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GAUHATI HIGH COURT
Achintya Malla Bujor Barua, J.
Sanwarmal Singhania & Anr. - Appellant
Versus
State Of Assam - Respondent
Regular Second Appeal No. 212 of 2011
Decided On : 11-02-2020
Presumption of Death - Declaration of Death - Section 108 of the Evidence Act - [Section 108] - The court discussed the provisions of Section 108 of the Evidence Act, which provides for a presumption of death if a person 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 the person is alive shifts to the person who affirms it. The court emphasized that for a presumption of death, the person seeking the declaration must prove through evidence that the person who would have naturally heard of him had not heard for more than seven years. The burden then shifts to the respondents to prove that the person is alive. The court concluded that the plaintiffs had discharged their burden to prove that the victim was not seen or heard by anyone for seven years, and therefore, they were entitled to a declaration under Section 108 of the Evidence Act that the victim was dead.
Fact of the Case:
The plaintiffs sought a declaration that Prakash Singh Singhania was dead as he had been missing for seven years. The defendants contested the claim, arguing that the burden of proving the death of the victim rested on the plaintiffs.
Finding of the Court:
The court found that the plaintiffs had provided evidence that the victim had not been seen or heard of for seven years, thereby meeting the requirements of Section 108 of the Evidence Act. The burden then shifted to the respondents to prove that the victim was alive, which they failed to do. As a result, the court allowed the appeal and granted the declaration that the victim was dead.
Issues: The main issue was whether the plaintiffs were entitled to a declaration that the victim was presumed to be dead under Section 108 of the Evidence Act.
Ratio Decidendi: The court held that the burden of proving the death of a person who has not been heard of for seven years shifts to the person who affirms that the person is alive. The plaintiffs successfully proved that the victim had not been seen or heard of for seven years, and the burden then shifted to the respondents, who failed to prove that the victim was alive.
Final Decision: The court allowed the regular second appeal and granted a declaration that the victim was dead, entitling the plaintiffs to all the consequences under the law by presuming the victim's death.
JUDGMENT
Achintya Malla Bujor Barua, J. - Heard Mr. B Chakravarty, learned counsel for the appellants. Also heard Mr. G Bordoloi, learned State counsel for the respondents.
2. The appellant plaintiffs instituted T.S No.220/2009 in the Court of the learned Civil Judge Junior Division No.3, Kamrup at Guwahati with the following prayer:
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"a. For a declaration that victim Prakash Singhania is dead who is missing since 17.02.2002 to enable the plaintiffs to take further course of action to which they are entitled as per law;
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b. and any other such relief/reliefs to which the plaintiffs are entitled as per law and equity."
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3. The only relief sought for in the title suit was for a declaration that Prakash Singh Singhania is dead since he is missing since 17.02.2002. The prayer made in the plaint itself makes it apparent that the plaintiffs intend to invoke the provisions of Section 108 of the Evidence Act which provides for a presumption that in the event a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden to prove that he is alive shifts to the person who affirms it that he is alive.
4. In paragraph 2 of the plaint, it is stated that the plaintiff No.1 is the father and appellant No.2 is the brother of Prakash Singh Singhania, who was a brilliant student pursuing his studies in the final year Chartered Accountant course and was last seen on the night of 16.02.2002 and then went missing from the early morning of 17.02.2020 and since then, his whereabouts could not be ascertained.
5. As regards the missing of Prakash Singh Singhania, an FIR was lodged in the Paltan Bazar Police Station vide GD Entry No.1065 dated 17.02.2002. There were publications in the print as well as visual media as regards the missing of Prakash Singh Singhania seeking information from any person if his whereabouts were known. After a lapse of the period of 7(seven) years since the date of missing of Prakash Singh Singhania the plaintiffs approached the respondent United Bank of India, where Prakash Singh Singhania has some account and also had a locker for allowing them to verify the bank account as well as the locker. But when the bank authorities had refused the plaintiffs to give access to the bank account and locker of Prakash Singh Singhania, a title suit was filed seeking for a declaration, as otherwise the bank authorities were not inclined to cooperate with the plaintiffs.
6. In the written statement, the defendants other than taking certain mechanical stand that the plaintiffs are put to a strict proof to substantiate that they are entitled to the deposits of Prakash Singh Singhania, no further stand had been taken, other than that the plaintiffs are put to strict proof as regards the death of Prakash Singh Singhania. Similar bank accounts of Prakash Singh Singhania were also there in Canara Bank and other banks and all the banks by taking the similar stand had refused the plaintiffs from having access to the bank accounts of Prakash Singh Singhania.
7. In course of the trial, amongst others, an issue was framed as to whether the plaintiffs are entitled for a decree for declaration that Prakash Singh Singhania is presumed to be dead.
8. The said issue was decided by referring to issue No.1 as regards the cause of action for the suit wherein a conclusion was arrived that in the plaint as well as in the evidence there is not a whisper that the defendants had denied that the Prakash Singh Singhania is missing. Accordingly, it was concluded that there was no cause of action for the suit.
9. On an appeal being carried out being TA No.78/2010 in the Court of the learned Civil Judge No.1 Kamrup(M), the learned Court in its judgment dated 07.09.2011 took note of the submission of the learned counsel for the appellant plaintiffs that nothing had been heard about the victim although 7(seven) years had elapsed in the meantime, therefore, had the victim been alive it is the pla
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