Bangalore District Court
Smt.Rupasri.B vs ) The Chief Secretary on 2 February, 2022
KABC010039202021
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 2nd day of February 2022
PRESENT: Sri. Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.No.1209/2021
PLAINTIFF SMT.RUPASRI.B
W/o.Sri.M.C.Manjunath
D/o.late Sri.Bsavaraja
Aged about 42 years
R/at No.8, Rajakamala's Nilaya
1st Main Road, 3rd Cross
Chikkagowdanapalya
Subramanyapura Main Road
Bengaluru -560 061
[By Pleader Sri.Manjunatha.P]
/Vs/
OS.1209/2021
2
DEFENDANTS 1) THE CHIEF SECRETARY
Government of Karnataka
Vidhana Soudha
Bengaluru - 560 001
[By Pleader Smt.Shantha B.Mallur -
I ADGP]
2) THE REGISTRAR
Birth and Death
14th Floor, Utility Building
M.G.Road, Bengaluru -560 001
3) THE COMMISSIONER OF POLICE
Infantry Road
Bengaluru - 560 001
[Exparte]
Date of Institution of the suit : 15.02.2021
Nature of the Suit : Declaration
Date of commencement of recording
of evidence : 10.12.2021
Date on which the Judgment was
pronounced : 02.02.2022
Year/s Month/s Day/s
Total Duration : -- 11 17
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
OS.1209/2021
3
JUDGMENT
Suit is filed by Plaintiff for declaring the death of her husband, "M.C.Manjunath", as he has not been heard of for more than seven years.
2) In nutshell, Plaintiff's case is that Plaintiff married Sri.M.C.Manjunath on 23.09.1998 as per Hindu rites and customs.
3) It is stated that on 04.07.2003 at about 11.00 A.M he left the house of Plaintiff for his work, however, he did not return home from his work.
4) It is stated that as Plaintiff's husband did not return from his work, she along with her relatives made repeated efforts to trace out the whereabouts of her husband, however, she could not able to trace her husband.
OS.1209/2021 4
5) It is stated that Plaintiff left with no option, lodged a missing compliant with Basaveshwara Nagara Police on 11.07.2003 and same came to be registered in Crime No.416/2003. Despite the investigation made by police, the whereabouts of her husband could not be traced and hence, police issued endorsement dated 22.10.2010, stating that they could not able to trace her husband and accordingly, file was closed.
6) It is stated that as her husband has not been heard of for more than seven years, she issued a statutory notice under Section 80 of the Code of Civil Procedure, 1908 [CPC] to Defendants to note the death of her husband in the records maintained by them. Despite the notice thus served, Defendants did choose not to enter the death of her husband. Hence, prays for decree.
OS.1209/2021 5
7) Suit summonses were duly served to Defendants. Defendant No.1 marked appearance through I Addl. District Government Pleader [I ADGP] and did choose not to file its written statement. Defendants No.2 and 3 did choose not to appear and hence, they were placed ex-parte.
8) Plaintiff has got examined as P.W.1 and got marked Exs.P.1 to 18 in support of her case.
9) Heard learned Counsel for Plaintiff. Perused the records.
10) Point that arises for consideration is :
"Does Plaintiff entitle to relief as prayed for in plaint?"
11) My answer to above point is in the affirmative for the following:
OS.1209/2021 6 REASONS
12) Suit is filed for declaring the death of Plaintiff's husband, namely Sri.M.C.Manjunath, as he has not been heard of for more than seven years and for consequent direction to Defendants to enter the death of Sri.M.C.Manjunath in the Birth and Death Register maintained by Defendant No.2, contending that Plaintiff's husband, Sri.M.C.Manjunath, who left the house of Plaintiff on 04.07.2003 for his work, did not return home from his work.
13) It is contended that despite efforts made by Plaintiff the whereabouts of her husband could not be traced and therefore, she lodged a police complaint about the missing of her husband and the police, after registration of FIR, investigated the missing of Plaintiff's husband. Despite the investigation made by police missing of her OS.1209/2021 7 husband could not be traced and therefore police issued an endorsement dated 22.10.2010.
14) Plaintiff has deposed as PW.1 reiterating the facts stated in plaint. Documents marked on behalf of Plaintiff are at Exs.P.1 to P.18.
15) Ex.P.1 is Marriage Invitation Card of Plaintiff and same goes to show that the marriage of Plaintiff was solemnized with Sri.M.C.Manjunath on 23.09.1998. Ex.P.15 is Marriage Photo of Plaintiff.
