IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 RSA.No. 631 of 2011(A) ---------------------- AS.342/2004 of I ADDL.DISTRICT COURT, THRISSUR OS.2872/2000 of II ADDL.MUNSIFF COURT,THRISSUR .................... APPELLANT/1ST DEFENDANT ------------------------------------------- ANIYAN @ NARAYANAN EZHUTHACHAN, THATTAMPARAMBIL, MOORKKANIKARA DESOM, KOZHUKULLY VILLAGE, THRISSUR. BY ADV. SRI.G.UNNIKRISHNAN SRI.S.SREEDEV RESPONDENT(S): PLAINTIFF & DEFENDANTS 2 TO 9 -------------------------------------------- 1. VASANTHAKUMARI @ THANKAMANI, W/O EDATHEZHATH RAMANADHAN, VALLISSERY DESOM, AVINISSERY VILLAGE, THRISSUR TALUK-680306. 2. KAMALAKSHY, W/O THATTAMPARAMBIL NARAYANAN EZHUTHACHAN, MOORKKANIKARA DESOM, KOZHUKKULLY VILLAGE, THRISSUR TALUK-680752. 3. MOHANAN, S/O THATTAMPARAMBIL NARAYANAN EZHUTHACHAN, -DO- -DO-. 4. RAJAN, -DO- -DO- 5. AMMINI AMMA, W/O ITTILAVALAPPIL NARAYANAN, CHOORAKKATTUKARA DESOM, PUZHAKKAL VILLAGE, THRISSUR TALUK-680553. 6. INDIRA,W/O THATTAMPARAMBIL UNNIKRISHNAN, MOORKKANIKARA DESOM, KOZHUKKULLY VILLAGE, THRISSUR TALUK-680588. 7. SREELAKSHMI(MINOR), D/O THATTAMPARAMBIL UNNIKRISHNAN, -DO- -DO- REPRESENTED BY GUARDIAN MOTHER INDIRA, -DO- -DO-. 8. APPU(MINOR), S/O THATTAMPARAMBIL UNNIKRISHNAN, -DO- -DO- REPRESENTED BY GUARDIAN MOTHER INDIRA, -DO- -DO-. ADV. SRI.SAJU.S.A FOR R1 SMT.P.A.SHEEJA FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.631 of 2011 ............................................ DATED THIS THE 26th DAY OF JULY, 2011 JUDGMENT First defendant in O.S.2872 of 2000 on the file of II Additional Munsiff Court, Thrissur is the appellant. First respondent is the plaintiff and other respondents, the other defendants in the suit. Suit was filed for declaration and partition of D schedule properties alloted to Raman Ezhuthachan under Ext.A1 partition deed . Under Ext.A1 partition deed, properties were divided into three schedules. A schedule was alloted to the mother of the first respondent, B schedule to the appellant and C schedule to defendants 2 to 5, the legal heirs of Narayanan Ezhuthachan, the deceased brother of appellant and D schedule property to Raman Ezhuthachan. As Raman Ezhuthachan was not available, as he had gone away (“desadanam” as shown in the decree) under Ext.A1 that property was allowed to be enjoyed equally by the appellant and defendants 2 to 5, with a direction that they are not entitled to alter the nature of the property and are entitled to enjoy the property alone and once Raman RSA 631/2011 2 Ezhuthachan returns, the properties are to be entrusted to him. First respondent instituted the suit for declaration that Raman Ezhuthachan is no more and for partition of the D schedule property alloted to Raman Ezhuthachan under Ext.A1 contending that when Raman Ezhuthachan is no more, his rights would equally devolve on the plaintiff and defendants. The case was that Raman Ezhuthachan was not heard of by the relatives for more than 34 years and therefore he is presumed to be dead. Appellant resisted the suit contending that first respondent has no manner of right to claim a share in the plaint schedule property and Raman Ezhuthachan is not heard of for the past 34 years as alleged by the first respondent is not true and he was seen by others and first respondent has recognized in Ext.A1 that he has no right in the plaint schedule property and he has not alienated the property and as other persons had seen Raman Ezhuthachan, he is still alive and therefore the suit is not maintainable. Respondents 2 and 3 and respondents 4 and 6 filed separate written statements. Only 6th respondent supported the first respondent. 2. Learned Munsiff on the evidence of Pws 1 and 2, Dws 1 RSA 631/2011 3 and 2, Exts.A1 to A5, B1 to B6 and C1 held that Raman Ezhuthachan is presumed to be dead as provided under Section 108 of Indian Evidence Act and therefore first respondent is entitled to a decree declaring that Raman Ezhuthachan is no more and the properties alloted to Raman Ezhuthachan under Ext.A1 partition deed are available for partition and they are to be divided into 16 equal shares and first respondent is entitled to four shares, appellant is entitled to four shares, defendants 2 to 4 and 7 and 9 together are entitled to four shares and 6th respondent is entitled to the remaining share. Appellant challenged the