P L D1957 (W (PLP)

MUHAMMAD SHAFI, J.‑--Under sections 107 and 103 of the Evidence Act, when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it, provided that when the question is whether a man is alive or dead, anal it is proved that he has not been heard of for seven years by those who would naturally have heard of him if fie had been alive, the burden of proving that He is alive 'is shifted to the person who affirms it. These two sections have been discussed and interpreted differently by different High Courts in pre‑partitioned India as well as by some of the High Courts in the present day India. The difference of opinion has arisen over the meaning of some what obscure phrase "when the question is" occurring in these two sections. The conflict of opinion between the different eminent Judges‑has given rise to curious problems which, as would appear from the analysis of the cases given below in chronological order are not very simple to resolve. In most of these cases it will be noticed that it was the plaintiff who had to suffer and in certain cases with all respect and difference to the learned Judges who decided them, not quite in keeping with the principles of natural justice, equity and good conscience. If the plaintiff's success depended upon the fact whether a certain person was living or dead on a certain date, then he was asked to prove the fact affirmatively and by positive evidence. He was not permitted to make use of the presumption under section 108 of the Evidence Act, even if it was available to him on the material dates. This is certainly not very easy to understand in view of the fact that if the death or continuance of life of a certain person with reference to the given dates could be ascertained with any amount of certainty, then section 108 of the Evidence Act would not come into play at ail. Its applica tion is only attracted when no evidence, circumstantial or direct, is available to show whether any unheard of person was on given date or dates in fact living or dead. It is contradiction in terms to say that there is only a presumption under law that a certain person is dead, but the person alleging it must prove it by positive evidence as to on what exact date did he die. The con fusion which exists in law on this point is apparent from the following decided cases. Mazhar Ali and others v. Budh Singh and another (Vol. VII I L R All. 297): The facts of the case are given in the order of reference by the Division Bench. The property in suit originally belonged to Kamat Ali, who had mortgaged it in 1845 in favour of one Jiwan Mal. He died in 1850, leaving behind two sons, Ikram Ali and Amjad Ali. The former died in 1854, leaving behind Mazhar Alias his only son. Amjad Ali left his home town in 1858, and since then, was not heard of by those who would naturally have heard of him. Mazhar Ali in 1864 sold the equity of redemption of the property in suit in favour of one Narain Dass, who redeemed the mortgage from Jiwan Mal as the owner of a moiety of the mortgaged property and obtained the possession of the whole of it. Mazhar Ali then brought a suit for the possession of half of the property as an heir of his uncle, Amjad Ali. The suit was decreed by the trial Court, but was dismissed by the learned District Judge, against whose order a Second Appeal was preferred in the Allahabad High Court, which was originally heard by a Division Bench, who referred the following two questions to the Full Bench:‑ "(i) Does the rule contained in section 108 of the Evidence Act govern the case of a Muhammadan who has been missing for more than seven years, when the question of his death arises in cases to which, under the provisions of section 24 of the Bengal Civil Courts Act (VI of 1871), the Muhammadan Law is applicable? (ii) When a Muhammadan owner of property is missing, are his immediate heirs entitled, during his absence, to claim posses sion of his property as trustees on his behalf from trespassers, or to sue for redemption of such property from a mortgagee in possession? The main judgment of the Full Bench was written by Mahmood J., who after discussing elaborately and exhaustively the authorities of the Muslim as well as English Jurists, answered the first question in the affirmative. He did not consider it necessary to deal with the second question. The other Judges concurred with him. It is not clear what finally happened to the case. It is also not clear from the judgment as to when actually was the suit by Mazhar Ali brought so as to say whether on that date Amjad Ali would be if section 108 Evidence Act applies, said to be living or dead. The judgment is certainly very learned, but it throws no light on the question under consideration. Dharup Nath v. Gobind Saran and Gobind Saran v. Dharup Nath (Vol. VIII All. I L R 614): In this case, the property originally belonged to Hanuman Dat, who died leaving behind two widows by the name .of Mst. Bansi and Mst. Sheo Kuaria. The former had a daughter by the name of Mst. Matara, who had two sons, Gobind Saran and Gopal Saran. On the death of Hanuman Dat the property was inherited under the Hindu Law by his two widows. On the death of Mst. Bansi, the other widow, Mst. Sheo Kuaria, came into sole possession of the whole of the property and continued as such till the 10th of October 1882, when she died. On the death of Mst. Sheo Kuaria, one of the sons of Mst. Matara, namely, Gcpal Saran was alive, but his brother, Gobind Saran, father of Dharup Nath, the defendant in this case, was missing admittedly since be left home fifteen years ago. The question which had to be decided by the' Bench was on whom the property devolved upon the death of Mst. Sheo Kuaria, that is to say, whether it devolved on Gopal Saran alone or on both Gopal Saran and Gobind Saran. The learned lower Appellate Court against whose judgment the appeal was heard by their Lordships of the Allahabad High Court, had applying the provisions of sections 107 and 108 of the Evidence Act, held that the missing Gobind Saran could not be regarded as having been alive at the time of Mst. Sheo Kuaria's death in 1882, and consequently, the whole of the estate devolved entirely upon Gopal Saran to the exclusion of the defendant Dharup Nath. In other words, the learned lower Appellate Court, applying section 108 of the Evidence Act, held that Gobind Saran, having not been heard of for seven years prior to October 1882, when Mst. Sheo Kuaria died, should be presumed to be dead on that date. The Division Bench, the main judgment of whom was again written by the most learned, distinguished and eminent Judge Mahmood J., the pride of the judiciary of pre‑partitioned India agreed with the lower Appellate Court. The learned Judge quoted the following passage from the English Law of Evidence as stated in Taylor's work:‑ "In such case, after the lapse of seven years the presump tion of life ceases, and the burden of proof is devolved on the other party. This period was inserted, upon great delibera tion, in the statutes respecting bigamy, and the statute con cerning leases for lives, and has since been adopted by analogy in other cases. But although a person who has not been heard of for' seven years is presumed to be dead, the law raises no presumption as to the time of his death; and therefore, if any one has to establish the precise period during those seven years at which such person died, he must do so by evidence, and can neither rely, on the one hand, upon the presumption of death, nor, on the other, upon the presumption of the conti nuance of life." Mr. Justice Mahmood then observed as under:‑ "I am prepared to accept this as a good explanation of the rule contained in sections 107 and 108 of the Evidence Act, and I do not think that those sections, taken together, lay down any rule as to the exact time of the death of a missing person. So that whenever the question as to the exact time of death arises, it must be dealt with according to the evidence and circumstances of each case, when the death is alleged to have occurred at any time not affected by the presumption of law as to the seven years. In the present case the Court of first instance, upon the evidence before it, found that "the plaintiff's witnesses fully prove that he (Gobind Saran) has not been heard of for fifteen years," and the Court went on to discredit the allegation of the defendant that his father disappeared only ten years ago. This finding, as I have already said, was accepted by the lower Appellate Court as justified by the evidence and circumstances of the case; and that Court found that the missing Gobind Saran was dead at the time when by the death of Mst. Sheo Kuaria in 1882, the estate of her deceased husband, Hanuman Dat, would devolve upon his daughter's sons, the widow's estate having then terminate. "I accept this finding, which I regard as one of fact and not open to any objection, on the ground of illegality or irregularity, and I take it that Gobind Saran was not alive when Mst. Shoo Kuaria died on the 10th October 1882. This being so, Gopal Saran was the only daughter's son of Hanuman Dat upon whom the estate of his maternal grandfather would devolve, to the exclusion of the defendant." If the proposition of English Law as stated in Taylor's work quoted by Mr. Justice Mahmood be taken as correct, then there will be presumption that Gobind Saran, having been not heard of for seven years, is dead, but there will be no pre sumption as to when exactly did he die. The result would be that although there is a presumption that he is dead, yet nobody can take advantage of this presumption, because the exact date of his death cannot be ascertained by positive evidence. In spite of this passage their Lordships did presume that on the day when Mst. Shoo Kuaria died, Gobind Saran should be taken to be dead. Dhando Bhikaji v. Ganesh Bhikaji (1886 I L R 11 Bom. 433): It is a very short judgment in which the Chief Justice Sergeant, agreeing with Mr. Justice Spankie, In Parmesitar Rai v. Bashasher Singh, held that the question whether a person is presumed to be dead is one of evidence, and not a part of the substantive law of inheritance. Rango Balaji v. Mudlyeppa arid others (I L R 23 Bom. 296): In this case, the property in dispute belonged to one Shankar. On the 1st of September 1878, he adopted his nephew because as: he put it in the deed, his natural son by the name of Bhala since about a year had disappeared from his house, and in spite of extensive search, could not be traced. Shankar died on 13th of September 1878. He had left a widow by the name of Bhago Bal who forfeited all rights of inheritance on account of the fact that she had been incontinent and had become a Muslim. The adopted son brought a suit for the possession of Shankar's property against the persons who were the heirs of Bhala. The main judgment was written by Chief Justice Farran, who while dismissing the plaintiff's claim, observed as under:‑ "The main question is whether the plaintiff is the adopted son of Shankar? The answer to that question depends upon whether Bhala was alive or dead at the date of adoption. For the determination of it, in the absence of specific proof, recourse must, I think, be had to the Evidence Act." The learned Judge then makes a reference to 7 All. 297, 8 All. 614 and 11 Bom. 433 and continues to observe:‑ "Having regard to the provision contained in sections 107 and 108 of that