Judgment :- 1. Plaintiffs 1, 3 and 4 are the appellants. The plaint schedule properties belong to the family of one Hari Vadyar. He died in Mithunam 1119 leaving a son, Rang Vadyar and two daughters, who are the first plaintiff and the first defendant. This Ranga Vadyar was alleged to have died on 15.6.1121 without leaving any wife or children. The first plaintiff and the first defendant had, therefore, inherited the rights of Ranga Vadyar over the plaint properties. The plaintiffs stated that, before the death of Hari Vadyar, he had executed some documents relating to the plaint properties. These documents were invalid, as he was not competent to dispose of the original family properties by such documents. Under these documents, the first defendant's husband, the 7th defendant, was constituted manager of the family. He had been directed to hand over the properties and money, if any collected, to Ranga Vadyar if he returned within one year after the death of Hari Vadyar. The 7th defendant was also the Mukthiyar-holder of the first defendant. He had filed suits O.S. 240,138 and 225 of 1120 and O.S. 355 of 1119 for arrears of rent as regards certain portions of the buildings in the plaint property occupied by the first and fourth plaintiffs. Decree were obtained thereon. The first plaintiff would state that she was in possession of a portion of the building in her own right with the consent of Hari Vadyar and that she was not liable to pay any rent. There was also a prayer in the plaint for an injunction to restrain the 7th defendant from executing the decrees and also from proceeding with the petitions filed by him before the Rent Controller for eviction. The plaint B schedule items are said to be moveables in the possession of the first defendant. The first plaintiff claimed also a half share in these properties. Plaintiffs 2 to 4 were impleaded on the ground that they were reversioners. Defendants 1 to 6, by one written statement and the 7th defendant, by another, resisted the suit. According to defendants 1 to 6, Hari Vadyar got the paramba in plaint A schedule in partition in the family. It was a verumpattom land obtained from the Thirumala Devaswom; and Hari Vadyar had executed a pattom-chit in 1094. He had made improvements in the property with his own funds. According to defendants 1 to 6, Hari Vadyar got the paramba in plaint A schedule in partition in the family. It was a verumpattom land obtained from the Thirumala Devaswom; and Hari Vadyar had executed a pattom-chit in 1094. He had made improvements in the property with his own funds. He occupied a portion of the building and let out the remaining portion. The only son of Hari Vadyar was Rang Vadyar, and he had left this place long before Hari Vadyar's death, surrendering all his rights in the properties. He was not heard of for a very long time; and so his father and all his relatives were treating him as dead. Hari Vadyar had nobody to look after him in his old age except the first defendant and so he have away the plaint A schedule properties to the first defendant and her children, out of his own free will. Neither the plaintiffs nor any other person had any right over these properties. The allegations in para 3 of the plaint that the properties of Hari Vadyar devolved upon his son Rang Vadyar and that the plaintiff became entitled to a half share in the properties on the death of Ranga Vadyar were denied. The plaintiffs were put to proof of these allegations. The documents referred to in the plaint were executed by Hari Vadyar of his own free will. They are Exts I to III. He was also competent to do so as the sole surviving co-parcerner of a joint Hindi Mithakshara family. The plaintiffs were entitled to bring a suit for partition. There was also an alternative prayer that as Ranga Vadyar had pre-deceased Hari Vadyar it had to be taken that he lost all rights to the properties by abandonment, relinquishment and waiver. The decrees obtained by the 7th defendant against the plaintiffs were all valid and binding on them. They were passed after a keen contest. They, therefore, opposed the plaintiff's suit. The 7th defendant supported defendants 1 to 6. There was, however, a statement in para 2 of his written statement that all the allegations in para 2 of the plaint, except that the plaint A and B schedule properties belonged to the family, were admitted. They were passed after a keen contest. They, therefore, opposed the plaintiff's suit. The 7th defendant supported defendants 1 to 6. There was, however, a statement in para 2 of his written statement that all the allegations in para 2 of the plaint, except that the plaint A and B schedule properties belonged to the family, were admitted. It is in para 2 of the plaint that the plaintiffs allege that Hari Vadyar died in Mithunam 1119 and that he had a son by name Ranga Vadyar at the time of his death. He had, however, in para 8 of the written statement stated that Ranga Vadyar had left this place for North India in 1098 after surrendering all his properties to his father, that he had sent letters till 1924 and that there was no information about him thereafter. The court below held that there was no positive proof whether Ranga Vadyar died and, if so, when. It had stated that from the evidence on record, both oral and documentary, it was not possible to hold that Ranga Vadyar pre-deceased Hari Vadyar. The plaint schedule properties were, however, held to belong to the family. The defence contention, that Rang Vadyar surrendered all his rights to Hari Vadyar, was also found against. The decrees obtained by the 7th defendant for rent were allowed to stand. The suit was, however, dismissed without costs. The appeal is against this decree. The respondents have filed a cross appeal questioning the order relating to costs. Objection was also taken to the findings against their contentions. 