8. In D. Padmaraja Setty v.

Gyanachandrappa, AIR 1970

Mysore 87, a property belonged to two brothers, Dasarath and
Tukkappa. Dasaarath died first. After the death of Tukkappa
also, leaving only his widow Padavathamma one of the sons
of Padmavathamma field a suit for partition and delivery to
him of a half share in the property. Padmavathamrna had
brought up her brothers daughter Janavva as her foster
daughter. During the pendency of the suit, Padmavathamma
died. Both Padmavathamrna as well as her foster daughter
Janawa were murdered on the same night. Padmavathamma
had left a Will bequeathing all her estate in favour of Janavva.
The question arises whether Janawa survived
Padmavathamma. The Court giving presumption under
Section 21 of the Hindu Succession Act that since both of
them murdered on the same night, it was difficult to ascertain
who died first and held that younger survived the elder. In
Jayantilal Mansukhlal v. Mehta Chhanalal Ambalal, AIR
1968 Guj 212, it is stated that Section 21 of the Hindu
Succession Act acts as a proviso to Sub-section (2) of Section
105 of the Succession Act in cases governed by the Hindu
Succession Act. Consequently, in case of commorientes, that
is to say, of persons who perish at the same time in
consequence of the same calamity, it is for the party disputing
the statutory presumption under Section 21 to prove by the
defined and warranted conclusion to the contrary that the
elder survived the younger and rebut the presumption. Their
Lordships referred to Section 184 of the Indian Law of
Property Act and referred the decision reported in Hickman v.
Peacy (1945) AC 304. In that case also, what happened was
that two persons Mangu and her daughter Kanta were residing
together in a house where a fire broke out in the house on the
evening of January 28, 1958 and the two were burnt alive and
died. There the case was that even though both were died in
the same accident, Kanta survived mother Mangu.
Presumption was relied on the it was held that younger
survived the elder.
19. In Re Mahabir Singh, AIR 1963 Punj 66, it was held that
under Section 21 of the Hindu Succession Act, the
presumption is until contrary is proved, that the younger
survived the elder. Thus provision lays down a rule of
evidence and introduces a statutory presumption of rebuttable
character in cases of simultaneous deaths. The law of
evidence is a law of procedure and is retrospective. In that
case, the testator and his wife who was younger than the
testator and was the sole legatee under the Will died of gun
shot wounds at the same time. It was held that apart from the
medical evidence showing that the testator died first, it could
be presumed under Section 21 that the testator is survived by
his wife, the lagatee. In paragraph 22, the learned Judge traces
the history of the presumption . It is stated thus "Common law
does not solve the problem, by taking shelter behind any
artificial rule of presumption , for determining as to who out
of the several, outlived the rest when struck by common
disaster. Common law answered the question posed by resort
to the rule of burden of proof. Which of the two commorientes
survived the other, had to be proved by the claimant why
sought to establish his right. The matter of survival, in all
cases, was treated as a question of fact. The Courts may
drawn their own deductions by taking into consideration the
circumstances of age, sex or physical condition of the person
who perished and also examine the minutes of the disaster and
the manner of deaths of the parties.
20. Learned counsel for the respondents submitted that the
presumption under Section 21 of the Hindu Succession Act
can be applied even in cases where parties died not in
common disaster, but in other cases also. Learned counsel
brought to our notice a decision in Hickman v. Peacey (1945)
2 All ER 215. In that case, facts are as follows "On Sept. 14,
1940, a bomb fell upon a house and exploded in the basement.
