JUDGMENT

1. The facts of this case are as follows. One Musammat Aisba died on the 26th January 1907 leaving certain Zamindari property.

2. This lady had a husband and three brothers, and on her death the property she left was recorded in specified shares in the names of these persons, The husband took three siham and the brothers one siham each.

3. One of the brothers was Abdul Hakim, who disappeared in the year 1805 and who was still missing at the time of his sister's death. Another brother is the plaintiff in the present suit, i.e., Hafiz Abdul Waheed.

4. It is admitted that nothing has been heard of Abdul Hakim singe his disappearance in 1905. The defendants in the suit are his daughter and wife. In 1906 the defendants applied to the Revenue Courts, asking for mutation in their favour on the ground that owing to the lapse of more than seven years from the date of Abdul Hakim's disappearance there was a legal presumption that he was dead.

5. The wife and daughter, in spite of the opposition of Abdul Waheed, got mutation made in their favour in respect of the shares to which they would be entitled as heirs of Abdul Hakim under the Muhammad an Law. Thereafter they sued the plaintiff, who is lambardar, for their share of profits and the result has been the present suit, in which Abdul Waheed claims a declaration that he is the owner of the shares recorded in the defendants' names.

6. His case is that as Abdul Hakim was missing at the time Musammat Aisha died, his share was held in suspense and that as he is now alleged by the defendants to be dead, the share which has been held up becomes the property of the other heirs of Musammat Aisha, of whom be is the sole survivor. It is claimed for him that according to Muhammedan Law Abdul Hakim must be taken to have died at the time of his disappearance in 1803 and that consequently he could take no share of the estate of Musammat Aisha, who died in 1907.

7. The suit failed in the Court of first instance. The Munsif was of opinion that it lay upon the plaintiff to establish that Abdul Hakim predeceased his sister and that in order to do so, he was not entitled to rely upon any presumption recognised in the Muhammadan Law with regard to the date of the death of missing persons. Following the principles laid down in the Full Bench ruling of this Court in Mazhar Ali v. Budh Singh 7 A. 297 : (1884) A.W.N. 333 : 4 I. C. 422 he held that the case was governed not by any rule of evidence contained in the Muhammadan Law but by the provisions of sections 107 and 108 of the Indian Evidence Act.

8. The lower Appellate Court took a different view, and applying the rules of Muhammadan Law as laid down in the case of missing persons, held that it must be presumed that Abdul Hakim died on the day on which he disappeared in the year 1905 and that consequently no share of the estate of Musammat Aisha ever devolved upon him. He decreed the plaintiff's claim to the extent of one-half, on a finding that this was the correct share to which the plaintiff was entitled.

9. The case for the defendants in second appeal is that the judgment of the first Court was right and that the Court below was wrong in deciding the suit on the basis of the presumption which is recognised by the Muhammadan Law. The Hanafi Law, which applies to the parties to this case, is thus laid down in Baillie's Digest (Hanifia), Second Edition at page 713:

A person is missing when he has gone away and it is not known where he is, or whether he is dead or alive. Such a person according to our sheikhs is to be accounted alive so far as regards his own property end dead as regards the property of others, until such a time has elapsed that it is inconceivable that he should be still alive, or until his contemporaries are dead; after which he is to be accounted dead, with respect to his own property as from the day when such time is completed, or the last of his contemporaries is dead, and with respect to the property of others as if he had died on th