Delhi District Court
Rajbiri vs The State on 18 October, 2024
IN THE COURT OF SH. PRANAV JOSHI, ADDITIONAL
SENIOR CIVIL JUDGE OF CENTRAL DISTRICT AT TIS
HAZARI COURTS, DELHI
CS SCJ No. 29/2024
CNR No. DL3CT030000612024
In the matter of:-
Rajbiri,
W/o Sh. Prem Chand,
R/o 121, Gali No.3,
Sarai Rohilla, Delhi-110007. ...Plaintiff
VERSUS
1. State,
Through its Secretary Home,
Govt. NCT of Delhi,
Old Secretariat, New Delhi-1100054.
2. Municipal Corporation of Delhi,
Through its Commissioner,
Dr. S.P.M, Civic Center,
Minto Road, Delhi-110002.
3. The SHO,
P.S. Sarai Rohilla,
Delhi-110007.
4. Office in Charge,
General Pension Accounting Office,
Government of India,
trikoot-2, Bhikaji Cama Place,
New Delhi-110066. ...Defendants
Date of Institution : 05.01.2024
Reserved for Judgment : 01.10.2024
Date of Decision : 18.10.2024
CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 1 of 14
JUDGMENT
1. This is a suit for declaration and mandatory injunction filed by the plaintiff herein seeking thereby a declaration that Sh. Prem Chand, husband of the plaintiff, be declared dead and further direction to defendants to issue death certificate of Sh. Prem Chand.
2. It is the case of the plaintiff that the plaintiff is the wife of late Sh. Prem Chand, who got married in the year 1964 at village Saintli, Near Sikandrabad, Ghaziabad, UP as per Hindu rites and custom. That out of said wedlock, the plaintiff has seven children and presently she is residing with her son Deepak Kumar. That Sh. Prem Chand was residing happily with the plaintiff and his children till 07.03.2009. That on 08.03.2009, Sh. Prem Chand suddenly disappeared from the matrimonial house of the plaintiff and till date the whereabouts of the said Sh. Prem Chand are not known despite several sincere efforts made in this regard. That the plaintiff, family members, relatives, friends and other person of the society also tried their best to trace him but all the efforts proved in vain and no one could trace him till date. That on 08.03.2010, the plaintiff reached at the Police Station, Sarai Rohilla, Delhi and lodged complaint in this regard vide D.D. No.39B and the same was duly registered at the police station. That the police officials also failed to trace Sh. Prem Chand. That the plaintiff again approached to the Police Station, Sarai Rohilla, Delhi on 01.05.2017 to know the status of her Complaint. That the Police official requested the plaintiff to give a fresh complaint in this regard.
3. It is further averred that the plaintiff then, again CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 2 of 14 lodged a fresh complaint vide D.D. No.28 A, in the police station and the same was duly registered again in the police station. That the plaintiff, family members, relatives, friends and other persons of the society wherein the said Sh. Prem Chand used to go, sit, meet and enjoy his life have also not seen him since the date he got missing. That the plaintiff, family members, relatives, friends and other persons of the society too have neither seen him nor heard about him since 08.03.2009. That since Sh. Prem Chand has neither been seen nor heard since 08.03.2009 therefore, it appears that he had expired on 08.03.2009 and that he may be declared as dead on 08.03.2009 itself. That the plaintiff had earlier filed a suit for declaration under section 34 of Specific Relief Act, 1963 seeking declaration Civil Death of Sh. Prem Chand and to pass appropriate directions to the concerned authority to issue death certificate before District & Sessions Judge, (Central), Tis Hazari Courts, Delhi but the same had to be withdrawn due to some technical defect and that the Ld. ADJ-07, Central had given liberty to the plaintiff to file fresh suit vide order dated 10.10.2022. That the plaintiff after having no other efficacious remedy available to her except to file the present suit before this Court. That the plaintiff for the last more than 14 years has been living in utter poverty, scarcity, facing tremendous hardships, and penury. That the plaintiff is an illiterate lady having no source of income, who was totally dependent on her late husband Sh. Prem Chand's pension for her day to day needs, which has also been stopped due to non-availability of death certificate. Hence the present suit. The plaintiff has prayed, inter alia, for the followings reliefs:
"a) direct the Defendant No.2 to issue a death certificate by declaring civil death of Sh. Prem CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 3 of 14 Chand S/o Late Sh. Hira Lal R/o 121, Gali No.03, Sarai Rohila, Delhi- 110007 who is missing since 08.03.2009.
b) Pass any other or further order(s) which this Hon'ble Court deems fit and proper in favour of the Plaintiff, in the interest of justice."
