P L D 1961 (W (PLP)

ABDUL AZIG KHAN, J.‑The following pedigree‑table will be helpful in appreciating the facts of this case :‑ Nur Muhammad _________________|________________ | | Allah Yar Muhammad Yar ____________|___________ | | | Namdar Daim Waryam | | | Karim Bakhsh Burkhurdar Lal | | | Roshan | Dulla (deceased) | |______ Mst. Bhagan | __________|____________________ _________ | _____________ | | | | | | Lal Alam Maula Wali Muhammad Din Mst. Sardar (deceased) Khan Dad Dad alias Din Bibi (Respon- Respon- Muhammad (Plaintiff) dent dent (not heard of No. 2) No. 1) for more than Seven years). (died during the pendency of the suit and represented by respondent Nos. 3 to 11).

2. Muhammad Din alias Din Muhammad son of Roshan, caste Bhatti Rajput, resident of Kot Kazi, owned some lands in village Kot Kazi, District Gujranwala, and village Bhagoke, District Sheikhupura. Ire mortgaged some of his lands to Budha Singh, Maula Dad, son of Makhan, and Khair Din. Alam Khan, Maula Dad and Wali Dad, defendants‑respondents, who are brothers and are collaterals of Muhammad Din in the fifth degree, purchased the mortgage rights from Budha Singh in 1940 vide mutation No. 108 sanctioned on the 17th of March 1941 (Exh. P.12). Khair Din sold his mortgage rights to Maula Dad defendant‑respondent in 1931 vide mutation No. 78 sanctioned on the 4th of June 1938 (Exh. P.11). Wali Dad, predecessor‑in- interest of respondents Nos. 3 to 11, purchased mortgage rights from Maula Dad son of Makhan vide mutation No. 103 sanctioned on the 17th of May 1945, (Exh. P.6).

3. Maula Dad defendant‑respondent reported to the Patwari Halqa on the 12th of September 1951 that his collateral Muhammad Din alias Din Muhammad son of Roshan had been unheard of for 1 5/ I 6 years and, therefore, his (Muhammad Din's) lands be mutated in his name and the names of his brothers Alam Khan and Wali Dad, the fifth‑degree collaterals of Muhammad Din, on the basis of the legal presumption of Muhammad Din's death under, section 108 of the Evidence Act. Mst. Sardar Bibi, sister of Muhammad Din, also appeared before the revenue officer and claimed to be an heir of Muhammad Din. Her claim was not accepted and on the 28th of January 1953 the land was mutated in the names of the defendant‑respondents Nos. 1 to 3.

4. On the 13th of July 1953, Mst. Sardar Bibi filed the suit, the subject‑matter of this appeal, for possession of unencumbered land and for a declaration that she be deemed to be the mortgagor of the mortgaged land. She alleged that she was the sister of Muhammad Din who died issueless and had not been heard of for more than seven years and that on the basis of the presumption of his death she was entitled to the aforesaid lands as his heir. Maula Dad, Wali Dad and Alam Khan, the fifth degree collaterals of Muhammad Din, contested the suit. They denied Mst. Sardar Bibi's claim that she was the sister of Muhammad Din and plead ed that they had become owners of the land in question by adverse possession and that the suit was barred by time.

5. The learned trial Judge held that Mst. Sardar Bibi was the sister of Muhammad Din who had not been heard of since more than seven years, and, therefore, a presumption of his death arises under section 108 of the Evidence Act. The learned trial Judge also found that the defendants had failed to establish the plea of adverse possession. He, however, dismissed the suit on the ground that the plaintiff had failed to establish that she had brought the suit within twelve years of the date of Muhammad Din's death.

6. Mst. Sardar Bibi went up in appeal which was dismissed by the learned Additional District Judge by his order dated the 4th of March 1955 holding that the suit was barred by time Mst. Sardar Bibi has come up to this Court in second appeal.

7. In their statements before the issues, the parties stated that they followed custom in matters of succession and inheritance etc. up to the time of the coming into force of the Punjab Muslim Law (Shariat) Application Act, 1948. Under custom sisters and them issues are usually excluded by collaterals. See Paragraph 24 of E JA Rattigan's Digest of Customary Law. Answer to question No. 55 of the Riwaj‑e‑Am for Gujranwala District compiled by Sardar Dalip Singh (Revised Edition) deals with the case of a sister. It would be advantageous to reproduce hereunder the Question and the Answer: --‑ "Question : Does the property ever devolve upon sisters or upon sister's sons? Answer : All tribes‑ Sisters and their sons are in no case emitled to inherit. Among Tehsil Wazirabad tribes and Arains (Tehsil Sharakpur) in default of collaterals up to fourth‑degree, the inheritances" devolves upon daughters and in their default sisters and their sons inherit the estate. Muhammad Din was a Bhatti Rajput, a tribe which, according to the preface of the Riwaj‑i‑Am, was consulted at the time of the compilation of the Riwaj‑i‑Am.

