Bal Naicken vs Achama Naicken

It is true that it has been pointed out in several cases that while there is a presumption that a person is dead when he or she has not been Heard

of for seven years, there is no presumption as to the particular date on which he or she died (Vide, Lord Dentnan, CJ.) in Nepean v. Doe 2 M.

and W. 894, 150 E.R. 1021, Giffard, L.J. jn In Re Phene''s Trusts 5 Ch. A. 139 at p. 143 and Venkata Hanumanulu Garu Vs. Lachchamma and

Others, and the burden of proving the actual date of death lies on the person who has to bring his suit after the death of the person who is unheard

of, and within a particular period after the death. But these remarks appty only when the point of time at which the death has to be placed falls

necessarily within the seven years. (Vide the above cases and Halsbury''s Laws of England, Vol. 13, page 500, paragraph 692) or necessarily

beyond the seven years, Veeramma v. Chenna Reddi ILR (1912) Mad. 440. With great deference to the learned Judges who decided the cases in

Muhamad Shariff v. Bande Ali ILR (1911) All. 36 and Ellamandayya v. Lakshmayya (1917) 6 L.W. 638 we are unable to follow the reasoning in

them. In our opinion, in a case where the point of time to which the death has to be referred, may be placed indifferently either during the seven

years or after the lapse of the seven years (it not being necessary for the plaintiff to shqw that the person lived during the seven years), there is a

presumption after the lapse of the seven years in favour of the death and it is for the other side to displace the presumption and the party relying on

the presumption is entitled to succeed if no evidence is offered by the other side. The decision in Veeramma v. Chenna Reddi ILR (1912) Mad.

440 and the decision in Oleti Chinna Kamakshayya v. Oleti Kotilingam and Ors. in Second Appeal 1911 of 1918 are perfectly consistent with this

view. In the former of these cases, the presumption relied on was that a person was alive up to the end of the seven years during which he was not

heard of and in the second case the presumption sought was that the person died within three months after he was last heard of and both these

presumptions are not permissible. In our opinion the distinction sought to be drawn in Ellamandayya v. Lakshmayya (1917) 6 L.W. 633 that the

presumption applies only to the date of the suit and not to any antecedent date though such date is after seven years is not supported by any

English authority and is not quite intelligible.

In this case, if the plaintiff shows that Thatha Naicken had not been heard of for a period of 7 years-which 7 years terminated prior to August

1918, the plaintiff is entitled to succeed. The decree of the Subordinate Judge is reversed and the appeal remanded for disposal according to law.

Costs of this appeal will abide the result. Stamp value w''ll be refunded on application.