The presumption of death under Section 108 of the Evidence Act does not extend to the exact time of death, and the burden of proving the specific date of death lies on the party who relies on it.

V. P. TYAGI, J.

( 1 ) THIS defendants second appeal raises an important question about the true scope of presumption under Section 108 of the Evidence Act, and it arises out of the following circumstances:

( 2 ) RAM Prasad had a house in village Gulgaon where he also held certain agricultural land. He was not heard of by his wife Mst. Pani for more than seven, years and therefore she made a gift of the property of Ram Prasad in favour of plaintiff Ram Dayal on 4th June, 1962, assuming that Ram Prasad had died. The plaintiff contended that he came in possession of these properties after the same were gifted to him by Mst. Pani but on 20th July, 1962, the defendants-appellants mst. Narbada and Bhura-lal forcibly took possession of these properties and therefore a suit was filed by the plaintiff for the declaration that he was the real owner of the properties.

( 3 ) THE defendants contested the suit and pleaded that Ram Prasad was alive on the 4th June, 1962, when the gift deed was executed by Mst. Pani in favour of the plaintiff and therefore the plaintiff had no right to file a suit. It is, however, admitted by both the parties that Ram Prasad had not been heard of for more than seven years.

( 4 ) THE trial court held that the plaintiff had failed to prove that Ram Prasad was dead on the 4th June, 1962 and therefore Mst. Pani was not competent to alienate the ancestral property of Ram Prasad by way of gift to the plaintiff and hence the suit was not maintainable.

( 5 ) AN appeal was preferred against the judgment and decree of the trial court and the learned Senior Civil Judge, Aimer, bv his judgment dated the 20th January, 1965, reversed the decision of the trial Court and held that in the circumstances of the case Ram Prasad shall be deemed to have been dead at the time when the gift deed was executed by Mst. Pani in favour of the plaintiff and therefore the plaintiff was entitled to a decree in the suit. It is against the said appellate iudgment that this second appeal has come to this Court.

( 6 ) IT is not disputed by the defendants-appellants that Mst. Pani had executed the gift deed in favour of the plaintiff-respondent but the defendants challenge the authority of Mst. Pani to alienate the property of Ram Prasad by way of gift on the ground that unless it was established that Ram Prasad had died on or before 4th june, 1962 the property of her husband did not vest in Mst. Pani and therefore she was not competent to dispose it of. It was also contended that under Section 108 of the Evidence Act no presumption can be drawn that the death of Ram Prasad who was not heard of for seven years or more had taken place either at the end of seven years or at any particular time within that period, and therefore unless it was proved by the positive evidence that Ram Prasad was not alive on the date when the deed of gift was executed, the gift could not confer any valid title on the plaintiff to maintain the present suit. He also urged that the exact time of the death of a person who has not been heard of for seven years is not a matter of presumption but of proof by evidence and the onus of proving the fact that such a man died at a particular time within a period of seven years or thereafter lies on the person who claims a right for the establishment of which that fact is essential. In support of this contention, he placed reliance on Gopal Bhimji v. Manaji Ganuji, AIR 1923 Bom 163; Ramchandra sadashiv v. Keshav Dhondu, AIR 1923 Bom 208, Rekhab Das v. Mst. Sheobai AIR 1923 All 495, Lal Chand v. Ramrup Gir, AIR 1926 PC 9, Punjab v. Natha, AIR 1931 lah 582 (FB), Ram Kali v. Narain Singh, AIR 1934 Oudh 298, Vithabai Dattu v. Malhar Shankar, AIR 1938 Bom 228, Wall Mohd. v. Gaman, AIR 1944 Pesh 29, Mt. Harnam Kaur v. Mt. Ratna, AIR 1949 EP 267, Ramabai v. Saraswathi, AIR 1953 trav. Co. 114, Huseinny J. Bhagat v. Life Insurance Corporation of India, Madras, air 1965 Mad 440 and Ram Lal v. Ram Niwas, ILR (1959) 9 Raj 276.

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