Act the presumption is that Bhala is now dead, but there is I think no presumption as to when he died." The learned Judge then quotes certain English cases the and continues to hold if it is necessary exact date of his death, he, upon whom the onus of establish ing that date is cast, must establish it, or otherwise he must fail. Now, here the plaintiff is seeking to recover the property in suit, as against the natural heirs of Shankar. He must, there fore, I am inclined to think, prove affirmatively that Bhala was dead at the date of his adoption. He must show that Shankar was then sonless. This, in the opinion of the Assistant Judge, he has not done. It follows, I think, that be fails affirmatives to prove the adoption." Here Bhala, having disappeared only one year before the plaintiff was adopted the plaintiff could not on that date avail of the presumption which the law raises under section 108 of the Evidence Act. Moola Cassim v. Moola Abdur Rahim (I L R 33 Cal. 173, 1905 (P C)): The subject‑matter of the suit, out of which the appeal went to their Lordships of the Privy Council, belonged to one Moola Hasham. He made a will on the 13th of May 1878, bequeathing his entire property in favour of his eldest son Moola Ahmad and his two children. Moola Hasham died on the 27th of January 1884. One of his widows, Mst. Sharifa Bee, brought a suit, contesting the will as invalid in Muslim Law. The suit was referred to an Arbitrator who made his award, stating that the estate of Moola Hasham should be divided among his heirs and legatees, including Moola Ahmad. Moola Cassim, the son of Moola Ahmad, brought a suit for a share in his grandfather's property on the basis of the award referred to above. Their Lordships dismissed the suit on the ground that the award was not proved and Moola Cassim had failed to establish that his father had survived Moola Hasham: The two Courts 'below had found as a matter of fact that Moola Abmad, during the life‑time of his father, in or about the year of 1870, had left his home‑town as a mendicant or Faqir, and was not heard of since then. Their Lordships, agreeing‑with this finding, held that Moola Cassim could not inherit the property of his grandfather, because it was a well‑known principle of Muhammadan Law that if any of the children of a man died before the opening of the succession to his estate, leaving children behind, these children were entirely excluded from the inheritance of their uncles and aunts. It would be observed from this judgment that their Lordships, though not explicitly, but impliedly, used the presumption under section 108 of the Evidence Act, and came to the conclusion that at the time when, Moola H'asham died, Moola Abmad should be taken to have been dead, because he was not heard of for seven years prior to that. If the position taken up by some of the High Courts in pre‑partitioned India that the un beard of person can be presumed to be dead on the date of the institution of the suit, be correct, then; in this case, Moola Ahmad could not be presumed to be dead on the 27th of January 1884, But only on the date of the Institution of the suit, and as such, his children would be entitled to share the property of Moola Hasham with their uncles and aunts. Fani Bhushan Banerji v. Surjya Kanta Roy Chaudhry (I L R 35 Cal. 25 (108)): This is a Division Bench case in which both the Judges wrote separate and brief judgments without giving material dates or facts. It appears that the property in this case belonged to one Mathura Mohan, who died leaving behind a widow by the name of Putt Mont. Two years after her death, a suit was brought by Mathura Mohan's nephew for the possession of the entire property left by him on the ground that he was his sole heir, his stepbrother having not been heard of for about seven years. The suit was brought against the defendants who were the transferees from Puti Moni, on the around that the transfer in their favour was without proper consideration and without legal necessity. The Court of first instance bad decreed the suit. The lower Appellate Court, however, modified the decree and it allowed the plaintiff's claim to a moiety only of his uncle's share. Their Lordships w dismissed the further appeal. With all respect to the Judges who decided this case, I have failed to understand as to how the plaintiff was completely non‑suited. He could be non‑suited only if their Lordships had found that on the date of the institution of the suit, the plaintiff's step‑brother could not have been pre sumed to be dead, because the requisite period of seven years had not expired. On the contrary, it appears that their Lordships did actually find that the step‑brother of the plaintiff was not heard of since about seven years, and yet, the Chief Justice came to the following conclusion:‑ "The answer depends upon whether or not he can show that at the date of the death of Pati Moni, when the succes sion opened out, his step‑brother, Moni Mohan, was dead. Moni Mohan has not been heard of for seven years; he may, therefore, be presumed to be dead, in the absence of any evidence to the contrary, under section 108 of the Evidence Act: but the law raises no presumption as to the time of his death; and it is, therefore, incumbent on the plaintiff who alleges that Mont Mohan, was dead at the date of Pati Moni's death, to prove that fact by evidence. This he has failed to do." The second Judge Geidt, J. also arrived somewhat to the same conclusion. Even, if Mont Mohan could not be presumed to have died on the date of Pad Moni's death, still he could be and in fact, was presumed to be dead on the date of the institution of the suit, and, therefore, it was incumbent on the Court to grant relief to the plaintiff, if it came to the conclusion that the transfer by Pati Moni was without legal necessity and valid consideration. The Courts must have found the transfer bad in law, because they actually passed a decree to the extent of a moiety of his uncle's share in favour of the plaintiff. In any case, this judgment is of no use to anybody at all. Thiagaraja Mudeliar and another v. Kandasawami Mudaly and another (2 I C 977 (Mad. 1909)): This is also a very short judgment in which it is not made clear as to whether on the material date, that is at the time of Thangal's death Pamzyan was not heard of for a period of seven years, or a period shorter than that. Dismissing the suit brought by the heirs of Pamayaa, their Lordships observed as under:‑ "The appellants' title, however, rests upon the proof of the fact that Pamayan survived mangal, the last surviving female, upon whose death, all the defendants became entitled to the property." Their Lordships then referred to certain English cases as well as to 23 Bom. 296 and 35 Cal. 25, and held as under:‑ "they have apparently made no attempt to discharge this burden, and we are of opinion that the first respondent has, therefore, established his title to the property as assignee of the reversioners of Veera Sawamy (defendants 3 and 4)." Mst. Narki v. Mst. Phekia (5 I C 709 (Cal. 1910)): The property in this case belonged to two brothers, Moula Miyan and Haikori. The latter died in 1872. Moula Miyan gifted the entire property, that is his as well as his brother's share, in favour of his daughter, Narki, the plaintiff 9n the case. The suit was brought against Mst. Phekia, who was the widow of Mangro, a son of Halkori. This Mangro had admittedly gone abroad in 1862, and was not heard of since then. Their Lordships referred in their judgment to 35 Cal. 25 and 33 Cal. 173 and purporting to follow these authorities, found as under:‑ "All that we know about Mangro is that he went abroad about 1862, ten years before the death of Haikori, which occurred in 1872, and has not since been heard of by those who would naturally have heard of him, if he had been alive. Under these circumstances, the plaintiff, in order to make out her case, must have established that Mangro died before Halkori. She has not done this by evidence, and the question is whether she can derive any assistance from section 108 of the Evidence Act. If that section applied to the case, the burden of proof would shift, and instead of the plaintiff having to prove that Mangro was dead at a given time, the defendant would have to prove that he was then alive, but we are constrained to hold that it does not." The learned Judges, while deciding the case against the plaintiff, did feel that they were holding something against natural justice, and that is why they are compelled to observe as under:- "As it is, however, we have to hold that though a plaintiff alleging Mangro's death in 1869, would not have had to prove it, then, the present plaintiff must grove that he was dead three years later. This state of the law may give rise to some highly anomalous situations as would be the case had Mangro's estate been administered In 1872. But, in the present case, the plaintiff to make good her claim, must prove that her father was entitled to sixteen annas of what he purported to give her, and to do this, must establish that Mangro died before his father which she has failed to do." With all respect to their Lordships I must say that they have not given any reason as to why could the plaintiff not derive the assistance from section 108 of the Evidence Act and say that in 1872 Mangro shall have to be taken as dead, because he was not heard of for seven years before that time. Muhammad Sharljand another v. Bande All and others (34 All. 37 (1911)) The property which was the subject‑matter of this appeal belonged to one Madad Ali, who had mortgaged it in favour of the defendants' father on two occasions, first on the 18th of January 1887, and again on the 27th of May 1890. Madad Ali disappeared some time after and nothing was heard of him. His brother, Dildar Ali, died five to seven years ago. On his death the plaintiff‑appellants, who were the heirs of Dildar Ali, sought to redeem the mortgage made by Madad Ali. Dismissing the plaintiff's slit, the Chief Justice Richards, who wrote the main judgment, held as under:‑ "The mere fact that the evidence adduced by the plaintiffs went to show that Madad Ali had not been heard of for more than seven years raises no greater presumption of his death than if the evidence had been confined to the exact period of seven years. In other words, the only presumption is that Madad Ali is dead. There is no presumption that he died in the first seven years, or in the last seven years. The presump tion merely is that he was dead at the time the question whether he was alive or dead arose, the burden of showing that he was alive being thrown upon the defendants if it was necessary for them to do so." His Lordships then referred to 8 All. 614, and in somewhat disrespectful language observed:‑ "That the learned Judge who delivered the judgment in that case misinterpreted and misunderstood the passage from Taylor on Evidence which he quoted." With all respect to his Lordship, I must say that he has not supported his finding by any reason; much less logical one. He has not stated in his judgment as to why should it be said that the presumption arises that a person is dead at the time the question whether he was alive or dead arises. The words used in section 108 are "when the question is", and not "when the question arises". There is very great difference between these two expressions. A question may arise