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Judgment
S. Ravindra Bhat, J.—Issue rule. Counsel waives notice of rule. With consent of counsel for the parties the matter was heard for disposal. The limited claim in these proceedings under Article 226 are for directions to the respondents to issue a death certificate. It is claimed that the petitioner''s father Hoshiar Singh S/o Shadi Ram, has been missing for more than 7 years and therefore the Municipal Corporation of Delhi as well as the concerned local authorities Sub-Divisional Magistrate should issue a death certificate in terms of the Registration of Birth and Death Act, 1969.
The petitioner has relied upon documents such as DD entry reported to the police on 13.4.2000, his statement recorded by the police on the same day as well as a "missing person" advertisement issued by the local police on 24.4.2000. Counsel for the petitioner relied upon the verification report of the police issued on 25.4.2007. The said verification report reads as follows:
To
The S.H.O.
SUB: VERIFICATION REPORT OF MISSING
SH. HOSHIAR SINGH S/O SH. SHADI RAM
I, HC for the preparation of verification report of Sh. Hoshiar Singh S/o Sh. Shadi Ram R/o Village Khera Khurd, Harijan Colony, Delhi went there and made inquiries about Hoshiar Singh where it was found abovesaid Hoshiar Singh still missing and in this respect statement of wife of Hoshiar Singh and neighbours was got recorded and same are enclosed with the report.
Report is placed herein.
HC Anil Kumar 1226/NW
PS-Narela, Delhi.
Sir,
As per report prepared by HC Anil Kumar No. 1226/NW, PS-Narela, Sh. Hoshiar Singh S/o Sh. Shadi Ram R/o Village Khera Khurd, Harijan Colony, Delhi aged about 58 years as per DD no. 17A dt. 13.4.2000 is still missing and not traceable till today.
In addition to the above, counsel for the petitioner relied upon Section 108 of the Evidence Act.
The position of the respondents is that the Act does not contain any provision for issuance of death certificate where a person goes missing or is untraceable. It is further contended that in such cases there is no certainty about the factum of death and since there is possibility of the person returning, the certificate is not issued. It is contended additionally by counsel on behalf of the respondent that if directions to issue such certificates are given by the courts, there is a real possibility of their misuse and lodging of false claims with insurance companies as well as other service providers.
From the above narrative it is apparent that the petitioner''s father Hoshiar Singh went missing for the last 7 years. It is also evident that the petitioner had notified the local police and the Sub-Divisional Magistrate. His efforts at securing a death certificate were to no avail. The documents produced on the file of the court, such as copies of the DD Entry and the advertisement issued by the local police undoubtedly show that all efforts were made to trace the said Hoshiar Singh. The last in the series of the documents is the report dated 25.4.2007. It records that the said Hoshiar Singh is still missing and the police had obtained a statement of his wife and neighbours.
Section 108 of the 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.
From the above provision it is apparent that once it is shown that a person has not been heard of 7 years or more by those who would naturally have heard of him if he had been alive the burden of proving otherwise would shift to persons, asserting to the contrary. On a fair application of this provision I am of the opinion that the petitioner has discharged the burden; the documents on record show that Hoshiar Singh has been missing for the last 7 years. At the first available opportunity in April, 2000, the petitioner reported the matter to the police; they appear to have investigated the matter. Again investigation was conducted in April, 2007 and the matter was reported to the local police by the concerned head constable.
As far as the apprehension voiced by the respondents with regard to misuse of such certificate is concerned I am of the opinion that the same, at this stage, are groundless. In the event of such certificate being filed it is open to the respondents to indicate that certificate is on the basis of an assumed death or missing person report and it can cite Section 108 of the Evidence Act. Further, the possibility of misuse is something which the insurer or the other service provider can easily taken care by insisting upon indemnity bonds etc.
In view of the above conclusions the petition has to succeed. A direction is issued to the respondents to issue an appropriate certificate in terms of the Act and the same may indicate that Hoshiar Singh has been missing. It may in addition cite Section 108 of the Evidence Act. The respondents shall ensure that a certificate is issued to the petitioner, within four weeks. The petition is allowed in the above terms. No costs.