judgment before First Additional District Court, Thrissur in A.S.342 of 2004. Learned Additional District Judge on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. Learned counsel vehemently argued that the burden to rebut the presumption available under Section 108 would arise only when the presumption is to be drawn on the evidence adduced by the first respondent and when the evidence is insufficient to prove RSA 631/2011 4 that Raman Ezhuthachan was not heard of for more than seven years prior to the institution of the suit, no presumption under Section 108 could be drawn and therefore courts below were not justified in holding that appellant and other defendants did not establish that Raman Ezhuthachan was alive. Learned counsel, relying on the Full Bench decision of this court in Appula Vadhyar V. Venketeswara Vadhyar (1970 KLT 976) argued that the learned District Judge should not have relied on the decision of the learned Single Judge in Bhargavi Amma V. Bhaskara Pillai (1988(2) KLT 537) in the light of the Full Bench decision, when it was not followed by another single Judge of this court in George Kutty V. Ouseph Varkey (1990(1) KLT 452). Learned counsel also relied on the decision of Apex Court in N.Jayalakshmi Ammal V. R.Gopala Pathar (1995 SC 995) and argued that initial burden is always on the person who asserts that a person is presumed to be dead, to prove that his whereabouts are not known to the near relatives who would have known it and only if that initial burden is discharged, defendants have a duty to establish that he was alive and in such circumstances, courts below were not justified in granting a RSA 631/2011 5 preliminary decree. Learned counsel finally submitted that in any case when possession of the plaint schedule properties by the defendants 1 to 5 is as provided under Ext.A1 and when Ext.A1 enables them to take income, courts below were not justified in directing payment of mesne profits. Learned counsel also argued that Ext.A1 specifically provide that subsequent to the partition, none of the sharers have any right in the property alloted to the other sharer and therefore first respondent or 6th respondent is not entitled to claim a share in the plaint schedule property. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Under Ext.A1, D schedule property was specifically alloted to Raman Ezhuthachan. Ext.A1 shows that Raman Ezhuthachan had left the place much earlier to the division under Ext.A1 and therefore though the properties shown in D schedule were alloted to Raman Ezhuthachan, defendants 1 to 5 were allowed to enjoy the properties, providing that they shall not alter the nature of the property and should hand over possession to Raman Ezhuthachan as and when he appears. First respondent would contend that Raman Ezhuthachan was not heard of subsequent to Ext.A1 and RSA 631/2011 6 he had not contacted the near relatives at all and therefore as provided under Section 108 of Indian Evidence Act, he is presumed to be dead. Learned Munsiff and learned District Judge on appreciation of the evidence found that Section 108 of Indian Evidence Act is to be applied and it is to be presumed that Raman Ezhuthachan is dead. The decisions relied on by the learned counsel appearing for appellant though refers about the initial burden to be discharged by the person who claims that a person is unheard of and therefore to be presumed dead, were dealing with the question whether the presumption provided under Section 108 is available to presume that the person died on any particular day/year. As declared by the Honourable Supreme Court, Section 108 of Indian Evidence Act does not provide that the person who is unheard of is to be presumed dead on a particular day or year. The only presumption enjoined by Section 108 of the Evidence Act being that a person who has not been heard of for seven years or more is dead at the time the question is raised. “There can be no presumption of his being dead or alive at any particular time of the period of which he has not been heard of. There is neither a presumption of his being alive for a RSA 631/2011 7 period of seven years from the time he was heard of nor any presumption of his having died immediately after his disappearance nor any presumption of his being alive or dead at any particular