Judgment :- 1. This second appeal arises out of a suit for redemption of a mortgage. The plaint property originally belonged to one Bhagawathi Parameswaran, who is now dead, and was mortgaged by him to Krishnan Marthandan on 5-5-1091 M. E. for 3500 Fanams by Ext. A (copy), an the suit was for redemption of this mortgage. The plaintiff's case was simple, namely, that the mortgage right is now vested in defendants I to 3 on account of a sub-mortgage and assignments and Bhagawathi Parameswaran had given the equity of redemption to his wife, Bhagawathi Valli, who died on 4-9-1105, by a settlement deed, Ext. III, dated 9-3-1103, and after Bhagawathi Valli's death the equity of redemption had devolved on her son's wife, Meenakshi, and grand-son. Vasudevan, and they had executed an assignment, Ext. B dated 12-4-1123 in favour of the plaintiff conveying the said right to him and he was therefore entitled to redeem the mortgage and recover possession of the property. Bhagawathi Parameswaran and Bhagawathi Valli had only one son, Parameswaran Sivaraman. He left his home in 1096 after he married Meenakshi and his son, Vasudevan, was born, and he has not been heard of, according to the plaint allegations, after 1103 and so he must be deemed to have died after 1108. Bhagawathi Parameswaran and Bhagawathi Valli were Ezhavas and according to the plaintiff, after Bhagawathi Valli's death on 4-9-1105, the equity of redemption of the plaint property devolved on Meenakshi and Vasudevan who were the only legal representatives and heirs of Bhagawathi Valli and Sivaraman. 2. Krishnan Marthandan, the original mortgagee, was the husband of Bhagawathi Parameswaran's sister. His children, i. e., Parameswaran's seshakars, brought a suit, O.S.No.36 of 1100 of the Trivandrum District Court, for maintenance against Bhagawathi Parameswaran and obtained a decree, Ext, E. on 26 -7-1101. By Ext. III, by which Bhagawathi Parameswaran had given the equity of redemption of the plaint property to his wife, Bhagawathi Valli, he had given also another property to his grand-son, Vasudevan. The decree-holders in O.S. No. 36 of 1100 attached both the plaint property and the property given to Vasudevan by Ext. III in execution of their decree. By Ext. III, by which Bhagawathi Parameswaran had given the equity of redemption of the plaint property to his wife, Bhagawathi Valli, he had given also another property to his grand-son, Vasudevan. The decree-holders in O.S. No. 36 of 1100 attached both the plaint property and the property given to Vasudevan by Ext. III in execution of their decree. As regards the plaint property Bhagawathi Valli's sister, Bhagawathi Nani, and Nani's daughter, Gouri, filed a claim petition objecting to the attachment and contending that, before the attachment, Bhagawathi Parameswaran had gifted the property to Bhagawathi Valli by Ext. III and that they were Bhagawathi Valli's heirs and on her death the property had devolved on them. By the order, Ext. F dated 7-11-1108, the execution court upheld this claim. Bhagawathi Nani and Nani Gouri also filed a suit, O S. No. 746 of 1108 of the Trivandrum Munsiff's Court, for redemption of the mortgage, Ext. A. At the time of the institution of that suit Krishnan Marthandan, the mortgagee, was alive and he was defendant 1 therein. Bhagawathi Parameswaran was defendant 2, and the sub-mortgagees defendants 3 and 4. The questions whether Bhagawathi Valli's son, Sivaraman, was alive or dead at the time of the institution of the suit and whether he had pre-deceased Bhagawathi Valli or had survived her were raised in that suit, and the first court dismissed the suit holding that Sivaraman was still alive and had not been shown to be dead and that therefore Bhagawathi Nani and Gouri had not derived any right to the plaint property on Bhagawathi Valli's death. Ext. K is a copy of the judgment dated 19-11-1110 dismissing the suit. In the appeal against Ext K. Judgment the District Judge held that the contending parties in the suit had not been able to prove that Sivaraman died subsequent to Bhagawathi Valli's death and said that he would draw a presumption under S.114 of the Evidence Act that Sivaraman was not only dead but that he had died before Bhagawathi Valli died; and as a result of this finding he held that, under the provisions of the Ezhava Act, Bhagawathi Nani and Nani Gouri were entitled to one-half of Bhagawathi Valli's assets and the other half had devolved on her husband, Bhagawathi Parameswaran. Consequently, he gave a decree to Bhagawathi Nani and Nani Gouri for redemption and recovery of possession of one-half the plaint property, and this decree was confirmed in special appeal by the High Court. Exts. L and M are the copies of the judgments of the District Court and the High Court respectively. After Bhagawathi Valli's death the decree-holders in O. S. No. 36 of 1100 again attached the plaint property on 18-4-1113 in execution of their decree on the basis that it then belonged to Bhagawathi Parameswaran, and they also purchased it in execution of their decree on 3-4-1114, and obtained symbolical delivery of the equity of redemption on 7-4-1115. They had already obtained the mortgage right by right of inheritance to the mortgagee, Krishnan Marthandan, who was their father. Exts. N, O and P are copies of the attachment schedule, the sale diary, and the delivery kychit respectively. On 1-7-1121 defendant 1 took Ext. R sale deed for the plaint property from Krishnan Marthandan's children and Nani Gouri and her son. Bhagawathi Nani had died before the date of Ext. R and on her death her rights had devolved on Nani Gouri and her son. The claims of both sets of parties, i. e., Krishnan Marthandan's children's claim on the one hand and the claim of Nani Gouri and her son on the other, were recited in Ext. R, and it was stated in the sale deed that both sets of persons were conveying all their rights to defendant 1. Subsequently, on 12-4-1123, plaintiff took Ext B from Vasudevan and his mother, Meenakshi. It was executed on the footing that the equity of redemption, which Bhagawathi Valli had obtained by Ext. III, had devolved after her death on Meenakshi and Vasudevan. 3. The suit was contested principally by defendant 1 who had taken Ext. R. Defendants 2 and 3 are sub-mortgagees, and as this second appeal has been filed by defendant 1 alone it is unnecessary to refer in this judgment to their contentions. III, had devolved after her death on Meenakshi and Vasudevan. 