Libin Augustine vs Corporation Of Kochi
2022 Latest Caselaw 6562 Ker

W.A. No. 696/2022                    :1




               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                    &

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944

                           WA NO. 696 OF 2022

 AGAINST THE JUDGMENT DATED 02.11.2021 IN WP(C) 12086/2021 OF HIGH

                            COURT OF KERALA

APPELLANTS/PETITIONER IN WRIT PETITION:

     1       LIBIN AUGUSTINE,
             AGED 37 YEARS
             S/O K.T.AUGUSTINE, XIV/1001A, KIZHAKKETHOUDAYIL,
             NAZARETH, KOCHI - 682 002.

     2       CHIEF REGISTRAR (BIRTHS & DEATHS),
             PANCHAYAT ADDL. DIRECTOR, OFFICE OF THE CHIEF REGISTRAR,
             SWARAJ BHAVAN, GROUND FLOOR, NANTHENCOE KAWDIAR P.O.,
             THIRUVANANTHAPURAM - 695 003.

     3       REGISTRAR OF BIRTHS AND DEATHS,
             CORPORATION OF KOCHI, ERNAKULAM -682 011.

     4       REGISTRAR OF BIRTH AND DEATHS,
             MATTANCHERRY REGION, CORPORATION OF KOCHI,

             ERNAKULAM -682 011.

             BY ADVS.
             S.PRASANTH (AYYAPPANKAVU)
             VARSHA BHASKAR
             THRESSY THOMAS
             ANUPAMA SIBI
 W.A. No. 696/2022                :2



RESPONDENT/S:

          CORPORATION OF KOCHI,
          REPRESENTED BY ITS SECRETARY, ERNAKULAM -682 011.

          BY ADV V.P.REJITHA (PUZHAKKALIDOM)



          SRI. K.P.HARISH, SR GOVERNMENT PLEADER




     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.06.2022,

     THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No. 696/2022                   :3



                 Dated this the 9TH day of June, 2022.

                                JUDGMENT

SHAJI P. CHALY, J.

The second petitioner in W.P.(C) No. 12086 of 2021 has

filed this appeal challenging the judgment of the learned single

Judge dated 02.11.2021 dismissing the writ petition along with

W.P.(C) No. 4159 of 2021 holding that the appellant is not entitled

to the following reliefs sought for in the writ petition:

1) To issue a writ of mandamus or any other appropriate writ or order directing respondents to issue death certificate of Sri. K. T. Augustine to the petitioners considering the date of death as 24.07.2003.

2) Call for records leading to Ext. P7 reply and set aside the same.

2. In fact, W.A. No. 1727 of 2021 filed by the petitioner in

W.P.(C) No. 4159 of 2021 was dismissed by this Court on 2 nd

February, 2022 upholding the judgment of the learned single

Judge.

3. Material contentions raised in the instant appeal and the

appeal dismissed by us as specified above are materially one and W.A. No. 696/2022 :4

the same, except the fact that the appellant in W.A. No. 1727 of

2021 had filed a suit, O.S. No. 298 of 2014, before a competent

civil court to declare the civil death of his father Sri. P.I. George

and the same was declined by the trial court. However, the trial

court ordered partition of the entire property by and between the

legal heirs of Sri. P.I. George.

4. According to the appellant, Sri. Augustine, his father, has

been missing from 24.07.2003. Even Though on the basis of a

statement, on 26.07.2003, the Thoppumpady police registered a

crime under the caption 'man missing' and an FIR was lodged

before the Judicial First Class Magistrate-II, Kochi, the whereabouts

could not be found out by the police; and though a news item was

published in the Malayala Manorama daily on 10.07.2007 under the

caption 'man missing' with the photograph of Sri. Augustine, there

is no response.

5. Anyhow, after conducting investigation, the police filed a

final report dated 31.10.2003 in the court stating that since the

whereabout of Sri. Augustine could not be traced out, the case

may be closed as undetected.

