The case emphasized the rebuttable nature of presumptions under S.107 and S.108 of the Evidence Act, highlighting the burden of proof and the shifting nature of the burden in establishing presumed death.

1. Defendant, in a suit for partition filed by her brother, is the appellant. A and B schedule properties sought to be partitioned were allotted to their brother Prabhakaran Pillai and sister Bhanu Amma as per Ext.A1 partition of 1959 entered into between plaintiff and defendant. Bhanu Amma and Prabhakaran Pillai did not join Ext.Aland it is stated that they were residing outside the State. It is not disputed that more than 40 years ago when the parents died leaving these four children alone, the above two left the State and never returned for residence here. That they were not here even at the time of Ext.A1 is an admitted fact. In Ext.A1 the shares allotted to these two persons were given possession to the defendant to be banded over to them when they, come back with a further direction that plaintiff should not disturb her possession. It is also an admitted fact that if these two persons died the only heirs are the plaintiff and defendant, each being entitled to one-half.

2. After issuing Ext. A2 notice and getting Ext. A3 reply from the defendant, the suit was filed in 1982 on the allegation that even before and after Ext.A1 these two persons were not beard of and hence on the basis of the presumption available under S.108 of the Evidence Act they most be taken as dead. But the contention is that they are even now alive. In this connection, the presumption of life for 30 years from 1959 under S.107 of the Evidence Act on the basis of the alleged admission of living in Ext. A1 was also relied on. Accepting the presumption of death under S.108 a preliminary decree was passed and it was confirmed in appeal.

3. The finding of the Appellate Judge that there is no admission in Ext.A1 that these two persons were living then, was the subject of very serious criticism and I was even cautioned that endorsement of that view will be a serious illegality. I fail to understand what is the illegality involved even if it is a wrong appreciation. It is true that Ext.A1 does not say that these persons were dead or unheard of and hence presumed to be dead. They were only described as residents outside the State. In the normal course that could be taken as an admission that they are living even though they were not parties to that document. But the conduct of the parties, especially that of the appellant, and the evidence indicate that even at the time of ExtA1 these two bad no idea of their existence or whereabouts. In such a situation, it is only natural that they may refuse to make any commitment, suggesting their death which was not sure to them. That is so especially when the persons are direct brother and sister. My reasons in that respect also I shall refer to later. In such circumstances, I am constrained to agree with the Appellate Judge, in spite of the wording of Ext.A1 and the warning given to me, that the parties never meant to admit in Ext.A1 that they were living.

4. That question itself is only of academic importance in this suit. Even if there is such an admission in Ext. Al. the only result is that the defendant was able, by that admission, to show that they were living in 1959 and thereby take advantage of the rebuttable presumption of life for 30 more years. That only shifts the burden to the plaintiff to Drove that they are dead as alleged by him. But S.108 is only a proviso to S.107 and it says that when the question is whether a man is alive or dead, and it is proved that be has not been heard of for seven years by those who would naturally have heard of him if he was alive, the burden of proving that be is alive is shifted to the person who affirms it. When resort is bad to S.108, as was done in this case, and the burden is discharged by proving that the person was not beard of as contemplated therein for seven years, the presumption of life for 30 years under S.107 is rebutted even without actually establishing by positive evidence that be is dead. The first presumption is thereby given a go by and a new and