Delhi District Court
Mrs. Roma Sachdeva vs State on 18 March, 2008
IN THE COURT OF SH.DIG VINAY SINGH, LD. ADMINISTRATIVE
CIVIL JUDGE : DELHI
Petition No. : 410/06
Date of Institution : 10.07.2006
Date of Order when reserved : 18.03.2008
Date of Order when announced : 18.03.2008
In the matter of :
Mrs. Roma Sachdeva
W/o late Krishan Kumar Sachdeva
R/o C/o Sh. R.K.Bhatia,
RZ-5A, South Extension-III,
Uttam Nagar, New Delhi-59. .......Petitioner
Versus
State ........Respondent
JUDGEMENT :
1. This petition for grant of succession certificate is filed by Roma Sachdeva as widow of Krishan Kumar Sachdeva claiming debts & securities of Krishan Kumar Sachdeva. Said Krishan Kumar Sachdeva is claimed to be missing for more than seven years at the time when this petition was filed and it is claimed that he was not heard of or seen by Contd.....2..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 2 : relatives or friends and therefore he was presumed dead under Indian Evidence Act, 1872. The debt & securities which are sought to be claimed are some insurance amount of the deceased from LIC of India.
2. LIC has filed reply raising objection that this petition is not maintainable since after October 1998 the premium of the policy was not paid therefore the policy lapsed and also it is claimed that U/s 107 & 108 of Indian Evidence Act, there cannot be presumption of date of death and all that can be presumed is that that subject expired. On this, the matter was fixed for arguments on maintainability and heard arguments as advanced by counsels for both the parties.
3. Admittedly, petitioner is not aware of the date of death of Krishan Kumar Sachdeva and only his death is presumed. The question which arises is whether date of death can be presumed U/s 107 & 108 of Indian Evidence Act by this court and the Krishan Kumar Sachdeva can be taken to be dead for this succession petition. Answer ought to be in the negative for reasons to follow.
4. Sections 107 and 108 of the Evidence Act read as under :
"107. Burden of proving death of person known to have been alive Contd.....3..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 3 : within thirty years.- 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."
"108. Burden of proving that person is alive who has not been heard of for seven years.- 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 shifted to the person who affirms it."
5. Section 108 is a proviso to Section 107. These two sections are based on the principle that once it is shown that a man was alive within a certain period, continuance of his being alive shall be presumed. The presumption is rebuttable. These two sections deal with the burden of proof in such a case. Section 107 provides that when the question is whether a man is alive or dead, and it is shown that the man was alive within 30 years the presumption is that he is alive; the burden is then upon him who asserts that the man is dead to prove that he is dead.
6. This presumption provided by these two sections of Indian Evidence Act is only to the extent that the subject died at some time during the Contd.....4..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 4 : period; his death on any particular day will not be presumed, and date of death must be proved by evidence if in issue. Period of seven years is, however, strictly insisted upon, a period of six years and 364 days is not enough. Nor is there any presumption that the subject died from any particular cause, died childless or died celibate, though these matters may be capable of inference on the evidence, as a question of fact. It should be remembered that it is always open to the Court to infer death (or that someone is alive) as a matter of fact, as it is to make any other proper inferences from the evidence.
7. In LIC of India v. Anuradha [(2004) 10 SCC 131]= 2004 AIR SCW 2017, Hon'ble Supreme Court held facts were that Sham Prakash Sharma, the late husband of Mrs. Anuradha, the respondent, had taken a life insurance policy from the appellant-Life Insurance Corporation of India (hereinafter, the LIC or Corporation, for short). The policy commenced with effect from 8-2-1986. The premium was payable every six months. For two years, the premium was paid. On 17-7-1988 Sham Prakash Sharma was at Bombay wherefrom he just disappeared, never to be traced out thereafter. The respondent, Anuradha, lodged a first information report with the police. On 11th July, 1988, the LIC had sent Contd.....5..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 5 : a communication addressed to Sham Prakash Sharma and delivered at his residence informing that the insurance policy had lapsed for non- payment of premium. On 29-6-1996, the respondent approached the LIC for release of benefits under the policy proceedings on an assumption that Sham Prakash was dead as having not been heard of for a period of more than seven years. The LIC turned down the claim of the respondent relying on Rule 14 of the Insurance Manual which reads as under :
"Where a person is reported missing, it is to be advised to the claimant that Life insured will be presumed to be dead after seven years or production of the decree from the court of law and in the meantime policy is to be kept in force by making payment of premium regularly."
