' MUHAMMAD AFZAL ZULLAH, J.-Only a question of law as to the interpretation of section 108 of the Evidence Act is involved in this Letters Patent Appeal.
2. The case arose out of a dispute on inheritance of one Raja son of Ghulam Muhammad. The suit was filed by Hayat, the present appellant, who is one of the collaterals of the deceased. His claim was that Akbar Ali, a real nephew of Raja deceased, had died prior to 1955, the year of death of Raja I therefore, the appellant would inherit the property of Raja in preference to Akbar Ali. The pedigree- table illustrating the relationship is as follows: {{TABLE}} Abdullah Zulfikar Ghulam Muhammad #TBS Defendent No, 1 #TBE #TBS Niamat Bibi Defendeni Widow No, 2 #TBE #TBS Taja Magma #TBE #TBS Patch Khan Khalas Rehmat Hayat Raja I (Plaintiff) (deceased) #TBE Wall Muhammad Nur Dad Karam Dad Noor Begum Akbar All I Defendant No, 3 Muhammad Khan Ghulam Feroze Khan {{TABLE}} ' The two out of four issues, relevant for discussion in this appeal, were; "(2) Has Akbar All son of Taja not been heard of and since when and what is the effect ? 0. P.
(4) Is plaintiff the sole heir of Raja deceased ? 0. P."
3. Both the learned lower Courts as also the learned Single Judge deciding the regular second appeal in this Court, held that although Akbar. All was not heard of for about 20 years, yet the plaintiff having failed to prove that Akbar All died prior to the death of Raja, his suit could not succeed.
4. Learned counsel for the appellant has contended that the Lahore Full Bench ruling, so far relied upon, namely, Punjab and others v. Natha and others (1) does not lay down correct law and that the Division Bench, Peshawar ruling in Muhammad Afsar and others v. Mct. Khatun and others (2) should have been followed. He also advanced the argument that the language of section 108, does not support the view taken in the Lahore ruling, nor the same is binding on this Court because it has not correctly followed the Privy Council ruling in Lal Chand Marwari v. Mahant Ramrup Gir and another (3). According to the learned counsel, the Privy Council did not rule that death should not be presumed to have taken place till the filing of the civil suit. Learned counsel for the respondent has in addition to the Full Bench and Privy Council rulings, also relied on a Division Bench ruling in Mst. Sardar Bibi v. Maula Daa and others (4), wherein same view about presumption of death under section 108 of the Evidence Act was taken as expressed by the learned Single Judge in this case.
5. Sections 107 and 108 of the Evidence Act read as follows : "107. Burden of proving death of person known to have been alive within thirty years.-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.
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108. Burden of proving that person is alive who has not been heard of for seven years.-(Provided that when) the question is whether a man is alive or dead, and is is proved that he has not been heard of for seven years by those who would naturally have heard of him if he bad been alive, the burden of proving that he is alive is (shifted to) the person who affirms it."
6. While interpreting section 108, It was held by the Full Bench of the Lahore High Court in the afore cited case of Punjab and others, that where a person has not been heard of for seven years when a suit is instituted, section 108 comes into operation and raises a presumption that at the institution of the suit he was dead, but no presumption arises as to the date of his death, which has to be proved in the same way as any other relevant fact in the case. This view finds full support from the Privy Council ruling, In the case of Lal Chand Marwari. We do not agree with the learned counsel for the appellant that the Lahore view was not in line with the ruling in the Privy Council case. Although different view has been taken in the Peshawar case of Muhammad Afsar but with respect it is pointed out that it was not necessary for the Division Bench in the said case to dissent from the earlier Full Bench ruling.
7. Continuance of life rather than its cessation is a natural presumption accepted in almost all systems of Jurisprudence. Section 107 of the Evidence Act, embodies this principle, with the necessary corollary that one who asserts that a person is dead, notwithstanding the fact that he was alive within 30 years, must prove his assertion with regard to the death. Section 108 contains an extension of the afore-described principle in the form of a (1) AIR 1931 Lab. 582 (2) PLD 1957 Pesh. 1 (3) AIR 1926 P C 9 (4) PLD 1962 Lab. 137 proviso, namely, that if It is proved that a person has not been heard of for seven years, by those who would naturally have hoard of him if he had been alive, then he, who asserts that the said person is alive must prove it. Section 108, as its plain reading shows, does not contain a mandate for the Court to presume that the person had in fact died at a particular time, namely, the expiry of seven years and neither before nor after it. Nor does it provide that in addition to the presumption of death simpliciter it should also be assumed that the person concerned was dead or alive at any particular time during the period of his disappearance. Section 108 itself shows, as commented upon by Mr. M. Monir, author of the Principles and Digest of the Law of Evidence "that what was intended was only to remove the uncertainty hanging over the fictional civic 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".
