Judgement Appeal from a decree of the said Chief Court (Aug. 12, 1902) affirming a decree of Bigge J. (April 8, 1902). The question in the suit was as to the right of the appellant to a share in the estate of his paternal grandfather Moolla Hashim, his claim being as heir of his father Moolla Ahmed bin Hashim, who was the eldest son of Moolla Hashim, but had disappeared in 1869 or 1870. The appellant alleged that he was dead at the time of suit (August 9, 1901), and was to be presumed to have died at the end of seven years from 1886- 1887, when he was said to have been last seen at Bangkok, Siam. The plaintiff placed his fathers death about 1894, the said Hashim, his paternal grandfather, having died on January 27, 1884. Disputes arose as to the inheritance and as to an alleged will of the deceased. These were referred to an arbitrator, and the plaintiff claimed that the award was in his favour. Both Courts concurred in finding that Ahmed did not survive his father, referring to s. 108 of the Indian Evidence Act (I. of 1872). The first Court came to the conclusions (a) The plaintiff having failed to shew that Ahmed was either seen or heard of after he disappeared in 1869 or 1870 by those who would be likely to have -heard of him or by any one else, the presumption was that he died within seven years from that time, (h) Such being the presumption, and it being presumed that he Law. Rep. 32 Ind. App. 177 ( 1904- 1905) Moolla C assim Bin Moolla Ahmed V. Moolla Abdul Rahim 68 predeceased his father, Moolla Hashim, on the authorities referred to he could not inherit any share in the estate of Moolla Hashim, and his son the plaintiff had no claim as representing his father to such share, which must go to the heirs of Moolla Hashim. The appellate Court held that the onus lay upon the plaintiff to prove that Ahmed was now dead but was alive in 1884; that there was no presumption in the case that Moolla Ahmed was alive or that he was dead in 1884, and the question was one of proof and not of presumption; and that plaintiff (appellant) had not discharged the onus upon him. Asquith, K.C., and McCarthy, for the appellant, contended that, after the award made in his favour, the onus was on the respondents to shew that Ahmed predeceased his father, and that the onus of proving the contrary was not on the appellant. They referred to ss. 107 and 108 of the Indian Evidence Act, 1872, and to s. 90 of the Probate Act (V. of 1881). Haldane, K.C. Jardine, K.C. and Phillips for the respondents, contended that the award merely reserved a share for Ahmed in accordance with Mahomedan usage, in case he should prove to have been alive at his fathers death. It left the question open as to whether the appellant was entitled. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. Moolla Hashim, a wealthy Mahomedan resident at Rangoon, on May 13, 1878, executed a will by which (inter alia) he bequeathed certain property to hi& eldest son Moolla Ahmed and his two children. After the death of Moolla Hashim, which occurred on January 27, 1884, while he was on a pilgrimage to Mecca, one of his widows, named Shareefa Bee, disputed the validity of the will as not being in accordance with Mohomedan law, and it was ultimately referred to one Moolla Ismail, as arbitrator, to divide the property among those whom he should find entitled to share in it. He made his award on February 21, 1888, and in it he included Moolla Ahmed and his children among " the heirs and legatees " among whom the estate of the deceased was to be distributed. It is a well-known principle of Mahomedan law that if any of the children of a man die before the opening of the succession to his estate, leaving children behind, these grandchildren are entirely excluded from the inheritance by their uncles and aunts. In the present case Moolla Cassim, the only son of Moolla Ahmed, claims a share in his grandfathers estate in right of his father under Moolla Ismails award. In the present case Moolla Cassim, the only son of Moolla Ahmed, claims a share in his grandfathers estate in right of his father under Moolla Ismails award. In his plaint he states that he "is informed and verily believes that the said Moolla Ahmed left Rangoon in or about the year 1870 as a mendicant or fakir, and has not since that date returned to Rangoon"; that he last heard of him in or about the year 1886 or 1887, when he was reported to be in Bangkok, Siam; that he has not since been heard of, " and, according to the presumption of law, his death took place about 1894." The defendants are the surviving executors and heirs of Moolla Hashim, or the legal representatives of such of them as have died since his death, and they allege in their written statement that Moolla Ahmed "has never been heard of since his disappearance in the year 1870," and they submit to the judgment of the Court whether he may " now be considered as dead." Both Courts in Burma held that the plaintiff had failed to prove that Moolla Ahmed had been either seen or heard of after 1870, and that under the provisions of s. 108 of the Indian Evidence Act, 1872, the burden was on him to establish that his father had survived his own father, Moolla Hashim. They accordingly dismissed the suit with costs. These concurrent findings would ordinarily have sufficed to dispose of this appeal; but it was argued before their Lordships that the Courts below had failed to give proper effect to the circumstances of the reference to Moolla Ismail and to Law. Rep. 32 Ind. App. 177 ( 1904- 1905) Moolla C assim Bin Moolla Ahmed V. Moolla Abdul Rahim 69 the terms of his award, both of which, it was said, postulated that Moolla Ahmed was alive at the date of those transactions, and that he had therefore survived his father. Rep. 32 Ind. App. 177 ( 1904- 1905) Moolla C assim Bin Moolla Ahmed V. Moolla Abdul Rahim 69 the terms of his award, both of which, it was said, postulated that Moolla Ahmed was alive at the date of those transactions, and that he had therefore survived his father. The first observation that their Lordships have to make upon this contention is that the arbitrator was not called as a witness, though living at Mandalay, nor was he examined upon commission; secondly, that the agreement of reference has not been produced, and there is nothing to shew that Moolla Ahmed was a party to it; and, in the third place, there is nothing in the terms of the award that can properly be construed as evidence that Moolla Ahmed was alive when the award was made. It is true that the award states that " the deceased left six sons and five daughters," but it would be unwarrantable to treat an uncorroborated statement of this kind as proof that the arbitrator had satisfied himself that all Moolla Hashims children were still living. It is true also that the arbitrator in his award reserved a share for Moolla Ahmed and his children ; but this is quite intelligible on the ground that, according to Mahomedan law, a share ought to be reserved for a missing heir. Their Lordships agree with the Chief Court in the opinion that "the effect of the award was to recognise that Moolla Ahmed was missing, and to set aside his share until he should be found, or be proved or declared by competent authority to be dead " ; and their Lordships are, with the Chief Court, unable to see how the proceedings in the arbitration "can be regarded as an admission on the part of the other heirs, or as a finding by the arbitrator, that Moolla Ahmed was then alive." Their Lordships will humbly advise His Majesty that this appeal ought to be dismissed and the judgment of the Chief Court confirmed. The appellant must pay the costs of the appeal, including the costs of the appellants petition for leave to file additional evidence.