8. The position of a sister amongst the Bhattis of Gujranwala District, under custom, was considered by a Full Bench of the Lahore High Court in Nur Muhammad v. Muhammad Yar (P L D 1951 Lah, 132). It was held that the burden lies on the sister to prove her prefer ential right in comparison with collaterals even in respect of non‑ancestral property. Thus it was for Mst. Sardar Bibi to show that under custom she was an heir of her brother in preference to collaterals. She has led no evidence to this effect. Thus Mst. Sardar Bibi has failed to establish that she is an heir of Muhammad Din under custom.

9. Section 108 of the Evidence Act provides: --‑ "Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who arms it." It is a rule of presumption that, in the absence of evidence to the contrary, a person shall be taken to be dead when he has been absent for seven years and has not been beard of it has to be presumed that he is dead. While dealing with section 108 of the Evidence Act, their Lordships of the Privy Council Lal Chand Marwari v. Mahant Ramrup Gir (AIR 1926 P C 9), held:‑ "Now upon this question there is, their Lordships are satis fied, no difference between the law of India as declared in the Evidence Act and the law of England Rango Balaji v. Mudiyappa I L R 23 Bom. 296 and searching for an explanation of this very persistent hearsay, their Lordships find it in the words in which the rule both in India and in England is usually expressed. These words taken originally from In re: Phene's Trusts L R 5 Ch. 189 run as follows :‑ If a person has not been heard of for 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."

10. In Punjab v. Natha (A I R 1931 Lah. 582), it was held by a Full Bench of the Lahore High Court that section 108 of the Indian Evidence Act raised a presumption that at the institution of the suit a certain person G was dead but no presumption of the date of his death could or did arise under the section and the date of his death had to be proved by the plaintiffs in the same way as any other relevant fact in the case.

11. The counsel for the parties did not rely on the following authorities which may be referred to with advantage. (i) The above proposition was enunciated by a Full Bench of the Allahabad High Court in Maulvi Muhammad Sharif v. Bande Ali 11 I C 474 where it was held that under section 108 of the Evidence Act it may be presumed that a person, who has not been heard of for seven years, is dead, but there is no presump tion as to the time of his death. (ii) In Ram Kali v. Narain Singh 149 I C 632 a Full Bench of the Oudh Chief Court held that if a person has not been heard of for 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. (iii) Again, it was held Mst. Deshrani v. Thakur Kishore Singh A I R 1927 Nag. 104 that when the question is not merely one of death but of death at a particular time there is no presumption under section 108 ‑of the Evidence Act as to the exact time when a particular person died and that the party concerned to make out death on a specific date must prove it by evidence like any other fact in the case.

12. In view of the above authorities, all that can be presumed is that Muhammad Din is dead. It was, however, for Mst. Sarda Bibi to prove that he died after the coming into force of the c Punjab Muslim Personal Law (Shariat) Application Act, 1948, i.e., the 15th March 1958, and, therefore, she was an heir of her brother under Muhammadan Law.

13. In Moolla Cassim Bin Moolla Ahmad v. Moola Abdul Rahim (32 I A 177) the facts of the case were that A, the son of H, a Muslim, disappeared as medicant in 1870 and was not shown to have been either seen or heard of since then. "H" died in 1884; a claim was set up by C, the son of A, to a share in the estate of his grand‑father H, under Muhammadan Law. It was held by their Lord ships of the Privy Council that the onus was upon the son to prove that his father A had survived his grandfather. As already pointed above, Mst. Sardar Bibi has failed to lead evidence to establish that her brother Muhammad Din died after the passing of the Punjab Muslim Personal Law (Shariat) Application Act, 1941, i.e., the 15th of March, 1948. There is no such evidence and, there fore, she cannot succeed in her claim under Muhammadan Law.

14. There is no evidence to show when the cause of action accrued and that the suit has been filed within 12 years from the accrual of the cause of action. The cause of action accrued on the death of Muhammad Din. There is no evidence to show the date on which he died. As already stated, no presumption can be drawn regarding the date of his death. In the circumstances of the case, Mst. Sardar Bibi has failed to establish that she has instituted the suit for the possession of unencumbered land within" 12 years from the date of Muhammad Din's death.

15. As regards the mortgaged land the limitation 'is sixty years. The suit in respect of this land may be in time but Mst. Sardar Bibi can succeed only if she proves that Muhammad Din died after 15th March, 1948, which has not been established.

16. For the reasons given above, we dismiss the, appeal with costs. K. M. A. Appeal dismissed.