6. It is the further case of the appellant that a learned single

Judge, by Ext. P5 judgment dated 08.10.2012 directed to process W.A. No. 696/2022 :5

the claim for reimbursement of amounts under the LIC policy

bearing No. 773248142 taken by Sri. K. T. Augustine and to

disburse the eligible amount to the appellant and Smt. Gracy

Augustine, W/O. Augustine, within a period of two months from the

date of receipt of a copy of the judgment.

7. Later, it appears, as per Ext. P6 order dated 12.12.2012

in I.A. No. 16278 of 2012 in W.P.(C) No. 19824 of 2012, an order

was passed clarifying that since in the First Information Report, the

date mentioned is 24.07.2003 and in Ext. P3 also, the said date is

mentioned in the body, for drawing the presumption, the said date

can be adopted. Anyhow, the issue starts when Ext. P7 application

dated 23.01.2016, was submitted by the appellant and late Gracy

Augustine for a death certificate of Sri. Augustine before the Chief

Registrar (Births and Deaths) ie., the Panchayat Addl. Director,

Thiruvananthapuram, the second respondent, along with necessary

documents and a copy of Ext. P5 judgment in W.P.(C) No. 19824 of

2012; and Ext. P8 representation dated 27.02.2020 submitted to

the Corporation of Kochi, the first respondent.

8. But, fact remains, the Registrar of Births and Deaths,

Kochi Corporation, respondent No.3 issued Ext. P9 communication

dated 06.03.2020 stating that the application of the appellant W.A. No. 696/2022 :6

would be processed only after getting clarification from the Chief

Registrar, since there is no specific direction to the Registrar of

Births and Deaths to register the death of late Augustine in Ext. P5

judgment and further that the Corporation was not a party to the

case. It is, thus, aggrieved by Ext. P9 and the inaction on the part

of the Chief Registrar, the writ petition was filed.

9. The learned single Judge, after an elaborate consideration

of the matter and taking into account the legal circumstances

contained under the provisions of the Evidence Act, 1872 and other

relevant provisions of the Registrar of Births and Deaths Act, 1969

('Act, 1969' for short), has held that the relief sought for by the

appellant cannot be granted.

10. We have heard the learned counsel for the appellant Sri.

Prasanth S, learned Senior Government Pleader Sri. K.P. Harish

and Smt. V.P. Rejitha for the Corporation of Kochi, and perused the

pleadings and material on record.

11. As we have pointed out above, the issue involved in this

appeal was already considered by us in W.A. No. 1727 of 2021 filed

against the judgment of the connected writ petition rendered by

the learned single Judge. In the said appeal, we have also

considered the consequences due to the declining of the relief of W.A. No. 696/2022 :7

declaring the civil death by a competent civil court in a suit filed by

the appellant therein and which has become final; however,

considering the other intrinsic common legal aspects, the

provisions of the Indian Evidence Act, 1872 and the provisions of

the Act, 1969, we held that declaration of a civil death can only be

made by a competent civil court and not by a statutory authority

under the provisions of the Act, 1969. The principles of law laid

down in the above appeal arising from the very same common

judgment would strictly apply to the facts of the case involved in

this appeal also. In order to have a clear understanding of the

findings rendered by us in the connected writ appeal, we think, it is

only appropriate that the relevant portion of the judgment is

extracted, and it reads thus:

"11. The question emerging for consideration is

revolving around sections 107 and 108 of the Indian Evidence Act, 1872. Section 107 of the Indian Evidence Act deals with burden of proving death of person known to have been alive within thirty years, which specifies that 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.

W.A. No. 696/2022 :8

12. Section 108 deals with burden of proving that person is alive who has not been heard of for seven years, which stipulates 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.

13. On a clear analysis of the aforesaid provision, it can be seen that the death of a person in the circumstances mentioned in the provisions has to be established before a court of law and the initial burden is absolutely on the person who asserts that a person is dead.

