Judgment :- 1. One Sreedharan, son of Thathanath Kalliani Amma, Pazhanji Village. Talappilly Taluk (hereinafter referred to as the original plaintiff) filed O.S. No. 354 of 1980 in the Munsiff's Court, Chavakkad, for recovery of possession of a building with arrears of rent. By judgment dated 2-2-1982 the suit was decreed in his favour. The defendant who hereinafter referred to as the judgment-debtor, filed A.S. No. 88 of 1982 before the District Court. Trichur challenging that judgment and decree. The notice to the respondent therein, (original plaintiff) seems to have been returned unserved. Subsequently respondent's notice was published in the 'Mathrubhoomi' daily, Seeing the publication the wife, minor children and mother of the original plaintiff filed I.A 338 of 1983 before the appellate court to implead them as additional respondents in the appeal. In the affidavit in support of that application filed by the wife of the original plaintiff it was stated that the original plaintiff was employed in Military. From 15-1-1982 to 29-1-1982 he was on casual leave and came home on leave. On 8-2-1982 he proceeded to Srinagar by K.K. Express from Trichur. Thereafter he was not heard of. By letter dated 2-3-1982 the Military Headquarters informed them that he did not report for duty after leave. They corresponded with the military authorities and also inserted a publication in the Malayalam Express with a photograph of the original plaintiff. Enquiries were also made through police authorities. However, he could not be traced. The said affidavit was filed on 18-2-1983. The court marked the documents produced along with the I. A. and allowed the application observing as follows: "I make it clear I do not implead them as legal representatives of Sreedharan, I implead them under Order I Rule H and allow the advocate for them to address the court under Order I R.10A and also to act and plead on behalf of the applicants as parties." Subsequently the appeal was dismissed on 3-7-1984. When the decree was sought to be executed by the wife, minor children and mother of the original plaintiff by filing E.P. No. 109 of 1985, the judgment-debtor filed objections raising the contention that they are not impleaded as legal representatives of the original plaintiff, but were only permitted to conduct the case on his behalf. Therefore it was contended that they have no right to file the execution petition. Therefore it was contended that they have no right to file the execution petition. The execution court rejected that contention. 2. Learned counsel for the judgment-debtor placed considerable reliance on the following observation of this Court reported in Raghava Panicker v. Kesavan (1961 K.L.T. 582): 113 It is on the application of the bolder of the decree or his legal representative that the court gets jurisdiction to execute the decree. There was no such execution petition in this case. The appellant and others who filed B. P. No. 32 stated: "The decree holder has not been in the locality for a long time. There is no member of his tarwad. We are the only children of the decree-holder" (translation). On these allegations they prayed that they may be impleaded as additional decree-holders. They had no case that the original decree-holder was either dead or bad not been heard of for seven years. In fact there is evidence in the case that the decree-holder was alive on the date of the E, P. and this fact is admitted by the appellant. In such circumstances the court had no jurisdiction to allow execution and the orders passed on the E.P. are without jurisdiction." 3. On the other hand, learned counsel for the respondents referred to the following observation of the High Court of Jammu and Kashmir Gulam Nabi Seh v. Gaffer Wagey (AIR 1983 J. & K. 67): "3 Order 21, R.10 says, "where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree", whereas 0.21 R.11 (2) enables the applicant either to move the application himself or through some other person acquainted with the facts of the case. R.10 and R.11 (2) of 0.21 are complementary to each other. R.11(2) is intended to convey that the decree-holder need not necessarily move personally for the execution of the decree. He can have it done through some other person acquainted with the facts of the case." However, this controversy need not be resolved in this case since the respondents filed C.M.P. 28180 of 1987 in this CMP. for impleading them as the legal representatives of the original plaintiff. In the affidavit filed by the Ist respondent, wife of the original plaintiff, she has detailed the circumstances under which the respondents were impleaded in the appeal on the trial side. for impleading them as the legal representatives of the original plaintiff. In the affidavit filed by the Ist respondent, wife of the original plaintiff, she has detailed the circumstances under which the respondents were impleaded in the appeal on the trial side. She also refers to the attempts made by her and the military and police authorities to trace the original plaintiff. Finally she states as follows: "However, the fact remains that even now there is no information about him, his whereabouts are also not known and we, the people and his relatives who would naturally heard of him bad he been alive, have not beard of him at all since 8-2-1982". She also states: "We would have heard of him had he been alive. All the attempts made by us, friends, well wishers. Army authorities and Police authorities have failed. His habits, character, domestic relations or necessities, facts and circumstances were such that, had