Sushila and Others vs The State of Maharashtra

A.B. Chaudhari, J.—1. After hearing learned counsel for the appellant, this Court found that this appeal should be decided at the admission stage itself in view of the short controversy arising in the matter.

FACTS:

The appellant Smt. Sushila w/o Babulalji Sawal with her two sons filed a suit bearing Regular Civil Suit No. 640/2015 in the Court of Civil Junior Division, Nagpur, labelling the same as the one under Section 108 of the Indian Evidence Act, 1873 with a prayer asking for a decree declaring that Babulalji Tarachandji Sawal is no more alive. It was stated in the suit that the husband of the plaintiff no.1-Smt. Sushila and father of the plaintiff nos. 2 and 3 since 19.03.2004 went missing and despite due diligent search, he could not be found and as a result, on 20.03.2004 a police complaint was lodged with Ranapratap Nagar Police Station, Nagpur. The plaintiff then enquired from time to time with the relatives and friends but to no use. It is stated that Babulalji did not have any Passport. The missing news was also published in the leading newspaper ''Nav Bharat'' on 22.03.2004. Since, it was necessary to have minimum period of seven years elapsed, the plaintiffs approached Police Station, for a certificate to that effect which was issued on 06.06.2011 i.e. after seven years. All these documents were filed along with suit and required Court fees etc. The affidavit evidence was filed before the trial Judge when the suit was taken up for hearing. The learned trial Judge, however, dismissed the suit. The appellants/ plaintiffs carried an appeal before the District Court, which also dismissed the appeal and confirmed the decree of dismissal of the suit. Hence, this Second Appeal.

SUBMISSIONS:

In support of the appeal, Mr. Gharote, learned counsel for the appellants, vehemently argued that the suit filed by the appellants was by invoking the plenary jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure. According to him, the reason given by the lower appellate Court that the suit would be under Section 34 of the Specific Relief Act and that no ingredients thereof were satisfied, is wrong and illegal. Equally, the appellate Court held that the appellants had not sought any declaration as to the date of death nor had specified the date of death, which according to Mr. Gharote, is wholly irrelevant in the sense that what was sought in the prayer was a declaration consistent with Section 108 of the Evidence Act. According to Mr. Gharote, another reason for denying the relief was that no party was added as defendant in the suit and, therefore, no declaration that was prayed be granted, which according to him is again misconceived because appellant no.1 is wife while appellant nos. 2 and 3 are the children and none else wanted to object or contest the claim in the suit. The learned counsel then invited my attention to the public notice issued under the Court Process No. 4180 dated 30.06.2015 in the suit in question, but in response thereto, there was no contest nor any objection to the suit was taken. The learned counsel for the appellants then contended that the suit claiming relief qua Section 108 of the Evidence Act in its very nature is normally to be treated not like the suits regularly filed in the Courts. He relied on decision in the case of L.I.C. of India vs. Anuradha; , AIR 2004, SC 2070, relied on by this Court in the case of Santosh Popat Chavan vs. Sulochana Rajiv, , 2015 (5) ALL MR 604 particularly paragraph 31 thereof.

At the first hearing, this Court noticed that the appellant did not array any defendant in the trial Court or lower appellate Court but then looking to the fact that there was no contest for issuance of the declaration qua Section 108 of the Evidence Act from any person, this court thought it fit to array the State through Collector, being guardian of the citizens, to be added as respondent in this second appeal. In my opinion, there was no need to send the matter back to the trial Judge merely because the State through Collector was being added as party for the first time in this Second Appeal as it would serve no purpose at all. Now, State is represented by Ms Rane, A.G.P. in this Court.

In the light of the above submissions made by learned counsel for the appellants and upon perusal of the entire record including the evidence, oral as documentary, I frame the following substantial questions of law for disposing of this Second Appeal.

"(i) 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 Babulalji Sawal is not alive by virtue of the lapse of period of seven years from the date of his disappearance on the ground that the date of death was not specified and that there was no compliance of Section 34 of the Specific Relief Act? ..... Yes

(ii) What order?...As per Final decree"

Sections 107 and 108 of the Evidence Act read thus:

Burden of proving death of person known to have been alive within thirty years. 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.

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."

There is no need for this Court to delve upon the niceties of interpretation of Sections 107 and 108 of the Evidence Act, as the issue is no more res integra in view of decision of the Supreme Court in , AIR 2004 SC 2070, the relevant portion from the said judgment is quoted below.

"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 dictum laid down by the apex Court as above, I am of the firm opinion 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. 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 next question is about absence of any defendant in the array of the suit. It is true that the appellant did not array any defendant in the suit, perhaps because there was no objection from anybody or any family members even pursuant to the public notice that was issued by the Civil Court itself. Nevertheless, in my opinion, the appellants should have made the State of Maharashtra, through Collector, Nagpur as party-defendant to the suit, since in such eventuality, it is the State, which cares for the interest of its people and, therefore, the Court may take the assistance of the State, for finding out the truth. This Court, therefore, allowed the appellants to add Collector as defendant in this Second Appeal, which is in continuation of the suit and, therefore, an effective decree can always be passed. I do not find that there could be any objection from the State through Collector, Nagpur since despite publication by the Court about the suit inviting objections, if any, none responded to raise any objection including the State. At any rate, looking to the pleadings, it is clearly seen that the wife and two children of Babulal i.e. blood relations were before the Court seeking relief. The reasons recorded by the trial Judge that the date of death was not mentioned by or claiming by way of declaration clearly appears to be preposterous since none could be sure about the death, if any, and hence the Court could not have expected the appellants to ask for declaration about the death.

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.

To sum up, following order is inevitable.

ORDER

(i) Second Appeal No. 34/2016 is allowed.

(ii) Impugned judgment and decree dated 04.09.2015 passed by Jt. Civil Judge Junior Division Nagpur in Regular Civil Suit No. 640/2015 and judgment and decree passed by District Judge-8, Nagpur in First Appeal No. 421/2015, both are set asid e.

(iii) There shall be a decree in terms of prayer clause (a) of the suit, which is reproduced below.

"(a) a decree declaring that Shri Babulalji Tarachandji Sawal is no more alive"

No order as to costs.