Smt. Saroj Gupta & Others vs Sanjay Kumar Gupta
2023 Latest Caselaw 1084 Cal

                          IN THE HIGH COURT AT CALCUTTA
                                    Civil Appellate Jurisdiction
                                       APPELLATE SIDE

Present:

The Hon'ble Justice Tapabrata Chakraborty
                 &
The Hon'ble Justice Partha Sarathi Chatterjee


                                        FA 19 of 2023
                                       FAT 176 of 2022

                                   Smt. Saroj Gupta & Others
                                            versus
                                     Sanjay Kumar Gupta


For the Appellants             :    Mr. Pradeep Kumar,
                                    Ms. Shreya Trivedi,
                                    Mr. Abhishek Tiwari,
                                    Ms. Suman Singh.


For the State of West Bengal   :    Mr. Rupak Ghosh,
                                    Mr. Ratul Das.



Hearing is concluded on        :    17th January, 2023.



Judgment On                    :    9th February, 2023.




Partha Sarathi Chatterjee, J.

1. The present appeal has been preferred challenging the judgment and

decree dated 20th June, 2022 passed by the learned Judge, III Bench, City Civil

Court, Calcutta in Title Suit no. 981 of 2017 (Smt. Saroj Gupta & Ors. -vs- Sanjay

Kumar Gupta) whereby the learned Court below dismissed a suit preferred by the

appellants/plaintiffs seeking a declaration as regards the death of the husband of

the plaintiff no. 1 and the father of the plaintiff nos. 2, 3, 4, 5 & 6, who has not

been heard of for more than 7 years by persons, who would have heard of him if he

had been alive. In the impugned judgment and decree, it was, however observed

that 'the plaintiffs, if so advised, are at liberty to file a fresh Suit, seeking such

declaration, by incorporating or adding necessary parties therein'.

2. Capsulated form of facts giving rise to this appeal is as follows :

i. That the plaintiffs being the legal heirs of one Sanjay Kumar Gupta has

filed one suit against Sanjay Kumar Gupta seeking primarily the following

relief :

'a decree of declaration that the defendant being husband of the plaintiff

No. 1 and father of the plaintiff Nos. 2, 3, 4, 5 & 6 since missing on and

from 3.10.2009 and a declaration be given that since more than 7 years

from the date of missing had passed the defendant had died under the

provision of Section 108 of the Indian Evidence Act, 1872;'

ii. Facts projected in the plaint, in brief, are that Sanjay Kumar Gupta (in

short, Sanjay), at all material times, had carried on business at Kolkata

and has his Savings Bank Account with Union Bank of India, Azamgarh

Main Branch, Takia, Uttar Pradesh and also at Ezra Street Branch,

Kolkata and a Public Provident Fund Account with State Bank of India,

(Netaji Subhas Road) Branch, Kolkata and some insurance policies with

LICI. During his life time, he acquired and was seized and possessed of

various movable and immovable properties which are required to be

managed properly by the plaintiffs, who are the ultimate beneficiaries

thereof;

iii. It was claimed therein that Sanjay went missing from his residence

located at 3, Amratala Street, Bharat Tea House, P.O. & P.S. -

Burrabazar, Kolkata - 700 001 since 3.10.2009;

iv. Plaintiffs lodged one General Diary vide. Burrabazar P.S.G.D.E. no. 302

dated 4.10.2009 which was forwarded to Missing person Squad at

Lalbazar Police Headquarter, Lalbazar, Kolkata and the Joint

Commissioner of Police, Crime Lalbazar, Kolkata issued an 'Interim Non-

Traceability (Police Inquiry) Report'. The fact of non-traceability and/or

missing was published in various leading newspapers from time to time

and the details including photograph were also telecast through

Doordarshan Kendra, Kolkata. Lastly, on 20th June, 2017 i.e. after

continuation of inquiry for more than 7(seven) years from the date of

missing, office of the Commissioner of Police, Kolkata issued a Final

Report vide. Memo. No. 1162/DD/MPS dated 20.6.2017 stating therein

that 'all efforts to trace out the missing subject unfruitful and chance of

tracing out the missing subject seems to be very remote';

v. It was submitted therein that Sanjay was sole bread earner of his family

and in his absence, plaintiffs have plunged into penury and hence, they

have been constrained to prefer the suit seeking such sort of declaration;

3. Record postulates that in corroboration of contention, the plaintiffs

adduced oral testimony of plaintiff no. 1, who was examined as PW-1 and they had

tendered some documents which being admitted as evidence, were marked as

Ext.1 to 4.

4. The primary issue on the basis of which the suit has been dismissed is

that the appellants have failed to implead any person, who is denying or is

interested to deny their legal character.

5. The intrinsic aspects relating to the burden of proof and the nature of

evidence required for arriving at a conclusion with respect to the declaration of

civil death of a person cannot be gone into in view of the admitted absence of any

person denying the appellants' legal character. It is also true that no

administrative authority has any jurisdiction to declare the death of a person in

contemplation of the provisions of the Indian Evidence Act. Section 4(1) of West

Bengal Escheats and Forfeitures Act, 2012 has enjoined a duty upon the Collector

to send monthly reports to the competent authority of the occurrence of death of

person having property within his district and Section 2(d) of that Act has defined

the expression 'competent authority' which means any person or authority of the

Judicial Department of the State Government authorised to perform the functions

of the competent authority under the Act. In view thereof and since an appeal is a

continuation of the initial proceeding, we were of the opinion that instead of

leaving the appellants to get entangled in the rigmarole of the procedural rigors

and for the ends of justice, the lis may be adjudicated upon bringing on record the

State. Accordingly, considering the application filed for impleading State of West

Bengal represented by its Department of Law and Justice and upon hearing the

learned advocate, who entered appearance on behalf of the State, we allowed such

prayer by an order dated 10th January, 2023.

