JUDGMENT : J.B. PARDIWALA, J. 1. This First Appeal under Section 96 of the Code of Civil Procedure, 1908 [for short the C.P.C.] is directed against the judgment and order dated 16.04.2014 passed by the Judge of the City Civil Court, Court No. 14, Ahmedabad in the Civil Suit (CCC) No. 2401 of 2012. 2. The facts giving rise to this First Appeal can be gathered from the Paragraph-2 of the impugned judgment and order passed by the Court below, which reads as under: 2.1 There is an immovable property bearing Survey No. 5100, T.P. Scheme No. 4, F.P. No. 106 admeasuring about 260 sq. yards having construction of 352 sq. yards over it. The said property is known as Dhruv Niwas. The plaintiffs have averred that the said suit property is in their joint possession. The plaintiffs further state that they are the owners of the suit property. 2.2 According to the plaintiffs, the said suit property was taken on lease hold rights of 99 years by the grandfather of the plaintiff nos. 2 to 4 viz. Balkrishna Muljibhai Dhruv. Balkrishna Muljibhai Dhruv died on 19.7.1966. The plaintiffs further states that after the death of Balkrishna Muljibhai Dhruv, the said suit property devolved upon his three sons viz. (1) Prabhasankar Balkrishna Dhruv, (2) Ratilal Balkrishna Dhruv, (3) Arvind Balkrishna Dhruv. Thereafter, the father of plaintiff nos. 2 & 3 viz. Prabhasankar Balkrishna Dhruv expired on 23.3.1989 and the father of plaintiff nos. 4 & 5 viz. Ratilal Balkrishna Dhruv expired on 16.5.1973. The plaintiffs have therefore, averred that after the death of Prabhashankar Balkrishna Dhruv and Ratilal Balkrishna Dhruv, the suit property had devolved upon the present plaintiffs by way of heirship. Accordingly, the names have been mutated in the City Survey records. 2.3 The plaintiffs further state that Shri Arvind Balkrishna Dhruv who is the uncle of plaintiff nos. 2 to 5 was serving in Army, but their grandfather had called him back from the Army and therefore, Arvind Balkrishna Dhruv was staying with the original plaintiffs in the Dhruv Niwas. The plaintiffs have further averred that their uncle viz. Arvindbhai Balkrishna Dhruv was in the habit of getting irritated on being asked about his whereabouts. Because of this habit of Shri Arvind Balkrishna Dhruv the father of plaintiff nos. 2 & 3 as well as plaintiff nos. The plaintiffs have further averred that their uncle viz. Arvindbhai Balkrishna Dhruv was in the habit of getting irritated on being asked about his whereabouts. Because of this habit of Shri Arvind Balkrishna Dhruv the father of plaintiff nos. 2 & 3 as well as plaintiff nos. 4 & 5 and the grandfather of the plaintiffs had stopped inquiring about the same from Arvindbhai. The plaintiffs have further averred that their uncle Arvindbhai round about in the year 1970 has left his house and at that time the original plaintiffs were under the impression that as per the habit of Arvindbhai he must have gone out of the house for one or two months and would come back. But their uncle Arvindbhai did not return even after 3-4 months. Therefore, the fathers of the plaintiff nos. 2 to 5 made an inquiry about Arvindbhai, but could not trace his whereabouts. The plaintiffs have further stated that Arvindbhai was a bachelor. According to them, no whereabouts or trace outs of Arvindbhai have been found till date. The plaintiffs are even not knowing as to whether their uncle Arvindbhai is alive or not and if alive where he is? 2.4 The plaintiffs have further stated that the plaintiffs want to sell out the suit property, but in the city survey record of the suit property, the name of their uncle is also there because of which, they are not in a position to sell out the suit property. According to them, since last 40 years their uncle Arvind Balkrishna Dhruv is not known of, no whereabouts or trace outs of their uncle is found. The plaintiffs have further stated that as their uncle was in the habit of going away from the house without saying anything to their grandfather, because of his habit, the grandfather of plaintiff nos. 2 to 5 had given a public notice on 19.9.94 relinquishing his rights from the suit property. According to the plaintiffs, since 1970 no letters are received by the plaintiffs from Arvindbhai. Thus, the plaintiffs have averred that the cause of action for filing this suit arose when the plaintiffs were in need of selling out the suit property, but because of the name of their uncle Arvindbhai, they could not sell out the same. Hence the present suit. 3. Thus, the plaintiffs have averred that the cause of action for filing this suit arose when the plaintiffs were in need of selling out the suit property, but because of the name of their uncle Arvindbhai, they could not sell out the same. Hence the present suit. 3. It appears that although the summons issued by the trial Court was served upon the Collector, Ahmedabad being the sole defendant, yet none remained present before the Court to oppose the suit. In such circumstances, the Court passed an order below Exh.1 dated 25.11.2013 to proceed with the suit ex-parte. 