16) Exs.P.2 and P.16 are Election Identity card and Aadhaar card of Plaintiff, wherein husband's name of Plaintiff is mentioned as Sri.Manjunath.M.C.
17) Ex.P.17 is Ration card, which stands in the name of Smt.B.Mahadevamma. Ex.P.18 is Ration card, which stands in the name of Sri.R.Basava OS.1209/2021 8 Raja. Ex.P.18 mentions the name of Plaintiff, as well as her husband Sri.M.C.Manjunath.
18) Ex.P.3 is First Information Report registered in Basaveshwara Nagara Police Station Crime No.416/2003. Ex.P.3 goes to show that missing compliant regarding missing of Sri.M.C.Manjunath has been registered by Basaveshwara Nagara Police as per the information given by Sri.R.Basavaraj on 11.07.2003. Ex.P.3 is accompanied by a copy of compliant dated 11.07.2003 given by Sri.R.Basavaraj, who is the father of Sri.M.C.Manjunath regarding missing of Sri.M.C.Manjunath.
19) Ex.P.4 is requisition letter dated 22.10.2011, whereby Plaintiff made a request to give endorsement regarding the missing of her husband Sri.M.C.Manjunath.
OS.1209/2021 9
20) Exs.P.5 and P.14 are endorsements dated 22.10.2011 and 11.07.2012 issued by Sub-Inspector of Police, Basaveshwaranagar Police Station, Bangalore, whereby police have intimated that despite their best efforts they could not trace the missing of Plaintiff's husband and that therefore, they have closed the case.
21) Ex.P.6 is office copy of legal notice dated 14.03.2012 issued under Section 80 of CPC by Plaintiff to Defendants, calling upon them to enter the death of Plaintiff's husband and to issue death certificate. Exs.P.7 to P.9 are postal receipts for having sent legal notice at Ex.P.6 to Defendants. Exs.P.10 to P.12 are postal acknowledgments for having received the notice at Ex.P.6 by Defendants.
22) Ex.P.13 is reply letter dated 08.05.2012 issued by Government of Karnataka to Defendant No.2 to OS.1209/2021 10 take appropriate action regarding the request made in Ex.P.6 by Plaintiff.
23) From the above documents, as well as oral testimony of PW-1, it is clear that Plaintiff is the wife of Sri.M.C.Manjunath. It is further clear that a missing compliant was filed by Sri.R.Basava Raja, who is the father of Sri.M.C.Manjunath, on 11.07.2003, stating that Sri.M.C.Manjunath left the house of Plaintiff on 04.07.2003 and he did not return home.
24) Above documents further make it clear that police investigated the matter regarding the missing of Plaintiff's husband and gave endorsements to the effect that despite their best efforts, they could not trace the missing of Plaintiff's husband and therefore, they closed the case.
OS.1209/2021 11
25) Plaintiff seeks declaration of death of her husband, Sri.M.C.Manjunath, as he has not been heard of for the last seven years. It is to be noticed that missing complaint was lodged on 11.07.2003. Police gave endorsement at Ex.P.14 on 11.07.2012. Thereafter, Plaintiff issued a legal notice dated 14.03.2012 as per Ex.P.6 to Defendants. Despite service of notice thus issued, Defendants did choose not to comply with the demand made in the notice. Thus, it is clear that cause of action arose for Plaintiff to file the present suit on 11.07.2012, the date of endorsement issued by Police as per Ex.P.14 and on 14.03.2012, the date of issue of notice as per Ex.P.6. It is to be noticed that till the date of filing of the present suit Defendants have not complied with the demand made in the notice and therefore, Plaintiff has filed the present suit for declaration of death of her husband and for consequent direction to Defendants to enter the OS.1209/2021 12 death of her husband in the records maintained by them.
26) In Karma Doma Gyatso alias Babila Kazi Vs. Mrs.Kesang Choden & Ors. [AIR 2009 Sikkim 6], the Hon'ble Sikkim High Court was pleased to hold thus :
"..... Thus, it is manifest that for the purpose of limitation the relevant Article that applies to the case of declaration with a consequential relief would be the residuary Article 113 and not Article 58 which applies to declaratory suits.
