Missing person
Arpita
(Querist) 31 December 2011
This query is : Resolved
When the court declares a person to be dead, what is the date of death? Does it trace back to the day when he went missing or the day when the court presumes the person to be dead?
Are there any case laws where the Supreme Court has discussed this question?
Deepak Nair
(Expert) 31 December 2011
When a person goes missing and is not traceable and no information regarding such person whether dead or alive for 7 (Seven) years from the date of missing, such person is considered as dead.
In my opinion, the date of completion of the said 7 years is considered as date of death.
Before confirming the same, let us wait for the views of experts.
Sailesh Kumar Shah
(Expert) 31 December 2011
A person, who is not heard about 7 years, it is presumption in law that he is death. (Section 108 of The Indian Evidence Act)
Arpita
(Querist) 01 January 2012
Section 107 deals with the presumption of death. It does not say anyhting regarding the time of death. It has to be proved by conclusive evidence or direct evidence produced by the party.
Deepak Sir, don't you think the date of death should be the day when he went missing. We waiting for these seven years to check whether he is alive or not. Once, it is presumed by the court that he is dead, the time and day of death should be the when he was last heard of. According to me, it should be the day when he went missing.
Guest
(Expert) 01 January 2012
Dear Deepak,
Missing person, if remained untraceable for 7 years or more, cannot be treated as alive for all those 7 years and assumed to have died only after completion of 7 years. If remained untraceable for all those 7 years even after all the efforts of relatives and police did not bring any fruit, the person has to be assumed as dead from the very first day he went missing. To avoid any uncertainty for indefinite period, the law provides for the maximum time limit, whithin which the misplaced person can be waited to treat him dead, if he/she does not return back, but does not spells out anywhere that the effective date of his/her death should be that which happens only after expiry of initial 7 years of his having gone missing.
prabhakar singh
(Expert) 01 January 2012
Dear Arpita!
First of all greet you a very happy new year!!!!!
But on your query front i advise you to buy the view of Mr.Deepak.Though doubt fully but he has stated correct legal position.
Look the things are so that neither Section 108 of Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn 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 un-rebutted for failure of the a contesting party to prove that such man was alive either on the date on which the dispute arose or at any time 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 proof of the date or time of death.
prabhakar singh
(Expert) 01 January 2012
The law stated by Sarkar on Evidence as also the leading authority of Judicial Committee of the Privy Council in Lal Chand Marwariv. Mahant Ramrup Gir, AIR 1926 PC 9, which has stood the test of the time for over three quarters of a century by now should be gone through by all of you.
prabhakar singh
(Expert) 01 January 2012
Lal Chand Marwari vs Ramrup Gir on 5 December, 1925
Equivalent citations: (1926) 28 BOMLR 855
Author: Blanesburgh
Bench: Phillimore, Blanesburgh, J Edge
JUDGMENT
Blanesburgh, J.
1 These are consolidated appeals by the defendants in four out of eight suits instituted by one Ramrup Gir in the Court of the First Class Sub-Judge at Muzafferpur on November 30, 1916. The suits were brought on the allegation that the plaintiff, as the then Mahant of an asthal or math at Paprikhan Karan, was entitled to recover from the defendants different properties, endowments of the math, then in their possession These properties had, it was alleged, been alienated without warrant by Bhawan Gir, deceased, the immediate predecessor as mahant of the plaintiff. The suits, as they progressed, were amended by the joinder as co-plaintiffs of three persons to whom in consideration of their supplying funds for the conduct of the litigation Ramrup Gir had agreed to transfer when recovered certain portions of the properties in question. As so amended they were heard at length by the learned Subordinate Judge, and, on appeal, by the High Court at Patna, where many issuee were raised and strenuously contested. Of these one only remains for determination by their lordships, namely, the issue of limitation, The learned trial Judge hell that the suits were barred by statute. The High Court, on appeal, held that they were not, and made decrees for possesion of the properties with mesne profits. It is against these decrees and on the ground that the suits should have been dismissed as being out of time that the present appeals have been brought and argued.
2. The math in question has a considerable history,, It is a math of the Sanyasis who am celibate and have renounced the world. The properties in suit had been amongst its endowed properties for a period of nearly one hundred and fifty years. They stood in the name of the mahant for (the time being, but he had no right to alienate them otherwise than for necessity. The income from them at one time, at all events, amounted to Rs. 4,000 a year, approprial ed not to a single deity, but for Puja of Siuji, the principal deity,. for the Pujas of the other established deities of them math and in the entertainment of mendicants and ascetics. These matters, all in dispute in the Courts below, were not again raised in contest before the Board, and may now be taken to be accepted.
3. In the year 1880 or shortly afterwards Bhawan Gir became mahant of this asthal or math. He had, as his elder Chela, the plaintiff Ramrup Gir, and, an his younger Chela, one Harihar Gir. Bhawan Qir was drunken immoral and dissolute, and, as might be expected of such a person, profligate and extravagant, Portions of the endowed properties he mortgaged without justification by way of security : or loans made to himself. Other portions equally without justification he purported to sell outright. The proceeds in every case were, it can hardly be doubted, spent mainly, if no; entirely, upon himself. The properties mortgaged have since been sold under decrees made in suits brought to enforce the securities. And so it has come about that those properties now in dispute have all of them been in the exclusive possassion of the defendants or their predecessors-in-title as for absolute interests for periods exceeding on November 30, 1916, in every instance a term of twenty-six years of continuous duration.
