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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Whether suit for declaration that person who is missing for seven years is dead is maintainable?

 This suit is filed by a wife against her husband for a declaration that the defendant, not having been heard of since February 1937, into be deemed to be dead.  The first difficulty that is raised by the present plaint is that it is a suit for a declaration and it cannot be entertained unless it falls within the scope of Section 42 of the Specific Relief Act. That section inter alia provides that any person entitled to any legal character may institute a suit against any person denying or interested to deny his title to such character, for a declaration that he is so entitled. The declaration sought in this suit is not a declaration of such a kind. The plaintiff does not claim to be entitled to any legal character nor can it be said that there is any person denying or interested to deny such character, because the plaintiff herself states that the plaintiff believes that the defendant is dead. Section 42, in my opinion, postulates the existence of a defendant who denies or is interested to deny the legal character. The possibility of his existence is, in my opinion, not sufficient. Secondly, apart from any statutory provision such as is made in the Matrimonial Causes Act, 1937, in England, I find it difficult to entertain a suit against a person who the plaintiff avers is dead and to proceed, as the plaintiff must seek leave to proceed hereafter, to serve the defendant by substituted service. I am therefore of the opinion that a suit of this nature is not competent.

Bombay High Court

Zena Gladys Freemantle vs Herbert Charles Freemantle on 20 July, 1949

Equivalent citations: (1950) 52 BOMLR 641

Bench: Tendolkar

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When suit for declaration will be barred by limitation?

 As far as prayer (f) is concerned, plaintiff seeks declaration that all the
acts of defendant No.1 or the documents executed by him in favour of defendant
Nos.2 and 3 are void, illegal and unlawful.   Prayer   (g) is for an order and
direction against the defendants to deliver the deed of assignment dated 28th
January 2005 and deed of conveyance dated 27th  January 1992 between Mrs
Noel Pereira and Mr Yusuf Ahmed and Conveyance Deed dated 27th  January
2007 executed between Yusuf Ahmed and defendant No.3 to this Court.  Prayer

(h) is for cancellation of those documents under the direction and supervision of
this Court.   For seeking declaration in terms of prayer (f) Article 58 would be
applicable.  All the three documents referred to aforesaid were executed prior to
three years before the date of filing suit.  Prayer (f) for declaration is thus on the
face of  it barred by law of limitation. For delivery of documents sought in prayer
(g), in my view Article 113 would be applicable.  On perusal of oral evidence and
the documentary evidence, it is clear that right to sue accrued to the plaintiff
much prior to three years before filing of this suit.    Plaintiff was fully aware of
these documents.  Both the deeds of conveyance are registered documents which
amounts to constructive notice.  Prayer (g) is thus, barred by law of limitation.
For the reasons recorded in respect of prayer (g),  prayer (h) which is also for

cancellation of documents is also barred by law of limitation.   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION 
SUIT NO. 808 OF 2011
Naresh Lachmandas Aswani  

VERSUS
 Haridas alias Hardas Lachmandas
 
     CORAM : R.D. DHANUKA, J.
 
 JUDGMENT PRONOUNCED ON : 18th OCTOBER, 2013
Citation: 2016 (4) ALLMR 286

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

I have  carefully considered  the submission  made by
Mr.   Gavnekar,   learned   counsel   for   the   appellants.   Here,   it   is
necessary   to   look   into   the   provisions   of   Section   108   of   the
Evidence Act, which reads thus:
“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." 
It   is   not   in   dispute   that   the   husband   of   plaintiffSulochana
went missing in the year 1997 about which report was
lodged to the Police Station concerned.  It is also not in dispute
that the period of seven year was completed in the year 2004.
And she filed a suit in the year 2006 for declaration of the civil
death of her husband.   There is no dispute about the fact that
Rajiv, husband of Sulochana went missing from 1997 and is not

traced or heard for about seven years from 1997 nor it is the case
of the appellants to the contrary. Section 108 of the Evidence Act
does not contemplate any declaration by civil court for civil death
of the person.  On the contrary, she went to the Court after seven
years for a declaration which declaration would obviously operate
upon completion of the period of seven years.  Therefore, in my
opinion,   the   date   of   decree   of   declaration   of   civil   death   is
absolutely   of   no   relevance.   Here,   it   will   be   relevant   to   read
observations of the Hon'ble apex Court in para 14 of the judgment
in the case of L.I.C. of India..vs..Anuradha; AIR 2004 SC 2070,
which are as under:
“On   the   basis   of   the   above   said   authorities,   we
unhesitatingly arrive at a conclusion which we sum
up   in   the   following   words.   The   law   as   to
presumption of death remains the same whether in
Common   Law   of   England   or   in   the   statutory
provisions contained in Sections 107 and 108 of the
Indian   Evidence   Act,   1872.   In   the   scheme   of
Evidence   Act,   though   Sections   107   and   108   are
drafted as two Sections, in effect, Section 108 is an
exception to the rule enacted in Section 107. The
human life shown to be in existence, at a given
point of time which according to Section 107 ought
to be a point within 30 years calculated backwards

from the date when the question arises, is presumed
to continue to be living. The rule is subject to a
proviso or exception as contained in Section 108. If
the persons, who would have naturally and in the
ordinary   course   of   human   affairs   heard   of   the
person in question, have not so heard of him for
seven years the presumption raised under Section
107 ceases to operate. Section 107 has the effect of
shifting the burden of proving that the person is
dead on him who affirms  the fact.  Section  108,
subject to its applicability being attracted, has the
effect of shifting the burden of proof back on the
one who asserts the fact of that person being alive.
The   presumption   raised   under   Section   108   is   a
limited presumption confined only to presuming the
factum of death of the person who's life or death is
in issue. Though it will be presumed that the person
is dead but there is no presumption as to the date
or time of death. There is no presumption as to the
facts   and   circumstances   under   which   the   person
may have died. The presumption as to death by
reference to Section 108 would arise only on lapse
of seven years and would not by applying any logic or
reasoning be permitted to be raised on expiry of 6 years
and 364 days or at any time short of it.     An      occasion
for raising the presumption would arise only when
the question is raised in a Court, Tribunal or before
    an     authority     who     is     called     upon         to

decide as to whether a person is alive or dead.
So   long   as   the   dispute   is   not   raised   before   any
forum and in any legal proceedings the occasion for
raising the presumption does not arise.”
In   the   light   of   the   above   discussion,   the   answer   to
question no.1 must be in the negative, which I do.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Second Appeal No.119/2013
Mr. Santosh Popat Chavan,

...V E R S U S...
Mrs. Sulochana Rajiv @ Raju Chavan,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:­ A. B. CHAUDHARI, J.

Date of pronouncing the judgment: 12.12.2014
Citation; 2015(5) ALLMR 604

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Court can not grant declaration of civil death of person missing for seven years in succession case

 Reference to Section 372(1)(a) may be made. This section enjoins upon the applicant to state the time of death of the deceased. Time, as contemplated herein, means the date when the deceased died. It would, thus, be seen that the death prior to filing of the application is an uncertain event not to be adjudicated or declared by the DIstrict Judge in proceedings under the Succession Act, as the District Judge exercises limited jurisdiction passed upon a death already having taken place and ascertained. The District Judge under the said jurisdiction cannot strike issue as to whether a person is dead or not if dead when dead. It is beyond his jurisdiction. A reference may also be made to Section 373 wherein it is specifically provided that Page 1061 the District Judge while exercising jurisdiction under the Succession Act has to proceed in a similar manner.

7. Thus, it would be seen that the District Judge is incompetent to make a declaration with regard to a person whether he was dead or not and further even if Section 108 of the Evidence Act is pressed into service, the only presumption that can arise is that a person may be dead but when he died cannot be ascertained. 

Patna High Court

Sunita Roy Choudhary And Ors. vs Jageshwar Choudhary And Ors. on 11 May, 2006

Equivalent citations: AIR 2006 Pat 127

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Declaration of civil death of person missing for seven years

The court concluded that the very object of the declaration was only to have the substantive relief of declaration that the Plaintiff was the only heir of her son and as such the absolute owner of the suit schedule properties which constitute the main and substantial relief and the declaration of civil death being almost merely incidental. It stated that the order of the trial Court was right. Hence, second appeal dismissed.

The relief claimed is not simplicitor for a declaration about the civil death of Ramalingam the son the Plaintiff in this case. Though the relief of declaration of the right of the Plaintiff as heir to the deceased son Ramalingam was sought for as a consequence, a reading of the case projected in the plaint would go to show that the very object of the declaration is only to have the substantive relief of declaration that the plaintiff is the only heir of her son and as such the absolute owner of the suit schedule properties which constitute the main and substantial relief and the declaration of civil death being almost merely incidental, and the language employed being the word 'consequential' does not in any manner detract from the declaration of property rights of the plaintiff being the main and substantial relief. Viewed thus, the challenge made to the nature of relief sought for and granted does not in any manner suffer from the infirmities sought to be attributed on behalf of the appellant. The challenge made on behalf of the appellant, relying upon the manner of declaration of civil death being asked for in the beginning of the relief portion cannot be given undue emphasise to non-suit the plaintiff in the present proceedings and accepting such a submission would amount to abrogating the principles of justice and fair play and allowing technicalities of form to overtake and defeat the ends of Instive for getting the real role of courts as the administrators of which, for which alone the courts do exist.

Madras High Court

Balambal vs Kannammal Alias Pazhaniammal ... on 14 October, 1996

Equivalent citations: (1997) 1 MLJ 181

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Declaration of death of person who is missing for seven years

We cannot, therefore, countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in Consumer Forum or Civil Court and evidence was adduced that the person was not heard of for a period of seven years by the wife and/or family members of the person then not only the death could be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings. In order to successfully maintain the claim for benefit under the insurance policies it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant-LIC was justified in turning down the claims by pleading that the policies had lapsed and all that could be paid to the claimants was the paid-up value of the policies.

Supreme Court of India

L.I.C. Of India vs Anuradha on 26 March, 2004

Equivalent citations: II (2004) ACC 44, 2004 ACJ 1318, AIR 2004 SC 2070

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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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Whether declaration can be obtained that person who is missing for seven years is dead?

It is a rule of presumption. By reason of the language applied in Section 108 of the Evidence Act, the burden to prove that such person is alive, lies on the person who affirms it, despite the person having not been heard of for 7 years by persons who would have heard of him if he were alive. The presumption of civil death or fictional death by reason of Section 108 of Evidence Act tantamounts to physical death in the eye of law. On this proposition I am supported by Parikhit v. Champa . Thus the presumption is a rule of evidence. By fiction the death is presumed in such circumstances unless otherwise proved by him who controverts it. Therefore there cannot be any question of obtaining a decree of declaration of civil death by the near relatives who have not heard of him. If some one insists that he is not dead then it is he who has to prove it. In as much as the burden lies on the person who asserts that affirmative; (Agha Mir v. Mir Mudasir . Therefore no suit lies for a declaration that a person not having been heard of for 7 years was deemed to be dead, unless the suitor seeks to establish that he is entitled to any legal character or to any right as to any property. Inasmuch as a suit for declaration can be maintained only within the scope and ambit of Section 34 of the Specific Relief Act, 1963. Section 34 does not sanction every form of declaration. It sanctions only a declaration that the plaintiff is entitled to a specific legal character or to any right as to property; Deokali v. Kedarnath (1912) 39 Cal 704. In other words the meaning of the section is that any person, who has a right to any legal character i.e. status, or to any property, may bring a declaratory action against any one who actually denies or has some interest on behalf of other to deny his title to such character or his right to any such property. In this case as observed earlier, by conduct the respondents have made payments of superannuation benefit presuming the father of the petitioner as dead. Thus the respondents are not denying the death. In order to obtain relief under Section 34 of the Specific Relief Act the plaintiff has to establish that the defendant has denied or is interested in denying the character or title of the plaintiff. The denial must be communicated to the plaintiff in order to give him cause of action. In this case no such communication of denial as such has been made with regard to any legal character or right to property by the respondents.

Calcutta High Court

Narayan Nayak vs State Bank Of India And Ors. on 7 January, 2002

Equivalent citations: (2002) IIILLJ 1013 Cal

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