Delhi District Court
Leela Devi vs The State on 1 August, 2018
IN THE COURT OF MS. ANU AGGARWAL,
ASCJJSCCGJ (SHAHDARA),
KARKARDOOMA COURTS, DELHI
Suit No.: 974/17
IN THE MATTER OF:
1. Leela Devi
Wd/o Sh. Braham Chand
R/o H. No. 478, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi 110092.
2. Aarati Devi
W/o Sh. Naresh Kumar
R/o H. No. 478, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi 110092.
3. Nisha
D/o Sh. Naresh Kumar (Minor)
Through her mother & natural guardian
Smt. Aarati W/o Sh. Naresh Kumar
R/o H. No. 478, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi 110092. .....Plaintiffs
VERSUS
1. The State
Govt of NCT of Delhi.
Through Chief Secretary
Secretariat of Delhi Govt.
I.P. Estate, New Delhi.
2. The Deputy Commissioner,
East Delhi, Govt. of NCT of Delhi.
LM1, Shastri Nagar, Delhi 110031.
3. Life Insurance Company of India
Through Manager BranchII B,
Shakarpur, Delhi 110092.
4. The S.H.O.
Police Station, Hazrat Nizamuddin,
Delhi. ......Defendants
DATE OF INSTITUTION : 02.06.2011
DATE OF RESERVING THE ORDER : 12.07.2018
DATE OF DECISION : 01.08.2018
DECISION : Decreed.
Suit No. 974/17 Leela Devi & Anrs. vs. State and Anrs. Page No. 1/9
SUIT FOR DECLARATION
JUDGMENT
1. By this judgment, I shall dispose off suit filed by the plaintiff for declaration as against defendants.
2. Facts necessary for disposal of present suit as per plaint are as follows:
2.a It is the case of plaintiffs that plaintiff no. 1 is mother, plaintiff no.2 is wife and plaintiff no. 3 is daughter of Sh. Naresh Kumar. It is stated that Sh. Naresh Kumar was working as a driver with Frindia Shipping and Multi Service Private Ltd. as Project Finance Consultant. It is stated that on 09.06.2001, he did not return from his work. On 10.06.2001, a complaint was lodged by Sh. Suresh Kumar S/o Late Brahm Chand at the Police Station, Hazarat Nizamuddin on which an FIR bearing no. 291/2001 was got registered u/s 365 IPC on 01.07.2001. It is stated that the information about the missing of Sh. Naresh Kumar was published in Newspaper Nav Bharat Times (Hindi) on 13.06.2001. It is stated that Sh. Naresh Kumar was lastly seen by Sh. Tarun Chaudhary @ Shani and Sh. Ritesh @ Ricky on 09.01.2001 at about 5:30 pm at the time of his leaving from the office by scooter bearing noi. DL 5S6062. However, thereafter the whereabouts of Sh. Naresh Kumar have not been heard and seen by the plaintiffs or by his colleagues.
2.b It is stated that during his lifetime, Sh. Naresh Kumar was unmarried and was residing at his residence. It is stated that one Life Insurance Policy bearing no. 120156601 of Rs.15000/ was also purchased by Sh. Naresh Kumar and he was paying Rs.248/ monthly to LIC of India Branch IIB, Shakarpur, Delhi 110092. It is stated that since mother of Sh. Naresh Kumar is the nominee in the above stated policy, she is entitled to get the amount of policy alongwith the bonus from LIC of India. Therefore, Suit No. 974/17 Leela Devi & Anrs. vs. State and Anrs. Page No. 2/9 notices dated 14.02.2011 were sent to the defendants no. 1 to 3 against which reply was given by defendant no. 3.
2.c By way of present suit, the plaintiffs have prayed for decree of declaration to declare Naresh Kumar as Dead on the night of 09.06.2001 and to declare that plaintiffs are entitled to succeed to the estate of Sh. Naresh Kumar. The plaintiffs have also prayed the directions to defendant no. 3 to pay amount of policy bearing no. 120156601 alongwith bonus to the plaintiffs.
3. The defendant no. 3 filed written statement stating that plaintiff no. 1 is the mother of policyholder Sh. Naresh Kumar. It is stated that the nominee has not submitted claim papers with death certificate or a decree from the Civil Court declaring the policy holder to be missing since last seven years. It is stated that plaintiff no. 1 is the nominee in the policy. The rest of the contention in the plaint has been denied.
