1. This is plaintiff's second appeal. The parties' pedigree-table is shown below:- Land comprising 153 kanals 4 marlas belonged to Faqir who has not been heard of since he left his home 40 years ago. He had an uncle, Jamoo, who had two sons Abdullah and Sattar Ali. Plaintiff is the latter's sole survivor. Abdullah is survived by Begum Jee and Zainab, daughters, while Rehmatullah, son and Qasim Noor another daughter are dead, the latter being survived by five children and husband. A mutation was attested on 9-5-1952 in favour of both the parties. 'The plaintiff who was awarded one-sixth brought a declaratory suit in May 1965 seeking to avoid the mutation by claiming exclusive heir ship. The plaint does not disclose the date or year of his death.
2. However, while advancing the plea of defen--dants exclusion by custom, it fixes his death during Dogra Regime. In their written statement the defendants have admitted Faqir's whereabouts being unknown since 40 to 50 years but have sought to exclude the plaintiff by claiming that the latter's grand-father Sattar Ali pre-deceased their father Abdullah.
3. The plaintiff has examined five witnesses, one of whom is 80 years old, another one sixty years, a third 55 and the other two less than forty. They give Faqir's period of disappearance between 40 to 50 years and also say that he has not since been heard of. The defendants have led no evidence.
4. The Courts below having dismissed the suit and the consequent appeal, the plaintiff has now come in second appeal.
5. The law as contained in sections 107 and 108 of the Evidence Act is reproduced below: "107. When the question is whether a man is alive or dead, and it is known that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
108. (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 hart been alive, the burden of proving that he is alive is shifted to the person who affirms it."
6. Section 108 is in the nature of a proviso to section 107 with the result that proof or admission of a man having been alive within the last 30 years would initially raise a presumption of continuous life and shoulder him with the burden of proof who repudiates his existence; should, however, he be able to prove that the man bad not been heard of for at least 7 years by those who would have naturally heard of him if he were alive, the initial presumption of life would be substituted by a new presumption of his being dead.
7. However, this, as it turns out, is unfortunately not the end but the beginning of the baffling problem in such cases. In almost all of them the problem is not to raise the presumption of death but as to whether death can be proved at any particular time. In AIR 1926 P C 9 it was held:-- "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 bad not been heard of for seven years, it described the period of disappearance as one 'of not less than seven years'."
8. It means that whatever the length of time between dis--appearance and the time when the question arises there is no presumption that death took place at the end of the first seven years or that it did not take place before or after. Holding that it was still incumbent on the plaintiff to prove that it took place at a particular time if it was essential for him to prove so in order to succeed in the suit, their Lordships quoted with approval the following passage from Re Phene's Trusts, the leading English case on the point: "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 tire death tools place at any particular time within the seven years, lies upon the person whose claims right to the establishment of which that fact is essential."
9. Their Lordships therefore held that the plaintiff in that case would fail in the absence of evidence of the death of the Mahant within 12 years before the institution of the suit. Their Lordships were also of the opinion that it would be a strict view of the plaintiff's position and thought it unnecessary to proceed in that manner which was possible in the case because there was evidence that the Mahant had died in April 1892 and the plaintiff had admitted it to be true. The suit having been brought in 1916 was therefore on their own admission held to be beyond time.
10. In 23 Bom. 296 the suit was by an adopted son against mortgagees. Question of limitation was not involved but the date of death of the person unheard of was material for granting relief to the plaintiff, who failed because of his failure to do so. Said their Lordships:- "The main question is whether the plaintiff is the son of Shankar. The answer to that question depends upon whether Bala was alive or dead at the date of the adoption . . . . . . If it is necessary to establish the exact date of his death, he, upon whom the onus of establishing that date is cast, must establish it or otherwise he must fail."
11. In AIR 1916 Bom. 300, AIR 1927 Lab. 287 and AIR 1931 Lah. 582 reversioners brought suits for possession of lands, either sold or mortgaged, by persons who latter were unheard of. Question of limitation was involved; the Courts held that as date of death was riot proved, the plaintiffs had failed to discharge the burden of proof by showing that they had brought action in time. The Courts further held that there was no presumption that the man so unheard of, had died at any particular time.