3. The suit was contested principally by defendant 1 who had taken Ext. R. Defendants 2 and 3 are sub-mortgagees, and as this second appeal has been filed by defendant 1 alone it is unnecessary to refer in this judgment to their contentions. Defendant 1 had raised several contentions in the first court, but only the following contentions were pressed before us at the time of the hearing of this second appeal:- The allegations in the plaint that Meenakshi and Vasudevan were the legal representatives and heir of Bhagawathi Valli and that the equity of redemption of the plaint property had devolved on them after her death are denied. They have not obtained any right to the plaint property, and so the assignment deed, which the plaintiff has taken from them, does not confer any right on him and he is not entitled to redeem the mortgage and recover possession of the property. Bhagawathi Valli's rights had devolved on Bhagawathi Nani and Nani Gouri after her death and, by virtue of Ext. R taken by defendant 1 from the children of Krishnan Marthandan (the mortgagee) and Nani Gouri and her son, defendant 1 has obtained both the mortgage right in the plaint property and the equity of redemption. Sivaraman had left his home in 1096 and he has not been heard of after that. It has therefore, to be presumed that he died in 1096 or at any rate that he was not alive on 9-3-1103. As Bhagawathi Valli died only after that date it has to be presumed that he had pre-deceased her and he had not obtained any right to the plaint property. 4. In answer to defendant 1's written statement plaintiff filed a replication stating inter alia that although Sivaraman had left his home in 1096 his relatives were hearing from him till 1108, that it was only after 1108 that he has not been heard of, that Bhagawathi Valli's Heirs according to law were Sivaraman and Vasudevan, and Sivaraman's heirs are Meenakshi and Vasudevan, and that it was thus that Meenakshi and Vasudevan became entitled to the equity of redemption. In Para.15 and 16 of the replication it was further averred that in any event Vasudevan was Bhagawathi Valli's heir and that the plaint property, being makkathayam property obtained by Bhagawathi Valli, had devolved on Vasudevan after the death of Bhagawathi Valli and Sivaraman. The case which the plaintiff thus set up in Para.15 & 16 of the replication was an alternative case, namely, that, even if it was found that Sivaraman had pre-deceased Bhagawathi Valli, Sivaraman would be Bhagawathi Valli's heir and that the plaint property being 'makkathayam property', under the Travancore Ezhava Act III of 1100, it would belong to Vasudevan after the death of Bhagawathi Valli and Sivaraman. 5. On these contentions so many as 18 issues were raised for trial by the first court. Defendant 1 sought to meet the alternative case set up in the replication by proving that Bhagawathi Valli had been exempted by the Government under S.33 of the Travancore Ezhava Act III of 1100 (referred to hereinafter as the Ezhava Act) from the operation of the provisions in the said Act relating to intestate succession - his case being that so far as intestate succession was concerned Bhagawathi Valli was, on account of this exemption, governed by the rules of ordinary Marumakkathayam Law and not by the provisions of the Ezhava Act, and Vasudevan was not therefore her heir; and that as the plaint property, though Makkathayam property was her separate property, Vasudevan had not obtained any right to it after her death. 6. On the strength of the finding in Ext. K, that Sivaraman was not proved to have died prior to Bhagawathi Valli, the first court held that Sivaraman should be deemed to have been dead only on the date of Ext. K suit, that as both parties are now agreed that Sivaraman is dead and he has not been heard of for more than seven years he must be deemed to have died only subsequent to Bhagawathi Valli, and that Meenakshi and Vasudevan had therefore obtained by right of inheritance Bhagawathi Valli's rights in the plaint property. In one part of his judgment the learned District Munsiff held that under Ext. III Bhagawathi Valli had obtained the plaint property absolutely for herself and in another part he held that although the plaint property was given to her by Ext. In one part of his judgment the learned District Munsiff held that under Ext. III Bhagawathi Valli had obtained the plaint property absolutely for herself and in another part he held that although the plaint property was given to her by Ext. III it was a makkathayam gift and that under the provisions of the Ezhava Act the said gift belonged in equal shares to Bhagavathi Valli and Sivaraman. Sivaraman's rights, the District Munsiff held, devolved on his death on Meenakshi and Vasudevan, and Bhagavathi Valli's rights devolved on her death on Sivaraman and after Sivaraman's death on Meenakshi and Vasudevan by virtue of the fact that they were Sivaraman's heirs. On the question of Bhagawathi Valli's exemption from the provisions of the Ezhava Act relating to intestate succession, the learned District Munsiff was of the view that although she was exempted from these provisions, the exemption would affect only the devolution of the self-acquired properties and not of the makkathayam properties. As a result of these findings he further held that the plaintiff had obtained the equity of redemption by the assignment, Ext. B, taken from Meenakshi and Vasudevan and that defendant 1 had got only the mortgage right and nothing more by Ext. R. Consequently, the first court gave a decree to the plaintiff for redemption of the mortgage and recovery of possession of the property. Against the first court's decree defendant 1 preferred an appeal and the plaintiff also filed a cross-appeal as regards the finding that Bhagawathi Valli was exempted from the provisions of the Ezhava Act relating to intestate succession and the order regarding costs So far as the date of Sivaramans' death was concerned the lower appellate court held that the first court's view that Sivaraman must be presumed to have died before the date of the present suit was not warranted and that the presumption under S.108 of the Evidence Act was only that Sivaraman was dead on the date of the present suit. It also held that the burden of proof was upon defendant 1 to prove affirmatively that Sivaraman had pre-deceased Bhagawathi Valli and that as he had not discharged that burden it must be taken that she had pre-deceased Sivaraman. On the question whether Bhagawathi Valli was exempted from the provisions of Part IV of the Travancore Ezhava Act the lower appellate court held that she was not so exempted. On the question whether Bhagawathi Valli was exempted from the provisions of Part IV of the Travancore Ezhava Act the lower appellate court held that she was not so exempted. It also held that the gift under Ext. III was a makkathayam gift intended to benefit both Bhagawathi Valli and Sivaraman; and as a consequence of these findings it further held that in either case whether Bhagawathi Valli had pre-deceased Sivaraman or Sivaraman had pre-deceased Bagawathi Valli the assignment taken by the plaintiff from Meenakshi and Vasudevan was perfectly valid and he had obtained by that assignment the entire equity of redemption the view taking being that, if Bhagawathi Valli had pre-deceased Sivaraman her share would