JUDGMENT

Lindsay and Kanhaiya Lal, JJ. - The facts of this case are as follows. One Musammat Aisha died on the 26th of 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 sihams and the brothers one siham each.

3. One of the brothers was Abdul Hakim, who disappeared in the year 1905 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 Wahid.

4. It is admitted that nothing has been heard of Abdul Hakim since this disappearance in 1905. The defendants in the suit are his daughter and wife. In 1916 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 Wahid, got mutation made in their favour in respect of the shares to which they would be entitled as heirs of Abdul Hakim under the Muhammadan 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 Wahid claims a declaration that he is the owner of the shares recorded in the defendants' names.

6. His case is that as Ablul 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 he is the Bole survivor. It is claimed for him that according to Muhammadan law Abdul Hakim must be taken to have died at the time of his disappearance in 1905 and that consequently he could take no share of the estate of 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 recognized 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 Mashar Ali v. Budh Singh ILR (1884) All 297, 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 recognized 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 ho has gonw 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 and 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 ho 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