Wednesday, 26 June 2013

Burden of proof in case of person missing for seven years

 It is well settled principal of law that presumption under Section 108 of the Indian Evidence Act would arise only after lapse of 7 years. In this case, the specific pleading of the plaintiff is that her husband went to Bombay in December, 1996. Therefore, 7 years expired in December, 2003. The present suit has been filed in 2004. Section 108 of the Indian Evidence Act enables the Courts to draw the statutory presumption that a man is not alive in the facts and circumstances put forth by the plaintiffs. Now, therefore, this presumption will be drawn unless the contrary is proved by the defendants-appellants who are affirming that Sooraj Deo Prasad is not traceless and is alive.


Patna High Court
Janki Mahto &Amp; Ors vs Archana Kumari &Amp; Ors on 31 March, 2011

1. The defendants have filed this First Appeal against the Judgment Sahoo, J.
and Decree dated 28.09.2007 passed by Sri O.S. Srivastava, the learned Sub Judge I, Biharsharif, Nalanda in Title Suit No.163 of 2004 decreeing the plaintiff-respondent's suit for partition.

2. The plaintiffs-respondents filed the aforesaid suit claiming 1/4th share in the suit property mentioned in Schedule I & II of the plaint. The plaintiffs claimed the aforesaid relief alleging that the plaintiffs and defendants are members of joint Hindu family governed by Mitakshra 2
School of Hindu Law. Plaintiff No.1 Archana Kumari is legally wedded wife of Sooraj Deo Prasad, s/o Janki Mahto, the defendant No.1 and plaintiff No.2 is the minor daughter ofplaintiff No.1. The defendant No.2 is wife of defendant No.1. Defendnat No.1 had two sons, namely, Arvind Prasad, the defendant No.3 and Sooraj Deo Prasad. Defendant No.4 & 5 are sons of defendant No.3. The further case of the plaintiff is that her husband went to Bombay in December, 1996 for earning and since then he is traceless. More than 7 years passed and, therefore, the husband is presumed to be dead. The defendants-appellants started ignoring her and her daughter and they stopped maintenance, therefore, she demanded partition of the joint family property which was refused. Hence the suit for partition was filed.
3. The defendant No.1 to 5 appeared and filed a contesting written statement. According to their defence, Sooraj Deo Prasad, the husband of plaintiff No.1 had returned on 02.06.2000 and stay for 15 days and again left for his service and, therefore, it is wrong to say that Sooraj Deo Prasad is traceless and died civil death. The further defence is that the plaintiff's husband used to visit the village and, therefore, the suit is not maintainable and the plaintiffs have no 1/4th share.

4. On the basis of the above pleadings, the learned Court below framed following issues :
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got any cause of action? (iii) Is the suit barred by law of limitation and principles of estoppel, waiver and acquiesance?
(iv) Is the suit barred u/s 34 of Specific Relief Act? (v) Whether the husband is traceless for more than seven years or not?
3
(vi) Whether the plaintiffs and defendants are member of joint Hindu Mitakshra family or not?
(vii) Whether the plaintiff No.2 is daughter and plaintiff No.1 is legally wedded wife of Sooraj Deo Prasad?
(viii) Whether the plaintiffs are entitled to a decree for partition, if so, to what extent?
(ix) Whether the plaintiffs are entitled to any relief or reliefs as claimed for?
5. After trial, the learned Court below came to the conclusion that the defendants have failed to prove that Sooraj Deo Prasad is alive and used to visit to his house regularly. The learned Court below also found that the plaintiffs and defendants are members of joint Hindu Mitakshra family and the plaintiffs are entitled to a decree for partition to the extent of 25 paise in the suit property mentioned in Schedule I of the plaint and, therefore, decreed the suit.

6. Mr. Vidya Sagar, the learned counsel appearing on behalf of the appellant submitted that the learned Court below has wrongly appreciated the oral evidences and disbelieved the defence case only on presumption. The learned counsel further submitted that in any view of the matter, the daughters of defendant No.1 are also entitled for share and, therefore, the plaintiffs have no share to the extent of 25 paise and the suit is also bad for non-joinder of necessary party but the learned Court below decreed the suit without considering these facts and law. The learned counsel further submitted that the witnesses examined on behalf of the defendants- appellants have stated that the husband of the plaintiff No.1 had visited the village in 2000 and usually he comes to the village and, therefore, there can be no presumption of civil death as the husband of plaintiff No.1 is not traceless. In such view of the matter, the plaintiff have no share in the 4
property. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are not sustainable in the eye of law.
7. On the other hand, the learned senior counsel, Mr. Rajendra Prasad appearing on behalf of the respondent submitted that there is no illegality in the impugned Judgment and Decree. The oral evidences adduced on behalf of the defendant are unreliable and, therefore, the learned Court below has rightly not relied upon the evidence of the defendant. The learned counsel further submitted that still today the husband is traceless and, therefore according to Section 108 of the Indian Evidence Act, the learned Court blow has rightly held that husband of plaintiff No.1 died civil death. According to the learned counsel, the plaintiffs acquired title to the share of Soorajdeo Prasad and the learned Court below has rightly, therefore, decreed the suit. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed.
8. In view of the above submissions of the parties, the only point arises for consideration in this appeal is as to whether Sooraj Deo Prasad is dead or alive and whether the impugned Judgment and Decree are unsustainable in the eye of law.

