S.Kulandaivel vs The State Represented By Its
2023 Latest Caselaw 14051 Mad

                                                                             S.A.(MD) No.133 of 2021

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED: 20.10.2023

                                                      CORAM:

                          THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

                                                S.A.(MD)No.133 of 2021

              1.S.Kulandaivel
              2.S.Muthusamy
              3.K.Saraswathi
              4.K.Suresh
              5.K.Suganthi                                                 ..Appellants
                                                         Vs.

              1.The State represented by its
              District Collector,
              Karur District, Karur.

              2.The Tahsildar,
              Office of Manmangalam Taluk,
              Karur District.                                              ...Respondents

              PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside the
              judgment and decree passed in A.S.No.15 of 2019 on the file of the Principal Sub
              Court, Karur dated 16.12.2019 by confirming the judgment and decree passed in
              O.S.No.353 of 2016 on the file of the Principal District Munsif Court, Karur,
              dated 05.02.2018.


                              For Appellants             :Mr.D.R.Murugesan
                              For Respondents            :Mr.N.Muthu Vijayan
                                                         Special Government Pleader



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                                                                                S.A.(MD) No.133 of 2021



                                                     JUDGMENT

This appeal is filed challenging the concurrent judgments of Courts

below in A.S.No.15 of 2019 on the file of the Principal Subordinate Court, Karur,

confirming the judgment in O.S.No.353 of 2016 on the file of the Principal

District Munsif Court, Karur.

2.The appellants filed the suit for declaration that (a) one Sadayappa

Gounder son of Selembana Gounder is presumed to be dead; (b) the plaintiffs

alone are the legal heirs of Sadayappa Gounder; (c) to grant an order of

mandatory injunction directing the defendants to issue legal heirship certificate of

the said Sadayappa Gounder; and (d) for costs and for other reliefs. The

respondents/defendants did not file any written statement and contested the suit

and were set ex parte.

3.During trial, PW-1 was examined and Ex-A1 to Ex-A4 were marked.

The learned Trial Judge, on going through the oral and documentary evidence,

found that the relief claimed in the suit cannot be granted and dismissed the suit.

The finding of the Trial Court was confirmed by the first Appellate Court in

A.S.No.15 of 2019. Thus, the Second Appeal came to be filed.

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S.A.(MD) No.133 of 2021

4.While admitting the Second Appeal, the following substantial

questions of law were framed:

“i.Whether the Courts below were right in not invoking the presumption under Section 108 of the Evidence Act to grant a declaration?

ii.Whether the evidence of PW 1 could be termed as insufficient to raise statutory presumption under Section 108 of the Evidence Act?”

5.It is the submission of the learned Counsel appearing for the

appellants that the suit was uncontested by the respondents/defendants. Through

evidence of PW-1 and Ex-A1 to Ex-A4, the appellants abundantly proved that

Sadayappa Gounder was missing from 15.05.1997 and that the plaintiffs are alone

his legal heirs. Instead of decreeing the suit on the basis of the unimpeachable

evidence, both the Courts below have given a finding that the plaintiffs have not

proved that Sadayappa Goundar was missing and negatived the prayer.

6.In support of his submission, the learned Counsel for the appellants

pressed into service the judgment of Andhra Pradesh High Court in Union of

India represented by Secretary and others vs Polimetla Mary Sarojini and

another, in Writ Petition No.34859 of 2016.

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S.A.(MD) No.133 of 2021

7.It is the submission of the learned Special Government Pleader

appearing for the respondents that the appellants/plaintiffs have to prove their case

on the basis of their own pleadings and evidence. Merely because the respondents

have not filed the written submissions and contested the suit, they are not entitled

for the decree. Both the Courts below have rightly considered the evidence and

negatived the prayer.

8.Considered the rival submissions and perused the records.

9.From the plaint averments, the case of the appellants/plaintiffs is that

Sadayappa Gounder owns properties in Thirukkaduthurai Village. He married one

Ramayammal and they had three sons, namely, Krishnan, Kulandivel and

Muthusamy. They were living together. Due to some domestic disputes with his

wife, Sadayappa Gounder went to depression. He left the home on 15.05.1997

without informing his wife and children and gone somewhere. Thereafter, he did

not return. Despite thorough and sincere search made by his wife and children,

they could not ascertain the whereabouts of Sadayappa Gounder. In the

meanwhile, Ramayammal and Krishnan had died. In order to deal with the

properties, it is necessary to get the legal heirship certificate of Sadayappa

Gounder. In such circumstances, the suit was filed.

