Judgement Appeal (No. 20 of 1943) from a decree of the Court of the Judicial Commissioner (June 13, 1941), which affirmed a decree of the Senior Subordinate Judge of Peshawar (December 23, 1938), by which a suit brought by the appellants against the respondents was dismissed. The following facts are taken from the judgment of the Judicial Committee The appellants were the parents of Lady Shamas Shah, who was the wife of a retired officer of the political service of the Government of India. The respondents were his nephews. Lady Shamas Shah and her husband lost their lives in the earthquake at Quetta, which occurred early in the morning of May 31, 1935. Sir Shamas Shah was sixty-eight at the time of his death, and his wife twenty-six. They had no children. At the time of the earthquake Sir Shamas Shah, his wife, her younger sister, and one Musammat Faruq, a maid servant, were staying in his bungalow, which collapsed in the earthquake. They were buried under the debris. Opposite their bungalow was the bungalow in which the appellants lived with their son, Bashir Ahmmed, and certain other persons. That bungalow also collapsed, but the appellants Law. Rep. 71 Ind. App. 171 ( 1943- 1944) K. S. Agha Mir Ahmad Shah V. Mir Mudassir Shah 67 extricated themselves from the ruins and, accom-panied by their son, hurried across to the residence of Sir Shamas Shah to find out what had happened there. It was admitted that Sir Shamas Shah and his wifes sister were already dead when their bodies were recovered from the ruins. It was also admitted that Musammat Faruq survived the disaster as to Lady Shamas Shah, the appellants set up the case that she was " taken out alive " when she was extracted at about the same time when her husbands body was recovered, and that she thus survived him, though she expired immediately thereafter. The respondents denied that Lady Shamas Shah was " taken out alive " from the crumbled bungalow, and that she survived her husband. They contended that, not having survived him, she did not inherit from him, and the appellants had no title to the suit property on that ground. The parties were Muhammadans. The respondents denied that Lady Shamas Shah was " taken out alive " from the crumbled bungalow, and that she survived her husband. They contended that, not having survived him, she did not inherit from him, and the appellants had no title to the suit property on that ground. The parties were Muhammadans. As Sir Shamas Shah died without issue, assuming Lady Shamas to have survived him, his heirs on his death, under the Muhammadan law were, (1.) his widow, who became entitled to a fourth part of the estate, and (2.) his nephews, the present respondents, who took the remaining three-quarters. On the death of Lady Shamas Shah, her parents, the present appellants, claimed in the suit out of which this appeal arose that they became entitled to the fourth part which she, their daughter, had inherited from her husband. If she did not survive her husband, then the respondents were entitled to the entire estate. The decision in the dispute thus depended on the question " Did Lady Shamas Shah survive her " husband/ and on that basis, issue 4 was framed, which was, " Did one-quarter of the property devolve on Lady Shamas " Shah on the ground that she survived her husband ? " The onus of proving the above issue was on the appellants, who sought to discharge it (1.) by adducing direct evidence of witnesses who said they saw that Lady Shamas Shah was taken out alive from the debris, and (2.) alternatively, in the event of the evidence as to her survival being found insufficient, by relying on what they alleged to be a presumption of law, that where two persons had died in circumstances rendering it uncertain which of them survived the other, the younger should be deemed to have survived the older, and consequently, that Lady Shamas Shah, being the younger of the two, should be presumed to have survived her husband. The respondents also adduced evidence in support of their case. The trial court held that the evidence adduced by the appellants was not above suspicion, and that there was no presumption in law that in a common calamity the younger of the two deceased persons should be deemed to have survived the elder. In the result the suit was dismissed. There was on record a statement that had been made by Musammat Faruq before a Commissioner, one Mrs. In the result the suit was dismissed. There was on record a statement that had been made by Musammat Faruq before a Commissioner, one Mrs. Quasim, who had been directed by the court to take her evidence. That statement supported the version of the appellants regarding the survivorship of Lady Shamas Shah. It was obvious that the statement being that of the only inmate of the bungalow who survived the disaster Would, if found true and acceptable, be of great value in the decision of the case, but it was excluded from consideration by the trial judge owing to an infirmity that attached to it. He also refused to summon the said Musammat Faruq as a witness under O. 16, r. 14, C.P.C., under which a court in India might of its own motion summon as witnesses strangers to the suit, as he was of opinion that the appellants had inexcusably omitted to examine her. On appeal, the Judicial Commissioners agreed with the trial judge on all the points urged before them, including what was alleged as the wrongful exclusion of the evidence of Musammat Faruq. They also refused to remand the case for the examination of that witness. In the result the appeal was dismissed, as it was not proved that Lady Shamas Shah had survived her husband. 