JUDGMENT J.B. Pardiwala, J. This First Appeal under Section 96 of the C.P.C. is at the instance of the original plaintiff and is directed against the judgment and decree dated 28th March 2016 passed by the City Civil Judge, City Civil and Sessions Court No.5, Ahmedabad City in Regular Civil Suit No.3187 of 2013. 2. The facts giving rise to this First Appeal are in a very narrow compass. 2.1 The husband of the appellant herein viz. Shri Himmatbhai Ramanbhai Purabiya, was serving in the Health Department of the Ahmedabad Municipal Corporation as a permanent 'Safai Kamdar'. The husband of the appellant, all of a sudden went missing from 22nd August 2006. On 1st September 2006 a Janvajog entry no.170 of 2006 came to be registered in this regard at the Ellisbridge Police Station. Despite best of the efforts, the whereabouts of the husband of the appellant could not be known. It appears that the husband of the appellant was the sole earning member of the family. With the sudden disappearance of the husband, the appellant and her family has landed-up in lot of difficulties. The Corporation is inclined to grant compassionate appointment to the appellant, but the only thing coming in the way of Corporation is that it is not clear whether the husband is dead or not. The compassionate appointment can be given to the wife only on demise of the husband. 2.2 In such circumstances referred to above, the appellant hereinabove preferred the Special Civil Suit No.3187 of 2013 for a declaration that her husband is deemed to be dead as his whereabouts are not known past more than seven years. The trial Court framed the following issues vide Exh.10. "[1] Whether the plaintiff proves that her husband missing and dead as alleged and to affer job she filled present suit bonofiedly ? [2] To whar relief, if any, the plaintiff is entitled for ? [3] What order and decree ?" 2.3 The issued framed by the trial Court came to be answered as under :- (1) Partly in the affirmative. (2) Negative. (3) As per the final order. 3. It appears that the suit came to be dismissed by the Court below on account of a serious misconception of fact as well as law. The issue before the Civil Court was not with regard to the compassionate appointment. (2) Negative. (3) As per the final order. 3. It appears that the suit came to be dismissed by the Court below on account of a serious misconception of fact as well as law. The issue before the Civil Court was not with regard to the compassionate appointment. The issue before the Civil Court was with regard to a declaration that the husband of the appellant is deemed to be dead. This part of the relief has been granted by the trial Court. However, ultimately, the suit came to be dismissed on account of non-joinder of the necessary party i.e. the Ahmedabad Municipal Corporation. According to the trial Court, the relief with regard to the compassionate appointment could not have been granted in the absence of the Corporation before the Court. 4. Ms. Panchal, learned counsel appearing for the appellant is right in her submission that there was no need for the trial Court to confuse itself with issue of compassionate appointment. The suit could have been allowed with the declaration that the husband is deemed to be dead, and then on the basis of such legal declaration, the appellant could have prayed for compassionate appointment before the Corporation. 5. As noted above, the issue no.1 has been answered partly in the affirmative. The findings recorded by the trial Court in paragraph nos.12 and 13 are relevant and reproduced as under :- "(12) The evidence in cross-examination of the Plaintiff has been recorded by A.G.P. Mr. Alaybhai Bhatt vide Exhibit-10, wherein she states that, mother is alive and she lives with the elder brother of her husband. Her husband has other brothers and sisters. My husband is missing and I myself lodged the complaint regarding the same. Public notice was also given in the newspaper to trace her husband but she has no evidence regarding the same. Not only that, the Plaintiff does not even state as to when was the public notice was given. It appears from the record that, the complaint was made before the police and though the police attempted to trace out Himmatbhai, he could not be found and the police Officer has given the certificate dated: 24/09/2006 vide Exhibit-29, regarding the noteworthy entry made in Elisbridge Police Station. The plaintiff has again produced the certificate dated: 02/12/2011 vide Exhibit-29 therefore it appears that, Himmatbhai could not be found during 22/08/2006 to 02/12/2011. The plaintiff has again produced the certificate dated: 02/12/2011 vide Exhibit-29 therefore it appears that, Himmatbhai could not be found during 22/08/2006 to 02/12/2011. It means that, it can be believed upon the statement of the Plaintiff that, Himmatbhai could not be found. (13) Declaration and injunction falls under the discretion of the court. If the plaintiff, as a matter of right, prays, it is not proper and reasonable for the court to grant her request and prayer each time. When contested and better evidence is produced with bonafide intention, the court may grant the prayer of declaration and injunction in favour of the Plaintiff. The present case is of declaratory nature. As discussed above, the plaintiff has neither given statutory notice to the corporation nor joined it as the party. Moreover, inspite of passing order, the notice has not been duly served to the corporation. Hence, it could be held in favour of the plaintiff that, her husband has not been found past more than seven years andt although it is a good case for obtaining the job from the corporation by the plaintiff, the corporation has not been joined as party without any just or reasonable ground as discussed above. The Ld. advocate for the Plaintiff has not made any representation as to why it is not necessary to join the corporation as party. Hence, the issue No. 1 is replied in partly affirmative, i.e. the person is missing, and issue No.2 is replied in negative and following order is passed in connection with issue No.3." 6. In my view, the Court below committed an error in dismissing the suit on the ground of non-joinder of necessary party. The trial Court has already recorded a categorical finding as regards the fact that the husband is missing past more than seven years and he could be presumed to be dead. 7. Let me explain the position of law as regards the Sections 107 and 108 of the Evidence Act is concerned. 8. 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 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, the burden of proving that he is alive is shifted to the person who affirms it." 9. 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 rebut table presumption of law that he died sometime within that period." "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 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." 10. The statement of law as contained in 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 5 ChApp 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. 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." 11. In N. Jayalakshmi Ammal and Ors. V. R. Gopala Pathar and Anr., (1995) Supp1 SCC 27, the Supreme Court went in-depth into the jurisprudential concept underlying Section 107 and 108 of the Evidence Act and referred to commentaries of settled authority by 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, (1926) AIR 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 Ors. 's case (supra) has been reiterated in Darshan Singh and Ors. v. Gujjar Singh (D) by Lrs. and Ors., (2002) 2 SCC 62 . 12. 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 ChApp 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. 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". 13. 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. 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. 14. 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. 14. 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 basic fact and presumed fact, in the case of most presumptions it is by no means intellectually compelling. In our opinion, a presumption of fact or law which has gained recognition in 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. 15. On the basis of the above said authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in 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 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 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. 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. 16. 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. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed. [See: LIC of India Vs. Anuradha, (2004) LawSuit(SC) 378]. 17. In Lal Chand Marwari vs. Mahant Ramrups Gir and Another, (1926) AIR 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. Anuradha, (2004) LawSuit(SC) 378]. 17. In Lal Chand Marwari vs. Mahant Ramrups Gir and Another, (1926) AIR 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 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." [See: AIR 1926 PC 9 ] 18. In Mukunda Behera v. Subarna Bewa, (1962) AIR Orissa 3, reliance was placed on Lal Chand v. Ramrup Gir, (1926) AIR PC 9, and it was held that if a person has not been heard of for seven years, 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. Bhagats case, (1965) AIR Madras 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). 19. In the result, this appeal is allowed. In Huseinny J. Bhagats case, (1965) AIR Madras 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). 19. In the result, this appeal is allowed. The judgment and decree dated 28th March 2016 passed by the City Civil Judge, City Civil and Sessions Court No.5, Ahmedabad City in Regular Civil Suit No.3187 of 2013 is hereby quashed and set aside. The finding recorded by the trial Court that the husband of the appellant is missing past more than seven years is upheld. Having regard to the same, it is hereby declared that the husband of the appellant could be said to be dead. An appropriate decree shall now be drawn in accordance with law. In the peculiar facts of this case, the Registry shall see to it that the decree is drawn as early as possible. 20. As the main appeal has been disposed of today, the Civil Application No.1 of 2018 become infractuous and the same is also disposed of.