The presumption of death after seven years absence is rebuttable and the court may ascertain the presumed date of death based on evidence.

1. An interesting and important question of law arises in this proceeding for consideration of the Court as to the presumed date of death of a person where the presumption of death on expiry of 7 years absence applies and the person concerned is not heard of for last more than 7 years. The question arising before the Court is of some significance as the Estate Duty Act, 1953 was repealed from 1st April, 1985, save and except in respect of liability to pay estate duty where the deceased had died prior to the date.

2. The relevant facts having bearing on the above referred question are as under : -
(a) The petitioner is the son of Shri Ramchandra Arjun Wadekar. The said Ramchandra left home on 9th January, 1984 and was not heard of by the petitioner and the other relatives since then. A missing report was filed by petitioner with the police authorities. Newspaper advertisements were issued announcing reward to the informant for tracing the whereabouts of the said Ramchandra. All efforts to trace out Ramchandra failed. On 9th January 1984, Police authorities issued a certificate to the effect that the said Ramchandra was missing since 9th January, 1984. The said Ramchandra could not be traced by the authorities. Nothing was heard from him or about him.
(b) The statutory period of 7 years expired on or about 8th January, 1991.

3. On 18th Sept. 1991, the petitioner filed Miscellaneous Petition No. 4 of 1992, in this Court for a presumptive finding that Shri Ramchandra Arjun Wadekar is presumed to be dead on the ground that he has not been heard of for last more than 7 years by the persons who would have normally heard of him. The petitioner invoked S.107 and S.108 of Indian Evidence Act, 1872 .

4. After thorough scrutiny of the material on record Chaudhari, J. passed an Order on 27th January, 1992, to the effect that the said Ramchandra is presumed to be dead and that the petitioner was permitted to take oath to the said effect for purpose of adopting proceedings in this Court in exercise of its testamentary and intestate jurisdiction.

5. In view of the said Order, the petitioner filed Petition No. 196 of 1992, for issue of Letters of Administration in respect of estate of the said Ramchandra.

6. The Prothonotary and Senior Master has issued an office requisition to the effect that the petitioner be required to produce certificate under S.56 of the Estate Duty Act, 1953 and comply with various other provisions of the before the petition would be proceeded further.

7. It is well known that the Estate Duty Act, 1953 ceased to be operative from 1st April, 1985.

8. The only question which arises for consideration of the Court is as to what is the presumed date of presumed death of the said Ramchandra Arjun Wadekar ?

9. At the outset I would like to refer to the formulation of law having direct bearing on the question under consideration appearing in Halsbury's Laws of England, Fourth Edition, Volume 17, Para 116. The relevant principle of law deduced from the decided English cases is formulated in the said standard work as under : -
"Where the presumption of death after seven years absence applies, the person will be presumed to have died by the end of that period".

10. S.108 of Indian Evidence Act enacts law of rebuttable presumption in case of a person who has not been heard of more than 7 years. The relevant provisions of Indian Law and English Law are identical.

11. To my mind, the above referred proposition of law formulated in Halsbury's Laws of England cannot be considered as an absolute proposition of law applicab