4. No WS was filed by defendant no. 1 and 2 and they were proceeded exparte vide order dated 12.09.2011.
5. Defendant no. 4 had filed a report stating that FIR No. 291/2001 u/s 365 IPC has been raised on the complaint of Suresh Kumar regarding abduction of his brother Sh. Naresh Kumar from Sarai Kale Khan on 09.06.2001. Investigation was carried out but he could not be traced out and untraced report was filed by ACP on 29.07.2002.
6. Plaintiffs filed replication to the WS of defendant no. 3, wherein they reiterated the same facts as in the plaint.
7. Vide order dated 13.10.2011, following issues were framed : ISSUES
1. Whether the plaintiff is entitled for a declaration that Sh. Naresh Kumar has expired ? OPP
2. Whether the plaintiff is entitled to a direction directing the Suit No. 974/17 Leela Devi & Anrs. vs. State and Anrs. Page No. 3/9 defendant no. 3 to pay the amount due under the LIC policy of Sh. Naresh Kumar to the plaintiff ? OPP
3. Relief.
8. The plaintiff has examined following witnesses in her evidence:
8.a The plaintiff has examined herself as PW1 and has tendered her evidence by way of affidavit Ex. PW1/1. She has relied upon following documents :
1. Copies of notices dated 14.02.2011 as Ex. PW1/C to Ex.PW1/E.
2. Receipts of service of notices upon the defendants as Ex.PW1/F to Ex. PW1/H.
3. Reply of defendant no. 3 alongwith envelop as Ex. PW1/I.
4. Reply of defendant no. 1 alongwith envelop as Ex. PW1/J and Ex. PW1/K.
5. Copy of FIR no. 291/2001 marked as Mark1A.
6. Copy of newspaper cutting regarding missing of Sh. Naresh Kumar as Mark 1B.
8.b PW2 Smt. Aarati Devi has tendered her affidavit of evidence as Ex. PW2/1 and has relied upon already exhibited documents as Ex. PW1/C to Ex. PW1/K and Mark A1 and Mark A2.
8.c PW3 HC Ravinder Singh from PS Hazart Nizamuddin, South East, Delhi has produced FIR no. 291/2001 under Section 365 IPC registered at PS Hazrat Nizamuddin which is Ex. PW3/A. He has also produced entry to show that untraced report was filed by ACP in the above said FIR on 29.07.2002 as Ex. PW3/B.
9. The defendant no. 3 and 4 were declared exparte vide order dated 24.04.2018 and PE was closed.
10. I have heard the arguments and have gone through the record.
Suit No. 974/17 Leela Devi & Anrs. vs. State and Anrs. Page No. 4/911. My issue wise findings are as follows : ISSUE NO. 1.
Whether the plaintiff is entitled for a declaration that Sh. Naresh Kumar has expired ? OPP
12. It is undisputed that a declaration as to civil death is a declaration as to the status of a person. Therefore, it can be safely asserted that a declaration as to civil death can be granted by a civil court under Section 34 of the Specific Relief Act 1963 r/w Section 9 of CPC, 1908.
12.a The grant of decree of declaration to declare a civil death of a person is structured on the presumption envisaged in Section 108 of the Indian Evidence Act,1872. 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.
12.b Section 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 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 Suit No. 974/17 Leela Devi & Anrs. vs. State and Anrs. Page No. 5/9 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. There is no 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.
12.c This view is affirmed in LIC of India v. Anuradha wherein it was held that :
"Neither Section 108 of the Evidence Act nor logic, reason or sense permits 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 evidencefactual or circumstantial, and the onus of proving that the 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."
12.d From the perusal of the record, the factum that Sh. Naresh Kumar is missing since 09.06.2001 is established. PW1 Smt. Leela Devi has categorically stated that her son had gone to his work place on 09.06.2001 and never returned. She had also filed police complaint regarding missing of her son and FIR bearing no. 291/2001 under Section 365 IPC was got registered Suit No. 974/17 Leela Devi & Anrs. vs. State and Anrs. Page No. 6/9 on 01.07.2001. PW2 Arti Devi is the wife of Sh. Naresh Kumar and she has deposed on the similar lines as PW1. PW3 HC Ravinder Singh has proved that FIR No. 291/2001 was registered and untraced report was filed on 29.07.2002. There is nothing on record to discredit the version of the plaintiff. The testimony of PW1, PW2 and PW3 stand uncontroverted and especially so, when the same is substantiated by the narratives and chronicles of the official witnesses. The plaintiff no. 1 and 2 have been cross examined by defendant no. 3 and nothing has come in the cross examination to discredit the version of plaintiff.
