V.P. Tyagi, J.

1. This defendants' second appeal raises an important question about the true scope of presumption under Section 108 of the Evidence Act, and it arises out of the following circumstances:

2. Ram Prasad had a house in village Gulgaon where he also held certain agricultural land. He was not heard of by his wife Mst. Pani for more than seven, years and therefore she made a gift of the property of Ram Prasad in favour of plaintiff Ram Dayal on 4th June, 1962, assuming that Ram Prasad had died. The plaintiff contended that he came in possession of these properties after the same were gifted to him by Mst. Pani but on 20th July, 1962, the defendants-appellants Mst. Narbada and Bhura-lal forcibly took possession of these properties and therefore a suit was filed by the plaintiff for the declaration that he was the real owner of the properties.

3. The defendants contested the suit and pleaded that Ram Prasad was alive on the 4th June, 1962, when the gift deed was executed by Mst. Pani in favour of the plaintiff and therefore the plaintiff had no right to file a suit. It is, however, admitted by both the parties that Ram Prasad had not been heard of for more than seven years.

4. The trial court held that the plaintiff had failed to prove that Ram Prasad was dead on the 4th June, 1962 and therefore Mst. Pani was not competent to alienate the ancestral property of Ram Prasad by way of gift to the plaintiff and hence the suit was not maintainable.

5. An appeal was preferred against the judgment and decree of the trial court and the learned Senior Civil Judge, Aimer, bv his judgment dated the 20th January, 1965, reversed the decision of the trial Court and held that in the circumstances of the case Ram Prasad shall be deemed to have been dead at the time when the gift deed was executed by Mst. Pani in favour of the plaintiff and therefore the plaintiff was entitled to a decree in the suit. It is against the said appellate iudgment that this second appeal has come to this Court.

6. It is not disputed by the defendants-appellants that Mst. Pani had executed the gift deed in favour of the plaintiff-respondent but the defendants challenge the authority of Mst. Pani to alienate the property of Ram Prasad by way of gift on the ground that unless it was established that Ram Prasad had died on or before 4th June, 1962 the property of her husband did not vest in Mst. Pani and therefore she was not competent to dispose it of. It was also contended that under Section 108 of the Evidence Act no presumption can be drawn that the death of Ram Prasad who was not heard of for seven years or more had taken place either at the end of seven years or at any particular time within that period, and therefore unless it was proved by the positive evidence that Ram Prasad was not alive on the date when the deed of gift was executed, the gift could not confer any valid title on the plaintiff to maintain the present suit.

He also urged that the exact time of the death of a person who has not been heard of for seven years is not a matter of presumption but of proof by evidence and the onus of proving the fact that such a man died at a particular time within a period of seven years or thereafter lies on the person who claims a right for the establishment of which that fact is essential. In support of this contention, he placed reliance on Gopal Bhimji v. Manaji Ganuji, AIR 1923 Bom 163; Ramchandra Sadashiv v. Keshav Dhondu, AIR 1923 Bom 208, Rekhab Das v. Mst. Sheobai AIR 1923 All 495, Lal Chand v. Ramrup Gir, AIR 1926 PC 9, Punjab v. Natha, AIR 1931 Lah 582 (FB), Ram Kali v. Narain Singh, AIR 1934 Oudh 298, Vithabai Dattu v. Malhar Shankar, AIR 1938 Bom 228, Wall Mohd. v. Gaman, AIR 1944 Pesh 29, Mt. Harnam Kaur v. Mt. Ratna, AIR 1949 EP 267, Ramabai v. Saraswathi, AIR 1953 Trav. Co. 114, Huseinny J. Bhagat v. Life Insurance Corporation of India, Madras, AIR 1965 Mad 440 and Ram Lal v. Ram Niwas, ILR (1959) 9 Raj 276.

7. Learned counsel appearing on behalf of the respondent, on the other hand, urged that Section 108 of the Evidence Act does not lay down any presumption as to how long the person concerned must be deemed to have been alive or at what time he is dead but the presumption under Section 108 of the Evidence Act extends to the fact of death at the expiration of seven years and not to the time of death in a particular time. In support of this proposition he relied on K. Venkateswarlu v. K. Bapayya, AIR 1957 Andh Pra 380 and Shankareppa v. Shiva rudrappa, AIR 1963 Mys 115

8. In view of these rival contentions raised by learned counsel for the parties, it becomes necessary for me to examine the exact scope of the presumption under Section 108 of the Evidence Act. Section 108 of the Evidence Act reads as follows:--

'Section 108. 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.'

9. This section is a proviso to Section 107 of the Act which lays down that when a man is shown to be alive within thirty years, the burden of proving that he is dead is on the person who affirms it, but under Section 108 the matter stands otherwise and it deals with a presumption for a person who has not been heard of for seven years by those who would naturally have heard of him if he had been alive and according to this provision the burden to prove that he is alive shifts to the person who affirms it.

10. The basic authority relied upon by learned counsel for the appellants in this case is the Privy Council case of AIR 1926 PC 9. Their Lordships of the Judicial Committee quoted in that case with approval the following well-known passage from In re, Phene's Trusts, (1870) 5 Ch. A. 139:

'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.'

And then they proceeded further:

'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.'

