Sou. Swati W/O. Abhay Deshmukh And ... vs Shri. Abhay S/O. Purushottam ...
2016 Latest Caselaw 100 Bom

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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 55-G, 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.2-State ............................................................................................................................

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 affidavit-evidence 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 Judge-8, 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 Judge-8, 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