have devolved on Sivaraman after her death, and Meenakshi and Vasudevan being the heirs of Sivaraman and Sivaraman having obtained the entire equity if redemption before his death (one-half by virtue of the fact that the gift was a makkathayam gift intended to benefit both Bhagawathi Valli and himself and the other half by right of succession to Bhagawathi Valli they would have obtained the entire equity of redemption on Sivaraman's death and so the assignment executed by them would be valid; and that if Sivaraman had pre-deceased Bhagawathi Valli his share in the makkathayam gift would have devolved after his death on Bhagawathi Valli, Meenakshi and Vasudevan, and Bhagawathi Valli's share in the said gift would have devolved after her death on Vasudevan, and thus after Bhagawathi Valli's death the entire equity of redemption would have belonged to Meenakshi and Vasudevan and the assignment executed by them would therefore be valid. In consequence of these findings the lower appellate court confirmed the decree of the first court; and so, defendant 1 has brought this second appeal. 7. The first question for decision in the second appeal is whether the gift to Bhagawathi Valli under Ext. III was for her exclusively, i.e. for her benefit alone, or whether Sivaraman also had obtained a right to the equity of redemption of the property under the said gift. On this question the first court has expressed two opinions inconsistent with each other, and the lower appellate court has taken the view that the gift to Bhagawathi Valli, being a makkathayam gift, had enured to the benefit of both Bhagawathi Valli and Sivaraman and not for the benefit of Bhagawathi Valli alone. On this question the first court has expressed two opinions inconsistent with each other, and the lower appellate court has taken the view that the gift to Bhagawathi Valli, being a makkathayam gift, had enured to the benefit of both Bhagawathi Valli and Sivaraman and not for the benefit of Bhagawathi Valli alone. Makkathayam property is defined in S.3 clause (11) of the Travancore Ezhava Act as "property obtained from the husband or father by the wife or child or both of them, by gift, inheritance or bequest". Since Bhagawathi Parameswaran and Bhagawathi Valli were both Ezhavas belonging to Travancore and Ext. III was executed in 1103, it cannot he denied that the gift of the equity of redemption of the plaint property made by Bhagawathi Parameswaran in favour of Bhagawathi Valli under Ext. III constitutes the same makkathayam property as that term is defined in the Ezhava Act. S.32 of the Act provides: "32. Except where a contrary intention is expressed in the instrument of gift or bequest, if any, Makkathayam property acquired after the date of the passing of this Regulation shall be liable to be divided among the wife and each of the children in equal shares: Provided that, in the partition of Makkathayam property, the issue how-low-so-ever of a deceased child shall be entitled to only such share as the child itself, if alive, would have taken". The effect of this section is that, ordinarily, makkathayam property obtained after the passing of the Act should be taken by the wife and children as tenants-in-common even though the instrument by which the property was acquired stands in the name of one individual alone, but if a contrary intention is expressed in the instrument effect should be given to that intention. That is to say, if from the express terms of the document it is clearly seen that the donor had intended the gift to be for the benefit of his wife alone or for the benefit of only one or some of his children the gift will not be taken in common by the wife and the children and will be taken only by the person or persons for whom it was clearly intended. Both sides admit that Sivaraman left his home in 1096 and that he had never returned thereafter. Ext. Both sides admit that Sivaraman left his home in 1096 and that he had never returned thereafter. Ext. III was executed by Bhagawathi Parameswaran in 1103 in favour of Bhagawathi Valli and Sivaraman's son, Vasudevan and express reference is made therein to the fact that Sivaraman had left his home and gone away to foreign parts more than seven years ago disobeying his father. It is also said in Ext. III that Bhagawathi Parameswaran had made a gift to Sivaraman and Bhagawathi Valli jointly before Sivaraman left his home by executing an assignment deed in their favour and that Sivaraman had not accepted that gift, and at the time of the execution of that document the amount comprised in the assignment deed in their favour was in the hands of a receiver appointed by the court. It was provided in Ext. III that this amount should belong to Vasudevan alone, and another property also was given to him by that document with the condition that if Sivaraman returned home Sivaraman would have the right to be in possession and enjoyment of that property till his death and Vasudevan would get it only after Sivaraman's death and that if Sivaraman did not return home Bhagawathi Valli and Meenakshi were to be in possession of it during their lifetime and Vasudevan was to get it after their death Bhagawathi Valli was the first donee in Ext. III, and it was expressly stated in Ext. III that the plaint property was being given for Bhagawathi Valli who was the first donee and after making the provisions in regard to the properties gifted to Vasudevan and certain other arrangements, it was further provided in Clause.6 of Ext. III that'Bhagawathi Valli among you (i. e. donees) should obtain transfer of patta of plaint item 1 and hold and enjoy it for ever with absolute rights of alienation redeeming the mortgage thereon and recovering possession of it. In our opinion the provisions referred to above contain the clearest expression of the donor's intention that the plaint property was to be taken by Bhagawathi Valli exclusively, for her sole benefit, and that Sivaraman was not to have any right in respect of it. Not only were other provisions expressly made in Ext. In our opinion the provisions referred to above contain the clearest expression of the donor's intention that the plaint property was to be taken by Bhagawathi Valli exclusively, for her sole benefit, and that Sivaraman was not to have any right in respect of it. Not only were other provisions expressly made in Ext. III for the benefit of Sivaraman and Vasudevan but it was also said clearly in Clause.5 that the gift of the plaint property was for the first donee, Bhagawathi Valli, and in Clause.6 an absolute estate or interest was conferred on her, referring to her in particular as Valliamma among the donees. The expression 1pmw I£nbmb (for Valliamma who is the first donee) occurring in Clause.5 and the expression (Valliamma arnong.you, i. e., among the donees) occurring in Clause.6 clearly express the donor's intention that the gift was for Bhagawathi Valli and no one