Full Judgment
1. 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 Venkaia Hanumanulu Garu v. Lachchamma : (1904)14MLJ464 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 I.L.R. (1912) Mad. 440. With great deference to the learned Judges who decided the cases in Muhamad Shariff v. Bande Ali I.L.R. (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 I.L.R. (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.
2. 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.