ORDER V.G. Oak, J.
1. This writ petition arises out of a suit for partition under Section 176 of Act No, 1 of 1951.
2. The parties to the suit were related to one another as shown in the pedigree given in the affidavit. Bachchan Singh had five sons Including Ram Baran Singh, Deo Singh and Samoo. Ram Baran Singh's wife was Smt. Rukmina. Deo Singh's daughter was Smt. Lachi. Her sons are Dashrath and others. Samoo's sons are Sharda, Rama and Markandey. Dashrath and others filed the suit for partition against Sharda and others claiming 2/5th Share in the holding. According to the plaintiffs, Smt. Rukmina died before Deo Singh.
The plaintiffs' claim was resisted by the defendants. In the first place, it was denied that Smt. Rukmina is dead.
In the alternative, it was suggested that she might have died after Deo Singh's death. The trial Court held that Smt. Rukmina is dead, and that she died during Deo Singh's lifetime. The plaintiffs' claim was, therefore, decreed. Successive appeal's by the defendants were dismissed by the Additional Commissioner, Varanasi and the Board of Ravenu. Hence this writ petition by Rama Singh defendant.
3. The decision of the case turned on the questions whether Smt. Rukmina is dead; and if so, whether she died before or after Deo Singh's death. Mr. S.N. Singh, appearing for the petitioner no longer disputes Smt. Rukmini's death. But he strongly contended that the plaintiffs failed to establish that she died during Deo Singh's lifetime.
4. The plaintiff's led evidence to the effect that, Smt. Rukmini went for Gangasagar Yatra 17 years ago; since then she has not been heard of. Relying on this circumstance, the Board Of Revenue (relying on Section 108, Indian Evidence Act) held that, Smt. Rukmini should be presumed to have died before Deo Singh's death. Mr. S.N. Singh contended that, the reasoning of the Board of Revenue is erroneous. Under Sec. 108, Indian Evidence Act, the Court could presume the lady's death. But that provision could not be pressed into service for fixing the time of death. Mr. S.N. Singh cited a number of decisions in support of his contention. Mr. S.N. Singh is right in his contention that, all that one may presume under Section 108, Indian Evidence Act is that, the person concerned is dead. Under that provision of law, one cannot fix the time of the person's death.
5. But Section 108 Indian Evidence Act is not exhaustive on the question of presumptions as regards death of a person. The Court may make a suitable presumption in accordance with the circumstances of each case. Suppose, a man sails In ship; and the ship sinks. Thereafter the man is never seen alive. Under such circumstances, it is reasonable to assume that the person died in the shipwreck. When a person goes for pilgrimage, he or she ordinarily returns home in six months or in a year. In the present case Smt. Rukmini left for Ganga-sagar Yatra 17 years ago. Since then she has not been heard of. It is reasonble to assume that, she died in some accident or of some disease during the journey or at Gangasagar. Sha appears to have left about the year 1940. We may reasonably assume that she probably died by 1941 or 1942. In connection with her pilgrimage. There is evidence to the effect that, Deo Singh died about 1945. If the plaintiffs established circumstances indicating Smt. Rukmini's death by 1942, and further proved that Deo Singh died in 1945, they have proved their case. The Revenue Courts were justified in holding that, Smt. Rukmini died during Deo Singh's life-time.
6. The petition is dismissed with costs to respon dent No. 4. The stay order dated 6-9-1961 is vacated.