else. Neither of the courts below has cared to consider these expressions in Ext. III. After saying in Para.6 of his Judgment, "Under Ext. III Valli has been given absolute right to the plaint property", the learned District Munsiff said in paragraph, 7 of his judgment: "The plaint property was given to the wife by the husband as a gift or bequest. It forms makkatha-yam property acquired after the Ezhava Act. It goes to the wife and children in equal shares unless a contrary intention is expressed in the instrument itself. No contrary intention is expressed in Ext. III. Hence even though the plaint property is given under Ext. III to Valli alone it forms makkathayam property enuring to the benefit of Valli and Sivaraman". This is all the consideration that Ext. III has received in the first court. In the appellate judgment the learned District judge says, in Para.6, that the fact that another property was given to Vasudevan is a circumstance in favour of the appellant's case. But he considered that that circumstance by itself was not sufficient and conclusive evidence of the intention of the donor so as to take the case out of the general presumption arising from S.32 of the Ezhava Act. He too has not cared to look into the clauses in Ext. III; and the Malayalam expressions above from that document have not even been noticed by him. He too has not cared to look into the clauses in Ext. III; and the Malayalam expressions above from that document have not even been noticed by him. He seems to think that the absolute light conferred on the donee by Ext III indicated only the nature of the estate that was being given and not the intention 6t the donor that the gift was to be for the sole benefit of Bhagawathi Valli. The significance of. the facts that the gift made by Clause.5 was in favour of "Valliama who is the first donee", and that it was on "Valliamma among you", i.e., Bhagawathi Valli among the donees, that the absolute estate was conferred by Clause.6 has not been grasped by the learned District Judge. In the circumstances, we hold that the gift of the plaint property to Bhagawathi Valli under Ext. III was a gift expressly intended by the donor for Bhagawathi Valli exclusively, for her sole benefit, and that the equity of redemption therefore belonged to Bhagawathi Valli alone and Sivaraman had no right to it. 8. In view of the above finding the crucial question for decision in the second appeal is whether the plaintiffs assignors, Meenakshi and Vasudevan, had obtained by right of intestate succession Bhagawathi Valli's rights in the property. Plaintiff's case on the question is that Sivaraman was alive at the time of Bhagawathi Valli's death and he died only after her and that therefore Bhagawathi Valli's rights devolved after her death on Sivaraman, who was her only child and after Sivaraman's death the said rights devolved on Meenakshi and Vasudevan by right of intestate succession to Sivaraman under S.15 of the Ezhava Act. He has also an alternative case that, if Sivaraman had pre-deceased Bhagawathi Valli, her rights would have devolved after her death on Vasudevan by right of intestate succession to her under S.18 and Explanation II to S.19 of the Ezhava Act, and so in that case also Ext. B sale deed taken by him would be valid. 9. We shall first consider the question whether Sivaraman was alive at the time of Bagawathi Valli's death. So far as this question is concerned neither side has got any positive evidence, and both of them rely only upon presumptions of law. It is admitted by both sides that Bhagawathi Valli died in 1105. 9. We shall first consider the question whether Sivaraman was alive at the time of Bagawathi Valli's death. So far as this question is concerned neither side has got any positive evidence, and both of them rely only upon presumptions of law. It is admitted by both sides that Bhagawathi Valli died in 1105. The definite case which the plaintiff put forward in Para.8 of the plaint and Para.12 of the replication was that Sivaraman was alive till 1108 and had therefore survived Bagawathi Valli and that he has not been heard of after 1108. According to defendant 1, Sivaraman had not been heard of after he left Travancore in 1096. So both sides are agreed that Sivaraman his not been heard of for more than seven years before the date of this suit (the suit was filed in 1123). Of the two witnesses examined on the plaintiff's side, Pw.1 is the Commissioner deputed to assess the value of improvements in the plaint property, and he has no evidence at all to give on the question whether Sivaraman was dead or alive at the time of Bhagawathi Valli's death. Pw. 2 is the plaintiff. He said in his chief examination that Sivaraman left Travancore in 1096, that till the end of 1100 his relatives were getting letters, telegrams and money orders from him, that after leaving Travancore he went to Madras, Mesopottamia, Burma, Singapore, and other places and that he has not been heard of after 1108. Plaintiff himself has not received any letter or communication from Sivaraman at any time and his statement that Sivaraman's relatives were getting letters, telegrams and money orders from him till 1100 and that he has not been heard of after 1108 are not only mutually contradictory so far as the period between 1100 and 1108 is concerned but is also based on pure hearsay. No relative of Sivaraman or any person who had received any letter from him or had heard of him during 1096 to 1100 or during 1100 to 1108 has been examined in the case. Dw.1, defendant 1's brother-in-law, is the only witness examined on the side of the defendant. He too has no direct knowledge about the date of Sivaraman's death. He frankly admits that his knowledge about Sivaraman's death is derived from Ext. L, the appellate judgment in Ext. Dw.1, defendant 1's brother-in-law, is the only witness examined on the side of the defendant. He too has no direct knowledge about the date of Sivaraman's death. He frankly admits that his knowledge about Sivaraman's death is derived from Ext. L, the appellate judgment in Ext. K suit wherein the District Judge had found that Sivaraman had pre-deceased Bhagawathi Valli and which the High Court had confirmed by Ext. M. By a very strange piece of reasoning the learned District Munsiff, who disposed of the suit in the first court, accepted the finding in Ext. K that Sivaraman was not proved to have died prior to Bhagawathi Valli and rejected the finding in Ext. L. which set aside Ext. K, that Sivaraman had pre-deceased Bhagawathi Valli. He brushed aside Ext. L on the ground that it was not a judgment inter partes forgetting the fact that the judgment relied upon by him, Ext. K, also was not inter partes and that the finding in Ext. K had been expressly reversed by Ext. L. If Ext. K was admissible in evidence and could be acted upon notwithstanding the fact that it was not a judgment inter partes, Ext. L, the judgment by which the appeal against Ext. K decision was disposed of, was equally relevant and admissible, and in view of Exts. L and VT, Ext. K ought not to have been accepted and acted upon. The learned District Judge has rightly refused to act on the findings in Exts. K and L which are not judgments inter partes. But he took the view that the defendant had set up a definite case in the pleadings that Sivaraman had predeceased Bhagawathi Valli who had died only in 1105 and that, as both parties had admitted that Sivaraman was alive in 1096 and the presumption under S.108 of the Evidence Act is only that Sivaraman was dead on the date of the present suit, S.107 of the Evidence Act is applicable to the case and the defendant had therefore to prove affirmatively that Sivaraman had pre-deceased Bhagawathi Valli, and as the defendant had not discharged that burden of proof it had to be held that Bhagawathi Valli had pre-deceased Sivaraman. 