HIGH COURT OF KERALA
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(1.) The question raised in the Second Appeal is whether the decree in O. S. 91 of 1953 filed by the second defendant against Sankaran and the first defendant is valid and binding on the plaint items which belonged to Sankaran. O. S. 91 of 1953 is a suit to enforce a mortgage executed by Sankaran The plaintiff is the daughter of Sankaran. The mortgage was executed by Sankaran in 1122 to the second defendant, and immediately thereafter he left for Ceylon and according to the plaintiff he was not heard of thereafter and there is therefore a presumption under S.108 of the Evidence Act that he is dead. Though the learned Munsiff accepted the plea of the plaintiff the learned Judge overruled the same. The suit in O. S. 91 of 1953 was filed on 11-2-1953 and the decree therein is dated 19-5-1953. In execution of the decree the property was sold and purchased by the second defendant who subsequently transferred the same to defendants 3 and 4 for the benefit of the first defendant. The sale certificate is Ext. P 10 dated 4-11-1954 and the delivery receipt is Ext. P 11 dated 24-11-1954. The learned Judge took the view that though under S.108 of the Evidence Act there is a presumption that Sankaran is dead there is no presumption regarding the date of his death and the burden is upon the plaintiff to prove that Sankaran was dead on the date of the suit or on the date of the court sale and that plaintiff has not discharged the burden. The view taken by the court below is unexceptionable. In Sarkar on Evidence (Eleventh edition), page 932, it is observed:
"If a person is not heard of for seven years there is a presumption of the fact of death at the expiration of seven years, but the exact time of death is not a matter of presumption but of evidence and the onus of proving that death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which the fact is essential. There is no presumption that death took place at the close of seven years."
In Lalchand Marwari v. Mahant Ramrup Gir, 53 Indian Appeals 24 , the Privy Council observed 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 (Ranga Balaji v. Mudivappa - (1899 (23) Bom. 296) and searching for an explanation of this very persistent heresy 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 Phena's Trusts (LR 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 course, is not so. The presumption is the same if the period exceeds seven years. The period is ode 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."
(2.) It is seen from Ext. P 2 that Sankaran was alive in 1949. The filing of the suit and the court sale were all before the expiry of 7 years from the date of Ext. P 2, In these circumstances, the view taken by the court below is correct. The Second Appeal is dismissed but without costs.;
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