12. In AIR 1914 Mad. 505 the plaintiff's father-in-law died within seven years of her husband's being unheard of. She claimed the family house on the ground that her husband be presumed to have lived for seven years and as such she inherited the house through him. The contention was rejected. It was held that there was no presumption that he was alive for seven years which means that he did not, as a matter of fact, die during the seven years period.
13. On the other hand a case is cited in the Halsbury's Laws of England (page 503) where a man of infirm health proceeded abroad; his father died two years latter and it seems to have been presumed, perhaps in view of the son's delicate health, that he pre-deceased his father.
14. This shows that the Court can make an inference of deaths even before seven years if the evidence warrants such a finding. It can be done if he was suffering from some serious disease; if it is proved that the train, ship or plane he was travelling by, met an accident, resulting in deaths; in succession certificate cases, the heirs may get the money perhaps earlier than seven years on their furnishing security to deposit it back in case of his appearance.
15. There are certain cases which have interpreted section 108 differently. Let me discuss them briefly.
16. In I L R 33 Cal. 173 a grandson's claim to property was rejected on the ground of his father, who had left home and was unheard of since 1870, having been presumed dead before January 1884 when the grandfather died. It seems that pre--sumption of death was availed of on the expiry of seven years. In view of the interpretation of the words 'for seven years' by their Lordships in AIR 1925 P C 9, this ruling seems to have lost its force.
17. In AIR 1920 Lab. 191 landlords entered into possession after the death of a widow. Plaintiffs clamed it as Bandhus of the last male-holder. The widow was said to have died in May 1902 while the suit was brought on 5th May 1914. There was no exact date of her death. Obviously if she had died before 4th May the suit was time-barred. Their Lordships held that the onus of proving her death before 5th May, lay on the defendants. In view of the P. C. Ruling cited above and the consensus of opinion, this ruling cannot be followed. However, it may be said that if the issue is whether the suit was within time, the onus is on the plaintiff but if it is whether the defendants are in adverse possession, the burden of proof does rest on them.
18. In AIR 1944 Pesh. 29 a mortgagor was unheard of since 1922. His sister died considerably latter. Her heirs sued for possession but failed because the learned Judge held that the mortgagor shall be presumed to have died on the date of the institution of the suit and his sister having died earlier, her heirs were not entitled to inherit It. The learned Judge says: "The ratio decidendi of these authorities may be briefly stated as follows: Where there is a dispute in a suit as to the date of death of a person from whom his relations have not heard for more than seven years, it shall first be for the person who alleges a particular date to prove that date affirmatively but if no one can prove a specific date, then the Court shall draw a presumption that he was dead on the date of the institution of the suit. I find myself in perfect agreement with the view of the Bombay and Allahabad High Courts . . . . . . Dosa must therefore be presumed to have died on the date of the institution of the suit."
19. There is no doubt that the authorities referred to by the learned Judge and several others have laid down that where no particular date of death is proved, the person concerned shall be presumed to be dead on the date of institution of the suit but the presumption of being dead is something clearly different from the presumption that he died on that date. With great respect for the learned Judge, it seems to me that there is no such presumption available under section 108. A plain reading of the section itself shows that what was intended was only to remove the uncertainty hanging over the fictional cavil life of such a person by providing a limited opening for solution of problems that his disappearance had created by presuming him to be civilly dead. The sections were enacted not only to meet a universal need but also to bring the law on the subject in line with the corresponding state of law in England. Although C missing persons seldom reappear, the fixing of seven years seems to be a compromise between the dictates of reality and the Roman concept embodied in the maxim: De morte hominis nulla est conctatio longa, meaning; that no delay is long concerning the death of a man. In the sub-continent itself under Hindu law a period of 12 years is required for a presumption of death while in case of Hanafi Muslims the presumption of life continues up to the age of ninety years. It was perhaps to provide a uniform rule--incidentally consistent with English practice-that the sections were enacted.
