PRIVY COUNCIL

                     Lal Chand Marwari

                     Vs.

                     Mahant Ramrup Gir

                   P.C.A No. 34 of 1924
(Lords Phillimore Blanesburgh and Sir John Edge JJ.)

                     05.12.1925

                     JUDGMENT

LORD BLANESBURGH J.

1. These are consolidated appeals by the defendants in four out of eight suits instituted
by one Ramrup Gir in the Court of the First Sub-Judge at Muzafferpur on the 30th
November, 1916. The suits were brought on the allegation that the plaintiff, as the
then Mahant of an asthal or math at Paprikhan Karan, was entitled to recover from the
defendants different properties, endowments of the math, then in their possession.
These properties had, it was alleged, been alienated without warrant by Bhawan Gir,
deceased, the immediate predecessor as mahant of the plaintiff. The suits, as they
progressed, were amended by the joinder, as co-plaintiffs, of three persons to whom,
in consideration of their supplying funds for the conduct of the litigation, Ramrup Gir
had agreed to transfer, when recovered certain portions of the properties in question.
As so amended, they were heard at length by the learned Subordinate Judge, and, on
appeal, by the High Court at Patna, where many issues were raised and strenuously
contested. of these, one only remains for determination by their Lordships, namely, the
issue of limitation. The learned Trial Judge held that the suits were barred by statute.
The High Court, on appeal, held that they were not, and made decrees for possession
of the proper ties with mesne profits. It is against these decrees and on the ground that
the suits should have been dismissed as being out of time, that the present appeals
have been brought and argued.

2. The math in question has a considerable history. It is a math of the Sanyasis who
are celibate and have renounced the world. The properties in suit had been amongst its
endowed properties for a period of nearly 150 years. They stood in the name of the
mahant for the time being, but he had no right to alienate them otherwise than for
necessity. The income from them at one time, at all events, amounted to Rs. 4,000 a
year, appropriated not to a single deity, but for Puja of Siuji, the principal deity, for the
Pujas of the other established deities of the math and in the entertainment of
mendicants and ascetics. These matters, all in dispute in the Courts below, were not
again raised in contest before the Board, and may now be taken to be accepted.

3. In the year 1880 or shortly afterwards, Bhawan Gir became mahant of this asthal or
math. He had, as his elder Chela, the plaintiff Ramrup Gir, and, as his younger Chela,
one Harihar Gir, Bhawan Gir was drunken, immoral and dissolute, and, as might be
expected of such a person, profligate and extravagant. Portions of the endowed
properties he mortgaged without justification, by way of security for loans made to
himself. Other portions equally without justification, he purported to sell outright. The
proceeds in every case were, it can hardly be doubted, spent mainly, if not entirely,
upon himself. The properties mortgaged have since been sold under decrees made in
suits brought to enforce the securities. and so it has come about that those properties
now in dispute have all of them been in the exclusive possession of the defendants or
their predecessors in title, as for absolute interests, for periods exceeding on the 30th
November, 1916, in every instance a term of 26 years of continuous duration.

4. By 1888, Bhawan Gir had denuded him self and the math of all its endowed
properties. In March, 1892, he made the asthal over to the plaintiff, and, as the
plaintiff recites in a deed of sale of the 15th June, 1917, left the place for good. and he
has never returned. He went on pilgrimage and Harihar Gir went with him. Some
weeks later, Harihar Gir came back alone and reported to the plain tiff that Bhawan
Gir had died in his arms at Hardwar on the 27th April, 1892.