The LIC defended itself mainly by submitting that as the policy was not kept alive, the claim was not maintainable. The State Commission upheld the respondent's claim forming an opinion that Rule 14 relied on by the appellant was of no relevance in view of the statutory presumption arising under Section 108 of the Evidence Act. The appellant preferred an appeal in the High Court which has been dismissed. During the course of its judgment the High Court has, by Contd.....6..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 6 : referring to Sections 107 and 108 abovesaid, and also taking into consideration a few decided cases , formed an opinion that there was no presumption as to the time of death and inasmuch as the LIC failed to show that Sham Prakash was alive when the claim was preferred the benefits payable under the policy were liable to be released to the respondent.
In another similar petition in that very case facts were , two insurance covers of Rs. 50,000/- each were taken on the life of one Dev Raj Sharma who was employed under the Punjab Government as Junior Engineer. On a day in the month of November, 1988 he did not return to his home from the office. The first information report of his disappearance was lodged with the police. The premiums were regularly paid up to the time of disappearance of Dev Raj Sharma whereafter the premiums were not paid. On 20-9-1997 the respondent filed a civil suit against the LIC claiming release of benefits under the policy on the ground that the insured should be presumed to have died on the date of his disappearance, and therefore, the claim had become payable on the date of disappearance itself though the presumption as to death became available to be raised after the expiry of period of seven years from the Contd.....7..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 7 : date of disappearance, and therefore, the question of policies having lapsed for non-payment of premium after the date of disappearance would not arise as the assured was dead.
It was held by Hon' ble Supreme Court "12. Neither Section 108 of the Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years' absence and being unheard of having elapsed before that time. The presumption stands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the Contd.....8..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 8 : death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death.
13. A presumption assists a party in discharging the burden of proof by taking advantage of presumption arising in his favour dispensing with the need of adducing evidence which may or may not be available. Phipson and Elliott have observed in 'Manual of the Law of Evidence' (Eleventh Edition, at p. 77) that although there is almost invariably a logical connection between basic fact and presumed fact, in the case of most presumptions it is by no means intellectually compelling. In our opinion, a presumption of fact or law which has gained recognition in statute or by successive judicial pronouncements spread over the years cannot be stretched beyond the limits permitted by the statute or beyond the contemplation spelled out from the logic, reason and sense prevailing with the Judges, having written opinions valued as precedents, so as to draw such other inferences as are not contemplated.
Contd.....9..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 9 :
14. On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we 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 Contd.....10..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 10 : proof back on the 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 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.
15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence - direct or circumstantial and not by Contd.....11..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 11 : assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed."
8. In Sri Vidya Mandir Education Society (Regd.) v. Malleswaram Sangeetha Sabha and others (1995 Supp 1 SCC 27), Court considered provisions of Sections 107 and 108 of the Evidence Act and after noticing the decision of the Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir and another (AIR 1926 Privy Council 9) held that there is no presumption of exact time of death under Section 108 of the Evidence Act and the date of death has to be established on evidence by person who claims a right for establishment of which that fact is essential.
9. In AIR 2002 SUPREME COURT 606 "Darshan Singh v. Gujjar Singh" = 2002 AIR SCW 201- also it was held that there is no presumption of exact time of death. In that case a Plaintiff claimed succession to estate as sixth collateral of 'J'. It was held that burden is on Contd.....12..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 12 : plaintiff to prove date of death. There was no pleading nor any averment by plaintiff regarding date of death of 'J' . It was held 'J' who was not heard for more than seven years cannot be considered to be dead only on date on which suit was filed. Succession of plaintiff to estate of 'J' does not open on date of filing of suit.