4. Summons of the suit were served on all the defendants but only defendant No.2/MCD contested the suit. The defendant No. 2/MCD filed its written statement wherein it was stated that the suit of the plaintiff is barred by the provisions of section 477/478 of DMC Act for want of service of statutory notice upon the defendant /MCD. That the suit of the plaintiff is without any cause of action against the defendant No. 2 / MCD. That the suit of the plaintiff is not maintainable qua the defendant/MCD in view of the fact that the plaintiff is seeking declaration of civil death of late Sh. Prem Chand. That the MCD registers the death and issue the death certificate only in cases when death actually occurs or under the orders of a magistrate of first class or a presidency Magistrate after verifying the correctness of date of death as per the provision of registration of Birth and Death Act 1969. That in the present case, no such orders have been issued to the answering defendant till date. That the suit of the plaintiff is not maintainable in view of the fact that although the defendant MCD is duty bound to issue the death certificate as an when any death is reported, however in the present case as no information regarding the death of Sh. Prem Chand has been received so far. That the defendant/MCD cannot issue the death certificate unless the plaintiff provides the order from the Court regarding the declaration of the death, where the person is missing more than seven years or where the whereabouts of the person is not known. That as soon as, the CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 4 of 14 orders of declaration made available by the plaintiff, death certificate shall be issued accordingly.
5. Vide order dated 04.06.2020, the followings issues were framed:
"1. Whether Sh. Prem Chand is liable to be declared dead, as prayed in the plaint? OPP
2. Whether the defendant No.2 is liable to issue death certificate of Sh. Prem Chand, as prayed in the plaint? OPP
3. Relief"
6. In order to prove her case, the plaintiff examined herself as PW1 and tendered her evidence by way of affidavit Ex. PW1/A. She deposed on the lines of the averments made in the plaint. She relied upon the following documents:
(i) Ex.PW-1/1 (OSR) copy of Election I-card of Sh. Prem Chand,
(ii) Ex. PW-1/2 (OSR) original photographs of the plaintiff along with Sh. Prem Chand,
(iii) Ex. PW-1/3 (OSR) is copy of Aadhar Card of plaintiff.
(iv) Ex. PW-1/4 (OSR) copies of complaints lodged at PS Sarai Rohilla,
(v) Ex. PW-1/5 copy of rojnamcha dated 11.12.2021 PS Sarai Rohilla.,
(vi) Ex. PW-6 (OSR) copy of Pension document Ex.
PW-1/6 (colly),
(vii) Ex. PW-1/7 (OSR) certificate issued by Sainik Board,
(viii) Ex. PW-1/8 (OSR) copy of Central Pension Account Office.
PW1 was not cross-examined only on behalf of defendant No.2/MCD. Thereafter, the plaintiff's evidence was closed on 01.10.2024.
7. Only defendant No.2/MCD contested the present CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 5 of 14 suit. However, defendant No.2/MCD did not lead any evidence and vide order dated 01.10.2024, defendants' evidence was closed.
8. I heard the arguments advanced and perused the record.
Issue No.1 Whether Sh. Prem Chand is liable to be declared dead, as prayed in the plaint? OPP
9. Onus to prove this issue was on the plaintiff. The jurisdiction of a civil court to grant declaratory relief flows from section 34 of Specific Relief Act, 1963. Section 34 of Specific Relief Act, 1963 reads as under:
" 34. Discretion of court as to declaration of status or right.
--
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."
