Bombay High Court

Smt. Pushpa Manmohan Upreti vs The State Of Maharashtra Through ... on 25 July, 2023

Bench: P. K. Chavan

2023:BHC-AS:20804                                                      FA-441-2019.doc


                    Shailaja


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION
                                    FIRST APPEAL NO.441 OF 2019
                                                a/w
                                 CIVIL APPLICATION NO.1454 OF 2019
                                                 IN
                                    FIRST APPEAL NO.441 OF 2019

                    Pushpa Manmohan Upreti             ]
                    Age about 57 years, housewife,     ]
                    Residing at Flat No.09, Vinay      ]
                    Building Prayas Sadan C.H.S Ltd.   ]
                    Sector No.4, Plot No.98/99,        ]
                    Chheda Nagar, Chembur,             ]
                    Mumbai - 400 071.                  ]      Appellant
                                                            (Orig. Plaintiff)
                               Vs.

                    1. The State of Maharashtra        ]
                       Through the Secretary, Ministry ]
                       of Home Affairs, Government ]
                       of Maharashtra, Mantralaya,     ]
                       Mumbai - 32.                    ]

                    2. The Sr. Inspector of Police,    ]
                       Tilak Nagar Police Station      ]
                       Chembur, Mumbai - 400 071.      ]      Respondents
                                                           (Orig. Defendants)
                                                  .....
                    Mr. Rajendra Bhandari, for Appellant.

                    Mr. A.R. Patil, A.G.P, for Respondent-State.

                    Ms. Pushpa Manmohan Upreti, Appellant is present.
                                                .....

                                     CORAM          : PRITHVIRAJ K. CHAVAN, J.
                                     RESERVED ON   : 20th JULY, 2023.
                                     PRONOUNCED ON : 25th JULY, 2023.



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JUDGMENT:

1. By this appeal, appellant-original plaintiff challenges the

judgment and order dated 31 st October, 2018 delivered by the

learned Ad-hoc Judge, City Civil Court, Mumbai in Short Cause

Suit No.2051 of 2015 by which her suit seeking declaration of civil

death of her husband who was not heard and had been missing for

more than seven years was dismissed.

2. In short, facts are as follows.

3. The appellant claims to be wife of Manmohan Upreti. She

was married to him on 29 th April, 1997. Her husband was addicted

to liquor. He suddenly disappeared on 11 th January, 2004, in the

sense, he did not return home. The appellant and her family

members waited till March, 2006 with a hope that he will return.

However, even after the death of his parents, appellant's husband

did not return and, therefore, the appellant lost all her hopes.

4. The appellant, therefore, lodged a missing report at Chembur

Police Station on 18th March, 2006. Despite search, the Police could

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not trace her husband. Ultimately, a report came to be filed by the

Investigating Agency dated 19th May, 2015. The appellant,

therefore, presumed that her husband had died and, therefore, she

moved an application in order to mutate her name in revenue

record in respect of the property which is at Dehradun.

5. Interestingly, the appellant made State of Maharashtra as well

as Senior Police Inspector, Tilak Nagar Police Station as defendants

in the suit. Respondent No.1 in it's written statement took a plea

that for want of statutory notice under section 80 of the Code of

Civil Procedure, the suit is not maintainable. It is also contended by

respondent No.1 that the plaint does not disclose any cause of

action against it. Respondent No.1 has also raised issue of limitation

as according to it, the suit is barred by limitation. The trial Court,

however, while answering issue No.3 observed that the plaintiff

had issued a notice to the defendant as per the provisions of section

80 of the C.P.C. However, the defendants have not challenged the

evidence of the plaintiff and, therefore, the defendant has

abandoned the objection raised by it, hence, issue was answered in

the negative. Even otherwise, the respondents are not at all

necessary parties to be joined in the suit for the reason that the

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appellant had no right to claim any relief against the respondents

since there was no cause of action or any relief claimed by the

appellant in the plaint. What has been stated in paragraph 20 of the

plaint cannot be said to be a cause of action for filing the suit and

claiming the relief of declaration. The learned trial Judge having

considered the provisions of section 34 of the Specific Relief Act

and sections 107 and 108 of the Indian Evidence Act dismissed the

suit.

