MUHAMMAD SHARIF Vs. BANDE ALI

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiffs sought to redeem two mortgages. It was necessary in order that they should succeed in their suit that they should establish that they were the heirs of one Madad Ali. -- They proved that they were the heirs of Dildar Ali, and Dildar Ali would have been one of the heirs of Madad Ali provided that he had survived him. The defence was that Dildar Ali predeceased Madad Ali. The court below finds that Dildar Ali died seven or eight years ago. The plaintiffs gave evidence which went to show that Madad Ali had not been heard of for some seventeen or eighteen years by persons who would naturally have heard of him if he had been alive. Beyond this they were able to give no affirmative evidence that Madad Ali was dead. Upon these facts the plaintiffs claim that they are entitled to succeed. They rely upon the provisions of Section 108 of the Evidence Act, which is as follows: 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 had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

(2.) They contend that it must be presumed that Madad Ali died some time during the first seven years during which, according to the evidence he was not heard of, and that upon the expiry of the first seven years it must be presumed that he was dead.

(3.) In my opinion this contention is not correct. The mere fact that the evidence adduced by the plaintiffs went to show that Madad Ali had not been heard of for more than seven years raises no greater presumption of his death than if the evidence had been confined to the exact period of seven years. In other words the only presumption is that Madad Ali is dead. There is no presumption that he died in the first seven years or in the last seven years. The presumption merely is that he was dead at the time the question whether he was alive or dead arose, the burden of showing that he was alive being thrown upon the defendants if it was necessary for them to do so.