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1978 DIGILAW 1241 (ALL)

Adie Mal v. Deputy Director Of Consolidation

1978-12-15

R.M.SAHAI

body1978
JUDGMENT : R.M. Sahai, J. In this petition directed against the order of the Deputy Director, the only controversy that now survives for consideration is whether presumption of law raised under Sections. 107 and 108 of the Indian Evidence Act in relation to a person who has not been heard of for seven years by those who would have naturally heard of him extends to the death or also to the time of death at any point within seven years or immediately after expiry of the aforesaid period. 2. There appears to be no judicial divergence that Section 108 enacts a rule of legal presumption that a person not heard of for seven years by those who would naturally have heard of him shall be ; presumed to be dead. But there is no unanimity in respect of the point when death shall be presumed to have taken place. In Shankarappa v. Sheo Durappa AIR 1963 Mys 115 a Division Bench of the Mysore High Court relying on two English decisions in Chipchase v. Chipchase 1939 3 AER 895 and Watkins v. Watkins 53 AER 1113 agreed with the principle laid down by the Madras High Court in Balnicken v. Achmanicken AIR 1921 Mad 285 and held : In a case where the point of time of which the death has to be referred, may be placed indifferently either wherein the seven years or after the lapse of seven years (it not being necessary to show that the person lived during the same year), there is a presumption after the lapse of seven years in favour of the death and it is for the other side to displace the presumption and the party relying on the presumption is entitled to succeed if no evidence is offered by other side. 3. In Venkateswarly v. Bappaiya AIR 1957 AP 381, a Division Bench of Andhra Pradesh High Court held: Now the question is whether there is any warrant either on the language of the section or on the authority of the decided cases, for the view that if the exact date of death is not proved the earliest date on which the death could be presumed is the date on which the suit was filed. The true rule is that, the presumption u/s 108 of the Evidence Act extends to the fact of death at the expiration of seven years and not to the time of death at any particular period. There is no presumption that death took place at the end of seven years or at any particular time within that period. The exact time of death is not a matter of presumption but of proof by evidence, and the onus of proving that death took place at a particular time within the period of seven years lies on the person who claims a right for the establishment of which that fact is essential. If that is the true rule death cannot be presumed to have occurred on the date on which the suit was filed. It may be presumed that the man is not alive by the date of the institution of the suit but the presumption cannot be that he is dead on that date. 4. On the other hand in Huseinny J. Bhagat and Another Vs. Life Insurance Corporation of India, Madras, AIR 1965 Mad 440 , it was held that in absence of any evidence in respect of the exact time of death the only conclusion possible was that the death shall be presumed at the time when the question arose (date of plaint). To the same effect are the decisions reported in AIR 1967 Orissa 71; AIR 1943 TC 114 and AIR 1944 Pat 29. 5. As regards this Court it is settled that the presumption which is enacted by Section 108 of the Indian Evidence Act is that the party is dead at the time of the suit. See Mohd. Sherif v. Bande Ali ILR All 36 ; Rekhab Das Vs. Musammat Sheobai and Another, AIR 1923 All 495. 6. Section 108 deals with the presumption of death and it is proviso to Section 107 which deals with the presumption of continuance of life. The word 'when' in the beginning of Section 107 is significant. It indicates that the presumption contained in these sections is to be drawn “when the question is”. The question for purposes of presumption arises only when a suit is instituted. The presumption regarding continuance of life or death therefore has to be drawn when the suit is filed. The word 'when' in the beginning of Section 107 is significant. It indicates that the presumption contained in these sections is to be drawn “when the question is”. The question for purposes of presumption arises only when a suit is instituted. The presumption regarding continuance of life or death therefore has to be drawn when the suit is filed. To say that a person shall be presumed to have died after the expiry of seven years would be adding something to the language of Section 108. As held by the Andhra Pradesh High Court the presumption u/s 108 would be that the person on the date when the question arose is not alive but from this it cannot be held that this presumption can be extended to the period just after the expiry of seven years. Even in England the same principle is incorporated in Halsbury's Laws of England, Simond Edition, Vol. 15 Page 345. It reads as under: There is no legal presumption either that the person concerned was alive upto the end of period of not less than seven years or that he died at particular point of time during such period, the only presumption being that he was dead at the time the question arose if he has not been heard of during the preceding seven years. 7. Learned Counsel for the Petitioner has argued that on the finding that Ganga Lehri, admittedly Petitioner's co-tenant and brother of the opposite party, having not been heard of since 1352 Fasli, Ganga Lehri shall be presumed to have died in 1359 F and as on the date when he shall be presumed to have died a sister was not the heir either under the provisions of U.P. Tenancy Act or U.P. Zamindari Abolition and Land Reforms Act, I of 1951, the consolidation authorities committed a manifest error of law in allowing her claim. As indicated above the presumption extended only to the death of Ganga Lehri but not to the point of death and as the question arose regarding death of Ganga Lehri in consolidation proceedings he shall be presumed to be dead as he was not heard of for seven years. As indicated above the presumption extended only to the death of Ganga Lehri but not to the point of death and as the question arose regarding death of Ganga Lehri in consolidation proceedings he shall be presumed to be dead as he was not heard of for seven years. It cannot be said that the succession opened in 1359 F. The succession shall open only when the presumption had been drawn and as the presumption had been drawn during consolidation proceedings the opposite party is entitled to succeed u/s 171 of the Zamindari Abolition and Land Reforms Act. 8. It was argued by the Learned Counsel for the Petitioners that inheritance cannot remain in abeyance and if presumption enacted in Section 108 is applied and Ganga Lehri is presumed to have died the succession did open in 1359 F particularly when the opposite party in her objection herself pleaded that Ganga Lehri having not been heard of since 1352 F to 1359 F it shall be presumed that he is dead. The argument is correct so far it goes that inheritance cannot remain in abeyance But the succession opens only when the death takes place. As the succession is related with death, the primary requirement is to ascertain the date of death and as the presumption of law does not extend to the time of death which hat to be proved by evidence and in absence of any evidence the presumption in respect of death can be drawn only when the question arises i.e. on the date when the suit is instituted or proceedings are initiated, the question of succession cannot be said to be in abeyance. The argument proceeds on the assumption that the person not heard of shall be presumed to have died just after the expiry of seven years but as indicated earlier correct position is that a person is presumed to have died on the date when the suit was instituted. 9. In the result the petition fails and is dismissed but there shall be no order as to costs.