20. This case was not followed in PLD 1957 Pesh. 1 which went further ahead and laid down that the presumption of death was available immediately from the date the 7 years came to an end. A contrary view was taken in PLD 1968 Posh. 172 which has followed the general trend of authority though the 1957 ruling seems not to have been brought to the notice of the learned Judge.
21. In the 1957 case one Latif died in 1947. His father who had two wives was unheard of since 20 years or so. After a mutation was sanctioned in favour of all in 1951, step-brothers and sisters of Latif brought a suit seeking to deprive Latif's heirs of property on the strength of AIR 194 Posh. 29.
22. Plaintiff's appeal was dismissed by the D. B. Justice Shall has made the most exhaustive examination of case-law on the point. Disagreeing with the interpretation of section 108 given by various High Courts and treating the P. C. Ruling as obiter dicta, his Lordship said:- "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 deference 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 all. Its application 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."
23. The main arguments advanced by him in adopting such a view are that the contrary interpretation amounts to expecting him to do an impossible task and also because it results some times in defeating natural justice, equity and good conscience. The date of death is by the very nature of the case impossible to prove. Absence of the knowledge of such a date or factual ignorance of such death is the foundation of sections 107 and 108. By insisting on the impossible, the litigants are apt to create false evidence. It is no use evading the truth, bitter though it may be. Let us in all humility face it. Even at rightful claimant of such property, sister, daughter, brother etc. Have to resort to falsehood to establish their legitimate rights.
24. It is in conflict with the general principle of lair embodied in the following Latin maxim: Impossibilium nulla obligatio, est: there is no obligation to do impossible things and impotentia excusat legem: inability is an excuse in law.
25. Thus if law does not require and very rightly so, any person to do an impossible thing; then to deprive any natural heir of property for failure to perform an impossible task, does not look reasonable. In some hard cases it ma even shock one's conscience but then it is not for the Judge to make law reasonable. While a Judge would naturally d his very utmost to find a way out of the difficulties that obstruct him from doing justice, nevertheless, he has his own limitation.
26. Therefore, while I am in respectful agreement with his Lordship that the judicial interpretation of section 108 has resulted in an unhappy position, that however, in my humble opinion, provides no justification for rejecting the consensus of judicial opinion now consistently held for a century.
27. Judges, I believe, are supposed to be conservatives whose sublime duty is to preserve and not to destroy; be they the rights of the citizens or the course of law. That is why it has been repeatedly emphasised that the function of the Judge is to administer the law and not to make it as embodied in the Latin maxim:Judicis est jus discere, non dare meaning that it is not the function of a Judge to make law but to administer it.
28. The words 'when the question is' have to be read in the context they have been used. Evidence Act governs production of evidence, the burden of proof etc. In relation to proceedings. In the Courts. It has no independent existence outside such proceedings. Therefore, the words "when the question Is" cannot mean anything more than the cropping up of the said question in a judicial proceeding which can at the most be stretched to the date of institution of the suit, the presumption become available on that date.
29. The Evidence Act was drafted by Sir James Fitzjames Stephen an eminent English jurist and is based mainly on Taylor'; Work on Evidence. Taylor as quoted by Mahmood, J. States the English law on the subject as follows:- "In such case, after the lapse of seven years, the presumption of life ceases and the burden of proof is devolved on the other party. This period was inserted, upon great deliberation, in the statutes respecting bigamy, and the statute concerning 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 gears 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 continuance of life." (8 All. 614).
30. Phipson says:- "It trust be noted that the presumption is only as to the fact of death, not as to the time of death, so that if it leas to be established that was alive or dead on a particular day during the seven years period, that fact will have to be proved by evidence, aided by any presumption of fact which the jury may see fit to act on. The presumption of death occurred at any time during the seven years, nor is there any presumption of law that life continued for any part of the seven years period.
