Delhi District Court
Smt. Bimla vs Raj Kumar on 7 June, 2019
IN THE COURT OF RENU CHAUDHARY, CIVIL JUDGE03,
CENTRAL DISTRICT, TIS HAZARI COURT, DELHI.
New Case No. 2591/17
Smt. Bimla,
Aged about 32 years,
D/o Sh. Bharat Singh,
R/o A432, Nabi Karim,
Krishna Barti, Pahar Ganj,
New Delhi110055. ........ Plaintiff
Versus
1. Raj Kumar
W/o Sh. Hakam Singh,
Aged about 45 years,
R/o A432, Nabi Karim
Krishna Barti, Pahar Ganj,
New Delhi110055.
2. Mrs. Soniya
W/o Shim Singh,
Aged about 42 years,
R/o B202, Raghubir Nagar,
Rajori Garden, New Delhi
3. Mrs. Durga Devi
W/o Sh. Uma Shankar
Aged about 40 years,
R/o A432, Nabi Karim,
Krishna Barti, Pahar Ganj,
New Delhi110055
4. Sh. Rajinder
S/o Sh. Bharat Singh
CS NO. 2591/17 Smt. Bimla Vs. Raj Kumar & Ors. Page 9 of 9
Aged about 38 years,
R/o AB69, Amar Puri,
Pahar Ganj, New Delhi110055.
5. Mrs. Ganga
W/o Sh. Tarun Kumar
Aged about 30 years,
R/o 168/2, Indrapuri,
Jekampura, Gurgaon122001.
6. SubDivisional Magistrate
(SDM) (Karol Bagh)
Officer of the Deputy Commissioner
(District Central)
Flatted Factory Complex Building,
Jhandewalan, New Delhi110002.
7. The Station House Officer (SHO)
Police Station Nabi Karim,
Qutab Road, Nabi Karim,
Sadar Bazaar, New Delhi110055 ....... Defendants
Date of Institution of the suit : 09.08.2017
Date of judgment passed : 07.06.2019
SUIT FOR DECLARATION ON BEHALF OF THE PLAINTIFF.
Present : None.
JUDGMENT
1. Plaintiff has filed the present suit for declaration to declare that her missing mother namely Smt. Nanki Devi be declared as a dead person in as much as she is missing since 26.05.2010.
CS NO. 2591/17 Smt. Bimla Vs. Raj Kumar & Ors. Page 9 of 92. Briefly stated the case of the plaintiff is that her mother Smt. Nanki Devi was an employee of erstwhile Municipal Corporation of Delhi and was working as regular beldar and she is missing since 26.05.2010. It is submitted that she was last seen at her residence at AB69, Amarpuri, Paharganj, New Delhi 110055 on 26.05.2010. A missing complaint was made on 27.05.2010 at PS Nabi Karim which is registered vide DD no. 24A dt. 27.05.2010. It is further submitted that despite investigation, the Delhi police officials could not trace Smt. Nanki Devi and therefore, it is prayed that Smt. Nanki Devi be presumed to be dead as nothing has been heard about her for the last more than seven years. In view of these facts and reasons, the plaintiff filed the present suit seeking declaration that Smt. Nanki Devi be deemed to be dead in terms of Section 108 of the Indian Evidence Act 1872.
3. Summons of the suit were served upon the defendants. Status report on behalf of defendant no. 6 and 7 was filed pursuant to the directions of the Court.
4. On the basis of the pleadings following issues were framed vide order dt. 04.04.2018.
(i) Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP
(ii) Whether plaintiff has no cause of action and locus standi to file the suit in hand? OPD
(iii) Whether the suit is not maintainable in its present form? OPD CS NO. 2591/17 Smt. Bimla Vs. Raj Kumar & Ors. Page 9 of 9
(iv) Relief.
5. Since none had been appearing on behalf of the defendants, the defendants were proceeded Exparte and the matter was listed for Exparte PE.
6. I have heard the arguments and have gone through the case file carefully.
7. My issue wise findings are as follows: Issue no. i
(i) Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP The onus of proving this issue was upon the plaintiff. In order to prove her case PW1 Ms. Bimla tendered her evidence by way of affidavit Ex. PW1/A and relied upon the following documents in support of her contentions:
1) Mark A i.e. copy of ID card issued by MCD.
2) Ex. PW1/1 (OSR) i.e. copy of adhar card.
3) Mark B i.e. copy of DD no. 24A dt. 27.05.2010.
4) Mark C i.e. copy of complaint dt. 26.05.2017.
5) Mark D i.e. copy of complaint dt. 30.05.2017 with regard to issuance of missing of non traceable certificate.
CS NO. 2591/17 Smt. Bimla Vs. Raj Kumar & Ors. Page 9 of 9PW1 was not crossexamined by the defendants since defendants were already proceeded Exparte. Therefore, this court does not find any reason to disbelieve the testimony of PW1 recorded on oath in the Court. PW1 reiterated the averments made in the plaint and successfully proved the above mentioned documents.
8. It is noted that during the course of the proceedings, status report was filed by ASI Sanjay Singh, PS Nabi Karim, Delhi stating that missing report of Smt. Nanki Devi was lodged vide DD no. 24A, dt. 27.05.2010 at PS Nabi Karim, Delhi and despite best efforts to trace out missing Nanki Devi, no clue was found and she was still untraced.
9. Section 108 of Indian Evidence Act, 1872, raises a presumption that if a person has not been heard of for the seven years by courts who would have naturally heard of him, if he had been alive, that person may be presumed to be a dead person. It is undisputed that a declaration as to civil death is a declaration as to the status of a person. The grant of decree of declaration to declare a civil death of a person is structured on the presumption envisaged in Section 108 of Indian Evidence Act 1872. The provision profounds 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.
10. Section 107 and 108 are drafted as two sections, in affect, CS NO. 2591/17 Smt. Bimla Vs. Raj Kumar & Ors. Page 9 of 9 Section 108 is an exception to the rule enacted in Section 107. The Human life shown to be in existence, at given point of time which according to Section 107 ought to be a point within thirty 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 person who asserts the fact of that person being alive. The presumption raised under Section 108 is 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. 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 anytime short of it. An occasion for raising the presumption would arise only when the question is raised in a Court.
11. This view is affirmed in LIC of India vs. Anuradha 2004 AIR SCW2017 wherein it was held that neither Section 108 of Indian Evidence Act nor logic, reason or sense permits a presumption or assumption being drawn CS NO. 2591/17 Smt. Bimla Vs. Raj Kumar & Ors. Page 9 of 9 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 anytime 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 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 prove of the date or time of death.
12. Upon the bare perusal of the record, the factum of Sh. Nanki Devi, mother of the plaintiff, being missing since 26.05.2010 is circumstantiated.
Neither the police officers nor the relatives of Smt. Nanki Devi have been able to gather inkling about her whereabouts since 26.05.2010. The same is also evident from the report of concerned ASI, PS Nabi Karim dt. 09.07.2018 and 12.09.2018 as well as other materials on record. It is note worthy that there is no nothing on record to discredit the version of the plaintiff. In view of the unchallenged testimony of PW1 and the documents tendered in evidence by the plaintiff/PW1 and on the basis of material on record, it can be said that the CS NO. 2591/17 Smt. Bimla Vs. Raj Kumar & Ors. Page 9 of 9 plaintiff has been able to prove her case against the defendants. It can be said that plaintiff has been able to prove that Smt. Nanki Devi mother of the plaintiff is missing since 26.05.2010 i.e. more than eight years and nothing has been heard about her since 26.05.2010. In the instant case, the relationship of the plaintiff with Smt. Nanki Devi has not been disputed. In the natural course of events, it can be reasonably expected that the family members of a person would hear from her. In the case, the plaintiff has proven on record that the said Smt. Nanki Devi has not been heard of since 26.05.2010. The present suit has been filed on 09.08.2017 and it is proved that Smt. Nanki has not been heard or seen for last 7 years prior to institution of the present suit. The defendants have not discharged the onus of affirming that Smt. Nanki Devi is alive. In view of these facts and reasons this issue is decided in favour of the plaintiff and against the defendants.
13. Issue no. ii and iii
(ii) Whether plaintiff has no cause of action and locus standi to file the suit in hand? OPD
(iii) Whether the suit is not maintainable in its present form? OPD The onus of proving these issues was upon the defendants. The defendants did not lead any evidence to prove these issues. In the absence of the evidence led by the defendants, these issues are decided in favour of the plaintiff and against the defendants.
CS NO. 2591/17 Smt. Bimla Vs. Raj Kumar & Ors. Page 9 of 914. The plaintiffs have relied upon the judgement of the Hon'ble High Court of Bombay (Nagpur bench) in Sushila and Ors. Vs. State of Maharashtra decided on 17.02.2016 wherein it was held that the Civil Court acting under Section 9 CPC, has inherent powers in its plenary jurisdiction de hors with reference to Section 34 of Specific Relief Act to grant relief qua Section 108 of the Indian Evidence Act.
Relief
14. In view of the discussions above and on the appreciation of entire evidence, it seems prudent that the present suit be decreed in favour of the plaintiff and against the defendants. Accordingly, the plaintiff is hereby held entitled to the decree of declaration to the effect that Smt. Nanki Devi, mother of the plaintiff is declared to have succumbed to civil death.
Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
Digitally signed by RENU RENU CHAUDHARY
CHAUDHARY Date: 2019.06.07
15:29:07 +0530
Announced in the Open Court (RENU CHAUDHARY
today on 07th June, 2019 Civil Judge03/Central
Tis Hazari Courts, Delhi
This judgment contains 9 pages and all the pages are signed by me.
Digitally signed by RENU RENU CHAUDHARY
CHAUDHARY Date: 2019.06.07 15:29:20
+0530
(RENU
CS NO. 2591/17 Smt. Bimla Vs. Raj Kumar & Ors. Page 9 of 9
CHAUDHARY)
Civil Judge03/Central
Tis Hazari Courts,
Delhi
CS NO. 2591/17 Smt. Bimla Vs. Raj Kumar & Ors. Page 9 of 9