10. The statement in the learned District Judge's judgment that the defendant had set up a definite case in the pleadings that Sivaraman had predeceased Bhagavathi Valli is not correct. 10. The statement in the learned District Judge's judgment that the defendant had set up a definite case in the pleadings that Sivaraman had predeceased Bhagavathi Valli is not correct. There is no averment in defendant 1's written statement that, as a matter of fact, Sivaraman had pre-deceased Bhagawathi Valli. All that has been said therein is that Sivaraman had left his home and gone away to foreign parts in 1096, that he has not been heard of thereafter, and that therefore it must be presumed that Sivaraman had died in 1096 or at any rate that he was not alive on 9-3-1103. This averment in the defendant's written statement is only a statement as to the presumption of law arising on the facts mentioned therein and not a definite case as to the actual date of Sivaraman's death at any time after 1096. All that defendant 1 had admitted in his written statement was that Sivaraman was alive in 1096, i. e., within thirty years of the date of this suit, and nothing more, and he had only stated in his written statement that Sivaraman had not been heard of after 1096 and must be presumed to have died after that. It was admitted by the plaintiff also that Sivaraman had died after 1096 and was dead on the date of the present suit. The plaintiff's definite case was that Sivaraman was alive at the time of Bhagawathi Valli's death in 1105 and till 1108; and for the establishment of his right to redeem Ext. A mortgage for which the suit has been brought, it is essential for him to prove that Sivaraman was alive at the time of Bhagawathi Valli's death in 1105 and also that he (Sivaraman) had died subsequently leaving Meenakshi and Vasudevan as his heirs, It is contended on behalf of the plaintiff that on account of defendant 1's admission chat Sivaraman was alive in 1096, i.e., within thirty years of the date of Bagawathi Valli's death, there is a presumption under S.107 of the Evidence Act that he was alive on the date of Bhagawathi Valli's death and that this presumption is sufficient for discharging the onus of proof on the plaintiff. Although there was formerly some conflict of judicial opinion as to the nature and scope of the presumptions under S.107 and 108 of the Evidence Act and as to the person upon whom the burden lies to prove the time of death in view of these sections, all the courts in India now appear to have uniformly accepted the view that S.107 and 108 of the Evidence Act only deal with the procedure to be followed when a question is raised before a court as to whether a person is alive or dead and that they do not lay down any presumption as to whether a person was alive or dead on any particular date before the institution of the suit in which that question is raised. The combined effect of S.107 and 108 is that, when a person is admitted or proved to have been alive within thirty years of the date when the question of his death is raised, there is in initial burden upon the party who affirms that he is dead to prove the fact of his death and that, when that person proves that he has not been heard of for seven years before the date of suit, that initial burden is discharged; and then it is for the party affirming that he was alive or had died on a particular date material for the establishment of the right for the enforcement of which the suit has been brought to prove affirmatively that he was alive or had died on that date. Neither of those sections warrants a presumption to be drawn as to whether a person was alive or dead at a particular time before the date of suit. The fact whether he was alive or dead on a particular date or at a particular time is a matter of proof, and if there is no admission as regards that matter by the opposite party it has to be proved affirmatively by the person who claims to establish in the suit the right dependent upon the existence or death of the other person on the particular date or at the particular time. An exhaustive list of the cases dealing with this question and the conclusion to be drawn from the decisions in those cases are given at page 825 of the 9th Edition of Sarkar's book on Evidence. An exhaustive list of the cases dealing with this question and the conclusion to be drawn from the decisions in those cases are given at page 825 of the 9th Edition of Sarkar's book on Evidence. The question has also been dealt with by Koshi, C. J., in Sarojini v. Sivanandan (1956 K.L.T. 126) and by K. Subba Rao, C. J., and Satyanarayana Raju, J., in Kameswaramma v. Bapayya (1957 An. W. R.55). Referring to the effect of S.107 and 108 of the Evidence Act, Koshi, C.J., has quoted with approval in 1956 K. L. T. 126 the following passage from the judgment of Sundara Ayyar and Sadasiva Ayyar, JJ, in Veeramma v. Chenna Reddi (1914) I.L.R. 37 Mad. 440. "The defendants put the plaintiff to the proof of her title and possession. The case that the plaintiff attempted to make out at the hearing was that she succeeded to the house as the heir of her husband. No positive evidence was adduced to show that her husband survived her father-in-law. She could not succeed unless the court found that she did so. It is argued by the learned Vakil for the appellant that the Appellate court was bound to presume that her husband lived for a period of seven years after he left the village and that as the father-in-law died before the expiration of the seven years the husband must be taken to have survived him. Reliance is placed on the combined effect of S.107 and 108 of the Indian Evidence Act. The former section states that if a person is proved to have lived within a period of 30 years and the question is whether he is alive or dead the onus is on the party who asserts that he is dead This is qualified by S.108 which lays down that when it is proved that a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive is on the person who affirms it. It is argued that inasmuch as under S.107 it is enough to prove that a man was alive within 30 years to throw the onus of proving his death on the patty who asserts it there is a prescription that he lived during the 30 years and that S.108 modifies it only where it is proved that the person was not heard of for seven years. We are unable to agree with the appellant's Vakil as to the meaning to be put on S.107. But S.107 and 108 deal with the procedure to be followed when a question is raised before a court as to whether a person is alive or dead. Neither of these sections in our opinion lays down any presumption as to how long a man was alive or at what time he died. The contention for the appellant is not supported by any Indian authority cited before us. On the other hand, the view we take is supported by the pronouncement of the Calcutta High Court in Narki v. Lal Sahu and of the Allahabad High Court in a recent Full Bench decision.in Muhammad Sharif v. Bande Ali". The same view is expressed in Kameswaramma v. Bapayya (1957 An. W. R.55) wherein it has been said that when the question is not merely one of death but death at a particular time there is no presumption as to such time, but the party who has to make out that the death occurred on a specified date must prove it by evidence, and that the only presumption warranted by S.108 is that when a person is proved to have been not heard of for seven years or more he may be presumed not to have been alive on the date of the suit. Referring particularly to the effect of S.107 it was observed in that case that the burden under that section to prove the death of the person who is shown to have been alive within thirty years is only an initial burden and would be discharged by the presumption arising under. S.108 when it is proved that the said person has not been heard of for seven years. We are in agreement with the views set out in 1956 K. L. T. 126 and 1957 An. S.108 when it is proved that the said person has not been heard of for seven years. We are in agreement with the views set out in 1956 K. L. T. 126 and 1957 An. W. R.55 and hold that no presumption can be drawn under S.107 and 108 of the Evidence Act as to whether a person was dead or alive on any particular date or at any particular time before the date of the suit in which that question is raised and that the rule of decision in such cases should be whether the party seeking to enforce in the suit a right flowing out of the existence or death of the person concerned has discharged the onus of proof on him which is essential for the establishment of his right - that is to say, the plaintiff asking relief in a suit on account of a right flowing from the death or existence of a particular person on a particular date or at a particular time must affirmatively prove that person was dead or alive, as the case may be, on the particular date or at the particular time. If he proves it he gets a decree for the enforcement of his right, and if he does not prove it, his suit has to be dismissed. 11. In the present case there is no admission at all by defendant 1 that Sivaraman was alive at the time of Bhagawathi Valli's death and that he had died only after her. Since it is the plaintiff who has come to the court claiming that Bhagawathi Valli's right to the plaint property had devolved after her death on Sivaraman and Meenakshi and Vasudevan had inherited the said right from Sivaraman after his death and he has taken an assignment from Meenakshi and Vasudevan, and since the plaintiff's right to get a decree for redemption is dependent upon the validity of the assignment given to him by Meenakshi and Vasudevan, the burden is on him to prove that Sivaraman was alive at the time of Bhagawathi Valli's death and her rights had devolved on him and that he had died only subsequently. Defendant 1 does not seek to establish any right in this suit. Defendant 1 does not seek to establish any right in this suit. But he is not bound to allow redemption and surrender possession of the plaint property to the plaintiff until the plaintiff proves a valid title to redeem the mortgage. No doubt, defendant 1 has stated in his written statement that he has got a valid title to the plaint property, but it is not necessary to go into the question of his title unless and until the plaintiff has proved his right to redeem the mortgage. As the plaintiff has no evidence as to whether Sivaraman was alive on the date of Bhagawathi Valli's death and had died only after her death it has to be held that he has not established his right to the plaint property by virtue of the devolution of Bhagawathi Valli's interest on Sivaraman and on account of Sivaraman's subsequent death and consequent devolution of the interest on Meenakshi and Vasudevan. 12. The next question for consideration is whether Vasudevan would be Bhagawathi Valli's heir if Sivaraman had pre-deceased her. If he was Bhagawathi Valli's heir the assignment executed by him and his mother, Meenakshi, in the plaintiff's favour would still be valid even though Sivaraman had pre-deceased Bhagawathi Valli. Reliance has been placed by the plaintiff's learned counsel and the learned District Judge upon S.18 and Explanation II of S.19 of the Travancore Ezhava Act of 1100 in support of the case that, if Sivaraman had pre-deceased Bhagawathi Valli, Vasudevan would be her heir and her rights would have devolved on him after her death. Both S.18 and 19 occur in Part IV of the Act. S.18 provides that on the death of an Ezhava female the whole of her self-acquired or separate property left undisposed of by her would devolve on her thavazhi, and Explanation (ii) to S.19 says that the expression 'thavazhi' in the case of an intestate female shall, for the purpose of Part IV of the Act, include the issue of such female how-low-so-ever. The effect of these sections is that when an Ezhava female dies leaving only a child by a pre-deceased son and no other issue such child will be her heir and will take the whole of her self acquired or separate property even though that grand child is not a member of her thavazhi as that term is understood in ordinary Marumakkathayam law. Because of Explanation II to S.19 the expression 'thavazhi' occurring in Part IV of the Ezhava Act has a special meaning different from what it means under the ordinary Marumakkathayam law and includes not only the issue in the female line but also the issue both in the male and female lines how-low-so-ever. Defendant 1's answer to the plaintiff's contention that Bhagawathi Valli's interest in the plaint property devolved on Vasudevan after her death on account of S.18 and Explanation II to S.19 of the Ezhava Act is that Bhagawathi Valli was exempted from the operation of Part IV of the Act under S.33 (I) and that, therefore, so far as intestate succession was concerned, she was governed by the rules of ordinary Marumakkathayam