only when a decision on that question is sought, but a "question will be" irrespective of the fact whether it arises for decision or not. In my humble view "the question is" used in section 108 of the evidence Act, may be taken with reference to any material date before the institution of the suit. In the case under consideration it could be taken with reference to the date on which Madad Ali died. His Lordship then explains away an anomalous position which had arisen out of his judgment in the following words:‑ "It is said that the anomalous position is created that ii Dildar Ali had sued during his life‑time, he would have succeeded, and that now his heir is not entitled to succeed. It seems to me that this argument proceeds upon the assumption that if Dildar Ali had sued during his life‑time, the evidence as to the disappearance of Madad Ail would have been exactly the same. This would be a very rash assumption. Seven or eight years ago, there must have been many persons who might have heard of the existence of Madad Ali, who are now dead and gone". His Lordship seems to have completely ignored that it was open to the defendants in the case to produce evidence that Madad Ali within six or seven years of Dildar's death was heard of not by any body in this world, but by those who would naturally have beard of him if he had been alive. The learned Judge does not seem to have attached due importance to the people who mattered with regard to the presumption under section 108 of the Evidence Act. It is not clear from the judgment as to whether apart from the plaintiff in the case, Madad Ali left any other heir or not, but, if he did not, then the necessary consequence of his Lordship's Judgment was that the mortgagee of the property had ceased to be a mortgagee and had become an absolute owner. This is clearly against tile natural justice and equity. No reference was made by their Lordships in this case to Moola Cassim v. Moola Abdur Rahim (33 Cal. 173). B. Veeramma v. Chenna Redi and two others (37 Mad. 440)‑ This suit was for the possession of a house-site by the plaintiff-appellant which belonged to her father-in-law. Her husband was not heard of since 01e time he left during the life -time of her father-in-law, but she had not been living in this house with her father-in-law and after his death, alone, when it fell down. She then went to live with her brother in another village, and when she returned in 1908, she found the defendants occupying it illegally. In order to succeed in the case, the plaintiff had to prove that her husband survived her father‑in‑law. Holding that she had failed to prove this fact, their Lordships wrote as under:‑ "It is argued that inasmuch as under section 107 it is enough to prove that a man was alive within thirty years, to throw the onus of proving his death on the party who asserts it, there is a presumption that be lived during the thirty years, and that section 108 modifies it only where it is proved that the person was not heard of for seven years. We are unable to agree with the appellant's Vakil as to the meaning to be put on section

107. Both section 107 and 108 deal with the procedure to be followed when a question is raised before a Court as to whether a person is alive or dead. Neither of these sections, in our opinion lays down any presumption as to how long a man was alive or at what time he died. The contention for the appellant is not supported by any Indian authority cited before us." Their Lordships then made a reference to 37 Cal. 103 and 3‑1 All. 36, and held that tine view taken in these two judgments was correct. Their Lordships in this case by saying that sections 107 and 108 deal with the procedure to be followed, when a "question is raised before a Court" seem to have fallen into the same error as the learned Judges who decided 34 All. 36 Jayawant Jiyanrao Deshpande v. Ramchandra Nanayan Jeshi (1916 Bom. 300). In this case, the property belonged to one Shamrao, one whose death it was possessed by his deceased son's widow, Rangubai. This lady, who had a limited interest in the property, mortgaged the property in favour of one Narayan on the 21st of January 1860. One Bodhraj obtained a money, decree against Mst. Rangubai in 1862, and had the property auctioned. In his favour in February 1368. In the same year Narayan brought a suit against Bodhraj for the foreclosure of his mortgage. It was granted a decree therefore in 1870. It appears that Bodhraj did not pay the mortgage money within the time, specified in the decree, with the result that Narayan became an absolute owner. Mst. Rangubai disappeared in 1365 and was not heard of at least since 1870. The reversioners of Rangubai brought a suit for the redemption of Narayan's mortgage, or, in the alternative, for the possession of the property. The first Court decreed the suit. On appeal, this order was reversed and so the second appeal went up to the Bombay High Court which was heard by a Division Bench. The plaintiff's appeal was dismissed on the ground that the plaintiff's case was governed either by Article 140 or by Article 141 of the Limitation Act, and it was for the plaintiff to prove that his suit was within twelve years of the death of Rangubai which he had failed to prove, The date of the institution of the plaintiff's suit is not given, in the order, and, therefore, it cannot be said whether that date was covered by the period of seven years, or not. If, however, the suit was brought within seven years of the disappearance of Rangubai then the question of limitation did nit arise at all, but If it was brought after the expiry of seven years, but within twelve years of the disappearance, then the reasons for the dismissal of the suit are not only un-understandable, but certainly not quite logical or equitable. The learned Judges did not discuss any Indian case at all. They only referred to some cases of Great Britain,‑ where it will be particularly noticed that then, as is the case even now, there is no statutory provision corresponding to sections 107 and 108 of the Evidence Act. The law prevailing in England on the subject, therefore, will not be of much assistance !n India. Ponnal Ellamandayya Chilakapathi Lakshrnayya and others (42 1 C 241): This appeal had arisen out of a suit instituted in, 1912 by a person alleging himself to be a reversioners, for possession. The widow of the last male owner had died in 1909. The defen dant's plea .vas that at the time of the widow's death, another person who wag a nearer reversioner than the? plaintiff, was alive, who completely excluded the plaintiff from inheritance. Their Lordships accepted the finding of the two Courts blow that that reversioner was not heard of for thirty years before the institution of the suit, and yet they held that there was no presumption that that reversioner was dead, even though seven years had expired on the material date, via., the death of the widow. In the course of the judgment, they observed that the word "question" in section 108 of the Evidence Act refers to the point raised in the suit. This observation of their Lordships is completely un-understandable to me. The point has been discussed roost artificially, and it is a bare opinion for which I do not find any justification in section 108 of the Evidence Act, or In the authori ties quoted by their Lordships in the judgment. Their Lordships rejected the argument of Mr. Raja Gopalachariar that the presumption must be raised with reference to the event which is the basis of the action, and not with reference to the date of the suit. I fail to seethe difficulty in their Lordships accepting this contention of the learned counsel. From the judgment it appears that the defendant was a trespasser. He has now been permitted to become the absolute owner of the property by his unlawful act by just throwing out the true owner's claim, by expecting to prove the impossible. Faqir Bakhsh Singh and others v. Dan Bahadur Singh and others (46 1 C 808 (Oudh)) This is a case decided by the Judicial Commissioner which arose out of the following facts:‑ The property in suit originally belonged to two brothers, Jaggan Nath and Deo Bakhsh. The latter disappeared in 1891, and was not heard of by anybody since then. His brother Jaggan Nath sold away the entire property in favour of Faqir Bakhsh Singh and others on the 21st of August 1908. It, however, appears that the possession of half of the property was not given to the vendees, and so, after the death of Jaggan Nath, it came to be possessed by some persons, who claimed to be the heirs of Deo Bakhsh. On the 6th of April 1916, the vendees instituted a suit for the possession of Deo Bakhsh's half share. The learned Judicial Commissioner dismissed the plaintiffs' suit purporting to follow 35 Cal. 25 and 34 All.

36. After discussing these authori ties, his Lordship observed as under:‑ "In view of these authorities, it appears to me impossible to yield to the argument of the learned counsel for the appellants and whatever the English view of the law mind be, it seems to me quite clear or, the provisions of section 108 that it is not possible for a Court to raise a presumption that a certain person has died at any particular time anterior to the proceedings ill which the question as to his being alive or dead is raised. The language of the section seems to me to make this perfectly clear. It says "when the question is whether a man is alive or dead". This language seems to me to contemplate a decision by the Court as to whether a man is alive or dead at the time the Court gives its judgment; and all that is possible to decide by way of presumption is that, if it be shown that no news has been received for more than seven years of the person whose being dead or alive is the matter in issue, the Court may declare that such person Is no longer alive at the time it gives judgment." In this case, the learned Judicial Commissioner has not given any reason as to why does he think that the words "when the question is whether a man is alive or dead" contemplated a decision by the Court as to whether a man is alive or dead. Why can it be not said that on some anterior date, when a certain event takes place, the question is raised whether the man is dead or alive, and then decide it in relation to that date. Basharat etc. v. Najib Khan etc. (38 P R 1918) It is a Single Bench case and the judgment written is a very short one, and the sole question which required determination was, whether there was a presumption that Kallu, the collateral of the plaintiffs, who was the original owner of the land in dispute, had died more than twelve years prior to the institution of the suit. His Lordship, after quoting 34 All. 36 and 37 Cal. 103, observed as under:‑ "The only rule, which the section prescribes, is that the person who has not been heard of for seven years by those who would naturally have heard of him if he had been alive, is presumed to be dead at the time when the question whether he is alive or dead is raised. There is no presumption as to the time of his death, and if any one seeks to establish the precise period at which such person died, he must do so by actual evidence." His Lordship then held that Kallu must be presumed to be dead in 1909, because it was at that time when the question as to whether Kallu was dead or alive was for the first time raised in the mutation proceedings. It will be observed that his Lordship did not favour the view that the presumption as to whether Kallu was alive o: dead should be raised only. on the date of the Institu tion of the suit, and not before. Jeshankar Rerashankar v. Bai Divali (1920 Bom. 85) Here in this case, the property belonged to one Lallu who had mortgaged it in favour of one Moti Lal Nathu. In 1913, Juggal, a first cousin of Lallu, sold the equity of redemption in favour of defendant

