A civil court has inherent powers to grant a declaration of civil death, even in the absence of a specific provision in the Specific Relief Act, if the plaintiffs have satisfied the burden of proof under Section 108 of the Evidence Act.

JUDGMENT

Partha Sarathi Chatterjee, J.

1. The present appeal has been preferred challenging the judgment and decree dated 20th June, 2022 passed by the learned Judge, III Bench, City Civil Court, Calcutta in Title Suit no. 981 of 2017 (Smt. Saroj Gupta & Ors. –vs- Sanjay Kumar Gupta) whereby the learned Court below dismissed a suit preferred by the appellants/plaintiffs seeking a declaration as regards the death of the husband of the plaintiff no. 1 and the father of the plaintiff nos. 2, 3, 4, 5 & 6, who has not been heard of for more than 7 years by persons, who would have heard of him if he had been alive. In the impugned judgment and decree, it was, however observed that ‘the plaintiffs, if so advised, are at liberty to file a fresh Suit, seeking such declaration, by incorporating or adding necessary parties therein’.

2. Capsulated form of facts giving rise to this appeal is as follows :

i. That the plaintiffs being the legal heirs of one Sanjay Kumar Gupta has filed one suit against Sanjay Kumar Gupta seeking primarily the following relief :

‘a decree of declaration that the defendant being husband of the plaintiff No. 1 and father of the plaintiff Nos. 2, 3, 4, 5 & 6 since missing on and from 3.10.2009 and a declaration be given that since more than 7 years from the date of missing had passed the defendant had died under the provision of Section 108 of the Indian Evidence Act, 1872;’

ii. Facts projected in the plaint, in brief, are that Sanjay Kumar Gupta (in short, Sanjay), at all material times, had carried on business at Kolkata and has his Savings Bank Account with Union Bank of India, Azamgarh Main Branch, Takia, Uttar Pradesh and also at Ezra Street Branch, Kolkata and a Public Provident Fund Account with State Bank of India, (Netaji Subhas Road) Branch, Kolkata and some insurance policies with LICI. During his life time, he acquired and was seized and possessed of various movable and immovable properties which are required to be managed properly by the plaintiffs, who are the ultimate beneficiaries thereof;

iii. It was claimed therein that Sanjay went missing from his residence located at 3, Amratala Street, Bharat Tea House, P.O. & P.S. – Burrabazar, Kolkata – 700 001 since 3.10.2009;

iv. Plaintiffs lodged one General Diary vide. Burrabazar P.S.G.D.E. no. 302 dated 4.10.2009 which was forwarded to Missing person Squad at Lalbazar Police Headquarter, Lalbazar, Kolkata and the Joint Commissioner of Police, Crime Lalbazar, Kolkata issued an ‘Interim Non-Traceability (Police Inquiry) Report’. The fact of non-traceability and/or missing was published in various leading newspapers from time to time and the details including photograph were also telecast through Doordarshan Kendra, Kolkata. Lastly, on 20th June, 2017 i.e. after continuation of inquiry for more than 7(seven) years from the date of missing, office of the Commissioner of Police, Kolkata issued a Final Report vide. Memo. No. 1162/DD/MPS dated 20.6.2017 stating therein that ‘all efforts to trace out the missing subject unfruitful and chance of tracing out the missing subject seems to be very remote’;

v. It was submitted therein that Sanjay was sole bread earner of his family and in his absence, plaintiffs have plunged into penury and hence, they have been constrained to prefer the suit seeking such sort of declaration;

3. Record postulates that in corroboration of contention, the plaintiffs adduced oral testimony of plaintiff no. 1, who was examined as PW-1 and they had tendered some documents which being admitted as evidence, were marked as Ext.1 to 4.

4. The primary issue on the basis of which the suit has been dismissed is that the appellants have failed to implead any person, who is denying or is interested to deny their legal character.

5. The intrinsic aspects relating to the burden of proof and the nature of evidence required for arriving at a conclusion with respect to the declar