Sushilaben Prabhashankar Dhruv vs Collector, Ahmedabad

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2018 Supreme(Guj) 1124

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, J.
Sushilaben Prabhashankar Dhruv – Appellant
Versus
Collector, Ahmedabad – Respondent
First Appeal No. 1597 of 2017
Decided On : 08-10-2018

Advocates Appeared:
For the Appellant : Mr. Viral K. Salot.

Headnote:Indian Evidence Act, 1872 – Sections 107 and 108 – Presumption of civil death – Section 108 of Evidence Act does not provide any particular procedure to be followed for presumption of death – In view of presumption of continuance of life, it was thought necessary to provide for counter-presumption whether a person's death would seem more likely from the nature and circumstances of case than continuance of life – In such circumstances, where a person is continually absent from home for a period of seven years unheard of by persons known other than his own family members, who would have naturally received intelligence from him, he is presumed to be dead – Burden of proving that he is alive thereafter is shifted to person who affirms that he is not dead – It is a rebuttable presumption – Civil suit decreed – Appeal allowed. (Paras 24 and 27)

Judgement Key Points

Key Points: - The judgment explains that Section 108 is a proviso to Section 107 and creates a rebuttable presumption of death when a person has not been heard of for seven years by those who would naturally know, shifting the burden to the party claiming the person is alive. [13000282940011][13000282940018] - It clarifies that Section 107 places the burden of proving death on the party asserting it when the person was known to be alive within thirty years; Section 108 can shift the burden back to the claimant if seven years of non-hearing are established. [13000282940011][13000282940012] - The presumption under Section 108 is limited to death; it does not specify a date/time of death and must be supported by evidence; seven-year absence is a condition for the presumption to arise, not a fixed date of death. [13000282940015][13000282940016] - The court emphasizes that presumption of death requires evidence of efforts to trace the person; absence of police missing reports or public notices does not automatically negate the presumption, but reasonable efforts must be shown. (!) (!) [13000282940023] - The case holds that Arvindbhai Balkrishna Dhruv is presumed dead, and the suit for declaration of death and related relief is decreed; the decision relies on seven-year non-appearance and circumstantial evidence of lack of contact. [13000282940025][13000282940026] - The judgment cites accompanying jurisprudence and authorities on the alignment of Indian and English presumptions of life and death, including references to how seven-year absence interacts with proof standards. [13000282940012][13000282940014] (!)

What is the application and effect of Section 108 of the Indian Evidence Act in presuming death after seven years of non-availability?

What is the burden of proof on the party alleging death versus alive status under Sections 107 and 108 of the Evidence Act, and what constitutes reasonable efforts to trace a missing person?

What factors justify declaring a missing person presumed dead in a civil suit seeking succession or property rights, and what is the correct scope of evidentiary requirements (including absence of FIR or public notice) to support such presumption?

JUDGMENT :

J.B. PARDIWALA, J.

1. This First Appeal under Section 96 of the Code of Civil Procedure, 1908 [for short the C.P.C.] is directed against the judgment and order dated 16.04.2014 passed by the Judge of the City Civil Court, Court No. 14, Ahmedabad in the Civil Suit (CCC) No. 2401 of 2012.

2. The facts giving rise to this First Appeal can be gathered from the Paragraph-2 of the impugned judgment and order passed by the Court below, which reads as under:

2.1 There is an immovable property bearing Survey No. 5100, T.P. Scheme No. 4, F.P. No. 106 admeasuring about 260 sq. yards having construction of 352 sq. yards over it. The said property is known as Dhruv Niwas. The plaintiffs have averred that the said suit property is in their joint possession. The plaintiffs further state that they are the owners of the suit property.

2.2 According to the plaintiffs, the said suit property was taken on lease hold rights of 99 years by the grandfather of the plaintiff nos. 2 to 4 viz. Balkrishna Muljibhai Dhruv. Balkrishna Muljibhai Dhruv died on 19.7.1966. The plaintiffs further states that after the death of Balkrishna Muljibhai Dhruv, the said suit property devolved upon his three sons viz. (1) Prabhasankar Balkrishna Dhruv, (2) Ratilal Balkrishna Dhruv, (3) Arvind Balkrishna Dhruv. Thereafter, the father of plaintiff nos. 2 & 3 viz. Prabhasankar Balkrishna Dhruv expired on 23.3.1989 and the father of plaintiff nos. 4 & 5 viz. Ratilal Balkrishna Dhruv expired on 16.5.1973. The plaintiffs have therefore, averred that after the death of Prabhashankar Balkrishna Dhruv and Ratilal Balkrishna Dhruv, the suit property had devolved upon the present plaintiffs by way of heirship. Accordingly, the names have been mutated in the City Survey records.

2.3 The plaintiffs further state that Shri Arvind Balkrishna Dhruv who is the uncle of plaintiff nos. 2 to 5 was serving in Army, but their grandfather had called him back from the Army and therefore, Arvind Balkrishna Dhruv was staying with the original plaintiffs in the Dhruv Niwas. The plaintiffs have further averred that their uncle viz. Arvindbhai Balkrishna Dhruv was in the habit of getting irritated on being asked about his whereabouts. Because of this habit of Shri Arvind Balkrishna Dhruv the father of plaintiff nos. 2 & 3 as well as plaintiff nos. 4 & 5 and the grandfather of the plaintiffs had stopped inquiring about the same from Arvindbhai. The plaintiffs have further averred that their uncle Arvindbhai round about in the year 1970 has left his house and at that time the original plaintiffs were under the impression that as per the habit of Arvindbhai he must have gone out of the house for one or two months and would come back. But their uncle Arvindbhai did not return even after 3-4 months. Therefore, the fathers of the plaintiff nos. 2 to 5 made an inquiry about Arvindbhai, but could not trace his whereabouts. The plaintiffs have further stated that Arvindbhai was a bachelor. According to them, no whereabouts or trace outs of Arvindbhai have been found till date. The plaintiffs are even not knowing as to whether their uncle Arvindbhai is alive or not and if alive where he is?

2.4 The plaintiffs have further stated that the plaintiffs want to sell out the suit property, but in the city survey record of the suit property, the name of their uncle is also there because of which, they are not in a position to sell out the suit property. According to them, since last 40 years their uncle Arvind Balkrishna Dhruv is not known of, no whereabouts or trace outs of their uncle is found. The plaintiffs have further stated that as their uncle was in the habit of going away from the house without saying anything to their grandfather, because of his habit, the grandfather of plaintiff nos. 2 to 5 had given a public notice on 19.9.94 relinquishing his rights from the suit property. According to the plaintiffs, since 1970 no letters are received by the plaintiffs from Arvindbhai. Thus, the plaintiffs have

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