4. Having regard to the pleadings, the Court below framed the following issues: 1. Whether the plaintiffs suit as framed is maintainable in law? 2. Whether the plaintiffs suit fails for want of notice u/s.80 of the C.P. Code, 1908? 3. Whether the plaintiffs prove that Arvindbhai Balkrishna Dhruv is not heard of since 1970? 4. Whether the plaintiffs are entitled to get the relief as prayed for in terms of paragraph no. 6 of the plaint? 5. What order and decree? 5. The issues framed by the Court below came to be answered as under: 1. In the affirmative. 2. In the negative. 3. In the negative. 4. In the negative. 5. As per the final order. 6. The trial Court dismissed the suit holding as under: “Section-108 is a proviso to Section-107. In the scheme of the Evidence Act, though Section-107 & 108 are drafted as two Sections in effect, Section-108 is exception to the rule enacted in Section-107. Section-107 has the effect of shifting the burden of proving that he is dead is on the person who affirms it Section-108 subject to its applicability has the effect of shifting the burden of proving it on the one who affirms the fact on that person being alive. The presumption raised in Section-108 is limited presumption confined only to presume the factum of death of the person whose alive or death is in issue. In 2009 VI-1 GLH 164 in the matter of Puja Vijay Raichandani Wd/o Vijay M. Raichandani and Others, it has been held that if the whereabouts of the person concerned are not known from the other persons who are naturally supposed to know about him for about seven years or more, the presumption can be drawn that the person concerned is not alive. However, it is to be borne in mind that burden heavily lies upon the plaintiffs to establish beyond any reason of doubt that all efforts were made to trace out the person for whom relief has been sought for declaring him dead. In the case before the Hon'ble Gujarat High Court, it was shown and established that a missing report was filed before the concerned police station and as per the police record, the whereabouts were not known. Thus under those peculiar circumstances the Hon'ble High Court of Gujarat has held that as no evidence was filed to the contrary on record, it would be reasonable to proceed on the basis that Vijaychand is not alive. Coming to the facts of this case, the plaintiffs herein have save their bare words, not established before this Court the fact that reasonable efforts were made to trace out Arvindbhai Balkrishna Dhruv. Neither Balkrishna Dhruv, nor the plaintiffs have ever filed a complaint before the police authorities that Arvind Balkrishna Dhruv is missing since 1970. Even no public notice in respect of the same was ever issued by Balkrishna Dhruv or the plaintiffs. The plaintiffs in this case have produced a notice dated 19.9.49 given by deceased Balkrishna Dhruv at Exh.32. A bare perusal of the said notice makes it clear that it was given by Balkrishna M. Dhruv stating that his son Arvind Balkrishna Dhruv has since last three years separated in all respects from his family and that he has no right, title or interest in the properties and business belonging to Balkrishna M.Dhruv. This notice at no point of time can be said to be an effort to trace out Arvind Balkrishna Dhruv. The plaintiffs have even in this suit not tried to obtain the order of this court by getting a public notice issued in respect of the suit. Thus, the plaintiffs have miserably failed to establish that reasonable efforts were made to trace out Arvind Balkrishna Dhruv. In absence of such an attempt being made either by Balkrishna M. Dhruv or by the plaintiffs, this Court would refrain itself from making a declaration that Arvind Balkrishna Dhruv is dead. Learned Advocate for the plaintiffs has relied upon a judgment cited in AIR 1993 Bombay 64 and 1965 Madras 440. In absence of such an attempt being made either by Balkrishna M. Dhruv or by the plaintiffs, this Court would refrain itself from making a declaration that Arvind Balkrishna Dhruv is dead. Learned Advocate for the plaintiffs has relied upon a judgment cited in AIR 1993 Bombay 64 and 1965 Madras 440. In 1965 Madras 440 it has been observed and held by the Hon'ble Madras High Court that “All that we know is that this young man disappeared without a trace and has not been subsequently discovered, in spite of the best efforts.” Similarly, in 1993 Bombay 64 the facts of that case reveals that a missing report was filed by the petitioner with the police authorities. Newspaper advertisements were issued announcing reward to the informant for tracing the whereabouts of the person who was not heard of. All efforts to trace him out had failed and police authority had issued a certificate to the effect that the person was missing and could not be traced by the