JUDGMENT

Walsh, J. - We have come to the conclusion that this appeal must be allowed and the suit dismissed. The point is a short one, but an interesting one arid not so technical and artificial as it appeared at first sight. We are much indebted to Mr. Peareial Banerji for his able argument on behalf of the appellant. The point may be stated in a very small compass. There is an undoubted, mystry about the fate of one Kedar Nath, who was engaged in commercial pursuits. He was a Bania who lived in Calcutta and who, for adequate reasons, namely, that he, was accused of, embezzlement, disappeared. This happened in December 1907, that is to say, just a little more than 13 years before this suit. He was only 23. He had no children. He had a young wife, and although feeble efforts have been made to prove his subsequent existence, nothing definite is known about it. If one had merely, on questions of fact, to draw inferences permitted by Section 114 of the Evidence Act, many considerations would have to be taken into account, including what has been pressed upon its on behalf of the respondent, that in the case of one who was not shown to have left the country, it is almost certain by now that he is dead. On the other hand, one can not leave out of account the fact that, for man 31 years, he had paramount reasons for remaining concealed, that a childless wife is not much esteemed in this country, and that the war which followed seven years afterwards has altered, one may say, the comparative values of inferences as to the whereabouts of persons whose. addresses are unknown. Many Indians have joined, or followed the troops, and have remained abroad. The Post is far from perfect, as yet. The widow, alleging permission from her husband, a fact which has been rejected by the Court below, went through the form of adopting a son in 1916 and the present defendant-appellant being then plaintiff, brought a suit seeking a declaration that the adoption was void. The respondent to this appeal setting up the adoption naturally relied on the presumption, or shifting of the onus, defined by Section 108 of the Evidence Act. Now, if there is one thing more certain than another it is that it is clearly established in India, as in England, particularly expressed in a Full Bench decision reported as Muhammad Sharif v. Bande Ali 11 Ind. Cas. 474 : 34 A. 36 : 8 A.L.J. 1052 (P.B.) that what the Court may presume u/s 108 is confined to the factum of death. It cannot presume that, because the person has not been heard of, he died at any particular moment, or in any particular way, or from any particular cause and, that being so, the defence in the former suit was bound to fail because the presumption being the sole thing which was relied on, the Court was prohibited by law from finding that Kedar Nath had died before 1915, the date of adoption. It might express an opinion as strongly as it pleased that he was dead at the date of the suit but, in my judgment, that would be are dictum, and even although it framed are issue, and went to the length of holding that he was dead at the date of suit, it would not be an issue as defined by Section ii of the Civil Procedure Code, substantially or directly in issue between the parties to that suit. It would be irrelevant, because he might be presumed dead at the date of the suit, and yet not dead suit the date of the adoption which was the only material question to be decided. Encouraged by the observations of the learned Subordinate Judge, who dealt with the former suit, the widow made a second attempt to adopt, namely, on the 18th June 1910, and having in her favour, other advisers thinking that they had it their favour, an expression of opinion that the Wan was dead in 1918 and that, therefore, he must be still dead in 1919, this suit Was brought for partition, based upon the adoption which itself was based the alleged decease before June 1939. The learned Judge in disposing of this second suit, in a very clear judgm