31. Strictly, according to the leading case on the subject-Re Phene's `trusts---the presumption only operates to establish that is the elate of are actions in which the death is called in question, seven years or more have elapses' without news, A is dead at that date, i.e., the date of action.
32. Accordingly ft is impossible to use this presumption to prove that A was dead in, say 1950, even of he has rent been heard of since 1943. This inconvenience has caused the strict rule to be departed from in some eases to allow presumption ref death at any given date if seven years` absence before that is shown:' (Page 232).
33. Halsbury's Laws of England dealing with the subject and based on several authorities says:- "With regard to human life, there is no presumption of life by which the fact that a particular person was alive given date can be established. It being in every cage a question of fact for the jury, or Judge sitting as such. As to death, on the other hand, there exists an important presumption, for if it is proved that fair a period of seven years no news of a person has been received by those who would have naturally heard of him if he were alive and that such inquiries and searches as the circumstances naturally suggest have been made, there arises a legal presumption that he is dead. There is no legal presumption, however, either that he died at any particular point of time during the seven years. And if it be necessary to establish that a person, who, after the lapse of seven years, is presumed to be dead, died at any particular date within that period, this must be proved as a fact by evidence raising that inference, e.g., that when last heard of he was fn bad health, or exposed to unusual perils, or had failed to apply fare a periodical payment upon which he was dependent for support. While, where a party's case depends on establishing that a given person, who is presumed to be dead, was alive or dead at a particular time within the seven years' period, and there is no evidence at all ore She subject, success or failure will depend on the incidence o the burden of proof." (Page 503).
34. It appears from a perusal of AIR 1914 Mad. 505 relying upon a passage from Lawson on Presumptive evidence that its America there is a presumption that a man was Mire until the expiration of the period of seven years from the time that he was last head of. This simplifies the matter considerably but this is not the law in India on the point.
35. If the man is presumed alive until the expiry of 7 years, some problems may still arise but this would be a great improvement on the existing state of law, and the problem arising out of section 108 could partly be solved. In such a case the Limitation Act which by its very nature is incon--sistent with good conscience and morality, may not generally rte employed to defeat right and justice though the defendant would still be able to plead that the man died before the stipulated period of 7 years but then the burden of proving tt c impossible will shift to him-instead of the rightful claimant.
36. The English decisions cited by Taylor, Phipson and Halsbury apparently seem to create the impression that death is to be presumed 7 years after the man was last heard of but probably in all these cases the period of disappearance, when the action was brought was not as great as we have in the present case That the length of period intervening between the disappearance and the time when the question arises makes no difference so far as presumption under section 108 is concerned, so long as it is more than 7 years, and the presumption would still for the first time be available only on the institution of the suit, no matter how many seven years had intervened between the disappearance and such institution, was made amply clear in AIR 1926 P C 9.
37. The result of the above discussion is that the plaintiff in order to succeed in his claim to the whole property had to prove, apart from the death ref Faqir, also that Abdullah predeceased Faqir, while the latter predeceased his own grandfather Sattar Ali. Having failed to do so, those who inherit through Abdullah cannot be disinherited lay tire plaintiff because the burden of proof was on hint.
38. Even if he had led evidence about the dates of death of Abdullah and Sattar Ali and proved that the former had predeceased the latter, the result would have beer clue same because unless it was also proved that Faqir died --after the death of Abdullah, and before that of Sattar Ali, the heirs or Abdullah would not be eliminated. Again, even if it had been proved that Faqir died after Abdullah's and Sattar Ali---s deaths, the plaintiff had yet to prove that he died after Rehmatullah so as to be entitled to the entire property.
39. The property is in possession of the plaintiff. He claims possession ever since disappearance of Faqir which has not teen challenged by the defendants. Their case was that Sattar Ali predeceased Abdullah and on that basis claimed the whole property. They have led no evidence to support such a claim.
40. A witness for the plaintiff has stated that six years back he heard that Faqir was in Satara (Poona) but this statement has to be rejected because apart frown being inadmissible as hearsay evidence, even the source of such information has not been disclosed. Even the plaintiff who could be the sole beneficiary under it, has not said so in his statement and in fact it is totally contrary to his own stand.
