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.) The facts stated in the plaint are that the plaintiff was married to the defendant, a British subject of English domicile, who was at the time of the marriage employed in Bombay. He has, however, not been heard of since February 1937, and although the plaintiff had made several attempts to find out his whereabouts, she has not succeeded in doing so. The plaintiff, therefore, avers in para 7 of the plaint. that in the premises reasonable grounds exist to suppose that the defendant is dead and the plaintiff believes that the defendant is dead.