law and not by the provisions of the Ezhava Act. S.33 of the Ezhava Act reads as follows: "33. (1) On an application made within six months from the commencement of this Regulation - (i) by an individual member of an Ezhava Tarwad with reference to the provisions of Part IV; or (ii) by a majority of the adult members of such Tarwad with reference to the provisions of Part VII (i), . the Government may, after making such enquiry as may be necessary and on being satisfied as to the truth of the application, exempt by a Notification in the Government Gazette such individual member or Tarwad as the case may be, from the operation of the said provisions of this Regulation. xxx xxx xxx xxx xxx" Ext. II is an issue of the Travancore Government Gazette containing a notification exempting various persons from the operation of the provisions of Part IV and Part VII (i) of the Act. Individual No. 170 in that notification is Bhagawathi Valli of Bhagawathi Bhagawathi's branch in Pinarummoottu tarwad residing at Thottuvarambu Bungalow, Kadagampally Pakuthy, Trivandrum Taluk; and the evidence of Dw.1, who is an advocate, is that this person was Bhagawathi Valli, the first donee under Ext. III. He was not cross-examined on this matter, and the first court accepted the case that Bhagawathi Valli was exempted from the provisions of Part IV of the Act. III. He was not cross-examined on this matter, and the first court accepted the case that Bhagawathi Valli was exempted from the provisions of Part IV of the Act. But it held that Part IV of the Act did not relate to the devolution of makkathayam properties and that therefore notwithstanding Bhagawathi Valli's exemption under S.33 (1), devolution of her interest in the plaint property, which was makkathayam property under the Ezhava Act, was governed by S.18 and Explanation II to S.19 and the plaint property had consequently devolved after her death on Vasudevan. The lower appellate court held that individual No 170 in Ext. II was not Bhagawathi Valli, the first donee under Ext. III, and that therefore Bhagawathi Valli was not exempted at all under S.33 (1) and so devolution of her interest in the plaint property was governed by S.18 and Explanation II to S.19 and Vasudevan had therefore obtained the plaint property after her death The finding of the lower appellate court regarding the identity of the person exempted under Ext. II appears to us to be perverse. The identification made by Dw.1, a responsible advocate, who was not even cross-examined on the point by the plaintiff's counsel, has been lightly brushed aside by the learned District Judge on the ground that Ext. II by itself belies his evidence. We are unable to see how Ext. II belies his evidence. The learned judge says that there are very many Bhagawathi Vallis in the list in Ext. III, and so there is no guarantee that the reference in No. 170 was to Sivaraman's mother. But Ext. III shows that Sivaraman's mother Bhagawathi Valli belonged to Pinarummoottu tarwad, and from her name it is obvious that she belonged also to Bhagawathi Bhagawathi's thavazhi. The plaintiff's own evidence is that Bhagawathi Valli's sister Bhagawathi Nani was residing in Thottuvarambu Bungalow, Kadagampally, Pakuthy though he does not expressly admit that Bhagawathi Valli also was residing in that house. It is obvious from these circumstances that individual No. 170 in Ext. II was Bhagawathi Valli, the first donee under Ext. III, and that her residence was given as Thottuvarambu Bungalow in Ext. II because she was actually residing there at that time. It is obvious from these circumstances that individual No. 170 in Ext. II was Bhagawathi Valli, the first donee under Ext. III, and that her residence was given as Thottuvarambu Bungalow in Ext. II because she was actually residing there at that time. Considering the plaintiff's omission to cross-examine Dw.1 about the identification made by him and also the finding of the learned District Munsiff in this matter, we have absolutely no doubt that the reference in No. 170 in Ext. II was to Bhagawathi Valli, the first donee under Ext III, and that she was exempted under S.33 (1) of the Ezhava Act from the operation of both Parts IV and VII (i) of the Act. 13. The ground on which the first court held that this exemption would not affect the devolution of the plaint property after Bhagawathi Valli's death was that the exemption under S.33 (1) would not relate to makkathayam properties. The learned Munsiff says in Para.7 of his judgment: "The fact that Valli had been exempted from the provisions of Part IV of the Ezhava Act dealing with the devolution of self-acquired properties of individuals does not affect the devolution of makkathayam property according to the provisions laid down in Part II Chapter VII of the Act". (The reference to Part II Chapter VII in the above extract is a mistake for Part VII (ii)). In this court also the same argument has been advanced by the respondent's learned counsel. Now, Part IV of the Act deals with the devolution of not merely the self-acquired properties of individuals but also their separate properties. That Part bears the title 'Intestate Succession' and S.15, 16, 17, 18 and 19 occurring in that Part, all deal with the intestate succession in respect of self-acquired and separate properties left undisposed of by Ezhava males and females at the time of their death, e. g., S.15 (1) reads: "15. (1) On the death of an Ezhava male leaving him surviving a widow or mother or both and also children or the lineal descendants of deceased children or both, they shall take the whole of the self-acquired and separate property left undisposed of by him at his death. (1) On the death of an Ezhava male leaving him surviving a widow or mother or both and also children or the lineal descendants of deceased children or both, they shall take the whole of the self-acquired and separate property left undisposed of by him at his death. In the absence of the mother and the widow, the children and the lineal descendants of deceased children shall take the whole, and in the absence of the mother, widow and children, the lineal descendants of deceased children shall take the whole"; and S.18 reads: "18. On the death of an Ezhava female, the whole of her self-acquired or separate property left undisposed of by her at her death shall devolve on her own Thavazhee. If she dies leaving her surviving no members of her thavazhee but her husband and members of her mother's Thavazhees, one-half of such property shall devolve on her husband and the other half on her mother's Thavazhee. In the absence of the husband the mother's Thavazhee shall take the whole, and in the absence of the mother's Thavazhee the husband shall take the whole". It is clear from S.32 which has been extracted in Para.7 above that it is open to any individual to give property for the exclusive benefit of his wife or for the exclusive benefit of