Sandhya Roy @ Sandhya Rani Roy vs The State Of West Bengal And Others
2023 Latest Caselaw 3960 Cal

AD-20
Ct No.09
20.06.2023
TN
                             WPA No. 28758 of 2022

                          Sandhya Roy @ Sandhya Rani Roy
                                        Vs.
                          The State of West Bengal and others


             Mr. Nilanjan Bhattacharjee,
             Mr. Brajesh Jha,
             Mr. Abhijit Saha,
             Ms. Megna Dutta,
             Mr. Neel Chakraborty,
             Mr. Abhilash Chatterjee
                                                 .... for the petitioner

             Mr. Wasim Ahmed,
             Mr. Sk. Md. Masud
                                                      .... for the State

             Mr. R.K. Jha,
             Mr. M. Thakur
                                     .... for the respondent nos. 2 to 4

Learned counsel for the petitioner submits that

the petitioner's elder sister went missing in the year

2013. A missing diary in that regard is annexed to

the present writ petition. It is submitted that within

the contemplation of Section 108 of the Indian

Evidence Act, 1872, the presumption is, in a case

where a person is missing for more than seven years,

is that she is dead, unless the contrary is proved.

In the absence of any rebuttal, such

presumption ought to have been taken by the

respondent-Bank in the present case.

However, when the petitioner sought for transfer

of maturity amount on certain deposits with the Bank,

some of which were in the joint name of the petitioner

and her elder sister and some only in the name of her

elder sister, the Bank refused the same vide

communication dated November 30, 2022 (Annexure-

P/8 at page-42 of the writ petition). The grounds

furnished for such refusal were that the petitioner was

to provide the death certificate of her elder sister or

any order from a competent court of law declaring the

death of Mrs. Manju Ghosh Chowdhury, the said elder

sister.

It is submitted that the proposition of law is

well-settled by several judgments of this court that in

such cases, unless rebutted, a presumption has to be

drawn by the authorities in favour of the demise of the

missing person without any further declaration from a

civil court.

In support of such proposition, learned counsel

for the petitioner cites three judgments. In the first

judgment, reported at (2015) 3 Cal LJ 23 (Shipra

Chatterjee vs. Union of India), a Division Bench of this

court, by placing reliance on Section 108 of the

Evidence Act and another judgment of the Supreme

Court reported at (2004) 10 SCC 131 (LIC of India vs.

Anuradha), arrived at an opinion in consonance with

the proposition sought to be advanced by the

petitioner. A similar proposition was reiterated by two

coordinate Benches of this court in Narayan Nayak

vs. State Bank of India And Ors. reported at 2002 (2)

CLR 639 as well as in Smt. Ruda Devi and another vs.

Coal India Ltd. and others, reported at 2014 (4) Cal.

H.C.N. 570.

Learned counsel appearing for the respondent-

Bank fairly concedes to the legal proposition as relied

on by the petitioner. However, it is submitted that for

abundant caution and in order to discharge its

burden befitting a prudent man under the Negotiable

Instrument Act, the Bank requires at least a

succession certificate to be produced for the purpose

of ascertaining the heirship of the petitioner with

regard to the accounts held jointly and singularly in

the name of her elder sister.

In view of the submissions of the parties, WPA

No. 28758 of 2022 is disposed of in the light of the

observations made by the judgments cited by the

petitioner, by granting leave to the petitioner to

produce a valid succession certificate obtained from a

competent court of law with regard to the movable

properties of the elder sister of the petitioner Mrs.

Manju Ghosh Chowdhury.

Upon the petitioner furnishing such certificate,

the respondent-Bank, that is, the Indian Bank,

(previously Allahabad Bank) shall release the maturity

amounts on the deposits lying with the said Bank in

the name of the said Mrs. Manju Ghosh Chowdhury,

jointly and/or singularly in her own name, on the

presumption that the said deposit-holder is deceased.

There will be no order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)