Bangalore District Court
Sri.Huchaiah vs The Commissioner on 3 December, 2018
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 3rd day of December, 2018.
O.S.No.416/2015
Plaintiff:- Sri.Huchaiah,
S/o.Late Nanjegowda,
Aged about 62 years,
R//at No.433/15,
BHEL 2nd Stage,
Pattanagere,
Rajarejeshwarinagar,
Bangalore - 560 098.
(By Adv. Rudresha S.L.)
v.
Defendants:- 1. The Commissioner,
Bruhat Bangalore Mahanagara Palike,
Corporation Circle,
Bangalore -01.
2. The Secretary,
Government of Karnataka,
Vidhana Soudha,
Bangalore - 01.
(D1 By Adv. Prathima.V
D2 - Exparte)
Date of institution of the suit : 09.01.2015
Nature of the suit : Declaration
Judgement
2 O.S.No.416/2015
Date of commencement of : 02.07.2015
Recording of the evidence
Date on which the Judgment : 03.12.2018
was pronounced
Total Duration : Years Months Days
03 10 24
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGEMENT
The plaintiff has filed the above suit for declaration, to declare that plaintiff's mother namely, Smt.Ningamma @ Lingamma as a dead person and costs.
2. The plaintiff's case in brief as follows: -
The plaintiff, Mallaiah and Madaiah are the children of one late Nanjegowda and Smt.Ningamma @ Lingamma. On 27.07.1997, plaintiff's mother namely, Smt.Ningamma @ Lingamma went missing from the house and was not heard of since then. The plaintiff and his family members searched for their mother but, could not trace her. The plaintiff lodged a complaint before the police in Crime No.268/1997 but, till this day the whereabouts of plaintiff's mother has not been traced and police have closed the case. Said Smt.Ningamma @ Judgement 3 O.S.No.416/2015 Lingamma owned properties in her name at various places. The plaintiff and family members have acquired rights over the said properties. When the plaintiff approached the concerned authorities and requested them to change the records in their names, the said authorities insisted for Death Certificate of Smt.Ningamma @ Lingamma. The plaintiff approached the concerned authorities and requested to issue Death Certificate of Smt.Ningamma @ Lingamma but, they issued endorsement that they have not registered the date of death of Smt.Ningamma @ Lingamma in their register, since there is no document available to show the death of Smt.Ningamma @ Lingamma. Hence, the plaintiff has filed the above suit.
3. In response to the suit summons, defendant no.1 has appeared before the court through his counsel and filed the written statement. Inspite of service of suit summons, defendant no.2 failed to appear before this court hence, defendant No.2 was placed exparte. In the written statement, defendant no.1 has contended that concerned jurisdictional Registrar of Births and Deaths is a necessary party to this suit and he is not impleaded in the suit hence, suit is bad for non-joinder of necessary party. The defendant No.1 has no authority to issue Birth and Death Certificates. The defendant No.1 has denied the plaint averments in toto. Hence, prayed that suit may be dismissed with costs.
Judgement 4 O.S.No.416/2015
4. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiff proves that his mother by name Smt.Ningamma @ Lingamma w/o. late Sri.Nanjegowda, aged about 80 years, residing within the jurisdiction of Chamarajpet Police Station, Bengaluru, is not traced since 20.07.1997?
2. Whether the suit is bad for non-joinder of necessary parties as contended by defendant No.1 in para-3 of the written statement?
3. Whether the plaintiff is entitled for the declaratory relief as sought for?
4. Whether the plaintiff is entitled for the reliefs?
5. What order or decree?
5. To prove the case of the plaintiff, plaintiff examined himself as PW-1 and got marked Ex.P1 to P4 and examined PW-2 on his behalf. Defendants have failed to adduce evidence before the court.
6. Heard arguments.
7. My findings on the above said issues are as follows:-
Issue No.1:- In the Affirmative.
Issue No.2:- In the Negative.
Issue No.3:- In the Affirmative.
Issue No.4:- In the Affirmative.
