JUDGMENT Turner, Officiating C.J. and Pearson, J.
1. The plaintiffs in this suit are not claiming the estate of Janki Rai, the missing person, by right of inheritance. Were they claiming it, inasmuch as Janki Rai has been missing for only eight or nine years, their claim might be inadmissible under Hindu Law. But they are claiming nothing belonging to him. He is the next heir or reversioner to one Salig Rai, deceased, whose estate is retained during her lifetime by his widow Musammat Ablaki; and this suit is brought by the plaintiffs as next reversioners after the aforesaid Janki Rai, in consequence of his absence, for the avoidance of a deed of mortgage executed by Musammat Ablaki to the detriment of their reversionary rights. Under the circumstances, there seems to be no reason why the provisions of Section 108 of the Evidence Act should not be applicable. The death of Janki Rai may be presumed for the purposes of this suit, although, in a suit for the purpose of administering the estate, the Court might have to apply the law of succession prescribed when a person is missing and not dead.
Spankie, J.
2. It appears to me that the question whether a man be alive or dead is one simply of evidence, and has no immediate connection with the devolution of property under the Hindu or Muhammadan law, and its determination should follow the rules of evidence in Act I of 1872. When a person is claiming the estate of a missing person, he could not do so, if a Hindu, until after the expiration of 12 years from the date of that person's forsaking his family, and being lost sight of, or if a Muhammadan, until ninety years had passed from the date of the missing person's birth. The period at which the estate of a missing person may be claimed under the Hindu or Muhammadan law seems to be unaffected by the sections of the new Act referred to.
Oldfield, J.
3. Under Hindu Law the property of a missing person will not vest in the next heir until the expiry of at least 12 years from the date that the missing person forsook the family, supposing that during the interval no intelligence of him has been received, and if the present case were one in which the plaintiff sues to succeed to the property of a missing person, it may be that we should apply the Hindu Law as to the presumption of death, with reference to Section 24, Act VI of 1871.
4. But the case before us is not of this character, and there is no question in respect of the devolution of property of a missing person. The plaintiff sues to protect property in the hands of a widow from alleged illegal alienations made by her, and ordinarily the next heir should sue, but in this case the missing person is the next heir, and plaintiff asks to be allowed to sue, and on the ground that the next heir is missing and presumably dead.
5. The decision will determine no right of inheritance or succession, so as to make Hindu Law necessarily applicable, and in such a case, the general rules of evidence under the Evidence Act as to the presumption of death and consequent burden of proof may, in my opinion, properly apply to this case.