The presumption of death under Section 108 of the Evidence Act arises after a continuous period of seven years of being unheard of, and the burden of proving the date of death within the seven-year period lies on the person claiming a right to the establishment of which that fact is essential.

MISRA, J.

( 1 ) DEFENDANTS excluding defendant No. 3 are the appellants in this Second Appeal. Dibakar and Ratnakar were two brothers. Defendants 1, 2 and 4 are respectively the son, the widow and the mother of Dibakar. The plaintiff is the wife of ratnakar. Defendant No. 3 is a purchaser of some of the suit properties from the appellants. The suit under appeal, which, was filed in May, 1956, is one for partition of the joint family properties of Dibakar and Ratnakar. Ratnakar had gone out to work in Calcutta side, far away from his native place, in 1946. A rumour reached his family that he was dead. The plaintiff sent her brother and another to go and make necessary enquiries. On their return they informed the plaintiff that Ratnakar was dead, as a result of which the plaintiff became a widow in 1948. In 1950 the plaintiff transferred her entire interest in the suit land, on the assumption that there had been severance of joint family status between Ratnakar and the other branch. Thereupon the present appellants instituted Suit no. 147 of 1950 impeaching the transfer, and the plaintiff was a defendant to that suit. The finding in that suit was that there was no severance of joint family status, and also there was no proof that Ratnakar was dead, and that he was only unheard of for about six years by the time of the said suit. It is thereafter that the plaintiff instituted the present suit under appeal for partition. The defence plea was that ratnakar was still alive and so the plaintiff had no cause of action. No direct evidence about the actual death of Ratnakar, far from the date of his death, was given. The trial court dismissed the plaintiff's suit, holding that the evidence adduced on the plaintiffs side, that Ratnakar was unheard of for more than seven years, was not reliable. The court of appeal took a different view and held that it had been established that Ratnakar had been unheard of and untraced for seven years preceding to the present suit, and so he was presumed to foe dead.

( 2 ) THE date of death of Ratnakar was material to decide if the plaintiff had got any cause of action flowing from Ratnakar's death. The Hindu Women's Right to property Act was brought into force in the district of Keonjhar (to which the parties belong) from 1-1-48. If Ratnakar died while in joint family status prior to 1-1-48, then the plaintiff had no cause of action for partition. The Court of appeal sought to get round this difficulty whether Ratnakar died prior to 1-1-48 or after 1-1-48)by observing: "in view of the nature of defence the question of raising the contention under the Hindu Women's Right to Property Act will have no force, for the question for consideration will be that either Ratnakar is alive or if dead, he must have died after 1948 as according to the defence evidence he was seen in Calcutta alive only about three years back. "

( 3 ) THE appellate Court's finding that Ratnakar was unheard of for more than seven years prior to the institution of the suit under appeal, which is based on a critical appreciation of the oral evidence on both sides, has not been sought to be challenged by the appellants. Their only contention is that though a legitimate presumption could be raised about Ratnakar's death, there could be no inference, as sought to be drawn by the appellate Court, that he died after 1-1-48.

( 4 ) THOUGH a number of authorities have been sought to be cited before us regarding the inference that is to be drawn about the date of death, in a case covered by Sections 107 and 108 of the Evidence Act it is unnecessary to refer to any of them, in view of the decision of their Lordships in Lal Chand Marwari v. Ramrup Gir, AIR 1926 PC 9. Their Lordships have held:

"it is constantly assumed that, where the period of "disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This is not correct. The presumption is t