4. By 1888 Bhawan Gir had denuded himself and the math of all its endowed properties. In March, 1892, he made the asthal over to the plaintiff, and, as the plaintiff recites in a deed of sale of June 15, 1917, left the place for good. And he has never returned. He went on pilgrimage and Harihar Gir went with him. Some weeks later Harihar Gir came back alone and reported to the plaintiff that Bhawan Gir had died in his arms at Hardwar on April 27,1892,
5. The plaintiff accepted that statement. It was, of course, then greatly to his interest to do so. He had become mahant if it were true. It is, however, contrary to his interest now to accept it. Indeed, if the fact be as stated it is fatal to his present claims. Yet in his evidence in these suits-to his credit be it said-he has again declared his belief that Harihar Gir's statement as to Bhawan Gir's death at Hardwar in April, 1892, is in accordance with fact, And his actions since the date of Harihar Gir's return, if they be honest, have been consistent, and consistent only with a constant belief that Bhawan Gir was dead. Almost at once he performed his Bhandara and Shraddh, and he was himself instituted as mahant of the math and got Chudder and Pagree and was installed in the Gaddi. Three yeers later, that is to say, on April 16, 1895, with money found by others on terms analogous to those on which the funds for the present litigation have been obtained, he instituted a series of suits against the present defendants or their then predecessors-in-title to recover the properties on the allegation that he had on the death of Bhawan Gir succeeded thereto as mahant. In those suits the plaintiff gave evidence to the effect just stated. Harihar Gir, too, was called as a witness, and he directly deposed to Bhawan Gir's death in his presence on the date already given. His statements at that date were of course highly interested, Moreover, it was essential to the plaintiff's case then that they should be true. The learned trial Judge, however, disbelieved them, accepting as preferable, and perhaps as true, a body of evidence adduced by the then defendants-suspicious only because of its volume and circumstance-that Bhawan Gir was alive after April, 1892: that indeed he had been saen alive in 1895 after action brought. For the reason therefore that the plaintiff had failed-to establish the fact essential to the validity of his claim, namely, that Bhawan Gir waa dead when the suits were instituted, the trial
6. Judge by decrees dated January 27, 1896, dismissed them all with costs. The plaintiff appealed to the High Court, but the learnerd Judges of that Court, finding themselves unable on the materials, before them to review the trial Judge's finding on this issue of fact, by orders cated November 80, 1897, dismissed the appeals. And so that litigation ended. Attention must be given to this last date. It w 11 be found that the plaintiff sets great store by it in these proseedings.
7. The plaintiff in 1905 again performed the Bhandara of Bhawan Gir and was again installed in the Gaddi, although in his own view, as he stated in evidence in these suits, that cere-money was neither essential to his institution nor redundant in its repetition. On November 30, 1916, he instituted the present litigation. The date is significant. Required by Order VII, Rule 1 (e), cf the First Schedule to the Code to set forth in. his plaint the facts constituting his cause of action, and when it arose, the plaintiff in each of the plaints alleges that the Judges of the High Court in the ear ier proceedings had, on November 30, 1897, accepted the then defandant's statement that the plaintiff's Guru, mahant Bhawan Gir, was then alive : that no particulars regarding him had been known for seven years from the date of that judgment, and that it was necessary for the plaintiff to accept November 30, 1904, as the date of death of his Guru when the cause of action accrued to him. His suits were in time-such is the implication of the allegation, and such is his way of establishing it-in that they were commenced within twelve years to a day from November 80, 1904. This view is undoubtedly mistaken. It would be fatal to the plaintiff if it were not. For his case on his chosen foundation fails upon the facts. It is not correct to say that the High Court in the earlier ltigation found that Bhawan Gir waa alive on November 30, 1897. What that Court did find, affirming the Subordinate Judge, was that he had not been proved to be dead on April 15, 1895. The latest date at which anyone deposed to hia being alive was a later date in the same year. And there is no evidence, either in that litigation-if it may be regarded-or in this that he has ever since been heard of, So far indeed as the present suits are concerned the only testimony adduced, apart from that of Harihar Gir, is that he has been neither seen nor heard of since he left the math in March, 1892. Putting the case therefore at its highest for the plaintiff-that is excluding altogether from consideration both Harihar Gir's direct evidence of death and the plaintiff's belief in its truth-the position is that Bhawan Gir has not been seen or heard of since the year 1895, If so, on the principle set up by the plaintiff, he must; be presumed to be dead by the end of 1902, Accordingly, these suits, commenced only in 1916, are already statute barred as against the defendants.
8. But the law really is that on the facts now assumed there is no presumption as to Bhawan Qir being dead either in 1902 or 1904. 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. And their lordships would here observe that it strikes them as not a little remarkable that the theory on this point, on which the plaintiff's pleader hazards his whole case, is still so widely held, although it has so often been shown to be mistaken. The learned Judges of the High Court have in these suits pointed out the plaintiff's error. Yet, in another part of their judgment, if their lordships are not mistaken, they have themselves unconsciously fallen into it, They have made a decree in the plaintiff's favour because they had, as they thought, no reliable evidence as to the date of Bhawan Gir's death, and because in their judgment it was for the defendants to prove that date if they relied on it. Yet at the same time they have acceded to the plaintiff's claim for mesne profits which, at all events as claimed, are those profits accruing three years prior to the institution of the suits. This imports that Bhawan Gir was dead at that date. But if he was, then the same evidence showed that he had died many years before. The evidence, indeed, if regarded at all, required the Court not to allow mesne profits but to dismiss the suits altogether.
9. Now upon this question there is, their lordships are satisfied, no difference between the law of India as declared in the Evidence Act and the law of England, (Rango v. Mudiveppa (1898) I.L.R. 23 Bom. 206,306), 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 Phene'a Trusts (1870) L.R. 5 Ch. 139, 144 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 be 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 yeara lies upon the person who claima a right to the establishment of which that fact is essential.
10. Following these words, it is constantly assumed-not perhaps unnaturally-that where the period of disappearance exceeds seven years, death, which maj 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 j eriod 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."
11. To resume, however, it is manifest that the attempt made by the plaintiff in his plaint to comply with Order VII, Rule 1(e), and set forth the date when his cause of action arose has failed him on the facts. The result is to disclose, so far as he is concerned, a very serious positior. It is made plain by the plaint that as against him the defendants had at the institution of the suits been by themselves and their predecessors in adverse possession of the properties in question for more than twelve years- in point of fact since 1895 at east when the earlier litigation against them was commenced to the plaintiff, and which is the last year in which anyone proposes that Bhawan Gir was seen alive. The plaint itself accordingly discloses a state of things to which Article 144 of the Indian Limitation Act is applicable. In such circumstances it may well be that it is the obligation of the plaintiff by the law of India a as it is by the law of England to satisfy the Court that his section is not barred by lapse of time. See as to India-Rajah sahib Perhlad Sein v. Maharajah Rajender Kishore Sing (1869) 12 M.I.A. 292,,334, 337, Mahomed Ibrahim v. Morrison (1878) I.L.R. 5 Cal, 36 as to England-" There ia no court," said the Court of Queen's Bench in Doe dem. Knight v. Nepean (1833) 6 B & Ad. 89, 94 " that; the lessor of the plaintiff must recover by the strength of his own title; and in order to do so, must prove that he had a right to enter on the lands sought to be recovered, within twenty years before the ejectment brought."