18. It is thus obvious that Article 58 which applies to cases of declaration simpliciter would not be applicable in the present case. Instead, it is residuary Article 113 which is attracted in the case of the Plaintiff. However, the period of limitation prescribed under both the Articles being 3 years when the right to sue first accrues (under Article 58) and when the right to sue accrues (under Article 113), the question as to which of the two Articles applies would not be of much significance particularly in the light of the finding that the right to sue accrued only in the year 2005 and the suit has been filed in the year 2006, i.e. within one year of the right to sue accruing. ......."
OS.1209/2021 13
27) Plaintiff's suit being one for declaration with a consequential relief of direction to Defendants to enter the death of her husband in the records maintained by Defendants, it squarely comes under Article 113 which states that limitation begins to run when right to sue accrues and not right to sue first accrues as contemplated in Article 58. In the instant case, even after issue of legal notice as per Ex.P.6 on 14.03.2012, till filing of the present suit by Plaintiff, Defendants have not complied with the demand made in the notice, hence, right to sue accrued to Plaintiff after issue of notice till filing of present suit by Plaintiff.
28) Section 108 of the Indian Evidence Act, 1872 deals with burden of proving that a person is alive who has not been heard of for seven years. It is relevant to read Sections 107 and 108 of the Indian Evidence Act, 1872. They read as under :
OS.1209/2021 14 "107. Burden of proving death of person known to have been alive 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 has died is on the person who affirms it.
108. Burden of proving that a 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 had 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."
29) A conjoint reading of Sections 107 and 108 makes it clear that if it is shown that a man was alive within thirty years, the burden of proving that he has died is on the person, who affirms it under Section 107. Section 108 is in the nature of proviso to Section 107. If it is proved that a man had not been heard of for seven years, the burden of OS.1209/2021 15 proving that he is alive is shifted to the person, who affirms it under Section 108.
30) In the instant case, Plaintiff has affirmed that her husband Sri.M.C. Manjunath has not been heard of since 04.07.2003. In this regard, a police complaint was lodged on 11.07.2003. Police gave endorsement on 11.07.2012. Missing of Sri.M.C.Manjunath is not at all disputed by Defendants. In the light of police complaint with respect to missing of Sri.M.C.Manjunath and endorsement issued by Police, it can be said that the fact of missing of Sri.M.C.Manjunath has been proved by Plaintiff. Missing Complaint was filed on 11.07.2003. Police issued an endorsement on 11.07.2012 and suit came to be filed in the year 2021. Even after 18 years of lodging the complaint, Sri.M.C.Manjunath has not been heard of. In that circumstance, it can be said that Plaintiff has OS.1209/2021 16 discharged the burden that Sri.M.C. Manjunath has not been heard of for the last seven years.
31) Plaintiff's prayer is for declaration of civil death of Sri.M.C.Manjunath as he has not been heard of for the last 7 years.
32) Chapter VI of the Specific Relief Act, 1963 deals with "Declaratory Decrees". Section 34 of the Act reads thus :
"34. Discretion of court as to declaration of status or rights - 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 made 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."
OS.1209/2021 17
33) Legal character of the person or right in property may be declared under Section 34 of the Act. Judgment of the Hon'ble Bombay High Court gives insight into the subject in question. The Hon'ble Bombay High Court at Nagapur Bench, in Sou. Swati w/o Abhay Deshmukh Vs. Sri. Abhay s/o Purushottam Deshmukh [Second Appeal No.18/16, dated 26-02-2016], was pleased to hold that Civil Court has inherent powers in its plenary jurisdiction to grant relief in aid of Section 108 of the Evidence Act. Para-6 and 7 read thus :
"6. There is no need for this Court to delve upon the niceties of interpretation of Sections 107 and 108 of the Evidence Act, as the issue is no more res integra, in view of decision of the Hon'ble Supreme Court in AIR 2004 SC 2070 (supra), the relevant portion from the said judgment is quoted below: "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 OS.1209/2021 18 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 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 OS.1209/2021 19 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."
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."
34) Thus, it is clear that there is no impediment to declare the death of person who has not been heard of for the last 7 years. If it does so, then, the question that would arise is that which date shall be taken into consideration in presuming the death of person, who has not been heard of for the last 7 years. In this regard, ratio laid down by the Hon'ble Madras High Court at Madurai Bench in The Managing Director Vs. E. Tamilarasi [W.A. OS.1209/2021 20 (MD) No.1101/2013 and M.P. (MD) Nos.1/2013 and 1/2015, decided on 05-11-2015] would be relevant to assail the point. In para 20, 21 and 22, it is held as follows :
"20. As a matter of fact, there is an inherent danger in presuming that the date from which a person went missing could be taken to be the date of death. If it is so taken any claims that could be made by his legal heirs would become barred by time, despite the fact that the very presumption of death could be raised only after seven years from the date on which he was last heard of.
