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2016 Supreme(P&H) 2091
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
SURINDER GUPTA, J.
Harpreet Kaur and another - Appellants
Versus
Surjit Kaur - Respondent
Regular Second Appeal No. 658 of 2015 (O&M)
Decided On : 07-10-2016
Advocate Appeared:
For the Appellants : Mr. Ashok Singla
For the Respondent: Mr. R.D. Anand
IMPORTANT POINT
Presumption of Death – Person not heard from last 7 years – The date of his death, if disputed, must be proved as any other fact.
Headnote:(A) Evidence Act, 1872, S.108 – Presumption of Death – Person not heard from last 7 years – Though section 108 of the Act raises a presumption of death of a person if he has not been heard of for a period of 7 years by the persons who would naturally have heard of him, it raises no presumption as to the date of his death – The date of his death, if disputed, must be proved as any other fact. (Para 35)
(B) Evidence Act, 1872, S.108 – Presumption of Death – Person not heard from last 7 years – The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim – Rarely it may be permissible to proceed on premise that the death has occurred on any given date before which the period of seven year's absence was shown to have elapsed. (Para 35)
(C) Evidence Act, 1872, S.108 – Presumption of Death – The issue relating to date or time of death has to be determined on the basis of evidence direct or circumstantial led by the parties on file. (Para 36)
(D) Evidence Act, 1872, S.108 – Presumption of Death – Class I heir – Civil death – 'J' was not heard after September 1989 – Daughter of 'J' had stated that her father died 3-4 months prior to her birth in March 1989 – Therefore, September/October 1989 can be taken as month of death 'J' – If presumption of death is drawn under Section 108 Evidence Act on the expiry of 7 years from the day he was not heard of, the marriage of 'S' (Wife of J) with 'K' was illegal null and void and being the wife of 'J', she continued to be legal heir of her husband 'J' on the day presumption of his death arise – Therefore, mother, wife and daughter of 'J' being class I heir are entitled to 1/3rd share each in estate of 'J' – Succession Act, 1963.
Surinder Gupta, J.
This is appeal by Harpreet Kaur and Sarabjeet Kaur against the concurrent judgments of the Courts below, decreeing the suit of the respondent-plaintiff Surjit Kaur, whereby the judgment and decree dated 04.10.2005 passed by Additional Civil Judge (Senior Division), Kaithal in civil suit No.731 of 2003/2004 titled Harpreet Kaur and another Vs. General Public, was declared illegal, null and void, not binding on the rights of the plaintiff in the suit property and as a consequential relief, the appellants-defendants were restrained from alienating the suit land and/or getting the same mutated in their favour and/or interfering into the possession of the plaintiff over the suit land.
2. The matter in dispute revolves around the estate of Jaspal Singh son of plaintiff Surjit Kaur, husband of appellant Sarabjeet Kaur and father of appellant Harpreet Kaur. Though the plaintiff denied that Harpreet Kaur is daughter of Jaspal Singh and Sarabjeet Kaur is wife of Jaspal Singh but the status of defendants, as such, is no more in dispute.
3. Jaspal Singh owned land situated in the revenue estate of village Dussain, Tehsil and District Kaithal, as per entry in the jamabandi for the year 2000-2001 as follows:-
“(a) 1/6th share out of total land measuring 16 kanals 0 marla comprised in khewat No.76, khatoni No.117, rect. No.92, killa No.16/2, 17/2, 24/1, 24/2, 25 kittas 5;
(b) 1/6th share in the land measuring 13 kanals 13 marlas comprised in khewat No.77, Khatoni No.118, rect. No.92, killa No.15/2, 16/1, 17/1, kittas 3;
(c) 15/22 share out of total land measuring 122 kanals 0 marla comprised in khewat No.118, khatoni No.167, rect. No.28, killa No.7,8,9,11,12,13,14,18 rect. No.29 killa No.13,14,15,16/1 khasra No.376, khatoni No.168, rect. No.28 killa No.19,20/1,20/2, rect. No.29, killa No.16/2, 17, 18/1 kittas 19;
(d) 13½/640 share out of total land measuring 16 kanals 0 marla comprised in khewat No.164, khatoni No.234, rect. No.28, killa No.4,5, kittas 7;
(e) 40/960 share out of total land measuring 48 kanals 0 marla comprised in khewat No.165, khatoni No.235, rect. No.33, killa No.1, khatoni No.236, rect. No.17 killa No.21, 22, khatoni No.237, rect. No.22, killa No.17, 24, 25, total kittas 6;
(f) 53/1280 share out of total land measuring 64 kanals 0 marla comprised in khewat No.166, khatoni No.238, rect. No.28, killa No.6, 15 rect. No.33, killa No.9 khatoni No.239, rect. No.33, killa No.2,12,13,14 khatoni No.240, rect. No.33, killa No.10, total kittas 8;
(g) 26½ /640 share out of land measuring 32 kanals 0 marla comprised in khewat No.167, khatoni No.241, rect. No.22, killa No.13, 18, 23, rect. No.28, killa No.3 kittas 4.”
4. The appellants-defendants filed a civil suit on 12.08.2003 seeking declaration that Jaspal Singh had left the house in September, 1989 and thereafter, never returned or has been heard of by his relatives, appellants-defendants or anybody else and is presumed to be dead. Appellant Harpreet Kaur and Sarabjeet Kaur, claiming themselves to be only legal representatives of Jaspal Singh sought declaration to this effect. The suit was decreed by the Court of Additional Civil Judge (Senior Division), Kaithal vide judgment and decree dated 04.10.2005. The decree passed by Additional Civil Judge reads as follows:-
“It is ordered that the suit of the plaintiff is decreed and Jaspal Singh s/o Subeg Singh r/o vill. Dussain, tehsil & Distt. Kaithal, who is missing for the last more than seven year, is declared as civil dead and the plaintiff No.1, who is minor daughter of said Jaspal Singh and plaintiff No.2 who is the wife of said Jaspal Singh are declared class-I heirs of Jaspal Singh and revenue authorities are directed to get the mutation sanctioned in their favour of the estate left by Jaspal Singh.”
5. It was averred that above judgment is based on misrepresentation of facts. Jaspal is very much alive. Plaintiff being mother of Jaspal Singh was not a party to that suit. No summons or munadi was ever effected in