41. Now there is a presumption that Faqir is dead but there is no presumption as to when he died.
42. There is no evidence about his date of death and even no such evidence from which the date or year of his death could at least be inferred. As there is no evidence that he died either after Abdullah's death while plaintiff's grandfather was alive or after Rehmatullah's death, the benefit of the absence of proof will go to the defendants.
43. The problem now is that although there is no evidence on the basis of which defendants could be disinherited, the question still remains of the parties' respective rights to the property. Having failed to lay his claim to the whole property, ran the plaintiff still get a part of it? Section 108, Evidence Act does not stand in his way because, as already stated, it only pronounces by presumption that a man not heard of for not less than 7 years, should be treated as being dead.
44. In my opinion this is a case in which the plaintiff cannot be deprived of a share of the property in any case because of the failure of Abdullah's male line of descent. While on the one hand the plaintiff has failed to prove the date or death of Faqir, at the same time we have to presume him to be dead. If there had been a male-descendant of Abdullah, the plaintiff would have been non- suited but not so in the present case. The death of Faqir may have taken place at any time after he left for Lahore. The worst that could happen to the plaintiff's rights to the property, would have been if Faqir had died after that oaf Sattar Ali but before that of Abdullah because only in such a case could tire line of the plaintiff have been entirely deprived of the property. It then is inherited by his sea and three daughters, Rehmatullah getting 2/5 while each daughter 1/5. Rehmatullah - admittedly died three years after that of his father. So out of the 2/5th he thus inherited, the sisters and other defendants if the sister through whore the latter inherit, was alive when Rehmatullah died, again get 2/3 which leaves 2/15 for the plaintiff: That such a course is open to this Court is shown from the following quotation from Halsbury's Laws of England: "Where legal rights dependant on the fact or date of the death of a person have to be adjudicated and such fact and date cannot be determined on evidence or presumption and the question cannot be solved by the incidence of the burden ref proof, the Court will make the best order that it can in the circumstances (Page 503)."
45. The plaintiff had also pleaded custom to prevent the property from going into the hands of the defendants In Axed Kashmir even before the enforcement of the Shariat Application Act in 1948, the law presumed that Muslims were governed by their personal law in the matter of inheritance section 4 of Sri Pratap Jammu & Kashmir Laws Consolidation Act, 1925 laid down:- "(4). (1) The Laws administered and to be administered by the Civil and Criminal Courts of the State of Jammu & Kashmir are and shall be as follows:---
(d) in question regarding succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, will, legacies, gifts, wagf, partitions, castes or any religious usage or institution, the rule of decision is and shall be- the Mohammadan Law in cases where the parties are Mohammedans and the Hindu Law in cases where the parties are Hindus, except in so far as such law has been, lay this or any other enactment, altered or abolished or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority."
46. The plaintiff has failed to displace this presumption. There is a concurrent finding of fact on the point. I may however add that a custom like the one alleged here which seeks to exclude women from inheritance, being essentially discriminatory, should be accepted only when by evidence its existence is completely taken out of the realm of debatability. Mother, wife, sister and daughter are among the dearest relations. Apart from being lawful heirs under the personal law, they are also natural heirs. In such cases therefore unless the existence o custom effortlessly and naturally flows from evidence, the Court may well lean In favour of the women-the weak and the Unequal.
47. I, therefore, accept this appellant setting aside the judgments and decrees (if the Courts below, pass a declaratory decree in favour of the plaintiff to the effect that he is entitled to inherit 2/15 out of the property of Faqir. In view of the complicated nature of the law involved, the parties to bear their own costs throughout.
48. Painda Khan Alam SherJamoo Faqir______________________| (unheard of)
49. Abdullah Sattar Ali Faqir Ullah Gul Zaman (Appellant)
50. Rehmatullahdr.Dr.Dr. (Def.)(Def.) heirs (defendants)