The burden of proving the date of death lies on the party claiming a right based on the existence or death of the person concerned. There is no legal presumption as to the date of death when it is not proved by any of the parties.

1. S. A. 86 of 1965 arises out of O. S.131 of 1958 on the file of the Subordinate Judge's Court, Ernakulam and the plaintiff therein is the appellant.

S. A. 87 of 1965 arises out of O. S.55 of 1958 on the file of the Subordinate Judge's Court, Ernakulam and the appellant is the plaintiff therein,

2. The plaintiff in both the suits is the same. Yogia Vadyar had three sons Narayana Vadhyar, Narasinga Vadhyar and Krishna Vadhyar. Krishna Vadhyar died in 1067 leaving behind his widow Sathyabhama and daughter Padmavathi alias Puthi. Sathyabhama died in 1107. Thereafter Padmavathi died leaving behind two sons the plaintiff and his elder brother Vasudeva Vadhyar. The properties in the two suits were allotted to the share of Krishna Vadhyar in the family partition. O. S.131 of 1958 is to set aside Ext. D1 sale deed dated 31-1-1090 executed by Sathyabhama and Padmavathi the latter also acting as the guardian of her minor sons in respect of the property in that suit in favour of Madhava Vadhyar. O. S.55 of 1958 is to set aside Ext. P1 sale deed dated 31-10-1081 executed by Sathyabhama and Madhava Vadhyar regarding the property in that suit. The averments in both the plaints are that Padmavathi left her native place in 1092 to an unknown destination and since then she was not heard of and information was received that she died at Calcutta on 27 21951.

It was contended for the defendants that the suits are barred by limitation and adverse possession, and that Padmavathi died more than 12 years prior to the suits.

3. The suits were dismissed on the ground that they are barred by limitation because the plaintiff has not proved that the suits were filed within 12 years of the death of Padmavathi. The courts below concurrently found that the averment of the plaintiff that Padmavathi died on 27 21951 is not correct.

4. The lower courts took the view that under S.108 of the Indian Evidence Act if a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive the presumption is only that he is dead and there is no presumption as to the date of his death, following the decision of the Travancore-Cochin High Court in Sarojini v. Sivanandan (1956 K. L. T. 126). The said decision has been followed by this Court in Philip v Kunju Kesavan 1958 K. L. T. 8. In the latter case Kumara Pillai, J. with whom Vaidialingam, J. concurred observed:

"We are in agreement with the views set out in 1956 K. L. T. 126 and 1957 An W.R. 55 and hold that no presumption can be drawn under S.107 and 108 of the Evidence Act as to whether a person was dead or alive on any particular date or at any particular time before the date of the suit in which that question is raised and that the rule of decision in such cases should be whether the party seeking to enforce in the suit a right flowing out of the existence or death of the person concerned has discharged the onus of proof on him which is essential for the establishment of his right that is to say, the plaintiff asking relief in a suit on account of a right flowing from the death or existence of a particular person on a particular date or at a particular time must affirmatively prove that that person was dead or alive, as the case may be, on the particular date or at the particular time. The correctness of the above decision was canvassed before us.

5. Though the decision in Philip v. Kunju Kesavan (1958 K. L. T. 8) was confirmed by the Supreme Court in Kunju Kesavan v. M. M. Philip (A.I.R.1964 S.C.164) their Lordships did not express an opinion on the scope of the presumption arising under S.107 and 108 of the Evidence Act.

6. Sathyabhama had a widow's estate in the properties of her husband and after her death Padmavathi succeeded to the same taking a woman's estate. The plaintiff stated in the plaints that Padmavathi was not heard of since 1092 and she died on 27 21951. The suits were instituted in 1958. The contention of the plaintiff's counsel was that when both