The presumption of death under section 108 of the Indian Evidence Act replaces the earlier presumption under section 107 and there is no presumption as to the time of the person's death.

( 1 ) THIS appeal raises a short but important question and is directed against the judgment of the District Judge, Machilipatnam given on 27/03/1967.

( 2 ) THE short facts relevant for the purpose of this appeal are that the plaintiff and defendants 4 to 7 are the daughters of one K. Venkatakrishnaiah, a resident of Vijayawada. Defendants 1 to 3 are his sons and the 8th defendant is his wife. Venkatakrishnaiah was the owner of the immovable property described in the plaint schedule which was his self acquired property. Venkatakrishnaiah was seen for the last time in the last week of December, 1955. From then he was not heard of by those who ought to know about him. The plaintiff claimed 1/9th share in the plaint schedule property on the ground that Venkatakrishnaiah would be presumed to have died either at the end of seven years form the date when he was last seen as he was not heard of for over seven years since then or in any case on the date of the suit, and consequently she is entitled to that share under the Hindu Succession Act (XXX of 1956 ).

( 3 ) THE suit was resisted by the defendants on the ground that no such presumption can be made and that the plaintiff is not entitled to any share in the property.

( 4 ) BOTH the Courts below have found that the plaintiff has not proved that Venkatakrishnaiah dies after the commencement of the Act and as a result dismissed the suit. It is against this concurrent opinion of the two Courts below that the appeal is preferred.

( 5 ) THE principal contention of Sri. N. Rajeswara Rao the learned Advocate for the appellant is that when it is admitted that K. Venkata Krishnaiah was alive till the end of December 1955, he must be presumed to be living at least for a reasonable period and the burden of proving that he died within seven years after he was last heard of lies on the party who alleges that he so died within the period of the said seven years. He contended that under Sections 107 and 108 of the Indian Evidence Act, it must be presumed that, K. Venkata Krishnaiah was alive till the question of his life or death was raised after the expiry of seven years from the date on which he was last heard of. Since the burden was not discharged by the respondents to prove as to on what date within 7 years the deceased died it must be presumed that either K. Venkata Krishnaiah died at the end of seven years from the date when he was last heard of i. e. , December 1962 or in any case on the date when the present suit was laid in 1966. In either case it is argued that the plaintiff, who is one of the daughters of Venkata Krishnaiah is entitled to a share in his self-acquired property under the Hindu Succession Act. Reliance is placed in support of this contention on the following decisions; Ramanna v. Appayya, 1956 Andh WR 137, H. J. Bhagat v. L. I. Corporation. AIR 1965 Mad 440, Parikhit Muduli v. Champa Del, AIR 1967 Orissa 70, and Lal Chand v. Rampur Gir, AIR 1926 PC 9.

( 6 ) IN order to appreciate the implications of this argument it is necessary to refer to Sections 107 and 108 of the Indian Evidence Act. "section 107: 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; Provided that when the question is whether a man 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".

( 7 ) THESE two sections and section 109 are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until a contrary is established by evidence, either direct or circumstantial.

( 8 ) SECTION 107 deals with the presumption of continuance of life and S. 108 deals with the presumption of death. Both the presumptions unde