authorities. Both these judgments are of no help to the plaintiffs on the contrary are going against them. The plaintiffs herein have also miserably failed to prove that all reasonable efforts were made to trace out Arvind Balkrishna Dhruv. In the instant case, no newspaper advertisements were issued announcing reward to the informant for tracing Arvind Balkrishna Dhruv. No missing report was filed with the police authorities. Thus in absence of this, I hold issue no. 3 in negative and accordingly, hold that the plaintiffs have miserably filed to prove that the said Arvind Balkrishna Dhruv is not heard of since 1970. That being so, no relief as prayed for in terms of para-6 of the plaint can be granted in favour of the plaintiffs. Hence, I hold Issue No. 4 in negative.” 7. Being dissatisfied with the judgment and order passed by the trial Court dismissing the suit, the appellants are here before this Court with this First Appeal. 8. Mr. Salot, the learned counsel appearing for the appellants submitted that the trial Court committed an error in dismissing the suit on the ground that at no point of time, the appellants herein got an F.I.R. or a missing report registered at the concerned Police Station in connection with the whereabouts of Arvindbhai Balkrishna Dhruv. According to Mr. 8. Mr. Salot, the learned counsel appearing for the appellants submitted that the trial Court committed an error in dismissing the suit on the ground that at no point of time, the appellants herein got an F.I.R. or a missing report registered at the concerned Police Station in connection with the whereabouts of Arvindbhai Balkrishna Dhruv. According to Mr. Salot, the appellants have not heard anything about Arvindbhai past more than 40 years. Arvindbhai at the age of 22 years decided to join the Army. He was selected also for the post in the Army. However, later he dropped the idea of joining the Army. Since then, Arvindbhai left his home and his whereabouts are not known. He is missing past more than 40 years. Mr. Salot submits that the Court below has taken the view that for the purpose of presumption of death under Section-108 of the Evidence Act, an F.I.R. at the concerned Police Station and a public notice about the missing person is a must. Such a view according to Mr. Salot is erroneous and not tenable in law. In such circumstances referred to above, Mr. Salot, the learned counsel prays that there being merit in this appeal, the same be allowed and the declaration as prayed for be granted. 9. On the other hand, this appeal has been vehemently opposed by Mr. Rakesh Patel, the learned AGP appearing for the respondent. According to Mr. Patel, no error not to speak of any error of law could be said to have been committed by the Court below in dismissing the suit. According to Mr. Patel, it is very dangerous to draw a presumption of death only because the whereabouts of a particular person are not known to the family since a long period of time. If the family has no information about the missing family member, the same by itself is not sufficient to draw of presumption that the missing person must be dead. According to the learned AGP, an investigation by the police in this regard would lend some credence to the say of the family members that the person is dead as his whereabouts are not known to any one. In such circumstances referred to above, the learned AGP prays that there being no merit in this appeal, the same be dismissed. 10. In such circumstances referred to above, the learned AGP prays that there being no merit in this appeal, the same be dismissed. 10. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Court below committed any error in passing the impugned judgment and decree. 11. Let me explain the position of law as regards the Sections 107 and 108 of the Evidence Act is concerned. 12. Sections 107 and 108 of the Evidence Act reads as under: "107. Burden of proving death of person known to have been alive within thirty years - When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 108. Burden of proving that person is alive who has not been heard of for seven years - Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, burden of proving that he is alive is shifted to the person who affirms it." 13. There is no difference in the English Law and the Indian law on the subject. The English Law as stated in Halsbury's Laws of England (Fourth Edition, Vol. 17, paras 115 and 116) is as under: "115. Presumptions of life and death - There is generally no presumption of law by which the fact that a person is alive or dead on a given date can be established but the question must be decided on the facts of the particular case. Certain exceptions to this general rule are provided by statute, and, in addition where there is no acceptable affirmative evidence that a person was alive at some time during a continuous period of seven years or more and it is proved that there are persons who would be likely to have heard of him over that period, that those persons have not heard of him, and that all due inquiries have been made appropriate to the circumstances, there arises a rebuttable presumption of law that he died sometime within that period. 