5. The plaintiff accepted that statement. It was, of course, then greatly to his interest to
do so. He had become mahant if it were true. It is, however, contrary to his interest
now to accept it. Indeed, if the fact be as stated, it is fatal to his present claims. Yet in
his evidence in these suits - to his credit be it said he has again declared his belief that
Harihar Gir's statement as to Bhawan Gir's death at Hardwar in April, 1892 is in
accordance with fact. and his actions since the date of Harihar Gir's return, if they be
honest, have been consistent, and consistent only with a constant belief that Bhawan
Gir was dead. Almost at once he performed his Bhandara and Shadh, and he was
himself instituted as mahant of the math and got Chudder and Pagree and was
installed in the Gadi. Three years later, that is to say on the 16th April, 1895, with
money found by others on terms analogous to those on which the funds for the present
litigation have been obtained, he instituted a series of suits against the present
defendants or their then predecessors in title to recover the proper ties on the
allegation that he had on the death of Bhawan Gir succeeded thereto as mahant. In
those suits the plaintiff gave evidence to the effect just stated, Harihar Gir too was
called as a witness, and he directly deposed to Bhawan Gir's death in his presence on
the date already given. His statements at that date were of course highly interested.
Moreover, it was essential to the plaintiff's case then that they should be true. The
learned Trial Judge, how ever, disbelieved them, accepting as preferable, and perhaps
as true, a body of evidence adduced by the then defendants - suspicious only because
of its volume and circumstance that Bhawan Gir was alive after April, 1892 : that
indeed he had been seen alive in 1895 after action brought. For the reason therefore
that the plaintiff had failed to establish the fact essential to the validity of his claim,
namely, that Bhawan Gir was dead when the suits were instituted, the Trial Judge, by
decrees dated the 27th January, 1896, dismissed them all with costs. The plain tiff
appealed to the High Court, but the learned Judges of that Court, finding themselves
unable on the materials before them to review the Trial Judge's finding on this issue of
fact, by orders dated the 30th November, 1897, dismissed the appeals. and so that
litigation ended. Attention must be given to this last date. It will be found that the
plaintiff sets great store by it in these proceedings.

6. The plaintiff in 1905 again performed the Bhandara of Bhawan Gir and was again
installed in the Gadi, although in his own view, as he stated in evidence in these suits,
that ceremony was neither essential to his institution nor redundant in its repetition.
On the 30th November, 1916, he instituted the present litigation. The date is
significant. Required by Order VII, Rule 1 (e) of the First Schedule to the Code to set
forth in his plaint the facts constituting his cause of action, and when it arose, the
plaintiff in each of the plaints alleges that the Judges of the High Court in the earlier
proceedings had, on the 30th November, 1897, accepted the then defendant's
statement that the plaintiff's Guru, Mahant Bhawan Gir, was then alive : that no
particulars regarding him had been known for seven years from the date of that
judgment, and that it was necessary for the plaintiff to accept the 30th November,
1904, as the date of death of his Guru, when the cause of action accrued to him. His
suits were in time - such is the impli cation of the allegation, and such is his way of
establishing it - in that they were commenced within twelve years to a day from the
30th November, 1904.

7. This view is undoubtedly mistaken. It would be fatal to the plaintiff if it were not.
For his case on his chosen foundation fails upon the facts. It is not correct to say that
the High Court in the earlier litigation found that Bhawan Gir was alive on the 30th
November, 1897. What that Court did find, affirming the Subordinate Judge, was that
be had not been proved to be dead on the 16th April, 1895. The la test date at which
anyone deposed to his being alive was a later date in the same year. and there is no
evidence, either in that litigation - if it may be regarded - or in this, that he has ever
since been heard of. So far indeed as the present suits are concerned, the only
testimony adduced, apart from that of Harihar Gir, is that he has been neither seen nor
heard of since he left the math in March, 1892. Putting the case therefore at its highest
for the plaintiff - that is excluding altogether from consideration both Harihar Gir's
direct evidence of death and the plaintiff's belief in its truth - the position is that
Bhawan Gir has not been seen or heard of since the year 1895. If so, on the principle
set up by the plain tiff, he must be presumed to be dead by the end of 1902.
Accordingly these suits commenced only in 1916 are clearly statute barred as against
the defendants.