12.e In the instant case, the relationship of the plaintiffs with Sh. Naresh Kumar has not been disputed. In the natural course of events, it can be reasonably expected that the family member of a person would hear from him. In the instant case, the plaintiff has proven on record that the said Sh. Naresh Kumar has not been heard of since 09.06.2001. The present suit has been filed on 19.05.2011 and it is proved that Sh. Naresh Kumar has not been heard or seen for seven years prior to the institution of the present suit. The defendants have not discharged the onus of affirming that Sh. Naresh Kumar is alive. In fact, it is not even their case that Sh. Naresh Kumar is alive or has been heard of by the plaintiff or her family members after 09.06.2001. In these circumstances, a presumption as to the civil death of Sh. Naresh Kumar has been raised by the plaintiff before the court. This presumption has not been rebutted by the defendants and as such, the plaintiffs are entitled to a declaration as to the civil death of Sh. Naresh Kumar. Therefore, plaintiffs have successfully proved that they are entitled to a declaration that Sh. Naresh Kumar be declared as presumed dead.
12.f On the appreciation of the entire evidence, it seems prudent that as the declaration of civil death is being granted in respect of Sh. Naresh Kumar vide this judgment itself, the date of this judgment be considered as date of civil death of Naresh Kumar. Therefore, this court does not have any hesitation Suit No. 974/17 Leela Devi & Anrs. vs. State and Anrs. Page No. 7/9 in decreeing the suit in favour of the plaintiffs and against the defendants.
12.g Accordingly, upon the pressing of section 108 into service amalgamated with the facts on the record, a decree of declaration declaring that Naresh Kumar, family member of plaintiffs succumbed to civil death, is passed.
ISSUE NO. 2.
Whether the plaintiff is entitled to a direction directing the defendant no. 3 to pay the amount due under the LIC policy of Sh. Naresh Kumar to the plaintiff ? OPP
13. PW1 has deposed that she is mother, plaintiff no. 2 is wife and plaintiff no. 3 is daughter of Sh. Naresh Kumar. It is not disputed that there is no other legal heir of Sh. Naresh Kumar apart from plaintiffs. The only defence, which defendant no. 3 has raised is that the nominee has not submitted claim papers with death certificate or a decree from civil court declaring the policy holder to be missing since last seven years. It is also not disputed that plaintiff no. 1 is the nominee in policy no. 12056601. In view of the findings of issue no. 1, the plaintiffs being LR of Sh. Naresh Kumar is entitled to 1/3rd share each on the LIC Policy of Sh. Naresh Kumar bearing no. 12056601. In view of the same, this issue is decided in favour of plaintiffs and defendant no. 3 is directed to pay the amount of policy bearing no. 12056601 alongwith bonus, if any, to the plaintiffs.
Relief
14. Suit of the plaintiff is decreed with the following reliefs :
1. A decree of declaration is passed in favour of plaintiff declaring Naresh Kumar has succumbed to civil death and the date of judgment be considered as date of civil death of Naresh Kumar;
2. The defendant no. 3 is directed to pay the amount of policy Suit No. 974/17 Leela Devi & Anrs. vs. State and Anrs. Page No. 8/9 bearing no. 12056601 alongwith bonus, if any, to the plaintiffs in equal share.
15. There shall be no order as to costs. Decree sheet be prepared accordingly.
16. File be consigned to Record Room.
Announced in open Court.
Delhi Dated the 01.08.2018 This Judgment contains 9 pages ANU and each paper is signed by me.
(Typed under my direct dictation) AGGARWAL (Anu Aggarwal) ASCJJSCCGJ (SHAHDARA) KKD Courts, Delhi Digitally signed by ANU AGGARWAL Location: Shahdara District, Karkardooma Courts, Delhi Date: 2018.08.01 16:29:50 +0100 Suit No. 974/17 Leela Devi & Anrs. vs. State and Anrs. Page No. 9/9