JUDGMENT Walsh, J.
1. We have come to the conclusion that this appeal must be allowed and the suit dismissed. The point is a short one, but an interesting one arid not so technical and artificial as it appeared at first sight. We are much indebted to Mr. Peareial Banerji for his able argument on behalf of the appellant. The point may be stated in a very small compass. There is an undoubted, mystry about the fate of one Kedar Nath, who was engaged in commercial pursuits. He was a Bania who lived in Calcutta and who, for adequate reasons, namely, that he, was accused of, embezzlement, disappeared. This happened in December 1907, that is to say, just a little more than 13 years before this suit. He was only 23. He had no children. He had a young wife, and although feeble efforts have been made to prove his subsequent existence, nothing definite is known about it. If one had merely, on questions of fact, to draw inferences permitted by Section 114 of the Evidence Act, many considerations would have to be taken into account, including what has been pressed upon its on behalf of the respondent, that in the case of one who was not shown to have left the country, it is almost certain by now that he is dead. On the other hand, one can not leave out of account the fact that, for man 31 years, he had paramount reasons for remaining concealed, that a childless wife is not much esteemed in this country, and that the war which followed seven years afterwards has altered, one may say, the comparative values of inferences as to the whereabouts of persons whose. addresses are unknown. Many Indians have joined, or followed the troops, and have remained abroad. The Post is far from perfect, as yet. The widow, alleging permission from her husband, a fact which has been rejected by the Court below, went through the form of adopting a son in 1916 and the present defendant-appellant being then plaintiff, brought a suit seeking a declaration that the adoption was void. The respondent to this appeal setting up the adoption naturally relied on the presumption, or shifting of the onus, defined by Section 108 of the Evidence Act. Now, if there is one thing more certain than another it is that it is clearly established in India, as in England, particularly expressed in a Full Bench decision reported as Muhammad Sharif v. Bande Ali 11 Ind. Cas. 474 : 34 A. 36 : 8 A.L.J. 1052 (P.B.) that what the Court may presume under Section 108 is confined to the factum of death. It cannot presume that, because the person has not been heard of, he died at any particular moment, or in any particular way, or from any particular cause and, that being so, the defence in the former suit was bound to fail because the presumption being the sole thing which was relied on, the Court was prohibited by law from finding that Kedar Nath had died before 1915, the date of adoption. It might express an opinion as strongly as it pleased that he was dead at the date of the suit but, in my judgment, that would be are dictum, and even although it framed are issue, and went to the length of holding that he was dead at the date of suit, it would not be an issue as defined by Section ii of the Civil Procedure Code, substantially or directly in issue between the parties to that suit. It would be irrelevant, because he might be presumed dead at the date of the suit, and yet not dead suit the date of the adoption which was the only material question to be decided. Encouraged by the observations of the learned Subordinate Judge, who dealt with the former suit, the widow made a second attempt to adopt, namely, on the 18th June 1910, and having in her favour, other advisers thinking that they had it their favour, an expression of opinion that the Wan was dead in 1918 and that, therefore, he must be still dead in 1919, this suit Was brought for partition, based upon the adoption which itself was based the alleged decease before June 1939. The learned Judge in disposing of this second suit, in a very clear judgment, with lit disposing of the question of fact, has held himself compelled to adept the theory on which the suit was based, namely, that the issue of death was res judicata, that death in the year 1918 had been established in the previous suit, and that, therefore, he was compelled by law to hold that it was proved to have occurred before June 1919. In this respect we find ourselves unable to agree with him as ratter of law. There is no doubt as to his view. He says:" When once intar partes he was presumed to be dead when the question next arises, he will be presumed to have died, when it was decided inter anesthect he is presumed to be dead." The fallacy in that statement is that there was no decision, in favour of the presumption of his death inter partes. There was merely an expression of opinion. The question whether he could be presumed to be dead inter partes in that suit was not one which was substantially or directly it issue within the meaning of Section 111 of the Code." We, therefore, think that the decision on the question of res judicator was wrong. We feel less hesitation in dismissing the suit, which after all we are bound to do if that is our view, inasmuch as, at any rate in my opinion, this suit is premature, and really an abuse of the Court. The respondent's Counsel pressed us on the question a fact, namely, that the death was proved. But lien one listened to him one realized that his wife unable, to pursue the argument on the question tact, with found condition Apply grasping the weapon, if I may so describe the presumption which he professed as frequently to have thrown away. That is to say, white, at one breath he disclaimed any desire to use the presumption, it found a frequent place in his argument, and necessarily so, because this actual evidence, of this man's dead, this nil, and the surrounding circumstances can only, be treated as giving rise to a legitimate inference of fact, greater or less according to the particular opinion of the individual who is asked to draw the inference. I feel, it desirable to express my view about two aspects of this part of the respondent's argument, In the first place, have no faith in a case which I am Satisfied has been run, if I may use the expression, by some legal gentleman propounding a theory. One question is whether this woman either herself thinks, or is entitled to ask a Court to think, that her husband was dead in 1919 and her absence from the box and her failure to produce any evidence before the Court tending to show that she has latterly regarded herself, and been regarded, by her friends and relations as a widow, is certainly not encouraging to any one who is asked to draw an inference which might be destroyed in one blow by the re-appearance of this comparatively young man. If she is not prepared to state her reasons for her own belief, it is rather a strong thing to, ask the Tribunal to do what she appears to shrink from. Secondly, and I am very much impressed by this view of the case, if we were to hold other wise, it seems to me that it would always be possible, in the unusual circumstances which have arisen in this case, for a, plaintiff, desirous of benefiting by a presumption of death, to bring a suit, which he or she knows is bound, to fail, asking the Court to find death at a particular date of the suit, which is admittedly immaterial, and