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IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. MANIKUMAR, SHAJI P.CHALY, JJ.
Shajeev George – Petitioner
Versus
The Chief Registrar of Births and Deaths, Office of the Director of Panchayat and Ors. – Respondents
WA No. 1727 of 2021
Decided On : 02-02-2022
Evidence Act, 1872 - Section 108 – Presumption of death - Burden of proving death of person known to have been alive within thirty years - Civil Death – Not knowing the whereabouts of father - Claim of death certificate of father – To declare that the stand taken by the second respondent to produce an order of civil court declaring the civil death of petitioner's father for granting death certificate is illegal and unjust.
Finding of the Court:
Evidence with respect to a civil death in contemplation of the provisions of law will have to be established before a civil court and the Registrar of Births and Deaths is not vested or enjoined with such powers - declaratory decrees can be made by a court only after being satisfied with sufficient proof available on record to do so. The Registrar of Births and Deaths is not expected to go into such intrinsic aspects relating to the burden of proof and the nature of evidence required for arriving at a conclusion with respect to the declaration of the Civil death of a person.
Result: Dismissed
Based on the provided legal document, the key legal principles and findings are as follows:
The Registrar of Births and Deaths does not have the authority to declare civil death or issue a death certificate based solely on evidence or presumption of civil death. Such declarations require a formal declaration by a competent civil court (!) (!) .
The process of establishing civil death involves proving, before a civil court, that the individual has been absent and untraceable for a specified period, and that their death can be presumed. The Registrar's role is limited to issuing a death certificate after such a declaration by the court (!) (!) .
Evidence under the Indian Evidence Act, particularly sections 107 and 108, governs the burden of proof regarding whether a person is alive or dead. These provisions establish that the initial burden lies with the person asserting the death or the person's absence, and that proof must be established in a court of law, not an administrative authority (!) (!) .
The issuance of a death certificate is an administrative function that does not encompass adjudication of the question of civil death. Therefore, the Registrar cannot issue a death certificate based solely on presumptions or evidence presented without a court declaration (!) .
A civil court's judgment declining a declaration of civil death, or a finding that the individual’s whereabouts are unknown for a specified period, does not automatically obligate the Registrar to issue a death certificate. The Registrar is not bound by such judgments and must await a formal court declaration for issuing a death certificate (!) .
The exercise of declaring civil death and issuing a death certificate is a serious matter that requires due process and sufficient proof. Such declarations are within the jurisdiction of a civil court, and administrative authorities or courts exercising summary powers are not authorized to make such declarations lightly or without proper evidence (!) (!) .
The court emphasized that the powers under Article 226 of the Constitution are of a summary nature and are not suitable for making declarations on matters requiring detailed evidence and judicial scrutiny, such as civil death (!) .
Consequently, the court dismissed the appeal, affirming that the Registrar's refusal to issue a death certificate without a court declaration was lawful and that the proper procedure involves a civil court establishing the civil death before such a certificate can be issued (!) .
In summary, the legal framework mandates that civil death must be declared by a competent civil court based on sufficient evidence. Administrative authorities like the Registrar of Births and Deaths are not empowered to make such declarations or issue death certificates based solely on presumptions or incomplete evidence.
JUDGMENT :
S.Manikumar, J.
The appeal is filed by the petitioner in W.P.(C)No.4159 of 2021, challenging the judgment of the writ court dated 02.11.2021 whereby the following reliefs sought for by the petitioner were declined and the writ petition was dismissed.
(ii) Issue appropriate writ or order declaring that the stand taken by the second respondent to produce an order of civil court declaring the civil death of petitioner's father for granting death certificate is illegal and unjust, considering the findings and observations in Exhibit P2.”
2. Brief material facts for the disposal of the appeal are as follows :
Appellant has sought for a direction to the Registrar of Births and Deaths – the 2nd respondent herein, to issue a death certificate of appellant’s father Mr.P.I.George, who is missing since 10.03.2007 onwards. According to the appellant, there is no information about his father from 10.09.2007 and his whereabouts are not known and therefore, there is a presumption of civil death as per section 108 of the Indian Evidence Act, 1872. It was taking into account the said aspect that the appellant has submitted an application before the Registrar of Births and Deaths seeking to issue the death certificate of the appellant’s father. The grievance highlighted by the appellant is that the 2nd respondent did not consider the application by taking a stand that the application can be considered only if the appellant produces an order from the court declaring the civil death of the appellant’s father. Thus aggrieved by the inaction on the part of the 2nd respondent, the writ petition has been preferred.
3. After a detailed and elaborate consideration of sections 107 and 108 of the Indian Evidence Act, 1872 and bearing in mind the principles of law laid down by this court in Devaki Amma Kamalamma and Another v. Grace Appa Amma and Others (2017 (3) KHC 12), the judgment in Bhargavi Amma v. Bhaskara Pillai (1988 KHC 496), the judgment of the Hon’ble Apex Court in LIC of India v. Anuradha (2004 (2) KLT 351 (SC)) and the judgment of this court in Joseph Peter and Others v. Elizabeth Manuel and Others (2019 (3) KLT SN 17), the learned single Judge has arrived at the conclusion that the appellant is not entitled to get any orders directing the Registrar of Births and Deaths to consider the application submitted by the appellant to issue the death certificate. It is thus challenging the legality and correctness of the judgment of the learned single Judge, the appeal is preferred.
4. The basic contention advanced by the appellant is that the learned single Judge did not consider the contention of the appellant that the circular issued by the Directorate of Panchayats dated 10.05.2017 issuing guidelines and revised instruction on births and deaths registration is against the provisions of the Registration of Births and Deaths Act, 1969 and the Indian Evidence Act, 1872.
5. It is also pointed out that on the basis of the counter affidavit filed by the 2nd respondent and the circular produced, the appellant filed an application for amendment of the writ petition, intended to raise a ground challenging the circular issued by the Directorate of Panchayats, directing the registrars of births and deaths as to the manner in which a death certificate is to be issued in the light of Sections 107 and 108 of the Indian Evidence Act 1872.
6. That apart, it is contended that the learned single Judge was not justified in ignoring Exhibit P2 judgment passed by the Munsiff’s Court, Chengannur in O.S.No.298 of 2014 dated 28.05.2015 in a partition suit filed by the appellant as well as his mother wherein the appellant, the mother and the appellant’s sister were set apart with one-third share each.
7. Relying upon the said judgment, contention of the appellan
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