be been alive, it was certain that he would have returned to or communicated to his house." Therefore, the prayer in the petition is to draw a presumption of the death of the original plaintiff under S.114 of the Evidence Act and to pass an order impleading the petitioners (respondents in the CRP.) as the legal representatives of the original plaintiff or in the alternative to permit them to proceed with the execution of the decree by appointing them or any of them to look after the affairs of the original plaintiff. The judgment-debtor filed a counter affidavit in the C.M.P. It is contended that S.107 and 108 of the Evidence Act is a complete code by itself regarding presumption of life and death and beyond those provisions no presumption under S.114 can be drawn. It is also submitted that the presumption is always in favour of continuing life and not cessation of it. It is further submitted that there is no legal provision by which the alternate prayer of appointing the respondents in the C.R.P. to look after the affairs of the original plaintiff can be allowed. 4. The relevant sections of the Evidence Act to be considered are the following: "107. When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 108. 4. The relevant sections of the Evidence Act to be considered are the following: "107. When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 108. Provided that when the question h whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have beard of him if he bad been alive, the burden of proving that be is alive is shifted to the person who affirms it. 114. The Court may presume the existence of any fact which it thinks likely to have happened regard being bad to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." 5. S.107,108 and 114 are in Chapter VII of the Evidence Act relating to burden of proof. S.107 deals with the presumption of continuance of life and S.108 deals with the presumption of death. In view of the presumption of continuance of life provided for in S.107, S.108 was enacted to provide for the counter presumption where a person's death would seem, where a person is continually absent from home for a period of 7 years unheard of by persons who would have naturally beard of him, more likely from the nature and circumstances of the case than the continuance of life. In that case the burden of proving that he is alive is shifted to the person who affirms that he is not dead. A Division Bench of the Patna High Court had occasion to consider the case of a decree-holder who disappeared, but where death cannot be legally presumed, in Gobind Prasad v. Jugdip Sahay (AIR 1925 Patna 369). Bucknill. J. speaking for the Bench suggested the following procedure to be adopted in such a case: "There is one word which I should like to say in conclusion and that is that it has been represented that there is some serious difficulty in knowing what should be done under such peculiar circumstances as these where one has to face an unexplained disappearance of a person about whose death nothing is known. It seems to be that there are two possible alternative courses which might be utilised. One might be that if the circumstances were such as would justify a prudent person in coming to the conclusion that death was extremely probable, an application might be made to the proper Court upon affidavit showing the circumstances and asking leave to presume the death; or, in the alternative, if the Court did not think that the evidence produced before it was sufficient upon which it could prudently be said that death could be presumed, then in such cases the Court could and should appoint some person to look after the affairs of the individual who bad disappeared until his return or until bis death can properly be presumed. These two courses and I have known both adopted -seem to me to be remedies for or rather solutions of the very practical difficulty which has arisen in this case." In view of the ruling of a Bench of this Court in Raghava Panicker v. Kesavan cited supra, I am not examining whether the second course suggested by Bucknill, J. could be adopted in this case although learned counsel for the respondents placed strong reliance on the following passage of the Supreme Court in Jugalkishore v. Raw Cotton Co. (AIR. 1955 SC. 376 at page 394): 11(37) There is nothing in 0.21. R.16 which, expressly or by necessary implication, precludes a person, who claims to be entitled to the benefit of a decree under the decree-holder but does not answer the description of being the transferee of that decree by assignment in writing or by operation of law, from making an application which the person from whom be claims could have made. It is said: what, then, is meant by the words "save as otherwise provided by this Code?" The answer is that those words are not meaningless but have effect in some cases. Take, by way of an illustration, the second proviso to 0.21 R.16 which provides that where a decree for payment of money against two or more persons has been transferred to one of them it shall not be executed against the others. Take, by way of an illustration, the second proviso to 0.21 R.16 which provides that where a decree for payment of money against two or more persons has been transferred to one of them it shall not be executed against the others. This is a provision which forbids one of the judgment-debtors to whom alone the decree for payment of money has been transferred from making an application for execution and, therefore, be cannot apply under S.146 as a person claiming under the decree-holder." 