N. Jayalakshmi
Ammal Vs. R. Gopala Pathar [1994] INSC 460 (9 September 1994)
Paripoornan,
K.S.(J) Paripoornan, K.S.(J) Venkatachala N. (J)
CITATION:
1995 AIR 995 1995 SCC Supl. (1) 27 JT 1994 (6) 19 1994 SCALE (4)50
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by PARIPOORNAN, J.- Plaintiffs 2 and 8 in
OS No. 42 of 1973, Subordinate Judge's Court, Kumbakonam, legal heirs of
plaintiff 1 who died pending the suit, are the appellants in this appeal.
Defendants 1 and 2 in the suit are the respondents herein. The plaintiffs have
preferred this appeal against the judgment of the Madras High Court in Second
Appeal No. 1502 of 1979, dated 15-6-1984. The
said judgment is reported in R. Gopala Pathar v. N. Jayalakshmi Ammal1.
2. In
order to understand the nature of the controversy raised in this appeal a few
facts may be stated. The property in dispute (in the suit) measures 10 feet
east to west and 125 feet north to south in Big Street, Kumbakonam Town, Tamil Nadu. The suit property as well as a similar extent
measuring in all 10 feet east to west and 250 feet north to south belonged to
one Visalakshmi Ammal. On 1-2- 1928, by Exhibit B-1 Visalakshmi Ammal sold the
entirety of the property aforesaid to one Govindaswamy and his brother Srinivasa,
who was then a minor and was represented by his mother as guardian. In the
document, Srinivasa was described as an undivided minor son in the family. The
acquisition purports to be on behalf of the joint family consisting of Govindaswamy
and his brother Srinivasa, sons of one Kuthaperumal Vaidyar. On 29-8-1927, Govindaswamy was married to Kasambu Ammal (PW 2).
They 1 AIR 1984 Mad 340: (1984) 97 Mad LW 313 :(1984) 16 Lawyer 72 29 lived as
husband and wife for about 3 years. They had no children. Thereafter Govindaswamy
was not heard of. On 23-
8-1970, by Exhibit
A-4, (same as Exhibit A-11) Kasambu Ammal executed a sale deed in respect of
the suit property in favour of one Nataraja lyer, plaintiff 1, for Rs 5000. On
the basis of Exhibit A-4, Nataraja lyer instituted OS No. 42 of 1973, in
Sub-Court, Kumbakonam, praying for a declaration of his title to the suit
property and also for a declaration that he was entitled to claim certain
amounts lying in court deposit to the credit of RCOP No. 11 of 1971. The said
RCOP No. 11 of 1971 was a proceeding initiated by the first defendant (first
respondent) against the second defendant the tenant (second respondent herein).
The main contesting defendant is the first defendant, the first respondent
herein. He contended that Kasambu Ammal was not the wife of Govindaswamy and
had no interest in the suit property, and that the sale deed in favour of Nataraja
lyer was bogus and would not operate to convey any title to the suit property.
According
to him, Govindaswamy and Srinivasa constituted members of a joint Hindu family
and since Govindaswamy was not heard of for over 7 years, Srinivasa became the
sole surviving coparcener who acquired title to the suit property by adverse
possession, and as per Exhibit B-2 dated 10-9- 1970, he had acquired title to
the entirety of the suit property from Srinivasa and so the first plaintiff Nataraja
lyer was not entitled to the reliefs prayed for in the suit.