having got (a, dictum in favour of 7 an, immaterial issue in a suit which ought never to have been brought at all, to. bring another suit, and to try and force the Court to the length of following the presumption which it has already made by an, irrelevant dictum in an improper suit. That would amount to an abuse &, "the process of the Court. Three father observations arise which that. Ever if we followed; the suggestion of the respondent's Counsels me starting to examine the evidence novo endeavored to arrive at a decision on that issue of facts, we could then do rip; more than act on the presumption that Kedar Nath was dead at the date of thing suit The full Bench decision prohibits us Born finding that he was dead before that date, It seems to me, therefore, that a decision would not benefit the plaintiff. I do not think furthermore, that in the first suit the Judge, who is the same -Judge who decided the suit and who is particularly clear in the expressions of his reasons, ever intended to say what it is alleged; that he did say, namely, that he was satisfied that the man was dead at that the of suit, the sentence relied upon is merely his way in my opinion, of interpreting Section 108 in the English tongue, It should be observed, furthermore, that in the appeal from; this judgment in the first suit to the District Judge, the question of the correctness or otherwise or the dictum, and its legal effect upon the position, of the parties disappeared altogether, and it ceased to possess any claim to amount to a decision inter parties. The Subordinate Judge in his judgment in the first suit said: "Under Section 108 of the Evidence Act the only presumption will be that Kedar Nath is now dead." This seems merely his way of interpreting the presumption which may legitimately be drawn for under Section 108, viz., that he was dead at the date of the suit and not at any earlier date. Finally I am satisfied that no injustice can be done to the plaintiff by the dismissal of this premature suit. There are methods known to the law by which she can establish the issue of fact in her favour if the strength of her case permits. I think this suit is-an indirect attempt to get a decision in favour of the adoption about which her advisers had some qualms. The appeal; therefore, must be allowed and the suit dismissed in all Courts with costs. The money deposited by the appellant by way of security will be re-paid.
2. This order is without prejudice to any previous order which we have made providing the conditions imposed upon the re-admission of this appeal, the defendant having been guilty of every possible neglect before he eventually was enabled to bring the matter before this Court. As an addendum to the foregoing: judgment we are asked to state that there is a second point which the appellant, if he had failed upon the point which we have just decided in his favour, desired to raise, namely, that the widow, having no permission from her husband, could not adopt after the estate vested in the surviving member of the joint family. As all the facts are ascertained on that question and in the event of this case. going further and the decision of that question becoming necessary, all the material for its decision is available upon the record. We think we should be serving no public interest by hearing arguments upon it, being of opinion that the suit ought to be dismissed in any case. We are told that the point is a trouble some one.
Ryves, J.
3. I agree in the order proposed and generally in the reasons stated by my learned brother.
4. It seems to me that Section 108 of the Evidence Act enables a Court, to shift the burden of proof, that a person who was alive at a, given, date, on to; the party who asserts that, he, is still alive, if he has not been heard of by people who presumably would, have heard of his being still alive after seven years, and if, satisfied in the circumstances of the case, that he is dead, having regard to the definition of "proof" in Section 3 of the Evidence Act, it may presume and find as a fact that he is dead. But it does not follow that merely because a person has not been heard of for seven years, where there is no positive or reliable evidence that he is in fact alive, the Court must find that he was dead at the date of suit, much less that he was dead at any given particular date. This, I think, is the fallacy underlying the judgment of the Court below. I doubt if even now the wife brought a, suit for a declaration that her husband was now dead, whether the Court, on the evidence on the record as it stands, (particularly in the absence of any evidence given by the wife) would be justified in holding that the husband was in fact dead. In a case where a man has no ostensible or probable reason to disappear, it might be otherwise. Take case where a man goes our a voyage in a Ship which is never heard of again, or where, as happened in a case within any knowledge in this Court, a Irhah started in a country-boat on ordinary business to cross the Ganges then swollen and turbulent in flood miles wide, in the rains, and neither he nor the boat was ever heard of a girl. After seven, years of absence, on proper evidence, a Court might well act on Section 108 and hold the man was dead when the suit was brought. On the other hand, there was another case in this Court where, in my own experience as Government Advocate, a man wanted for murder, Was unheard of for over 15 years; and thereafter by accident was discovered and arrested in Rangoon where he had been living all along and prospering. Each case must be decided on its facts, having regard to the probabilities of human life and conduct
4. What are the facts here? The husband aged 23, was in business in a Bania's firm in Calcutta. He embezzelled his master's money, and to avoid prosecution deliberately absconded, presumably with; the money in his pocket. So far as the evidence goes, he has not been heard of since but is" it reasonably problem, from the point of view of the "prudehrhan" to believe that he is in fact dead. He had every reason to remain "perdu"; there is no limitation against criminal prosecution in India. True, he left behind a young wife. We have no evidence a s to whether his relations With his wife were happy or otherwise. People of this caste are married young without previous acquaintance usually. We do know that she was childless, and as she must have been married to him for some years, having regard to the habits of the country, and had no did, he may well have despaired of getting a son. For all we know, he may now be prospering with a new family in Kenya or East Africa, or Burma, or any of the other places outride India, where it is common knowledge that Indian Banias and pedlars have settled. There is the additional fact that the wife was apparently not left in indigent circumstances so that there was no stringent obligation o a the husband to provide for her supports This learned Judge below has not come to a decision on the merits. As pointed out by my learned brother, he has held that by reason of his previous judgment (which, however, did not decide that the husband was dead then) he was barred by the rule of "res judicata" from holding otherwise now. I feel some doubt whether we should net have remanded the case back, but, on the whole, I agree with the order proposed.