Strictly speaking, the relief as to declaration of civil death does not fall withing the purview of section 34 of Specific Relief Act, 1963, since generally neither it relates to the legal character or right as to property of the person seeking such declaration nor can the civic authorities be said to be interested to deny such character or right. Moreover, such declaration is generally sought without seeking any further relief. However, it CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 6 of 14 is no more res integra that section 34 of Specific Relief Act, 1963 is not exhaustive of all kinds of declaratory reliefs and that a declaratory suit can still be maintained which may not fall within its purview. In Vemareddi Ramaraghava Reddy v. Konduru Seshu Reddy, AIR 1967 SC 436, It was observed by Hon'ble Supreme Court:
"The legal position is also well-established that the worshipper of a Hindu temple is entitled, in certain circumstances, to bring a suit for declaration that the alienation of the temple properties by the de jure Shebait is invalid and not binding upon the temple. if a Shebait has improperly alienated trust property a suit can be brought by any person interested for a declaration that such alienation is not binding upon the deity but no decree for recovery of possession can be made in such a suit unless the plaintiff in the suit has the present right to the possession. Worshippers of temples are in the position of cestuui que trustent or beneficiaries in a spiritual sense (See Vidhyapurna Thirthaswami v. Vidhyanidhi Thirthanswami). Since the worshippers do. not exercise the deity's power of suing to protect its own interests, they are not entitled to recover possession of the property improperly alienated by the Shebait, but they can be granted a declaratory decree that the alienation is not binding on the deity (See for example, Kalyana Venkataramana Ayyangar v. Kasturiranga Ayyangar(4) and Chidambaranatha Thambiran v. Nallasiva Mudaliar). It has also been decided by the Judicial Committee in Abdur Rahim v. Mahomed Barkat Ali that a suit for a declaration that property belongs to a wakf can be maintained by Mahomedans interested in the wakf without the sanction of the Advocate-General, and a declaration can be given in such a suit that the plaintiff is not bound by the compromise decree relating to wakf properties. In our opinion, s. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and th e courts have power to grant such a decree independently of the requirements of the section. It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of s. 42 of the Specific Relief Act."
It was further observed by Hon'ble Supreme Court that declaratory reliefs falling outside Specific Relief Act may fall under the general provisions of Civil Procedure Code, like section 9 or Order VII Rule 7 CPC. This was reiterated in General Films Exchange Ltd. v. H.H. Maharaja Sir Brijnath CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 7 of 14 Singhji Deo, AIR 1975 SC 1810, wherein it was observed by Hon'ble Apex Court:
" In Sheoparsan Singh & Ors. case (supra), what was really held by the Privy Council was that a grant of probate under the Probate and Administration Act (V of 1881), which operated as a judgment in rem, could not be collaterally assailed by a suit for a declaration brought by reversioners seeking to question the will. Sir Lawrence Jenkins who had, incidentally, decided Deokali Koer's case (supra) too said (at p. 97):
"It is not suggested that in this litigation the testamentary jurisdiction is, or can be, invoked, and yet there can be no doubt that this suit is an attempt to evade or annul the adjudication in the testamentary suit, and nothing more."
We think that the decision in this case also does not assist the appellant much.
In Bai Shri Vaktuba's case (supra), the Bombay High Court held that a Talukdar plaintiff could bring a suit for a declaration and an injunction to restrain the defendant from claiming that he was the plaintiff's son. Learned Counsel for the appellant, however, relied upon the following passage from it (at p. 650):
"It has long been established that the general power vested in the Courts in India under the Civil Procedure Code to entertain all suits of a civil nature excepting suits of which cognizance is barred by any enactment for the time being in force, does not carry with it the general power of making declarations except in so far as such power is expressly conferred by statute."
Kishori Lal's case (supra) was cited to show that declaratory decrees falling outside Section 42 of the Specific Relief Act are not permissible because Section 42 Specific Relief Act is exhaustive on this subject. This view must be held to have been rejected by this Court when it declared in Veruareddi Rmaranghava Reddy & Ors. v. Konduru Seshu Reddy & ors (1) (at p. 277) "In our opinion, S. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the section It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of S.. 42 of the Specific Relief Act".
CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 8 of 14 The result is that Section 42 merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42."
Therefore, section 34 of Specific Relief Act cannot be not held to be the sole repository of the cases in which declaratory decrees may be made and the Courts have the power to grant such a decree independently of the requirements of the section, and such declarations can be granted even though no consequential relief is capable of being granted.
