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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
Anil Verma, J.
Chhaya W/o Govardhansingh Solanki - Appellant
Vs.
Public At Large Senior Accountant Officer, Principle Controller Of Defense Accounts - Respondent
Second Appeal No. 2186 of 2023
Decided On : 27-05-2024
Certainly. Based on the provided legal document, here are the key points:
The presumption of death under Section 108 of the Evidence Act is limited to establishing that a person is dead, but the exact date of death must be proven with credible evidence (!) (!) .
The presumption of death arises only after a person has been untraceable for seven years, and this presumption does not automatically specify the date of death; it requires evidence to determine the precise date (!) (!) .
The burden of proving the exact date of death lies with the party asserting it, and the presumption of death does not extend to presuming the date itself (!) (!) .
The date of civil death declared by the court should be based on evidence and the circumstances of the case, rather than mere inference or the date of filing the suit (!) (!) .
In cases involving missing soldiers, the date of disappearance (here, 25.7.2010) is not automatically considered the date of death; the actual date must be established through evidence, and the presumption of death only arises after seven years of untraceability (!) .
The government circular clarifies that benefits such as family pension may be granted after one year of disappearance, but the actual date of death must be established through evidence, not presumed solely on the passage of time (!) (!) .
The court emphasized that the finding of death should be based on cogent material and evidence, rather than inference alone, and that the date of filing the civil suit cannot be taken as the date of death (!) (!) .
The court modified the earlier judgment to declare the date of death as 25.7.2010, the date of the soldier's disappearance, aligning with the evidence and legal principles, thereby entitling the family to benefits accordingly (!) .
The court also expressed concern over the treatment of missing soldiers' families by military authorities, suggesting that rules should be reformed to reduce hardships faced by such families (!) .
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JUDGMENT :
1. The appellants have preferred the present second appeal under section 100 of Code of Civil Procedure, 1908 (in short CPC) against the impugned judgment and decree dated 25.7.2023 passed by Fifth District Judge Mandsaur in civil appeal no. RCA/123/2023 thereby affirming the judgment and decree dated 7.12.2020 passed by Third Civil Judge Class II District Mandsaur in RCS-A/119/2020 whereby the civil suit filed by appellants for declaration of civil death has been partly allowed.
2. Brief facts of the case are that the appellants/plaintiffs are the parents of Surendra Singh Solanki, who had joined Indian Army in the year 2002 as Soldier and in the year 2010 he was promoted to the post of Signal Man in Srinagar. Surendra Singh took his training from 4.2.2010 to 21.2.2010 at Military Technical Training Institute Goa and was again called by the Center for further military training on 25.7.2010 in Goa. Surendra Singh went for training in Goa, but never returned from there and on 27.7.2010 the Military Training Center Goa informed the appellants that Surendra Singh has not reached at the training center on 25.7.2010. Thereafter appellants have lodged a missing person report at police station Ponda Goa. The appellants started receiving ordinary family pension w.e.f. 25.7.2010 and in the year 2020 they received a communication from department that due to non availability of death certificate of Surendra Singh, Special Family Pension GPR and other arrears could not be paid to them. Thereafter appellants have filed the civil suit for declaration of date of civil death of Surendra Singh.
3. The respondents/defendants No. 3 and 4 filed their written statement before the trial court has supported the appellants claim except the factum of civil death of Surendra Singh since 25.7.2010.
4. The learned trial court on the basis of aforesaid pleading framed issues and after hearing both the parties and recording evidence has decreed the suit filed by plaintiffs/appellants by declaring civil death of Surendra Singh since 24.6.2020 i.e. the date of institution of civil suit. Being aggrieved by the impugned judgment and decree, the appellants have preferred first appeal, but after re-appreciating the entire evidence, the first appellate court has affirmed the findings of fact, so recorded by the trial court and dismissed the appeal. Hence the appellants have preferred this second appeal.
5. Learned counsel for appellants contended that both the courts below have committed grave error of law in misinterpreting the fact regarding determining the date of death of Surendra Singh as 24.6.2020. The Department of defence has already considered the date of death of Surendra Singh as 25.7.2010 and also granted ordinary family pension to appellants. The same person cannot have two dates of death. Army Court of Inquiry has considered the date of his disappearance since 25.7.2010. Hence it is prayed that appeal be allowed and date of civil death of Surendra Singh be considered as 25.7.2010.
6. Learned counsel for respondent no.2 opposes the prayer, by submitting that the impugned judgments and decree passed by both the courts below are just and proper and does not deserve for any interference.
7. Heard learned counsel for the parties and perused the record of both the courts below with due care.
8. This second appeal was admitted for final hearing vide order dated 2.5.2024 on following substantial questions of law:-
(ii) Whether, the Court below committed mistake of fact and law in considering the date of civil death of Surendrasingh Solanki from the date of institution of the suit instead of date he went missing?
(iii) Whether, date of death cannot be presumed and does Section 108 of EVIDENCE ACT , 1872 raises only a presumption of death
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 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....
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 ....
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 civil death under Section 108 of the Indian Evidence Act arises after seven years of absence, preventing termination of services without proper inquiry into the employee's status.
Point of law: Presumptions of life and death - For a declaration as to the legitimacy of petitioners 2 and 3 also as per Sec.7(e) of the Family Courts Act, a Family Court is the competent court - In ....
Point of law : Service benefits of deceased - question as to whether the petitioners established the facts and circumstances to draw the presumption of death shall be an issue of fact in the trial- W....
Disciplinary action against a missing employee is invalid; presumption of civil death permits family pension and compassionate appointment.
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.
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