12. To all of which may be added the comment by Lord Justice Giffard on Doe dem. Knight v. Nepean, that the onus of proving death of any person at any particular period must rest with the person to whose title that fact is essential : In re Phene's Trust (1870) L.R. 5 Ch. 139, 151-2.
13. On this footing, therefore, the plaintiff here would fail in the absence of evidence of the death of Bhawan Gir within twelve years before the institution of the suits.
14. But it is unnecessary in the state of the evidence in this case to proceed upon any such strict view of the plaintiff's position. He has himself, and in these suits, supplied affirmative evidence, which their lordships cannot disregard. Harihar Gir was called as a witness on his behalf, In his evidence in chief ha solemnly deposed that Bhawan Gir died in his presence at Hardwar in April, 1892. In cross-examination he added that he himself performed his funeral ceremonies, and that if anybody said that he did not die in April, 1892, it would be false, And by way of confirmation the plaintiff stated in his evidence, as their lordships have already observed, that he himself believed that Harihar Gir was telling the truth in this matter, while, as has also been shown, his own actions and claims ever since have alone been consistent with that belief.
15. To their lordships it seems impossible that such evidence adduced by the plaintiff himself, fatal as it is to his case, can be ignored. They are not blind to the difficulty, They do not forget the wealth of circumstantial evidence to the effect that Bhawan Gir was alive as late as 1895 adduced by the defendants or their predecessors-in-title in the earlier litigation, and then accepted and acted upon by the trial Judge to the plaintiff's undoing. They do not forget that at that time such evidence was vital to the defence, nor do they fail to note the absence now of any counterpart to it when the lapse of time has made it to the highest interest of the defendants to accept the plaintiff's story that Bhawan Gir has been dead all these years. Their lordships bear all this in mind, and see no occasion to commend these highly sophisticated tactics of the defendants, But they find it impossible to ignore the consistent attitude of the plaintiff, supported now by uncontradicted direct evidence of death and a wealth of concurring testimony to the effect that since Bhawan Gir abandoned the math in 1892 with Harihar Gir he has not been seen or heard of. If these suits were being brought against defendants neither parties nor privies to the earlier litigation there could, in their lordships' view, have been no question that the evidence now adduced on behalf of the plaintiff would have been completely destructive of his case, Is the position of the defendants so compromised by their attitude in the earlier litigation that they are in effect estopped from deriving benefit from the plaintiff's evidence of death even if it now by reason of the lapse of time has gained so greatly in force ? It is of course hard upon the plaintiff that evidence rejected in 1895, when it would have helped him, should now he accepted when it hurts him. On the other hand, it must be remembered that the complete disappearance down to the present time of Bhawan Gir and the now disinterested character of the evidence adds to the plaintiff's story of his death a strength from external circumstances altogether lacking in 1895. Moreover, to ignore the evidence altogether would be to fly in the face of the statute.
16. The difficulty of the plaintiff's present position in this matter was not, it would seem, at all appreciated in the Courts below, Das J. in the High Court, for instance, proceeded upon the footing that his evidence on thia point was adduced only in the earlier proceedings, and the learned Judge disposed of the point:-
It is quite true that it was the plaintiff's case in the suit which be instituted in 1895 that Bhawan Gir died on the 15th Baisak, 1299, but that case was not accepted by the Courts.
17. That is all. To the evidence in the present suit the learned Judge makes no allusion. It is that evidence which their lordships find themselves unable to ignore. The plaintiff must, as it seems to them, take the consequences of solemn testimony given by himself and adduced on his behalf.
18. This disposes of the case, and it is unnecessary for their lordships to deal with the important and difficult question whether here the statute did not commence to run in favour of the defendants from the dates of the wrongful alienations of the properties or at all events from the date of his final abandonment of his office by Bhawan Gir and not only from his death. Whether, in other words, the case is governed by the decisions of which Damodar Das v. Lahhan Das (1910) L.R. 37 I.A. 147 : S.C. 12 Bom. L.R. 632 may be taken as the leading authority, or by the line of authority of which Vidya Varuthi Thirtha v. Balusami Ayyar (1921) I. L, B 44 Mad. 831 : S.C. 24 Bom. L.R. 629, F.C. may be taken as typical, their lordships while not pronouncing upon it have given very careful consideration to this interesting and difficult question. Upon it. they say no more than this, that they must not be taken to accept the view with reference to it propounded by the High Court. So far aa they are concerned the question remains entirely open to be determined when it arises.
19. For the reasons above given, however, they are of opinion that the decree of the High Court should be recalled and that of the trial Judge restored, and they will humbly advise His Majesty accordingly. The respondents must pay to the appellants their costs before the Board and in the High Court.
prabhakar singh
(Expert) 01 January 2012
Peter Murphy states in 'A practical approach to Evidence' (Second Edition, pp.460-461) -- "The presumption is only that the subject died at some time during the period; his death on any particular day will not be presumed, and must be proved by evidence if in issue".
And it was quoted with approval in AIR 2004 SC 2070.
The other cases to have bearing on the point are 1995 AIR s c995= 1995 SCC Supl. (1)27 and Darshan Singh & Ors vs Gujjar Singh (Dead) By Lrs. & Ors on 8 January, 2002.
V R SHROFF
(Expert) 01 January 2012
Arpita,
I enclose one Judgement, that declare the
DATE OF DEATH IS DATE A PERSON MISSING & NOT HEARD OF.
Adv Shroff
01-01-2011
Date of death is from the date Person missing o not heard of.
Indira vs Union Of India (Uoi) on 18 March, 2005
Equivalent citations: 2005 (3) KLT 1071
Author: C R Nair
Bench: C R Nair
JUDGMENT
C.N. Ramachandran Nair, J.
