Judgment :- 1. Defendant, in a suit for partition filed by her brother, is the appellant. A and B schedule properties sought to be partitioned were allotted to their brother Prabhakaran Pillai and sister Bhanu Amma as per Ext.A1 partition of 1959 entered into between plaintiff and defendant. Bhanu Amma and Prabhakaran Pillai did not join Ext.Aland it is stated that they were residing outside the State. It is not disputed that more than 40 years ago when the parents died leaving these four children alone, the above two left the State and never returned for residence here. That they were not here even at the time of Ext.A1 is an admitted fact. In Ext.A1 the shares allotted to these two persons were given possession to the defendant to be banded over to them when they, come back with a further direction that plaintiff should not disturb her possession. It is also an admitted fact that if these two persons died the only heirs are the plaintiff and defendant, each being entitled to one-half. 2. After issuing Ext. A2 notice and getting Ext. A3 reply from the defendant, the suit was filed in 1982 on the allegation that even before and after Ext.A1 these two persons were not beard of and hence on the basis of the presumption available under S.108 of the Evidence Act they most be taken as dead. But the contention is that they are even now alive. In this connection, the presumption of life for 30 years from 1959 under S.107 of the Evidence Act on the basis of the alleged admission of living in Ext. A1 was also relied on. Accepting the presumption of death under S.108 a preliminary decree was passed and it was confirmed in appeal. 3. The finding of the Appellate Judge that there is no admission in Ext.A1 that these two persons were living then, was the subject of very serious criticism and I was even cautioned that endorsement of that view will be a serious illegality. I fail to understand what is the illegality involved even if it is a wrong appreciation. It is true that Ext.A1 does not say that these persons were dead or unheard of and hence presumed to be dead. They were only described as residents outside the State. I fail to understand what is the illegality involved even if it is a wrong appreciation. It is true that Ext.A1 does not say that these persons were dead or unheard of and hence presumed to be dead. They were only described as residents outside the State. In the normal course that could be taken as an admission that they are living even though they were not parties to that document. But the conduct of the parties, especially that of the appellant, and the evidence indicate that even at the time of ExtA1 these two bad no idea of their existence or whereabouts. In such a situation, it is only natural that they may refuse to make any commitment, suggesting their death which was not sure to them. That is so especially when the persons are direct brother and sister. My reasons in that respect also I shall refer to later. In such circumstances, I am constrained to agree with the Appellate Judge, in spite of the wording of Ext.A1 and the warning given to me, that the parties never meant to admit in Ext.A1 that they were living. 4. That question itself is only of academic importance in this suit. Even if there is such an admission in Ext. Al. the only result is that the defendant was able, by that admission, to show that they were living in 1959 and thereby take advantage of the rebuttable presumption of life for 30 more years. That only shifts the burden to the plaintiff to Drove that they are dead as alleged by him. But S.108 is only a proviso to S.107 and it says that when the question is whether a man is alive or dead, and it is proved that be has not been heard of for seven years by those who would naturally have heard of him if he was alive, the burden of proving that be is alive is shifted to the person who affirms it. When resort is bad to S.108, as was done in this case, and the burden is discharged by proving that the person was not beard of as contemplated therein for seven years, the presumption of life for 30 years under S.107 is rebutted even without actually establishing by positive evidence that be is dead. When resort is bad to S.108, as was done in this case, and the burden is discharged by proving that the person was not beard of as contemplated therein for seven years, the presumption of life for 30 years under S.107 is rebutted even without actually establishing by positive evidence that be is dead. The first presumption is thereby given a go by and a new and diametrically opposite presumption of death is substituted shifting the burden of proving that he is alive to the opposite side. If the allegations made and the evidence adduced by the plaintiff are capable of rebutting the presumption of life under S.107 and establishing the presumption of death under S.108, there is no question of considering S.107 or going back to it. If the plaintiff was not able to discharge the burden under S.108, whether or not there is an admission of life in Ext. Al, the presumption of life under S.107 is not necessary. That is why I said that the question of admission of life under Ext.A1 is only of academic importance. The principle behind S.108 is that if a person is alive he will not be unheard of by his near and dear ones normally for seven years or more and in the absence of such information, the presumption must be one of death until the contrary is proved. 