10. IN AIR 1976 GAUHATI 15 Saraswati Goswami and others, v. General Manager, N. F. Railway, it is held that Section 108 is a proviso to Section 107. These two sections are based on the principle that once it is shown that a man was alive within a certain period, continuance of his being alive shall be presumed. The presumption is rebuttable. These two sections deal with the burden of proof in such a case. Section 107 provides that when the question is whether a man is alive or dead, and it is shown that the man was alive within 30 days the presumption is that he is alive; the burden is then upon him who asserts that the man is dead to prove that he is dead. Section 108 of the Indian Evidence Act, is a proviso to Section 107. Section 107 of the Evidence Act would provide that when a question arises as to whether a man is dead the burden at the first instance lies on the person who asserts that Contd.....13..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 13 : he is alive, to establish that the man is found alive within a period of 30 years. When at the first instance it is established that he is alive, to rebut it that he is not alive, the burden lies on the opposite party to establish that he is dead. Section 108 provides that when it is not explicitly proved whether a particular man is alive or not and on the other hand when it is proved that he has been not heard of for seven years, the burden then shifts on the person who affirms that he is alive. So, a comparative reading of both the sections are so clear that when it has been proved that a person is not heard of for seven years, no conclusion can be arrived at that he is dead. Only during the course of administration of justice, of course, of legal prosecution the period of seven years during which he is not heard of, performs a vital role to secure ends of justice. The man unheard of for seven years can be deemed to have met with a civil death and not a death occasioned on his last breath.
11. AIR 1987 PUNJAB AND HARYANA 37 Parkash Chander, v. Smt. Parmeshwari, A Wife filed a petition for restitution of conjugal rights alleging that she re-married opposite party in Karewa form, pleading Contd.....14..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 14 : that custom raising presumption that person not heard for 2/3 years is dead and her first husband had died. It was held that " The presumption under S.108, Evidence Act arises only when the question is raised in Court as to whether a man is alive or dead and such question is in issue. There is no presumption in this regard unless such a proceeding comes in the Court and an issue in this regard is raised. Section 108 is only a rule of evidence and presumption is drawn for purposes of reaching at a conclusion on the concerned issue. Further, the period of seven years laid down in S.108 with regard to the duration when the whereabouts of a person are not known cannot be whittled down and reduced to 2/3 years under any custom. ........." (Para 18-A)
12. In AIR 1980 PUNJAB AND HARYANA 274 Surjit Kaur v. Jhujhar Singh facts were that Surjit Kaur appellant married Sardul Singh on February 13, 1955. On April 16, 1959, the appellant filed a petition for judicial separation against Sardul Singh alleging that the latter had turned her out of his house in March, 1955, and did not care to look after her thereafter. She further alleged that Sardul Singh had left for Contd.....15..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 15 : Indonesia and had deserted her for more than two years. Sardul Singh having been sufficiently served did not put in appearance. Ex parte Proceedings were ordered to be taken against him. The Senior Subordinate Judge, Ferozepur, vide order dated March 8, 1960, granted the appellant a decree for judicial separation against Sardul Singh. The appellant did not obtain a decree for divorce at any stage against Sardul Singh. On May 24, 1970, the appellant married Jhujhar Singh respondent. They got their marriage registered at Ferozepur on June 3, 1970. The appellant gave birth to a son from the respondent on October 27, 1971. Differences arose between the parties and they started living separately. On November 11, 1976, the respondent filed petition under Section 11 of the Act for a declaration that their marriage was void inasmuch as the previous marriage of the appellant with Sardul Singh subsisted on that date. The appellant claimed that Sardul Singh had left India about 19/20 years ago and he had not been heard of since then by her or by those who would have naturally heard of him if he had been alive. In view of the presumption raised under Section 108 of the Indian Evidence Act, the question of a subsisting marriage between her and Sardul Singh on May 24, 1470, did not arise. Question arose was Contd.....16..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 16 : whether the marriage between the appellant and Sardul Singh did not subsist at the time of her marriage with the respondent ?
The trial Court found issue against the appellant and consequently granted a decree to the respondent declaring the marriage between the parties a nullity. The only point that survives for decision is whether Sardul Singh was alive or dead on May 24, 1970.
Learned counsel for the respondent argued that it is admitted by the appellant that Sardul Singh was alive in 1960 when she obtained a decree for judicial separation against him. No evidence has been led about his actual death. Under Sec. 107 of the Indian Evidence Act, Sardul Singh shall be presumed to be alive within 30 years of 1960. The evidence led by the appellant is hardly sufficient to raise a presumption under Section 108 of the Indian Evidence Act about the death of Sardul Singh. This apart, such a presumption even if raised shall be restricted to Sardul Singh being dead on November 11, 1976, when the respondent filed the petition under Section 11 of the Act and it will not relate back to May 24, 1970. Reliance has been placed on Lal Chand v. Ramrup Gir, AIR 1926 PC 9, Mukunda Behara v. Subarna Bewa. AIR 1962 Orissa 3 and Huseinny J. Bhagat v. Life Insurance Corporation of Contd.....17..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 17 : India, Madras, AIR 1965 Mad 440."