10. Further, there are judicial precedents to hold that a suit for declaration of civil death of a person unheard of for more than seven years is maintainable. In Swati & Others V.s Abhay & Others, MANU/MH/0334/2016, Hon'ble Bombay High Court has held such a suit to be maintainable. The relevant observation are as under:
" 7. In the light of the dictum laid down by the Apex Court as above, I am of the firm opinion that the Civil Court acting under Section 9, has inherent powers in its plenary jurisdiction de hors with reference to Section 34 of the Specific Relief Act to grant relief qua Section 108 of the Evidence Act. Therefore, the reason that Section 34 of the Specific Relief Act was required to be called in aid does not appear to be sound."
In Alka Sharma v. Union of India & Others, MANU/UP/0209/2020, the plaintiff had filed a suit for declaration of civil death of her husband. The Trial Court as well as the first appellate Court had dismissed the suit. Hon'ble Allahabad High Court, while passing decree in second appeal, held as under :
"16. In the light of the aforesaid decision of the Hon'ble Supreme Court, there is no hesitation in my mind to hold that the courts below have failed to act judiciously and in accordance with the provisions of law and have unnecessarily CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 9 of 14 entered into those grey areas which are not subject matter of any dispute and in regard to which no dispute was raised depicting limited extent of their judicial knowledge and capability to appreciate and deal with the facts of the case. Since, Union of India was a party, it was represented through out, and it was not the case of the Union that any objection was filed by any of the relatives of Sri Govind Prasad Sharma so to the claim put-forth by the applicant or to the effect that she was not entitled to the residence allotted to Sri Govind Prasad Sharma in her official capacity, there was sufficient plethora of evidence to the effect that the presumption should have been drawn as to the civil death of Sri Govind Prasad Sharma as twin requirements of law as laid down in Sections 107 and 108 of the Evidence Act about declaration of a civil death were fulfilled. There is no requirement of final report from the police to draw a presumption under Sections 107 and 108 of the Evidence Act. As far as final report is concerned, Section 173 of the Code of Criminal Procedure deals with report of police officer on completion of investigation. Section 173(2) does not prescribed any time limit for completion of investigation and further Section 173(8) only provides for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. Further, the law prescribes that in case the Magistrate is inclined to accept the final report and decides to drop the charges against the accused, then only notice to the complainant is necessary. In case, cognizance is taken by the Magistrate on a report submitted by the police under Section 173 (2) of Cr.P.C., then no notice is required to be served on the complainant. In case of Pramod Behl vs. State of Jharkhand, 2004 Crl. L. J NOC 362 (Jhar), though it has been held that where the police after investigation files final report, copy of final report would be given to the informant and opportunity of hearing shall also be given to him.
17. In the light of the above discussion, the courts below committed serious error in law, which has resulted into miscarriage of justice to the appellant and which is corrected now.
18. In view of the aforesaid, the substantial question of law framed in this appeal is answered in negative and it is held that submission of the final report by the police is not mandatory inasmuch as police investigation is in the domain of criminal law and that is neither influenced by the plaintiff claiming such declaration nor is within the authority and control of the plaintiff seeking such declaration. Once the factum of lodging a report and not hearing about that person for seven years or more is proved and admitted by the defendant employer of the husband in regard to whom declaration is being sought, is sufficient to hold that requirement of Section 108 of the Evidence Act has been fulfilled. It has been arbitrarily held by the learned Civil Judge (Senior Division) that the plaintiff was oblige to seek any other declaration in regard to claim of service benefits in CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 10 of 14 addition to the declaration of civil death.
In Vijaya Shrikant Revale v. Shirish Shrikant Revale & Ors., 2016 SCC OnLine Bom 1898, It was held by that a civil court has the power to grant declaratory relief of civil death. It was observed by Hon'ble Bombay High Court as under :
"10. It is true that only Civil Court has power to give suresh relief of declaration in such matters. The inquiry under section 372 of the Act is limited. However, the Court which conducts the inquiry under Section 372 of the Act is a civil Court and therefore the said Court is competent to decide the issue of declaration of death of Shrikant Vishnupant Revale."