2. In 1915, Diwali, the wife of Jamnadass a remote relation of Lallu, brought a suit for the possession of the property. Lallu was. unheard of, but it is not clear since when. The first Court dismissed the plaintiff's suit, but it was decreed by the lower Appellate Court. On second appeal their Lordships remanded the case, but in the course of the judgment, observed as under:‑ "A man is presumed to be alive until he is dead. A person asserting that a particular man is dead has to prove it. If he could show that the man has not been heard of for seven years, then the Court will presume the death: See Rango Balaji v. Mudiyeppa (23 Dom. 296). But the earliest date to which the death can be presumed can only be the date when the suit was filed. It can not have a further retrospective effect." This last observation is, as in many other cases, not supported by any reasoning. Tani and others v. Rikhi Ram and another (A I R 1920 Lah. 191): This case is not directly in point. One of the question which required determination by their Lordships who decided this case was, whether Mst. Atri, the widowed‑mother of the last male owner of the‑property in suit, had died before or after the 5th of May 1902. While deciding this question, their Lordships observed as under, after quoting a passage from the Law of Evidence by Ameer Ali and Woodroffe:‑ "In accordance with this principle, we are of the opinion that the onus of proving that Ust. Atri died before the 5th of May 1902, lies upon the defendants who assert it. There is no proof of the exact date of death, and we, therefore, hold that the suit is within time." The question, therefore, which was decided by their Lordships in this case was that it was for the person who asserts the death of certain individual to prove that that individual died on a certain particular date. No question dealt with by section 108 of the Evidence Act was involved in this case. Bal Naicken N'. Achama Naicken (A I R 1921 Mad. 285): It Is a Division Bench ruling and the following passage may with advantage be quoted in extenso:‑ "It is true that it has been pointed out in several cases that while there is a presumption that a person is dead when he or she has not been beard of for seven years, there is no presump tion as to the particular date on which he or she died, and the burden of proving the actual date of death lies on the person who has to bring his suit after the death of the person who is un heard of and within a particular period after the death. But these remarks apply only when the point of time at which the death has to be placed falls necessarily within the seven years or necessarily beyond the seven years. With great deference to the learned Judge who decided the cases in Muhammad Sharif v. Bande Ali (4) and Ellamandayya v. Lakshaniayya (42 I C 241), we are unable to follow the reasoning in them." "In our opinion, In a case where the point of time to which the death has to be referred, may tie placed during the seven years or after the lapse of not being necessary for the plaintiff to show that the person lived during the seven years), there Is a presumption after the lapse of the seven years in favour of the death and it is for the other side to displace the presumption and the party relying on the presumption is entitled to succeed if no evidence is offered by the other side. The decision in Veeramma v. Chinnah Reddi (37 Mad. 440) and the decision in Oleti Chinna Kamakshayya v. Oleti Kotilingam and others (Second Appeal 1911 of 19i8) are perfectly consistent with his view". I respectfully agree with the opinion expressed by their Lordships in this Judgment: Muhammad Chiragh v. Abdul Haq and others (64 I C Lah. 468 (1921)). In this case, the property belonged, to Gulab Shah, who had disappeared somewhere in 1895. His name was removed from the revenue papers in August 1907, on the ground that he had aban doned his holding. His brother's son brought a suit for the possession of his share in Gulab Shah's land within twelve years of 1907. The first Court held that the suit was within time and granted plaintiff a decree. The second Court reversed this judgment and so the plaintiff went up on appeal to the Lahore High Court, which was heard and decided by Mr. Justice Wilberforce. His Lordship, disagreeing with the view expressed in 8 I C 55 but agreeing with 57 I C 525; 6 I C 742; 38 P R 1918 and 42 I C 241 held that there was no doubt that no presumption could be raised of Gulab Shah's death having taken place more than seven years before the question was raised which appears to have been when the suit was filed. His Lordship, however, did have some doubt in his mind about the presumption to be raised on the date of the institution of the suit and he, therefore, added that even if it be taken that the question was raised at the time of the mutation, the suit was still within time. Gopal Bhlmji Avte v. Manaji Ganuji Padaval and others (A I R 1923 Bom. 163): Here, the property, which was the subject‑matter of dispute, belonged to one Rakhma. It was found as a matter of fact that he disappeared about the years 1898 or 1899 and was not heard of since then. In 1908, the step‑grandmother of Rakhma sold the pro perty to one Ramji, who in his turn, sold it to the plaintiff. The suit was brought against the persons who claimed the property as heirs of Rakhma, the latter being his nephew. The learned Judges, following 37 Ca. 103, 34 All. 36, 8 Bom. L R 296 and 22 Bom. L R 771, held that even though the presumption under section 108 was available to the plaintiff in 1908, when he purchased the property, still he was not entitled to make use of it, and in order to succeed, he had to prove that in this particular year, when Ramji, his predecessor‑in‑interest, purchased the property from the step‑grandmother of Rakhma, Rakhma was dead. Their Lordships explained 40 Bom. 239 and said that the decision in this case did not, in any way; conflict with the view taken in the authorities detailed above. Reference was also made to 33 Cal. 173, and his Lordship Mr. Justice Shah said that this authority did not appear to him to be decisive of the question, having regard to the facts of the case, though so far it went, it was consistent with the view taken by the Indian Courts. With due deference to the learned Judges, for the reasons which I would give at the end of the analysis of these cases, I cannot hold that this view is sound. Ramchandra Sadashiv Oka v. Keshav Dhondu Yarvekar and others (A I R 1923 Bom. 208): The property which was the subject‑matter of this appeal originally belonged to one Baji: This gentleman married one Annapurnabai is about 1372 and disappeared two years later, that is some time in 1874. In 1880 on a judicial inquiry held in a miscellaneous application, it was held that Baji was alive. He was, however, continuously unheard of by the persons mentioned in section 108 of the Evidence Act. His widow died in 1908. Dwarka, a sister of Baji, sold away the property in favour of the plaints in 1910, who on the basis of this conveyance, instituted a suit in February, 1911, for ejectment against the dciendandi, who were in possession of the property under a Court‑sate since 1839. Mr. Justice Marten, who wrote the main judgment. a‑peeing with the learned lower Appellate Court, observed as under‑ "In my opinion on the Indian authorities the learned Judge arrived at a correct conclusion. Speaking for myself I wish to say that sitting in this Court I merely follow the previous decisions on these points, without expressing any opinion of my own on the law in question. Nor do I express "any opinion on the question as to what is the corresponding law in England, where the period of seven pears may be any period of seven years; or whether, as has been held in India, it must be confined to a period of seven years before suit. There is a conflict of opinion‑ on that point between the Allahabad and the Calcutta Courts as to the English law on the point, and for the purpose of this case the matter may rest there. Whatever the law may be in England, I am sitting here as an Indian Judge, and all we have to do is to administer Indian law as laid down by the Courts of this country. In view of the carefully considered judgment of my brothers Shah and Crump A I R 1921 Bom.

163. I think that it is quite unnecessary for us in the present case to consider the whole question de novo. It is sufficient for us to say that this latest decision is one binding on us in this Court." The learned Judges made a reference to only two cases, viz, 8 Bom. L R 266 and 33 Cal.

173. They, however, did not discuss both these authorities. Rekhab Dass v. Mst. Sheobai and another (A I R 1923 All. 495): This is a typical case in which an obvious in justice was done to the plaintiff. The property belonged to one Kidar Nath, who disappeared in 1907. His widow adopted a son in 1916 when the reversioner of Kidar Nath instituted a suit, challenging this adop tion as invalid. In that case it was definitely found that the only presumption that could be drawn in the case was that Kidar Nath was dead on the date of the institution of the suit (1916), or on the date of the judgment (1918). After the decision of this case, the widow made a second attempt to adopt a son on the 18th of June, 1919. The son in the same year then brought a suit against the reversioners for the possession of the property left by Kidar Nath. This suit was dismissed on appeal by their Lordships of the Allahabad High Court. They followed 34 All.

36. According to this judgment, it appears that their Lordships held that although under section 108 of the Evidence Act, there is a presump tion that a certain person is dead, but this presumption does not go any far and it cannot be said that he shall be presumed to be dead on any particular date. In other words their Lordships have made the presumption under section 108 completely ineffective and obsolete. If some of the Indian authorities which their Lordships purported to follow in this judgment were accept ed, then Kidar Nath should have been presumed to be dead on the institution, or on the conclusion of the previous suit. If that was so, then the adoption in 1919 was perfectly right, and the plaintiff should have succeeded on the basis thereof. Ponduri Adeyya and others v. Jaladi Burreyya and whets (A I R 1923 Mad. 182): The only question which was decided in this case was that the rule of Hindu Law that at least twelve years should elapse before a man unheard of should be considered as dead is only a rule of evidence and is not applicable after the passing of the Evidence Act. No doubt at the end of the judgment, their Lordships did observe that the unheard of person should be presumed to have died on the date of the suit, but this observation seems to be obiter dictum. Lal Chand Marwari v. Mahanti Ramrup Gir and another (A I R 1926 P C 9): This was an appeal against the judgment of the Division Bench of the Patna High Court reported in A I R 1922 Pat.