116. 116. Proof of life or death at a particular time. He who asserts that a person was alive on a given date, or dead on that date, must prove the fact by evidence, since there is no presumption of continuance of life, and, generally, no presumption of death at a particular time. Where there is insufficient evidence in support of the fact alleged, the party bearing the burden of proof will fail. Where the presumption of death after seven years absence applies, the person will be presumed to have died by the end of that period; where the presumption does not apply, or is displaced by evidence, the issue will be decided on the facts of the particular case. In some old cases, where neither the evidence nor the incidence of the burden of proof was decisive, the court made the best order it could in the circumstances. Where the question to be decided, for purposes affecting the title to property, is which of two persons died first, a statutory rule may apply. The question of whether a person was alive or dead at a given date will be decided on all the evidence available at the date of the hearing." 14. The statement of law as contained in the Manual of The Law of Evidence by Phipson and Elliott (Eleventh Edition at pp. 83-84). The learned authors after stating the presumption, further state: "It must be noted that the presumption is only as to the fact of death, not as to the time of death, so that if it has to be established that A was alive or dead on a particular day during the seven-year period, that fact will have to be proved by evidence, aided by any presumption of fact which the jury may see fit to act on. The presumption of death does not oblige the court to presume that death occurred at any time during the seven years, nor is there any presumption of law that life continued for any part of the seven-year period. Strictly, according to the leading case on the subject Re Rhene's Trusts (1870) L.R. 5 Ch. App. 139 the presumption only operates to establish that if at the date of an action in which the death is called in question, seven years or more have elapsed without news. A is dead at that date, i.e. the date of the action. Strictly, according to the leading case on the subject Re Rhene's Trusts (1870) L.R. 5 Ch. App. 139 the presumption only operates to establish that if at the date of an action in which the death is called in question, seven years or more have elapsed without news. A is dead at that date, i.e. the date of the action. Accordingly, it is impossible to use this presumption to prove that A was dead in, say 1950, even if he has not been heard of since 1943. This inconvenience has caused the strict rule to be departed from in some cases to allow presumption of death at any given date if seven years absence before that is shown." 15. In N. Jayalakshmi Ammal and Others Vs. R. Gopala Pathar and Another, (1995) Supp 1 SCC 27, the Supreme Court went in depth into the jurisprudential concept underlying Section 107 and 108 of the Evidence Act and referred to the commentaries of settled authority by the eminent jurists such as Sri John Woodroffe and Amir All's Law of Evidence, M. Monir's Principles and Digest of the Law of Evidence, Sarkar on Evidence as also the leading authority of Judicial Committee of the Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir, AIR (1926) PC 9, which has stood the test of the times for over three quarters of a century by now. The law laid down in N. Jayalakshmi Ammal and Others case (supra) has been reiterated in Darshan Singh and Others v. Gujjar Singh (D) by LRs. and Others, (2002) 2 SCC 62 . 16. Peter Murphy states in 'A practical approach to Evidence' (Second Edition pp 460-461) "The presumption is only that the subject died at some time during the period; his death on any particular day will not be presumed, and must be proved by evidence if in issue." The learned author having set out in brief the facts of the cases in Re Phene's Trusts (1870) 5 Ch. App. 139 and Chipchase v. Chipchase (1939) P 391 and having noticed the law laid down therein proceeds to state" The period of seven years is, however, strictly insisted upon, and it is often pointed out that, though the rule is to some extent illogical, a period of six years and 364 days is not enough. App. 139 and Chipchase v. Chipchase (1939) P 391 and having noticed the law laid down therein proceeds to state" The period of seven years is, however, strictly insisted upon, and it is often pointed out that, though the rule is to some extent illogical, a period of six years and 364 days is not enough. Nor is there any presumption that the subject died from any particular cause, died childless or died celibate, though these matters may be capable of inference on the evidence, as a question of fact. It should be remembered that it is always open to the court to infer death (or that someone is alive) as a matter of fact, as it is to make any other proper inferences from the evidence. No question of the presumption arises in such a case; it is a matter of circumstantial evidence. What is sometimes called the presumption of continuance an instance of which is that if a person is shown to be alive at a certain time, his continuing life may be inferred is no more than an example of such an inference, and will yield to the presumption of death where the latter applies." 