suresh 2-FA-1208.2015.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1208 OF 2015
Mrs. Vijaya Shrikant Revale,
Age: about 74 years, Occ: Nil,
residing at: Durgamata Colony,
Ris, Taluka: Khalapur,
District: Raigad. .... Appellant
- Versus -
1. Shirish Shrikant Revale,
Age: about 48 years,
Occ: Agriculture,
R/at Snehangan Apartment,
Durgamata Colony, Chambharli,
Taluka: Khalapur, Dist: Raigad.
2. Mrs. Shilpa Mahesh Devraj,
Age: about 41 years,
Occ: Household, residing at
A-308, Om Abhishek Housing
Society, Survarna Nagari Patha,
Bibavewadi, Pune-411 037.
3. Shrinivas Shrikant Revale,
Age: about 45 years,
Occ: Service, residing at
C-33, Ganesh Garden, in front
of Sugandha Lawns, Bibawewadi,
Pune-411 037. .... Respondents
Mr. Unmesh Gopal Dindore for the Appellant.
All Respondents present in-person.
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suresh 2-FA-1208.2015.doc
CORAM: MRS. MRIDULA BHATKAR, J.
DATE : FEBRUARY 24, 2016
ORAL JUDGMENT:
1. Admit. The respondents, who are present in-person in the Court, waive service. The appeal is forthwith taken up for hearing and final disposal, by consent and on the request of both the parties.
2. Affidavits of the respondents, i.e. two sons and one daughter of the missing person are produced. Learned counsel for the appellant/wife of the missing person submits that the respondents/children are present in the Court and they are supporting the case of the appellant and their affidavits be taken on record. The affidavits are taken on record.
3. In this appeal, Judgment and Order dated 9-2-2015, passed by Civil Judge, Junior Division, Khalapur, rejecting the application filed under Section 372 of the Indian Succession Act (for short, "the Act") is challenged by the appellant, i.e. the mother of the respondents.
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4. The appellant/applicant had filed Miscellaneous Civil Application No.25 of 2012 before the Civil Judge, Junior Division, Khalapur for granting succession certificate in respect of securities and properties belonging to her husband Shrikant Vishnupant Revale, who went missing since April, 2002 and was not seen or heard of for more than seven years. She claimed that she being the wife of Shrikant is entitled to claim the amounts invested by her husband in fixed deposits or in other various schemes, as specified in her application. An unfortunate fact in the said application, as per the case of the appellant, is that her husband is missing since 24-4-2002. On that day, he went out of the house and thereafter did not return. The appellant and her children tried their level best to get the whereabouts of Shrikant Vishnupant Revale. However, they could not succeed.
Thereafter, respondent No.1 Shirish gave information to Rasayani Police Station about the missing of his father. The police also tried their best to trace the appellant's husband. The appellant and her children also issued publication in a news-
paper about the missing of Shrikant Vishnupant Revale.
Page 3 of 10 ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:27:42 :::suresh 2-FA-1208.2015.doc However, neither Shrikant Vishnupant Revale returned nor his whereabouts were detected. Thereafter, from the concerned police station the appellant obtained certificate that though the police of Rasayani Police Station has investigated into the missing person's report registered as 7/2002, he was not found till then. On the basis of this document and as nothing was heard about Shrikant Vishnupant Revale, the appellant submitted an application under Section 372 of the Act for heirship. The respondents, who are the children of the appellant, did not contest the said application. In the said application, publication was issued. However, Shrikant Vishnupant Revale did not come before the Court. Neither anyone contested the claim of heirship nor contended that Shrikant Vishnupant Revale is alive.
5. The application was rejected by the Civil Judge mainly on the ground that it has no power to grant heirship certificate in the absence of specific averment in respect of the date of death of the missing person. As per sub-section (1) of Section 372 of the Act, the date of death of the deceased is Page 4 of 10 ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:27:42 ::: suresh 2-FA-1208.2015.doc required to be mentioned in the application. The appellant and the respondents are not aware of the date of death of their father, who went missing. The application was filed mainly under Section 108 of the Evidence Act. Section 108 reads thus:
"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."
Thus if a person is not heard of continuously for seven years, then it is to be presumed that he is dead unless it is countered, and if countered that the person is alive, then the burden to prove so lies on the person asserting.