243. It reversed and overruled this judgment. The property, which was the subject‑matter of this appeal, was endowed property of a math of the Sanyasis and stood in the name of the Mahant for the time being. In the year 1880, or shortly afterwards, Bhagwan Gir became the Mahant of this math. This Bhagwan Gir, after disposing of the entire property of the math, went away or, pilgrimage some time in March 1892. Three years later, that is, on the 6th of April 1895, Ramrup Gir, the respondent in the case, instituted three suits on the ground that he had succeeded to the gaddi gad was entitled to recover the property which, was illegally sold to the defendant‑appellant. He has based the suit on a specific allegation that the previous Mahant Bhagwan Gir had died in Hardawar on the 27th of April 1892. The trial Court as well as the High Court dismissed Ramrup Gir's suits on the ground that the plaintiff had failed to prove that Bhagwan Gir had as a matter of fact died on the 27th of April 1892. On the 30th of November 1916, Ramrup Gir again started the litigation, gad this time he relied upon the fact that Bhagwan Gir, having not been heard of since 1892, should be presumed to be dead, and since he had succeeded him to the gaddi, he should be granted a decree for the property. The suit was dismissed by the trial Court, but the Patna High Court granted the decree. Their Lordships of the Privy Council restored the decree of the trial Court, but mainly on the ground that the suit was barred by time. Giving the reasons for their judgment, their Lordships wrote as under:‑ "On this footing therefore, the plaintiff's heir would fail. in the absence of evidence of the death of Bhagwan Gir within twelve years before the institution of the suit. But, it is unnecessary in the state of evidence in the 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 Lord ships could not disregard. Hari Har Gir was called as a witness on his behalf. In his evidence‑in‑chief he solemnly deposed that Bhagwan Gir died in his presence at Hardawar 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 Hari Har 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. To their Lordships it seems impossible that such evidence adduced by the plaintiff himself, fatal as it is to his case, can be ignored." Their Lordships further on again observed "But they find it impossible to ignore the consistent attitude of the plaintiff, sup ported now by un-contradicted direct evidence of death and a wealth of concurring testimony to the effect that since Bhagwan Gir abandoned the math in 1892. with Hari Har Gir, he has not been seen or heard of." From the above narration of facts, it would be perfectly clear that the following opinion given by their Lordships was in the nature of obiter dictum. After quoting a passage from an English case, they observed:‑ "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, ft described the period of disappearance as one of not less than seven years." Their Lordships as the judgment would disclose did in fact take into account the presumption which might have been raised in the case earlier than the institution of the suit. In column I of page 11 of the published judgment, it is stated as under:‑ "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 Bhagwan Gir was alive on the 30th of November 1897. What that Court did find, affirming the Subordinate Judge, was that he had not been proved to be dead on the 16th of April 1895. The latest date at which any one 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 Hari Har 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 Hari Har Gir's direct evidence of death and the plaintiff's belief in. its truth the position is that Bhagwan Gir has not been seen or heard of since the year 1895. If so, on the principle set up by the plaintiff, be must be presumed to be dead by the end of 1902. Accordingly these suits which commenced only in 1916 are clearly statute barred as against the defendants." The language which their Lordships used to find that there is presumption under section 108 of the Evidence Act that a certain person died, but there is no presumption that he died at the end of the first seven years, itself, showed that their Lordships were not laying any hard and fast rule. In the Goods of Ganesh Dass Aurora (deceased) Petition for presumption of death decided on 28th June 1926 (A I R 1926 Cal. 1056): Following A I R 1920 Lah. p. 191; his Lordship held as under:‑ "The question for which provision is made in section 108 is whether a man is alive or dead at the time the question is raised; In other words, the presumption of the continuance of' life ceases at the expiration of seven years from the period when the person in question was last heard of. There is no presumption, however, as to the time of his death, and if any one seeks to establish tae precise period at which such person died, he must do so by actual evidence." In my humble view it is entirely inconsistent to say that under section 108 of the Evidence Act the presumption of continuance of life ceases at the expiration of seven years from the period when the person in question was last heard of, and that presump tion can only be availed of from the time when "the question is raised". The point as to when exactly the deceased in that case should be taken to have been dead was, it appears, not in dispute at all. Fateh Ali and others v. Ahmad Din (A I R 1927 Lah. 284): In this case, one Ahmad Din had sold certain property in favour of another Ahmad Din on the 14th September 1907. Sarbiland obtained a decree in 1914, declaring that the sale would not affect his reversionary rights, except to the extent of Rs. 281‑13‑0, upon payment of which Sarbiland would be entitled to get the land upon the death of the vendor. The vendor joined the Army during 1914‑1918 War and has not been since heard of. The suit was brought by the three sons and four grandsons, of Sarbiland for pos session of the land on payment of Rs. 281‑13‑0, on the ground that Ahmad Din vendor had died a year prior to the Institution of the suit. Under the law prevalent in Punjab, the suit by a reversioner for the recovery of the property had to be brought within three years. Mr. Justice Addison, held, following A I R 1926 P C 9 and 40 Bom. 239 that it was for the plaintiff to prove that his suit was within three veers of the death of Ahmad Din which he had failed to do. The relevant dates are not given in the judgment so as to find out whether his Lordship raised the presumption of the death of Ahmad Din on a date at the end of seven years of the disappearance. Mahadeo Singh v. Har Bakhsh Dube (A I R 1928 Oudh 13): The facts of the case were that one Waris Ali was the owner of a grove of trees situated in District Sultanpur. Defendant No. 1 was his wife and defendant No. 2 his minor son. His wife (defendant No. 1) mortgaged the trees in favour of Har Bakhsh Dube. He came into the possession of these trees, but was subse quently dispossessed by some Zamindars of the village against whom he instituted a suit for possession. The two Courts below had decreed the suit, and the defendants had consequently come up on further appeal to tile Oudh Chief Court. Min. Justice Gokaran Misra, who decided the appeal, came to the conclusion that Waris Ali was not heard of since about eight years. There is no indication, however, in the judgment as to from which period was eight years to commence. There is also no indication as to when was actually the suit brought. There is, thus, n. material from which it could be found whether the date of the mortgage, i.e., the 22nd of September 1924, was covered by tile period of seven years or not. His Lord ship, however, basing his decision on A I R 1926 P C 9, held that ''when the Court has to determine the point whether a particular person ought to be presumed s dead on the ground that he has not been heard of for more than seven years, there can be no presumption that he was dead at a particular time. The utmost that can be considered is that he was dead at the time the suit was brought." His Lordships consequently found that Waris Ad could not be said to be dead on the 22nd of September 192.1, but he certainly would be presumed to be dead on the date of the institution of the suit. Having found thus, he held that the mortgage, which was executed at the time when the mortgagor had no interest, would be valid under section 43 of the Transfer of Property Act, after the mortgagor had acquired an interest in the property. This case, as would be obvious from the above discussion, is of very little assistance to decide the point under consideration. Jageshar Singh v. Mahadeo Singh and others (115 I C 626): In this case, the property belonged to two persons namely, Pabaru and Jagdeo. The latter died without a widow and an issue. The former, however, left a widow by the name of Ms t. Uraiha, who disappeared and was not heard of since 1885 or 1886. On the 23rd of February 1915, Gaudam Singh gifted the property in favour of Mahadeo Singh and others. Jageshar Singh instituted a suit for the possession of the property on several grounds. The ground which alone was taken up and argued before their Lord ships of the Allahahad High Court was that when Gaudam Singh gifted the property In favour of the defendants, he had only spes successionis, and the gift was, therefore, invalid in law. Without quoting any authority, their Lordships held that the presumption under the circumstances was that Mst. Uraiha was dead when the dispute arose. They further held that "in the absence of any positive evidence on either side the case must be disposed of on the basis of burden of proof only. It was the plaintiff who had come to the Court, claiming possession of the property by avoidance of the deed of gift executed by Gaudam Singh. He cannot dispossess the defendants without establishing his own title. He cannot succeed to the property without getting rid of the gift executed by his uncle, who alone admittedly succeeded to the estate. He can only avoid it by showing that at the time when Gaudam Singh made the gift he had not succeeded to the estate but had only spes successionis. To establish such a case he must establish that Mst. Uraiha was alive on the 23rd February 1915 and died after wards. The burden of proving this lies upon him which he has failed to discharge." In this case, 23rd of February 1915, fell after the expiry of seven years from the date of the disappearance of Mst. Uraiha. On this date, therefore, even if the application of section 108 of the Evidence Act is attracted, still, the property had vested in Gaudam, and he was perfectly within his right to geft it to whomsoever he liked. I am, however, not quite in agreement with the observation of their Lordships, which under the circumstances, was quite unneces sary, that in the absence of any positive evidence on either side, the question of the death or otherwise of a person should be disposed of on the basis of burden of proof only. In my humble view, this burden is discharged by asking the Court to raise a presumption on the material date under section 108 of the Evidence Act. Gridri Singh and another v. Jangi Singh (124 I C 25): His Lordship Mr. Justice Dalal, who heard this case, found on the basis of 34 All. 36 and A I R 1923 Bom. 163 that "In consider ing the question or presumption both the subordinate Courts missed the very important point that the only presumption they entitled to draw by the fact Mahadeo not having been heard of for 15 or 16 years prior to the institution of the suit by those who would be likely to hear of him had he been alive was that he was dead on the date of the institution of the suit. There could be no presump tion whether he died a day prior to the institution of the suit, or whether he died 15 or 16 years previously, the beginning of the period during which he has not been heard of." The case was remanded for a decision whether the person who was not heard of had been proved to have been dead on the 11th of February 1927, when Kumar executed a sale deed in favour of the plaintiff. The two cases referred to in the above judgment have already been discussed. Punjab and others v. Nathu and others (A I R 1931 Lah. 582): In this case the property involved was the ancestral property of Godhu, who mortgaged it in favour of Nathu etc. On a suit hav ing been brought by his reversioners, it was ordered that this mort gage would not affect their rights, and that they would be entitled to redeem the property from the mortgagees on payment of Rs. 81 on the death of Godhu. This Godhu went away to Basra and was unheard of since 1916. In 1918, the reversioners instituted a suit, alleging that Godhu bad died, and they were entitled to receive the property. This suit was dismissed, because it was held that it was not proved that Godhu had died, and no presumption of his death could arise in the case. In 1924; the reversioners brought another suit for the same purpose. This suit was also dismissed on the 9th of March 1926, on the ground that the plaintiffs had failed to prove that. Godhu was unheard of since more than seven years. This decision was understandable, because if Godhu had gone to Basra and was not heard of since 1916, then, the statutory period of seven years was complete in 1924. Any way, on the 6th of August 1926, the reversioners bought a third suit. This was decreed by the trial Court but on appeal, it was dismissed by the Additional District Judge, on, the ground that the plaintiffs had failed to prove that their suit was within three years of the death of Godhu. On further appeal it came up before a' Division Bench who referred the question to the Full Bench. Delivering the judgment, of the Full Bench, Mr. Justice Broad way considered several authorities, but basing his judgment' mainly on A I R 1926 P C 9, held that "section 108 of the Evidence Act only raises a presumption that on the date of the suit the person concerned was dead and does not raise any presump tion as to the date of his death, that like any other fact, being a matter of proof." Hit Lordship overruled A I R 1920 Lah. 191 because the view taken therein was opposed to the pronouncements of their Lordships of the Judicial Committee in A I R 1926 P C

