1. It appears to me that the first question which has been referred to us by the Division Bench cannot be decided without determining whether the rule of Muhammadan Law, that a missing person is to be regarded as alive till the lapse of ninety years from his birth, is a rule of the Muhammadan Law of 'succession, inheritance, marriage, or caste, or any religious usage or institution' within the meaning of the Bengal Civil Courts Act (VI of 1871). This, I think, is the first and necessary step in the reasoning which would lead to the answer we are called upon to give to this reference. If the rule forms part of the branches of law which I have mentioned, there can, I think, be no doubt that by the provisions of the Statute we are bound to decide the question according to the strict rules of the Muhammadan Law, whether or not such rules appear to us reasonable and adapted to the exigencies of modern life in this country. On the other hand, if such is not the case, the question must be determined according to the general law of British India, The provisions contained in Section 24 of the Bengal Civil Courts Act constitute one of the most important guarantees given to the people of India by the British rule, and they date as far back as the beginning of the British rule, itself, for they first found legislative enactment in the year 1780, when the first Regulation for the administration of justice was enacted by the Bengal Government; they have been repeatedly confirmed by Acts of Parliament, and have ever since remained in the statute-book of British India. And I think I may safely say that, ever since those provisions were first enacted, the Courts of Justice have been uniformly accustomed to regard the rule of Muhammadan Law as to missing persons as a rule forming an essential part of the Muhammadan Law of inheritance, succession, and marriage. It is not necessary to cite authorities for this proposition, and I have mentioned the circumstance simply to indicate the importance which must be attached to the question we are called upon to determine,--a question which affects the devolution of property owned by the entire Muhammadan population living within the jurisdiction of the Courts of Justice in British India. And because the question is one of so much significance, because by a long course of decision the Muhammadan Law has been held to govern it, and the people are in consequence accustomed to regard it as a rule binding upon the Courts, and because my own views on the subject are at variance from those which have hitherto been adopted in the cases to be found in the reports, I consider it necessary to refer to the original authorities of Muhammadan Law, in order to show, in the first place, that the rule which we are now considering is, according to the best recognized and most authoritative texts of the Muhammadan Law itself, neither a rule of inheritance, nor of succession, nor of marriage, and that the Muhammadan jurists themselves have regarded it as a rule belonging to that department of procedure which regulates the ascertainment of facts in judicial tribunals. In the second place, I shall deal with the argument which has been addressed to us regarding the effect which the provisions of the Evidence Act have upon the decision of the question.
2. Now, first as to the Muhammadan jurisprudence itself. It is a matter of the history of Muhammadan Law that when the Republic founded by the Prophet became an empire under the Khalifas of Baghdad, the exigencies of administration necessitated the establishment of Courts of Justice, for decision of disputes, and it was about that time that the jurists and doctors of the law endeavoured to frame a system of jurisprudence by supporting it with reasons deduced from those logical methods which the Arabian schoolmen had borrowed from the ancient philosophers of Greece. It was in consequence of this that the earliest systematized text books of Muhammadan jurisprudence were written, and by the concurrence of generations of jurists, principles and maxims were for ovulated and accepted as guides for judicial decision. Among the maxims which were thus established is the maxim, 'Certainty is not overridden by doubt,'(1) which, says the author of the Ashbah, the most celebrated treatise on maxims of Muhammadan Law, 'has been explained by some doctors to mean that the requisitions of certainty are not removed by doubt.'(2) The author goes on to say: 'In this maxim are included various rules, one of which is, that original condition is continuance of what was in the same state as it was.'(3) This rule, which I have literally translated, is technically called istis-hab, and it is thus dealt with by the same author under the maxim which I have just cited. 'The second benefit,' says the author, 'derived from the maxim relates to istis-hab, which means (as in the Tahrir) that a thing ascertained exists till there is probability of its extinction. There is a difference of opinion whether the rule can be employed as an argument by a claimant. Some hold that it is an absolute argument, while many altogether deny its efficacy. But the three profound doctors, Abu-Zaid, Shamsul-Aimma, and Fakhrul-Islam Bazdawi, hold that the rule may be employed as an argument in defence but not in attack (that is, in resisting a claim but not in seeking a right), and this doctrine has been generally accepted by the lawyers.... Another outcome of the maxim is that a missing person neither inherits nor is he inherited from.'