𝐖𝐡𝐞𝐧 𝐜𝐚𝐧 𝐭𝐡𝐞 𝐄𝐬𝐭𝐚𝐭𝐞 𝐨𝐟 𝐚 𝐌𝐢𝐬𝐬𝐢𝐧𝐠 𝐏𝐞𝐫𝐬𝐨𝐧 𝐛𝐞 𝐈𝐧𝐡𝐞𝐫𝐢𝐭𝐞𝐝 𝐛𝐲 𝐭𝐡𝐞 𝐒𝐮𝐜𝐜𝐞𝐬𝐬𝐨𝐫𝐬? 𝐒𝐂 𝐃𝐞𝐜𝐢𝐝𝐞𝐬

𝐖𝐡𝐞𝐧 𝐜𝐚𝐧 𝐭𝐡𝐞 𝐄𝐬𝐭𝐚𝐭𝐞 𝐨𝐟 𝐚 𝐌𝐢𝐬𝐬𝐢𝐧𝐠 𝐏𝐞𝐫𝐬𝐨𝐧 𝐛𝐞 𝐈𝐧𝐡𝐞𝐫𝐢𝐭𝐞𝐝 𝐛𝐲 𝐭𝐡𝐞 𝐒𝐮𝐜𝐜𝐞𝐬𝐬𝐨𝐫𝐬? 𝐒𝐂 𝐃𝐞𝐜𝐢𝐝𝐞𝐬

An important  case pertaining to the distribution of the estate of a missing person among the successors came before the Supreme Court after going through the trial court, appellate court and the High Court.

In this case the Supreme Court was confronted with the questions of when a missing person is presumed to be dead; on whom the burden of proof lies to prove whether the missing person was dead or alive and when the cause of action with regard to the inheritance rights of the successors of a missing person arises.

The brief facts of the case in hand were that a person went missing for almost forty years when his brother’s siblings challenged a mutation made by the said  missing person in favor of his another brother during his lifetime and another mutation which was made as an inheritance presuming the missing person dead by his brother and sister who were uncle and aunt of the plaintiffs.  They were three brothers and one sister. The challenge thrown to the said mutations against the defendant uncle and aunt were made by the children of the brother who were deprived of the part their inheritance in the estate of the missing person.

In this background the Court held that the first mutation made in favor of the defendant brother by the missing person in his lifetime was challenged after almost forty years. The predecessor of the plaintiffs, the brother of the missing person, had also not challenged the said mutation in his lifetime. The Court held that it was on one hand time bared and on the other hand the predecessor had not challenged it in his lifetime. Thus, on these two grounds the said mutation was valid in favor of the defendants.

To the extent of the other mutation, which was regarding the property inherited by the defendant uncle and aunt from the missing person presuming him dead, the Court held that it is an admitted fact on the part of plaintiffs that their uncle was missing from the last forty years at the time of instituting the suit and no one had heard of him during this time. In such a situation, article 124 of the Qanoon e Shahadat comes into play which states that when the actual status of a missing person’s life is not known and no one from his relatives have heard of him for seven consecutive years, he shall be presumed dead and the onus to prove him alive will lie on the one who assets him alive. In the case in hand, the onus of proof of the life of the missing uncle was on the plaintiff in the light of this article which they failed to prove.

Similarly, the Court also noted that the plaintiffs’ father, who was brother of the missing person,  had died in the year of 1978 and the second mutation was sanctioned in 1988, much later after the death of the predecessor of the plaintiff. Thus, at the time the missing uncle had not been legally declared or presumed to be dead. And the settled law is that when a missing person is declared or presumed dead, this declaration will operate from the date of announcement or the actual date of death if known, but not from the date when he went missing.

The Court at the end dismissed the appeal filed by the plaintiffs and declared both the mutation valid in favor of the defendants.

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