Judgment debtor not heard for four or five years.

Two points arise in this Civil Revision Petition for consideration. The first is, whether the respondent, who happen to be the appellant in the lower Court, has proved herself to be still a wife or a widow. The question of her being a wife or a widow will turn upon the fact as to whether there is satisfactory proof of the death of her husband. It is common ground that the husband has not been heard of for the last four or five years. Under sections 107 and 108 of the Evidence Act the burden is on the person who asserts that the man is dead or alive to prove that he is dead or alive as required by the sections. In this case on the evidence it is difficult to hold that the respondent has become a widow. The evidence is not satisfactory on that aspect of the case. There is no proof that the husband has not been heard of for seven years by those, who would have naturally heard of him if he were alive. It has, therefore, to be held that the respondent has not discharged the burden that lay on her to prove that the husband was dead in order to enable her to attain to the position of a widow. If she was a widow, then certainly the second question would be easily answered in her favour, namely that as a widow she has an interest ‘in praesenti’ in the property of the husband, which she is seeking to save by payment of the auction price and the 5 per cent. solatium to the decree-holder, who has brought the property to sale in execution of his decree. She has, therefore, at present no interest in the property as a widow. She has not yet “derived any title to the property” as such widow in the absence of clear proof that her husband is dead.

The second question that arises for consideration is whether the respondent could be brought within the scope or Order 21, rule 89, clause (1), Civil Procedure Code. This rule says that where immoveable property has been sold in execution of a decree the judgment-debtor or any person deriving title from the judgment-debtor or any person holding an interest in the property may apply to have the sale set aside on his depositing in Court and so forth. The point then is as to whether the wife, who has not yet become a widow, can be said to be holding an interest in the property of the husband. The fact that the wife would be entitled to maintenance from the husband does not depend really upon the question whether the husband has property. Whether the husband has or has not any property, there is an obligation on the husband to maintain his wife. Therefore, it is clear that the right to maintenance by the husband does not always depend upon the husband holding any property. Irrespective of the husband holding any property, the wife will have always the right of being maintained by the husband as long as she continues to be his lawful wife. But the real point is whether being such a wife of the husband, whose property has been sold away in auction, she has not got that much of interest in the property in order to get the property saved and rescued from the clutches of a decree-holder, who has got it sold away in execution. If, however, it turns out to be the case that the husband is at sometime later dead, then certainly his wife would be justified in making every attempt to rescue the property by payment of the sale price plus the 5 per cent. solatium to the decree-holder. If the sale gets confirmed and the property passes into the hands of any purchaser and it ultimately turns out to be that the husband was dead, certainly it would be too late for the widow to retrieve the position. From this aspect of the case there seems to be some force in the contention that in circumstances like the present the wife could be held to hold an interest in the property belonging to her husband.

The learned counsel has invited my attention to Mollaya Padayachi v. Krishnaswami Iyer1, in this connection. A Bench of this Court consisting of Spencer and Kumaraswami Sastri, JJ., has held that the son of a Hindu father