A.P. Sen, J.
1. In this case, the learned Additional District Judge has non-suited the appellant-plaintiff on the ground firstly, that the presumption of death of Ghulam Murtuza cannot be drawn under Section 108 of the Evidence Act; and secondly, even if the presumption of death arises, she after the death of her brother, Mohd. Ishaq, became a co-owner along with his widow Mst, Nishat Bi alias Hidayat Bi.
2. Having heard the parties, I have formed the opinion that the appeal must be allowed. The view taken by the learned Additional District Judge can hardly be supported. He has refused to draw the presumption under Section 108 of the Evidence Act on the ground that Mst. Saleha Bi (P. W. 1), the plaintiff herself, has in para 7 of her cross-examination was not able to state categorically whether her father Ghulam Murtuza Was really dead or still alive within 30 years of the date of filing of the suit. The learned Additional District Judge failed to appreciate that Section 108 is in the nature of a proviso to Section 107 of the Evidence Act. So, when the question is whether a man is alive or dead, and it is shown that he was alive within 30 years, no doubt under Section 107 the burden of proving that he is dead is on the person who affirms it. But then Section 108 steps in aid. But when such a question arises, the law provides by Section 108 that if it is proved that if the person has not been heard of for 7 years, by those who would naturally have heard of him if he bad been alive, the burden of proving that he is alive is shifted to the person who affirms it
3. Now, the plaintiff in para 2 (a) of the plaint had specifically alleged that her father, Gbulam Murtuza became lunatic and left Bhopal and his whereabouts were not known for some 8 years prior to the filing of the suit. That allegation of her has not been denied by the defendant. On the other hand, the defendant in para 2 (a) of the written-statement admits that Ghulam Murtuza has left Bhopal. In the witness-box Sheikh Gullu (D. W. 1) further admits in para 11 of his deposition that the whereabouts of Ghulam Murtuza are not known for the last 8 or 9 years. That being so, the case fell within Section 108 of the Evidence Act, and there was a presumption of his being dead.
4. Sucb being the presumption in law, the demised premises was inherited by the heirs of Ghulam Murtuza, i. e., the plaintiff and her brother Mohd. Ishaq. Admittedly, Mohd. Ishaq is dead. The question for consideration is whether the plaintiff alone is the heir of Mohd. Tshaq or she inherited the share of her brother Mohd. Ishaq along with his widow, Mst. Nishat Bi alias Hidayat Bi. The learned trial ludge, having regard to the documents (Exs. P-3 and P-4) and the evidence of Mst. Saleha Bi (P. W. 1), Aziz Mohammad (P. W. 2), Kazi Mohammad Israil (P. W. 3) and Mehmood Ali (P. W. 4) held that Mohd. Ishaq had validly divorced Mst. Nishat Bi alias Hidayat Bi and, therefore, she did not inherit the estate of Mohd. Ishaq. That finding of his has been reversed by the learned Additional District Judge on the ground that Mohd. Ishaq only pronounced twice that he was divorcing his wife. The learned Judge has based his finding on the testimony of Mehmood AH (P. W. 4) and observed as follows :
'.....It is well settled that under the Mohammedan Law in order to divorce a wife, the pronouncement has to be made thrice. Since this was not done, it is difficult to hold that Mst. Hidayat Bi was validly divorced.'
5. The evidence on record clearly proves as an established fact that Mohd. Ishaq had validly divorced his wife Mst. Nishat Bi. Ex. P-3 is the application made by Mohd. Ishaq to Kazi Mohd. Israil (P. W. 3), and in that document he had clearly stated that he had divorced his wife by talak-ul-bain. The Kazi then recorded his statement (Ex. P-4) to the same effect. The law as stated in Mulla's Mohammedan Law, 16th Edn. pp. 289 and 290, is as follows :
'311. Different modes of talak.-- A talak may be effected in any of the following ways :--
(1) Talak Ahsan.-- This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat When the marriage has not been consummated, a talak in the ahsan form may be pronounced even if the wife is in her menstruation.
Where the wife has passed the age for periods of menstruation the requirement of a declaration during a tuhr is inapplicable; furthermore, this requirement only applies to an oral divorce and not a divorce in writing.
(2) Talak hasan.-- This consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs.
The first pronouncement should be made during a tuhr, the second during the next tuhr, and the third during the succeeding tuhr.
(3) Talak-ul-bidaat or talak-i-badai. This consists of-
(i) three pronouncements made during a single tuhr either in one sentence, e. g., 'I divorce thee thrice,' or in separate sentences, e. g., 'I divorce thee, I divorce thee, I divorce thee'; or,
(ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage, e. g., 'I divorce thee irrevocably'.'
