JUDGMENT : A. Hariprasad, J. 1. Aggrieved by the concurrent findings in a suit for redemption of mortgage, the defendants have come up in this second appeal. Plaintiffs 3 to 8 are the respondents in this appeal. 2. Heard Smt. Bindu, learned counsel for the appellants and Sri. G.S. Reghunath, learned counsel for the respondents. 3. Shorn off unnecessary details, the facts relevant are as follows : Plaint schedule property belonged to one Appilose Haris. Plaintiffs 1 to 4 are siblings. Appilose Haris was plaintiffs' mother's sister's son. Haris was serving the Military and he remained a bachelor throughout his life. After retirement from the service, he resided along with the plaintiffs. While living with the plaintiffs, he executed Ext.A1 mortgage deed in favour of the defendants on 04.03.1963. While so, on one day, he left home and thereafter, his whereabouts were not known to the plaintiffs. Haris had gone missing about 15 years prior to the institution of the suit. Therefore, he should be presumed to be dead on the date of suit. According to the plaintiffs' assertion, they are the legal heirs of Haris and therefore, they are entitled to redeem the mortgage from the 1st appellant (1st defendant). Despite making requests, the 1st appellant did not allow redemption of the mortgage. The defendants committed waste by cutting and removing trees. Therefore, the plaintiffs sought to realise compensation for waste committed in the mortgaged property. Pending suit, the plaintiffs 1 and 2 died and their legal representatives were impleaded as additional plaintiffs 5 to 8. 4. The defendants filed a written statement contending that the plaintiffs have no right over the suit property. According to them, the suit is bad for non-joinder of necessary parties. They asserted that Haris was alive on the date of suit. Contentions in the plaint that Haris left home about 15 years ago and his whereabouts were not known are denied. Presumption of death in Section 108 of the Evidence Act, 1872 (for short, the Act) is not available in this case. Plaintiffs have no right to redeem the mortgage. The appellants claimed Kudikidappa right and tenancy right in respect of the property and they sought for a reference under Section 125 (3) of the Kerala Land Reforms Act, 1963 to the Land Tribunal concerned and they further prayed for dismissal of the suit. 5. The trial court framed relevant issues. Plaintiffs have no right to redeem the mortgage. The appellants claimed Kudikidappa right and tenancy right in respect of the property and they sought for a reference under Section 125 (3) of the Kerala Land Reforms Act, 1963 to the Land Tribunal concerned and they further prayed for dismissal of the suit. 5. The trial court framed relevant issues. One of the issues was whether the defendants are entitled to get Kudikidappa right in respect of the plaint schedule property. That was referred to the Land Tribunal, Nedumangad in R.C.10 of 1990. The Land Tribunal found that the question of Kudikidappa right could be decided only at the time of redemption of the mortgage as provided in Explanation IV to Section 2(25) of the Kerala Land Reforms Act. 6. After considering other issues, the trial court decreed the suit rejecting the contentions raised by the appellants. 7. The lower appellate court, on re-appreciating the evidence, agreed with the findings of the trial court and dismissed the appeal. Hence the defendants are before this Court. 8. Substantial questions of law framed are as follows : 1. Can it be said that the plaintiffs are the legal heirs of Appilas Haris especially when they claim to be the children of the mother's sister of Appilas Haris, which is the last category under Section 47 and 48 of the Indian Succession Act, especially when there is no averment in the plaint to the effect that none of the legal heirs under clause 1 and 1 to 7 under clause 2 are in existence? 2. Was not the court below wrong in decreeing the suit for redemption simpliciter without a prayer for declaration that the plaintiffs are the legal heirs entitled to redeem the property? 3. Were not the courts below wrong in casting a burden of proof on the defendants especially when the plaintiffs had failed to discharge the initial burden? 9. Learned counsel for the appellants contended that the courts below did not consider the scope of Sections 107 and 108 of the Act properly. Admittedly, the property belonged to Appilose Haris. Plaintiffs raised a contention that they are the closest relatives of Appilose Haris and since he went missing 15 years before institution of the suit, he should be presumed to be dead on the date of suit and hence the property devolved on them. Admittedly, the property belonged to Appilose Haris. Plaintiffs raised a contention that they are the closest relatives of Appilose Haris and since he went missing 15 years before institution of the suit, he should be presumed to be dead on the date of suit and hence the property devolved on them. The defendants opposed this contention by contending that Haris was alive and they had occasion to see him admitted to Medical College Hospital, Thiruvananthapuram during 1989. 