(4) Fakhrul-Islam Bazdawi (to whom the author of the Ashbab has referred), in his celebrated book entitled the Principles of Jurisprudence has treated the rule in the chapter on analogical presumptions in these words: 'But employing istis-hab-alhal (continuance of condition) as an argument is correct according to Shafei, and this applies to all matters the necessity whereof is established by reason, and then doubt arises as to the discontinuance of those matters. In such cases the rule of istis-hab holds good, so that it may be used against the opposite party. And according to us it cannot be an argument of proof on behalf of a claimant, but an argument in defence; and on this (principle) are grounded the doctrines of our doctors for example, the life of a missing person.'(1)
3. So far as to the rule of istis-hab, which, as is abundantly apparent from these texts, is a rule of the Arabian system of reasoning as applied to legal questions. The exact manner in which the rule has been applied to the subject of missing persons is most fully explained in Birjandi, whose authority is undoubted among Muhammadans. 'A missing person,' says the author, 'is one whose trace is unknown, which means that his whereabouts, life, or death, be unknown, that is, all news about him be intercepted, and it be unascertainable whether he is dead or alive. Such a person is regarded as alive regarding his own rights, because it is certain that he was alive at one time, and this presumption of continuance (istis-hab) will apply till the contrary becomes apparent. His wife cannot marry, because, if she were to marry, it would necessarily imply his being dead, whereas the former marriages, being a certainty, cannot be destroyed by doubt. Nor will his property be distributed among his heirs, nor his contracts set aside, because these would also necessarily imply his being dead. The Kazi may appoint a person to take possession of his rights and protect his property, whether the heirs demand this or not, because in this is advantageous protection to him. He is regarded as dead in regard to rights of others, and does not therefore inherit, because to regard him as capable of inheriting would be to hold that proved which cannot be proved. Therefore the dictum that a missing person does not inherit has been explained to mean that his share in the property of his ancestor is to be held in suspense, because there is a possibility of his being alive till the expiration of ninety years from the time of his birth. This doctrine has been adopted by Imam Abubakar Muhammad Ibn-ul-Fazl, and has been approved by Sadrul-Shahid as mentioned in the Khulasa. Hasan-ibn-i-ziad held that the missing person should be declared defunct after the expiration of one hundred and twenty years from his birth, whilst Abu Yusuf maintained that one hundred years was the period, because in modern times no one lives longer. According to my own view the true doctrine is that a missing person should be declared defunct when none of his coevals remains alive. This rule has been adopted in the Zahiriya, Then it is said that the proper period is when his coevals in all the towns are dead, but the more correct opinion is that when his coevals in his own town are dead. Some learned doctors hold that his property will be held in suspense till, in the opinion of the Imam, he is to be considered dead, and that when such period has elapsed as the Kazi thinks is more than the usual age of persons like the missing person, then he will be declared defunct. Others maintain that the proper period is seventy years, Muhammad maintains one hundred and ten years, and Abu Yusuf one hundred and five; but these two sayings are not to be found in celebrated works, as stated in the Zaul Faraiz Sirajiya. In the Zakhira it is stated that Hanifa estimated the period at eighty years, and in the Fusul Imadiya it is said that he hesitated in this matter. In the Hedaya it is said that the most reasonable doctrine is that the term should not be fixed at any particular estimate, and that the benevolent doctrine is to fix it at ninety years. Upon the expiration of the term, the property of the missing person will be distributed among his heirs, such as are alive at the time, because he must be regarded as having then died, and therefore those who died before do not inherit from him. As to his rights to the property of others, he is to be regarded as dead from the day he has disappeared, because by the rule of istis-hab (continuance) his life must be presumed, and the rule is an argument for resisting a claim, though not for enforcing a right. For this reason he cannot inherit another's property (1).' Rules similar to those contained in this text are to be found in the Hedaya, Book XIII, which relates to the subject of mafkoods or missing persons ; but I need not quote much from that celebrated treatise, because the labours of Mr. Hamilton have rendered the book accessible to English readers. I may, however, mention the circumstance, that the author of the Hedaya lays it down as the opinion of Imam Malik, one of the great founders of Muhammadan jurisprudence, that ' at the expiration of four years the Kazi may pronounce a separation, after which the wife is to observe an iddat of four months and ten days, such being the iddat of widowhood, and she may then  marry whoever she pleases; because Omar thus decreed with respect to a person who disappeared from Medina.'(1)