6. Placing reliance upon a unreported judgment of High Court of Judicature

at Bombay, Nagpur Bench passed in Second Appeal no. 18 of 2016 (Sau. Swati

Abhay Deshmukh & Ors. Vs. Abhay Purushottam Deshmukh), Mr. Kumar, learned

advocate appearing for the appellants submitted that in that case also, a missing

person, namely, Abhay Deshmukh was made party-defendant and the Court

granted leave to add the State through Collector since the place of suing fell within

the jurisdiction of the concerned Collector and declared that Abhay's death was

civil death.

7. He added that in the given case, upon completion of investigation, the

competent police authority had declared that Sanjay could not be traced out and

chance of tracing him out is also very remote. More than thirteen (13) years have

elapsed and the appellants have been facing unsurmountable inconvenience in

managing the properties left by Sanjay. In view thereof, he prays that the Court

without being hyper-technical may take a pragmatic view and declare that Sanjay

has suffered civil death basing upon presumption incorporated in Section 108 of

Indian Evidence Act, 1872.

8. Per contra, Mr. Das, learned advocate while representing the State

submitted that there was no requirement to make the State as party to the suit

and/or appeal and in his view, such declaration can be given even without any

defendant and/or respondent. However, he assures that State does not want to

stand in the way if this Court gives declaration that Sanjay has suffered civil death

and further submits that the direction to implead the State, in the facts and

circumstances of this case, may not be treated as a precedent.

9. It appears that the learned Court below proceeded on the basis that the

appellants are not entitled to any legal character as envisaged under Section 34 of

the Specific Relief Act, 1963 (in short, the said Act of 1963). Such a suit is not

maintainable under Section 34 of the said Act of 1963, moreso when no person is

denying and/or is interested to deny the appellants' title to such character or

right. It was also observed that a 'dead' or 'presumed-to-be dead' or a 'missing

person' cannot be added as a party to any suit. The absence of denial from any

defendant would bar the Court from granting any relief.

10. The presumption of death under Section 108 of the Evidence Act can

only be raised in any proceeding in which question arises that any person is dead

or alive and as such no suit can be filed on the basis of the said section. A suit for

declaration of civil death is also not maintainable under Section 107 of the

Evidence Act. The provisions therein do not create any substantial right in favour

of the plaintiffs to institute the suit.

11. It is true that Section 34 of the said Act of 1963 is not a complete code

for declaratory suits and such suit can be filed under Section 9 of the Code of Civil

Procedure (in short, Code). It can thus be argued that suit for declaration of civil

death simpliciter is maintainable under Section 9 of Code. However, a question

arises as to whether one has a civil right to declare any other's death.

12. In our opinion, the Civil Court acting under Section 9 of the Code has

inherent powers in its plenary jurisdiction dehors Section 34 of the Act of 1963.

The suit preferred is not a suit for declaration of civil death simpliciter. The

declaration of civil death is inextricably bound with the declaration of legal status

and heirship of the plaintiffs. The suit has been preferred by the plaintiffs seeking

a declaration that they are the legal heirs of the person missing and that in such a

suit, the Court can accept the presumption of death of the person in the light of

the provisions of the Indian Evidence Act. Legal character can mean only the legal

status of a person. Such status is said to be legal because an infringement of it

can be enforced through a Court of law. Moreover, a legal right is a personal right

which will amount to one's status. Such right involves a peculiarity of a personality

arising from anything unconnected with the nature of the act itself which the

person of inherence can enforce against the person of incidence.

13. Now, coming to the case at hand, it appears that Sanjay went missing on

and from 3.10.2009. A complaint to that effect was lodged before the Inspector-in-

Charge of the concerned police station. On the basis of such complaint a

proceeding was initiated and investigation was conducted. Upon completion of

such investigation a final report was filed on 20.6.2017. The documents to that

effect have been marked as exhibits. In the plaint, giving particulars of the

properties and/or assets left by Sanjay, the plaintiffs claimed themselves to be the

ultimate beneficiaries thereof.

14. It would be useful to re-look the provisions of Section 107 and Section

108 of Indian Evidence Act which 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 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.'

15. It goes without saying that 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 point within 30 years

calculated backwards from the date when the question arises, is presumed to

continue to be living. This rule is subject to an exception contained in Section 108

in the sense that if the person, 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 ceased to operate. It is

to be noted that though it will be presumed that person is dead but there is no

presumption as to the date or time of death or to the circumstances under which

death occurred.

16. In the case at hand, till date more than 13 (thirteen) years have elapsed

and all due inquiries appropriate to the circumstances have been made but Sanjay

could not be traced out. Upon completion of such enquiry and highest echelon of

the police authority has issued non-traceability report stating that chance of

tracing out the missing subject seems to be very remote. The appellants are facing

acute problems in managing the properties left by Sanjay. Consequently, we are of

the view that appellants can get the declaration as prayed for.

17. For the reasons discussed above, the impugned judgment and decree

passed in the present appeal is set aside. The suit is decreed and declared that the

husband of the plaintiff no. 1/ appellant no. 1 and father of the

plaintiffs/appellant nos. 2, 3, 4, 5 & 6 namely, Sanjay Kumar Gupta has suffered a

civil death as he is missing from 3rd October, 2009. Authority competent to issue

certificate of death shall issue such certificate basing upon this judgment, if it is so

approached.

18. The appeal be and the same is allowed, however, without any order as to

the costs.

19. Let a decree be drawn up accordingly.

20. Let a copy of this judgment be sent to the learned court below forthwith.

21. Urgent Photostat copy of this judgment, if applied for, shall be granted to

the parties as expeditiously as possible, upon compliance of all formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)