8. But the law really is that on the facts now assumed there is no presumption as to
Bhawan Gir being dead either in 1902 or 1904. There is only one presumption, and
that is that when these suits were in stituted in 1916 Bhawan Gir was no lon ger alive.
There is no presumption at all as to when he died. That, like any other fact, is a matter
of proof. and their Lord ships would here observe that it strikes them as not a little
remarkable that the theory on this point, on which the plaintiff's pleader hazards his
whole case, is still so widely held, although it has so often been shown to be mistaken.
The learned Judges of the High Court have in these suits pointed out the plaintiff's
error. Yet, in another part of their judgment, if their Lordships are not mistaken, they
have themselves unconsciously fallen into it. They have made a decree in the
plaintiff's favour because they had, as they thought, no reliable evidence as to the date
of Bhawan Gir's death, and because in their judgment it was for the defendants to
prove that date if they relied on it. Yet at the same time they have acceded to the plain
tiff's claim for mesne profits which, at all events as claimed, are those profits accruing
three years prior to the institution of the suits. This imports that Bhawan Gir was dead
at that date. But if he was, then the same evidence showed that he had died many
years before. The evidence, indeed, if regarded at all, required the Court not to allow
mesne profits but to dismiss the suits altogether.

9. Now upon this question there is, their Lordships are satisfied, no difference bet
ween the law of India as declared in the Evidence Act and the Law of England [Rango
Balaji v. Mudiyeppa and searching for an explanation of this very persistent heresy
their Lordships find it in the words in which the rule both in India and in England is
usually expressed. These words taken originally from In re Phene's Trusts, L. R. 5 Ch.
139 : 30 L. J. Ch. 316 : 18 W. R. 303 : 22 L. T. 111 run as follows :-

       " If a person has not been heard of for seven years, there is a presumption of
       law that he is dead : but at what time within that period he died is not a matter
       of presumption but of evidence, and the onus of proving that the death took
       place at any particular time within the seven years lies upon the person who
       claims a right to the establishment of which that fact is essential."
10. Following these words, it is constantly assumed - not perhaps unnaturally - 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, of course, is not so. The presumption is the same if the
period exceeds seven years. The period is one and continuous, though it may be
divisible into three or even four periods of seven years. Probably the true rule would
be less liable to be missed, and would itself be stated more accurately, if, instead of
speaking of a person who had not been heard of for seven years, it described the
period of disappearance as one of not less than seven years."

11. To resume, however. It is manifest that the attempt made by the plaintiff in his
plaint to comply with Order VII, r. 1, (e) and set forth the date when his cause of
action arose has failed him on the facts. The result is to disclose, so far as he is
concerned, a very serious position. It is made plain by the plaint that as against him
the defendants had, at the institution of the suits, been by themselves and their
predecessors in adverse possession of the properties in question for more than 12 years
- in point of fact since 1895 at least when the earlier litigation against them was
commenced by the plaintiff, and which is the last year in which anyone proposes that
Bhawan Gir was seen alive. The plaint itself accordingly discloses a state of things to
which section 144 of the Limitation Act is applicable. In such circumstances, it may
well be that it is the obligation of the plaintiff by the law of India, as it is by the law of
England, to satisfy the Court that his action is not barred by lapse of time. See as to
India, Raja Sahib Perlad, Sein v. Maha rajah Rajender Kishore Singh Mahomed
Ibrahim v. Morrison (1880) 5 Cal. 36; as to England :- " There is no doubt," said the
Court of Queen's Bench in Doc v. Nepean 5 B. and Ad. 94 "that the lessor of the
plaintiff must recover by the strength of his own title and, in order " to do so, must
prove that he had a right to enter on the lands sought to be recovered within twenty
years before ejection brought."

12. To all of which may be added the comment by Lord Justice Giffard on Doc v.
Nepean, that the onus of proving death of any person at any particular period must rest
with the person to whose title that fact is essential. In re Phene's Trusts at pp. 151-2.

13. On this footing therefore the plaintiff here would fail in the absence of evidence of
the death of Bhawan Gir within twelve years before the institution of the suits.

14. But it is unnecessary in the state of the evidence in this case to proceed upon any
such strict view of the plaintiff's position. He has himself, and in these suits, supplied
affirmative evidence which their Lordships cannot disregard, Harihar Gir was called
as a witness on his behalf. In his evidence in chief he solemnly deposed that Bhawan
Gir died in his presence at Hardwar in April, 1892. In cross-examination he added that
he himself performed his funeral ceremonies, and that if anybody said that he did not
die in April, 1892, it would be false. and by way of confirmation the plaintiff stated in
his evidence, as their Lordships have already observed, that he himself believed that
Harihar Gir was telling the truth in this matter, while, as has also been shown, his own
actions and claims ever since have alone been consistent with that belief.