9. The injustice which has been done in this case does not hand in need of further explanation. 'The rightful owners of the property, who stepped into the shows of the mortgagor, lost their previous suits, because they were unable to Prove that Godhu was dead. They lost their third suit because they were unable to prove that Godhu was dead within three years of the institution of the suit. The result of the decision of the Full Bench was that the people, who entered into possession of the property as mortgagees, by un realistic interpretation of law became the owners thereof. This is a typical example where we accept certain generalisation as axiomatic simply because there is some authority behind and we refuse to think for ourselves, and even if we do think, we do so without clarity and logic. Mst. Tirathpati and another v. Ranjit Singh and others (A I R 1931 Oudh 40): The question about the disappearance of Siripat Singh had only arisen incidentally. The property belonged to one Bhagwat Singh who died some time in September or October 1928, leaving behind Mst. Tirathpati (defendant No. 1) as his daughter. Bhup Cband Singh (defendant No. 2) was Tirathpati's son. Bhagwat Singh's reversioners instituted a suit for declaration that they were the owners of the property left by Bhagwat Singh, mainly on the ground that under custom, it is they who should succeed him, and not his daughter, or his daughter's :Children. The defendants, while contesting the suit, on other grounds, incidentally raised an objection that there was one Siripat Singh and nearer reversioner of Bhagwat Singh then the plaintiffs who would be entitled to the property in preference to the plaintiffs. It was admitted that this Siripat Singh was not beard of during the last forty years. Their Lordships consequently presumed under section 108 of the Evidence‑Act‑that he was dead, and that the burden of proving that he was alive would shift to the defendants. The question as to when should it be presumed that he was dead was not material for the decision of the case at all. Jhangi Singh v. Gudi Singh and another (A I R 1932 All. 365): In this case, the property belonged to one Sukh Dev Singh who died in 1924. Three persons, namely, Ram Kumar Singh, Umrao Singh and Suba Ram Singh, succeeded to the property. On the 11th of February 1927, Jhangi Singh bought the share of Ram Kumar Singh, and fortified by this sale, instituted a suit to recover the pos session thereof. The defendants contested the suit by saying that no part of Sukh Dev's property devolved upon Ram Kumar Singh, because at the time of Sukh Dev Singh's death, his brother, 'Mahadeo was alive. Their Lordships of the Allahabad High Court held that Mahadeo Singh was not heard of for a number of years. This number of years has not been given in the judgment, nor is it said from what particular date was Mahadeo Singh unheard of. Their Lordships further observed in the judgment that "the question was as to whether Mahedeo Singh was dead on the 11th of February 1927, when Ram Kumar Singh executed the sale -deed of the one‑third of the property in favour of the plaintiff: They held that under section 108 of the Evidence Act, where the question in issue between the parties is, as to whether a particular person is alive or dead, and it is proved that the said person has not been heard of for a period of more than seven years by persons who are likely to bear of him, the onus of establishing that that person is alive is on the person who affirms it. There can be no presumption that the said person was dead at a particular time and where in order to succeed in a suit it is necessary for a person to establish that a particular person was dead at a particular time, he has to prove: the factum of his death at the said time by affir mative‑evidence, either direct‑or‑‑circumstantial." No authority has been quoted in this judgment. The learned Judges also did not examine the point if on the 11th of February 1927; the presumption under section 108 of the Evidence Act was available to the plaintiff or not, and if not, whether on the date of the institution of the suit. Mahadeo could be presumed to be dead or not, and if he was presumed to be dead, then whether Ram Kumar Singh inherited any of the property of Sukh Dev Singh, and if he did so, whether the plaintiff would still be not entitled to claim Ram Kumar Singh's share under section 43 of the Transfer of property Act. Mehr Khan and another v. Sakhi Muhammad and others (A I R 1932 Lah. 45): Here, the property was the ancestral property of Mehtab Din, who was enlisted as a soldier, but then deserted with the result that his property was forfeited to the Government and sold at a public auction. It was purchased by one Sakhi Muhammad, and mutation to that effect was sanctioned in his favour on 3rd March 1923. On the 4th May 1929, the suit was brought by Mehr Khan and others, the plaintiffs, for the possession of the property, on the ground that the property, being ancestral, the life interest of Mehtab Din alone could be auctioned and shall be presumed to have been purchased by Sakhi Muhammad. The suit was dismissed on the ground that under Article 144 of the Limitation Act, the plaintiff: has failed to prove that Mehtab Din, had died within twelve years of the institution of the suit. This decision of Bhide J. strikes me not a little remarkable. It was found by him that Mehtab Din was unheard of since 1915, and if that was the case; he could not have been presumed to be dead in 1915. This presumption could only arise after the expiry of seven years, that is some time in 1922. If the time, was to be reckoned from that date, then, the suit was obviously within time. If, however, the presumption of death was raised or the date when the suit was instituted, then the question of the suit being barred by time did not at all arise. The learned Judge purported to follow 38 P. R. 1918. With all respect to his Lordship he does not stem to have properly appreciated that authority. The gist of the order passed by his Lordship is that while Mehtab Din shall be presumed to be dead, he could not be presumed to be dead on any particular date‑a finding completely untenable and un-understandable. Ram Kali and others v. Narain Singh (149 I C 632): In this case, the property belonged to two brothers, namely, Harpal Singh and Ram Lal Sings. The former died on 29th March 1920, after making a will in favour of his widow Ram Kali, and one other person, namely, Bishu Nath Singh. The plaintiff, claiming to be a reversioner of Ram Lal Sings, instituted a suit for the possession of half of the property on the allegation that Ram Lal Sings, being not heard of for more than seven years, should be presumed to be dead on the date of the institution of the suit. The following question was referred to the Full Bench:‑ "Is there any presumption of law, in the circumstances of this case, that Ram Lal Sings, whose estate is in dispute, died on the date of the suit?" The Full Bench, after considering the following cases, answered the question in the negative:‑‑ AIR 1926 P C 9; AIR 1928 Oudh 13; 23 Bom. 296; 34 All. 36; A I R 1923 All. 495; A I R 19.32 All. 365; 1926 Cal. 1056; A I R 1923 Bom. 163; 37 Mad. 440; A I 8 1931 Lah. 582; 46 I C 808; 57 1 C

526. Their Lordships also discussed some of the English cases and 1948 I C 781 as well as A I R 1927 Nag.

104. In the former case, it was held that where a Hindu widow claimed possession of the property on the ground that her husband survived his brother for a short time, it was for the widow to prove this fact affirmatively, and there was no presumption that the plaintiff's husband did in actual fact survive his brother. Their Lordships of Oudh Chief Court in the judgment under discussion, observed that before the plaintiff succeeded in proving himself to be the nearest reversionary heir, he had to prove in consequence that Harpal Singe; and after him Kashi Din, Singh, and after him Pehlwan Singh, and after him Sheo Ghulam Singh and after hint Kali Singh, pre‑deceased Ram Lal. Their Lordships held that this the plaintiff had failed to prove. Bishnu Shah v. Sheo Govind and others (A I R 1935 Oudh 448): This case was decided by a Single Judge. Madari was the owner: of the property in dispute in this case. He had mortgaged it on the 9th of November 1872, in favour of one Faqirey Rai. On the 17th of March 1906, the widow of Madari by the name of Mst. Janhi, who was in possession of the house, executed a sale‑deed of the mortgaged property in favour of one Salig Ram, who was Madari's nearest rever sioner. This Salig Ram transferred his rights to the plaintiff on the 4th of October 1915. The plaintiff brought a suit for the re demption of the mortgage which was dismissed on the ground that the plaintiff had failed to prove that on the 17th of March 1906, when Mst. Janki transferred the house in favour of Salig Ram, her husband, Madari, was dead. This judgment, like some of the previous judgments, is certainly most remarkable in its results. The person, who was the mortgagee of the property, had been given full title to it and the rightful owners prevented to redeem the, mortgage. Even if Madari could not be presumed to be dead on the day when lust. Janki executed the sale‑deed, still Madari was not heard of for a period of fifty years on the date the suit was instituted, and he could safely be presumed to be dead at least on that date, even if those authorities were to be followed by the learned Judge who held that such a presumption could only arise on the date when the question is raised. Under no circumstances, could the plaintiff's suit for the redemption of the property be dismissed. It will be noticed that the learned Judge has not discussed any case‑ law at all in this judgment. Illahi Bakhsh v. The Secretary of State for India (165 I C 586): The property involved in this case belonged to one Imam Bakhsh, who had two sons, Khuda Bakhsh and Illahi Bakhsh. The former was charged for murder and, he, therefore, absconded in 1916. Imam Bakhsh died in 1927. The share which Khuda Bakhsh inherited from his father Imam Bakhsh, was put to auction by the Government under sections 87 and 88 of the Criminal P. C. Illahi Bakhsh instituted a suit for declaration that he was the sole heir of Imam Bakhsh, Khuda Bakhsh having pre‑deceased the latter. Their Lordships found that no evidence worth the name had been produced to show that Khuda Bakhsh was unheard of for the last seven years. It was admitted that Khuda Bakhsh had a married daughter who would certainly be the person who would naturally have heard of him if he had been alive, but she hail not been put into the witness‑box. It consequently followed that the persons who mattered under section 168 of the Evidence Act were not produced to show that Khuda Bakhsh was not heard of by them during the last seven years. On evidence, therefore, the plaintiff's case was found as having not been