9. In the present case, from the pleading of the parties, it appears that the fact that plaintiff No.1 is wife of Sooraj Deo Prasad is admitted by the defendants. The defendants also admitted that plaintiff No.2 is minor daughter of plaintiff No.1. It is also admitted that the parties are joint. In such view of the matter, the joint property is to be partitioned between father who is defendant No.1, mother who is defendant No.2 and the two sons of defendant No.1 & 2, i.e., Arvind Prasad and Sooraj Deo Prasad. All 5
of them have equal share in the property. Therefore, Sooraj Deo Prasad has 1/4th share in the property.

10. The learned counsel for the appellant submitted that some of the properties were self-acquired property of defendant No.1 and that the daughters of defendant No.1 & 2 are also entitled to a share in the property. So far these submissions are concerned, I find no such case was made out in the written statement. Since there is no pleading, there is no question of any issue or evidence arises. For the first time, before this Court, these please are raised. There is nothing on record to come to a conclusion that the defendant No.1 & 2 have also daughters. Likewise, there is nothing on record that the properties are self-acquired property of defendant No.1. As stated above, no such case have been pleaded in the written statement. Therefore, no amount of evidence can be looked into on these points.

11. The plaintiff's case is that her husband Sooraj Deo Prasad went to Bombay in December, 1996 for earning and since then he is traceless. As stated above only this point has been disputed by the appellants in their written statement. According to them, Sooraj Deo Prasad is not traceless rather he had come to village on 02.06.2000 and stayed for 15 days and thereafter regularly he visits the village. Now, therefore, the controversy between the parties is that whether Sooraj Deo Prasad is traceless for more than 7 years as such died civil death or he is not traceless and still alive and he visits the village regularly. To prove their case, the parties have adduced oral as well as documentary evidences.

12. P.W.2 is Archana Kumari, the plaintiff No.1 has clearly stated that her husband is traceless for 8-9 years. Her husband went to Bombay in 6
1996 and since then he is traceless. Likewise the evidence of P.W.1 who is mother of plaintiff No.1 and P.W.3, Jagdish Prasad all have stated that Sooraj Deo Prasad is traceless for last 8 years. He went to Bombay in 1996 and, thereafter he never returned to village.

13. Section 108 of the Indian Evidence Act reads as follows : "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.

14. It is well settled principal of law that presumption under Section 108 of the Indian Evidence Act would arise only after lapse of 7 years. In this case, the specific pleading of the plaintiff is that her husband went to Bombay in December, 1996. Therefore, 7 years expired in December, 2003. The present suit has been filed in 2004. Section 108 of the Indian Evidence Act enables the Courts to draw the statutory presumption that a man is not alive in the facts and circumstances put forth by the plaintiffs. Now, therefore, this presumption will be drawn unless the contrary is proved by the defendants-appellants who are affirming that Sooraj Deo Prasad is not traceless and is alive. Let us see the evidence adduced on behalf of the defendants-appellants. D.W.1 has stated that two years ago, Sooraj Deo Prasad had visited his house and likewise D.W.2 has stated that Sooraj Deo Prasad used to come to his place 4-5 times in a year. It may be mentioned here that both these witnesses are not family members. D.W.1 has stated that he does not know the address where Sooraj Deo Prasad reside. Likewise D.W.2 has stated that the family members of Sooraj Deo Prasad have also no address of Sooraj Deo Prasad. The most important 7
witness D.W.5 who is defendant No.1 has stated that his son left the house in January, 2000 and returned back in 02.06.2000 and again left after 15 days. He has further stated that after January, 2000, his son has visited the village 7-8 times and his son writes letters to him regularly. Although these statements have been made by this witness but no letter was produced by him to prove the statement made by him. According to the evidence of this witness, his son regularly comes to house then in such circumstances it was expected from him to produce his son before the Court. He could have given the address where his son either working or is residing. It is the specific evidence of this witness that his son regularly writes letter to him but even then he is unable to say in evidence the address of his son. It appears that in his evidence, he has further stated that his son used to send money order, but nothing has been produced by him before the Court. Therefore, all these statements have been made before the Court only with a view to nonsuit the plaintiff.
15. D.W.4 has proved Ext. 'A', the doctor certificate. It appears that this certificate has been issued on 15.12.2004 during the pendency of the suit. The learned counsel on the basis of this Ext. 'A' submitted that the plaintiff No.2 was born on 29.04.1998 which clearly proves that in 1996, Sooraj Deo Prasad had not gone to Bombay. So far this submission is concerned, it may be mentioned here that the doctor has also not been examined.

16. From the above discussion of the evidences, I find that the defendants have failed to prove that Sooraj Deo Prasad is not traceless and is alive and he used to come to house regularly. Therefore, presumption under Section 108 is applicable in this case. The learned Court below, 8
therefore, has rightly presumed that Sooraj Deo Prasad died civil death. The finding of the learned Court below on this point is, therefore, confirmed. The point formulated is answered in favour of the plaintiffs-respondents and against the defendants-appellants.

17. As stated above since it is admitted fact that plaintiff No.1 is wife of Sooraj Deo Prasad who will be entitled to inherit the property of her husband along with plaintiff No.2. I, therefore, find no reason to interfere with the finding of the learned Court below.

18. In the result, I find no merit in this First Appeal and accordingly, it is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
(Mungeshwar Sahoo, J.)
Patna High Court, Patna
The 31st day of March, 2011
Sanjeev/N.A.F.R.
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