1944. May 22, 23. Pritt K.C. and Handoo for the appellants. Pringle for the respondents. Law. Rep. 71 Ind. App. 171 ( 1943- 1944) K. S. Agha Mir Ahmad Shah V. Mir Mudassir Shah 68 July 3. The judgment of their Lordships was delivered by SIR MADHAVAN NAIR, who stated the facts set out above and continued In this appeal it may be mentioned at the very outset that Mr. Pritt, counsel for the appellants, has rightly not relied on the so-called presumption in law regarding the survivorship of Lady Shamas Shah urged in the courts below. It is clear to their Lordships that when two individuals perish in a common calamity, and the question arises as to who died first, in the absence of evidence on the point, there is no presumption in law that the younger survived the elder. As was observed by Lord Campbell L.C. in the leading English case on the subject, Wing v. Angrave (( 1860) 8 H. L. C. 183, 198.) ".... As was observed by Lord Campbell L.C. in the leading English case on the subject, Wing v. Angrave (( 1860) 8 H. L. C. 183, 198.) ".... Such " a question is always from first to last a pure question of " fact, the onus probandi lying on the party who asserts the " affirmative." This rule has not been modified in India by any statute as has been done in England by s. 184 of the English Law of Property Act, 1925. Counsel, however, urged that though there is no presumption in law the survivorship of the younger should be considered as "an element in the " evidence " bearing on the question as to who died first. As to this, their Lordships need only observe that the distinction which counsel seeks to draw is very thin. It is obvious that in a disaster like an earthquake it is a matter of pure chance whether the younger or the elder would be killed first. It may well be that the younger might receive injuries which cause instantaneous death, while the elder might merely be buried under the debris and eventually die of suffocation. The case presented before the Board appears to be one of concurrent findings of fact not involving any substantial question of law, which, according to the usual practice, would necessarily entail its dismissal. It was strongly urged by counsel, however, that the rule is not absolute, and that there-are exceptional circumstances in the case which, if attended to, would persuade their Lordships to hold that the findings should be re-opened. The main argument is that the statement of Musammat Faruq was wrongly excluded from consideration, and that the Board should in the interests of justice remand the case to India for fresh disposal after taking her evidence. To appreciate this argument it is necessary that the circumstances which led to the Exclusion of her statement should be examined. The material circumstances are these —A contemplated settlement of the case being found impossible, the court appointed, on December 2, 1937, one Mrs. Quasim as Commissioner to take the evidence of the appellants " female witnesses," the second appellant, and Musammat Faruq. In pursuance of that order Mrs. Quasim examined them both on December 19. The material circumstances are these —A contemplated settlement of the case being found impossible, the court appointed, on December 2, 1937, one Mrs. Quasim as Commissioner to take the evidence of the appellants " female witnesses," the second appellant, and Musammat Faruq. In pursuance of that order Mrs. Quasim examined them both on December 19. She appended the following note to the evidence —" Pleader Said Ali Shah [pleader for " respondents 1 and 4] had come to my compounder who " informed him that the statement will be taken at 3 p.m. " I waited for 15 minutes, after which I took the ladies " statements. No pleader on either side appeared. Therefore " no cross-examination. Plaintiffs attorney present, Agha " Chan Badshah." In order No. 11, dated December 20, 1937, the court noted " counsel as before .... In view of " the finding of the court and request for change of date as " pleaders were ill, she should have postponed recording the " statements." On February 24, 1938, in order No. 13, the following order was passed —" Parties and counsel as before. " Plaintiff 1 absent again. Furnishes a medical certificate " of being unable to attend. Counsel agree to the plaintiff " being examined by open Commission. Issue Commission " for K. S. Mir Ahmad Shah to Dr. Nur Ilahi pleader. For " (2.) to Dr. Miss Rishi . . . ."The expression " For (2.) to "Dr. Miss Rishi" meant that the 2nd plaintiff was to be examined by Dr. Miss Rishi. She was accordingly examined on March 27, 1938. On April 14, 1938, after noting the names of the counsel for the plaintiff and defendant, the court passed the following order " Two of P.W.s of N.-W.F.P. will be " produced in court it is stated. Balance of P.W.s statements " will be recorded by Commissioner already appointed ; also " of D.W.S. to be taken by the same Commissioner." Some more orders were passed respecting the examination of witnesses and the production of evidence. The appellants and respondents closed their cases on August 25, 1938, and November 2, respectively, and the case was posted to December 7, 1938, for arguments. On the above date counsel for the appellants put in an application to the effect that the statement of Law. Rep. 71 Ind. App. The appellants and respondents closed their cases on August 25, 1938, and November 2, respectively, and the case was posted to December 7, 1938, for arguments. On the above date counsel for the appellants put in an application to the effect that the statement of Law. Rep. 71 Ind. App. 171 ( 1943- 1944) K. S. Agha Mir Ahmad Shah V. Mir Mudassir Shah 69 Musammat Faruq should be recorded. On this, the Senior Subordinate Judge passed a long order which, after referring to the relevant orders, concluded as follows — obviously the statement of Musammat Faruq recorded " on December 19, 