proved. In face of this decision it was completely obiter dicta for the learned Judges to have refer red to A I R 1926 P C 9 and observed that there was no presump tion that Khuda Bakhsh died at the end of the first seven years, or at any particular date, and that it was the duty of the plaintiff to prove Khuda Bakhsh's death. Vithabai Dattu Panar and others v. Malhar Shankar Kulkarni (A I R 1938 Bom. 228) Two brothers, Ram Chandra and Laxaman, were the owners of the property involved in this appeal. On the death of Ram Chandra, and Laxaman, the latter's widow, and after her, Mst. Bhagubai, the widow o: Ram Chandra, came into possession of this property as the widow of Gotra ja Sapinda. This lady transferred the whole of the property in favour of her daughter from her previous husband. Bhagubai" however, disappeared some time in 1921 or 1922 and was not heard of by the persons who would have in the ordinary course of nature heard of her if she had been alive. One Shankar became entitled to the estate as the nearest heir of Laxaman. He sold the property in favour of the plaintiff on the 1st of May 1929. The plaintiff instituted a suit on the 4th of April 1930. Their Lordships reviewed A I R 1926 P C 9; 57 I C 525; 39 Mad. 554; 34 Bom. 165; and A I R 1935 All. 244 and arrived at the conclusion that when the Court has to determine the death of a person who has not been heard of for a period of more than seven years, there was no presumption that he died at the end of first seven years. According to them, the presumption was that Bhagabai was dead at the date of the suit, and not at the date of the sale, as the learned Subordinate Judge had held. The learned Judges, how ever, applying section 43 of the Transfer of Property Act to the case, hold that defendant No. 2's interest which accrued on the date of the suit, passed to the plaintiff: who could evict any person in possession without title. This finding of the learned Judges makes the earlier observation as obiter dicta. Wali Muhammad v. Gaman (A I R 1944 Pesh. 29): This is a case decided by a Single Judge. The facts were that the property belonged to one Dosa, who disappeared some time in 1922. He had a sister by the name of Mst. Hayat Nur, who died on the 20th of October 1941. Her children instituted a suit for the possession of the property of Dosa against Gaman, who was Dow's third cousin. The learned Judge held, after referring to 57 I C 525; A, I. R. 1920 Bom. 85; 81 I C 449; A I R 1923 Bom. 163; 124 a C 25; I C 474 and 34 All. 36 "that where there is a dispute in a suit to the date of the death of a person from whom his relation have not heard for a period of over seven years, it shall first be for the person who alleges a particular date to prove that date affirmatively, but if no one cat, prove any specific date then the Court shall draw a presumption that he was dead on the date of the institution of the suit." The learned Judge in this particular case held that "Doss must, therefore, be presumed to have died on the date of the insti tution of this suit; viz , 15th March 1943." What the learned Judge meant was that Dosa was, therefore, to be presumed to be goad on the date of the institution of the, suit. His Lordship, however, has not given any: cogent reason why should Dosa be not presumed to be dead on the date when Hayat Nur had died, because he was unheard of by the people who would have heard of him in the ordinary course of nature since more than seven years. With all respect, I am unable to follow the opinion expresses is this judgment. Mst. Harnam Kaur v. Ratna (A I R 1949 East Pb. 267): In this case, the property belonged to two brothers Karam Singh and Dipa. The latter died leaving behind a widow Mst. Atri and a son and a. daughter by the name of Chanda and Chandni respectively. Chanda died in June 1908, and the property was possessed by Mst. Atri, who died in 1948, after making a gift of the property in favour of her daughter's daughter, Mst. Harnam Kaur and one other person. On the 21st of April 1944, Ratna instituted a suit for the possession of the entire property, and inter alit the question was with regard to the property held by Karam Singh. He was not heard of for many years. The exact number of years has not been given id the judgment. His Lordship, however, recorded the following order:‑ "Coming now to the plaintiff's appeal: The finding of the Courts below that Karam Singh has not been heard of for more than seven years and be should consequently be regarded as civilly dead has not been challenged before us. The question is when Karam Singh should be taken to have died. If he died during the life‑time of Dipa his share no doubt devolved upon. Dipa and after him upon Chanda, and as in the case of Dipa's own share, Ratna would succeed to it in preference to Mst. Harnam Kaur. If Karam Singh's death took place after Died we would then have to find out whether it was during Chanda's life time or after, because if former was the case Ratna would supersede plat. Harnam Kaur, but not otherwise. The plaintiff has adduced evidence, and this evidence has been believed bf the Courts below, that Karam Singh has not been heard of for many years. According to section 108, Evidence Act, this only raises the presumption regarding death, but not about the time of death which must be proved by other evidences. In this connection I invite reference to a Bench decision of this Court in R. S. A. 743 of 1947, to which I was a party. It was held in that case that section 108 has nothing to do with the time of death of a person and when a plaintiff comes to Court on the allegation that the person to whose property lie wishes to succeed died on a particular date, it is for him to establish this fact." Proceeding the learned judge remarked that the plaintiff had felled to prove the extent date of death of Karam Singh, and it was conceded b y the learned counsel for Karam Singh, that no evidence on the record to the disappearance of Karam Singh, or his death could be adduced because there was no issue struck on the point. In view of the absence of the material date in the case it can certainly not be said as to whether this judgment has got any bearing on the facts of the present case. However, with all respect I submit that the finding of the learned judge that section 108 of the evidence Act does not reside any presumption about the time of the death of certain person does not command itself to me stall. Ramabai and other. V. Sarsawathi and others (A I R 1953 Trav. Coch. 114): In this case it was admitted by both the parties that one Ragan Vadyer had dies but both the sides were unable to give any satisfactory evidence as to the exact date of his death. Their Lordships held, following A I R 1944 Pesh. 29, 37 I C 103 and a Travancore‑Cochin authority, that under section 108 of the Evidence Act, the safest course would be to hold that Ranga Vadyar died some time after Hari Vadyar's death. They further held that it shall be presumed that he was dead on the date of the suit. The trend of the argument; however, showed that their Lordships were very reluctant in arriving at that conclusion. In any case, if it was admitted that Ranga Vadyar, had died by both the parties, it is doubtful if sections 107 and 108 of the Evidence Act can be said to be applicable to the case. Velayudhan Sarojini plaintiff‑appellant v. Sankaranarayana Sivanandan and others, defendant respondents (A I R 1956 Trav: Coch. 129): The relevant facts of this case were that the parties were Ezhavas governed by the Ezhava Act. Defendant No., 2 was the father who had two sons, defendant No. 1 defendant No. 3 and one Sadasivan. This Sadasivan had married Velayudhan Sarojini, who instituted a suit for the partition of certain property and handing over to her the possession of the property which would have gone to her husband. It was either proved or, admitted that Sadasivan had gone to Singapore on 2‑11‑1115, and, had not been heard of ever since. There were three dates. which were material for the decision of this case; vie., 5‑12‑1115 the date on which Sadasivan's father died, 12‑1‑1120 the date :.on which his grandmother died and 9‑8‑1120 the date on which .partition deed was executed. The case was heard by Govinda Pillai J. and T. K. Joseph J. Both the Judges disagreed and wrote separate judgments. Govinda Pillai J. expressed the view that Sadasivan should be presumed to be dead on the date of the institution of the suit which was 20‑6‑1124. He was of the: view that he should be considered as alive before that date and for that matter on all the three material dates. T. K. Joseph J. however, held that "where a party's case depended upon establishing that a given, person who was presumed to be dead was alive or dead at a particular time within the period of seven years, and there was no evidence at all on the subject, success or failure will depend on whether the party has succeeded in proving the date of death. The plaintiff seeks to recover possession or the properties from the persons is posses sion on the basis of her alleged title, and she has to establish the same by proving that her husband had title to the same, and as she had failed to prove that her husband was alive on the three crucial dates or that he died only later, her Suit must fail. As a result of the difference of opinion between the, two Judges the case was referred to the third judge Koshi C. J. who agreed, after reviewing several authorities, with T. K. Joseph J. It would be seen that alt the three crucial dates were covered by the period of severe Nears immediately after the disappearance of Sadasivan. Under section 107 of the Evidence Act when the question is whether z man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is, dead is on the person who affirms it. On all these three dates, therefore, the presumption would be that Sadasivan was alive. To shift the burden of proof to the other side it was competent to the defendants to prove that Sadasivan was not heard of for seven years prior to the dates given up by those who would naturally have heard of him if be had been alive. This the defendants had not been able to do. In spite of that if their Lordships called upon the plaintiff to prove that Sadasivan was alive on the three crucial dates then with all respect I must say that it was against the express provisions of these two sections. I agree with the learned Chief Justice that if a proviso is attracted to a certain case, then the connecting section has no application, but in the case before him, the proviso had no application at all, because it had not been proved that on the three crucial dates Sadasivan was unheard of for a period of seven years. The only section which, therefore, was applicable was section 107 of the Evidence Act. There is a considerable difference between the two cases, namely, the case, where it is proved that a certain person is dead and the case where it has got to be presumed that a certain person is dead. The law‑governing these two cases must necessarily be different. Sections 107 and 108 of the Evidence Act bas no application to the case where it is proved affirmatively that a certain person is dead and the question only is as to when did he actually die. Even in that case, I would go to the extent of saying that it would be for the person who alleges that he died on a particular date to prove that date, otherwise the ordinary presumption that a person continues to live until proved to be dead must come into play. I with all respect to the three Judges who decided the above case beg to differ with all of them. The last of all I may be permitted to discuss Deshi Rani and another v. Thakur Kishore Singh (A I R 1927 Nag. 104) which has been inadvertently left out of the chronological order. The facts found in the above case were that there were three brothers, alam Singh, Laehhman Singh and Pran Singh. Lachhman Singe was the first to die, leaving behind a widow, Ira jinni. Jalam Singh next died, leaving behind a widow by the name of Baribahu. Pran Singh died in 1872. His widow was Shabjadi Bahu. This lady disappeared in 1870 or 1879 and was not heard of since then. The property somehow or other, of which the last male‑holder was Pran Singh, came into the posses sion of Rajrani and Baribahu probably in their capacities as the widows of the co‑parceners who had pre‑deceased Pran Singh, Rajraoi died it; 1906. Baribahu on the 22nd of August 1917, sold the property in favour of Mst. Deshrani, and another, in con sideration of a mortgage‑debt due under W deed, dated the 7th of February 1908, and a cash‑payment of Rs.

