JUDGMENT Sen, J.
1. The suit, which has given rise to this second appeal, was for a declaration that an ex parte decree in suit No. 11 of 1922 in re, Raja Jiwan Singh, plaintiff v. Kunwar Tara Singh and Ors. defendants passed by the revenue Court on 3rd February 1923 was vitiated by fraud and that the entire proceedings consequent upon the said decree were void, ineffectual and not binding upon the plaintiffs.
2. There is a small estate in the district of Mainpuri known as Eka Raj which is held by the defendant appellant as Raja and Gaddi Nashin. The plaintiffs and defendants 1, 2 and 3 and the husbands of defendants 4 and 5 are descended from a common ancestor. Raja Jiwan Singh, a defendant 1, who is the appellant in this Court is the accredited head of the family. The junior members of the family received from generation to generation either some cash allowance or some property for their maintenance. In pursuance of this custom the plaintiffs and their father Kunwar Har Govind Singh and defendants 2 and 3 and the husband of defendant 4 had received from the Raj a hamlet called Nagla Rajpur for their maintenance. The names of the maintenance holders were originally entered in the khewat but in recent years their names have been removed from the khewat and have been entered in the jamabandi and they have been paying Rs. 590 as rent for the land in Nagla Rajpur which is in their occupation. The area of this land is about 658 acres.
3. In 1922, Raja Jiwan Singh instituted a suit against Har Govind Singh, father of the plaintiffs, Kunwar Tara Singh, Kunwar Sheobaran Sihgh and Mt Bhawani Kuar for arrears of rent. The defendants did not contest the suit and an ex parte decree was passed on 3rd February 1923. The judgment-debtors having failed to pay the decretal amount, proceedings were initiated under Section 59, Agra Tenancy Act with the result that they were ejected from the holding and the decree-holder obtained formal possession on 31st December 1923.
4. The plaintiffs impugned the decree and the execution proceedings in pursuance of the decree on the ground of fraud. The defendant pleaded that the plaint was bad because the particulars of fraud had not bean clearly set out.
5. Where a suit is instituted to set aside a decree on the ground of fraud, it is obligatory and imperative on the plaintiff to prove that the decree was obtained by fraud practised upon the Court. General allegations of fraud are insufficient and the plaintiff must particularize the facts upon which fraud is founded. In Ganga Narain Gupta v. Tilack Ram [1888] 15 CAL. 538 it was held by the Judicial Committee that when fraud is charged against the defendant, it is an acknowledged rule of pleading that the plaintiff must set forth the particulars of the fraud which he alleges, and that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. Where the fall particulars of fraud have not been set out in the pleadings it will be most unreasonable to expect the defendants to meet the charge of fraud.
6. The plaintiff seeks to avoid the ex-parte decree upon the ground that Raja Jiwan Singh in the suit for arrears of rent "had conceited the real and alleged fraudulent facts." They develop this part of the case by going into details: the rent suit was directed not against the plaintiffs but against their father Har Govind Singh and defendants 2 to 4. The plaintiffs alleged that although Har Govind was dead on the date of the institution of the rent suit, Raja Jiwan Singh had sued him as a person alive. He was impleaded as a person insane and was placed under the guardianship of Mt, Parbati Kuar, his wife. The name of Har Govind Singh's wife was not Parbati Kuar but was Mt. Jaidevi Kuar. Raja Jiwan Singh as a member of the family was fully aware of these facts. He got the summons to be served "fictitiously, fraudulently and clandestinely" and continued the fraud in the execution of the ex parte decree under Section 59, Act 2 of 1901. We are of opinion that fraud has been set out in detail and with sufficiency and the defendant's contention to the contrary is of no force.
7. The sole contesting defendant was Raja Jiwan Singh. He denied that the plaintiffs' father was dead at the date of the suit. He maintained that the plaintiffs' father was a lunatic and that the decree passed ex parte against him and the proceedings in execution thereof which culminated in the ejectment of the judgment-debtors were validly obtained and were not vitiated by fraud.
8. The Court of first instance struck no less than eight issues, only three of which are material for the purpose of this appeal:
(1) Was the decree in suit No. 11 of 1922 obtained by defendant 1 by fraud (2) Were the proceedings under Section 50, Agra Tenancy Act taken after the date of the decree aforesaid fraudulent?.... (8) Is the father of the plaintiffs died and have they no right to maintain the suit.
9. The trial Court sustained the defence and dismissed the plaintiffs' suit.
10. It may be noted that the written statement was not signed or verified by Raja Jiwan Singh, defendant 1. It is signed and verified by one Tilak Singh, General Attorney of the Raja, The written statement stops short with the denial that Har Govind Singh was dead at the date of the rent suit. He also traverses the statement that Har Govind Singh was never insane. It does not appear to have been a substantive part of the defendant's case that Har Govind Singh was still alive or that he was alive and was the victim of insanity in the year 1922 when the rent suit was instituted against him.
11. Tilak Singh made a statement in Court under Order 10, Rule 1, Civil P.C. on 13th February 1925, in which he says:
Har Govind has been mad for a long time. He is alive. I do not know where he is. He has not been heard of for 1½ or 2 years, Before that he used to live in Shyampur, a Nagla of Eka. The plaintiffs' mother is alive. Her name is Mt. Parbati Kunwar.
12. Of the two plaintiffs, Reoti Singh who is adult was examined by the Court, and he stated that his father Har Govind Singh had died at Hardwar about 10 or 11 years ago, that his father was never mad and that the plaintiffs or their mother did not get any information of the decree for arrears of rent and the subsequent ejectment.