6. The Privy Council has clarified the scope of presumption in Lal Chand Marwari v. Mahant Ramrup Gir (AIR. 1926 P.C. 9), thus: "Now upon this question there is, their Lordships are satisfied, no difference between the law of India as declared in the Evidence Act and the Law of England (Rango Balaji v. Mudiyeppa (1899) 23 Born. 296) and searching for an explanation of this very persistent heresay, their Lordships find it in the words in which the rule both in India and in England is usually expressed. These words taken originally from In re Phene's Trusts (L. R.5 Ch. 139) run as follows: "If a person has not been heard of for seven years, there is a presumption of law that he is dead: but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential." Following these words, it is constantly assumed - not perhaps unnaturally that where the period of disappearance exceeds seven years, death, which may not be presumed' at any time during the period of seven years, may be presumed to have taken place at its close. This, of coarse, is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one "of not less than seven years"." 7. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one "of not less than seven years"." 7. It is now well settled that the presumption of continuance of life under S.107 ceases at the expiration of seven years from the period when the person in question was last heard of. However, there is no presumption as to the time of his death and if anyone seeks to establish the precise period at which such person died, be must do so by actual evidence see In the Good of Ganesh Das (AIR 1926 Calcutta 1056), Gananamuthu v. Anthoni (AIR 1960 Madras 430), T.R. Rathnam v. K. Varadarajulu (AIR 1970 Andhra Pradesh 246), Saraswati v. G.M.N.F. Rly. (AIR 1976 Gauhati 15), Surjit Kaur v. Jhujhar Singh (AIR 1980 Punjab and Haryana 274) and Appulla Vadhyar v. Venketeswara Vadhyar (1970 KLT 976-FB.). 8. Therefore, the further question to be considered is whether a presumption of death of a person can be drawn under S.114 Evidence Act even before the expiry of the 7 years mentioned in S.108 of the Evidence Act. A presumption is usually defined as an inference as to the existence of one fact from the existence of some other fact. As against presumptions of law which derive their force or effect from law, presumptions of fact depend upon the logical inference of the existence of one fact drawn from other proved or known facts without the aid of any rule of law. S.104 to 113 of the Evidence Act enact special provisions relating to burden of proof according to the nature of presumptions that may be drawn from the rules embodied in them. Besides those presumptions there are a very large number of presumptions that may be drawn under S.114 of the Evidence Act from the common course of natural events, human conduct, the results of our experience of the world, probabilities and improbabilities of a fact etc. Discretion to be exercised must of course be judicial and not arbitrary. The illustrations to S 114 of the Evidence Act are instances of only a few of the numerous presumptions that can be drawn. Discretion to be exercised must of course be judicial and not arbitrary. The illustrations to S 114 of the Evidence Act are instances of only a few of the numerous presumptions that can be drawn. The illustrations are not exhaustive, but are only examples see Chhedda v. Emperor (AIR 1944 Allahabad 281), Chavadappa Pujari v Emperor (AIR 1945 Bombay 292), Chimna v. State (AIR 1961 Rajasthan 95) and Debi Prasad v. Emperor (AIR 1947 Allahabad 191-FB.) In this connection reference may also be made to the following observation made in Aung Hla v. Emperor (AIR 1951 Rang. 23)) which is quoted with approval by a Full Bench of the Calcutta High Court in Sarat Chandra v. Emperor (AIR. 1934 Calcutta 719 FB.): "The effect of the provision (that is S.114) is to make it perfectly clear that Courts of justice are to use their own common sense and experience in judging of the effect of particular facts, and that they are to be subject to no technical rules whatever on the subject." 9. In Kali Ram v. State of H.P. (AIR 1973 SC. 2773) the Supreme Court observed as follows: "24 The court may of course, presume, as mentioned in S.144 of the Indian Evidence Act, the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustrations mentioned in that section, though taken from different spheres of human activity, are not exhaustive They are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are merely examples of circumstances in which certain presumptions may be made. Other presumptions of a similar kind in similar circumstances can be made under the provisions of the section itself. Whether or not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behaviour is so complex that room must be left for play in the joints. It is not possible to formulate a series of exact propositions and confine human behaviour within strait jackets. No hard and fast rule can be laid down. Human behaviour is so complex that room must be left for play in the joints. It is not possible to formulate a series of exact propositions and confine human behaviour within strait jackets. The raw material here is far too complex to be susceptible of precise and exact propositions for exactness here is a fake." In Woodroffe & Amir Ali's Law of Evidence (14th Edition, Volume 3, Page 2491) the learned authors observed as follows: "There is no presumption of law relative to the continuance of life in the abstract. The death of any party once shown to have been alive is a matter of fact to be determined by the Court. But