Civil death declaration u/s 108 of evidence act
Querist :
Anonymous
(Querist) 28 August 2011
This query is : Resolved
What jurisdiction to file Civil suit for civil death declaration u/s 108 of Evidence Act
Please discuss with ciation.
Raj Kumar Makkad
(Expert) 28 August 2011
Madras High Court
K. Srinivasan vs The Regional Manager (P &Amp; Ir) on 14 February, 2008
DATED : 14-2-2008
CORAM
THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR
W.P.No.22441 of 2005
W.P.M.P.No.24470 of 2005
K. Srinivasan ... Petitioner
Vs.
1. The Regional Manager (P & IR),
Life Insurance Corporation,
Southern Zonal Offices,
L.I.C.Buildings, Anna Salai,
Chennai - 2.
2. The Senior Divisional Manager,
Life Insurance Corporation,
Jeevan Pradash, Johnsonpet,
Salem - 7. ... Respondents
Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records on the file of the first respondent in REF:SZ/IR/ER and dated 9.4.2005 and to quash the same as illegal, incompetent and without jurisdiction and to further direct the respondent to appoint Balasubramanian, petitioner's brother on compassionate ground in suitable post.
For Petitioner : Mr.V.Raghavachari
For Respondents : Mr.V.Parthiban
O R D E R
In this writ petition, petitioner seeks to quash the order passed by the first respondent dated 9.4.2005 and for a direction to appoint his brother on compassionate ground in a suitable post.
2. The brief facts necessary for disposal of this writ petition are as follows:
(a) Petitioner's father Krishnamurthi worked as Higher Grade Assistant in LIC, Dharmapuri Branch with staff No.510503. He was not heard of from 20.4.1993. A complaint was lodged before the police for man-missing and the police failed to find the petitioner's father. The respondent Corporation initiated action against the petitioner's father on the ground that he was not attending duties. (b) According to the petitioner, his family waited for seven years and thereafter instituted a suit in O.S.No.159 of 2000 on the file of District Munsif Court, Dharmapuri for declaration that petitioner's father should be presumed to have attained civil death as per the provisions of sections 107 and 108 of the Indian Evidence Act. The said suit was decreed and a declaration was given to the effect that the petitioner's father attained civil death, by decree and judgment dated 31.1.2002. On the basis of the said decree, the Tahsildar issued legal heirship certificate on 16.7.2002 and a succession certificate was also granted on 19.2.2003. (c) Petitioner further states that as legal heir of the deceased employee of the respondent Corporation, he submitted a representation in the year 1994 seeking compassionate appointment and the respondents have informed that unless there are records to prove the death of petitioner's father, it is not possible for them to consider the case of the petitioner for compassionate appointment, as legal presumption will arise only after the expiry of seven years. (d) Petitioner's mother requested the second respondent to consider the case of her son Balasubramaniam, who is brother of the petitioner for compassionate appointment. Since no reply was given, petitioner filed W.P.No.20805 of 2004 and by order dated 29.9.2004, this Court permitted the petitioner to submit a representation to the first respondent and directed the first respondent to consider the representation and pass orders within 12 weeks. (e) Thereafter petitioner submitted representation on 10.2.2005 and also on 9.4.2005 and the claim was rejected by the first respondent by stating that petitioner's father's presumptive date of superannuation was 31.12.1997 and he would be deemed to be dead only on 20.7.2000 and the said date being after the presumptive date of retirement of the petitioner's father, compassionate appointment cannot be given. (f) The said order is challenged in this writ petition contending that petitioner's father was missing from 1993 and taking his deemed death on 20.7.2000 and rejecting the claim for compassionate appointment stating that after superannuation only petitioner's father's deemed date of death falls is not proper. Therefore petitioner prayed for quashing the said order and issue appointment order in favour of his brother on compassionate ground.
3. Respondents filed counter affidavit stating that the petitioner's father while working as Higher Grade Assistant, remained absent from 15.4.1993 without submitting any leave application and as per the provisions of the Staff Regulations, notice was issued to him on 6.5.1993 calling upon him to report for duty immediately. Since there was no response, another notice was issued by registered post on 13.5.1993, which was returned with the endorsement 'party left'. Thereafter, the respondents initiated disciplinary proceeding against the said K.Krishnamurthi, for his unauthorised absence and issued a show cause notice on 29.11.1993 as per the Staff Regulations. The said show cause notice was also returned unserved. The Corporation affixed the notice and the charge memo on its Notice Board for which also there was no response. Therefore service of the petitioner's father was terminated with effect from 17.3.1994. It is further stated that on 2.5.1997 petitioner's mother sent representation stating that her husband was missing from 20.4.1993. FIR was registered on 4.6.1993 and a certificate was issued by the Police Department on 10.4.1997 stating that the petitioner's father was not traceable. Therefore, petitioner's mother requested for settlement of terminal benefits, for which the Corporation sent a reply on 13.7.1997 to produce legal heirship certificate. Civil Court also declared that the petitioner's father presumed to be died on 19.7.2000 and the petitioner's father having reached the age of superannuation on 31.12.1997 and the date of his Civil death having been declared as 20.7.2000, there was no provision to give compassionate appointment to any legal heir of the petitioner's father. In the counter affidavit it is further stated that the Civil court having given a clear finding about the date of the presumptive death of the petitioner's father, the direction given by the Judicial Magistrate No.I, Dharmapuri, to register the death of the petitioner's father as 20.4.1993 is irrelevant. Hence respondent prayed for dismissal of the writ petition.