10. In order to prove these rival contentions, PW-1 and DW-1 testified. PW-1 spoke on behalf of the plaintiffs about the relationship between Haris and themselves. Definite testimony of PW-1 is that her mother and Haris's mother were sisters. This evidence is not at all challenged at the time of cross-examination. Not only that, in the cross examination, it was elicited from PW-1 that Haris was the only son of his parents and his parents were not alive at the time when he went missing. Admittedly, the parties are Christians governed by Indian Succession Act, 1925. From the evidence of PW-1, it is clear that the plaintiffs are his relatives, who are in the nearest degree of kindred. It is brought out in evidence that neither his father nor mother was alive when Haris disappeared from home. Further, he had no lineal descendents, as he was a bachelor and no collaterals, as he was the only son of his parents. Therefore, Section 47 of the Indian Succession Act has no application and by virtue of Section 48 of the said Act, the plaintiffs could claim right over the property as relatives in the nearest degree of kindred. 11. Learned counsel for the appellants vehementally argued that the factum of death was not properly proved by PW-1. Before dealing with that aspect, it will be profitable to consider the law on the point. Sections 107 and 108 of the Act reads as follows: "107. Burden of proving death of person known to have been alive within thirty years.- 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. Burden of proving death of person known to have been alive within thirty years.- 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. Burden of proving that person is alive who has not been heard of for seven years.- [Provided that when] the question is 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 heard of him if he had been alive, the burden of proving that he is alive is [shifted to] the person who affirms it. 12. It is well settled that the statement of law in Section 107 of the Act deals with presumption of continuity of life and that in Section 108 deals with presumption of death. These provisions form part of Part III touching on the production and effect of evidence, which is again subdivided in Chapter VII under the caption "the burden of proof". 13. Even though these provisions fall under a Chapter dealing with burden of proof, an inbuilt rule of evidence, in the form of presumptions of life and death, is attached to them. It is well known that presumptions are of two kinds: (1) Presumption of fact and (2) Presumption of law. The presumptions embodied in the above sections on which the burden of proof is cast is certainly presumptions of fact. Presumptions of fact are inferences which are naturally and logically drawn from experience and observation of the course of nature, the constitution of human mind, the springs of human action, the usages and habits of society etc. These presumptions are generally rebuttable. 14. It is trite that no presumption as to the date or time of death is available. Whether a person is alive or dead should be a question arising in a suit or proceeding and then only the said provisions would operate. In other words, a presumption being not evidence in itself and only a rule concerning evidence, it can be put forward only in a properly instituted suit or proceeding. 15. Whether a person is alive or dead should be a question arising in a suit or proceeding and then only the said provisions would operate. In other words, a presumption being not evidence in itself and only a rule concerning evidence, it can be put forward only in a properly instituted suit or proceeding. 15. On a careful examination of the provisions, it can be seen that the legislature has used different expressions to qualify the degree of proof required in the matter of presumptions of life and death. What is stated in Section 107 of the Act is that when the question is whether a man is alive or dead and it is shown that he was alive within thirty years, then the burden of proving that he is dead would be shifted to the person who affirms it. The expression used here is 'shown'; whereas if one reads Section 108 of the Act, which is in the form of a proviso to Section 107 of the Act, it can be seen that when the question is 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 heard of him, if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. Here, the expression used is 'proved'. The expression 'proved' is defined in Section 3 of the Act in the following words: "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." But the expression 'shown' is not defined in the Act. 16. At first blush it may appear that the intent and purport of these expressions are the same. Is there any difference in the quality and quantity of evidence required to "prove" one fact and "show" another fact? Legislature in its wisdom has used the expression "shown" in the case of presumption of life and "proved" in the case of presumption of death. Was it simply accidental? In my view, it is not. 17. Is there any difference in the quality and quantity of evidence required to "prove" one fact and "show" another fact? Legislature in its wisdom has used the expression "shown" in the case of presumption of life and "proved" in the case of presumption of death. Was it simply accidental? In my view, it is not. 17. Justice G.P. Singh on the Principles of Statutory Interpretation (12th Edition pages 356-359) has dealt with the rules of interpretation regarding use of the same word in different parts of the same section or statute and use of different words in the same statute. Learned author, based on English law and precedents laid down by the Supreme Court, enunciated the following principles: "When the Legislature uses same word in different parts of the same section or statute, there is a presumption that the word is used in the same sense throughout. The presumption is, however, a weak one and is readily displaced by the context. It has been said that the more correct statement of the rule is that "where the draftsman uses the same word or phrase in similar contexts, he must be presumed to intend it in each place to bear the same meaning." When in relation to the same subject-matter, different words are used in the same statute, there is a presumption that they are not used in the same sense." 