2. Hari Vadyar got the plaint A schedule property under a partition deed, Ext. VIII, between himself and other members of his family. It was by this document that he got the paramba in the plaint A schedule. There was no building in the portion allotted to him and, so, the other members gave him Rs. 200/- for putting up a building. This was in 1081. Though Hari vadyar might have spent more money than that obtained by him from the family for putting up the building in the family paramba, he could not claim any special right over the buildings thus put up. The defence contention, therefore, that the buildings belonged exclusively to Hari Vadyar could not be accepted. This was in 1081. Though Hari vadyar might have spent more money than that obtained by him from the family for putting up the building in the family paramba, he could not claim any special right over the buildings thus put up. The defence contention, therefore, that the buildings belonged exclusively to Hari Vadyar could not be accepted. There is also no evidence to show that Rang Vadyar had surrendered all his rights in the family property to his father. On the other hand, the directions in Exts. I to III would show that the father was anxious to see that his son, Ranga Vadyar, did not lose his rights over the properties. The 7th defendant had been directed to manage the affairs of the family and to hand over the properties and income to Ranga Vadyar if he returned within one year of his death. So this case of the defendants is also not made out. 3. If Ranga Vadyar had survived Hari Vadyar, there is no doubt that he would have been the owner of plaint A schedule properties. Hari Vadyar admittedly died in Mithunam 1119. The plaintiff's case was that Ranga Vadyar died in Makaram 1121. Both sides agree that Ranga Vadyar is dead. But there is difference of opinion between the contesting parties as to the time of Ranga Vadyar's death. The defendants did not say when he died. They would only say that he was not heard of after 1924, though the 7th defendant in his written statement had admitted that Ranga Vadyar was alive when Hari Vadyar died. In the nature of these contentions, the principles laid down in Ss. 107 of the Evidence Act have to be applied to this case. In Narki v. Lal Sahu (I.L.R. 37 Calcutta 103), it was held that when a person was not heard of for seven years the presumption that arose under S. 108 of the Evidence Act was that he was dead at the time when the question was raised and not at some antecedent date. This dictum had been accepted in Unnitan Ouseph v. Narayanan Krishnan (49 T.L.R. 32). This dictum had been accepted in Unnitan Ouseph v. Narayanan Krishnan (49 T.L.R. 32). It was mentioned there that the presumption that arose when a person had not been heard of for seven years was a presumption that he was dead at the time the question was raised, i.e., the date of the suit and not at some antecedent date. The same was the principle adopted in Wali Mohd v. Gaman Kala Khan (A.I.R.1944 Peshawar 29). The important decisions on this question passed till then had been considered in that case. It was held that where there was a dispute in a suit as to the date of death of a person from whom his relations had not heard for more than seven years it should first be for the person who alleged a particular date to prove that date affirmatively, but if no one could prove any specific date then the court should draw a presumption that he was dead on the date of the institution of the suit. Though the plaintiffs have alleged that Ranga Vadyar died on 15.6.1121 and let in evidence regarding the same, the evidence is not satisfactory to enter a definite finding on the question. Since both sides had admitted that Ranga Vadyar was dead and as both sides were not able to give any satisfactory evidence as to the exact date of his death, it has to be presumed that he was dead on the date of the present suit. There is also the further admission by the 7th defendant in his written statement that Rang Vadyar was alive when Hari Vadyar died. Taking all these into account, the safest course would be to hold that Ranga Vadyar died sometime after Hari Vadyar's death. Being so, Ranga Vadyar had inherited the plaint A schedule properties. Since he had admittedly no wife or children, his sisters - the first plaintiff and the first defendant - would be his heirs. They would take only a limited estate. But, however, each of them is entitled to a half share in these properties or the income arising therefrom. In this case, it is not necessary to pass a decree for partition, as the first plaintiff died while this appeal was pending. So the first defendant, as the only survivor, is entitled to retain possession of the entire properties. But, however, each of them is entitled to a half share in these properties or the income arising therefrom. In this case, it is not necessary to pass a decree for partition, as the first plaintiff died while this appeal was pending. So the first defendant, as the only survivor, is entitled to retain possession of the entire properties. The first plaintiff's heirs would, however be entitled to a share in the income that had accrued till the death of the first plaintiff. The 7th defendant would only constitute as manager for the estate; and in that capacity alone he had obtained the decrees for money against plaintiffs 1 and 4. These plaintiffs cannot now be heard to say that they are not liable to pay those decree amounts; because the decrees against them have been final. But, in taking into account the profits that would have gone to Ranga Vadyar, had he returned after Hari Vadyar's death, and also the income that accrued after Hari Vadyar's death till the first plaintiff died, these sums also are to be brought to the hotchpot for purposes of division. The plaintiffs have not proved the existence of the moveables mentioned in the plaint B schedule and so their claim to the same is not allowed. The decree of the lower court is, however, reversed and the following decree is passed. 4. The lower court will take accounts of the profits from the plaint A schedule properties collected by the 7th defendant or for which he had obtained decrees, or which have accrued due till the death of the first plaintiff. One half of the same will be paid to the legal heirs of the first plaintiff. It will also be open to the court below to adjust the decree-debts due from plaintiffs 1 and 4, so that the least hardship is caused to the parties. The lower Court will treat this as a preliminary decree; and pass a final decree after settling accounts in the manner indicated above. The plaintiff's prayer for partition is not allowed because of the first plaintiff's death. The proper order relating to costs would, in the circumstances, be to direct the parties to bear the same in both the courts. As regards the costs to be incurred by the parties hereafter, the lower Court will make the necessary provision in the final decree. Allowed.