ZENA GLADYS FREEMANTLE Vs. HERBERT CHARLES FREEMANTLE

JUDGEMENT

(1.) THIS suit is filed by a wife against her husband for a declaration that the defendant, not having been heard of since February 1937, into be deemed to be dead. When the plaint was presented to me in Chambers, as leave under Clause 12 of the Letters Patent had to be obtained, it appeared to me that it was doubtful whether such a suit could lie. Thereafter, counsel appeared before me and requested me to admit the plaint and have it numbered for the purpose of enabling me to determine in the suit whether such a suit lies before issuing any process. I acceded to that request and the matter has now come on before me for argument as to whether such a suit is competent.

(2.) IT appears that a similar suit was filed in this Court being suit No.1998 of 1945 and in that suit a decree was passed by my learned brother Coyajee J. in the following words : Declare that the defendant not having been heard of since the day of he is deemed to be dead. IT appears that my learned brother's attention was not drawn to the question whether such a suit was competent and that question was not considered or disposed of by my learned brother.

(3.) OF course, I must point out that in England where executors and administrators are required to swear as to the date of death of the deceased and the death is a mere matter of presumption, a petition lies for an order giving leave to swear to the death of a person who has not been heard of for over seven years. Under Rule 659 of the High Court Rules the practice and procedure followed by the High Court of Justice in England is followed by our High Court in its testamentary and intestate jurisdiction, in so far as it may not be inconsistent with the rules made by our High Court. Following the English practice, this High Court has in exercise of its testamentary jurisdiction made similar orders for the purposes of testamentary matters.