N. JAYALAKSHMI AMMAL AND ORS. versus R. GOPALA PATHAR AND ANR.

Citation: [1994] SUPP. 3 S.C.R. 310 · Decided: 09-09-1994 · Supreme Court of India · Bench: N. VENKATACHALA · Disposal: Dismissed

Judgment (excerpt)

"A 
N. JAYALAKSHMI AMMAL AND ORS. 
v. 
R. GOPALA PATHAR AND ANR. 
SEPTEMBER 9, 1994 
B 
[N. VENKATACHALA AND K.S. PARIPOORNAN, JJ.) 
Evidence Act, 1872: Sections 107 and 108. 
Evidence-Presumption as to deatlt--Person not heard of for more than 
C seven years-Exact time of death is not a matter of presumptiort-Burden of 
proof to prove death-On Whom lies. 
Hindu Women's Rights to Property Act, 1937: 
Hindu Law-Joint Family Property-Coparceners-One co-parcener 
D not heard of alive for more than seven years-Wife of said co-parcener--En-
titlement to property of husband-Held in the absence of proof that death of 
co-parcener was after coming into force of the Act the wife was not entitled 
to inherit the propertJWzfe held not entitled to convey such a property. 
G and S acquired certain properties as members of undivided Hindu 
E family in 1928. G was not heard of alive since August 1930. By a sale deed 
dated 23.8.1970 K, wife of G, sold the suit properties to the appellants' 
predecessor in-interest, plaintiff-I, who filed a suit for declaration to ~e 
property on the basis of the said sale deed. The respondent, defendant-1, 
claimed that the he acquired title to the suit properties on the basis of sale 
F 
G 
H 
deed dated 10.9.70 executed by the other co-percener, S. He contended that 
since G was not heard of alive for more than seven years the other 
co-parcener, S. became the sole surviving co-parcener and acquired title 
to the suit properties by adverse possession. Since G's wife had no interest 
in the property, her sale deed in favour of plaintiff would not convey any 
title. 
The Trial Court dismissed the suit. The first defendant preferred 
an appeal and appellants (plaintiffs 2 to 8) legal heirs of plaintiff-1 filed 
their cross-objections. The appeal a~ well as cross-objections were partly 
allowed by the first appellate coµrt. 
The first respondent filed second appeal before the High Court 
310 
NJ.AMMAL v.R.G.PATIIAR 
311 
which held that (i) in the absence of proof that G died after coming into A 
force of the Hindu Women's Rights to Property Act on 14.4.1937, his wife 
was incompetent to execute the sale deed convey title to the first plaintiff, 
under whom plaintiffs claimed their right; (ii) in the absence of proof of 
G's death after coming into force of the 1937 Act his rights and interest in 
the joint family property devolved on the surviving co-parcener by sur-
vivorship who became entitled to the entire property and was competent 
to execute the deed dated 10.9.1970 conveying property to the first defen-
dant. 
B 
In appeal to this Court, it was contended on behalf of the appellant 
that (i) G was not heard of ever since August, 1930. The Hindu Women's C 
Rights to property Act came into force on 14.4.1937 and the suit was filed 
in 1973, nearly 43 years after G was last heard of. In such circumstances, 
G should be presumed to have died long ago and at any rate, long before 
the sale deed was executed by G's wife to the first plaintiffj (ii) the courts 
below erred in not giving effect to the presumption flowing from section D 
108 of the Indian Evidence Act in decreeing the plaintiffs' suit. 
For the respondents it was contended that (1) under section 108 of 
the Evidence Act there is a presumption that a man is dead but this 
presumption extends no further and it cannot be presumed that he died 
on any particular date; (ii) it is only by the provisions of Hindu Women's 
Rights to.Property Act that G's wife could get any right. The said Act came 
into force on 14.4.1937 within a period of seven years when G was last 
heard of. In the absence of the proof as to when G died, it cannot be 
presumed that G 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 his wife 
became entitled to an undivided half interest in the property; (iii) on the 
death of G, the sole surviving co-parcener S became entitled to the proper-
ty by survivorship and he was thus entitled to execute the sale deed in 
favour of the first defendant. 
Dismissing the appeal, this Court 
HELD : The judgment of the High Court is justified in law and no 
interference is called for. The burden of proof is on the plaintiffs to prove 
that G died after coming into force of the Hindu Women's Right to Property 
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Act on 14.4.1937, and that his wife obtained the undivided half right in the 
property as per the Hindu Women's Rights to Property Act. This crucial H 
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