Issue No.5:- As per final order.
for the following:-
Judgement
5 O.S.No.416/2015
REASONS
8. Issue Nos.1 to 4:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
PWs.1 and 2 in their affidavits by way of examination-in- chief have categorically stated that plaintiff, Mallaiah and Madaiah are the children of one late Nanjegowda and Smt.Ningamma @ Lingamma. On 27.07.1997, plaintiff's mother namely, Smt.Ningamma @ Lingamma went missing from the house and was not heard of since then. The plaintiff and his family members searched for their mother but, could not trace her. The plaintiff lodged a complaint before the police in Crime No.268/1997 but, till this day the whereabouts of plaintiff's mother has not been traced and police have closed the case. Said Smt.Ningamma @ Lingamma owned properties in her name at various places. The plaintiff and family members have acquired rights over the said properties. When the plaintiff approached the concerned authorities and requested them to change the records in their names, the said authorities insisted for Death Certificate of Smt.Ningamma @ Lingamma. The plaintiff approached the concerned authorities and requested to issue Death Certificate of Smt.Ningamma @ Lingamma but, they issued endorsement that they have not registered the date of death of Smt.Ningamma @ Judgement 6 O.S.No.416/2015 Lingamma in their register, since there is no document available to show the death of Smt.Ningamma @ Lingamma. Hence, the plaintiff has filed the above suit. The plaintiff has produced Genealogical Tree at Ex.P1. From Ex.P1, it discloses that Mallaiah, Madaiah and plaintiff are the children of Nanjegowda and Smt.Ningamma @ Lingamma. Further, the plaintiff has produced copy of ESI Corporation Identity Card containing particulars of family members at Ex.P4. From Ex.P4, it clearly goes to show that plaintiff is the son of Smt.Ningamma @ Lingamma. Ex.P1 and P4 are sufficient to prove the relationship between the parties. The defendants have not produced any evidence to show that plaintiff is not the son of Smt.Ningamma @ Lingamma. Hence, contention of the plaintiff that Mallaiah, Madaiah and plaintiff are the children of Nanjegowda and Smt.Ningamma @ Lingamma has to be accepted. PWs.1 and 2 in their evidence have categorically stated that their mother went missing on 27.07.1997. In support of the same, the plaintiff has produced endorsement and reply issued by the Police Sub Inspector, Chamarajpet Police Station at Ex.P2 and P3. Ex.P2 and P3 are issued by Police Authority and bear seal and signature of the competent authority hence, Ex.P2 and P3 are admissible in evidence. From Ex.P2 and P3, it clearly goes to show that on 04.08.1997 plaintiff has lodged complaint with the police Judgement 7 O.S.No.416/2015 regarding missing of Smt.Ningamma @ Lingamma on 27.07.1997. The said complaint is registered as FIR No.268/1997 and inspite of thorough investigation, the police are unable to trace whereabouts of Smt.Ningamma @ Lingamma and FIR came to be closed as untraced. From Ex.P2 and P3, it clearly goes to show that Smt.Ningamma @ Lingamma is missing from 27.07.1997 till today and her whereabouts are not traced and she is not heard of since then. Inspite of issuance of paper publication in the above case, none have appeared before this court contending that Smt.Ningamma @ Lingamma is alive. Said Smt.Ningamma @ Lingamma is not seen or heard from 27.07.1997 till today. The plaintiff has produced sufficient material evidence before this court to show that Smt.Ningamma @ Lingamma is not seen or heard for seven years. The defendant No.1 has filed written statement contending that jurisdiction Registrar of Births and Deaths is not made as party hence, suit is bad for non-joinder of necessary parties. It is pertinent to note that, defendant No.1 has not stepped into the witness box. Any amount of pleadings without evidence will not serve any purpose. More over, the plaintiff has impleaded State as party in the above case therefore, above contention of defendant No.1 is not sustainable. PWs.1 and 2 in their evidence have stated that Smt.Ningamma @ Lingamma owned properties and now they Judgement 8 O.S.No.416/2015 have acquired rights over the said properties and in order to get the records mutated in their names, Death Certificate is necessary hence, they have filed the suit for declaration.