Lastly, Hon'ble Supreme Court in LIC of India Vs. Anuradha, AIR 2004 SC 2070, held as under:
" On the basis of the above said authorities, we unhesitatingly arrive at a conclusion which were sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108 subject to its applicability being attracted, has the effect of shifting the burden of proof back on the on the sa.18.16 one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 11 of 14 to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise."
11. The grant of decree of declaration of civil death of a person is founded on the presumption envisaged in Section 108 of the Indian Evidence Act, 1972. The said provision propounds that if a person 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 upon the person who affirms it. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though, it will be presumed that the person is dead but there is no presumption as to the date or time of death. In Narbada v. Ram Dayal, AIR 1968 Raj. 48, it was held that under Section 108 of the Indian Evidence Act, presumption about the death of a person is to be drawn when the dispute is brought to the Court and death can be presumed on the date on which the suit was filed and it cannot be given a further retrospective effect.
12. It is averred in the plaint that Sh. Prem Chand has been missing since 08.03.2009. The same is evident from the police complaints Ex. PW1/4 and Ex. PW1/5. Neither the police officials nor the relatives of Sh. Prem Chand have been able to gather any clue about his whereabouts since 08.03.2009 which is evident from the record. There is nothing on record to discredit the version of the plaintiff, whose testimony remained unrebutted CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 12 of 14 and uncontroverted. The plaintiff has proved her voter ID card Ex. PW1/3 as well as Aadhar card of Sh. Prem Chand Ex. PW1/3 to show her relationship with Sh. Prem Chand and the same has not be disputed. In the natural course of events, it can be reasonably expected that the wife of a person would hear from her husband. In these circumstances, a presumption as to the civil death of Sh. Prem Chand is liable to be raised. The defendants have not been able to rebut the presumption.
13. Coming to the objection as taken in written statement by defendant No.2/MCD that the present suit is barred under sections 477/478 of DMC Act for want of statutory notice. The objection is not legally tenable. The basic object of sections 477/478 of DMC Act is to prevent matters from coming to court and once the matter has reached the court and is contested, the suit ought not be dismissed on technical grounds. In this regard, reliance can be had to the judgment of Col. A. B. Singh (through LRs) v. Shri Chunnilal Sawhney and Others, 2011 SCC OnLine Del 4289. Therefore, once defendant No.2/MCD has contested the present suit, it cannot be dismissed by recourse to section 477 and 478 of DMC Act.
14. Accordingly, plaintiff has been successful in proving the issue No.1 is her favour and she is held entitled to a declaration that Sh. Prem Chand be declared as presumed dead. The declaration of civil death of Sh. Prem Chand shall be effective from the date of filing of the suit in the light of judgment of Narbada v. Ram Dayal (supra).
Issue No.2 Whether the defendant No.2 is liable to issue death certificate of Sh. Prem Chand, as prayed in the plaint? OPP CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 13 of 14
15. The onus to prove this issue was on the plaintiff. As far as the prayer for issuance of death certificate is concerned, nothing has been brought on record by defendant No.2/MCD that death certificate cannot be granted without specific date of death being mentioned in such cases where a declaration of civil death has been sought from the Court. Thus, issue No.2 is also decided in favour of the plaintiff and against the defendants.
Relief
16. In view of my aforesaid findings, the suit of the plaintiff is decreed and Sh.Prem Chand S/o late Sh. Hira Lal is declared as dead from the date of filing of the present suit i.e. 05.01.2024. Defendant No.2/MCD shall issue death certificate in respect of Sh. Prem Chand and his date of death shall be taken to be the date of filing of the present suit i.e. 05.01.2024.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally signedAnnounced in open Court by PRANAV
On this 18th Day of October, 2024 PRANAV JOSHI
Date:
JOSHI 2024.10.18
17:44:55
+0530
(PRANAV JOSHI)
JSCC/ASCJ/GJ (CENTRAL)
TIS HAZARI COURTS/DELHI
CS SCJ No. 29/2024 Rajbiri Vs. State & Ors. Page No. 14 of 14