion, disbelieved all the oral evidence for the defence in any way connecting Venkatapathiya's line with the deceased and we agree with him in this. The effect of this evidence is, moreover, strengthened by the subsequent conduct of the parties. Timmarasaya, the plaintiff in these suits of 1862 and 1864, did not venture to file another suit, but his son Venkatapathiya filed Original Suit No. 24 of 1871 in the Court of the Principal Sudder Amin of, Mangalore, making his father Timmarasaya a defendant, for a declaration that the alienations made by Manjamma were not binding on the reversioners. This suit was dismissed by the first Court and by the High Court in Second Appeal No. 657 of 1872 on the view which then prevailed that only the next reversioner could sue, but neither Timmarasaya nor Venkatapathiyal after his death ever instituted any other suit, and the evidence of his daughter Thimmava shows that she and her family never put in any claim until they were asked to sign a claim at the instance of the defendant, after the Collector had issued a notice calling for claim. The Subordinate Judge has really nothing to go upon but the fact that the relationship has been asserted in three successive suits, and this, though it was not proved in the only case in which it was investigated, and the further fact of slight import that both the deceased and the petitioner in the suit of 1847 bore the first name of Zalle. The hesitation shown by Government as to whether they should file this suit or wait for certain deaths which would obviate the necessity of raising this issue proves nothing in support of the defendant's case. Without the evidence of the failure of Venkatapathiya's father to establish the relationship in 1864, there might have been more difficulty in saying that the plaintiff has established the prima facts case which he is required by law to make out, but that transaction should, in my opinion, be regarded as more than shifting the onus, and as I have already pointed, the same inference is suggested by the subsequent conduct of the parties. I would allow the appeal, reverse the decision and give judgment for the plaintiff. On the 5th issue we agree with the finding of the Subordinate Judge that the lease is not binding on the plaintiff, and we cannot accept his view that the plaintiff is not entitled to recover this property in the present suit without suing to set it aside. See Modhu Sudan Singh v. Rooke 1 C.W.N. 433, Harihar Ojha v. Dasarathi Misra 9 C.W.N. 636 and Bijoy Gopal Mukerji v Krishna Mahishi Debi 9 Bom. L.R. 602. There is no ground of appeal as to the defendant's right to improvements, and we are not prepared to allow the point to be raised. We accept the finding of the Subordinate Judge who accepted the finding in paragraph 13 of the 2nd Commissioner's report. We think the Subordinate Judge was wrong in disallowing the plaintiff's right to mesne profits. The amount will be determined by the lower Court and embodied in the final decree, the mesne profits to run from 23rd September 1909, when the defendant was served with notice calling on him to surrender possession. By consent, we also direct the Court to ascertain what changes, if an, must be made in the figures given in paragraph 13 of the 2nd Commissioner's report, having regard to the suggestion that the defendant who has continued in possession, may have cut and carried away the trees valued by the Commissioner or exhausted the improvements for which an allowance was made, any such alteration to be embodied in the final decree. The plaintiff is also entitled to future mesne profits from date of suit to delivery of possession. The appeal is allowed and each party will bear his own costs of this appeal and there will be proportionate costs after mesne profits have been ascertained.
6. The other Appeal No. 274 of 1913 is dismissed with costs.
Seshagiri Aiyar, J.
7. I agree and wish to say a few words on the general features of the case. If the persons in whose favour a jus tertii is set up by the defendant sued to recover the plaint properties, I would have had no hesitation in holding that they have failed to establish their claim. The person put forward as the sister's son of Zalle Subraya, the last male owner, has absolutely failed to prove his relationship. I cannot believe that if he was related to Manjamma as he states, he would never have had any correspondence with her, would not have visited her in Benares and would not have adduced evidence of the observance of pollution on her death. Neither he, as the alleged nephew of Gundappa, took any objection to the sale of all her property by Manjamma when she left for Benares--no suit was brought subsequently to contest the alienation. Equally unsatisfactory is the evidence regarding the claim of defence witness No. 1. He is unable to prove that he observed pollution when Gundappa's widow Kavaramma died. The Subordinate Judge was not impressed with this evidence and I do not differ from him.