as the presumption is in favour of the continuance of life, the onus of proving the death lies on the party who asserts it. The fact of death may, however, be proved by presumptive as well as direct evidence. So the presumption of the continuance of life ceases at the expiration of seven years from the period when the person was last heard of and the burden of proving that he was alive at any time within the seven years is upon the person asserting it. But a Court may find the fact of death from the lapse of a shorter period than seven years, if other circumstances concur." The learned authors have at page 2802 of the same Volume extracted a list of presumptions that are drawn by courts and given in the book on "Presumptive Evidence by Lawson. One of these presumptions is the following: "Rule 52 - That his habits, character, domestic relations or necessities, or facts of circumstances other than those showing exposure to danger would have made it certain that if alive within that period, he would have returned to or communicated with his residence, home or domicile, or have been heard from " 10. In Badal v. Saraswati (AIR. 1927 Allahabad 687) Ashworth, J. held as follows: "Both the lower Courts were correct in holding that there was no presumption of law arising from the fact that at the date of suit Ram Baksh had not been heard of for thirty years. that he had been dead at the date of the death of Mt. Janki which occurred two years before suit in 1901. that he had been dead at the date of the death of Mt. Janki which occurred two years before suit in 1901. They appear however, to have ignored the fact that independently of S.108, Evidence Act, they were entitled to draw an inference of fact under S.114. Evidence Act, that Ram Baksh was dead in 1921. S.108. Evidence Act, provides that in certs in circumstances a rebuttable presumption of law arises as to death, It does not follow that if those circumstances do not exist there cannot be a presumption, or inference of fact, under S.114, Evidence Act as to death In a case like this, where a reversioner is suing persons who are merely trespassers, I do not consider that strong proof is required of the death of a nearer reversioner. A prudent man might within the meaning of the definition of "proved" in S.3, Evidence Act, consider the death of nearer reversioner sufficiently probable (in a suit by a person who, assuming that death, would be entitled to the property) on very little evidence." 11. Therefore independently of S.108 of the Evidence Act, a court is entitled to draw an inference of death, and presume the death of a person under S.114, Evidence Act, if the circumstances and evidence justify such an inference. In this case the wife children and mother of the original plaintiff are claiming to execute the decree for eviction of a stranger from the decree schedule building. Before the appellate court (on the trial side) they filed I. A. No. 338 of 1983 for impleading them. In that application they produced the following documents: Ext. A-1 letter dated 2nd March, 1982 from the Chief Ordnance Officer, Military Establishment; 21 Field Ammunition Depot, C/o 56 APO, addressed to the wife of the original plaintiff. The letter shows that the original plaintiff did not report to their unit till that date. Ext. A-2 is a publication with the photograph of the original plaintiff inserted in the Malayalam Express daily dated 18-3-1982. Ext. A-3 is the letter dated 17-1-1983 from the Superintendent of Police, Trichur addressed to the wife of the original plaintiff to the effect that no information regarding the whereabouts of the original plaintiff could be obtained so far and that earnest and all out efforts were being continued by Kerala and Nagpur police. Ext. Ext. A-3 is the letter dated 17-1-1983 from the Superintendent of Police, Trichur addressed to the wife of the original plaintiff to the effect that no information regarding the whereabouts of the original plaintiff could be obtained so far and that earnest and all out efforts were being continued by Kerala and Nagpur police. Ext. A-4 is a letter dated 14th February, 1984 from the Administrative Officer, Offg. Chief Ordnance Officer, Military Establishment, 21 Field Ammunition Depot, C/o 56 APO, addressed to the wife of the original plaintiff. That letter mentions that the whereabouts of the original plaintiff were not known and that any information will be communicated to her as and when he is traced out. He also informed the addresses in which she had to correspond for getting necessary financial assistance or grant. I have called for the entire files in A. S. No. 88 of 1982, District Court, Trichur along with the above exhibits. I am marking those documents as Exts. X-1 to X-4 respectively in this proceedings. In the affidavit in support of C. M. P. 28180 of 1987 the wife of the original plaintiff has stated that the records produced in appeal are only a few of the voluminous correspondence she has with her. On the basis of the statements in the affidavit as well as on the basis of Exts. X-1 to X-4, I draw the presumption that the original plaintiff is dead. C.M.P. No. 28180 of 1987 is allowed and the respondents are impleaded as legal representatives of the original plaintiff in O.S. No. 354 of 1980 on the file of the Munsiff's Court. Chawghat. They are entitled to proceed with the execution of the said decree. Under the circumstances, the conclusion reached by the lower court is correct. There is absolutely no injustice in the order under challenge. There is no merit in this CRP. and it is accordingly dismissed.