This civil revision petition is directed against the order of the learned District Munsif, Madurai Taluk returning the plaint filed by the petitioners for a declaration that their brother E.R.Saravanan was dead, as his whereabouts were not known and as he has not been heard of more than 7 years.

2. In the plaint, it was the contention of the petitioners that their brother E.R.Saravanan was employed in the Madurai City Municipal Corporation as Record Clerk. While so, they have received a letter dated 07.04.1999 from Madurai Corporation stating that their brother Saravanan has gone on medical leave from 05.02.1999 to 27.03.1999 and that he did not report for duty on 28.03.1999. Subsequently, the Municipal Corporation have sent a letter dated 23.04.1999 addressed to Saravanan directing him to report for duty within three days from the date of receipt of the letter, failing which it was indicated that he would be suspended temporarily. Since their brother Saravanan failed to report for duty before the Corporation, he was suspended as per proceedings dated 30.07.1999. Subsequently, the Corporation made a paper publication in Malaimurasu, dated 22.01.2002 informing the public that the said Saravanan was suspended with effect from 30.07.1999 and later he was dismissed from service, as per proceedings dated 05.09.2002.

3. It was the further contention of the petitioners that their brother was having close contact with the defendant and though they have enquired with the defendant about the whereabouts of Saravanan, the defendant stated that he has no information about Saravanan from the year 1999. It was further contended in the plaint that they have not known the whereabouts of the said Saravanan for seven years and as such, as per Section 108 of the Indian Evidence Act, he is deemed to be dead. A police complaint has also been given on 05.01.2000 with respect to the disappearance of Saravanan. Accordingly, the plaintiffs have prayed for a declaration that their brother Saravanan is presumed to have been dead, as he is not found for the past seven years.

4. The learned trial Judge was pleased to return the plaint on the ground that the suit against the defendant, who is none other than a relative of the plaintiffs, is not maintainable for the relief asked for in the plaint. Even though there are other remarks by the learned trial Judge, those are not necessary to be considered here, as the main issue to be decided is as to whether the learned trial Judge was justified in returning the plaint on the ground that the suit is not maintainable.

5. I have heard Mr. T.R. Subramanian, learned counsel appearing for the revision petitioners.

6. The learned counsel submitted that as per Section 108 of the Indian Evidence Act, there is a statutory presumption that if a person is not heard of for the last seven years, he is presumed to be dead and such being the position, the trial Court committed a jurisdictional error in returning the plaint as not maintainable.

7. I have gone through the averments as found in the plaint.

8. The mater relating to grant of a decree of declaration is provided under Section 34 of the Specific Relief Act, 1963. It is trite that a declaratory decree granted is binding only on the parties to the suit or persons claiming through them respectively. Therefore, it is evident that a decree of declaration is only a right in personam and not a right in rem. The said position is clear on a plain reading of Section 35 of the Specific Relief Act. Such being the position, the relief now sought for by the petitioners in the plaint is binding only on the respondent. However, the issue is as to whether such a decree could be granted in a suit of this nature.

9. In L.I.C. of India v. Anuradha reported in AIR 2004 SC 2070, the Apex Court considered the legal presumption as embodied in Sections 107 and 108 of the Evidence Act and held thus:

"14...................... The law as to presumption of death remains the same whethe