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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RAJNISH KUMAR, J.
Vidhan Chandra Pandey And Another – Appellants
Versus
State Of U.P. Thur. District Magistrate, Pratapgarh And Another – Respondents
Second Appeal Defective No. 94 of 2024
Decided On : 13-11-2024
(A) Indian Evidence Act, 1872 - Sections 107 and 108 - Declaration of death - Suit for declaration of death dismissed due to lack of evidence - The court emphasized that presumption of death arises only when the question is raised in a legal forum, and not merely on the basis of absence for seven years. (Paras 5, 8, 9)
(B) Burden of proof - The burden of proving death lies on the person affirming it when the individual was known to be alive within thirty years, and shifts to the person asserting life after seven years of absence. (Paras 6, 7)
(C) Legal proceedings - The presumption of death cannot be raised unless there is a legal dispute regarding the person's status. (Paras 9, 10)
Facts of the case:
The appellants filed a suit for the declaration of death of a missing person, who had been absent for over seven years, which was dismissed for lack of evidence.
Findings of Court:
The court upheld the dismissal, stating that the presumption of death requires a legal question to be raised.
Issues: The main issue was whether the absence of the individual for seven years warranted a declaration of death.
Ratio Decidendi: The court ruled that without a legal dispute, the presumption of death cannot be established, and the burden of proof remains on the appellants.
Result: The second appeal is dismissed.
JUDGMENT :
(Rajnish Kumar, J.)
(C.M. Application No.1 of 2024)
1. Heard Shri Ravi Shankar Mishra, learned counsel for the appellant.
2. The office has reported a delay of 22 days in filing the appeal.
3. The ground shown in the affidavit filed in support of the application is sufficient to condone the delay.
4. The application is allowed and the delay in filing the appeal is condoned.
In re: Appeal
1. Heard learned counsel for the appellant.
2. The appeal has been filed assailing the judgment and decree dated 30.05.2024 passed in Civil Appeal No.63 of 2023 (Vidhan Chandra Pandey & Others Vs. Common Man & Another) by Additional District & Sessions Judge/ F.T.C.-1, Pratapgarh and the judgment and decree dated 01.04.2023 passed in Original Suit No.154 of 2021 (Vidhan Chandra Pandey & Others Vs. Common Man & Another) by Civil Judge (Senior Division), Pratapgarh, by means of which the suit for declaration of death of brother of the appellant no.1 and the son of the appellant no.2 has been dismissed and the appeal filed by the appellant has also been dismissed.
3. Learned counsel for the appellants submits that the brother of the appellant no.1 was missing for the last more than seven years, therefore, he had filed the suit for declaration of his death but without considering it, the suit has wrongly and illegally been dismissed.
4. Having considered the submissions of learned counsel for the appellants, I have perused the material placed on records of this appeal.
5. The suit filed by the appellants for declaration of death of Akhilesh Chandra has been dismissed on the ground that the appellants have failed to adduce any evidence of death of brother of the appellant no.1 and son of appellant no.2 for making presumption under Section 108 of Indian Evidence Act as any property or legal right of the appellants have not been denied by any department or authority.
6. Sections 107 and 108 of Indian Evidence Act, relevant for this case, are extracted here-in-below:-
108. Burden of proving that person is alive who has not been heard of for seven years. –– 1 [Provided that when] the question is whether a man is alive or dead, and it is proved that he 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 he is alive is 2 [shifted to] the person who affirms it."
7. The aforesaid Section 107 provides that when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it and Section 108 provides that when the question is whether a man is alive or dead, and it is proved that he 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 he is alive is shifted to the person who affirms it. Thus, when a question will arise as to whether a man is alive or dead, only then the presumption can be drawn by the court on the cogent evidence adduced by the person, who affirms it. This question may arise, if a person claims or he is denied any right or benefit or for any other cause, which may be dependent on the death of the person, who has not been heard of for seven years by those who would have naturally have heard of him.
8. In the present case no such occasion has arisen and the suit for declaration of civil death only was filed, therefore, this Court is of the view that learned trial court has rightly and in accordance with law dismissed the suit. Accordingly, the appeal filed by the appellant has also been dismissed. Even otherwise no declaration of civil death can be made. Only a presumption of civil death can be made, if the aforesaid con
The presumption of death under Sections 107 and 108 of the Indian Evidence Act arises only when a legal question regarding a person's status is presented in court.
The presumption of death under Section 108 of the Indian Evidence Act arises only after seven years, and compassionate appointment requires proof of death during service, not merely a civil declarati....
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....
On the ground of abatement of appeal on the presumed death decree given in appeal in favour of such person an be declared null and void.
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.
The presumption of death after seven years absence is rebuttable and the court may ascertain the presumed date of death based on evidence.
Point of law: Civil death – Issuance of death certificate – Registrar death and birth doesn’t have power to issue- Exercise can only be undertaken by a competent civil court.
Point of Law - The principle enunciated in the provisions of the Evidence Act, the Specific Relief Act and the precedents relied on would make it clear that the judgment is one rendered in the facts ....
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