1. The petitioner is the wife of one Mr. M. Radhakrishnan who while in the service of the Army as a Sepoey was found missing from 5.10.1995 onwards. The Army declared him a deserter under Section 106 of the Army Act and after waiting for three years, on 5.11.1998 the said Mr. Radhakrishnan was dismissed from service. The dismissal is communicated to his wife namely, the petitioner. While counsel for the petitioner contended that petitioner's husband is missing while he was in service and by virtue of Section 108 of the Indian Evidence Act, 1872 there is a presumption of death after seven years from the date of missing and therefore, petitioner's husband should be taken to have died in service and all consequential benefits should be given to his family, the Additional Central Government Standing Counsel appearing for the respondents contended that since petitioner's husband was declared as a deserter and was dismissed from service, no benefits including pension are available to the family members.
2. The petitioner's husband joined service in the Army as a Sepoey on 24.10.1979. His tenure of colour service was 17 years and he had to serve another two years under reserved service. However, if the service person becomes sick and is declared low medical category, he is not bound to complete the two years of reserved service. It is conceded by respondents that the petitioner's husband turned sick and he was admitted in the Military Hospital, Jabalpur on 22.3.1995. Since petitioner's husband had to undergo major surgery, he was sent to Base Hospital, Lucknow and was admitted there on 25.3.1995. The petitioner has produced Ext.P 1 letter written by petitioner's husband to their daughter stating that he had to go to Lucknow for a surgery which is a position conceded by the respondents. The A.C. G. S .C. appearing for the respondents submitted that the medical records at Lucknow Hospital pertaining to petitioner's husband are not traceable and therefore, the exact date of admission, the date of surgery and the time he spent in the hospital are not available. However, it is admitted that the petitioner's husband underwent surgery and thereafter reported at the Army Unit at Bangalore on 4.10.1995 wherefrom he was advised to go to Jabalpur and attend the Medical Board for considering his medical fitness after surgery. According to the respondents, petitioner's husband though was to report at the Military Hospital, Jabalpur, for examination by Medical Board, he never reached there. After reporting at Army Office at Bangalore on 4.10.1995, petitioner's husband was not heard of and is treated missing from 5.10.1995 onwards. The Army conducted enquiry under Section 106 of the Army Act, first declared the petitioner's husband absent and later declared him a deserter and then reported the matter to the Police who could not trace him so far. The tenure of petitioner's husband would have been over on 28.2.1996 if he was declared low medical category and in any case his service would have been over with another two years reserved service i.e., by 28.2.1998. However, strangely the Army dismissed him from service only with effect from 5.11.1998. If a service person deserts while in service, he is liable to be declared so under Section 106 of the Army Act and can be dismissed from service for t' at reason. However, the question is whether in this case the presumption of death of petitioner's husband is available under Section 108 of the Evidence Act and if so, what are the consequences. There is no conflict between Section 106 of the Army Act and Section 108 of the Evidence Act. While the Army is entitled to declare a person who absents from service a deserter, Section 108 of the Evidence Act entitles to draw a presumption of death for all purposes after 7 years from the date, a person is not heard of or missing. The petitioner's husband is not heard of for the last nine and a half years is a fact which cannot be denied by anyone including the respondents. Even though Army reported to Police that petitioner's husband deserted the Army and he should be apprehended, the Police have not so far been able to trace the petitioner's husband. Even though an Army person found missing while in service can be declared a deserter under Section 106 of the Army Act and can also be dismissed from service for desertion, the position changes as and when presumption of death of such person is available under Section 108 of the Evidence Act. In other words, if a person declared a deserter and dismissed from service does not surface of is not traced in seven years, then Section 108 of the Evidence Act takes over the situation and all consequences will follow. In this particular case it is admitted that the petitioner's husband after surgery and treatment reported at the Army unit at Bangalore on 4.10.1995 and was requested to proceed to the Military Hospital, Jabalpur for examination by Medical Board for considering whether he has become low medical category for release from service. It is also on record and admitted by the respondents that petitioner's husband was admitted in the Army Hospital at Jabalpur on 22.3.1995 and was referred to the Base Hospital at Lucknow where he underwent major surgery. Since the records of the Army Hospital at Lucknow could not be traced by respondents, the date of release of petitioner's husband from Hospital after surgery is not known. However the Army has no case that he was missing at any time before he reported at the Army Office at Bangalore on 4.10.1995. The respondents have also no case that petitioner's husband was on leave from 4.10.1995 onwards i.e. after he reported at the Army unit at Bangalore. Since petitioner's husband admittedly reported for rejoining duty after treatment at Bangalore on 4.10.1995 wherefrom he was referred to Medical Board at Jabalpur, this Court has to only assume that petitioner's husband was missing while in service from 5.10.1995 onwards. It is to be noted that petitioner's husband after joining service on 24.10.1979 served the Army for 16 years and became sick only towards the end of his service as his service would have been over after 17 years on 28.2.1996. The details furnished go to show that petitioner's husband was admitted in the Military Hospital, Jabalpur and was sent for major operation for the Backbone at the Base Hospital, Lucknow where he is said to have undergone surgery. He was also referred to Medical Board for considering his eligibility to declare as a low medical category. In the normal course petitioner's husband would have been declared a low medical category and would have been released from service after full tenure i.e. on 28.2.1996 which is a matter of only four months from the date of his missing i.e. on 5.10.1995. Desertion is a conscious act by somebody who has otherwise no escape from the Army. Even though desertion can be presumed when a serving person is found missing, every case of missing of a service person need not be a case of desertion. Since petitioner's husband had almost completed his normal tenure and by virtue of his serious medical problem, he would have got exemption from two years reserved service, there was no need for his deserting the Army as he was otherwise eligible for release with all the benefits within a couple of months from the alleged date of desertion. Moreover if he wanted to desert, there was no need for him to report for rejoining duty at Bangalore on 4.10.1995. Section 106 of the Army Act of course does not require evidence of any conscious overt act of keeping out of service to declare a missing person a deserter. There may be cases where the missing person may be dead or permanently disabled mentally or physically which may not come to the notice of the Army or the family. Even in such cases also, the Army may be justified in declaring him a deserter but the position will continue only until expiry of seven years from the date of missing of the person when presumption of death is available under Section 108 of the Evidence Act. Therefore, as and when presumption of death is available under Section 108 of the Evidence Act, the whole position changes and the presumption of death supercedes the declaration of the person a deserter under Section 106 of the Army Act. Consequently the family members can claim all benefits as if the man is dead on the date of his missing. Since it is admitted that the petitioner's husband has not surfaced and could not be traced after 5.10.1995 inspite of effort to trace him by the Police at the request by the Army, the presumption of his death as on 5.10.1995 is available under Section 108 of the Evidence Act. Since petitioner's husband was admittedly sick and had undergone major surgery, the possibility of his death could not be ruled out. It is regularly reported in newspapers and media that many dead bodies surfacing here and there are all buried without anybody identifying such bodies. Going by the statement of the respondents petitioner's husband should have been on his way from Bangalore to Military Hospital on the date of missing that is, 5.10.1995. Apart from the presumption of death, the circumstances do not suggest any chance of petitioner's husband deserting the Army towards the end of his career.