4. Now, whilst Imam Malik maintains that the short period of four years is sufficient to raise the presumption of death of the missing person, the followers of the school of Imam Abu Hanifa are far from being unanimous as to the exact period neoessary for raising the presumption. I can illustrate this best by reading a passage from the Fathul Kadir, a most celebrated commentary on the Hedaya:
5. 'Shaikh Imam Abubakr Muhammad Ibn-i-Bamid has adopted the term of ninety years, because that is the probable age in our time. But this reason is not correct unless it be taken that the majority of long lives among people of our time do not exceed that limit. This may be so, but the moderns who have adopted sixty years have based the rule on the ground that that is the probable limit of age. In short, the disagreement has arisen from the difference of opinion as to whether the rule should be adopted according to the majority of long lives or of ordinary lives. In view of this, Shamsul-Aimma has said 'the most proper course according to legal methods is, that no estimate should be fixed, because it is impossible to fix any estimate by opinion, and this is what the author (of the Hedaya) means by saying the most reasonable (course). But we maintain that when none of the missing person's coevals remains (alive) he will be declared dead, regarding him in the condition of those like him.' This opinion is with reference to the Zahirur-Biwayat. The author (of the Hedaya) says that the most benevolent (opinion) for mankind is, that it (the period), should be fixed at ninety years, whilst it would be more benevolent to fix it at sixty years. In my opinion the best is seventy years, because the Prophet said, 'the ages of my people are between sixty and seventy years,' and therefore the longest of the two is the most probable. Some doctors maintain that the question should be delegated to the opinion of the Judge who, when he considers proper, should declare a missing person defunct.'(2)
6. I must quote one more passage from the Fatawa-i-Alamqiri, which explains the rule of Muhammadan Law on the subject in brief terms, and with a precision not to be found in other works. I am all the more anxious to cite this authority because the work, which is a monument of the industry of the Muhammadan lawyers, was prepared under the orders of the Emperor Aurangzeb, and was promulgated in India as the great Code of Muhammadan Law regulating the decision of disputes in India. The book possesses high authority, not only in this country, but under the name of Fatawa-i-Hindi, it is regarded in other Muhammadan countries, like Turkey, Egypt, and Arabia itself, as an authoritative work of Muhammadan jurisprudence. This great work summarizes the state of Muhammadan Law regarding missing persons in the following terms: 'A missing person is declared dead on the lapse of ninety years, and this is the accepted opinion. And in the Zahirur Biwayat the term is to be estimated by the death of his coevals, and therefore when none of them remains alive he is declared dead, and this is to be determined according to the death of his coevals in his town, as is said in the Kafi. The preferable (opinion) is that the question should be delegated to the opinion of the Imam, as is said in the Tabeen.'(1)
7. Now, reading these texts carefully, there can, I think, be no doubt, firstly that the rule of the Muhammadan Law as to missing persons has arisen from a maxim relating to the subject of evidence, and the rule of istis-hab, which is the outcome of that maxim, cannot be regarded as a rule of succession, inheritance, or marriage; secondly, that among the great doctors of the Muhammadan Law itself there is a great difference of opinion as to the exact manner in which the rule of istis-hab is to be applied to missing persons; thirdly, that as to the period necessary to elapse before the presumption of death can be applied to missing persons, Muhammadan jurists themselves are far from being unanimous; fourthly, whilst some of the greatest doctors of the law would leave the fixation of period to the discretion of the Judge in each individual - case, others consider the preferable course to be that the matter should be determined by the Imam, that is, by the ruling authority, as distinguished from the Kazi or the Judge presiding in a judicial tribunal. These conclusions are amply borne out by the texts which I have quoted, and they convince me that the rule of Muhammadan Law as to missing persons is a rule belonging purely to the domain of legal presumptions falling under the head of the law of evidence; and, I may say, with due