13. The plaintiffs closed their evidence on 16th August 1926. On 17th August 1926, Tilak Singh stated in the course of his deposition in Court that he had alighted upon Har Govind Singh at Hathras on 8th August 1926 and had got him photographed A photograph was shown to Kuar Reoti Singh, plaintiff and he denied that it was the photograph of his father Har Govind Singh. The photograph was shown to one Pitamber, a witness for the plaintiffs who is resident of Harnoth or Arnoth, a village in the district of Aligarh. The witness identified this photograph to be that of Har Govind Singh. On 24th August 1926 a man was actually introduced in Court as Har Govind Singh, father of the plaintiffs. Some attempt was made to procure the attendance of the plaintiffs in Court with a view to ascertain from them if this man who was produced on 24th August 1926, was really their father. The plaintiffs did not turn up. The Court of first instance came to the conclusion that the man who was introduced in Court was really the plaintiff's father. It further came to the conclusion that he was insane. The finding of the trial Court was mainly influenced by two facts: (1) That the man produced in Court was identical with the man in the photograph and (2) that Pitambar who was witness for the plaintiffs had identified the man in the photograph as plaintiffs' father.
14. The lower appellate Court accepted the evidence adduced by the plaintiffs and came to the following conclusions: (1) That Har Govind had disappeared from his village Nagla Shyampur 10 or 11 years before suit (2): that it must be presumed in law that he was dead; (3) that it must be presumed that he was not alive in 1922 when the rent suit was instituted against him (4); that he was not insane; (5) that on the date of the institution of the rent suit he was not residing in mouza Shyampur Nagla nor was he under the guardianship of his wife and (6) that the rent decree and the ejectment proceedings were vitiated by fraud. The lower appellate Court therefore reversed the decree of the trial Court and passed the following order:
The rent decree, according to my finding, is ineffectual as against Har Govind Singh or the present plaintiffs. On a declaration being made to that affect the result will be that the parties to the rent case will be restored to a position which they originally occupied prior to the passing of the rent decree. On the rent decree and the subsequent proceeding taken on its basis being declared ineffectual, defendant I will have to restore the property to the plaintiffs. He may, if advised, revive the proceedings of the rent case and properly represent Har Govind Singh in it and fight it out. The result is that I allow the appeal, set aside the order of the Court below and declare that the rent decree passed and the proceedings of ejectment taken against Har Govind Singh are ineffectual and not binding upon the plaintiffs.
15. The lower appellate Court was not at all satisfied that the man produced before the Court was the real Har Govind Singh. How Tilak Singh discovered this man in Hathras on or about 8th August 1926 is somewhat mysterious. His explanation is that he learnt of Har Govind Singh from an arhatia of Sanwant Khera. Tilak Singh is unable to give the name of this arhatia. The arhatia did not accompany Tilak Singh in his search for Har Govind Singh. The arhatia has not been produced as a witness in the case. It is not unlikely that this arhatia is a figment of the imagination of Tilak Singh and does not exist in flesh. Considerable emphasis was laid by the trial Court upon the evidence of Pitambar. It ought to he remembered that Pitambar is not a resident of Nagla Shyampur where Har Govind Singh originally resided. It ought also to be borne in mind that Pitamber is not a member of the family of Har Govind Singh. He is the purohit and pundit of Har Sukh Singh, father-in-law of Har Govind Singh. For 10 or 11 years since Har Govind Singh's disappearance he had never seen Har Govind Singh. If any value is to be attached to the statement of this witness, it is no more than this that the man in the photograph is like Har Govind Singh as he was 10 or 11 years before the suit. It is remarkable that this 10 or 11 years' time had made no ravage upon Har Govind Singh and had treated him with remarkable tenderness. We are clearly of opinion that no importance could be attached to the statement of Pitamber and the lower appellate Court has appraised the said statement at its true value.
16. The finding of the Court below is that Har Govind Singh has not been heard of for the last 10 or 11 years. This finding may give rise to a presumption of law about his being dead and it may affect the question of onus.S. 108, Evidence Act, provides that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for 7 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 presumption raised by this section is confined to the factum of death and not to the exact time when death may have occurred. Where a party affirms that a certain person died on or before a particular date, that fact has to be established by positive evidence. Har Govind Singh not having been heard of by the members of his family who would naturally have heard of him if he had been alive for a period of more than seven years, a presumption arises that Har Govind Singh is dead at the date of the suit but no presumption arises that Har Govind Singh was dead in the year 1922. There being no materials before the lower appellate Court to support a finding as to the actual time of the death of Har Govind Singh, the said Court was not justified in holding that Har Govind Singh was dead in 1922 when the rent suit was instituted against him. To this extent the finding of the lower appellate Court is erroneous and ought to be set aside.
17. The lower appellate Court had before it sufficient materials for coming to the conclusion that the ex parte decree for rent and the subsequent ejectment proceedings were vitiated by fraud. Har Govind Singh had been away from Nagla Shyampur for a long number of years before the institution of the rent suit. He was never insane. If living, He would be sui juris and could not be placed under the guardianship of his wife. From its inception right up to its finish the procedure adopted by the defendant-appellant does not redound to his credit and was bound to seriously prejudice the interest of the plaintiff-respondents in the property in dispute. We are of opinion that, in view of the finding of the lower appellate Court on the question of fraud, this appeal is bound to fail. We accordingly dismiss It with costs.