The learned author then goes on to state that the Hanafis recognise two kinds of talak, namely, (1) 'talak-us-sunnat, that is, talak according to the rules laid down in the sunnat (traditions) of the Prophet; and (2) talak-ul-bidaat, that is, new or irregular talak.' Then he observes :
'But the triple repetition is not a necessary condition of talak-ul-bidaat, and the intention to render a talak irrevocable may be expressed even by a single declaration Thug if a man says :
'I have divorced you by a talak-ul-bain (irrevocable divorce)', the talak is talak-ul-bidaat or talak-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression 'bain (irrevocable)' manifests of itself the intention to effect an rrevocable divorce 'It therefore, follows that a talak-ul-bain (irrevocable divorce is a recognised form of divorce among the Hanafis. The Judicial Committee of the Privy Council in Saiyid Rashid Ahmad v. Mt. Anisa Khatun AIR 1932 PC 25 recognises this mode of divorce. Their- Lordships stated as follows :
'The divorce called talak may be either Irrevocable (bain) or revocable (raja). A talak bain while it always operates as an immediate and complete dissolution of the marriage bond, differs as to one of its ulterior effects according to the form in which it is pronounced. A talak bain may be effected by words addressed to the wife clearly indicating an intention to dissolve the marriage, either
(a) once, followed by abstinence from sexual intercourse, for the period called the iddat, or
(b) three times during successive intervals of purity, i.e., between successive menstruations, no intercourse taking place during any of the three intervals; or (c) three times at shorter intervals or even in immediate succession; or (d) once, by words showing a clear intention that the divorce shall immediately become irrevocable. The first named of the above methods is called ahsan (best), the second hasan (good), the third and fourth are said to be bidaat (sinful), but are, nevertheless, regarded by Sunni lawyers as legally valid.'
In view of the fact that the document (Ex. P-3) executed by Mohd. Ishaq recites that he had divorced Mst. Nishat Bi alias Hidayat Bi by talak-ul-bain, the finding of the learned Additional District Judge that she was not legally divorced and, therefore, she became an heir of Mohd. Ishaq and consequently a co-owner of the house along with the plaintiff and that the plaintiff, therefore, alone could not bring the suit for ejectment, cannot be accepted. In my view, the suit as framed Was maintainable,
6. The question then is whether Subsection (3) of Section 13 of the M. P. Accommodation Control Act, 1961 operates as a bar to the passing of a decree for eviction under Section 12 (1) (a) of the Act. The provisions of Section 13 (3) of the Act read as follows :
'13 (3) If, in any proceeding referred to in Sub-section (1), there is any dispute as to the person or persons to whom the rent is payable, the Court may direct the tenant to deposit with the Court the amount payable by him under Sub-section (1) or Sub-section (2), and in such a case, no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same.' Admittedly, there was no compliance by the defendant of the requirements of Section 13 (1) at any stage of the suit. He did neither deposit the arrears of rent within one month of the service of the writ of summons nor did he deposit any rent on the 15th day of each month during the pendency of the suit. The contention that he was not obliged to comply with the requirements of Section 13 (1) cannot be accepted. The suit was founded, amongst other, on the ground mentioned in Section 12 (1) (a). That being so, the provisions of Section 13 (1) were, at once, attracted. The defendant did not raise any dispute under Section 13 (3) as to the person or persons to whom the rent was payable. The plea that the plaintiff was not the landlord taken in the written-statement was not a dispute falling within the purview of Section 13 (3). Under the scheme of the Act, when a suit is based on the ground mentioned in Section 12 (1) (a), the tenant must comply with the requirements of Section 13 (1). If there is any dispute as to the amount payable, he may apply under Section 13 (2) for fixation of a reasonable provisional rent in relation to the accommodation. Or, if there is a dispute as to the person or persons to whom the rent is payable, he must apply under Section 13 (3), and in such a case the Court may direct the tenant to deposit with the Court the amount payable by him under Section 13 (1). In such a case, no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same. The terms of Section 13 (3) are clear and explicit. No dispute in terms of Section 13 (3) was ever raised. The defendant not having complied with the requirements of Section 13 (1) must, therefore, be evicted under Section 12 (1) (a) of the M. P. Accommodation Control Act, 1961.
7. In the result, the appeal succeeds and is allowed. The judgment and decree passed by the learned Additional District Judge are reversed and those of the learned trial Judge decreeing the plaintiff's suit are restored, with costs throughout. Counsel's fee, as per schedule or certificate whichever is less.