SALEHA BI Vs. SHEIKH GULLA

JUDGEMENT

(1.) IN this case, the learned Additional District Judge has non-suited the appellant-plaintiff on the ground firstly, that the presumption of death of Ghulam Murtuza cannot be drawn under Section 108 of the Evidence Act; and secondly, even if the presumption of death arises, she after the death of her brother, Mohd. Ishaq, became a co-owner along with his widow Mst, Nishat Bi alias Hidayat Bi.

(2.) HAVING heard the parties, I have formed the opinion that the appeal must be allowed. The view taken by the learned Additional District Judge can hardly be supported. He has refused to draw the presumption under Section 108 of the evidence Act on the ground that Mst. Saleha Bi (P. W. 1), the plaintiff herself, has in para 7 of her cross-examination was not able to state categorically whether her father Ghulam Murtuza Was really dead or still alive within 30 years of the date of filing of the suit. The learned Additional District Judge failed to appreciate that section 108 is in the nature of a proviso to Section 107 of the Evidence Act. So, when the question is whether a man is alive or dead, and it is shown that he was alive within 30 years, no doubt under Section 107 the burden of proving that he is dead is on the person who affirms it. But then Section 108 steps in aid. But when such a question arises, the law provides by Section 108 that if it is proved that if the person has not been heard of for 7 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

(3.) NOW, the plaintiff in para 2 (a) of the plaint had specifically alleged that her father, Gbulam Murtuza became lunatic and left Bhopal and his whereabouts were not known for some 8 years prior to the filing of the suit. That allegation of her has not been denied by the defendant. On the other hand, the defendant in para 2 (a) of the written-statement admits that Ghulam Murtuza has left Bhopal. In the witness-box Sheikh Gullu (D. W. 1) further admits in para 11 of his deposition that the whereabouts of Ghulam Murtuza are not known for the last 8 or 9 years. That being so, the case fell within Section 108 of the Evidence Act, and there was a presumption of his being dead.