In the circumstances, O.P. is disposed of directing the respondents to grant all benefits to the petitioner and other family members treating as if petitioner's husband Mr. M.Radhakrishnan died in service on 5.10.1995. The respondents shall grant the benefits such as release of retirement benefits, grant of pension, appointment on compassionate grounds etc., within a period of four months from the date of production of copy of this judgment by the petitioner. The petitioner and family members will make required application along with copy of this judgment before the concerned authority for compliance of the judgment without any delay.
V R SHROFF
(Expert) 01 January 2012
Arpita,
case law for u.
Date of death is from the date Person missing o not heard of.
V R SHROFF
(Expert) 01 January 2012
Arpita,
case law for u.
Date of death is from the date Person missing o not heard of.
Allahabad High Court
Ravi Shankar Tewari vs Police Maha-Nideshak And Ors. on 11 December, 1997
Equivalent citations: (1998) 2 UPLBEC 1183
Author: O Garg
Bench: O Garg
JUDGMENT
O.P. Garg, J.
1. By means of this writ petition, under Article 226 of the Constitution, it is prayed that the order dated 20.8.1996, Annexure-8 to the writ petition, be quashed and the respondents be directed to appoint the petitioner under the U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974 (hereinafter referred to as 'the Rules of 1974').
2. Heard Sri A.K. Tewari, learned Counsel for the petitioner as well as learned Standing Counsel on behalf of the respondents.
3. Sri Ganga Prasad Tewari, employed as Constable (No. 1809) in Civil Police, was posted at South Malaka Police Station, Kotwali, district Allahabad. He was found missing from 16.10.1985 onwards. His family members were informed of the said fact on 23.12.1985. Retiral benefits were allowed to the family of Sri Ganga Prasad Tewari in the year 1991 treating him to be dead. The petitioner, who is son of Sri Ganga Prasad Tewari applied for appointment under the Rules of 1974 on compassionate ground. It is alleged that since Ganga Prasad Tewari, father of the petitioner has not been seen alive since 16.10.1985, after the expiry of period of seven years a presumption has to be drawn in view of the provisions of Section 108 of the Evidence Act that he has died and therefore, treating him to be dead, the petitioner is entitled to be appointed under the Rules of 1974 as one of the dependents of late Ganga Prasad Tewari. The petitioner made a number of representations, time and again, to the respondents, but they were not attended to. It was only on 6.2.1996 that the respondent No. 4 required the petitioner to file certain documents and to complete the formalities. The petitioner was medically examined and he was physically found fit. All the requisite formalities were compiled but no appointment was forthcoming. Therefore, the petitioner made a representation again on 6.8.1996 in reply to which the impugned order dated 20.8.1996 was passed intimating the petitioner that there is no provision under the Rules of 1974 and the Government Orders for appointment of a dependant of an employee who was found missing and was not physically dead.
4. A counter-affidavit has been filed by the respondents, in which the preliminary plea taken is that the petitioner is not entitled to the benefit of Rules of 1974 as Ganga Prasad Tewari did not meet with his death but was found missing.
5. The moot point for consideration and determination in the present petition is whether the benefits of Rules of 1974 can be extended to the dependants of a person who was found missing and was not seen alive during the past seven years by those who in the ordinary course would have seen him, meaning thereby, whether in the case of presumptive civil death under Section 108 of the Evidence Act, the benefit of Rules of 1974 can be extended to the dependant of the employee whose death is to be presumed after lapse of a period of seven years from the date he was missing. All other questions are ancilliary in nature as the petitioner would swim or sink with the finding on the point, mentioned above.
6. It is an indubitable fact that Ganga Prasad Tewari, father of the petitioner was found missing right from 10.10.1985 onwards from South Malaka Police Station, Kotwali, Allahabad where he was last posted as a Constable. There is no evidence of the fact that he met with physical death. Section 108 of the Evidence Act provides 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."
Section 107 of the Evidence Act deals with the presumption of the continuance of life while Section 108 raises a presumption of death if the person has not been heard of for seven years. The effect of these two provisions in the Evidence Act is that the presumption of life prevails until displaced by the proof of actual death or proof of facts raising the presumption of death and, in the latter case presumption of death prevails till actual existence of life is proved. While initially the presumption of life exists over the whole period of 30 years when the same is displaced the presumption of death exists over the whole period of 'unheard of. Any way, in view of categorical pronouncement of their Lordships of the Privy Council in Lal Chand Marwari v. Ramrup Gir, A.I.R. 1926 P.C. 9, there is no confusion, as it has been held :
"It is constantly assumed 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 is not correct. 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 stated more accurately, if, instead of speaking of a person who had not been heard of for seven years, it describes the period of disappearance as one of not less than seven years. 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."
7. In the instant case, there is no dispute about the fact that Ganga Prasad Tewari was found missing right from 16.10.1985 onwards and that since then, he has not been seen alive or heard of for the last 7 years by those who would have naturally 'heard of ' him if he would have been alive, a presumption about the death of Ganga Prasad Tewari in the circumstances may be raised in view of the provisions of Section 108 of the Evidence Act. It was for this reason that the Department has released all the dues in favour of the family members of Ganga Prasad Tewari treating him to be fictionally dead as a presumption of his civil death has arisen.
