Santosh Dyandeo Solanke vs State Of Maharashtra

M.S. Jawalkar, J.

Heard. Heard finally by consent of the learned Counsel for both the parties at the stage of admission.

The present appeal is filed challenging the judgment and decree passed by learned Civil Judge (Senior Division), Akola in Regular Civil Suit No.454/2015 as well as judgment and decree passed in Regular Civil Appeal No.121/2016 by District Judge-03, Akola. The plaintiff has filed a suit for declaration of civil death of Malutai Dnyandeo Solanke is missing for more than seven years.

It is the case of the plaintiff that Smt. Malutai Solanke left the house on 13/09/2008 and since then, she did not return to home. The plaintiffs are sons and daughters of Smt. Malutai Solanke. She was aged about 42 years when she left the home i.e. on 13/09/2008. She was serving at Tahsil Office, Telhara, District Akola. On 13/09/2008, at about 12.00 p.m. Malutai Solanke gone to Tahsil Office, Telhara but she did not return back. Therefore, plaintiff no.1 had filed missing report on 17/09/2008 to Telhara Police Station and police has taken entry into the missing register at Sr. No.10/2008. Relying on Section 108 of the Evidence Act, it required declaration of civil death of Smt. Malutai Solanke for claiming service benefits and for claiming movable and immovable property of Malutai Solanke. They should be granted declaration that Smt Malutai Solanke is dead.

The learned Trial Court dismissed the suit on the ground that

“In as much 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 sections only a declaration that the plaintiff is entitled to a specific legal character or to any right as to property; Deokali Vs. Kedarnath (1912) 39 Cal 704. In other words the meaning of the section is that any person, who has a right to a legal character i.e. status, or to any property, may bring a declaratory action against any on 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 characters or right to property by the respondents. The Bombay High Court had also taken the view that no such suit for declaration lies, in Freemantle Vs. Freemantle 52 BOM LR 641, though in a different context.”

The learned Appellate Court also on the same findings dismissed the appeal.

The learned Counsel for appellants relied on judgment of this Court in Second Appeal No.18/2016, wherein this Court relying on the Hon’ble Apex Court reported in LIC of India Vs. Anuradha reported in AIR 2004 SC 2070 held that the Civil Court acting under Section 9, has inherent powers in its plenary jurisdiction de hors with reference to Section 34 of the Specific Relief Act to grant relief qua Section 108 of the Evidence Act and further held that therefore, the reason that Section 34 of the Specific Relief Act was required to be called in aid does not appear to be sound.

The similar question is involved in the present matter. The matter is taken up for final hearing at the stage of admission by the concerned and at the request of parties, the substantial question of law is framed as under:

“Whether the Courts below committed error in dismissing the suit filed by the plaintiffs by which the relief under Section 108 of the Evidence Act for declaration that Smt. Malutai Dnyandeo Solanke is not alive by virtue of the lapse of period of seven years from the date of her disappearance on the ground that the date of death was not specified and that in view of Section 34 of the Specific Relief Act, no said declaration can be granted?”

In view of the judgment in Second Appeal No.18/2016, the burden of proving death of a person, who has not been heard for the seven years by those who would naturally have heard her if she had been alive, the burden of proving that she is alive is shifted to the person who affirms it.

It was revealed that there was no paper publication carried out by the appellants. Accordingly permission was granted vide order dated 17/02/2022. Accordingly, notice in paper has published, however, no objections were received, Copy of said paper publication is placed on record along with pursis dated 28/04/2022, however, no objections were received. As such, appellants are entitled for declaration they sought for. The suit was filed in the year 2015 and there is nothing heard about Smt. Malutai Solanke. As such, order passed by both the Courts below are required to be set aside. Accordingly, I proceed to pass the following order:

ORDER

i) The Second Appeal is allowed.

ii) The judgment and decree dated 06/07/2017 passed by the learned District Judge-3, Akola in R.C.A. No.121/2016 upholding the judgment dated 08/09/2016 passed by the learned Civil Judge, Sr. Division, Akola in R.C.S. No.454/2015, is hereby quashed and set aside.

iii) Decree be drawn accordingly.

The second appeal stands dismissed accordingly.