P L D (Rev (PLP)

FIDA HASSAN, F. C.‑The Commissioner, Rawalpindi, has reported this case for revision of the order dated the 30th April 1953 of the Sub‑Divisional Officer (exercising the appellate powers of Collector) Chakwal, District Jhelum, whereby he upheld the order dated 29th January 1953 of the Assistant Collector II Grade Chakwal. The facts are that Muhammad Azim son of Imam Din, an owner of some land in Chakwal Tehsil, was serving in the Armed Forces, and during the last War he presumably became a prisoner of War in Malaya. Meanwhile, his sister kept on receiving allowance on behalf of her brother from the Army authorities uptil 1951. Eventually, a letter was sent by the 14th Punjab Regimental Centre to her sister stating that as Muhammad Azim had not been recovered and had presumably died, the allowances would be stopped in future. Ahmad Khan etc., collaterals of Muhammad Azim, having been apprised of the letter of the Army authorities, got a mutation of inheritance of Muhammad Azim, recorded by the Patwari on 9th November 1952. During the Inquiry before the Revenue Officer, Mst. Jannat Khatun respondent (sister of Muhammad Azim) contested the mutation on the ground that Muhammad Azim was alive. Her plea prevailed with the Revenue Officer who, while rejecting the mutation, observed that the factum of Muhammad Azim's death had not been satisfactorily proved, and that it was up to the collaterals to go to a Civil Court to obtain a decree in regard to the absentee's death. The collaterals' appeal was rejected by the Collector. The learned Commissioner after hearing the parties, observed $bat a material Irregularity had been committed by the Collector in ignoring the provisions of section 108 of the Evidence Act, whereunder a presumption in regard to the death of a person can be drawn if his whereabouts have not been heard of by those who naturally would have heard of him, for seven years. He has accordingly recommended that the orders of the Collector and the Assistant Collector II Grade may be set aside and the case remand ed with a direction that the mutation should be disposed of by the Revenue Officer after heating the parties. I have heard both the counsel for Mst. Jannat Khatun (respondent) and Ahmad Khan etc. (petitioners). While conceding the legal position, viz that a presumption regarding the death of Muhammad Azim could be made under section 108 of the Evidence Act, the learned counsel for Mst. Jannat Khatan argued that no presumption as to the actual death of the absentee could be made under this law, and thus no mutation of inheritance could be entered. In support of his contention he relied on 931 C 282 wherein it was held that "if a person has not been heard of for a period of not less than seven years, there is a presumption of law that he is dead, but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years, lies upon the person who claims a right to the establishment of which that fact is essential". The learned counsel thus went on to argue that even if the presumption under section 108 of the Indian Evidence Act was drawn against the respondent, the exact date of the death could not be fixed and the Revenue Officers will not be in a position to determine whether Customary or the Shariat Law was applicable to the inheritance (the Shariat Law was enforced 9n the Punjab with effect from March 1948). The learned counsel for the respondent further argued that the matter was one which could only be properly adjudicated upon in a judicial manner, and thus submitted that the case was not one in which interference by the Financial Commissioner on the revision side was called for. He relied, in support of his contention, on 1932 L L T 42 and 1932 L L T

68. Both these rulings were given by Mr. Miles Irving. In the first one it was observed "although in Revenue Officer's cases of a judicial nature between parties the power of interference by the Financial Commissioner is unlimited, yet he will not normally exercise this power unless circumstances are such as would justify revision in Revenue Courts' cases". In the second case, it was laid down that "in a case of disputed succession some entry has to be made. But the enquiry in the mutation proceedings must necessarily be a preliminary and a summary one . . . . . . . . In case of a judicial nature between parties, the Financial Commissioner will not normally interfere on revision except in oircumatances which would justify interference under the Punjab Tenancy Act . . . . . . . . Where the order of the Commissioner passed on further appeal in mutation proceedings is not perverse, the Financial Commis sioner will not interfere with it in the revision". All that the learned counsel for the petitioners had to say was that the learned Collector had obviously misapplied the law in so far that he shifted the onus of proving the death of Muhammnd Azim on the petitioners under section 107 of the Evidence Act instead of presuming his death under section 108 of the Act, as it is common ground that Muhammad Azim had not been heard of by all those who would have naturally heard of him from 1942 onwards. He, therefore, argued that misapplication of law was a material irregularity as defined in section 115, C. P. C. I have carefully considered the whole case. The mare fact that Muhammad Azim's sister continued to receive some allow ance from the Army authorities uptil 1951 although he had not been heard of since 1942, would not, in my view, take away the effect of the provisions of section 108 of the Evidence Act. The Army authorities had definite information that Muhammad Azim was missing since 1942 but it was an act of indulgence on their part to continue the allowance to his sister uptil 1951. Mst. Jannat Khatun failed to produce any writing from his brother for seven years prior to the date of the entering of the mutation, and the collaterals were, therefore, perfectly right in approaching the Patwari to enter a mutation of inheritance presuming the death of Muhammad Azim. I do not see any force in the argument of counsel for the respondent that the petitioners must fix the date of Muhammad Azim's death, and I do not see how the ruling reported as 93 Indian Cases, page 282, would help him in this case. It is true that if the petitioners wanted that the question of inheritance should be decided either under Custom or Shariat Law, the onus of proving the date of the death of Muhammad Azim would lie on them. Similarly, I do not see how the two authorities of the Financial Commissioner relied on by counsel for respondent are at all applicable to this case. The issue involved in the present proceedings before me is a simple one, namely that a person has not been heard of for several years, and this being so, the question of his inheritance has got to be determined. It would clearly be wrong to keep the matter of inheritance indefinitely in cold storage in face of the obvious legal presumption regarding a person's death under section 108 of the Evidence Act. As to who are entitled to succeed to the absentee's estate, or whether the inheritance should be disposed of under the Customary law or Shariat Act, are matters which will be gone into by the Revenue Officer after hearing all the interested parties. For these reasons I allow the petition and set aside the orders of the Cellector and the Assistant Collector 11 Grade and remand the case to the Assistant Collector II Grade through the Collector, for passing fresh orders after hearing all the parties. Parties to bear their own costs. Orders to be communicated. A. H. Petition allowed.