JUDGMENT

Mahmood, J. - It appears to me that the first question which has been referred to us by the Division Bench cannot be decided without determining whether the rule of Muhammadan Law, that a missing person is to be regarded as alive till the lapse of ninety years from his birth, is a rule of the Muhammadan Law of "succession, inheritance, marriage, or caste, or any religious usage or institution" within the meaning of the Bengal Civil Courts Act (VI of 1871). This, I think, is the first and necessary step in the reasoning which would lead to the answer we are called upon to give to this reference. If the rule forms part of the branches of law which I have mentioned, there can, I think, be no doubt that by the provisions of the Statute we are bound to decide the question according to the strict rules of the Muhammadan Law, whether or not such rules appear to us reasonable and adapted to the exigencies of modern life in this country. On the other hand, if such is not the case, the question must be determined according to the general law of British India, The provisions contained in Section 24 of the Bengal Civil Courts Act constitute one of the most important guarantees given to the people of India by the British rule, and they date as far back as the beginning of the British rule, itself, for they first found legislative enactment in the year 1780, when the first Regulation for the administration of justice was enacted by the Bengal Government; they have been repeatedly confirmed by Acts of Parliament, and have ever since remained in the statute-book of British India. And I think I may safely say that, ever since those provisions were first enacted, the Courts of Justice have been uniformly accustomed to regard the rule of Muhammadan Law as to missing persons as a rule forming an essential part of the Muhammadan Law of inheritance, succession, and marriage. It is not necessary to cite authorities for this proposition, and I have mentioned the circumstance simply to indicate the importance which must be attached to the question we are called upon to determine,--a question which affects the devolution of property owned by the entire Muhammadan population living within the jurisdiction of the Courts of Justice in British India. And because the question is one of so much significance, because by a long course of decision the Muhammadan Law has been held to govern it, and the people are in consequence accustomed to regard it as a rule binding upon the Courts, and because my own views on the subject are at variance from those which have hitherto been adopted in the cases to be found in the reports, I consider it necessary to refer to the original authorities of Muhammadan Law, in order to show, in the first place, that the rule which we are now considering is, according to the best recognized and most authoritative texts of the Muhammadan Law itself, neither a rule of inheritance, nor of succession, nor of marriage, and that the Muhammadan jurists themselves have regarded it as a rule belonging to that department of procedure which regulates the ascertainment of facts in judicial tribunals. In the second place, I shall deal with the argument which has been addressed to us regarding the effect which the provisions of the Evidence Act have upon the decision of the question.

2. Now, first as to the Muhammadan jurisprudence itself. It is a matter of the history of Muhammadan Law that when the Republic founded by the Prophet became an empire under the Khalifas of Baghdad, the exigencies of administration necessitated the establishment of Courts of Justice, for decision of disputes, and it was about that time that the jurists and doctors of the law endeavoured to frame a system of jurisprudence by supporting it with reasons deduced from those logical methods which the Arabian schoolmen had borrowed from the ancient philosophers of Greece. It was in consequence of this that the earliest systematized text books of Muhammadan jurisprudenc