It was held, " 10. It is evident and is also not disputed that if Sardul Singh was alive on May 24, 1970, the marriage of the appellant with the respondent on that date shall be null and void. Surjit Kaur appellant in her own statement during trial stated that she was married with Sardul Singh in 1955. "
"14. In view of the fact that Sardul Singh was alive in 1960 it shall be presumed that he was not dead on May 24, 1970. The appellant has alleged that Sardul Singh was dead on that date. The onus to prove this fact, therefore, shall be on the appellant. "
"15. ................ This apart, the presumption under Sec. 108 of the Indian Evidence Act about the death of Sardul Singh, even if raised would be restricted to the date of the filing of the petition by the respondent, that is November 11, 1976, and shall not relate back to May 24, 1970. A similar point was examined by their Lordships of the Privy Council in Lal Chand v. Ramrup Gir, AIR 1926 PC 9, and it Contd.....18..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 18 : was held :-
"There is only one presumption, and that is that when these suits were instituted in 1916 Bhawan Gir was no longer alive. There is no presumption at all as to when he died. That, like any other fact, is a matter of proof."
Another point was urged by the learned counsel for the appellant that irrespective of the presumption under Section 107 of the Indian Evidence Act in favour of the respondent that Sardul Singh shall be presumed to be alive during the 30 years after 1960 when the appellant obtained a decree for judicial separation against him, the respondent shall have to prove that he was alive on May 24, 1970, after the appellant has succeeded in raising a presumption under Section 108 of the Indian Evidence Act that he was dead on November 11, 1976. This contention was held to be fallacious and it was held that ".......... Assuming that it is for the respondent to prove that Sardul Singh was alive on May 24, 1970, the onus stands discharged in view of the favourable presumption in his favour under Section 107 of the Indian Evidence Act. Now the appellant asserts that Sardul Singh Contd.....19..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 19 : was dead on May 24, 1970. The onus to prove this fact will be on her. Even if a presumption is raised in her favour under Section 108 of the Indian Evidence Act that Sardul Singh was dead on November 11, 1976, it will be erroneous to hold that in this situation it will be for the respondent to prove that Sardul Singh was alive on May 24, 1970. The onus to prove that Sardul Singh was dead on May 24, 1970, shall continue to be on the appellant irrespective of the presumption that may be raised in her favour under Section 108 of the Indian Evidence Act that he was dead on November 11, 1976."
13. Even otherwise without their being a declaration from a civil court about the death of alleged deceased this court cannot entertain this succession petition.
14. In the case of AIR 2006 PATNA 127 Sunita Roy Choudhary and Ors. v. Jageshwar Choudhary and Ors., facts were that, a Trial court where a petition for grant of Succession Certificate was filed, rejected it and directed the parties to get the civil death of the husband of the applicant declared by competent Court in absence whereof it was unable to grant succession certificate. Hon'ble High Court upheld the order Contd.....20..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 20 : stating that succession petition application in prescribed proforma enjoins upon the applicant to state the time of death of the deceased. Time, as contemplated therein, means the date when the deceased died. It was held that the death prior to filing of the application is an uncertain event not to be adjudicated or declared by the District Judge in proceedings under the Succession Act, as the District Judge exercises limited jurisdiction based upon a death already having taken place and ascertained. The District Judge under the said jurisdiction cannot decide issue as to whether a person is dead or not, if dead when dead. It is beyond his jurisdiction. It was also held that a reference may also be made to Section 373 wherein it is specifically provided that the District Judge while exercising jurisdiction under the Succession Act has to proceed in a summary manner. Thus, it would be seen that the District Judge is incompetent to make a declaration with regard to a person whether he was dead or not and further even if Section 108 of the Evidence Act is pressed into service, the only presumption that can arise is that a person may be dead but when he died cannot be ascertained. It is these facts which gives the jurisdiction to the District Judge to proceed in the matter and it is not that the District Judge would decide Contd.....21..
(Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS) : 21 : these matters and then assume jurisdiction.
15.The facts of this case are identical to the case of LIC Vs. Anuradha wherein supreme court rejected the claim of the petitioner. In view of the above discussion, petition is dismissed as being not maintainable.
File be consigned to record room.
Dig Vinay Singh ACJ : TIS HAZARI 18/3/08 (Jud./P.No.410 of 06/dtd. 18.03.08/Roma SachdevaVs. State/total pages(21)/PS)