There were five people sheltering in an air raid shelter in the
basement and they were all killed. They were (a) the occupier
of the house (b) her daughter, (c) the housekeeper of two
brothers who are the testators next referred to (d) R.L.G., aged
73, the first testator and (e) his brother, E.M.G. aged 66, the
second testator. The first testator inter alia, left a legacy to he
housekeeper and he left the residue equally among his
brothers "surviving at the date of my disease." The second
testator left L 100 to each of his executors of whom the first
testator, was one, pecuniary legacies to the first testator to the
occupier of the house and to the housekeeper, and the residue
equally to three named legatees of them the first testator was
one. The question for the determination of the court was
whether the deaths occurred in circumstances rendering it
uncertain which of them survived the other or others so as to
bring into operation the Law of Property Act, 1925, Section
184." in that case it was held that in view of the uncertainty
which of the deceased survived the other or others, the
presumption under Section 184 of the Law of Property Act,
1925, should be applied and the elder of the deceased brothers
must be deemed to have died.
21. Learned counsel for the respondents invited our attention
to the judgment of Viscount Simon in the above case (B.
wherein it is stated thus :
"So far as the language of the section goes, it seems to me to
be manifest that the section does not apply to the case where
two or more death are absolutely simultaneous. Indeed,
counsel for the appellants expressly said that he was not
contending that if it were adequately proved that deaths were
simultaneous, the section would apply. The section he readily
conceded, deals with a succession of death and does not deal
with simultaneous death. It is to be observed that, whatever
may be case in similar provisions in the Roman Law, Section
184 is not limited to multiple deaths arising out of a "common
disaster". For example, if a husband goes a long voyage and
the ship completely disappears in circumstances where his
death has to be presumed to have occurred, but there is no
material to indicate on what date he was drowned, and if this
wife was in a nursing honme when he started and
subsequently died under an operation, they may be absolutely
no means of ascertaining which of them died first. Yet in such
a case is no "common disaster" at all."
The aboves passage is referred to in cross on Evidence, Fifth
Edition at page 144. Lord Macmillan in a separate judgment
states as follows :
"I prefer, therefore, to judge the language of the present
enactment by a more common place standard. I think that it
poses a practical question -- Can you say for certain which of
those who dead persons died first ? if you cannot say for
certain, then you must presume the older to have died first. It
is Immaterial that the reason for your inability to say for
certain which died first is either because you think they both
died simultaneous or because you think they died
consequently but you do not know in what seqeunce."
Lord Simonds in the above case, stated as follows ; "I
conclude, then, that the true construction of Section 184 is that
it proceeds upon the footing that the proof of simultaneous
death is impossible or in other words upon the footing that, if
surviorship is not proved , the only alternative is uncertainty.
If it is thus read, there is no casus omissus and the section can
be so construed as to cover every case in which it cannot be
proved that one of two persons dying together survived the
other. In coming to such a conclusion, I would reject the
suggestion that it is that of a metaphysician rather than of a
lawyer, unless indeed metaphylscs here include logic. It is a
conclusion which has regard to our pre-existing law, to the
way in which other systems of law have dealt with the same
problem." Argument of the learned counsel for the
respondents is that even though in the present case, there is no
common disaster, relying on the illustration given by Viscount
Simon, the learned counsel wants to apply the presumption
under Section 21, According to us, the section only applies to
cases where death take place in circumstances where it may
not be possible to find out who survived the other in the case
of common disaster like fire, bombing or even gun-shots. In
the illustration given by Viscount Simon, it is pertinent to note
that the wife was at Nursing Home when her husband had set
voyage and the husband was not heard of after voyage. There
is, it was presumed that wife and husband could have dead
during the same time. Even if we apply to above illustration to
our case, that cannot help the respondents. There is no
presumption regarding the date of death, because the case of
the appellants is that at least from 1962, Vasudevan is
definite. It is not a case where there is evidence to show that
both the persons could have died within a particular time.
Hence, we differ from the learned single Judge and find that
there is no evidence to show that Vasudevan survived
Achuthan. If that be so, Vasudevan would be entitled to only
1/4th share in the share of Kallyani in plaint schedule item
Nos. 1 and 2. Thus, he will be entitled to 1/ 8th share in plaint
schedule item Nos. 1 and 2.
22. In the above view of the matter, the judgment and decree
of the learned single Judge in A.S. No. 368 of 1983 are
reversed and the judgment and decree of the trial Court in
O.S. No. 246 of 1979 are restored.