Judgement

Appeal (No. 20 of 1943) from a decree of the Court of the Judicial Commissioner (June 13, 1941), which affirmed a decree of the Senior Subordinate Judge of Peshawar (December 23, 1938), by which a suit brought by the appellants against the respondents was dismissed.

The following facts are taken from the judgment of the Judicial Committee The appellants were the parents of Lady Shamas Shah, who was the wife of a retired officer of the political service of the Government of India. The respondents were his nephews. Lady Shamas Shah and her husband lost their lives in the earthquake at Quetta, which occurred early in the morning of May 31, 1935. Sir Shamas Shah was sixty-eight at the time of his death, and his wife twenty-six. They had no children. At the time of the earthquake Sir Shamas Shah, his wife, her younger sister, and one Musammat Faruq, a maid servant, were staying in his bungalow, which collapsed in the earthquake. They were buried under the debris. Opposite their bungalow was the bungalow in which the appellants lived with their son, Bashir Ahmmed, and certain other persons. That bungalow also collapsed, but the appellants

Law. Rep. 71 Ind. App. 171 ( 1943- 1944)

K. S. Agha Mir Ahmad Shah V. Mir Mudassir Shah 67

extricated themselves from the ruins and, accom-panied by their son, hurried across to the residence of Sir Shamas Shah to find out what had happened there.

It was admitted that Sir Shamas Shah and his wifes sister were already dead when their bodies were recovered from the ruins. It was also admitted that Musammat Faruq survived the disaster as to Lady Shamas Shah, the appellants set up the case that she was " taken out alive " when she was extracted at about the same time when her husbands body was recovered, and that she thus survived him, though she expired immediately thereafter. The respondents denied that Lady Shamas Shah was " taken out alive " from the crumbled bungalow, and that she survived her husband. They contended that, not having survived him, she did not inherit from him, and the appellants had no title to the suit property on that ground. The parties were Muhammadans. As Sir Shamas Shah died without issue, assuming Lady Shamas to have survived him, his heirs on his death, under the Muhammadan law were, (1.) his widow, who became entitled to a fourth part of the estate, and (2.) his nephews, the present respondents, who took the remaining three-quarters.

On the death of Lady Shamas Shah, her parents, the present appellants, claimed in the suit out of which this appeal arose that they became entitled to the fourth part which she, their daughter, had inherited from her husband. If she did not survive her husband, then the respondents were entitled to the entire estate. The decision in the dispute thus depended on the question " Did Lady Shamas Shah survive her " husband/ and on that basis, issue 4 was framed, which was, " Did one-quarter of the property devolve on Lady Shamas " Shah on the ground that she survived her husband ? " The onus of proving the above issue was on the appellants, who sought to discharge it (1.) by adducing direct evidence of witnesses who said they saw that Lady Shamas Shah was taken out alive from the debris, and (2.) alternatively, in the event of the evidence as to her survival being found insufficient, by relying on what they alleged to be a presumption of law, that where two persons had died in circumstances rendering it uncertain which of them survived the other, the younger should be deemed to have survived the older, and consequently, that Lady Shamas Shah, being the younger of the two, should be presumed to have survived her husband. The respondents also adduced evidence in support of their case.

The trial court held that the evidence adduced by the appellants was not above suspicion, and that there was no presumption in law that in a common calamity the younger of the two deceased persons should be deemed to have survived the elder. In the result the