time antecedent to the suit in which the question of his being alive or dead arise “. Therefore, the decisions will not help the appellant to challenge the finding of the courts below. The evidence of PW1 establishes that the whereabouts of Raman Ezhuthachan was not known subsequent to Ext.A1 and the near relatives were not heard of him for more than seven years before the institution of the suit. No contra satisfactory evidence was adduced to prove that any of the relatives had received any communication from Raman Ezhuthachan to presume that he is alive. Though it was contended that some persons had seen Raman Ezhuthachan within a period of seven years, no such person was examined. There is no evidence to rebut the presumption, if the presumption is to be drawn on the evidence on record. In such circumstances, on the evidence finding of the courts below that Raman Ezhuthachan is presumed to be dead is perfectly correct. 5. Though the learned counsel argued that in view of the RSA 631/2011 8 specific recital in Ext.A1 that subsequent to the partition, the sharers are not entitled to have any right in respect of the share alloted to the other sharer or did not retain any joint right thereafter, and hence first respondent or 6th respondent are not entitled to claim any right in the D schedule properties alloted under Ext.A1, I cannot agree with the submission. Even if under a partition deed, the property is divided between three persons and the partition deed specifically recites that subsequent to the date of partition, one sharer will not have any right over the property alloted to the remaining sharer and they did not have any other common property, that does not mean that if subsequently one sharer dies and one or two other sharers are entitled to inherit the property, the recital in the partition deed that subsequent to the partition deed other sharers have no right over the property divided thereunder, will not have any right of inheritance in that property. That exactly is the case herein. Even though Ext.A1 specifically provides that over the D schedule properties alloted to Raman Ezhuthachan, the other sharers including respondents 1 and 6 have no right, that does not mean that if Raman Ezhuthachan is no more, as the legal heirs, they RSA 631/2011 9 cannot claim a share. When Raman Ezhuthachan is presumed to be dead, when the question was raised in the suit, his rights would definitely devolve on all the legal heirs including plaintiff and 6th defendant as provided under Section 8 of Hindu Succession Act 1955 and therefore they are entitled to a share. Learned counsel then argued that as the suit is sought for a declaration and the declaration is that Raman Ezhuthachan is dead, without establishing the actual date of death of Raman Ezhuthachan, a declaration cannot be granted as the suit should be instituted within a period of three years. The argument of the learned counsel could have been accepted if defendants have a case that Raman Ezhuthachan died on a particular day. On the other hand, they are only denying the case of the plaintiff and 6th defendant that Raman Ezhuthachan is dead based on the presumption under Section 108 of Indian Evidence Act. Only if there is evidence to prove that Raman Ezhuthachan died on a day and from that date, if computed the suit will be barred, the argument could be sustained. When the presumption provided under Section 108 of Indian Evidence Act will only enable the plaintiff to have a declaration that Raman Ezhuthachan is dead RSA 631/2011 10 and that question can be decided only when the question is raised, the suit is not barred by limitation as canvassed by the learned counsel. 6. It is true that Ext.A1 enables defendants 1 to 5 to enjoy the property and they are not made liable to pay the income to Raman Ezhuthachan when he returns. But once Raman Ezhuthachan is presumed to be dead and his rights devolved on the sharers, appellant cannot contend that he is not liable to pay the share of profits to other sharers. Learned Munsiff and learned District Judge did not direct the appellant to pay the past share of profits. Only future share of profits was allowed in the preliminary decree. In such circumstances, on that ground also no interference is warranted. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk