Showing posts with label civil death. Show all posts
Showing posts with label civil death. Show all posts

Tuesday, 25 April 2017

Whether court can grant declaration of civil death of person who is missing for seven years?

In   the   light   of   the   above   discussion,   the   Court   below
committed serious error in law, which has resulted into miscarriage of
justice to the appellants, which must be corrected.    In that view of the
matter,   the   question   framed   by   me     above,   is     answered   in   the
affirmative.
10. To sum up, following order is inevitable.:­
ORDER
a) Second Appeal No.18/2016 is allowed.
b) Impugned judgment and decree dated 2.9.2015  passed by Joint
Civil Judge, Jr.Dn. Nagpur in R.C.S. No.376/2015 and judgment and
decree  dated  31.10.2015  passed by District Judge­8, Nagpur in Regular
Civil Appeal No.448/2015, both are set aside.
c) There shall be a decree  in terms of prayer clause (2) of the suit
which is reproduced below :­
(2) Declare   that   the   defendant   Shri   Abhay   s/o
Purushottam   Deshmukh as a dead person and   his
death is civil death   as he is missing from 16.3.2008

and issue death certificate.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR.

SECOND APPEAL NO.  18/2016

 Sou. Swati   Abhay Deshmukh  v  Shri  Abhay   s/o Purushottam Deshmukh

 CORAM :     A.B.CHAUDHARI, J.
DATED :     26th  February, 2016

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Thursday, 15 September 2016

Whether a person becoming sanyasi amounts to his civil death?

Sital Das (supra) is authority for the proposition that the consequence of entry of an individual into a monastic order, is his civil death:
"entrance into a religious order generally operates as a civil death. The man who becomes an ascetic severs his connection with the members of his natural family and being adopted by his preceptor becomes, so to say a spiritual son of the latter. The other disciples of his Guru are regarded as his brothers, while the co-disciples of his Guru are looked upon as uncles and in this way a spiritual family is established on the analogy of a natural family."
IN THE HIGH COURT OF DELHI
FAO (OS) 513/2012 and 26/2013
Decided On: 30.09.2015
Appellants: Swami Gurudev Muni Chela Sant Sewa Dass Ji
Vs.
Respondent: State and Ors.
Hon'ble Judges/Coram:S. Ravindra Bhat and Deepa Sharma, JJ.
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Whether sanyasi can hold personal property?

A math is typically a Hindu religious institution. It was described in Krishna Singh v. Mathura Ahir MANU/SC/0657/1981 : AIR 1980 SC 707 by the Supreme Court, in the following manner:
"'Math' means a place for the residence of ascetics and their pupils, and the like. Since the time of Sankaracharya, who established Hindu maths, these maths developed into institutions devoted to the teaching of different systems of Hindu religious philosophy, presided over by ascetics, who were held in great reverence as religious preceptors, and princes and noblemen endowed these institutions with large grants of property. Dr. Bijan Kumar Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts, 4th ed. p. 321 succinctly states:
'Math' in ordinary language signifies an abode or residence of ascetics. In legal parlance it connotes a monastic institution presided over by a particular order who generally are disciples or co-disciples of the superior."
Sital Das (supra) is authority for the proposition that the consequence of entry of an individual into a monastic order, is his civil death:
"entrance into a religious order generally operates as a civil death. The man who becomes an ascetic severs his connection with the members of his natural family and being adopted by his preceptor becomes, so to say a spiritual son of the latter. The other disciples of his Guru are regarded as his brothers, while the co-disciples of his Guru are looked upon as uncles and in this way a spiritual family is established on the analogy of a natural family."
Krishna Singh (supra) states that property belonging to a 'math' is attached to the office of the mahant, and passed by inheritance only who fill the office. This creates an obligation to maintain the trust: "The head of a math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowment and an absolute in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution." In Parma Nand v. Nihal Chand MANU/PR/0035/1938 : 65 IA 252 (Privy Council) it was held that:
"this circumstance (the descent from Guru to Chela) does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character."
This formulation of law was approved by a larger Bench (of five judges) of the Supreme Court in Gurcharan Prasad (supra). The Supreme Court also took note of and approved Raghbir Lala v. Mohammad Said MANU/PR/0002/1942 : AIR 1943 PC 7, where it was held that:
"No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have some importance. But it is out of question to suppose that a man's religious opinions or professions can make him incapable in law of holding property."
The Court concluded that "we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular item of property was the subject matter of an endowment or a gift for a particular charitable purpose."
16. Math Sauna (supra) was relied upon by the learned Single Judge to find that even an ascetic or sanyasi can hold personal property and that there is no automatic consequence that upon the ascetic's death, the Guru Bhai becomes heir to the estate of the deceased guru:
"All the facts and circumstances must be taken into consideration and on a balancing of the entire evidence it has to be determined whether the property can be said to belong to the Math or deity or is the personal property of the Mahant, the burden of proof resting on the party who makes the claim."
17. Certain legal principles, therefore, emerge, which have to be applied upon the death of a sanyasi or ascetic. Firstly, his entry into the monastic order has the consequence of a civil death. The "normal" line of succession then gets broken; all properties vest in the Math. Secondly, upon his death, the properties held by him are to be treated as the monastic order's property. Thirdly, there is no presumption regarding lack of the sanyasi's capacity to hold property for himself.
IN THE HIGH COURT OF DELHI
FAO (OS) 513/2012 and 26/2013
Decided On: 30.09.2015
Appellants: Swami Gurudev Muni Chela Sant Sewa Dass Ji
Vs.
Respondent: State and Ors.
Hon'ble Judges/Coram:S. Ravindra Bhat and Deepa Sharma, JJ.
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Sunday, 23 November 2014

What is distinction between void and voidable documents?

Having considered the submissions of the learned Counsel for the appellants, before deciding whether the suit, as framed, was barred by section 331of the U.P.Z.A. and L.R. Act, it would be useful to first examine the law with regards to the bar of section 331 on a suit relating to cancellation of an instrument. Ordinarily, cancellation of an instrument is sought by claiming it either to be void or voidable. In the case of Dhurandhar Prasad Singh v. Jai Prakash University MANU/SC/0381/2001 : 2001 (44) ALR 579 (SC), the Apex Court had the occasion to elucidate the expressions "void" and "voidable". In paragraph 22 of the report, it was observed by the Apex Court as follows: "The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same, a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."
ALLAHAAD HIGH COURT
Case :- FIRST APPEAL FROM ORDER No. - 1461 of 2014 

 Ganga Prasad 
Ram Das Alias Pappu 
Citation: 2014(6)ADJ677, 2014(4) ALJ 492., 2014 (105) ALR 429, 2014 5 AWC4508All, 2014 124 RD701
Order Date :- 14.5.2014 
Hon'ble Manoj Misra, J. 

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Thursday, 25 April 2013

Presumption of death of person who is missing for seven years

Neither Section 108 of the Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years' absence and being unheard of having elapsed before that time. The presumption stands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death."

Supreme Court of India
Saroop Singh vs Banto & Ors on 7 October, 2005
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