Decided on March 23,1976

Chandi Charan Naskar Appellant
Bhagyadhar Mondal And Others Respondents

Referred Judgements :-


Cited Judgements :-



R. Bhattacharya, J. - (1.)THIS second appeal is by the plaintiff of the original suit who was unsuccessful both in the trial court and in the appellate court below.
(2.)IN this appeal the only question which requires consideration is whether or not the appellant had title to the disputed properties which were purchased from the sister of one Tarakali, who was the original owner of the properties to the extent of one -third share in respect of 'Ka: schedule land and also the owner of the Kha schedule properties. The allegation of the plaintiff Chandi Charan Naskar is that Tarakali died leaving only one son Satya. who also became untraced for about 12 or 13 years. As the whereabouts of Satya Charan were not known, he was presumed to be dead and the plaintiff purchased the property from his sister, who was the limited heiress of Tarakali and subsequently he also purchased Kha schedule property in the benam of defendant No. 5. The suit was for declaration of the plaintiff's title to the suit properties and also for recovery of possession as according to the allegation of the plaintiff, he was dispossessed by the defendant No. 4 There was an alternative prayer for partition as some of the defendants were co -sharers in respect of some of the suit properties. The defendant No. 4 alone contested the claim of the plaintiff. Defendant No. 5 of course filed a written statement supporting the claim of the plaintiff. According to the allegations of the defendant No. 4, he purchased the suit properties from the widow of Satya. That widow is Gangabala. Plaintiff opposes that claim of the defendant on the ground that Gangabala became unchaste and, therefore, she was not entitled to inherit in any manner the suit properties from her husband who is supposed to be dead under presumption of law. The trial court dismissed the suit on the finding that Gangabala became unchaste during lifetime of Satya Charan and at the same time the finding was that the plaintiff could not prove the date of death of Satya Charan. According to the trial court the suit was filed after the promulgation of the Hindu Succession Act, 1956 and according to the provision of the said Act there is no bar to the unchaste widow's inheriting the property of her husband. An appeal was taken to the District Judge and the matter was heard by the Additional District Judge, Howrah. The learned Additional District Judge concurred with the findings of the learned Munsif and he also held that the suit was rightly dismissed because according to the provision of the Hindu Succession Act even an unchaste widow can inherit the property of the deceased husband. It was held, as was found by the learned Munsif, that the plaintiff failed to prove the date of death of Satya Charan. In the judgment it is indicated that he accepted the finding of the learned Munsif that Gangabala became unchaste during the lifetime of her husband.
I have heard Mr. Dutt, learned Advocate appearing on behalf of the appellant and Mr. Mukherjee for the respondents Nos. 4 (1) to 4 (8), the heirs and legal representatives of the defendant No. 4, now deceased.

(3.)THE first point that requires consideration is whether the plaintiff has been able to prove the date of death of Satya Charan. In this connexion Section 108 of the Evidence Act may be referred to. According to this section the court may presume, in the facts and circumstances, that a person whose whereabouts are not known as indicated in that section for seven years or more, is dead This presumption relates to the factum of death and not to the date of death of the person untraced. In the present case the suit was filed on 22 -11 -1957. Therefore, according to law the presumption starts from, the date when the dispute arises, that is to say, when the suit was filed. As I have already stated, the presumption is that Satya Charan is dead, but it cannot be stated when actually he died. An attempt was made by the plaintiff to adduce evidence through witnesses to speak about the date of death, but both the courts disbelieved the evidence of those witnesses and quite correctly. Therefore, the fact remains that when actually Satya Charan died, is unknown and not proved.

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