1. This was a suit by the appellant for a share in the property of his father, Umar Daraz Beg, who died on May 11th, 1399. It appears that Umar Daraz was the owner of some property which he transferred by a deed of gift to his wife, Musammat Nijabat Begam. She died in 1899, leaving her husband, two sons and a daughter surviving her. Accordingly, 25 sahams out of an assumed 100 sahams passed to Umar Daraz Beg, 30 sahams to each of the sons and 15 sahams to the daughter. Umar Daraz Beg, as already stated, died in 1899. The question is of what his property then consisted. His son Yakub Ali has been missing since 1897. The plaintiff's case is that Yakub Ali should be presumed to have died in 1897 so that his property passed to his father Umar Daraz and the latter's property should be considered to be 55 sahams out of the original 100 sahams. The lower Appellate Court has held that there is no proof and no presumption that Yakub Ali died in the life-time of his father. All that can be presumed is that he is dead. The appellant relies on a rule of the Muhammadan Law which is stated in these words at page 116, volume II, Mr. Amir Ali's book on the Muhammadan Law:
2. 'Among the Hanafis, a missing person or makfudulkhabar is considered alive during this period so far as regards his own property but dead as regards the property of others. On the expiration of this period, he is to be accounted dead with respect to his own property and with respect to the property of others, as if he had died on the day of his being missing.' The authorities are not agreed as to the length of the period referred to in this rule. Some put it as low as 60 years, others put it as high as 120 years. We are not concerned with the length of the period. If this rule is a rule of evidence, it was abrogated by Section 2 of the Indian Evidence Act. But if it is a rule of succession as contended by the appellant, then we are bound to apply that rule to the present case under Section 37 of the Civil Courts Act.
3. It seems to us that the question is settled by a ruling of this Court in Mozhar Ali v. Budh Singh 7 A. 297; A.W.N. (1884) 333 where it was held by Mahmood, J., that the first part of the rule set out above is a rule of evidence, and it was held by the Full Bench that the rule contained in Section 108 of the Evidence Act governs the case of a Muhammadan who was missing for more than seven years. In our opinion, the decision of the lower Appellate Court is correct. The appeal fails and is dismissed with costs including fees on the higher scale. With reference to the fourth ground of appeal, the Court of first instance will now proceed to determine the account of mesne profits payable in respect of the share decreed to the appellant.