IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 RSA.NO. 270 OF 2008() -------------------------------- AS.234/2003 OF V ADDL.DISTRICT COURT, ERNAKULAM OS.1950/1998 OF II ADDL MUNSIFF COURT, ERNAKULAM .................... APPELLANT/RESPONDENTS/DEFENDANTS ---------------------------------------------------------- 1. SANTHOSHKUMAR, ARAKAPADATH HOUSE, KUMBALANGI, ERNAKULAM DIST. 2. RAMANAN, THATTAN PARAMBU HOUSE, ELAMKUNNAPUZHA, VYPIN, ERNAKULAM DIST. 3. RAJEEV, ARAKAPADATHU HOUSE, KUMBALANGI, ERNAKULAM DIST. 4. LAILA, MALIAKAL HOUSE, PONNURUNNI, ERNAKULAM DISTRICT. 5. LILLY, MALIAKAL HOUSE, PONNURUNNI, ERNAKULAM DIST. 6. LALGI, AGED 41 YEARS, MALIAKAL HOUSE, PONNURUNNI, ERNAKULAM DIST. 7. VILASINI (DIED), MALIAKAL HOUSE, PONNURUNNI, EKM (DT). BY ADV. SRI.P.SATHISAN RESPONDENT(S): APPELLANTS/PLAINTIFFS ----------------------------------------------------------- 1. SUNDARAN (DIED) S/O.ITTAMAN, KANJIRATHINKA PARAMBIL, EDAPPALLY, ERNAKULAM DIST. 2. SUGUNAN, AGED 35 YEARS, S/O.SUNDARAN, KANJIRATHINKA PARAMBIL, EDAPPALLY, ERNAKULAM DIST. 3. AJITHKUMARI, D/O.SUNDARAN, KANJIRATHINKA PARAMBIL, EDAPPALLY, ERNAKULAM DIST. 4. RENUKA, D/O.SUNDARAN, KANJIRATHINKA PARAMBIL, EDAPPALLY, ERNAKULAM DIST. 5. INDULEKHA, D/O.SUNDARAN, KANJIRATHINKA PARAMBIL, EDAPPALLY, ERNAKULAM DIST. ADV. SRI.N.K.MOHANLAL FOR R2 TO 5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.270 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of March, 2010 J U D G M E N T --------------------- On a presumed death consequent to the whereabouts of the brother allegedly not being known to those who should have ordinarily heard about him beyond the statutory period, deceased respondent No.1/plaintiff sued the appellants for a declaration of his title and possession over the suit property by inheritance consequent to such presumed death of his brother, Unnikrishnan and for injunction. Deceased respondent No.1, Unnikrishnan and four others are the children of Ittaman. After the death of the said Ittaman there was a partition of his properties among the legal heirs as per Ext.A1, partition deed No.1138 of 1989. In that partition though whereabouts of Unnikrishnan were not known to the parties for about 16 years as on that day a share was allotted to him also (suit property). In the year 1998 deceased respondent No.1 filed the suit for a declaration that since Unnikrishnan is not heard of since about 26 years it has to be presumed that he is dead and deceased respondent No.1 being the only legal heir the said Unnikrishnan has inherited the suit property and he is in R.S.A. No.270 of 2008 -: 2 :- possession. Appellant Nos.1 and 5 resisted the suit contenting that it is incorrect to say that Unnikrishnan was not heard of for 26 years and deceased respondent No.1 has no exclusive right over the suit property. At any rate deceased respondent No.1 is only a co-owner of the property. Appellant Nos.2, 4 and 7 adopted the contentions raised by appellant Nos.1 and 5. Appellant No.6 was declared ex parte. During the pendency of the suit (deceased) respondent No.1 died and his legal heirs – respondents Nos.2 to 5 were impleaded as supplemental plaintiff Nos.2 to 5. Trial court dismissed the suit holding that it is not proved that whereabouts of Unnikrishnan are not known for a period of seven years. Respondent Nos.2 to 5 took up the matter in appeal. First appellate court was of the view that on the evidence on record presumption of death of Unnikrishnan could be drawn under Section 108 of the Indian Evidence Act (for short, “the Act”) and that deceased respondent No.1 was the surviving legal heir of the said Unnikrishnan and hence he has inherited and was in possession of the suit property. Accordingly reliefs as prayed were granted. That is under challenge in this Second Appeal urging by way of substantial question of law whether first appellate court was legally correct in the application of R.S.A. No.270 of 2008 -: 3 :- Sec.108 of the Act, evidence on record justified such a presumption and whether deceased respondent No.1 is the absolute owner of the property. 2. So far as the issue regarding drawal of presumption is concerned, Sec.107 of the Act states that when the question is whether a man is alive or dead and it is shown that he was alive within thirty years the burden of proving that he is dead is on the person who affirms it. Section 108 operates as a proviso to the said provision and states that when the question is whether a man is alive or dead and it is proved that such person 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. In this case according to the respondents Unnikrishnan was not heard of since 26 years preceding the institution of the suit. If respondents were able to show by appropriate evidence that Unnikrishnan has not been heard of for about 7 (seven) years before the institution of the suit by those who would have heard of him had he been alive, it is possible for the court to draw the presumption regarding death of Unnikrishnan. In this case in Ext.A1, partition deed of the year 1989 R.S.A. No.270 of 2008 -: 4 :- to which appellants are also parties it is stated that since 16 years (prior to Ext.A1) parties thereto had no information about the whereabouts of the Unnikrishnan. Thus even as on the day of Ext.A1, parties thereto had no information about Unnikrishnan. At any rate, the suit is filed in the 1998, i.e., 9 years after Ext.A1. That period is sufficient to bring the case within the mischief of Sec.108 of the Act even if the period prior to Ext.A1 is not taken into account. Respondent No.2 has given evidence as P.W.1 that Unnikrishnan was not heard of for about 26 years. Though that case is denied by the appellants they were not able to say where exactly Unnikrishnan is if at all he were alive. Appellant No.1 examined as D.W.1 claimed to have seen Unnikrishnan about five years before but there was no such plea in the written statement. First appellate court on the facts and circumstances of the case was not inclined to accept that version of D.W.1. It is on a consideration of the evidence on record and in the light of the statutory provision contained in Sec.108 of the Act that first appellate court has drawn the presumption regarding the death of the said Unnikrishnan. That finding rests on an appreciation of the evidence and does not involve any substantial question of law. R.S.A. No.270 of 2008 -: 5 :- 3. Then the question is whether consequent to the presumed death of Unnikrishnan deceased respondent No.1 could be said to be the absolute owner of the suit property. According to the appellants they along with deceased respondent No.1 are co-owners of the suit property. Appellants, it is not disputed are the children of a pre-deceased son of the late Ittaman. On the day death of Unnikrishnan was to be presumed i.e., on the date of institution of the suit his parents, brothers other than deceased respondent No.1 or sisters were not alive and the only brother then alive was deceased respondent No.1. If that be so going by Sections 7, 8 and 9 of the Hindu Succession Act which, it is not disputed before me applied to the parties deceased respondent No.1 being a heir coming under class II(ii)(3) of that Act deceased respondent No.1 being the brother of the said Unnikrishnan inherited his property on the date of presumed death. As such appellants, who are the children of a pre-deceased brother cannot lay hand on the suit property claiming to be legal representatives of the said Unnikrishnan. Death of (deceased) respondent No.1 during the pendency of the suit did not make any difference so far as claim made by the appellants is concerned. R.S.A. No.270 of 2008 -: 6 :- 4. No substantial question of law as urged is involved in the Second Appeal. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv