Decided on September 07,1955


Cited Judgements :-



Viswanatha Sastri, J. - (1.)Nandipati Venkayya married two wives, the plaintiff being the senior and the 8th defendant the junior wife. Venkayya made a provision for the maintenance of his senior wife in Ex. A-1 dated 16-8-1930. H married the second wife in 1930. The second wife has not been examined as a witness in the case and it is not possible to say exactly what her age was at the time of her marriage. It, however, appears that she must have been quite young when she married Venkayya. Venkayya has not been heard of since 1930 or 1931. He had landed properties and also debts to pay. The plaintiff did not take possession of her husband's properties, and the 8th defendant alone was in possession of them since 1931. On 21-3-1933, the 8th defendant mortgaged ac. 11-88 cents of her husband's properties to the 1st defendant for Rs. 1,739-8-0 under Exhibit B-3, the recital in the document being that the money was borrowed for discharging her husband's debts. On 24-1-1938, the 8th defendant sold an extent of about ac. 8-00 out of the mortgaged properties to defendants 1 and 2 under Ex. B-15 for a sum of Rs. 2,096-7-3 which went to discharge the mortgage, Ex. B-3. There is a recital in Ex. B-15 that Venkayya had gone to another country more than 7 years ago7 that his whereabouts had not been known and that he must be deemed to be dead in the eye of law. The vendees under Ex. B-15 sold portions of the property bought by them to defendants 3 to 7. On 20-1-1948, the plaintiff, the senior wife of Venkayya, brought the present suit for partition of her half share in the properties alienated by the 8th defendant and described in the schedule to the plaint alleging that the sale under Ex. B-15 did not affect her interest in her husband's estate.
(2.)The 8th defendant was ex parte and it is her alienees that contested the suit and put forward various defences which may be summed up as follows: Venkayya had not been proved to be dead at the time of the suit. The plaintiff had lost her title to her husband's properties by the- adverse possession of the 8th defendant. The plaintiff's suit also was barred by limitation under Art. 142 of the Limitation Act by reason of her dispossession or discontinuance of possession more than 12 years before suit. The plaintiff is estopped by her conduct from disputing the alienation made by the 8th defendant. The plaintiff has been leading a life of unchastity and is not entitled to inherit her husband's estate. Lastly, there was a contention that the plaintiff was bound to pay the debts of her husband which had been discharged by the vendees under Ex. B-15. On these contentions of the parties, several issues were raised by the learned Subordinate Judge and decided by him. He dismissed the suit on the ground that it was barred by limitation. As regards the plea of the plaintiff's disqualification on the ground of her unchastity to succeed to her husband's estate, the learned Subordinate Judge held that though the plaintiff might have been leading an unchaste life since 1946, she had not been proved to have been unchaste at the time when Venkayya died and the "inheritance opened. He decided all the other points in favour of the plaintiff. The result, however, was that the suit was dismissed. Reference might be made at this stage to a strange episode in the shape of litigation in O. S No. 132 of 1946 on the file of Sub Court, Guntur. A man calling himself Nandipatj Venkayya made his appearance in the village of Vuppalapadu and claimed that he was the Nandipati Venkayya who had left the village in 1930 and who was the husband of the plaintiff and the 8th defendant. He claimed to have returned after his sojourn abroad to his own native village. He sued the alienees under Ex. B-15 as well as the subsequent purchasers from them for possession of the properties alienated to them impleading his wives also as parties to his suit, O. S. No. 132 of 1946. He also executed Ex. A-2, a gift deed dated 22-11-1946 in favour of the plaintiff who remained ex parte in O. S. No. 132 of 1946. The alienees, defendants in O. S. No. 132 of 1946, denied that Nandipati Venkayya who sued as plaintiff in O. S. No. 132 of 1946 was thereal or genuine Nandipati Venkayya. According to them the real Nandipati Venkayya had died long ago. During the course of the trial, it came to light that Nandipati Venkayya who posed as the plaintiff in O.S. No. 132 of 1946 was an imposter and his pretence was exposed by a comparison of the thumb impressions of the real Venkayya with those of the plaintiff in O.S. No. 132 of 1946. There was an amendment of the plaint in O. S. No. 132 of 1946 as a consequence of which the plaintiff had been required to pay additional Court-fee. When the fact that the plaintiff was an imposter came to light, he defaulted to pay Court-fee and allowed his plaint to be rejected. It is the case of the defendants that the plaintiff in the present suit was conducting O. S. No. 132 of 1946 through the imposter and that she took Ex. A-2 from him and did not resist his claim in the prior suit because of their close friendship.
(3.)I might deal with the contention of Sri A. Kuppuswamy that the facts ncessary to attract the presumption of death under Sec. 108 of the Indian Evidence Act have not been established or proved in this case. It is clear from the recitals in Ex. B-15, dated 24-1-1938, that for 7 years prior thereto, Nandipati Venkayya had not been heard of by his wife. Exs. A-4, A-5 and A-6 show that in O. S. No. 132 of 1946, the defendants pleaded that Venkayya died shortly after he left his village in 1930. The plaint averment and the plaintiff's evidence is that Venkayya left the village in 1930 and had not been heard of by his wives or his relations ever since. There is no evidence to the contrary. We must therefore draw the presumption under Sec. 108 of the Evidence Act that Nandipati Venkayya was dead. The presumption under Sec. 108 of the Evidence Act merely exiends to the fact of death at the expiration of 7 years and not to the time of death at any particular period. There is no presumption that the death took place at the end of the period of 7 years or at any other particular time within that period. The exact time of death is not a matter of presumption but of proof by evidence. The onus of proving that death took place at a particular time within the period of 7 years lies on the person who claims a right to the establishment of which that fact is essential. If the exact date of death is not proved, the earliest date on which death can be presumed under Sec. 108 of the Evidence Act is the date on which the suit was filed. The presumption under See. 108 cannot have a retrospective effect. (See Lalchand Marwari v. Mahanth Ramrup Gir ').

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