On the ground of abatement of appeal on the presumed death decree given in appeal in favour of such person an be declared null and void.

This Revision Petition, though devoid of merits, raises a question of law. One Velayudham Pillai, a lunatic, filed through his wife Lakshmi, as his next friend, Original Suit No. 194 of 1122 (M.E.) in the Sub-Court, Nagercoil a suit for partition of family properties against the petitioner herein. During the course of the suit, it was stated that Velayudham had disappeared on 24th November, 1948. Lakshmi complained that he had been spirited away by the petitioner but the latter repudiated the suggestion and even stated that he had reason to believe that the lunatic was still alive. The trial Court dismissed the suit on 25th November 1954. Lakshmi continuing to represent Velayudham as his next friend, took up the matter in appeal to this Court in Appeal Suit No. 665 of 1956, no objection was taken to the maintainability of the appeal on the ground that Velayudham had died and the appeal came up for hearing before Rajamannar, C.J., and Veeraswami, J., who by their judgment, dated 14th September, 1960, allowed the appeal and passed a preliminary decree for partition. It will be noticed that by the time the judgment in the appeal was delivered, more than seven years had elasped since the disappearance of Velayudham, who it is admitted now, never returned to Lakshmi thereafter. After the passing of the preliminary decree, steps were taken by Lakshmi to have a final decree passed. She also filed an execution petition for recovery of the costs. It was at that stage that the petitioner filed an application before the lower Court for declaring that the preliminary decree passed by this Court on 14th September, 1960, was null and void, as the suit had abated. Velayudham being presumed to have died in the year 1955, that is, seven years after the date of hit disappearance. The learned Subordinate Judge rejected that petition and hence this Civil Revision Petition.

The sole point for consideration is, whether it can now be presumed that this Court had no jurisdiction to dispose of the appeal on the ground that one of the parties to the appeal, namely, Velayudham, should be presumed to have died before the hearing thereof. The rule as to the burden of proving the death of a person is contained in sections 107 and 108 of the Indian Evidence Act. They can be conveniently set out here:

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.

108. Provided that when the question is whether a man is 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

The latter section shows that the presumption arises only when the question as to whether a man is alive or dead is in issue. In other words, there is no presumption, so long as there is no dispute about a man being alive, that a man died after a particular time after his disappearance. In the present case no question arose before this Court when it was dealing with the appeal, whether the appellant Velayudham was alive or dead. If really it was the petitioners case that he was dead, he should have raised that question before the appeal was disposed of; and there will be occasion then to raise the presumption. He not having done so it stands to reason that he cannot rely on any presumption in law to show that he must have died long prior to the judgment. As I indicated earlier, the question whether he was alive or dead arose only at the time when Interlocutory Application No. 76 of 1961, was filed before the lower Court. That was long after the judement of this Court in appeal.

It was argued for the petitioner that as under section 108 of the Evidence Act a man who has not been heard of for seven years should be presumed dead one should presume that Velayudham was dead in the year 1955, and if so m