Missing for seven years can be declared as Dead

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.

SECOND APPEAL NO.  18/2016

Sou. Swati  w/o Abhay Deshmukh
vs
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.

FACTS:

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.

SUBMISSIONS:

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.

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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
it.”

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 :

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“ 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.

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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.:­

ORDER

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.

JUDGE

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