1938, cannot be admitted in evidence. " This must have been obvious to the plaintiffs counsel " on April 14, 1938, and he should have then asked " the court for orders for the examination of this " witness. " Counsel for the plaintiff pleads an unintentional omission, " and asks me to summon Musammat Faruq as a court witness " under O. 16, r. 14, as she is a vitally important witness. " Counsel for defendants object on the ground that the evidence " of both parties is closed. It is contended also that the " omission was intentional on the part of the plaintiffs " counsel. " I have considered this question carefully, and am of " opinion that it would be seriously detrimental to the " defendants case to admit this witness at this stage. I do " not consider that it is the duty of the court to remedy an " omission by a party to the suit which may be intentional " or, if not, must be due to neglect.” The following extract from the judgment of the Judicial Commissioners explains their reasons for not considering the statement of Musammat Faruq and for their refusal to remand the case for examining her " We are of opinion that the " evidence of Mst. Faruq given before Mrs. Quasim cannot be " taken into consideration ; nor should the plaintiffs be given " a further opportunity of examining her. We cannot presume " that counsel for defendants 2 and 3 was notified in time so " as to appear before Mrs. Quasim on December 19. These " defendants bad no opportunity of cross-examining her. It " is quite apparent that the plaintiffs were negligent in not " having her examined later. We cannot presume " that counsel for defendants 2 and 3 was notified in time so " as to appear before Mrs. Quasim on December 19. These " defendants bad no opportunity of cross-examining her. It " is quite apparent that the plaintiffs were negligent in not " having her examined later. Both she and the 2nd plaintiff " had appeared before Mrs. Quasim. When the 2nd com-" mission was issued to Miss Rishi the 2nd plaintiff was "examined, but no attempt was made to get Mst. Faruq " examined and counsel for the plaintiffs on two occasions " gave statements which show clearly that all the evidence " which was to be taken at Peshawar had been completed. " We are not prepared to remand the case for the examination " of this witness, and we cannot take the evidence which she " gave before Mrs. Quasim into consideration." It appears to their Lordships that full and cogent reasons have been given by the learned judges for rejecting the evidence of Musammat Faruq and for refusing to call her as a court witness. It is true that counsel for respondents 1 and 4 knew that the Commissioner would examine her on December 19, but it is not a necessary inference from this that counsel for respondents 2 and 3, who was a different individual, had timely notice of the information. Indeed, it would be very dangerous to act on the evidence of this witness, as it had not been subjected to cross-examination. The Senior Subordinate Judge indicated his opinion to the parties at a very early stage that Mrs. Quasim should not have recorded the statement of Musammat Faruq on December 19. In consequence, when Miss Rishi was appointed as Commissioner, appellant 2, who had already been examined on December 19 by Mrs. Quasim, was examined afresh by the appellants, but not Musammat Faruq. The evidence of both these witnesses was subject to the same infirmity. No reasonable explanation for the omission to examine this witness before Miss Rishi had been offered. It may be that the appellants did not want her evidence at all, for reasons best known to themselves, or that they thought that she might be produced and examined in court. The evidence of both these witnesses was subject to the same infirmity. No reasonable explanation for the omission to examine this witness before Miss Rishi had been offered. It may be that the appellants did not want her evidence at all, for reasons best known to themselves, or that they thought that she might be produced and examined in court. Referring to his order passed on April 14, 1938, the Senior Subordinate Judge remarks " orders were also passed " for the examination of those of the witnesses who were " residing outside N.-W.F.P. In this order no mention is " made of Musammat Faruq, who was residing in Peshawar " City." There is great force in the observation of the Judicial Commissioners that the appellants would seem to have abandoned the idea of producing Musammat Faruq in court. On August 25, 1938, their counsel filed the statement that their case was closed, and the request that the statement of Musammat Faruq should be recorded was made on December 7, Law. Rep. 71 Ind. App. 171 ( 1943- 1944) K. S. Agha Mir Ahmad Shah V. Mir Mudassir Shah 70 when the case was taken up for argument, more than a month after the respondents had closed their case on November 2, 1938. In the circumstances the courts below were right in rejecting her evidence. It also appears to their Lordships that they were right in not acceding to the request of the appellants to examine Musammat Faruq, whether their omission to examine her was intentional or due to neglect. The power of the court under O. 16, r. 14, C.P.C., to examine witnesses on its own motion is discretionary. The courts in India have in this case for very good reasons refused to exercise their discretion in favour of the appellants, and their Lordships also are not prepared to exercise it. No case has been made out for re-opening the concurrent finding of the courts below that it has not been proved that Lady Shamas Shah survived her husband. In the circumstances their Lordships would accept the finding and humbly advise His Majesty that this appeal should be dismissed, with costs.