Thus read and understood, in the foregoing manner, section 108 does not leave any scope for presuming the time of death, either during, after or at the conclusion of the first 7 years B period or some subsequent periods of time. To read any such assumption in the provision would violate not only the clear language thereof but also the intention underlying the same.
8. As section 108, provides only that a person who is not hoard of for seven years is presumed to be dead and does not fix the time of death, therefore, the Court is not debarred from entertaining the evidence to prove that the death occurred before the expiry of 7 years. Similarly, notwithstanding the presumption of death, it would be possible for the Court to give the finding that it occurred after the expiry of the first period of 7 years or within any two such periods.
9. This pragmatic approach to the interpretation of section 108 is more in accord with the dictates of justice. The question of presumption under this provision with regard to the same person, might arise in diverse situations. One might relate to his inheritance, the other to matrimony, another might concern some ones legitimacy and yet another might relate simply to a period of limitation, The interest of different parties in these and similar other situations might be conflicting. If it were to be held that presumption under section 108 would result in a declaration by the Court that the person is presumed to have died at a particular time, say when difference/question arose between the parties, it would create anomalies. In each of the afore-visualized situations the question might arise at different times. The lawmakers could not have intended different presumptions to be raised qua time of death vis-a-vis different situations. As observed by Mr. M. Monir, the law contained in section 108, provides only a limited opening for solution of probitma arising out of disappearance of a person. Each party making assertion beyond the essential presumption created by this section would have to prove the same. With profoundest respect, we do not agree with the reasoning at page 24 of the Report of the Peshawar case of Muhammad Afsar that the decision by the Full Bench in the Lahore case "is a typical example where we accept certain generalization 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". We also do not, for the foregoing reasons, agree with the observation that the interpretation of section 108 by the Full bench was, in any way, as thought, "unrealistic".
10. The argument of the learned counsel for the appellant that the word "when" as used in section 108, has not been given due importance in the Lahore Full Bench ruling, is also without force.
According to the learned counsel the use of this word signifies the time, when the controversy arises about the death of a person. And as in this case the controversy in law and facts should be presumed to have arisen at the time of the death of the last male holder, namely, Raja, therefore, it should be presumed teat Akbar Ali had died, in accordance with the presumption under section 108, prior to the death of Raja. We do not agree that the word "when" as used in the section, is referable to a point or a stage in time/period. It is significant D to note that the words "provided that when" were substituted in the opening part of the section for the original word "when", by Act XVIII of 1878. The change was not without reason. Standing as it original was, the word "when" could have given rise to a confusion leading to a possible interpretation as visualized by the learned counsel, which would have produced conflicting results as discussed in the foregoing paragraph. And as this was not the intention of the Legislature, therefore, proper phrase representing the intention was used by way of amendment. Read in this context the word "when" instead of indicating a particular time (at, before or after the period of 7 years) would indicate upon the question arising, as to whether a person is alive or dead. Read in this sense the word "when" would connote the mere consideration of a controversy rather than its commencement. That is why it is followed in the provision with the words "the question is whether ", i,e,, when the question involved is whether and not that when the question arises whether. No other meaning to the words 'when' and 'is' would convey the real intention in the proviso contained in section 108.
11. For all the above reasons we are unable to follow the view taken in the Peshawar case and feel convinced that the law laid down in the ruling of the Lahore Full Bench is in accord with the language used in section 108 as also the intention underlying the same. In view of the latest Division Bench ruling of the West Pakistan High Court (Lahore) in Mst. Sardar Bibi (1) affirming and following the earlier Lahore Full Bench ruling, we do not feel called upon to go into the question as to whether the 1957 Division Bench ruling of the same Court that is, West Pakistan High Court (Peshawar) is so binding, as not to permit us to follow the Lahore Full Bench view.
12. In the light of the above discussion we find no force in this appeal and the same is dismissed.
There shall be no order as to costs.
(1) PLD 1962 Lab. 137