4. Heard the learned counsel appearing for the petitioner as well as the respondents.
5. The point in issue is whether petitioner's father is deemed to be dead from 20.4.1993 or whether he is presumed to be died from 20.7.2000, the date of filing of the civil suit in O.S.No.159 of 2000, wherein a decree is passed by the Civil Court to the effect that the petitioner's father is to be presumed to have attained civil death on the expiry of seven years from the date of missing, as per section 108 of the Indian Evidence Act.
6. The facts in this case are not in dispute. Petitioner's father was missing from 20.4.1993. Police complaint was given to search the petitioner's father and the complaint was closed on 14.10.1997 stating that the petitioner's father could not be traced. Civil Suit was filed on 20.7.2000 to declare that he attained civil death as he was not found for seven years. The said seven years period admittedly expired in the year 2000 and the petitioner's father's date of presumptive superannuation was 31.12.1997. Hence the application submitted seeking compassionate appointment based on the succession certificate obtained in the year 2004 was rejected by the respondents.
7. The Staff Regulation empowers the respondent Corporation to give compassionate appointment to a legal heir, who dies while in service or retires, at least five years prior to the date of superannuation.
8. The contention of the learned counsel for the petitioner is that the date of death of the petitioner's father should be taken as 15.4.1993 and not as 20.7.2000 and in support of his contention, the learned counsel heavily relied on the certificate issued by the Department registering the petitioner's father's date of death as 20.4.1993 and registration was made on 5.7.2002 on the basis of the direction issued by the Judicial Magistrate Court in Crl.M.P.No.1992 of 2002 dated 28.6.2002.
9. The learned counsel for the respondents on the other hand submitted that the respondents are not parties before the Judicial Magistrate No.I, Dharmapuri, when the petitioner obtained order for registering the date of death of petitioner's father as 20.4.1993 and the said order is contrary to the Civil Court's finding in which the respondents are also parties, wherein it is clearly declared that the petitioner's father attained civil death on the date of filing of the suit that is on 20.7.2000.
10. The learned counsel for the petitioner as well as learned counsel for the respondent cited certain decisions in support of their respective contentions.
11. On the basis of the above pleading and contentions, the presumption of death of the petitioner's father has to be considered in the light of section 108 of the Indian Evidence Act, 1872. Section 108 of the Indian Evidence Act, 1872 reads as follows: "108. Burden of proving that 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 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 to the person who affirms it."
12. In the decision reported in AIR 1995 SC 995 = 1995 Supp (1) SCC 27 (N.Jayalakshmi Ammal v. R.Gopala Pathar), the Supreme Court considered a similar issue and the burden of proof in such cases. Paragraphs 4 to 8 (in SCC) of the decision read thus, "4. Section 107 of the Indian Evidence Act deals with presumption of continuation of life and Section 108 deals with the presumption of death. Sections 107 and 108 are to the following effect: 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 is dead is on the person who affirms it." "108. Burden of proving that 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 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 to the person who affirms it. The principle discernible from a combined effect of the above two statutory provisions has been summarised in the book, Sir John Woodroffe and Amir Alis Law of Evidence , 15th Edn. (1991) at pages 672-673 thus: The principle of Section 107 is that when once a state of things is shown to exist, there is in law a presumption of its continuance for a period for which such state of things ordinarily lasts. This section is merely a deduction from this presumption. If a person is shown to have been alive within thirty years of the date on which the question whether he is alive or dead arises, there is a presumption of his being alive, and the burden of proving that he is dead lies on him who asserts that he is dead. But this presumption is rebutted, if it is shown that he has not been heard of for seven years by those who if he had been alive, would naturally have heard of him; and, on such proof being given the burden of proving that he is still alive, is, under Section 108, upon those who assert that he is alive. The presumption under Section 108 is as to the fact of death at the time the question was raised and not at any particular antecedent time. There is no presumption also to the cause and circumstances of the death. Section 107 deals with the presumption of continuation of life, whereas Section 108 deals with the presumption of death. Section 108 enacts a proviso to Section 107 by specifying that when a person was continuously absent for seven years and he was not heard by his friends and neighbours he may be presumed to have died and the burden of proving that he is alive shifts on the person that he is alive. The presumption of continuance of life under Section 107 ceases at the expiration of seven years from the period when the person in question was last heard of. The presumption under Section 107 will apply when the question is whether a person was alive or dead and not where the question is whether the person was alive or dead on a particular date.