any of his children without his children or other children, as the case may be, getting any right over that property. In such a case the property given by the husband or the father, as the case may be would be the separate property of the donee for whose exclusive benefit he gave it, notwithstanding the fact that it is makkathayam property falling within the definition of that term given in the Ezhava Act and so, intestate succession in respect of such makkathayam property given exclusively for one individual alone will be governed by the provisions in Part IV which govern intestate succession both in respect of self-acquired and separate properties. Makkathayam property and separate property are not mutually exclusive terms, and a property which is makkathayam property of one individual can at the same time be his separate property. The learned District Munsiff and the learned counsel for the respondent are not therefore right in contending that the devolution of Makkathayam property will not be affected by the provisions in Part IV of the Ezhava Act. The learned District Munsiff and the learned counsel for the respondent are not therefore right in contending that the devolution of Makkathayam property will not be affected by the provisions in Part IV of the Ezhava Act. Nor is it correct to say that the devolution of makkathayam property is governed by Part VII (ii). Part VII (ii) of the Act only provides for the quantum of the share an individual is to get on partition of the makkathayam property given by a person to his wife and children in common and has nothing to do with intestate succession in respect of makkathayam property given either solely to one individual or in common to him and others. When makkathayam property is given and belongs exclusively to one individual, ordinarily, intestate succession in respect of that property will be governed by the provisions in Part IV, and since S.33 of the Ezhava Act allows any individual member of an Ezhava tarwad to get himself or herself exempted from the operation of the provisions in Part IV of the Act, when an individual has obtained exemption from Government under that Section, the rules of intestate succession laid down in Part IV will not apply to him or her; in such a case, when exemption is obtained, intestate succession will be governed by the rules of ordinary Marumakkathayam law. Under the ordinary Marumakkathayam law, the children of a pre-deceased son are never the heirs of an intestate female. When a female dies leaving no member in her own thavazhi, i. e., no issue in the female line, under the ordinary Marumakkathayam law as obtaining in Travancore her mother's thavazhi takes the properties left by the intestate. Her issue in the male line gets no right at all to the properties left by her. Therefore, if Sivaraman had pre-deceased Bagawathi Valli, Vasudevan could never have obtained any right to the plaint property. He could have obtained the plaint property only if Sivaraman was alive at the time of Bhagawathi Valli's death and the plaint property had devolved on Sivaraman after Bhagawathi Valli's death as her heir. Therefore, if Sivaraman had pre-deceased Bagawathi Valli, Vasudevan could never have obtained any right to the plaint property. He could have obtained the plaint property only if Sivaraman was alive at the time of Bhagawathi Valli's death and the plaint property had devolved on Sivaraman after Bhagawathi Valli's death as her heir. Since the plaintiff has no evidence to prove that Sivaraman was alive at the time of Bhagawathi Valli's death it follows that the plaintiff has not established that Meenakshi and Vasudevan had obtained any right in the plaint property and that the assignment he has taken from them is valid and confers a right on him to redeem the plaint mortgage. 14. It was urged by the respondent's learned counsel that in as much as it was held in Ext. L that intestate succession to Bhagawathi Valli was governed by S.18 of the Ezhava Act and Bhagawathi Nani and Nani Gouri were given by that judgment only one-half share in the plaint property, defendant 1 is estopped from contending that Bhagawathi Valli was exempted under S.33 of the Act and the provisions of Part IV of the Act did not apply to her and that Bhagawathi Nani and Nani Gouri had any higher rights to the plaint property than what were awarded to them by that judgment. This contention overlooks the fact that Ext. L is not a judgment inter partes. No doubt, Bhagawathi Nani and Nani Gouri were parties to that suit, but neither the plaintiff nor his predecessors-in-interest were parties to it. The persons who can, on the strength of Ext. L, urge, against Bhagawathi Nani and Nani Gouri and persons claiming under them, that Bhagawathi Nani and Nani Gouri were entitled only to one-half of the assets left by Bhagawathi Valli are only the defendants in O. S. No. 746 of 1108 and those claiming under them. The finding in Ext. L was that after Bhagawathi Valli's death one-half of the plaint property devolved on Bhagawathi Nani and Nani Gouri and the other half on Bhagawathi Parameswaran by virtue of S.18 of the Ezhava Act. Subsequent to Ext. L Bhagawathi Parameswaran's rights in the property were attached in O. S. No. 36 of 1100 by his seshakars, and they also purchased and obtained symbolical delivery of the same in execution of that decree. Defendant 1 has taken the sale deed, Ext. Subsequent to Ext. L Bhagawathi Parameswaran's rights in the property were attached in O. S. No. 36 of 1100 by his seshakars, and they also purchased and obtained symbolical delivery of the same in execution of that decree. Defendant 1 has taken the sale deed, Ext. R from all the persons who can advance any claim to the property on the strength of Ext. L. Bhagawathi Nani had died by the time of Ext. R, and her daughter (Gouri) and Gouri's son as well as the auction-purchasers in O.S. No. 36 of 1100 have joined in executing that sale deed. Ext. R was in the nature of a compromise so far as the rival claims of Bhagawathi Valli's mother's thavazhi and the persons claiming under her husband were concerned The plaintiff does not claim the property under Bhagawathi Valli's mother's thavazhi or under her husband, Bhagawathi Parameswaran, or the auction-purchasers in O. S. No. 36 of 1100. He is not therefore entitled to advance any claim to the property on the strength of Ext. L, and any finding therein will not constitute res judicata so far as the disputes between him and defendant 1 are concerned. Further, the question whether Bhagawathi Valli was exempted under S.33 was not also raised or considered in Ext. L. 15. In the result, we hold that the plaintiff has not obtained a valid title to the equity of redemption of the plaint property by taking Ext. B and that he is not therefore entitled to redeem the plaint mortgage. The second appeal is therefore allowed with costs throughout and the plaintiff's suit is dismissed.