21. In LIC of India V. Anuradha, which we have cited earlier, the Supreme Court extracted the following passage from Halsbury's Laws of England, after pointing out that there is no difference between the English Law and the Indian Law on the subject.
"Where the presumption of death after seven years' absence applies, the person will be presumed to have died by the end of that period, where the presumption does not apply, or is displaced by evidence, the issue will be decided on the facts of the particular case. In some old cases, where neither the evidence nor the incidence of the burden of proof was decisive, the court made the best order it could in the circumstances. Where the question to be decided, for the purposes affecting the title to property, is which of two OS.1209/2021 21 persons died first, a statutory rule may apply.
The question whether a person was alive or dead at a given date will be decided on all the evidence available at the date of the hearing".
22. Therefore, it is impossible to think that a person can be presumed to be dead from the date on which he went missing. Unless a period of seven years expire from the date of his missing, the very occasion for the raising of the presumption does not arise. Therefore, the learned Judge was not correct in thinking that the respondent's husband should be presumed to be dead from May 1999 onwards".
35) In the instant case, Sri.M.C.Manjunath disappeared on 04.07.2003. First Information Report [FIR] came to be registered on 11.07.2003. Though, Sri.M.C.Manjunath disappeared on 04.07.2003, his date of disappearance shall be considered on the date on which FIR was registered. Hence, seven years have to be reckoned from the date of registration of FIR. If the date of disappearance of Sri.M.C.Manjunath is reckoned from the date of OS.1209/2021 22 registration of FIR, seven years would expire on 11.07.2010. In the instant case, presumption of death of Sri.M.C.Manjunath cannot be drawn immediately on expiry of seven years, because, at that time, investigation by Police was still going on and finally, Police have issued endorsement on 11.07.2012. Hence, the date on which the endorsement has been given, can be considered as relevant date in presuming the death of Sri.M.C.Manjunath. In that view, it can be fairly said that Plaintiff is entitled to relief of declaration of death of Sri.M.C.Manjunath. Accordingly, I answer the above point in the affirmative and proceed to pass the following :
ORDER (1) Suit of Plaintiff is hereby decreed.
(2) It is hereby declared that
the husband of Plaintiff
"Sri.M.C.Manjunath" died on
OS.1209/2021
23
"11.07.2012" and his death is
declared as civil death as he has not been heard of since 04.07.2003.
(3) No order as to costs.
(4) Draw decree accordingly.
(Dictated to the Typist directly on computer, typed matter corrected and then pronounced by me in open court, on this the 2nd day of February 2022) (RAMA NAIK) VI Addl.City Civil & Sessions Judge Bengaluru City OS.1209/2021 24 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Smt.Rupasri.B, dtd.10.12.2021
(b) Defendants side : N I L II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Marriage Invitation Card of Plaintiff with Sri.M.C.Manjunath Ex.P.2 Notary attested copy of Voter ID of Plaintiff Ex.P.3 True copy of FIR in Crime No.416/2003 dtd.11.07.2003 along with complaint Ex.P.4 True copy of requisition letter of Plaintiff dtd.22.10.2011 Ex.P.5 Endorsement dtd.22.10.2011 issued by Sub-Inspector of Police, Law & Order, Basaveshwaranagar Police Station Ex.P.6 Office copy of legal notice dtd.14.03.2012 Ex.P.7 To Postal Receipts Ex.P.9 Ex.P.10 To Postal Acknowledgments Ex.P.12 Ex.P.13 Reply dtd.08.05.2012 issued by Defendant No.1 OS.1209/2021 25 Ex.P.14 Reply dtd.11.07.2012 issued by Police Sub Inspector of Basaveshwaranagar Police Station Ex.P.15 Marriage Photo of Plaintiff Ex.P.16 Notary attested copy of Aadhaar Card of Plaintiff Ex.P.17 Notary attested copy of Ration card in the name of Smt.B.Mahadevamma Ex.P.18 Photocopy of Ration Card in the name of Sri.R.Basavaraj
(b) Defendants side : N I L VI Addl. City Civil & Sessions Judge Bengaluru City