6. The learned Judge of the trial Court has taken a view that Section 108 states about presumption of civil death of a person. However, it does not itself declare a person is dead or alive and therefore he insisted that the applicant should have filed a suit for declaration of death of the husband of the Page 5 of 10 ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:27:42 ::: suresh 2-FA-1208.2015.doc applicant. It also held that granting of succession certificate under Section 372 of the Act requires a summary inquiry and therefore rights and liabilities of the parties claiming succession certificate cannot be decided by the said Court. It is observed by the learned Judge that procedure contemplated for declaration of the civil death of a particular person is a detailed inquiry and therefore the learned Civil Judge has refused to grant the relief prayed for in favour of the appellant.
7. When a person is missing and his heirs apply for succession certificate under Section 372 of the Act, certainly the application is based on Section 108 of the Evidence Act. If a person missing is not heard of for more than seven years, then the legal heirs of the missing person cannot be deprived of the monetary assets of such person which are lying idle either in the bank or in other deposits. The status of the existence of the person who is not heard of for more than seven years is required to be fixed or to be declared for many practical purposes. Thus the issue cannot be kept in uncertainty and therefore under Sections 107 and 108 of the Evidence Act a way out is provided Page 6 of 10 ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:27:42 ::: suresh 2-FA-1208.2015.doc in the form of presumption of the fact. It is true that these are the rules of evidence. It provides a presumption that a person, if at all is not known or missing or not heard of for more than seven years, then it is to be presumed that he is not alive. There may be a possibility of his return. However, law has considered period of seven years as sufficient for the missing person either to come back or to give details of his whereabouts to his near relatives to whom generally his whereabouts are to be known. It is a presumption and therefore it is rebuttable. After fifteen years a person may come back and he may claim his assets. This possibility cannot be over-ruled. However, the law cannot take into account each and every remote possibility which may be closer to impossibility. The general yardstick of reasonableness and a prudent man's thinking is applied while appreciating any fact. In such cases of missing persons, the reasonable period is therefore not less than seven years, which is supposed to be a considerably longer period to find out the missing person. In the event of return of such person, the law can take care of a situation if further proceedings are taken out by such person.
Page 7 of 10 ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:27:42 :::suresh 2-FA-1208.2015.doc There may be such exceptional circumstances and those circumstances can be dealt with according to the facts of that particular case. In support of these submissions, I rely upon the ratio laid down by the Supreme Court in the case of L.I.C. of India v. Anuradha, reported in AIR 2004 SC 2070 wherein, in para 12, it is held thus:
"Neither Section 108 of the 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 unrebutted 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."Page 8 of 10 ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:27:42 :::
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8. Similarly, while dealing with the case of heirship certificate and where the date of death of the person missing is not known, under such circumstances, the Courts not to insist on compliance of sub-section (1) of Section 372 of the Act.
9. In the present case, the son of the appellant has given information to the police about the missing of his father and a case is registered. Even the said fact was published in the news-paper and since April, 2002 Shrikant Vishnupant Revale is missing and he did not return home. The police have also issued certificate that he is not found and his whereabouts are not known. Thus, more than ten years have passed and the whereabouts of Shrikant Vishnupant Revale are not known. The respondents are the children of the appellant and Shrikant Vishnupant Revale. The heirship certificate is not contested on any issue, much less on the issue of presumption of death of Shrikant Vishnupant Revale.
10. It is true that only Civil Court has power to give Page 9 of 10 ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:27:42 ::: suresh 2-FA-1208.2015.doc relief of declaration in such matters. The inquiry under section 372 of the Act is limited. However, the Court which conducts the inquiry under Section 372 of the Act is a civil Court and therefore the said Court is competent to decide the issue of declaration of death of Shrikant Vishnupant Revale.
11. Therefore, under the aforesaid circumstances, the appeal is allowed. The impugned order dated 9-2-2015 passed by the Civil Judge, Junior Division, Khalapur is hereby set aside and succession certificate under Section 372 of the Act is hereby directed to be issued in favour of the appellant and the respondents to enable them to get the amounts, as mentioned in paragraph 1 of the main application. Accordingly, the trial Court is directed to issue the succession certificate and decree be accordingly drawn.
12. The appeal stands disposed of in the above terms.
(MRIDULA BHATKAR, J.) Page 10 of 10 ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:27:42 :::