The
second defendant in the suit was a tenant against whom an order of eviction was
passed. Since a rival claim of title to the property in his occupation was put
forth by the first defendant, he contended that he was an unnecessary party to
the suit and so the suit may be dismissed against him. The learned Sub-Judge by
his judgment dated 8-11-1976, found that Kasambu Ammal was the wife of Govindaswamy
and was in possession of the undivided half share in the property, but the
purported sale by her, of a definite portion i.e. front half of the property,
was invalid. It was further held that Kasambu Ammal was in possession along
with Srinivasa just 6-7 years prior to the filing of the suit and so the sale
deed, Exhibit B-2 dated 10-9-1970 executed by Srinivasa in favour of the first
defendant, though true, was not valid as Srinivasa was not solely and
absolutely, entitled to the property and had not perfected title to the
property by adverse possession. It was further held that the sale deed, Exhibit
A-4 by Kasambu Ammal to the first plaintiff Nataraja lyer was fraudulent and
antedated and in the result the suit was dismissed. The first defendant filed
an appeal, AS No. 182 of 1977 before the District Judge, West Thanjavur and contended that as per Exhibit
B-2, he had absolute title to the entire property and the court below was in
error in not holding so. In the cross-objections, plaintiffs 2 to 8, legal
heirs of the plaintiff1 contended that the trial court was in error in not
decreeing the suit for half of the property which belonged admittedly to Govindaswamy
and was sold by his wife Kasambu Ammal as per Exhibit A-4 to the first
plaintiff on 23-8-1970. The learned District Judge of West
Thanjavur, by judgment dated 16-9-1978, found that Kasambu Ammal was the wife
of Govindaswamy, that the exact date of death of Govindaswamy was not known,
that Srinivasa had not perfected title to the suit property either by ouster or
by adverse possession, that Nataraja lyer had acquired title to one- half of
the property by Exhibit A-4, that the first defendant would also be entitled to
an undivided half share in the property as per the sale deed executed by Srinivasa
30 in his favour, Exhibit B-2, and it will be open to the parties to file a
separate suit for partition of the suit property and also for apportioning the
amounts lying to the credit of RCOP No. 11 of 1971. Accordingly, he passed a
decree declaring that the plaintiffs 2 to 7 as well as the first defendant are
each entitled to an undivided half share in the entire house property and to
half of the amount lying in court deposit to the credit of RCOP No. 11 of 1971.
The appeal as well as the memorandum of cross-objection were partly allowed.
The first defendant carried the matter by way of second appeal before the High
Court, Second Appeal No. 1502 of 1979. The learned Single Judge of the Madras
High Court after referring to the relevant findings of the courts below and the
law on the point, held as follows:
(i) Govindaswamy
and Srinivasa constituted members of an undivided Hindu family and acquired the
entirety of the property as per Exhibit B-1 sale deed;
(ii)
There was no division of the said property;
(iii) Govindaswamy
was not heard of from August 1930, and it could generally be presumed that by
about 1937 Govindaswamy was dead;
(iv)
In the absence of proof that Govindaswamy died after coming into force of the
Hindu Women's Rights to Property Act on 14-4-1937, his rights and interest in
the joint family property devolved on Srinivasa, the surviving coparcener by
survivorship and Srinivasa was thus entitled to the entire property and was
competent to execute Exhibit B-2 dated 10-9-1970, to the first defendant;
(v) In
the absence of proof that Govindaswamy died after coming into force of the
Hindu Women's Rights to Property Act on 14-4-1937, Kasambu Ammal was
incompetent to execute the sale deed Exhibit A-4, and convey title to the first
plaintiff, under whom plaintiffs 2 to 7 claimed their right;
(vi)
Since the first defendant obtained title to the entirety of the property as per
Exhibit B-2, plaintiffs 2 to 7 had no title to the suit property and the suit
OS No. 42 of 1973 should stand dismissed. It is from the aforesaid judgment and
decree of the High Court, plaintiffs 2 to 7 have filed this appeal by special
leave.
3.We
heard counsel for the appellants Mr Rajendra Chowdhary and also counsel
appearing for the respondents. Before us, counsel appearing in the case put
forward the following arguments. Appellants' counsel submitted that Govindaswamy,
husband of Kasambu Ammal was not heard of ever since August 1930. The Hindu
Women's Rights to Property Act came into force on 14-4-1937. The suit was filed in 1973, nearly 43 years after Govindaswamy
was last heard of. In such circumstances, Govindaswamy should be presumed to be
dead.