8. Now the moot point for consideration is as to on which date the death of Ganga Prasad Tewari is to be presumed as the presumption of civil death or fictional death under Section 108 of the Evidence Act tantamounts to physical death in the eyes of law for giving the benefits to the heirs/legal representatives and dependants of the deceased. At what time within the period of seven years, a person has 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 seven years lies upon the person who claims a right to the establishment of which that fact is essential. Once the rule of presumption is invoked on the ground that a man has not been heard of for 7 years the beneficiary or the claimant is entitled to ask for the relief on the footing that he is dead. In Parikhit Muduli and Ors. v. Champa Devi and Ors., A.I.R. 1967 Orissa 70, it has been held that the presumption under Section 108 of-the Evidence Act is available at the point of time when the party approaches the Court for necessary relief. There cannot be any presumption as to the actual date of death and this fact has to be proved like any other fact. In some cases, it was observed that there is also no presumption that on the close of 7 years, death has occurred. In this connection, a reference may be made to A.I.R. 1962 Orissa 3, Mukund Behera and Ors. v. Subarna Begum and Anr. and A.I.R. 1953 T.C.114, Rama Bhai v. Saraswati, in which it was held that where there is a dispute in a suit as to the date of death of a person not heard of for seven years, in the absence of any evidence of either side, the Court should draw a presumption that he was dead on the date of the suit. The same view has also been taken by the Calcutta High Court in a case reported in ILR 1910 (37) Calcutta 103, Narki v. Lal Sahu and the Andhra Pradesh High Court in A.I.R. 1957 Andhra Pradesh 380, Kottapalli Ven Kateswarlu v. Kottapalli Capayya and Ors., in which it was ruled that death can be presumed to have occurred on the date on which the suit was filed. It may be presumed that the man is not alive by the date of the institution of the suit; but the presumption cannot be that he is dead on that date. To the same effect are the observations made in A.I.R. 1958 Madras 463, Life Insurance Corporation v. Shashi Ammal, and A.I.R. 1959 Assam 15- Sarju Kairi and Ors. v. Panchanand Sharma and Anr.
9. Learned Counsel for the petitioner maintained that the death of the petitioner shall be presumed as having taken place on 16.10.1985 itself or within a few days thereafter as a dead body was found lying in a dustbin, which was said to be that of Ganga Prasad Tewari. This submission of the learned Counsel does not find support from any evidence, whatsoever. Mere bald statement of the learned Counsel cannot be accepted in the absence of any concrete evidence. There is no evidence worth the same on record to indicate that the alleged recovery of the dead body from the dustbin was that of Ganga Prasad Tewari. If this would have been a fact, the question of application of the provisions of Section 108 of the Evidence Act would not have arisen. As pointed out above, the provisions applicable only in those cases where a person missing was not heard of within a period of seven years from the date from which he was missing" learned Counsel for the petitioner cannot be allowed to traverse beyond the pleadings. In the alternative, the learned Counsel for the petitioner submitted that the death of Ganga Prasad Tewari be presumed to have taken place on 16.10.1985 on which date, he was missing. In support of his contention, the learned Counsel for the petitioner placed reliance of AIR 1993 Bombay 64, Subhash Ram Chandra Wadekar v. Union of India; AIR 1976 Calcutta 356, Chandi Charan Naskar v. Bhagyadhar Mondal and Ors.; A.I.R. 1964 Allahabad 310, Ram Singh v. Board of Revenue, U.P., Allahabad and Ors.; AIR 1970 A.P. 246, Tadepalli Ram Rathnam v. Kantheti Varadarajlu and Ors. and AIR 1988 NOC 76, Ker. Vareed v. Sukumari and Ors.
I have carefully studied all these five rulings and find that in. none of these rulings it has been mentioned that there shall be a presumption about the death of missing person on the date from which he was missing. From the rulings relied upon by the learned Counsel for the petitioner as well as other rulings mentioned above, it follows that ordinarily, a missing person is presumed to be dead on expiry of seven years period and not earlier.
10. The legal position which has crystallised is that the time of the death of a missing person is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within 7 years lies upon a person who claims a right to the establishment of which that fact is essential. As said above, there is no evidence to indicate the precise time on which Ganga Prasad Tewari may be taken to have died. The presumption of his death would arise, in the absence of any evidence to the contrary, only after the expiry of the statutory period of seven years, i.e., in October, 1992. The date of birth of Ganga Prasad Tewari was 17.6.1929 and in the ordinary course, if he had not disappeared on 18.10.1985, he would have retired from service on attaining the age of superannuation i.e. on 30.6.1987, meaning thereby that he stood retired prior to the date on which his civil or fictional death has to be presumed after the expiry of seven years period. Since the presumptive death of Sri Tewari occurred in the year 1992 and he would have stood superannuated in the year 1987, it cannot be said that he died in harness. The dependants of Sri Tewari, or for that matter, the petitioner, cannot take advantage of the provisions of Rules of 1974.
11. There is yet another aspect of the matter. The expression 'death', which implies physical cessation of life in a human being, as occurring in the Rules of 1974, has to be interpreted in such a manner as would accentuatel the purpose and object of the Rule making body. Section 108 of the Evidence Act has been engrafted with an avowed object of raising presumption about the fictional death if the said fact is called into question for resolving the disputes relating to inheritance, devolution and conferment of certain benefits which are available as a matter of right, that is to say, where enforcement of a 'right', that is to say, where enforcement of a 'right' is dependent on the establishment of the fact of death-physical or otherwise. Now the question is whether the provisions of Rules of 1974 embrace within their ambit fictional, national and presumptive death of an employee? The time of death presents new and very important problems. The totality of mankind regards a person as dead when the earthly life has'ended totally and forever. The definition of death traditionally accepted has been 'total' stoppage of circulation of the blood and the cessation of the animus and vital functions consequent thereon, such as, respiration, pulsation, etc. ('heart death).' But the availability of methods not heard of and not even dreamt of-thirty or forty years age, particularly in the area of artificial and indeterminate prolongation of life and in the area of transplantation of organs and tissues is having a significant impact upon the medical profession and the general public. Similar problems are faced in the implementation Rules of 1974 under which employment is granted not as a matter of right, but on compassionate ground to enable the family to tide over the sudden crisis. There has been a good deal of obfuscation on the issue with regard to the considerations; which should guide while giving appointment in public service on compassionate ground. As a Rule, appointment in the public service should be made strictly on the basis of open invitation applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Government nor the public authorities are at liberty to follow any other procedure or relax qualifications laid down by rules for the post. There are, however, some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the Rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such appointment. The sole object of granting compassionate employment is thus to enable the family to overcome the sudden financial crisis which has erupted on account of death of the bread-winner.
