IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 18/2016
Sou. Swati w/o Abhay Deshmukh
Shri Abhay s/o Purushottam Deshmukh
CORAM : A.B.CHAUDHARI, J.
DATED : 26th February, 2016
1. After hearing learned counsel for the appellants, this Court found that this Appeal should be decided at the stage of admission itself, in view of the short controversy involved in the matter.
2. The appellant no.1 Smt. Swati w/o Abhay Deshmukh and her two daughters filed a suit being Regular Civil Suit No.376/2015 in the Court of learned Joint Civil Judge, Junior Division, Nagpur for a declaration of civil death, obviously referable to Section 108 of the Evidence Act, with a prayer to seek declaration that Abhay Deshmukh died civil death since he went missing from 16.7.2006 and was not heard of since then. A report at the Police Station, Ranapratapnagar, Nagpur was lodged on 16.3.2008 that despite due diligence and enquiry made from time to time, Abhay Deshmukh could not be found. Mr. S.V. Purohit, learned counsel for the appellants submitted that Abhay Deshmukh did not have a passport. The period of seven years from 16.7.2006 having been lapsed, the Police Station Officer Ranaprapnagar issued a certificate dated 18.3.2015 (Exh. 18) and it is thereafter the Suit was filed. All the documents relevant to the Suit were filed with required court fees. The affidavitevidence was filed before the trial Court when the suit was taken up for hearing. The Police Station Officer was also examined before the learned trial Judge. The learned trial Judge, however, dismissed the Suit. The appellants preferred an Appeal. The learned District Judge8, Nagpur too dismissed the same and confirmed the decree of dismissal. Hence, the instant Second Appeal is preferred at the instance of the appellants.
3. In support of the Appeal, Mr S.V. Purohit, learned counsel for the appellants submitted that the Civil Suit was filed on civil death referrable to section 108 of the Evidence Act, by invoking the plenary jurisdiction under Section 9 of the Civil Procedure Code. The Courts below with reference to Section 34 of the Specific Relief Act made confusion for denying the relief, whereas as matter of fact, there was absolutely no contest, no relatives, friends or for that matter even the State because none including the State objected to the grant of relief pursuant to the notification published by the Court in the newspaper on 21.4.2015 (Exh.13) and, therefore, it was required to be presumed that none have objection for grant of objection. At any rate, according to him, the relief under Section 108 of the Evidence Act that was sought, was obviously for the benefit of the dependents of Abhay Deshmukh and not for seeking relief against anybody. The Courts below should not have dismissed the Suit for reasons which are not germane. He relied the decision in the case of LIC of India vs. Anuradha: AIR 2004 SC 2070.
4. At the first hearing, this Court had noticed that the appellants/plaintiffs did not array any defendant in the trial Court or the lower Appellate Court other than the missing husband. But then fact remains that there was no contest to the relief claimed by the plaintiffs namely, the wife and two children, seeking declaration of civil death of Abhay Deshmukh since a period of seven years had passed from the date of his missing. This Court, therefore, had directed the appellants to add the State of Maharashtra: through Collector as a party/respondent to this Appeal. Accordingly, the amendment has been carried out and Mrs. P.D. Rane learned A.G.P. appears for the State. As a matter of fact, there is no need for her to make any arguments. But then it was necessary to have State as a party respondent. Be that as it may, in the light of the submissions made by the learned counsel for the appellants, following substantial question of law will have to be framed :
“(i) Whether the Courts below committed error in
dismissing the suit filed by the plaintiffs by which the relief
under Section 18 of the Evidence Act for declaration that
Abhay Purushottam Deshmukh is not alive by virtue of the
lapse of period of seven years from the date of his
disappearance on the ground that the date of death was not
specified and that there was no compliance of Section 34 of
the Specific Relief Act? …Yes.
What order ? …As per final decree”
5. Sections 107 and108 of the Evidence Act read thus :
“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 a person is alive who
has not been heard for the 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
6. There is no need for this Court to delve upon the niceties of interpretation of Sections 107 an108 of the Evidence Act, as the issue is no more res integra, in view of decision of the Hon’ble Supreme Court in AIR 2004 SC 2070 (supra), the relevant portion from the said judgment is quoted below :
“ On the basis of the above said authorities, we
unhesitatingly arrive at a conclusion which were 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 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.”
7. In the light of the dictum laid down by the Apex Court as above, I am of the firm opinion that the Civil Court acting under Section 9, has inherent powers in its plenary jurisdiction de hors with reference to Section 34 of the Specific Relief Act to grant relief qua Section 108 of the Evidence Act. Therefore, the reason that Section 34 of the Specific Relief Act was required to be called in aid does not appear to be sound.
8. The next question is about absence of any defendant in the array of the suit. It is true that the appellant did not array any defendant in the suit, perhaps because there was no objection from anybody or any family members even pursuant to the public notice that was issued by the Civil Court itself. Nevertheless, in my opinion, the appellants should have made the State of Maharashtra, through Collector, Nagpur as partydefendant to the Suit, since in such an eventuality, it is the State, which cares for the interest of its people and, therefore, the Court may take the assistance of the State, for finding out the truth. This Court, therefore, allowed the appellants to add Collector as defendant in this Second Appeal, which is in continuation of the Suit and, therefore, an effective decree can always be passed. I do not find that there could be any objection from the State through Collector, Nagpur since despite publication by the Court about the Suit inviting objections, if any, none responded to raise any objection including the State. At any rate, looking to the pleadings, it is clearly seen that the wife and two children of Abhay i.e. blood relations were before the Court seeking relief. The reasons recorded by the trial Judge that the date of death was not mentioned by or claiming by way of declaration clearly appears to be preposterous since none could be sure about the death, if any, and hence the Court could not have expected the appellants to ask for declaration about the death.
9. In the light of the above discussion, the Court below committed serious error in law, which has resulted into miscarriage of justice to the appellants, which must be corrected. In that view of the matter, the question framed by me above, is answered in the affirmative.
10. To sum up, following order is inevitable.:
a) Second Appeal No.18/2016 is allowed.
b) Impugned judgment and decree dated 2.9.2015 passed by Joint Civil Judge, Jr.Dn. Nagpur in R.C.S. No.376/2015 and judgment and decree dated 31.10.2015 passed by District Judge8, Nagpur in Regular Civil Appeal No.448/2015, both are set aside.
c) There shall be a decree in terms of prayer clause (2) of the suit which is reproduced below :
(2) Declare that the defendant Shri Abhay s/o Purushottam Deshmukh as a dead person and his death is civil death as he is missing from 16.3.2008 and issue death certificate.”
d) No order as to costs.