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S.A.(MD) No.133 of 2021

10.As already stated, PW-1 was examined and Ex-A1 to Ex-A4 were

marked. PW-1 is the third plaintiff in the suit. Ex-A1 to Ex-A4 were the copies of

patta in the name of Sadayappa Gounder. Except marking Ex-A1 to Ex-A4, no

other evidence was produced by the appellants. The reading of the judgment of

the trial Court shows that no police complaint was given and no witness, who had

known about Sadayappa Gounder, was examined to show that he was not heard

for more than seven years prior to the filing of the suit. In the absence of any

concrete evidence to show that Sadayappa Gounder went missing from

15.05.1997, the Trial Court found that the prayer sought for by the appellants

cannot be granted and thus, dismissed the suit. That finding was confirmed by the

first appellate Court also.

11.Section 107 of Indian Evidence Act reads as follows:

“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.”

12.Section 108 of Indian Evidence Act reads as follows:

“108.Burden of proving that person is alive who has not been heard of for seven years. –– 1 [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.”

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S.A.(MD) No.133 of 2021

13.Section 107 of Indian Evidence Act makes it clear that if a person

was shown to alive within thirty years, the burden of proving that he is dead is on

the person, who affirms it.

14.Section 108 is a proviso to Section 107. When a question arises as to

whether a person is alive or dead, if it is proved that he has not heard of within

seven years by those who naturally heard of him, the burden of proving that he is

alive is shifted to the person, who affirms it.

15.Here is a case, where the plaintiffs sought to declare that Sadayappa

Gounder as dead for the reason that he was not heard of by the persons, who

knows him for the last seven years. However, in order to prove this claim, except

the evidence of PW-1, who is the third plaintiff in this case, no other witness, who

would naturally have heard of the existence of Sadayappa Gounder, had been

examined, as a witness in this. When it is claimed that he was missing from

15.05.1997, there is not even a criminal complaint was given for his missing. No

paper publication was given. When this elementary and fundamental

requirements are not there and when legally accepted evidence is not available to

show that Sadayappa Gounder went missing from 15.05.1997, this Court is of the

considered view that dismissal of the suit by the Courts below cannot be faulted.

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S.A.(MD) No.133 of 2021

16.The reading of the judgment relied upon by the learned Counsel for

the appellants discussed about the presumption under Sections 107 and 108 of the

Indian Evidence Act. This presumption has to be confined only with the factum of

death and not the actual date of death. It is pertinent to extract the relevant

portion of the judgment:

“13.The burden of proof oscillates like a pendulum from the person, who asserts death, to the person who asserts life. To put it differently, the burden of proof cast under Section 107 upon the person asserting death of another becomes lighter under Section 108. While a person asserting death of another is obliged to prove positively under Section 107 that the other person is dead, he is given an option or gateway under Section 108 to prove instead, that the other person has not been heard of for seven years. In other words, the requirement under Section 107 is to prove the factum of death. The requirement under Section 108 is to prove a fact that would lead to a presumption of such a fact. The presumption under Section 108, as in the case of every other presumption, is rebuttable, since a person asserting life is entitled under Section 108 to show that the person presumed to be dead was actually alive.

14. Though the provisions of sections 107 and 108 are very clear as to the rising of presumption, these sections do not throw any light upon the date on which a person can be presumed to be dead. In other words, the doubt or dilemma that arises in cases of this nature is as to the date of death of the person in respect of whom the presumption is raised. The moment it is established that a person has not been heard of for 7 years, the presumption of death arises. But the presumption under the Act is confined only to the factum of death and not to the actual date of death.”

17.As discussed above, this Court is of the view that, to discharge the

burden placed on the appellants that Sadayappa Gounder had gone missing from

15.05.1997 and therefore, presumption has to be drawn that he is dead, is not

proved by any legally admissible evidence. In this view of the matter, this Court

answers the substantial questions of law as follows:

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S.A.(MD) No.133 of 2021

i.For drawing the presumption under Section 108 of Indian Evidence

Act, there is no evidence produced in support of plaintiffs’ case.

ii.When there is no fundamental/basic evidence produced by the

appellants with regard to the missing of Sadayappa Gounder from 15.05.1997, as

discussed above, this Court answers that PW-1 evidence is insufficient to raise

statutory presumption under Section 108 of Indian Evidence Act.

18.Accordingly, these substantial questions of law are answered and this

Court finds that the Courts below have properly appreciated the oral and

documentary evidence and rightly dismissed the suit and that does not call for any

interference of this Court. Thus, the Second Appeal is dismissed. No costs.

              NCC                 : Yes / No                                   20.10.2023
              Internet            : Yes / No
              Index               : Yes / No
              cmr




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                                                              S.A.(MD) No.133 of 2021



              To

              1.The Principal Sub Court, Karur.
              2.The Principal District Munsif Court, Karur.
              3.The District Collector,
              Karur District, Karur.

              4.The Tahsildar,
              Office of Manmangalam Taluk,
              Karur District.

              5.The Section Officer,
              V.R.Section,
              Madurai Bench of Madras High Court,
              Madurai.




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                                          S.A.(MD) No.133 of 2021

                                  G.CHANDRASEKHARAN, J.

                                                            cmr




                                     S.A.(MD) No.133 of 2021




                                                    20.10.2023




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