Law: Evidence Act (I of 1872)

Section: 108

P L D1957 (W. P.) Peshawar 1         Evidence Act (I of 1872),   S. 108--Person not heard of for seven years--Presumption of death-Date: not of suit in which question arises but of event which is basis of action.   The plaintiff brought a suit on 3rd April 1952, for declaration that the children of L son of F, had no share in the inheritance of F. It appeared that F had disappeared long (20 or 25 years) ago and had not been heard of for that period. L had died on 10th October 1947. Mutation Inheritance of F was sanctioned on 24th January 1951 favour of the plaintiffs (other heirs of F) as well as children of L. The plaintiffs relied on the supposition F should be presumed to have died on the date of the s via., 3rd April 1952 and thus, L having died on 10th October 1947, his children were disinherited being offspring of a deceased son.   Held, that the presumption of death should be raised with reference to the date of the event which is the b: and not with reference to date of suit.   If the party is able to prove on that date that 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 the present case, in the absence of such evidence from the other side F would be presumed to be dead on the day when L died, because the statutory period of seven years ha expired long before that date.   Wali Mohammad v. Gamman A I R 1944 Pesh. 29 dissented from.   Mazhar Ali and others v. Budh Sirgh and another VII I L R All. 297, Dharup Nath v. Gobind Saran and Gobind Saran v. Dharup Nath VIII I L R All. 614; Dhando Bhikaji v. Ganesh Bhikaji 1886 I L R 11 Bom. 433; Rango Balaji v. Mudiyeppa and others I L R 23 Born. 296; Moola Cossim v. Moola Abdur Rahim I L R 33 Cal. 173, 1905 (P C); Fani Bhushan Panerji v. Surjya Kanta Roy Choudhry I L R 35 Cal. 25 Thiagaraja Mudeliar and another v. Kandasawaml Mudaly and another 2 I C 977 (Mad. 1909); Mst. Narki v. Mst. Phekia 5 I C 709 (Cal. 1910); Muhammad Sharif and another v. Bande Ali and others 34 All. 37 (1911); B. Yeeramma v. Chenna Reddi and two others 37 Mad. 440 (1914); Jayawant…