Since Govindaswamy
was not heard of for more than 7 years by Kasambu Ammal and others who would
have naturally heard of him if he had been alive, under Section 108 of the
Evidence Act, he should be presumed to have died long ago and at any rate, long
before Exhibit A-4 (A- 11) sale deed was executed by Kasambu Ammal to the first
plaintiff. The courts below were in error in not giving effect to the
presumption flowing from Section 108 of the Indian Evidence Act and in
decreeing the plaintiffs' claim to the suit property and to the amount of
deposit in the rent control proceedings. On the other hand, counsel for the
respondents contended that Govindaswamy was not heard of for more than 7 years
by persons who would have naturally heard of him if he had been alive, and
there is a presumption that Govindaswamy is dead but this presumption extends
no further. It cannot be presumed that he died on any particular date. The date
on which Govindaswamy died is a crucial fact in this 31 case and is a matter
for proof. In this case, there is no proof regarding the date of death of Govindaswamy.
It is only by the provisions of Hindu Women's Rights to Property Act, Kasambu Ammal
could get any right. The said Act came into force on 14-4-1937, within a period of 7 years when Govindaswamy was
last heard of. There is no proof in this case to show that Govindaswamy died on
or after 14-4-1937.
In the
absence of the proof as to when Govindaswamy died, it cannot be presumed nor
can the plaintiffs contend, that Govindaswamy must be deemed to have died on or
after 14-4- 1937 when the Hindu Women's Rights to Property Act came into force
and Kasambu Ammal became entitled to an undivided (half) interest in the
property. On the other hand, on the death of Govindaswamy, the sole surviving
coparcener Srinivasa became entitled to the property by survivorship and he was
entitled to deal with the entire property and to execute the sale deed dated 10-9-1970 in favour of the first defendant. The first
defendant became entitled to the entirety of the property as he had purchased
the property from the sole survivor Srinivasa. Thus the entire controversy centres
round the applicability and the extent and scope of Section 108 of the Evidence
Act, to the instant case.
4.
Section 107 of the Indian Evidence Act deals with presumption of continuation
of life and Section 108 deals with the presumption of death. Sections 107 and
108 are to the following effect:
"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 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." The principle
discernible from a combined effect of the above two statutory provisions has
been summarised in the book, Sir John Woodroffe and Amir Ali's Law of Evidence,
15th Edn. (1991) at pages 672-673 thus:
"The
principle of Section 107 is that when once a state of things is shown to exist,
there is in law a presumption of its continuance for a period for which such
state of things ordinarily lasts. This section is merely a deduction from this
presumption. If a person is shown to have been alive within thirty years of the
date on which the questio n whether he is alive or dead arises, there is a
presumption of his being alive, and the burden of proving that he is dead lies
on him who asserts that he is dead. But this presumption is rebutted, if it is
shown that he has not been heard of for seven years by those who if he had been
alive, would naturally have heard of him; and, on such proof being given the
burden of proving that he is still alive, is, under Section 108, upon those who
assert that he is alive. The presumption under Section 108 is as to the fact of
death at the time the question was raised and not at any particular antecedent
time. There is no presumption also to the cause and circumstances of the death.
Section
107 deals with the presumption of continuation of life, whereas Section 108 deals
with the presumption of death. Section 108 enacts a 32 proviso to Section 107
by specifying that when a person was continuously absent for seven years and he
was not heard by his friends and neighbours he may be presumed to have died and
the burden of proving that he is alive shifts on the person that he is alive.
The presumption of continuance of life under Section 107 ceases at the
expiration of seven years from the period when the person in question was last
heard of. The presumption under Section 107 will apply when the question is
whether a person was alive or dead and not where the question is whether the
person was alive or dead on a particular date."
5. The
Judicial Committee of the Privy Council, more than 60 years ago, in the leading
case Lal Chand Marwari v. Mahant Ramrup Gir2 stated the law authoritatively
thus:
"There
is only one presumption, and that is that when these suits were instituted in
1916 Bhawan Gir was no longer alive. There is no presumption at all as to when
he died. That, like any other fact, is a matter of proof.
