Presumption of death does not prove date of death, and premature suits do not justify exclusion of limitation time.

A presumption of death under the Evidence Act establishes only that a person is dead after being unheard of for seven years; it does not prove the exact date of death. Because limitation for possession after a declaratory decree runs from accrual of the right to sue, the plaintiffs had to prove that death occurred within the prescribed period, and they failed to do so. Time spent in earlier litigation could not be excluded under the Limitation Act because exclusion applies only where the earlier proceeding was not entertainable for want of jurisdiction or a similar defect. A suit dismissed as premature was outside that provision.

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Issues: (i) Whether the plaintiffs could succeed within limitation on the basis of a presumption of death under the Evidence Act without proving the exact date of death; (ii) whether the time spent in the earlier litigation could be excluded under the Limitation Act on the ground that the earlier suits had been premature.

Issue (i): Whether the plaintiffs could succeed within limitation on the basis of a presumption of death under the Evidence Act without proving the exact date of death.

Analysis: Under the applicable limitation provision, the suits for possession after a declaratory decree had to be brought within three years from the date on which the right to sue accrued. The presumption under the Evidence Act established only the factum of death after the person had not been heard of for seven years. It did not presume the precise time of death. Since limitation turned on the accrual of the right to sue, the plaintiffs were required to prove affirmatively that the death occurred within the prescribed period. That proof was absent.

Conclusion: The plaintiffs failed to establish that the suits were instituted within time on the basis of presumed death.

Issue (ii): Whether the time spent in the earlier litigation could be excluded under the Limitation Act on the ground that the earlier suits had been premature.

Analysis: Exclusion under the Limitation Act required that the earlier proceeding be prosecuted in good faith in a court unable to entertain it because of defect of jurisdiction or a cause of like nature. The earlier suits were not shown to have failed for any jurisdictional defect or analogous inability to entertain the matter. A dismissal as premature or for want of an accrued cause of action was not treated as a defect of the kind contemplated by the provision. The conditions for exclusion of time were therefore not satisfied.

Conclusion: The plaintiffs were not entitled to exclusion of the earlier litigation period under the Limitation Act.

Final Conclusion: The limitation defence succeeded and the appeals were dismissed, leaving the parties to bear their own costs.

Ratio Decidendi: A presumption of death proves only that the person is dead, not the date of death, and exclusion of prior litigation time is confined to proceedings prevented from being entertained by a jurisdictional or analogous defect.

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