JUDGMENT

Mir Ahmad, J - The following pedigree table will help in understanding the relationship between the parties in this case:

TABLE

2. Dosa had been away since 1922. Mutation No. 8498/1 was entered on 25-9-1941 to record bis death and to pass on his estate to his heirs. It was originally intended to be in favour of Mt. Hayat Nur, the sister of Dosa. Mt. Hayat Nur, however, died on 20-10-1941, while the mutation was under consideration. The mutation was, therefore, finally attested in favour of Gama on 12-5-1942. This suit has been instituted by Wali Mohd., Mt. Hakam Bi and Mt. Gul Tab, the heirs of Mt. Hayat Nur against Gama and Mohd. Akram, a mortgagee from Gama, for the possession of the Mahomedan law share, which would have fallen to their mother Mt. Hayat Nur, if she had inherited Dosa's property. Gama resisted the suit. The main plea was that Mt. Hayat Nur died after Dosa, and, therefore, did not inherit any share in his estate. The trial Judge pointed out that it was not proved as to when Dosa died. He was of the view that in the absence of any evidence to the contrary, all that could be presumed was that Dosa was dead on the date of, the institution of the suit. As Mt. Hayat Nur had died before institution of the suit, he came to the conclusion that Mt. Hayat Nur be taken to have predeceased Dosa. On this finding he held that the plaintiffs (the heirs of Mt. Hayat Nur) could not get any share in Dosa's property, and dismissed the suit. The plaintiffs went up on appeal to the District Court at Abbottabad. The learned District Judge agreed with the original Judge, depending mainly on the ruling reported in Gudri Singh v. Jungi Singh (30) 124 I.C. 25. He dismissed the appeal.

3. Wali Mohd. alone has come up on revision to this Court. Besides Gama and Mohd. Akram, he has impleaded Mt. Hakam Bi and Mt. Gul Tab as respondents. The question to decide is as to when Dosa died. Section 107 and the relevant portion of Section 108, Evidence Act, runs thus:

Section 107. When the question is whether a man is alive or dead and it is shown that he was alive within 30 years, the burden of proving that he is dead is on the person who affirms it.

Section 108. (Provided that when) the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive is (shifted to) the person who affirms it.

4. The effect of these sections has been very ably discussed in the following rulings: Jeshankar v. Bai Divali A.I.R. 1920 Bom. 85, Gopal Bhimji v. Manaji Ganuji A.I.R. 1923 Bom. 163, Ramchandra v. Keshav Dhondo A.I.R. 1923 Bom. 208, Gudri Singh v. Jungi Singh (30) 124 I.C. 25 (single Bench case) and Mahomed Sharif v. Bande Ali (11) 34 All. 36. The ratio decided of these authorities may be briefly stated as follows: Where there is a dispute in a suit as to the date of death of a person from whom his relations have not heard for more than seven years, it shall first be for the person who alleges a particular date to prove that date affirmatively, but if no one can prove any specific date then the Court shall draw a presumption that he was dead on the date of the institution of the suit. I find my self in perfect agreement with the view of the Bombay and Allahabad High Courts. I would now proceed to apply this principle to the facts', of the present case. It has been concurrently found by the Courts below that the plaintiffs have not been able to prove the exact date on which Dosa died. The record shows that this finding is correct. Dosa must, therefore, be presumed to have died on the date of the institution of this suit, viz., 15-3-1943. Mt. Hayat Nur was admittedly dead on 20-10-1941, and on the legal presumption drawn it would be assumed that she predeceased Dosa. According to Mahomedan Law her heirs, the plaintiffs, have no right to claim a share in his estate. The Courts below have rightly dismissed th