5. An argument came that the plaint allegation is not sufficient to attract S.108 because what is alleged is that they were not heard of even before Ext. A1. This is said to be falsified by Ext.A1 and hence S.108 will not come into play. In order to attract S.107 the allegation and proof need not necessarily he exactly for seven years. Only thing is that the plea and proof should not be for a lesser period. It can be always for a longer period. What is alleged is that even before and after Ext. Al. they were not heard of by the plaintiff. Even if that contention is belied by Ext. Al, it can only be as on the date of that document. For the subsequent period, at any rate, the veracity of that allegation is a matter of acceptance or otherwise of plaintiff's evidence. Both the courts accepted that case and I have no reason for disagreement for added reasons to be given later. 6. Al, it can only be as on the date of that document. For the subsequent period, at any rate, the veracity of that allegation is a matter of acceptance or otherwise of plaintiff's evidence. Both the courts accepted that case and I have no reason for disagreement for added reasons to be given later. 6. Appellant is actuated more by the desire to retain the advantage of exclusive possession and enjoyment under Ext.A1 than with seeing that her brother and sister come back. Otherwise the contention and the fight upto the second appeal was unnecessary. Whether she retains the whole property or half goes to her brother is immaterial in the event of the two coming back. 7. In Ext. A3 reply notice the ease of the appellant was only that for the period of more than 40 years mentioned in the notice her information regarding their existence is hearsay from others who had occasion to see and converse with them. The identity of such persons was not disclosed. This attitude was severely criticised in Para 7 of the plaint as an attempt to concoct evidence. Still in the written statement the names of persons were not disclosed. There is no case in the written statement that they came to her house or attended her children's marriage or she saw them. Only case is they came to the locality. But now the case is that they came, sent for her. she went and met then but they did not come to her house, and they attended the marriages of her children. dw. 2 who was never mentioned anywhere was examined to prove that they came to a temple and though he did not. recognise them they were introduced and he identified. He is one who according to bis own admission does not go anywhere, even for marriages. Rightly his evidence was discarded. In the written statement the contention was that these two were consulted before Ext. Al, but in the box the consultation was denied. It is clear that either at the time of Ext.A1 nor at any subsequent time till now the parties had any idea about the existence or whereabouts of the brother and sister. A fantastic explanation as justification for the plaintiff not hearing about them was also given. That is a quarrel with the plaintiff as a result of which these two left the State. A fantastic explanation as justification for the plaintiff not hearing about them was also given. That is a quarrel with the plaintiff as a result of which these two left the State. But at that time plaintiff was only 12 or 13 years and Prabhakaran Pillai was only 6 years or so. That reason is not appealing for want of evidence also. Case of the defendant that she was aware of the whereabouts of these two is evidently false. She could have furnished that address or examined her husband who is said to have given that information. But she cleverly says that they shifted from there and the new address is not known to anybody. Anyhow, she was not able to supply any material to show that they are alive and she is interested only in playing bide and seek. Even though more than six years have now elapsed after the suit was filed, these two have not appeared and appellant was not able to trace them. Plaintiff said that he made all possible enquiries, but these two could not be traced. I fully agree with the courts below that the plaintiff discharged the burden under S.108 and the defendant was not able to rebut it to any extent. Her only desire is to knock off the properties under the "care of" of the lives of the brother and sister. 8. Basing on the decision in Velayudhan Sarojini v. Sankaranarayanan Sivanandan (1956 KLT 126), I was told by the counsel for the appellant that it is erroneous to apply S.107 and 108 to the same case because the court cannot have at the same time two diametrically opposite presumptions of life and death. That was an instance in which the case was referred to a third judge when the Division Bench differed. Applicability or inapplicability of both the presumptions in the same case was not a question considered or opinion expressed by the Division Bench as it was unnecessary. Therefore the opinion by the third judge on a point which was not necessary cannot be opinion of the Bench and it is obiter also. Applicability.or inapplicability of the presumptions of both the sections can arise in the same case without any illegality. Therefore the opinion by the third judge on a point which was not necessary cannot be opinion of the Bench and it is obiter also. Applicability.or inapplicability of the presumptions of both the sections can arise in the same case without any illegality. In the same case itself one party can make a claim by alleging