The presumption of death under Section 108 of the Evidence Act is available at the point of time when the party approaches the Court for necessary relief, and the burden of proving that the missing person is alive lies on the person who affirms it.

R. K. DAS, J.

( 1 ) THIS is an appeal by defendants 1, 2 and 3 against the affirming judgment of the Additional Subordinate Judge. Puri arising out of a suit for partition.

( 2 ) BHARAT had two sons. Parikhit (defendant 1) and Chakra the husband of the plaintiff Kaviraj and Gopal defendants 2 and 3 respectively are sons of Parikhit defendants 4 and 5 are purchasers from Parikhit in respect of Kha schedule properties: Plaintiff who is governed by the Mitakhara School of Hindu Law, has filed the suit for partition of schedule Ka property claiming an allotment of eight annas' share out of the same She further prayed for a declaration that the registered sale-deeds executed by defendant 1 on 2-1-1958 in favour of defendants 4 and 5 in respect of Kha Sch. properties and the sale-deed dated 212-55 executed by defendant 1 in favour of his two sons, defendants 2 and 3 in respect of Sch. Ga properties are not binding upon her, as they are not for consideration and legal necessity.

( 3 ) THE specific case of the plaintiff is that her husband Chakra left for Burma since about twenty years and is not heard of since then Thus, on the basis of a legal presumption available under Sections 107 and 108 of the Evidence Act, he shall be deemed to be dead and the plaintiff as his widow, is entitled to claim partition in respect of her husband's share by virtue of the provisions of the Hindu Women's rights to Property Act, 1937, (hereinafter referred as 'the Act' ). She alleged that the properties conveyed under the aforesaid sale-deed may be available for partition.

( 4 ) THE plea of the defence is that Chakra is still alive, and could not return to India due to passage difficulties. The family of the defendants has not observed the sudhi ceremony of Chakra and as such, he cannot be said to have met with death. The plaintiff has filed the present suit under the ill-advice of her relations defendant 1 has transferred the schedule Kha and Ga properties to meet the house hold expenses and the joint family legal necessities and that the transfers were made with the knowledge of the plaintiff, and are binding on her.

( 5 ) BOTH the Courts found that Chakra was not heard of for more than seven years and is presumed to be dead so as to entitle the plaintiff to claim a partition of the joint family property, on the footing that she is the widow of Chakra. They also held that the alienation made by defendant 1 in favour of defendants 4 and 5 was for legal necessity and thus directed the exclusion of that property from partition. They, however, held that the alienation made by defendant 1 in favour of his two sons, defendants 2 and 3 is not supported by any legal necessity and as such, the said property shall be liable to partition. In the result, they directed partition of the suit properties except schedule Kha property and passed the preliminary decree allowing the plaintiff her eight annas interest in the family properties. Hence this appeal by the defendant 1 to 3.

( 6 ) THE main contention of Mr. Dasgupta, the learned counsel for the appellant is that; (i) There is no right of suit on the footing of a civil death; (ii) Assuming that there is legal presumption that Chakra is dead, there is no evidence to show that he died after the passing of the Act of 1937, so as to give the plaintiff right of inheritance and partition.

( 7 ) THERE is no dispute that Parikhit and Chakra constituted a joint family and were living joint when Chakra left for Burma. There can be no controversy that in case it is found that the Act applied to this case, the plaintiff would be entitled to a half share in the property. The concurrent findings of fact regarding Kha and Ga schdule properties are based upon good evidence arid are not rightly challenged in this Court.

( 8 ) BROADLY stated the contention of Mr. Dasgupta is that civil death is merely a question of presumption and is a rebuttable presumption and cannot take the place of a physical death and unless there i