9. In the High Court of Judicature at Bombay Bench at Nagpur, Nagpur, Second Appeal No.18/2016, in the case of Sou.Swati W/o.Abhay Deshmukh and others v. Shri Abhay S/o.Purushotham Deshmukh and another, held as follows:-
"After hearing learned counsel for the appellants, this Court found that this Appeal should be decided at the stage of admission itself in view of the short controversy involved in the matter. FACTS:
2. The appellant No.1 Smt.Swati W/o.Abhay Deshmukh and her two daughters filed a suit being Regular Civil Suit No.376/2015 in the Court of learned Joint Civil Judge, Junior Division, Nagpur for a declaration of civil death, obviously referable to Section 108 of the Evidence Act, with a prayer to seek declaration that Abhay Deshmukh died civil death since he went missing from 16.07.2006 and was not heard of since then. A report at the Police Station, Ranapratapnagar, Nagpur was lodged on 16.03.2008 that despite due diligence and enquiry made from time to time, Abhay Deshmukh could not be found........
6. There is no need for this Court to delve upon the niceties of interpretation of Sections 107 Judgement 9 O.S.No.416/2015 and 108 of the evidence Act, as the issue is no more res inegra, in view of decision of the Hon'ble Supreme Court in AIR 2004 SC 2070 (supra), the relevant portion from the said judgement is quoted below:
"On the basis of the above said authorities, we unhesitatingly arrive at a conclusion which were sump 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, Judgement 10 O.S.No.416/2015 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 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".
Judgement 11 O.S.No.416/2015
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. ..........
10. To sum up, following order is inevitable:-
ORDER
a) Second Appeal No.18/2016 is allowed.
b) Impugned judgement and decree dated 02.09.2015 passed by Joint Civil Judge, Jr.Dn. Nagpur in R.C.S.No.376/2015 and judgement and decree dated 31.10.2015 passed by District Judge-8, Nagpur in Regular Civil Appeal No.448/2015, both are set aside.
c) There shall be a decree in terms of prayer clause (2) of the suit which is reproduced below:-
(2) Declare that the defendant Shri Abhay S/o.Purushotham Deshmukh as a dead person and his death is civil death as he is missing from 16.03.2008 and issue death certificate".
d) No order as to costs"
Judgement 12 O.S.No.416/2015 From the above judgment, it is clear that this court has ample power to declare that Smt.Ningamma @ Lingamma as a dead person and her death is civil death as she is missing from 27.07.1997. In the light of the above discussion, the plaintiff is entitle for the reliefs sought for and I answer Issue Nos.1, 3 and 4 in the Affirmative and Issue No.2 in the Negative.
10. Issue No.5:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is decreed.
It is hereby declared that Smt.Ningamma @ Lingamma w/o. late Nanjegowda as a dead person and her death is civil death as she is missing from 27.07.1997 and concerned authorities are directed to issue Death Certificate.
Draw decree accordingly.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 3rd day of December, 2018) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru.
Judgement 13 O.S.No.416/2015 ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiffs' side:
PW.1 - Sri.Huchaiah PW.2 - Sri.Madaiah
(b) Defendants' side: Nil.
II. List of documents exhibited on behalf of:
(a) Plaintiffs' side:
Ex.P1 : Family Tree
Ex.P2 : FIR copy
Ex.P3 : Letter of PSI
Ex.P4 : ESI Card of PW-1
Ex.P4(a) : Copy of Ex.P4
(b) Defendants' side: Nil.
XLII ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU.
Digitally signed by SRINIVASA DN: cn=SRINIVASA,ou=HIG H COURT OF
SRINIVASA KARNATAKA,o=GOVER NMENT OF KARNATAKA,st=Karnat aka,c=IN Date: 2018.12.05 15:40:22 IST Judgement