Smt. Sunita Devi vs State of U.P. and another

Rajiv Sharma, J.—Heard learned counsel for the petitioner and learned standing counsel. Learned counsel for the petitioner submits that petitioner''s husband, namely, Sri Prakash Narain Shukla, is missing since April, 2004 and as such, she lodged an F.I.R. relating to Case Crime No. 204 of 2009, u/s 364, I.P.C., at police station Vikas Nagar. Lucknow. The Investigating Officer, after due investigation, has submitted final report, which was duly accepted by the competent Court vide order dated 6.7.2010. Thereafter, the petitioner has moved an application for payment of dues of her missing husband, salary, gratuity, insurance and pension etc. but the opposite parties did not pay any heed in the matter.

Learned counsel for the petitioner submits that the petitioner has also moved an application for her appointment on a suitable post according to the provisions of Uttar Pradesh Recruitment of Dependants of Government Servants (Dying in Harness) Rules. 1974 as more than seven years has passed. But, even then, no heed was paid and as such, the instant writ petition has been filed with a prayer to issue a writ in the nature of mandamus directing the opposite party No. 2 to pay all the pensionary/retiral/death benefits, admissible to the petitioner''s husband on the presumption that he is no more as per Government Order dated 20.3.1987. Further, it has been prayed that opposite parties may be directed to give appointment under harness as per the qualification of the petitioner in view of 1974 Rules.

At this stage, this Court pertinently points out that Section 107 of the Indian Evidence Act, 1872, refers to the burden of proving death of person known to have been alive within thirty years. As a matter of fact, the ingredients of Section 107 of the Indian Evidence Act. 1872 are as follows :

When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

Section 108 of the Indian Evidence Act, 1872, speaks of burden of proving that person is alive who has not been heard of for seven years and the same enjoins thus :

(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.

To put it precisely, Section 107 of the Indian Evidence Act, 1872. deals with presumption of continuance of life, whereas Section 108 of the Indian Evidence Act. 1872. deals with the presumption of death.

When an individual''s existence is in doubt or question, he is shown to have been living at a given time within thirty years and there is nothing to suggest the probability of his death, the continuance of life will be presumed and the person who asserts the contrary has the burden to establish it.

This is embodied u/s 107 of the Indian Evidence Act. 1872. It must be remembered that the presumption extends merely to the fact of death at the expiration of seven years; but not to the time of death at any particular period, viz. there is no presumption that the death took place after the end of the period of seven years or at any other particular time within that period. A person asserting that death occurred at any particular time must prove it like any other fact. The mere fact that a person has not been heard of for seven years does not raise the presumption of death where the circumstances are such that it is not likely that he would or could have communicated with his home even if he were alive. There is a presumption in favour or continuance of human life and this presumption of continuance of life is not of law but of fact, as opined by this Court.

In M. Monlr''s Principles and Digest of the Law of Evidence, Vol. 2, 7th Edn. at page 1145, it is observed thus :

The only presumption enjoined by Section 108 of the Evidence Act being that a person who has not been heard of for seven years or more is dead at the time the question is raised, there can be no presumption of his being dead or alive at any particular time of the period for which he has not been heard of. There is neither any presumption of his being alive for a period of seven years from the time he was last heard of; nor any presumption of his having died immediately after his disappearance, nor any presumption of his being alive or dead at any particular time antecedent to the suit or proceeding in which the question of his being dead or alive arises. The result, therefore, is that where nothing more is shown than that a person has not been heard of for seven years or more, the party, on whom the burden of proving him to be alive or dead at any particular time during the period he has not been heard of lies, will fall.

In Sarkar on Evidence, 14th Edn., at page 1438, it is summarised as follows :

If a person is not heard of for seven years there is a presumption of the fact of death at the expiration of seven years, but the exact time of death is not a matter of presumption but of evidence and the onus of proving that death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. There is no presumption that death took place at the close of seven years.

There is no presumption as per Section 108 of the Indian Evidence Act, 1872, that a person died on a particular date or on expiry of seven years as per the decision in Jaya Laskhmi Ammal v. R. Gopala Pathar, AIR 1995 SC 995, at page 999.

Presumption of civil death or fictional death u/s 108 of the Indian Evidence Act. 1872, amounts to physical death in the eye of law for giving the widow a right to file a suit as per the decision in Parikhit v. Champa, AIR 1967 Ori 70.

It is to be borne in mind that the revenue officials cannot issue certificate of death or widowhood based on the presumption, as per the decision in N. Prem Anantht v. Tahsildar. Coimbatore. AIR 1989 Mad 248, at page 251.

As far as the present case is concerned, even though on the side of the petitioner, it is averred that on the disappearance of her husband since April. 2004, her right has accrued and the cause of action has been arisen for the petitioner and further that, a complaint has been lodged, on the basis of which, a criminal case has been registered and later, an order has been passed by the competent Court that the case has been undetected. I am of the considered view that the petitioner has not obtained any declarative decree from the civil court that her husband has been dead at a given date, which certainly will be decided on the basis of the evidence available at the date of hearing.

Even otherwise, the petitioner has nowhere stated in the writ petition that she has completed the formalities as required in the Government Order dated 20.3.1987 (Annexure-5 to the writ petition), on which, reliance has been placed by the petitioner. This Government Order provides that for getting the admissible dues, the legal heir(s)/nominee(s) is/are required to furnish indemnity bond and other documentary evidence.

In the result, no good ground for directing to pay admissible dues and for compassionate appointment is made out at this stage in exercise of discretionary writ jurisdiction under Article 226 of the Constitution of India. The writ petition being premature is hereby dismissed.However, the dismissal of the writ petition will not come in the way of the petitioner in approaching this Court again on account of some subsequent development. It will be open for the petitioner to complete the formalities as required by the Government Order dated 20.3.1987 at the earliest.