A missing person is presumed deceased after seven years, allowing their heirs to claim family pension and benefits without needing a court declaration.

J U D G M E N T

Petitioners have approached this Court seeking the following reliefs:

“i) Issue appropriate writ or order declaring that petitioners are entitled to get enhanced family pension and all service benefits (including Insurance amount & DCRG) related to the service of Mr.C.S.Daniel in Border Security Force, who is missing from 03/03/2004.

ii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 to 5 to grant enhanced family pension and all service benefits (including Insurance amount & DCRG) to the petitioners by treating that first petitioner's husband Mr.Daniel.C.S died in service while working in BSF on 03/03/2004.

iii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents to release Sale deed No.6998 dated W.P.C.No.26734/2014 2

03-01-1992 of Pathanapuram Sub Registrar office in respect of property situated in survey 140/1-3 Thalavoor village, Pathanapuram Taluk, Kollam District, which was obtained from first petitioner's husband Mr.Daniel.C.S to the petitioners.”

2. The facts involved in the writ petition is not disputed. 1st petitioner's husband Mr.C.S.Daniel was found missing while serving in the Border Security Force. Petitioners are the legal heirs of Sri.Daniel. As per the rules relating to retirement gratuity and family pension, the legal heirs of a missing person is also entitled for such benefits. Accordingly, the petitioners applied for payment of family pension which was being paid regularly. However, when the petitioners sought for payment of enhanced family pension, the respondents have taken a stand that the petitioners have to produce a non-traceable report by the police that the husband of the 1st petitioner was missing for the last seven years and is presumed to be dead in terms of Section

108 of the Evidence Act 1872.

W.P.C.No.26734/2014 3

3. Though the petitioners had filed a civil suit as O.S.No.3/2012 before the Munsiff Court, Punalur, the same came to be dismissed for not impleading the respondents herein. Ext.P11 is the said judgment wherein the operative portion of the judgment reads as under:

“From the averments in the plaint, it can be seen that the military personnel, i.e. Commandant of BSF denied or interested to deny the right of the plaintiffs as legal heirs of C.S.Daniel and directed them to get a declaration from a court of law stating that the plaintiffs are legal heirs of C.S.Daniel and are entitled to get family pension from the department. Hence it is the military personnel who have denied the legal character or right of the plaintiffs. In the given case they are not arrayed as defendants. Since no such contentions are raised against the defendants who are made parties to the suit, it can be seen that the reliefs sought for cannot be granted against the defendants. Hence a decree, as sought for by the parties, cannot be given against the defendants arrayed in this suit as per law. Hence the suit is to be dismissed.”

W.P.C.No.26734/2014 4

4. The Learned counsel for the petitioners relies upon Ext.P12 rules to contend that such certification from a court of law is not required.

5. Counter affidavit has been filed on behalf of the respondents indicating the details of pension and other dues payable to the petitioners and the enhanced pension which is payable. But, according to them, the enhanced pension is payable only if the documents, as requested by them, have been submitted.

6. Heard the Learned counsel for the petitioner as well as the learned ASGI.

7. The short question to be considered in this writ petition is whether, for the purpose of granting enhanced pension, there is an obligation on the part of the petitioners to produce any decree from a court of law stating that 1st petitioner's husband is presumed to be dead.

8. Ext.P12 contains the rules relating to payment of gratuity and family pension to the family in case official's W.P.C.No.26734/2014 5 whereabouts are not known. Rule 12 (3, 4 and 5)