17. Neither Section 108 of Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years absence and being unheard of having elapsed before that time. The presumption stands un-rebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. The presumption stands un-rebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death. 18. A presumption assists a party in discharging the burden of proof by taking advantage or presumption arising in his favour dispensing with the need of adducing evidence which may or may not be available. Phipson and Elliott have observed in 'Manual of the Law of Evidence' (Eleventh Edition at p.77) that although there is almost invariably a logical connection between the basic fact and presumed fact, in the case of most presumptions it is by no means intellectually compelling. In my opinion, a presumption of fact or law which has gained recognition in the statute or by successive judicial pronouncements spread over the years cannot be stretched beyond the limits permitted by the statute or beyond the contemplation spelled out from the logic, reason and sense prevailing with the Judges, having written opinions valued as precedents, so as to draw such other inferences as are not contemplated. 19. On the basis of the abovesaid authorities, I unhesitatingly arrive at a conclusion which I sum up in the following words. The law as to presumption of death remains the same whether in the Common Law of England or in the statutory provisions contained in Sections-107 and 108 of the Indian Evidence Act, 1872. In the scheme of the Evidence Act, though Sections-107 and 108 are drafted as two Sections in effect, Section-108 is an exception to the rule enacted in Section-107. The human life shown to be in existence, at a given point of time which according to Section-107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The human life shown to be in existence, at a given point of time which according to Section-107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section-108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years the presumption raised under Section-107 ceases to operate. Section-107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section-108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section-108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section-108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise. 20. If an issue may arise as to the date or time of death the same shall have to be determined on evidence direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on the premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed. LIC of India Vs. Anuradha, 2004 Law Suit (SC) 378. 21. In Lal Chand Marwari vs. Mahant Ramrups Gir and Another, AIR 1926 PC 9 , it was observed: "Now upon this question there is, their Lordships are satisfied, no difference between the law of India as declared in the Evidence Act and the Law of England [Rango Balaji vs. Mudiyeppa, (1899) 23 Bom. 296] and searching for an explanation of this very persistent heresy, their Lordships find it in the words in which the rule both in India and in England is usually expressed. These words taken originally from In re Phene's Trusts (L.R. 5 Ch. 139) follows: Following these words, it is constantly assumed not perhaps unnaturally that where the period of disappearance exceeds seven years, death, which may not so. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if, instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one of not less than seven years." 22. In Mukunda Behera v. Subarna Bewa, AIR 1962 Orissa 3, reliance was placed on Lal Chand v. Ramrup Gir, AIR 1926 PC 9 and it was held that if a person has not been heard of for seven gears, there is a presumption of law that he is dead but at what time within that period he died is not a matter of Presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. In Huseinny J. Bhagat's case AIR 1965 Mad 440 (supra), it was again held that the only presumption under Section- 108 of the Indian Evidence Act that can be raised is that the young man was dead at the time when the question arose (date of plaint). 