200. Thakur Kishore Singh, who claimed to be a reversioner of Pran Singh, instituted a suit for the possession of the property. He was granted a decree by the two Courts below. On second appeal, it was argued before his Lordship Kinkheda A. J. C. that Baribahu was in adverse possession of the property in suit on the date when she sold the property in favour of the respondent, and, consequently the reversioner was completely out of Court. His Lordship rejected this contention, and held that it cannot by any stretch of imagina tion be said that Baribahu was possessing the property adversely to the real owner. In this connection, an argument was addressed before His Lordship, and it was that Shahjadi Bahu, having disappeared in 1878, the Courts, under the combined operation of sections 107 and 108 of the Evidence Act, should have presumed that she was dead at the end of the period of seven years and the plaintiff's claim, which was brought on the 12th of December 1922, was hopelessly barred by time. The learned Additional Judicial Commissioner found that there was no specific pleading on the point of either actual or presumed death, and that he could not allow the belated contention to prevail at the stage of the second appeal, because it exposed the plaintiff to the brunt of a new attack at the stage of appeal at the instance of an unsuccessful litigant. His Lordship then made a reference to 14 Mad. L J 464, 40 Bom. 23S; 33 I C 484; 39, I C 21; 34 All. 36; 37 Cal. 103; 37 Mad. 440; A I R 1921 All. 175; A I R 1923 Bom. 163 and A I R 1926 P C 9, and observed that when the question is not merely one of death, but merely of death at a particular time, there is no presumption as to the time, but the party concerned to make out death on a specified date, must prove it by evidence. His Lordship further opined that since the defendant depended upon the plea of adverse possession for their success, it was necessary for them to allege and to prove that Mst. Shahjadi Bahu died in a particular year. Not having done so, they are not entitled to ask him to make even the limited pre sumption that she was dead at the time when the question was raised much less to presume that her death took place more than twelve years before the institution of the suit. The analysis of the case‑law as given above would show that at different times the different High Courts have been holding different views:‑ (1) Some of the, High Courts have held that when in order to succeed in a suit it is necessary for a person to establish that a particular person was dead at a particular time, he bas to prove the factum of death at the snit; time by affirmative evidence, and that there is no presumption that a certain person died at the end of the first seven years, or at any particular time. It has been held by them that the person can neither rely on the one hand on the presumption of death, nor on the other, on the presumption of the continuance of life. As I have mentioned above it is a most unrealistic view, and if adopted, might lead to injustice. As for example, if a certain property is owned by A, who has mortgaged or leased it in favour of C, and thereafter dis appears, then his heirs cannot bring a suit at all for the redemption of the mortgaged property, or the ejectment of the lessee, if they are unable to prove affirmatively that was either dead, or he was dead on a particular date alleged by them. It is needless to comment any more on this view, because it is perfectly obvious that this view is absolutely untenable and inadaptable. (2) The second view is that the law raises no presumption as to the time of the death of a certain person who is not heard of by the persons mentioned in section 108 of the Evidence Act for more than seven years. If, therefore, a person has to establish the precise period during those seven years at which such person died, he must do so by evidence, and if that is not possible, then the presumption would be raised that on the date of the institution of the suit, he would be presumed to be dead. This view as has been already explained will also give rise to highly anomalous situations. One can think of several such situations, but one is very glaring, and it is this, that if A, the holder of the property, disappears in 1900, leaving behind two sons, B and C and B dies in 1908, leaving behind a son by the name of E, who institutes a suit in 1909 for a moiety of the property as having inherited it from his father B. Now, if the presumption is raised that A should be presumed to have died on the date of the institution of the suit, then B pre‑deceased A, and, therefore, his son would not be entitled to the property. This is highly anomalous, because in 1908, the statutory period of seven years having expired, the presumption on that day would be that B is dead, and in that case, E would naturally be entitled to the property claimed through his father. It looks not less remarkable that a person who dis appear; in 1900, and if his heirs do not feel the necessity of bringing any suit for a century, he should be presumed to be living for alt these hundred years, and should be taken to be dead hundred years later when a suit in which the question of his life or death is raised, is instituted. In my view, when the legal right depends on the fact and the date of the death of a certain person, then, such fact or date should initially be determined on the evidence produced if, however, such an evidence cannot be produced on account of the fact that the person from whom the right is claimed had disappeared and had not died then it should not be decided by raising a presumption under section 108 of the Evidence Act with reference to the event which is the basis of the action. The question should be solved is the first instance on the burden of proof, out the plaintiff or the defendant should not he deprived of the presumption raised under section 108 of the Evidence Act. In a case where the point of time to which the death has to be referred may be placed indifferently either during the seven years or after the lapse of seven years, (it being not necessary for the plaintiff to show that the person lived during the seven year), there is a presumption after the lapse of the seven years in favour of the death, and it is for it other side to displace the presumption and the party relying on tile presumption is entities to succeed is no evidence is offered by the other side. Under section 10; of the Evidence Act, if it is shown that a person was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. If, however, it is shown that that person was not heard of for a period of seven pears by those who would have naturally heard of him if he had been alive, then the burden of proving that he is alive is shifted to the person who affirms it. The words "when the question is" should not be taken to mean either that "when the question is raised" or "when the question is raised for adjudication." It may as well, be taken that on a giving date, after the expiry of seven years, any time before the institution of the suit, it has to be determined whether a person on that date was living or not, and in my view, in that case the question should be solved in the light of the presumption raised under section 108 of the Evidence Act. If the party is able to prove on that date that the person was not heard of for a period of seven years, then he would be taken to be dead, and It will be for the other side to dislodge this 'presumption. In a nutshell presumption must be raised with reference to the event which is the basis of the action, and not with reference to the date of the .hit. Applying this principle to the facts of the present case, the appeal, in my view, must fail. The facts of the case are that the property, which is the subject‑matter of the suit, originally belonged to one Feroz. He has two wives, one of whom was Mst. Qasim Jan (Defendant 8) from whom he had two daughters, Hussain Jan (Defendant 7) and Mst. Anwar Jan (Plaintiff 4), and four sons, Muhammad Afsar, Shah Zaman, Gauhar Aman (Plaintiffs 1‑3), and Miskin. From the other wife, who is dead, he had a daughter Mst. Plari Jan (Defendant 6), and a son, Latif. This last named son (Latif) died on the 10th of October 1947, leaving behind a widow by the name of .Mat. Khatoon, who is defendant No. 1 in this case. He also left two sons, Nazir and Mir Afzal (defendants 2 and 3) respectively, and a daughter Mst. Sakina (Defendant No. 4). On the 24th of January 1951, mutation No. 189 was attested with regard to " the property of Feroz in the name of his widow, Qasim Jan, his three daughters, Mst. Piari Jan, Hussain Jan, and Anwar Jan, his sons, Miskin, Gauhar Aman, Shah Zaman, and Muhammad Afsar, and his deceased‑son's heirs, Mst. Khatoon Nazir, Mir Afzal and Mst. Sakina, on this Muhammad Afsar, Shah Zaman, Gauhar 'Arran and Mst: Anwar Jan instituted a suit on the 3rd of April 1952, that Feroz who had disappeared some years ago and was not heard of by those who would have heard of him if he had been alive, should be presumed to be dead on the date of the institution of the suit, and on that presumption, Latif, having died on the 10th of October 1947, would be taken to have pre‑deceased his father, and under these circumstances, his heirs under the Muslim Personal Law would be completely excluded from inheriting the property of Feroz by the true sons and daughters. The suit was contested by the heirs of La of inter alia on the ground that Latif did not pre‑decease his father. The other grounds which were taken by the defendants are not argued before me, and, therefore, it is not necessary to take any notice of them any longer. On the question of Feroz's death, the learned Senior Sub‑Judge, following A I R 1944 Pesh. 29 and A I R 1938 Bom. 228, held that Feroz shall be taken to be dead on the date of the institution of the suit, and the plaintiffs were held entitled to get the decree prayed for. The suit was accord ingly decreed with costs. On appeal, the learned District Judge, Hazara set aside the decree of the learned trial Court, and held that it was for the plaintiffs to prove that Latif had pre‑deceased Feroz and that as they have failed to do so, they were ousted. After discussing the evidence, he came to the following conclusion:‑‑‑ "In other words it means, taking into consideration the evidence of the two persons referred to above, that Feroz was admitted to have died long before the institution of the suit and pursuant to such occurrence defendants 1 to 4's predecessor began enjoying a certain share and about which share Muhammad Afsar admitted to have compromised in the civil case. In ‑turn this brings into operation estoppel .by conduct. As a result 1, therefore, set aside the judgment and the decree of the trial Court, and instead dismiss the suit of the plaintiffs with costs throughout." The plaintiffs have come up on farther appeal to this Court. Now, if the view taken in A I R 1944 Pesh. 29 is accepted, then Latif's heirs are completely excluded from inheritance, because Latif would be taken to have pre‑deceased Feroz, who was presumed to be dead only on the date of the institution of the suit, and not on any date prior to it. This would be a most unrealistic view. In my view, it shall be seen whether on the 10th of October 1947, when Latif died, it will be possible to presume under section 108 of the Evidence Act, that Feroz was already dead? If the answer is in the affirmative then, there is no reason why should Latif, and for the matter of that, his heirs, be excluded to inherit Feroz's property. According to Muhammad Afsar, Feroz was unheard of since eight or nine years prior to 29th November 1952, the date on which he was making the statement. According to this statement Feroz went to Madina and was unheard of since November 1944, or November 1945. His witness, Master Ghulam Yousaf, stated that he learnt about the death of Feroz on the day when the Tehsildar attested the inheritance mutation. This date, as ha: already been given, is 24th of January 1951. On this date, what was told to him was that Feroz was unheard of for the last sever or eight years. This part of Master Ghulam Yousaf s statement would certainly be hearsay, but then, it shows that neither the plaintiff's, nor Master Ghulam Yousaf are certain as to since which particular date. Feroz was unheard of. On the other hand, Khadi (D. `W. 1) has appeared in the witness‑box, ant has stated on solemn affirmation that Feroz was unheard of since the last twenty or twenty‑five years. His statement was supported by Muhammad Umar Khan (D. W. 2) and Mahmud (D. W. 3). This evidence seems to be more reliable than the one produced by the plaintiffs. The plaintiffs did not produce any evidence upon the record to show that Feroz was in fact heard of by the persons who would have heard of him if he had been alive during the last twenty or twenty‑five years. In the absence of such an evidence, he would be presumed to be dead on the day when Latif died, because the statutory period of seven years had expired long before that date. The presumption that Feroz died on the date when the suit is instituted, if raised, would complicate the matter to such an extent that it would be very difficult to solve it. In fact, in every case, if it is held that the presumption should be raised on the dare when the suit is instituted, difficult situations are bound to arise. Supposing if after the disappearance of a certain person it is necessary for several persons to institute the suits, and they do so on different dates, tile question would arise if the presumption of death would arise on the institution of the first suit, or differently on the different dates. In either case, the position shall become extremely ridiculous. On the view adopted then the plaintiffs' suit was rightly dismissed by the lower Appellate Court Their further appeal is dismissed, but in view of the difficult and complicated questions involved in the case, I leave the parties to bear their own costs throughout. Orders announced. HABIBULLAH KHAN, J.--‑I agree. A.H. Appeal dismissed.