deference, that in my opinion the reported cases which have been cited and which tend to support a contrary opinion are not based upon a sound view of the Muhammadan Law. It is true that, in some of the most celebrated treatises of that law, the rule has been discussed as if it were a part of the law of inheritance and succession; but, on the other hand, the Hedaya itself and some other equally authoritative treatises have dealt with the subject in a perfectly separate chapter, obviously because the authors regarded it as too general to be classed under any particular head, applying, as it does, to all the branches of law in which the death of a missing person may happen to be the subject of investigation. I think that in administering a medieval system of law it is supremely important that the Courts of Justice in British India should draw a clear distinction between the rules of substantive law and those which belong purely to the province of procedure, because, whilst under Section 24 of the Civil Courts Act the Courts are bound to administer the former branch of the law according to native laws in cases of succession, inheritance, and marriage, questions which go to the remedy, ad litis ordinationem, must be decided according to the general law of British India. The rule as to missing persons appears to my mind to be purely a rule of evidential presumption, and though before the passing of the Evidence Act there might have been perhaps some justification for the Courts to apply the rule to cases of Muhammadan succession, inheritance, and marriage, the provisions of Clause (1), Section 2 of the Evidence Act leave no doubt in my mind that we are now bound, in connection with all questions of evidence, to administer the rules contained in that Act, and it follows that the present case is governed by Section 108 of the Statute.
8. This view, considering the exigencies of the present case, renders it unnecessary for me to deal with the second question which has been referred to us by the Division Bench. My answer to the first question referred to us must therefore be in the affirmative; and I wish to add that I have dwelt at such length upon the original authorities of Muhammadan Law because they have never been translated into English, and also because if the Muhammadan jurists themselves had regarded the question as belonging to the substantive law of succession, inheritance or marriage, I should have, sitting here as a Muhammadan Judge, felt myself bound by the provisions of the Civil Courts Act to adhere to the view adopted in the cases to be found in the reports.
9. I have nothing to add, except that it appears to me that the rule of Muhammadan Law as to missing persons is clearly not a rule of succession, inheritance, marriage or caste, or any religious usage or institution. The matter is therefore governed by the ordinary statute law of the country, which on the point before us is contained in Section 108 of the Evidence Act.
Oldfield and Brodhurst, JJ.
11. The question referred to the Full Bench in this case is--'Does the rule contained in Section 108 of the Evidence Act govern the case of a Muhammadan who has been missing for more than seven years, in cases to which, under the provisions of Section 24 of the Civil Courts Act, the Muhammadan Law is applicable?' The answer really depends on the question whether the mode in which the death of the missing person is to be proved, is part of the Muhammadan Law of 'succession or inheritance.' By Section 21 of the Civil Courts Act, persons of the Muhammadan and the Hindu religions respectively are given the right of being governed in the matters therein referred to by their own law, but any other questions in which they are concerned are to be dealt with under the general law of the country. Now, questions of succession and inheritance are questions as to the manner in which property shall devolve or shall be distributed upon the death of the owner either with or without a will. I do not think that they are anything more. Then comes Section 108 of the Evidence Act, which provides 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.' Now, if a man's death has been properly proved, his estate will be divided according to the law of the community to which he belongs. But the first thing to be settled is the fact of his death, and only after that has been proved can questions of inheritance arise. The rule of Muhammadan Law in regard to missing persons dates from ancient times and from, social conditions to which it may well have been adapted. But to apply it to the totally different conditions of the present day, when the means of communication between distant places have been so extended and improved, and when no man can hide his existence from others in the manner which was formerly possible, and to presume that a man was living ninety years from he date of his birth, though his death was practically certain, would be a piece of gross injustice. It was to benefit the people of this country by enabling proof to be given of facts which should be known, that Section 108 of the Evidence Act was passed. For these reasons, my answer to the question referred to us is in the affirmative.