12. The expression 'death ' has, therefore, to be given meaning in the light of the object and purpose for which Rules of 1974 have been brought into existence by way of an exception to the general Rule that the appointment in public service should be made on the basis of open invitation and merit. The object of the Rules is to mitigate the hardship and to prevent destitution in the family of the deceased employee. This object would be frustrated if the benefit of appointment on compassionate ground is deferred to a period of more than 7 years. During the long period of 7 years, complexion of the family, its needs and requirements may totally change. It is possible that after 7 years, period, the family which was in penury, may become affluent. The financial crisis which was sought to be tide over immediately on the death of the deceased may not persist after the long period of seven years. Therefore, the very purpose of the Rules would be frustrated if benefit of appointment on compassionate ground is claimed after the statutory period of 7 years when the death of a missing employee is to be presumed. Normally, the Rules of 1974 would not apply to the case of presumption, fictional or civil deaths. However, no general Rule of law can be laid down in this regard. There may be certain situation when though, a claim for appointment on compassionate ground may be made after 7 years but the death is capable of being proved on a particular date within the said period. For example, if it is established that a person lost his life in a road, water of air accident or in a tragedy resulting from out-break of fire or the like and the dead body is not recovered; in that event after the expiry of the period of 7 years, the date of death may be presumed to be the date of the accident or the tragedy. In such tragic cases, there are hardly any chances of manipulations as may be done in the case of a-presumptive death drawn on the basis that a person was missing for the last 7 years. If a general Rule that the dependant of the deceased employee may apply for appointment after seven years on compassionate ground, is laid down, in that event the possibility of the employee's fleeing away in harness with a view to make available appointment to his dependant after the expiry of the period of 7 years cannot be ruled out and once the appointment is made, such employee, who has filed away, may appear after the expiry of the statutory period of 7 years. This tendency, if at all, may be curbed by interpreting the expression 'death' as physical death for the purpose of Rules of 1974 and the death of a person whose body is not found or is traced out, but he has lost his life in an accident of road, water, or air or any tragedy of the type mentioned above. Barring the deaths in the above circumstances, all other presumptive, fictional and national deaths are held to be outside the purview of Rules of 1974.
13. For the reasons stated above, the petitioner is not entitled to the benefit of Rules of 1974 as on the date on which presumption of death of Ganga Prasad Tewari was raised, he shall be deemed to have stood superannuated in the year 1987. The respondents have rightly rejected the claim of the petitioner by order dated 20.8.1996 for appointment on compassionate ground under the aforesaid Rules. The petition has no merit. It is accordingly dismissed. However, the respondents are directed to ensure that all dues, treating the father of the petitioner, late Ganga Prasad Tewari, to have superannuated on 30.6.1987, which are admissible to the family members of late Sri Tewari, are paid within two months from the date of production of a certified copy of this judgment, if they have already not been paid.
prabhakar singh
(Expert) 01 January 2012
@Mr.V R SHROFF!
Dear sir!
Case law attached by you does not speak any thing different than what i am advocating.
As regards to Indira vs Union Of India,we may notice that there was very peculiar and particular circumstance before the court demanding equitable justice hence court in the special circumstances that the court noticed " Since petitioner's husband was admittedly sick and had undergone major surgery, the possibility of his death could not be ruled out. It is regularly reported in newspapers and media that many dead bodies surfacing here and there are all buried without anybody identifying such bodies. Going by the statement of the respondents petitioner's husband should have been on his way from Bangalore to Military Hospital on the date of missing that is, 5.10.1995. Apart from the presumption of death, the circumstances do not suggest any chance of petitioner's husband deserting the Army towards the end of his career." and court took the view that his missing date is the date of his death.The grant of relief was the asking on justice and even any of us could have decided this case the same manner to do justice.
The law laid down in Ravi Shankar Tewari vs Police Maha-Nideshak And Ors.is also the same what i am advocating vied para 8 by discussion and 9 and 10 by
conclusion.
V R SHROFF
(Expert) 01 January 2012
Shri Prabhakarji,
I agree with you,
In this case, FACTS & Details are not available, +
We do not know what she Want, and what date of death is favorable to her, Then only, we can mode it to her advantage.
So I Pointed out JUDGEMENT that are probably favorable to Arpita.
For clear opinion, details are required that direct correct citations.
Thanks, and HAPPY NEW YEAR 2012 TO YOU & ALL.
Guest
(Expert) 01 January 2012
@ Shri V R Shroff,
Your latest reply suggests as if you intends to go back from your earlier stand that the date of death should be treated as the date from which the person went missing. If so kindly confirm.
Also please advise, if in your opinion the 86 years' old case law (1925), as quoted by Shri Prabhakr Singh, would stand the test of time today?
prabhakar singh
(Expert) 01 January 2012
@Mr.Dhingra!
Although your post is addressed to Mr. V R SHROFF which he shall comment in his own wish and i do not need to speak thereon.
But as regards to questioning the 86 years' old case law Lal Chand Marwariv. Mahant Ramrup Gir, AIR 1926 PC 9,was approved by our Apex court consistently in N. Jayalakshmi Ammal and Ors. v. R. Gopala Pathar and Anr., and in Darshan Singh and Ors. v. Gujjar Singh (D) by Lrs. and Ors., and also in AIR 2004 SC 2070.
There are certain judgments on certain topics by PC which have still stood test of time.They are leading land marks till date.Such as Mohiri Bibi in respect of minors contact.On procedural management of cases by courts a case copper vs smith pronounced in 1860 is seen with respect all over word,the only one deviation i found with a lady judge in America but she also ultimately came down to.
