Judgement

Appeal from a decree of the said Chief Court (Aug. 12, 1902) affirming a decree of Bigge J. (April 8, 1902).

The question in the suit was as to the right of the appellant to a share in the estate of his paternal grandfather Moolla Hashim, his claim being as heir of his father Moolla Ahmed bin Hashim, who was the eldest son of Moolla Hashim, but had disappeared in 1869 or 1870. The appellant alleged that he was dead at the time of suit (August 9, 1901), and was to be presumed to have died at the end of seven years from 1886- 1887, when he was said to have been last seen at Bangkok, Siam. The plaintiff placed his fathers death about 1894, the said Hashim, his paternal grandfather, having died on January 27, 1884. Disputes arose as to the inheritance and as to an alleged will of the deceased. These were referred to an arbitrator, and the plaintiff claimed that the award was in his favour.

Both Courts concurred in finding that Ahmed did not survive his father, referring to s. 108 of the Indian Evidence Act (I. of 1872). The first Court came to the conclusions (a) The plaintiff having failed to shew that Ahmed was either seen or heard of after he disappeared in 1869 or 1870 by those who would be likely to have -heard of him or by any one else, the presumption was that he died within seven years from that time, (h) Such being the presumption, and it being presumed that he

Law. Rep. 32 Ind. App. 177 ( 1904- 1905) Moolla C assim Bin Moolla Ahmed V. Moolla Abdul Rahim

68

predeceased his father, Moolla Hashim, on the authorities referred to he could not inherit any share in the estate of Moolla Hashim, and his son the plaintiff had no claim as representing his father to such share, which must go to the heirs of Moolla Hashim.

The appellate Court held that the onus lay upon the plaintiff to prove that Ahmed was now dead but was alive in 1884; that there was no presumption in the case that Moolla Ahmed was alive or that he was dead in 1884, and the question was one of proof and not of presumption; and that plaintiff (appellant) had not discharged the onus upon him.

Asquith, K.C., and McCarthy, for the appellant, contended that, after the award made in his favour, the onus was on the respondents to shew that Ahmed predeceased his father, and that the onus of proving the contrary was not on the appellant. They referred to ss. 107 and 108 of the Indian Evidence Act, 1872, and to s. 90 of the Probate Act (V. of 1881).

Haldane, K.C. Jardine, K.C. and Phillips for the respondents, contended that the award merely reserved a share for Ahmed in accordance with Mahomedan usage, in case he should prove to have been alive at his fathers death. It left the question open as to whether the appellant was entitled.

The judgment of their Lordships was delivered by

SIR ANDREW SCOBLE. Moolla Hashim, a wealthy Mahomedan resident at Rangoon, on May 13, 1878, executed a will by which (inter alia) he bequeathed certain property to hi& eldest son Moolla Ahmed and his two children. After the death of Moolla Hashim, which occurred on January 27, 1884, while he was on a pilgrimage to Mecca, one of his widows, named Shareefa Bee, disputed the validity of the will as not being in accordance with Mohomedan law, and it was ultimately referred to one Moolla Ismail, as arbitrator, to divide the property among those whom he should find entitled to share in it. He made his award on February 21, 1888, and in it he included Moolla Ahmed and his children among " the heirs and legatees " among whom the estate of the deceased was to be distributed.

It is a well-known principle of Mahomedan law that if any of the children of a man die before the opening of the succession to his estate, leaving children behind, these grandchildren are entirely excluded from the inheritance by their uncles and aunts. In the present case Moolla Cassim, the only son of Moolla Ahmed, claims a share in his grandfathers estate in right of his father under Moolla Ismails award. In his plaint he