Nainar Sundaram, J.@mdashDefendants 1, 2 and 6 to 8 in O.S. No. 253 of 1979 are the appellants in this second appeal. Defendants 6 to 8 are
alienees under defendants 1 and 2. The first respondent is the plaintiff and respondents 2 to 4 are defendants 3 to 5 in the suit. The plaintiff laid the
suit for partition and separate possession of a one-ninth share in the suit properties. The plaintiff claimed a share in the estate of one Arumugam, in
the joint family properties. There were four brothers- Rathinam, Narayanaswamy, Murugaiya and Arumugam. The plaintiff is the daughter of
Rathinam. Defendants 1 and 2 are the sons of Narayanaswamy. Defendants 3, 4 and 5 are the sons of Murugaiya. Rathinam died in August, 1962.
Narayanaswamy died in 1957. Murugaiya died in 1968. With regard to Arumugam, all the parties have a common case and that is, he was not
heard of from 1958 for over seven years and hence he must be presumed to be dead u/s 108 of the Indian Evidence Act. Admittedly Rathinam got
separated from joint family by virtue of an oral partition of the year 1960. Only if Arumugam is held to have died prior to 1960, the plaintiff could
claim the share as she did through her father Rathinam. Hence, the question of the time of death of Arumugam on the basis of the presumption u/s
108 of the Indian Evidence Act looms large in his case. The first court referred to the plaint averments that the plaintiffs father Rathinam, who went
abroad, returned to India in or about 1958 and Arumugam was then alive and hence we have to take it that only after 1958, Arumugam was not
heard about. From 1958, to work out the presumption and arrive at the presumptive conclusion about the death of Arumugam, seven years had to
lapse from 1958 and so lapsed, when the question as to whether Arumugam was alive or dead arose in the suit, the legal presumption came into
play. In the absence of proof that Arumugam died at any particular point of time within the seven years from 1958, the presumption of his death
became effective in 1965 and thereafter. The first court proceeded on these lines and held that the plaintiff could not get a share in the estate of
Arumugam, As a result, the first court dismissed the suit of the plaintiff. However, the lower appellate court, on appeal by the plaintiff, reversed the
decision of the first court and granted the plaintiff a preliminary decree for partition.
2. In this second appeal, directed against the judgment and decree of the lower appellate court, this court deemed fit to formulate the following
substantial questions of law at the time of its admission:
(1) Whether the presumption in law with reference to the existence or otherwise of Arumugam has been correctly applied by the appellate court to
the facts of the case?
(2) Whether the quantum of arrears arrived at with reference to shares of each one of the sharers by the appellate court is correct?
(3) Whether the finding of the appellate court on the question of adverse possession is correct?
3. Mr. G. Ethirajulu, learned Counsel for defendants 1, 2 and 6 to 8, would primarily concentrate on the first substantial question of law relating to
the presumption in law about the demise of Arumugam. Learned Counsel submits that though u/s 108 of the Indian Evidence Act, the presumption
is only as to the death of the person, who was not heard of for seven years and not as to the date of death at any particular time within that period
of seven years, yet as per the very case of the plaintiff in the plaint, Arumugam was alive in 1958, and as such the presumption if at all would
become effective only after the lapse of seven years from 1958 taking us to the year 1965, as rightly held by the first court and if so, the plaintiffs
father Rathinam who admittedly got separated in 1960 could not get a share in estate of Arumugam, so as to make the plaintiff entitled to a share.
The submission of the learned Counsel deserves countenance at our hands. The plaintiff has not placed any evidence oral or documentary, with
regard to the demise of Arumugam at any point of time earlier to the lapse of seven years from 1958, when even as per the case of the plaintiff, he
was alive. The lower appellate court has wrongly proceeded that Arumugam must have died immediately after 1958 and defendants must prove
the contrary position. This view of the lower appellate court runs counter to the working of the legal presumption u/s 108 of the Indian Evidence
Act. u/s 108 of the Indian Evidence Act, a person who has not been heard of for seven years is presumed to be dead. The presumption is raised
as to the fact of death at the expiry of seven years; but not to the date of death at any particular point of time during these seven years. The onus of
proof of death at any particular point of time within the period of seven years lies on the person who claims a right, to the establishment of which,
that fact is essential. The principles to govern the question have been lost sight of by the lower appellate court. Hence, I have to hold that the first
court was correct when it found that Arumugam''s demise could be presumed to have happened only in the year 1965 or there afterwards and not
before that. The result is Rathinam, the father of the plaintiff, who got separated from the family even in 1960 could not get a share in the estate of
Arumugam and hence the plaintiff could not claim through her father Rathinam for a share in the estate of Arumugam.
4. As a result of the above discussion, defendants 1, 2 and 6 to 8 are enabled to succeed in the Us, in the sense to throw out the very suit laid
down by the plaintiff. However, Mr. G. Ethirajulu, learned Counsel for defendants 1,2,6 to 8 submits that the lower appellate court has gone
further and held that defendants 1 and would not be entitled to any share in the estate of Arumugam. Once it is held the plaintiff herself is
incompetent to lay the suit for partition, there is no need to adjudicate the rights of the other parties, who questioned the very competency of the
plaintiff to claim a share in the estate of Arumugam. The lis, as a whole, has got to be discountenanced and there is no room for discussion of any
further question. The findings, if any, rendered by the lower appellate court with regard to entitlement of defendants 1 and 2 to share the estate of
Arumugam will stand vacated.
5. As a result, the second appeal is allowed, the judgment and decree of the lower appellate court are set aside; and the dismissal of the suit by the
first-court is revised. The parties are directed to bear their respective costs throughout.