15. To their Lordships it seems impossible that such evidence adduced by the plaintiff
himself, fatal as it is to his case, can be ignored. They are not blind to the difficulty.
They do not forget the wealth of circumstantial evidence to the effect that Bhawan Gir
was alive as late as 1895, adduced by the defendants or their predecessors in title in
the earlier litigation, and then accepted and acted upon by the Trial Judge to the
plaintiff's undoing. They do not forget that at that time such evidence was vital to the
defence, nor do they fail to note the absence now of any counterpart to it when the
lapse of time has made it, to the highest interest of the defendants, to accept the
plaintiff's story that Bhawan Gir has been dead all these years. Their Lordships bear
all this in mind, and see no occasion to commend these highly sophisticated tactics of
the defendants. But they find it impossible to ignore the consistent attitude of the
plaintiff, supported now by uncontradicted direct evidence of death and a wealth of
concurring testimony to the effect that since Bhawan Gir abandoned the math in 1892
with Harihar Gir he has not been seen or heard of. If these suits were being brought
against defendants, neither parties nor privies to the earlier litigation, there could, in
their Lordships' view, have been no question that the evidence now adduced on behalf
of the plaintiff would have been completely destructive of his case. Is the position of
the defendants so compromised by their attitude in the earlier litigation, that they are
in effect estopped from deriving benefit from the plaintiff's evidence of death even if it
now by reason of the lapse of time has gained so greatly in force ? It is of course hard
upon the plaintiff that evidence rejected in 1895, when it would have helped him,
should now be accepted when it hurts him. On the other hand, it must be remembered
that the complete disappearance, down to the present time, of Bhawan Gir and the now
disinterested character of the evidence adds, to the plaintiff's story of his death, a
strength from external circumstances altogether lacking in 1895. Moreover, to ignore
the evidence altogether would be to fly in the face of the statute.

16. The difficulty of the plaintiff's present position in this matter was not, it would
seem, at all appreciated in the Courts below. Das J., in the High Court, for instance,
proceeded upon the footing that his evidence on this point was adduced only in the
earlier proceedings, and the learned Judge disposed of the point :-

       " It is quite true that it was the plaintiff's case in the suit which he instituted in
       1895 that Bha wan Gir died on the 15th Baisak, 1299, but that case was not
       accepted by the Courts."
17. That is all. To the evidence in the present suit the learned Judge makes no
allusion. It is that evidence which their Lordships find themselves unable to ignore.
The plaintiff must, as it seems to them, take the consequences of solemn testimony
given by himself and adduced on his behalf.

18. This disposes of the case, and it is unnecessary for their Lordships to deal with the
important and difficult question whether here the statute did not commence to run in
favour of the defendants from the dates of the wrongful alienations of the properties or
at all events from the date of his final abandonment of his office by Bhawan Gir and
not only from his death. Whether, in other words, the case is governed by the
decisions of which Damodar Das v. Lakhan Das, may be taken as the leading autho
rity : or by the line of authority of which Vidya Varuthi Thirtha v. Balusami Ayyar AIR
1922 PC 123, may be taken as typical. Their Lordships, while not pronouncing upon
it, have given very careful consideration to this interesting and difficult question.
Upon it they say no more than this, that they must not be taken to accept the view with
reference to it propounded by the High Court. So far as they are concerned, the
question remains entirely open to be deter mined when it arises.

19. For the reasons above given, however, they are of opinion that the decree of the
High Court should be recalled and that of the Trial Judge restored, and they will
humbly advise His Majesty accordingly. The respondents must pay to the appellants
their costs before the Board and in the High Court.
Cases Referred.
(1899) 23 Bom. 296.]
(1867-69) 12 M. I. A. 342 : 12 W. R. 6 : 2 B. L. R. 111 : 2 Suther 225 : 2 Sar. 439 (P.
C.) ;
(1910) 37 Cal. 885 : 37 I. A. 147 : 14 C. W. N. 889 : 12 C. L. J. 110 : 1910 M. W. N.
303 : 7 A, L. J. 791 : 8 M. L. T. 145 : 20 M. L. J. 624 : 12 Bom. L. R. 632 (P. C.)