and establishing the presumption under S.107 and the opposite party can rebut the same by establishing the presumption under S.108 and the first party can rebut the presumption under S.108 by again proving the factum of the person actually living within the said period of seven years. Burden of proof according to law under S.101 of the Evidence Act alone will be static. Onus of proof according to adducing evidence under S.102 will always shift on the initial discharge of burden. When one party successfully discharges the initial burden under S.107 it is shifted to the opposite side to prove death. When that party successfully discharges the burden under S.108, the onus of proving life is again shifted back to the first party. In that case the real dispute was not the presumption of life or death under S.107 and 108, but the question was whether on three specified dates the presumption of life or death could be applied without specific proof by the party so asserting. 9. The effect of the two sections is only this. When the question is whether a man is alive or dead, there will be the presumption of continuance of life for thirty years from the date on which he is proved to be alive and there will be a presumption of death at the time when the question is raised if it is established that he was not heard of for the preceding seven years. Life or death on a particular date is not the presumption of these sections. That is a matter for proof by the party who is bound to fail if it is not proved. Presumption of death under S.108 does not import any presumption that he died on a particular day. That presumption will apply only as on the date on which the question is raised before court. That is a matter for proof by the party who is bound to fail if it is not proved. Presumption of death under S.108 does not import any presumption that he died on a particular day. That presumption will apply only as on the date on which the question is raised before court. Likewise no presumption can arise under S.107 that a man who must be presumed to have died on the date of suit under S.108 was alive on a particular day within the seven years under S.108 simply because that day comes within the period of thirty years from the date of proof of life under S.107. When the question is one of living or dead, the presumption under either section could only be on the date of suit or on the date on which the question was raised and not on any particular previous day. Of course when the burden of proving the presumption under S.107 is discharged and the opposite party to whom the burden of proving death shifted has not discharged the same under S.108 or otherwise, the presumption of life will be. there. When a party's case depends on establishing that a given person who is presumed to be dead was alive or dead on a particular day or time within the 7 years period under S.108 success or failure will depend upon whether the party succeeded in proving the date or time of death. The effect of S.107 is only that when it is shown that a person was alive within 30 years, the burden of proving that he is dead is on the person who affirms it. That presumption has to be controverted by the counter presumption under S.108 or actual death on a particular date or time. The principle behind S.107 is the legal presumption of continuance of state of things proved to exist. 10. Both the presumptions under S.107 and 108 are only rebuttable. These two sections only deal with burden of proof and the consequent presumptions arising out of the discharge of that burden which the opposite party is free to rebut by adducing satisfactory evidence. 10. Both the presumptions under S.107 and 108 are only rebuttable. These two sections only deal with burden of proof and the consequent presumptions arising out of the discharge of that burden which the opposite party is free to rebut by adducing satisfactory evidence. Anyhow, the presumption under S.108 regarding death could only be as on the date of suit in the absence of evidence regarding death on any particular date (See Velayudhan Sarojini v. Sankaranarayanan Sivanandan 1956 K.L.T. 126 Saraswati Goswami and others v. General Manager N.P. ailway A.I.R. 1976 Gauhati 15 and Surjit Kaur v. Jhujhar Singh A. I. R 1980 Punjab & Haryana 274). The decision of the present case does not depend upon the life or death on any previous day. When the presumption of death as on the date of suit is established under S.108, it was for the defendant to adduce positive evidence to prove that they are alive. Both presumptions under S.107 and 108 come into play only after the suit is instituted though the presumption of life under S.107 prevails until dispensed by the proof of actual death or proof of facts raising the presumption of death. In the latter case presumption of death prevails till actual existence of life is proved. These two sections actually do not prove life or death or their existence or happening on any particular day. They only raise presumptions either way for the purpose of shifting burden to deal with the procedure to be followed. In this case the presumption established under S.108 is not rebutted by the defendant and hence in spite of the absence of proof regarding the factum of actual death or the dates of death, there is presumption under S.108 that as on the date of suit both of them were dead or not alive. If so the decree has only to stand, The second appeal is dismissed with costs.