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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 18/2016
1) Sou. Swati w/o Abhay Deshmukh
Aged about 44 years, occu: Private
2) Ku. Swapna d/o Abhay Deshmukh
Aged about 20 year, occu: student
3) Ku. Swagata d/o Abhay Deshmukh
Aged about 16 years, occu; student
(Through Natural Guardian of Appellant no.1.)
All R/o 55 G, Siddeshwar Apartment
Behind State Bank of India
Trimurty Nagar, Nagpur. ... APPELLANTS
v e r s u s
1) Shri Abhay s/o Purushottam Deshmukh
Aged about 52 years, occu: LIC Agent
(Last known)
R/o 55G, Siddeshwar Apartment
Behind State Bank of India
Trimurty Nagar, Nagpur
(last known address).
2) The State of Maharashtra
Through Collector, Nagpur
Civil Lines, Nagpur. .. ... RESPONDENTS
…........................................................................................................................
Mr. S.V.Purohit, Advocate for the appellants
Mrs. P.D. Rane, AGP for respondent no.2State
............................................................................................................................
CORAM: A.B.CHAUDHARI, J
.
DATED : 26th February, 2016
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ORAL JUDGMENT:
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
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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
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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
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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
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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
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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 party
defendant 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
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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
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and issue death certificate.”
d) No order as to costs.
JUDGE
sahare
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