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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW
ARUN KUMAR SINGH DESHWAL, J.
Smt. Raeesa Bano – Appellant
Versus
Smt. Tabassum Jahan And Ors. – Respondents
Second Appeal No.428 of 2016
Decided on : 28-02-2024
Declaration of Civil Death - Specific Relief Act - Section 34 of the Specific Relief Act - 108 of the Evidence Act - 9 of CPC - Bombay High Court in Sou. Swati & Ors. Vs. Shri Abhay & Anr, L.I.C. of India Vs. Anuradha, Calcutta High Court in Saroj Gupta Vs. Sanjay Kumar Gupta, Allahabad High Court in Gokul Pandey and Others Vs. Gram Pradhan Gram Sabha Vill. Bhabnauli Pandey and Others
Fact of the Case:
The appellant filed a suit seeking declaration of civil death of her missing husband to claim service benefits. The lower courts dismissed the suit citing Section 34 of the Specific Relief Act, 1963.
Finding of the Court:
The court found that the suit for declaration of civil death was maintainable as it was not merely a declaration but also sought service benefits for the deceased. The lower courts' orders were set aside, and the matter was remanded for a fresh order.
Issues: The main issue was whether a suit for declaration of civil death of a missing person, seeking service benefits, was maintainable under Section 34 of the Specific Relief Act, 1963.
Ratio Decidendi: The court held that a suit for declaration of civil death, when sought by a legal heir for their benefit, is maintainable under Section 34 of the Act. It emphasized that seeking further relief is not necessary when the declaration itself has immediate consequential effects.
Final Decision: The appeal was allowed, and the lower courts' orders were set aside. The matter was remanded for a fresh order within three months.
Key Points: - A suit for declaration of civil death is maintainable under Section 34 of the Specific Relief Act, 1963, even if no further relief is sought (!) (!) . - A legal heir can file a suit for declaration of civil death for their benefit to claim service benefits (!) (!) . - Seeking further relief is not necessary when the declaration itself has immediate consequential effects (!) . - A suit for mere declaration is not barred if it is for a legal character that has immediate consequential effects (!) . - The court has the discretion under Section 34 to make a declaration that the plaintiff is entitled to legal character or right (!) (!) . - The declaration of civil death must be based on sufficient material showing the person has been missing for more than seven years (!) . - The suit was maintainable because the appellant completed all required formalities, including lodging an FIR (!) (!) . - The judgment of lower courts was set aside as they erred in holding the suit not maintainable under Section 34 (!) . - The matter is remanded for a fresh order within three months (!) (!) . - The appeal is allowed in favor of the appellant (!) .
JUDGMENT :
1. Heard Sri Adnan Ahmad, learned counsel for the appellant, Sri Sabul Khan, learned counsel holding brief of Sri Mohd. Wajid Irfan, learned counsel for respondent nos.1 to 5 and Sri Amar Nath Mishra, learned Additional Chief Standing Counsel for respondent no.6.
2. Present appeal has been filed against the judgment and decree dated 18.1.2016 passed by Additional District Judge, Court No. 15, Lucknow in Regular Civil Appeal No. 142 of 2015 (Smt. Raeesa Bano Vs. Smt. Tabassum Jahan & Others) confirming the judgment and decree dated 31.8.2015 passed by Civil Judge (Senior Division), Mohanlalganj, Lucknow in Regular Suit No. 128 of 2015 (Smt. Raeesa Bano Vs. Smt. Tabassum Jahan & others).
3. This appeal was admitted on 27.02.204 on the following substantial question of law "whether a suit for declaration of civil death of a person on the ground that he is missing for more than 7 years, is barred under Section 34 of the Specific Relief Act".
4. The crux of the matter is that the appellant had filed a suit bearing Suit No.128 of 2015 for the relief that her husband is missing for more than 13 years; therefore, he may be declared dead in view of presumption under Section 108 of the Evidence Act. In her plaint, she specifically stated that she had lodged an FIR dated 31.05.2009, the publication in the newspaper and required format as well as notice u/s 80 CPC to the District Magistrate, Lucknow regarding missing her husband (Akhtar Ali) for more than 13 years. It was also pleaded in the complaint that her husband was working in the Electricity Department, but he did not attend his duty for more than 13 years, and unless he is declared dead, she will not be able to get his service benefit. Though none of the respondents contested the above suit, even the State has supported the claim of the plaintiff appellant.
5. After hearing the parties and on perusal of the record, the learned Civil Judge (Senior Division) Mohanlalganj, Lucknow, vide judgment and order dated 31.08.2015, dismissed the suit on the ground that the suit for mere declaration of civil death without further relief is barred by Section 34 of Specific Relief Act, 1963 (hereinafter referred to as 'the Act, 1963'). Against the order of the learned Civil Judge, the plaintiff-appellant had also preferred an appeal before the District Judge, Lucknow, which was registered as Civil Appeal No.142 of 2015, and the same was heard by learned Additional District Judge, Court No.15, Lucknow, who, after hearing the parties, rejected the appeal of the appellant on the same reasoning as of the learned Civil Judge.
6. Contention of learned counsel for the appellant is that under Section 34 of the 'Act, 1963' the legal heirs of the person who is missing for more than seven years can file a suit for declaration of his civil death, as this legal character will make him entitled to receive benefits in the missing person's property. In support of his contention, learned counsel for the appellant has relied upon the judgment of the Bombay High Court in Sou. Swati & Ors. Vs. Shri Abhay & Anr reported in 2016 Legal Eagle (BOM) 10130; judgment of the Apex Court in L.I.C. of India Vs. Anuradha reported in 2004 (10) SCC 131; judgment of Calcutta High Court in Saroj Gupta Vs. Sanjay Kumar Gupta reported in 2023 AIR CC 1214; judgment of this Court in Gokul Pandey and Others Vs. Gram Pradhan Gram Sabha Vill. Bhabnauli Pandey and Others reported in 2022 (6) ADJ 375.
7. Per contra, learned Additional Chief Standing Counsel has stated that though in the complaint, the appellant has mentioned that because of the non-declaration of death of her husband, who has been missing for more than 13 years, she could not get the service benefits of her husband from the Electricity Department as he was an employee of the Electricity Department, but the appellant has not impleaded Electricity Department as a party and also no consequential relief was sought, and the suit is only for a mere declaration, which is not
A suit for declaration of civil death, when sought by a legal heir for their benefit, is maintainable under Section 34 of the Specific Relief Act, 1963, even if no further relief is sought.
Suit for declaration under Section 34 of the Specific Relief Act, though, being maintainable, the relief could not be granted as no notice under Section 80 (2) CPC was given to the defendants being t....
Civil death declarations under Specific Relief Act require an active denial of legal character, which was absent in this case.
A civil court has inherent powers to grant a declaration of civil death, even in the absence of a specific provision in the Specific Relief Act, if the plaintiffs have satisfied the burden of proof u....
The presumption of death under Section 108 of the Evidence Act is strictly limited to the fact of death, while the exact date of death must be proven by credible evidence.
A legal heir certificate for a missing person requires a court declaration after a seven-year absence, based on evidence of presumed death.
The court clarified that presumptive death under Section 110 of the BSA Act allows for summary inquiries in succession matters, negating the need for a formal decree of presumed death.
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