8. The case of Thimmavva is more difficult. Naturally enough, great stress was laid by the learned Vakils for the respondent on the use of the family name Zalle. The evidence regarding this is very meagre. My Lord has dealt with it and I do not propose to examine it any further. It is noteworthy that in the genealogical trees filed from 1847 onwards, the word Zalle does not appear. There is a singular lack of testimony regarding the identity of Gotram between that of the claimant's father and that of the last male owner. This is very suspicious. In Mitakshara, Chapter XI, Section 5, placitum 6, the concluding clause runs thus: 'The relationship of samanodahas extends to the fourteenth degree; or as some affirm, it reaches as far as the memory of birth and name extends. This is signified by gotra or the relation of family name.' The family name is generally taken from the place in which the common ancestor originally lived. It is possible that this common family name may be the heritage of more than one group of persons. These may not be related to each other at all; but if the family name is associated with the common gotra (which is by repute the name of the Rishi of pre-historic days from whom, descent is traced), then there will be something tangible to goby. I repeatedly asked the learned Vakils whether there was any evidence of the common gotram. The absence of this evidence is very significant. I, therefore, do not attach weight to the 1 use of the name Zalle by the claimant's father and grandfather. Barring that, we have only the assertions of right on three occasions and the filing of genealogical trees. On each of the occasions, the course pointed; out by the Court which would have brought' matters to a head was not followed. Venkatapayya asserted the, extravagant claim of being undivided in the suit of 1847 (between Kavaramma and Manjamma). He was referred to a regular suit. Nothing was done till nearly 15 years after. Timmarasaya, the son of Vankappia, asserted that he was an undivided cousin of the husband of Manjamma in a suit of 1862 and in Original Suit No. 415 of; 1884. These suits were dismissed. At this time Manjamma had granted an arthamulgeni lease to the defendant's vendor's predecessor; if the claim of being a joint member of the undivided family was found unsustainable, it is difficult to understand why the claim as reversioner or a declaration that the alienation was not binding beyond the widow's life-time, was not subsequently litigated. At the time of the third litigation, the unsuccessful plaintiff of 1864 was alive. His son sued now. He was non suited on the ground that his father was alive. Yet, the father did not sue. Nor did the son, subsequent to the death of the father, pursue his remedies. These are very suspicious circumstances. I am, therefore, unable to attach weight to the three assertions of right referred to by the Subordinate Judge.
9. It was argued by Mr. Ananthakrishna Aiyar that the burden of proof lies on the Secretary of State. He relied on Gridhari Lall v. Bengal Government 12 M.I.A. 448. In that case, the defendant in possession was an undoubted relation of the last male-holder. He was the father's maternal uncle of the deceased. The question was whether he was an heir under the Benares School of Law. The Judicial Committee held that he was. Their Lordships further pointed out that the appellant was entitled to defend his possession not only by proof of his own title, but by setting up any jus tertii that might exist. By an alternative plea he did set up such a bar to the respondent's suit; and the title of those persons who, he says, are, failing himself, the heirs of Woopendro Chunder Roy', has never yet been determined.' Where a specific individual is put forward in the written statement as an heir and the right of that individual was not determined, the Government could not say that the property has escheated. I do not understand the above passage to lay down, before there can be an escheat, that the Government should affirmatively establish the invalidity of the claim of the third party whose title was pleaded by the defendant. Their Lordships intimate in the earlier portion of the judgment that the Government should prove prima facie that the last male owner died without heirs. This has been done in this case. Nobody claiming heirship to. Subaraya is in. possession. No persons who, in common parlance, could be said to be relations, have been found to have had any correspondence with the woman who left for Benares 50 years ago. This is all the prima facie proof that can be expected. The burden the would be shifted to each of the claimants to establish prima facie his relationship to the last male-holder. If that is not satisfactorily done, the Government must succeed. The decision of Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 M.I.A. 500 : 1 Sar. P.C.J. 752 supports this view. I, therefore, agree with the learned Chief Justice that the appeal should be allowed and in the further order which he proposes to make.