Now,
upon this question there is, their Lordship are satisfied, no difference
between the law of India as declared in the Evidence Act and
the Law of England (Rango Balaji v . Mudiyeppa) 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 Phene's TrustS3 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 one 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'." (emphasis supplied)
6. In
M. Monir's Principles and Digest of the Law of Evidence, Vol. 2, 7th Edn. at
page 1145, the law on the point is succinctly summarised thus:
"The
only presumption enjoined by Section 108 of the Evidence Act being that a
person who has not been heard of for seven years or more is dead at the time
the question is raised, there can be no presumption of his being dead or alive
at any particular time of the period for which he has not been heard of. There
is neither any presumption of his being alive for a 2 AIR 1926 PC 9: 30 CWN 721
: 28 Bom LR 855: 53 IA 24 3 LR 5 Ch 139: 39 LJ Ch 316: 18 WR 303: 22 LT 111 33
period of seven years from the time he was last heard of; nor any presumption
of his having died immediately after his disappearance, nor any presumption of
his being alive or dead at any particular time antecedent to the suit or
proceeding in which the question of his being dead or alive arises. The result,
therefore, is that where nothing more is shown than that a person has not been
heard of for seven years or more, the party, on whom the burden of proving him
to be alive or dead at any particular time during the period he has not been
heard of lies, will fail." (emphasis supplied) 7.Sarkar on Evidence, 14th Edn.,
at page 1438, has summarised the law after a detailed survey of the decisions
of the various courts thus:
"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 that fact is essential. There is
no presumption that death took place at the close of seven years." (emphasis
supplied) Both the above authors have referred to the decision of the Privy
Council aforesaid besides other decisions.
8. In Halsbury's
Laws of England, 4th Edn., Vol. 17, page 85, paras
115 and 116 the law is stated thus:
"115.
Presumptions of' life and death.- There is generally no presumption of law by
which the fact that a person was alive or dead on a given date can be
established, but the question must be decided on the facts of the particular
case.
Certain
exceptions to this general rule are provided by statute, and, in addition,
where there is no acceptable affirmative evidence that a person was alive at
sometime during a continuous period of seven years or more and it is proved
that there are persons who would be likely to have heard of him over tha t
period, that those persons have not heard of him, and that all due inquiries
have been made appropriate to the circumstances, there arises a rebuttable presumption
of law that he died sometime within that period.
116.
Proof of life or death at a particular time.- He who asserts that a person was
alive on a given date, or dead on that date, must prove the fact by evidence,
since there is no presumption of continuance of life, and, generally, no
presumption of death at a particular time. Where there is insufficient evidence
in support of the fact alleged, the party bearing the burden of proof will
fail.
The
question of whether a person was alive or dead at a given date will be decided
on all the evidence available at the date of the hearing." The decision
for the Privy Council in Lal Chand Marwari case2 has also been relied on and
referred to in the above treatise.
9.It
is unnecessary for us to advert to the various other decisions on the subject.
A few decisions have been referred to by the learned Single Judge in his
judgment.
The
textbooks referred to above have referred to the decisions of the various
courts on the subject. The aforesaid decisions of the High Courts mainly rely
on the decision of the Privy Council in Lal Chand Marwari case2.
In 34
one of them, Velayudhan Sarojini v. Sankaranarayanan Sivanandan4 Koshi. C.J.,
agreeing with Joseph, J. has catalogued accurately in detail a large number of
English and Indian decisions on the subject.
10. In
the light of the above legal position, we are of the view that the burden of
proof is on the plaintiffs to prove that Govindaswamy died after coming into
force of the Hindu Women's Rights to Property Act on 14-4-1937, and that Kasambu
Ammal obtained the undivided half right in the property as per the Hindu
Women's Rights to Property Act.
This
crucial fact has not been proved by the plaintiffs.
They
solely relied on the presumption under Section 108 of the Evidence Act. As we
stated earlier, there is no presumption that Govindaswamy died on any
particular date or on the expiry of seven years from August 1930. His wife Kasambu
Ammal was not shown to have inherited the undivided half share of Govindaswamy
in the property. She was incompetent to convey any interest in the suit
property as per Exhibit A-4 dated 23-8-1970. On the other hand, on the death of
Govindaswamy, Srinivasa became entitled to the property by survivorship and he
was competent to execute Exhibit B-2 dated 10-9-1970, to the first defendant
who became entitled to the entirety of the property. The judgment and decree of
the learned Single Judge of the Madras High Court is justified in law and no
interference is called for.
11. We
hold that this appeal is without merit. It is dismissed. But in the
circumstances of the case, there shall be no order as to costs.
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