Bombay High Court

Mrs. Vijaya Shrikant Revale vs Shri. Shirish Shrikant Revale And ... on 24 February, 2016

Bench: Mridula Bhatkar

     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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                                     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.

suresh 2-FA-1208.2015.doc

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.

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

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

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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

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.

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."

suresh 2-FA-1208.2015.doc

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.