Document Fragment View

Matching Fragments

3. The first defendant the daughter of the plaintiff and the sister of Ramalingam, submitted to a decree. The second defendant, as noticed earlier, the daughter of the plaintiff's husband late Sambasiva Pathar through his first wife filed a written statement contending that it is true that the whereabouts of Ramalingam are not known and he was missing, but such missing of Ramalingam was on account of the behaviour and conduct of the plaintiff mother and he will appear soon after the death of the plaintiff and therefore Ramalingam should not be presumed to be dead and the plaintiff alone is not the successor to Ramalingam. The suit was alleged to have been filed by the plaintiff in collusion with the first defendant and that the plaintiff is in enjoyment of the properties on behalf of the absentee Ramalingam pursuant to the appointment made as Receiver. An additional written statement was also filed contending that Ramalingam is alive and therefore, the court has no jurisdiction to entertain the suit in respect of the relief of the declaration of the civil death of Ramalingam and Section 108 of the Evidence Act is not applicable because Ramalingam is alive within 30 years and was missing from 1964 only from Madras and consequent';', the suit was not maintainable in respect of the second relief. A reply, was also filed by the plaintiff contending that the Evidence Act became applicable to civil cases also from 1963 in the Union Territory of Pondicherry and that the claim of declaration on the basis of civil death of her son was under the Hindu Succession Act and the Indian Evidence Act and not under the French Law and the accusation of immoral life made by the second defendant was baseless. Under the provisions of Section 34 of the Specific Relief Act, the plaintiff was entitled to a declaratory decree.

5. Aggrieved, the second defendant filed on appeal in A.S. No. 27 of 1980 before the District Court, Pondicherry. Learned I Additional District Judge of Pondicherry, by his judgment and decree dated 22.7.1982, confirmed the findings and conclusion arrived at by learned trial Judge and placing reliance upon Exs. A-2 and A-7 to A-13, held that the disappearance of the plaintiff's son by name Ramalingam from 27.2.1964 till the date of consideration by the courts below proved, that the disappearance might have been occasioned also by the fact that the college in which he was studying in B.A. History II year did not send upRamalingam for University Examinations to be held in Mareh, 1964 due to his poor academic performance and that having regard to the provisions contained in Section 34 of the Specific Relief Act, 1963, made applicable from 13; 12 1963 and the provisions of the Indian Evidence Act made applicable with effect from 1.10.1963, the India laws applied to the case on hand and consequently, the decree passed by the learned trial Judge was in accordance with law.

16. As far as the facts and circumstances of the case on hand are concerned, the plaintiff is the mother of Ramalingam whose whereabouts is not known from 17.2.1964 when he admittedly disappeared from the college. The suit initially filed on 18.3.1977 was itself nearly about 13 years thereafter and as on date, it is three decades since the disappearance of Ramalingam, plaintiff's son and there is no information worth evidence about the whereabouts, existence or otherwise of him even now. It is not the case of the appellant that any such information is forthcoming and it could be safely presumed there was none forthcoming even subsequently, otherwise, the appellant fighting the case jealously would have come up with any application for adducing additional evidence, and the missing person also would not sleep over without asserting his rights my making appearance. In the teeth of the above indisputable circumstances and the lapse of (nearly three decades, I am of the view that the judgments and decrees of the courts below could not be said to be vitiated in any manner calling for interference on account of any infirmity of law or on facts. The second appeal therefore fails and shall stand dismissed. No costs.