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CALCUTTA HIGH COURT
Charu Chunder Ghose, J.
In Re: Ganesh Das Aurora - Appellant
Decided On : 28-06-1926
Presumption of Death - Letters of Administration - The court allowed the petitioner to declare and state in her intended petition for grant of Letters of Administration to her deceased husband, Ganesh Das Aurora, that his death may be presumed to have occurred, based on the provisions of Section 108 of the Indian Evidence Act.
Fact of the Case:
The applicant, wife of Ganesh Das Aurora, sought an order to presume the death of her husband, who disappeared in 1918 and had not been heard of since. Diligent enquiries and searches were made without success.
Finding of the Court:
The court found that under Section 108 of the Indian Evidence Act, Ganesh Das Aurora must be presumed to be dead, but there is no presumption as to the time of his death. The court allowed the petitioner to declare and state in her intended petition for grant of Letters of Administration that the death of Ganesh Das Aurora may be presumed.
Issues: The main issue was whether the court could presume the death of Ganesh Das Aurora based on the circumstances presented by the petitioner.
Ratio Decidendi: The court applied Section 108 of the Indian Evidence Act, which provides for the presumption of death and the continuance of life. The court emphasized that there is no presumption as to the time of death, and the petitioner must be allowed to declare and state the presumed death in her intended petition for grant of Letters of Administration.
Final Decision: The court allowed the petitioner to declare and state in her intended petition for grant of Letters of Administration that the death of Ganesh Das Aurora may be presumed based on the circumstances presented.
Certainly. Based on the provided legal document, here are the key points:
The case involves a petition to presume the death of Ganesh Das Aurora, who disappeared in 1918 and was not heard from since, despite diligent searches and inquiries (!) .
The court applied Section 108 of the Indian Evidence Act, which permits the presumption of death after a person has been missing for a certain period, here considered to be at least seven years from the last known sighting or communication (!) .
The court recognized that while a presumption of death can be made under Section 108, there is no presumption as to the exact time of death; establishing the precise date requires actual evidence (!) .
The court's decision was to allow the petitioner to declare in her petition that Ganesh Das Aurora's death may be presumed to have occurred on or since August 23, 1918, based on the circumstances, and to verify this statement in her application for Letters of Administration (!) (!) .
The final order authorized the petitioner to state in her petition that the death of Ganesh Das Aurora may be presumed, and she is permitted to verify this declaration, but the court did not specify an exact date of death (!) .
JUDGMENT
Charu Chunder Ghose, J. - This is an application for an order that the death of one Ganesh Das Aurora may be presumed and that the petitioner may be at liberty to declare and state in her intended petition for grant of Letters of Administration to her of the property and credits of the said Ganesh Das Aurora deceased, that the death of the said Ganesh Das Aurora occurred on or since the 23th August, 1918, and she may beat liberty to verify such statement in her intended petition.
2. The circumstances under which this application has been made, briefly stated, are as follows: The applicant is the wife of the said Ganesh Das Aurora. It is stated that the applicant's husband disappeared on or about the 29th August, 1918, and has not been heard of since by her or any other member of his family or any relations or friends or by any one to the applicant's knowledge. It is further stated that diligent enquiries and searches to find out the where-abouts of the said Ganesh Das Aurora in various places in British India, such as Calcutta, Howrah, Hardwar, Bindhyachal, Muttra, Etawah, Brindavan, Amraoti and Agra, have been male but without success and advertisements were inserted in various places in Calcutta. The said Ganesh Das Aurora could not be found nor was any information received about him.
3. Now, u/s 108 of the Indian Evidence Act I think in this case Ganesh Das Aurora must be presumed to be deal. There is no presumption, however, as to the time of his death and if any one seeks to establish the precise period at which such person died, he must do so by actual evidence. The question for which provision is made in Section 108 of the Indian Evidence Act is whether a man is alive or dead at the time the question is raised, in other words, the presumption of the continuance of life [there is a presumption in favour of continuance of life, see Tani v. Rikhi Ram 56 Ind Cas. 742 : 1 L. 554 : 114 P.L.R. 1920 : 2 L.L.J. 481] ceases at the expiration of seven years from the period when the person in question was last heard of [see in this connection In re Benjamin (1902) 1 Ch. 723 : 71 L.J. Ch. 319 : 86 L.T. 387, In re Walker (1872) 7 Ch. A. 120 : 41 L.J. Ch. 219 : 25 L.T. 775 : 20 W.R. 171.]
4. The order, therefore, will not be as prayed for but will be in the following form. In the permises herein mentioned the death of the said Ganesh Das Aurora may be presumed and the petitioner be at liberty to declare and state in her intended petition for grant of Letters of Administration to her of the property and credits of the said Ganesh Das Aurora deceased that in the events which have happened the death of the said Ganesh Das Aurora may now be presumed and the applicant may be at liberty to verify such statement in her said intended petition.
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