23. This Court in the case of Pooja Vijay Raichandani W/o Vijay M. Raichandani Vs. State Bank of India, 2009 (1) GLH 164 has observed in Para7 as under: 7. As per the aforesaid provisions of law, for proving the factum of the death of the person concerned, if direct evidence is not available, two things may be required to be proved, first is that he was alive for 30 years before his death and while proving the question whether a person is alive or dead, if it is proved that he has not been heard for 7 years by those who would naturally have heard of him that he is alive, the burden of proving that he is alive would be shifted to the other side. Therefore, if the whereabouts of the person concerned are not known from the other persons who are naturally suppose to know about him for about 7 years or more, the presumption can be drawn that the person concerned is not alive. In the present case, the wife, son and the daughter, brother, father and mother of the person concerned are the relatives who may be aware about the whereabouts of the person concerned. It has been stated by all the aforesaid persons who are in blood relations of Shri Vijay Raichandani that he has left the home and his whereabouts are not known. Even as per the police record, his whereabouts are not known and he is missing. Therefore, under these peculiar circumstances, no evidence being available to the contrary on record, it would be reasonable to proceed on the basis that Vijay Raichandani is not alive and his first degree legal heirs viz. Pooja Vijay Raichandani, Neeta Vijay Raichandani and Satish Vijay Raichandani would be entitled to inherit the property by way of succession in absence of Shri Vijay Raichandani. 24. I am unable to agree with the view taken by the trial Court that in the absence of an F.I.R. or any police investigation or police record or in absence of any public notice, the presumption under Section-108 of the death cannot be drawn. 24. I am unable to agree with the view taken by the trial Court that in the absence of an F.I.R. or any police investigation or police record or in absence of any public notice, the presumption under Section-108 of the death cannot be drawn. I am saying so because Section-108 of the Evidence Act does not provide any particular procedure to be followed for the presumption of death. In view of the presumption of continuance of life, it was thought necessary to provide for the counter-presumption whether a person's death would seem more likely from the nature and circumstances of the case than the continuance of life. In such circumstances, where a person is continually absent from home for a period of seven years unheard of by persons known other than his own family members, who would have naturally received intelligence from him, he is presumed to be dead. The burden of proving that he is alive thereafter is shifted to the person, who affirms that he is not dead. It is a rebuttable presumption. The defendant in the present case has not appeared and contested the suit. The defendant has failed to rebut the presumption by leading any evidence. The presumption is embodied in Section-108 which is a proviso to Section-107. If a case comes within the four corners of Section-108, it is taken out of Section-107. 25. Section-3 of the Evidence Act prescribes the standard of proof by defining the word proved as follows: “Proved - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” If the test of preponderance of probability laid down by Section- 3 of the Act is applied, that is to say a fact is said to be proved if the Court considers its existence to be so probable that a prudent man ought, under the circumstances of the particular case, to act upon certain supposition that it exists, then it would have to be held that Arvindbhai has died sometime in 1970 or soon thereafter. If he was alive after 1970, there was no reason for him not to contact his immediate family members. If he was alive after 1970, there was no reason for him not to contact his immediate family members. It is not the case that Arvindbhai left the house in distress or he was under some disability which prevented him from returning home or even contacting his family members. Nor is it shown that Arvindbhai was missing in such circumstances or could be at such place wherefrom he could not even contact his parents or close family members. Considering the fact that Arvindbhai was not under any distress or disability nor was he in the situation wherefrom he could not contact his family members coupled with the fact that he has not contacted his family members at all since 1970 makes me, as a man of ordinary prudence, believe that Arvindbhai must have died in 1970 or soon thereafter. 26. In view of the above, I hold that Arvindbhai is presumed to be dead. 27. In the result, this appeal succeeds and is hereby allowed. The impugned judgment and decree is hereby quashed and set aside. The Civil Suit No. 2401 of 2012 is hereby allowed and decreed. It is declared that Arvindbhai Balkrishna Dhruv should be presumed to be dead. Decree to be drawn accordingly. Appeal allowed.