5. The Judicial Committee of the Privy Council, more than 60 years ago, in the leading case Lal Chand Marwari v. Mahant Ramrup Gir (air 1926 pc 9) stated the law authoritatively thus:
There is only one presumption, and that is that when these suits were instituted in 1916 Bhawan Gir was no longer alive. There is no presumption at all as to when he died . That, like any other fact, is a matter of proof. ..... Now, upon this question there is, their Lordship are satisfied, no difference between the law of India as declared in the Evidence Act and the Law of England (Rango Balaji v. Mudiyeppa ) and searching for an explanation of this very persistent heresy, their Lordships find it in the words in which the rule both in India and in England is usually expressed. These words taken originally from In re Phenes Trusts run as follows: If a person has not been heard of for seven years, there is a presumption of law that he is dead: but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. Following these words, it is constantly assumed not perhaps unnaturally that where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This, of course, is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if, instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one of not less than seven years. (emphasis supplied)
6. In M. Monirs Principles and Digest of the Law of Evidence , Vol. 2, 7th Edn. at page 1145, the law on the point is succinctly summarised thus:
The only presumption enjoined by Section 108 of the Evidence Act being that a person who has not been heard of for seven years or more is dead at the time the question is raised, there can be no presumption of his being dead or alive at any particular time of the period for which he has not been heard of. There is neither any presumption of his being alive for a period of seven years from the time he was last heard of; nor any presumption of his having died immediately after his disappearance, nor any presumption of his being alive or dead at any particular time antecedent to the suit or proceeding in which the question of his being dead or alive arises. The result, therefore, is that where nothing more is shown than that a person has not been heard of for seven years or more, the party, on whom the burden of proving him to be alive or dead at any particular time during the period he has not been heard of lies, will fail. (emphasis supplied)
7. Sarkar on Evidence , 14th Edn., at page 1438, has summarised the law after a detailed survey of the decisions of the various courts thus:
If a person is not heard of for seven years there is a presumption of the fact of death at the expiration of seven years, but the exact time of death is not a matter of presumption but of evidence and the onus of proving that death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. There is no presumption that death took place at the close of seven years. (emphasis supplied) Both the above authors have referred to the decision of the Privy Council aforesaid besides other decisions.
8. In Halsburys Laws of England, 4th Edn., Vol. 17, page 85, paras 115 and 116 the law is stated thus:
115. Presumptions of life and death . There is generally no presumption of law by which the fact that a person was alive or dead on a given date can be established, but the question must be decided on the facts of the particular case. Certain exceptions to this general rule are provided by statute, and, in addition, where there is no acceptable affirmative evidence that a person was alive at sometime during a continuous period of seven years or more and it is proved that there are persons who would be likely to have heard of him over that period, that those persons have not heard of him, and that all due inquiries have been made appropriate to the circumstances, there arises a rebuttable presumption of law that he died sometime within that period.
116. Proof of life or death at a particular time . He who asserts that a person was alive on a given date, or dead on that date, must prove the fact by evidence, since there is no presumption of continuance of life, and, generally, no presumption of death at a particular time. Where there is insufficient evidence in support of the fact alleged, the party bearing the burden of proof will fail.......... The question of 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.
The decision for the Privy Council in Lal Chand Marwari case 2 has also been relied on and referred to in the above treatise."
Further, in paragraph 10 (in SCC) of the Judgment, the Supreme Court held thus,
"......... This crucial fact has not been proved by the plaintiffs. They solely relied on the presumption under Section 108 of the Evidence Act. As we stated earlier, there is no presumption that Govindaswamy died on any particular date or on the expiry of seven years from August 1930. ......" In AIR 1993 Bombay 64 (Subhash Ramchandra Wadekar v. Union of India) also it is held that in the absence of any clear-cut proof to presume the date and time of the death of a person, a person can be said to be died after he was not heard for seven years.
13. In this case, the Civil Court has given a finding that the petitioner's father is deemed to be dead from the date of the plaint. that is 20.7.2000 and not from any anterior date. The said finding having become final, no other date as claimed by the petitioner can be taken as the date of death of the petitioner's father and the petitioner also not proved the said fact and only on presumption the deemed date of death was fixed. Hence the respondents are justified in rejecting the claim of the petitioner seeking compassionate appointment to his brother, on the ground that before the date of the presumptive death of petitioner's father, he reached the age of superannuation and therefore there is no provision to give compassionate appointment to the petitioner's brother. There is no merit in the writ petition and the same is dismissed. No costs. Connected miscellaneous petition is also dismissed.
Index : Yes/No.
Website : Yes/No. 14-2-2008
vr
To
1. The Regional Manager (P & IR),
Life Insurance Corporation, Southern Zonal Offices,
L.I.C.Buildings, Anna Salai, Chennai - 2.
2. The Senior Divisional Manager,
Life Insurance Corporation, Jeevan Pradash,
Johnsonpet, Salem - 7.
N.PAUL VASANTHAKUMAR, J.
Vr
Pre-Delivery Order in
W.P.No.22441 of 2005
& connected MP.
14-2-2008
Guest
(Expert) 28 August 2011
The section 15,16 of C.P.C. draws the jurisdiction. The place missing is the main place to institute the suit.