14. Here is a case where the contention of the appellant is that the Registrar of Births and Deaths - the 2nd respondent, would have to consider the aspects in regard to the civil death of a person as per sections 107 and 108 of the Indian Evidence Act and then arrive at the conclusions in the applications submitted by the appellant.

15. We are unable to agree with the contentions of the appellant for the reason that in order to declare the civil death of a person there is no power vested with the Registrar of Births and Deaths under the W.A. No. 696/2022 :9

Registration of Births and Deaths Act, 1969. The Indian Evidence Act, 1872 applies to the courts considering the questions before it and not to an administrative authority discharging the functions in the matter of issuance of a death certificate. To put it otherwise, the 2nd respondent is not vested with powers to adjudicate the issue in question and declare that a person has suffered civil death and then issue a death certificate.

16. Even though the learned counsel for the appellant has referred to various judgments of this court as well as the appellate court with respect to the power under Article 226 to pass declaratory orders, we are of the clear opinion that it is a well settled position in law that the writ court is vested with powers to make declaratory orders. But however, the question arose before the writ court was whether the Registrar of Births and Deaths is having powers to declare the death of a person in contemplation of the provisions of the Evidence Act and issue a certificate.

17. The learned single Judge, in our view, has rightly arrived at the conclusion that the evidence with respect to a civil death in contemplation of the provisions of law will have to be established before a civil court, and the Registrar of Births and Deaths is W.A. No. 696/2022 : 10

not vested or enjoined with such powers.

18. Moreover, it is interesting to note that in O.S.No.298 of 2014 leading to Exhibit P2 judgment, though the appellant has sought for a decree to declare the civil death of Mr.P.I.George, the said prayer has been declined by the court. Therefore, if the appellant was aggrieved by such a finding rendered by the civil court, the appellant ought to have preferred an appeal in accordance with law. It may be true that the decree passed declining the relief of declaration may be binding only by and between the parties, but at the same time the said judgment and decree is not binding on the Registrar of Births and Deaths and, therefore, he is not duty bound to issue a death certificate to the appellant declaring the civil death of Mr.P.I.George.

19. It is further clear from the provisions of the Evidence Act referred to above that there should be sufficient proof for declaration of the civil death. It is also clear from the said provision that the declaratory decrees can be made by a court only after being satisfied with sufficient proof available on record to do so. The Registrar of Births and Deaths is not expected to go into such intrinsic aspects relating to the burden of proof and the nature of evidence W.A. No. 696/2022 : 11

required for arriving at a conclusion with respect to the declaration of the civil death of a person. We are also of the view that the said exercise can only be undertaken by a competent civil court.

20. Be that as it may, Mr.V.Philip Mathews, learned counsel for the appellant, has a case that the writ court is vested with powers to declare the civil death of Mr.P.I.George. We are unable to agree with the same for the fundamental reason that the power exercised by a writ court under Article 226 is of a summary nature and going through the pleadings and the photocopies of the documents produced before it, it is not expected to make a declaration of the civil death of a person, apart from the fact there are no materials at all to make a declaration.

21. We are also of the view that the declaration of the civil death of a person is a very serious matter, which cannot be done by a statutory authority empowered to issue a death certificate or by any court casually and in haste. Taking into account all the above aspects, we have no hesitation to hold that the learned single Judge was right in dismissing the writ petition and there is no merit in the appeal. Upshot of the above discussion is that the writ appeal fails. Accordingly, it is dismissed."

W.A. No. 696/2022 : 12

12. Considering the facts and circumstances, and the law

involved in the subject matter, we are of the view that the

appellant has not established any circumstances so as to take a

different view from the judgment rendered in W.A. No. 1727 of

2021. Therefore, we are of the view that the appeal has no

sustenance, there being no jurisdictional error or other legal

infirmities in the judgment of the learned single Judge.

Needless to say, the writ appeal fails and accordingly it is

dismissed. Further, we hold that the proposition of law laid down in

the judgment dated 02.02.2022 in WA. No. 1727 of 2021 would

strictly apply to this appeal also.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv