It is thus seen that the said Mohammed Ismail has been missing and is not heard of for a period of more
than seven years since before the filing of this petition. Therefore, in view of the provisions of section 108
of the Evidence Act presumption about his death can be drawn. Petitioner has also filed the affidavits of
his mother, Smt. Jamila and sister Mrs. Najabul Nisha in support of the petition. It appears that the
heirship certificate is required for the purpose of obtaining the terminal dues of the said Mohemmed
Ismail. The Mumbai Port Trust authorities have informed this court the total amount payable to the said
Mohammed Ismail is Rs. 97,195/ -. The petitioner and his mother and sister being the only legal heirs of
the said Mohammed Ismail who must be presumed to have died, are entitled to get a legal heirship
certificate in their joint names for collecting of dues which were payable to the said Mohammed Ismail.
HIGH COURT OF BOMBAY
Mohammed Ali Mohamamed Ismail Khan V/S STATE
Date of Decision: 14 June 2001
Citation: 2001 LawSuit(BOM) 983
Hon'ble Judges: J A Patil
[1] Heard Shri K. G. S. Tripathi for the petitioner.
[2] By this petition, the petitioner has prayed for declaration and order of presumption about the death of
his father Mohammed Ismail Idu Khan, who has been not heard for a period of more than 7 years. He has
further prayed for issue of legal heirship certificate in his name as well as in the name of his mother Smt.
Jamila Mohammed and sister Mrs. Najabul Nisha. It appears that the missing person - Mohammed Ismail
Idu was working as Tindel with the Bombay Port Trust Authorities and that he was removed from the
services in 1988. He was the a resident of village Nandi, Makhadumpura Kala, Thana Bazar Shukl, Tehsil
Musafirkhana Ragiganj, Dist. Sultanpur in U. P.
[3] According to the petitioner his father Mohammed Ismail has been missing and that he has not been
heard of for more than seven years. Earlier the petitioner had filed Misc. Petition No. 47/2000 in this
court, praying for a declaration that his father is a missing person. However, this court rejected that
petitioner on the ground that no such declaration could be granted and that the petitioner was at liberty to
file a petition for succession certificate or heirship certificate. This order was passed on 9. 11. 2000.
Thereafter, the petitioner filed the present petition for the above mentioned reliefs.
[4] A proclamation issued and duly published, inviting objections, if any, from any person to the grant of
heirship certificate to the petitioner, his mother and sister. However, nobody appeared before this court
within the stipulated period of one month after publication of the proclamation to raise any objections for
grant of such certificate. Petitioner has affirmed that his father Mohammed Ismail has been missing from
Mumbai since 23rd January, 1985 and that all efforts to trace him have been unsuccessful. He has also
averred that the police were informed and that search was made at different places but without any avail.
It is thus seen that the said Mohammed Ismail has been missing and is not heard of for a period of more
than seven years since before the filing of this petition. Therefore, in view of the provisions of section 108
of the Evidence Act presumption about his death can be drawn. Petitioner has also filed the affidavits of
his mother, Smt. Jamila and sister Mrs. Najabul Nisha in support of the petition. It appears that the
heirship certificate is required for the purpose of obtaining the terminal dues of the said Mohemmed
Ismail. The Mumbai Port Trust authorities have informed this court the total amount payable to the said
Mohammed Ismail is Rs. 97,195/ -. The petitioner and his mother and sister being the only legal heirs of
the said Mohammed Ismail who must be presumed to have died, are entitled to get a legal heirship
certificate in their joint names for collecting of dues which were payable to the said Mohammed Ismail.
[5] In the result, the petition is granted in terms of prayer clauses (a) and (b). Legal heirship certificate be
issued accordingly on petitioner's furnishing a surety in the sum of Rs. 97,000/ -.
[6] Petition is accordingly disposed of. Certified copy expedited. Petition allowed.
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