6. I heard Mr. Bhandari, learned Counsel for the appellant and

Mr. Patil, learned A.G.P, for Respondent-State.

7. At the outset, learned Counsel for the appellant submits that

husband of the appellant was not heard and was missing since

January, 2004. A missing report came to be filed at Tilak Nagar

Police Station, Chembur on 18th March, 2006. The Police Station,

by it's final communication dated 19 th May, 2015 informed the

appellant that despite making efforts, the Police could not trace the

missing person either alive or dead. The Counsel submits that the

suit was filed in 2015 itself and, therefore, it is within limitation.

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8. Learned Counsel has placed reliance on a judgment of the

Hon'ble Supreme Court in the case of L.I.C of India Vs. Anuradha,

AIR 2004 Supreme Court, 2070. It is argued that the trial Court

ought to have decreed the suit, as according to the learned Counsel,

finding arrived at by the trial Court that the trial Court cannot grant

declaration under section 34 of the Specific Relief Act is erroneous.

On the other hand, the learned A.G.P argued that the appellant has

not adduced any evidence nor examined any neighbour or other

persons staying in the vicinity.

9. At the outset, I do not find any reason to interfere with the

impugned judgment wherein the learned Judge has rightly observed

as to how the appellant is not entitled to seek the relief of

declaration under section 34 of the Specific Relief Act. The learned

trial Judge in paragraph 10 observed as under;

"10. From the above provision, it is see that for institution of the suit under Sec. 34, the plaintiff must be entitled for any legal character to any right to any property and; such suit is required to be filed against any person denying, or interested to deny such right of character. But from the pleadings of the plaintiff, it nowhere seen that she wants to say that she acquire any legal character or has any right to any property. Furthermore, there is nobody who is denying or

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interested in denying such legal character. No doubt, from the pleadings of the plaintiff, it can say that the plaintiff become widow and therefore, she has any right to husband's property but she is not asking any declaration in respect of this but what she is asking is civil death of her husband. Furthermore, the proviso of the said section says that court shall not grant such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The suit is not for such relief other than a simple declaration. Therefore, in my view, the plaintiff 's suit does not fall within the scope of Sec. 34 of the Specific Relief Act".

10. It is not the case of the appellant that anyone had denied her

legal character or any right to the property or any averment in the

plaint to the effect that anyone is interested to deny her such right

or character. The suit is sans any averment that she had acquired

any legal character or right to any property. There is no doubt that

the appellant's husband has been missing since 11 th January, 2004

and has not been heard till date.

11. The relief under section 34 of the Specific Relief Act is

discretionary one and the plaintiff cannot claim the relief as of

right. As such, relief has to be granted according to the sound

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principles of ex debito justitiae. In the case of L.I.C. of India Vs.

Anuradha (supra), the Hon'ble Supreme Court discussed the

provisions of Sections 107 and 108 of the Evidence Act as regards

presumption as to date/time of death of a person. It would be

advantageous to quote paragraphs 14 and 15 of the said judgment;

"14. On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we 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

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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 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.

15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence - direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of

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death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed".

12. It can thus be seen that an occasion for raising the

presumption under section 108 of the Evidence Act arise only when

a 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. In

the case at hand, no question was raised before the Civil Court or

before any Authority calling upon to decide as to whether

Manmohan Upreti is dead or alive and, therefore, there is no

question of raising a presumption. The Hon'ble Supreme Court has

made it amply clear that unless a dispute is raised before any forum

or in a legal proceeding, the occasion of raising a presumption

would not arise.

13. The Court below has observed that the appellant (plaintiff) is