18. It is therefore clear that the draftsman consciously used different expressions 'proved' and 'shown' in the said provisions with a clear purpose. To appreciate the intented difference in the meaning of the words, the presumption in Section 114 of the Act is also relevant. Illustration (d) to Section 114 of the Act deals with presumption of continuity of the state of affairs. The provisions read thus: "Court may presume existence of certain facts.- The Court may presume 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. Illustration (d) - That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence." Indisputably, this is a rebuttable presumption. Illustration (d) - That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence." Indisputably, this is a rebuttable presumption. Framers of the Statute must have thought that the presumption as to continuity of life would be more rational and commonsensical, if it is shown that a person is alive within 30 years and further that the presumption of death should not be drawn readily, for which a higher degree of proof should be insisted, reckoning the complications and consequences it might cause in the civil rights of the parties. In this background, if one views the expressions 'shown' in Section 107 and 'proved' in Section 108 of the Act, it could be legitimately inferred that "showing" requires only a lesser degree of proof than "proving". Once it is shown that a person is alive within 30 years, then it becomes incumbent on the person who wants to draw a presumption of death under Section 108 of the Act to prove that the person was not heard of for more than 7 years by those who would naturally have heard of him. These aspects actually belong to the realm of appreciation of evidence, according to the facts and circumstances in each case. 19. In this case, this distinction is only of academic relevance because PW-1 has asserted without any challenge that Haris was her first cousin and he went missing 15 years before the suit. It is the definite case of the plaintiffs that he was not heard of for 15 years before the suit and therefore, he should be presumed to be dead. Even though DW-1 tried to develop a case that Haris had seen admitted to Medical College Hospital, Thiruvananthapuram in 1989, no material was produced to establish that fact, except her unconvincing ipse dixit. Courts below, rightly, have commented on the non-production of any medical record to show that Haris was hospitalized, which would have been normally sufficient to show that he was alive within 30 years. The trial court as well as the appellate court rightly considered this issue and found that the plaintiffs have discharged their burden of proving that Haris was not heard of for more than 7 years before institution of the suit. The trial court as well as the appellate court rightly considered this issue and found that the plaintiffs have discharged their burden of proving that Haris was not heard of for more than 7 years before institution of the suit. The courts below correctly considered these aspects and found that the defendants failed to discharge their duty to show that Haris was alive within thirty years before the suit. Hence the presumption under Section 108 was correctly applied to this case to find that he was not alive at the time of institution of the suit. 20. Learned counsel for the respondents relied on Ext.A2 to show the relationship between the plaintiffs and Haris. This document remains unchallenged. This document coupled with the assertion of PW-1 proves that they are the legal heirs of Haris. In the light of these proven facts, no declaration need be sought for in the suit. 21. There is no dispute regarding the execution of Ext.A1 mortgage deed. The contention raised by the appellants, that they have a tenancy right as well as a Kudikidappa right, may not go together. The question of tenancy was not referred to the Land Tribunal. What was referred to is only a claim of Kudikidappa right. It appears that the claim of tenancy was not seriously pressed. That apart, non-referring the question of tenancy has become final as it was not challenged before the lower appellate court. Hence that contention cannot be raised now. 22. Learned counsel for the appellants, relying on Victoria v. K.V. Naik [ 1997 (6) SCC 23 ] raised an apprehension that the ratio in this decision may bar the appellants' contention that they are entitled to get Kudikidappa right. On the facts and circumstances in Victoria's case, the Supreme Court rejected the plea on finding that the issue in that case was barred by res judicata, either actual or constructive. But that question does not arise in this case as the question relating to Kudikidappa was not at all decided in this case. Therefore, the appellants are entitled to raise that question at the time of redemption as provided in Explanation IV to Section 2 (25) of the Kerala Land Reforms Act. Having regard to the facts and circumstances, I find that the substantial questions of law raised could only be decided against the appellants. Hence I do so. Therefore, the appellants are entitled to raise that question at the time of redemption as provided in Explanation IV to Section 2 (25) of the Kerala Land Reforms Act. Having regard to the facts and circumstances, I find that the substantial questions of law raised could only be decided against the appellants. Hence I do so. I find no merit in the appeal, hence it is dismissed. All pending interlocutory applications will stand dismissed.