K. Suburamu Pillai and another vs Ramayi Ammal and others

Ramakrishnan, J.—The point for decision in this second appeal is a short one and I propose to deal with it briefly. A reference can be made to the genealogical tree found in paragraph 12 of the judgment of the lower appellate Court. Parvathi Achi, the widow of Poysolla Meyya Pillai, died without issue on 12th June, 1955. The place of the second plaintiff Mangayachi is indicated in the genealogical tree and she traces relationship to the last male owner, the aforesaid Poysolla Meyya Pillai, through a common ancestor of the same name. The first plaintiff is the second plaintiff''s sister''s son who is also in the line of descent from Poysolla Meyya Pillai, the common ancestor. But he is placed one rank below the second plaintiff. In his case the line of relationship, is broken through the intervention by a female relative, viz., his mother. Therefore, counting from the common ancestor he will be beyond five stages of descent, his mother having intervened, and according to the rules of intestate under Hindu Law while the second plaintiff will be within the permitted degree of relationship for inheritance, the first plaintiff will fall outside it. But this is not the main point for decision in this case. The decision in this case turns upon the date of birth of one Sankaran whose position and degree of relationship to the last male owner, are indicated in the genealogical tree. It is common ground that if Sankaran was alive on 12th June, 1955, when the last male owner died, he would be entitled to succeed to the estate in preference to the plaintiffs. Only in the event of it being established that Sankaran was dead before the aforesaid date, could the plaintiffs maintain their claim to inherit the properties. The plaintiffs adduced evidence that Sankaran had not been heard of for several years before the suit was filed and the presumption under S. 108 of the Indian Evidence Act should be drawn in favour of the plaintiffs for holding him to have died before 12th June, 1955. The trial Court relied upon the above said presumption and decreed the suit in favour of the plaintiffs. The defendants, who are the alienees from the widow Parvathi Achi filed the appeal. The learned District Judge, Madurai, considered a certain admission of P.W. 1 in the course of his evidence which would show that Sankaran was seen alive by P.W. 1 in January, 1950. Therefore, on 12th June, 1955, the date of the death of Parvathi Achi, Seven years had not expired from the aforesaid date in January 1950, and consequently no question of the presumption under S. 108 of the Indian Evidence Act regarding his death, could be drawn in this case. This finding of fact by the learned District Judge would suffice for dismissing this second appeal which is filed by the plaintiffs against the decision of the lower appellate Court allowing the appeal and dismissing the suit. Learned Counsel Mr. Gopalaswami Aiyangar appearing for the appellants urged arguments on the footing that the period during which Sankaran was heard of by any of his relations was nearly 15 years. According to him, 15 years period from the date of the suit counted backwards, would take one to a Period more than seven years before 12th June, 1955, and that would lead to an inference of Sankaran''s death having taken place before 12th June, 1955. But this argument can be easily repelled by a series of decisions which have explained the scope of the presumption under S. 108 of the Indian Evidence Act. Reference was made to the Privy Council''s decision in Lalchand Marwari v. Ramrup Gir 50 M.L.J. 289 (P.C.) the decision of the Andhra Pradesh High Court in Venkateswarlu v. Bapayya AIR 1957 Andh. 380 the decision of Ramaswami J. in Gnanamuthu v. Anthoni AIR (1960) Mad. 430, and the decision of Ramachandra Iyer C.J. in Narayana Pillai Vs. Velayuthan Pillai (unsound mind) represented by Lakshmi, . The principle laid down in these decisions is that while the presumption under S. 108 of the Indian Evidence Act is concerned with the sole point whether a person is alive or dead after those who would have naturally heard of him if he has been alive have not heard of him during a period of seven years. In such a situation there would be a presumption that he is dead, but there is no similar presumption about his death having taken place at any particular point of time.

Assume for instance that Sankaran was last heard of by his kith and kin on a date 15 years prior to the present suit filed in 1958, that is in 1943. It would not follow by the force of the presumption in S. 108, Indian Evidence Act that Sankaran should be presumed to have died seven years after 1943, that is, in 1950. All that the presumption lays down is that Sankaran should be presumed to be dead when the question about his being living or being dead arises, provided that at the time when the question arises, the period when he had not been heard of was seven years or more. From this point of view, it is possible that Sankaran might have died at any time after 1943 (assuming that he was last heard of in 1943, which however is not the fact in this case) and before the present suit. No particular point of time of death could be predicted from the mere circumstances of his not being heard of for a period of seven years or more. The decision of the learned Chief Justice in Narayana Pillai Vs. Velayuthan Pillai (unsound mind) represented by Lakshmi, brings out this point very clearly. The learned Chief Justice observed: If the question is raised before the Court at a particular point of time and more than seven years had 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 years period is over there is a further presumption that he had died at any time during that period or at the end of seven years from the date of disappearance.

As already mentioned in the beginning, this question about the application of the presumption under S. 108 of the Indian Evidence Act does not really arise for consideration in this case, because of the significant admission of P.W. 1, that Sankaran was seen alive in January 1950. That rules out any presumption about his death occurring prior to 12th June, 1955. Therefore, the plaintiffs cannot succeed to the inheritance on the death of Parvathi Achi.

The second appeal is dismissed with costs. No leave.