11. By making these observations, their Lordships of the Judicial Committee tried to remove the confusion that was then prevailing in the courts of law about the true scope of the English Statute on this subject on account of the aforesaid passage in (1870) 5 Ch. A. 139. By this judgment the Privy Council laid down that there can be no presumption of death of a person who has not been heard of for 7 years that he died within that period or at the close of that period. The presumption that such a person is dead would be the same if the period exceeds by seven years, say three times or four times of that period but when did he die will always be the subject-matter of proof like any other fact. This view has been consistently followed in Indian Courts except the two dissenting judgments of Mysore and Andhra Pradesh relied on by learned counsel for the respondent

Even before this dictum was laid down by the Privy Council, Allahabad and Bombay High Court took the same view in Jeshankar v. Bai Divali. AIR 1920 Bom 85 (2), AIR 1923 Bom 163: AIR 1923 Bom 208 and AIR 1923 All. 495. In all the cases relied upon by the appellants it has been held that such a person, in the absence of the proof of the exact date about the death, shall be deemed that he is not alive on the day when the dispute arose about the death of the man and it has been brought for adjudication to the court of law.

12. Learned counsel for the respondent urged that there is no warrant on the language of the section for the view that if the exact date of death is not proved, the earliest date on which the death could be presumed is the date on which the suit was filed. He contended that the true rule should be that the presumption under Section 108 of the Evidence Act must be raised after the expiry of seven years since the person has not been heard of and the person must be deemed to have dead at least on the day when the dispute about his existence arose.

In this case, learned counsel pointed out that the dispute about the death of Ram Prasad arose on the day when his widow Mst. Pani executed the gift deed assuming that she was the owner of the property as it had devolved on her after the death of Ram Prasad and, therefore, on the 4th of June, 1962, it should be taken that Ram Prasad was not alive. In support of this view, he placed his reliance on AIR 1963 Mys 115. In that case one Irappa who was mentally deranged left his family house long back and that he had not been heard of for about twenty years prior to the suit. At the time of his disappearance he left behind him his wife Somawwa and a young son who also died after two or three years after Irappa had disappeared. In the year 1950 Somawwa adopted the plaintiff to her husband Irappa, assuming that Irappa was dead. After the adoption, which took place on 15-8-1955, a dispute arose about the share of the adopted son in the family property, and it was in those circumstances that the question was raised in the court as to when Irappa should be deemed to have dead. Their Lordships, after considering the various decided cases referred to them held:

''The language of Sec. 108 does not lend any assistance for the view taken by the first appellate Court. That section nowhere says that the presumption would be that the person concerned was dead on the date of the suit. Section 108 merely deals with the procedure to be followed, when a question is raised before a Court as to whether a person is alive or dead That section does not lay down any presumption as to how long the person concerned must be deemed to have been alive or at what time he died. See B. Veeramma v. G. Chinna Reddi, AIR 1914 Mad 505. In my opinion the relevant point of time at which the presumption under Section 108 is available is when the factum of the death of the person concerned becomes material. In the present case the question whether Irappa was alive or dead becomes material in 1955. If Irappa had not been heard of by persons who should have heard of him if he was alive for 7 years prior to 15-8-1955 then the presumption would be that he was dead on or before 15-8-1955.'

13. In AIR 1957 Andh Pra 380, which has been relied upon in the Mysore case, their Lordships of the Andh, Pra. (High Court) after careful scrutiny of the decided cases, also came to the conclusion that the presumption under Section 108 of the Evidence Act extends to the fact of death at the expiration of seven years during which the person concerned was not heard of. They, however, negatived this view that the presumption is that the person is dead on the date of the suit.

14. This question as to when the death of the person who has not been heard of for seven years or more than seven years should be deemed to have taken place came up for consideration of this Court in ILR (1959) 9 Raj 276 and the learned Judge, after considering certain authorities, including the Privy Council case, came to the conclusion that although there is a presumption of death at the expiration of a period of not less than seven years in duration, there is no presumption that the death occurred at the end of seven years or at any other particular time during the period a person has not been heard of. Where a party relies on a specific date of death of a person, who has not been heard of for seven years or more, he must prove the specific date It was also laid down that where a person is not heard of for seven years or more and no specific date of death has been or can be proved, the earliest date on which it can be presumed that such a person was not alive shall be the date on which the suit was filed and it cannot be given a further retrospective effect.

15. Learned counsel for the appellants urged that the proposition laid down by this Court in Ramlal's case, ILR (1959) 9 Raj 276 is a sound rule of law, and his reasoning is that Section 108 of the Evidence Act falls in Chapter VII of the Act which relates to the burden of proof and the question of burden of proof can arise only when there is a lis between the parties which has been taken to the court of law and therefore he contended that the presumption under Section 108 can be drawn only when a case has been filed in a court of law, otherwise Section 108 is not at all attracted and, therefore, no presumption can thereunder be drawn about the death of a person prior to the date of the suit. I find force in this submission of Mr. Bhandari.

The occasion for drawing a presumption under Section 108 of the Evidence Act arises when the dispute regarding the death of a person who has been unheard of for seven years is raised in a court of law and it is only then that the question of the burden of proof would arise under the Indian Evidence Act. Section 108 obviously relates to the question of burden of proof in a matter before a court of law and therefore the presumption about the death of a person under this provision of law can earliest be drawn when the dispute is brought to the Court. In this view of the matter, I am in respectful agreement with Modi J. that death can be presumed on the date on which the suit was filed and it cannot be given a further retrospective effect

16. In the light of the aforesaid discussion it is difficult for me to accept the contention that Ram Prasad was dead on 4th June, 1962 when Mst. Pani made a gift of her husband's property to the plaintiff. Unless it was proved, which proof is wholly lacking in this case, that Ram Prasad was dead on the day of the execution of the gift deed the properties did not devolve on Mst. Pani and therefore the gift made by Mst. Pani did not confer any valid title on the plaintiff.

17. The appeal of the defendants-appellants is, therefore, allowed. The suit ofthe plaintiff shall stand dismissed withcosts throughout.