V R SHROFF
(Expert) 01 January 2012
Shri Dhingra Saab,
VERY HAPPY NEW YEAR TO YOU"
YOU SAYS"
@ Shri V R Shroff,
Your latest reply suggests as if you intends to go back from your earlier stand that the date of death should be treated as the date from which the person went missing. If so kindly confirm.
Also please advise, if in your opinion the 86 years' old case law (1925), as quoted by Shri Prabhakr Singh, would stand the test of time today?"
ANS:
I pointed our recent judgement.
I am of the opinion, once a person is missing, though 7 years period is a reasonable legal time, a missing person should return to his home, if alive, or pass information accordingly, or declared dead, WHY THE INNOCENT SURVIVORS SUFFER??
THEY ARE AT MERCY OF HIS PENSION, PF, SALARY / OR STARVE!!.
So on humanitarian ground also, they should be immediately offered mercy-job, pending arrival of missing person, or be paid such interim relief, and confirm the same on expiry of 7 years.
As Arpita wanted JUDGMENTS ON THIS ISSUE,
IT IS SUBMITTED FOR HER UNDERSTANDING.
UNLESS WE KNOW HER OBJECTIVES, WE CANNOT GUIDE WHAT IS IN HER FAVOUR.
Dhingra Saab, you know, Judgement are on both sides, We have to mend it and use it at the convenience and objectives of our Client. Each case is a special case.
I tried one case of Missing person, missed this day, 1st January, 2000, at Arab country, and their Government did not accept he is dead as missing for 7 years. They do not recognize such Law. They did not grant any benefit to his family till now. The declared him absconding from Govt. Job, and seized all his salary, gratuity or all job benefit as penalty!!. The Indian Widow and her only daughter suffered.
I have nothing to comment about 1925 Judgement. after all it was court verdict, submitted by a leading expert.
A Client want to declare day one as Death date
Another client want declaration after 7th year.
Aim and Objectives differ.
We are here to help our clients.
Ultimately it is what Arpita wants.
Choice is hers. I have to let her know the judgement on this topic, not to go back.I can confirm only if I know what Arpita wants.
If is is for supporting starving family. After all,the Court decide, not we.
The court reverse their own judgement on change of circumstances, Arguments, Judges, and facts of case to case. Court go back. We are always with our clients.
Thanks
I expect you also advise Arpita,saying "
If remained untraceable for all those 7 years even after all the efforts of relatives and police did not bring any fruit, the person has to be assumed as dead from the very first day he went missing."
Thats what I too have to say.
SUCH JUDGEMENT SHOULD BE RESULT ORIENTED, AND SERVE THE PURPOSE OF THE PETITIONER:
It must fulfill the aim , objective, and justice.It should not be used for taking disadvantages of / the abuse of Process of Law.
I believe, the suffered, his family and children should not keep waiting for 7 years, and suffer due to abuse of process of such Laws.
Guest
(Expert) 02 January 2012
Dear Shri Shroff,
I appreciate your views and your central idea that the date of missing should be assumed as the date of death if the missing person does not appear again within 7 years.
About the case you referred about Arab Country, I can say that the Arab Countries are not following our law. They follow Sharia Law. Discrimination between natives and non-natives is the other important aspect for them.
However, you may like to see the recent judgment, dated 11.01.2011, of Rajasthan High Court in S.B. Civil Writ Petition No.7622/2007, the case of Smt. Kumud Bhatt Vs. State of Rajasthan and Others, which clearly suggests that the date of death should be assumed as the date of disappearance. The date of disappearance in this case was 02.03.1988 and the widow was ordered to be paid family pension from the said date of 02.03.1988. In this case also the employee was treated absent from duty and dismissed from service.
The following excerpt from the court order confirms my contention that the date of disappearance be treated as the date of death:
"There was no justification for respondents not to have made payment of family pension to petitioner on expiry of period of one year from date her husband disappeared with effect from 02.03.1988. Respondents informed petitioner that she was not entitled to receive family pension because her husband was dismissed from service. Since a period of more than twenty-two long years has now passed since late husband of petitioner disappeared and she has now been held entitled to family pension. I do not deem it appropriate to direct respondents to consider her case at this stage for grant of compassionate appointment. In result, writ petition is partly allowed. The order dated 13.01.1995 is quashed and set aside. On expiry of period of seven years from 02.03.1988 a presumption should arise with regard to death of petitioner's husband with effect from 02.03.1995. Petitioner is however declared entitled to receive family pension with effect from 02.03.1989, after expiry of period of one year from date her husband was last heard of, in accordance with proviso to Rule 268B of R.S.R. Consequent upon declaration of dismissal order of petitioner's husband as illegal, respondents are directed to grant all terminal benefits to petitioner treating her to be a widow of deceased government servant though taking 02.03.1988 as basis for calculating terminal benefits and make payment of all terminal benefits and arrears of family pension together with interest @ 6% per annum within a period of three months from the date of service of copy of this order. The writ petition is partly allowed in terms of the directions as aforesaid with no order as to costs."
I hope you would like to agree with me.
V R SHROFF
(Expert) 02 January 2012
Shri Dhingraji,
YES, I AGREE WITH YOU.
THOSE FAMILY MEMBERS SHOULD NOT SUFFER DUE TO SUCH LAWS.
THEY SHOULD NOT STARVE.
PENSION. PF. GRATUITY MUST BE PAD WITHIN FEW MONTHS OF MISSING[ SUBJECT TO; OF COURSE 7 YEARS OF MISSING] BUT IN FORM OF INTERIM RELIEF.
IT ONLY MEET THE END OF JUSTICE.
thanks
Deepak Nair
(Expert) 02 January 2012
Dear Arpita,
Here, you can find conflicting views from the leading experts.
The case law stated above by Dhingra Sir is regarding the grant to pension to the widow.
But, what will be the situation with regards to execution of will when the father is gone missing? In this case, the sons/daughters have to wait for the completion of 7 years, since the father will be considered as alive till the completion of seven years from the date of disapearance. Only on expiry of the said 7 years, the sons/daughters would be able to execute the will of their father.
If you are confused, it is advisable to do some more research on this subject (which i too am doing).
Guest
(Expert) 02 January 2012
@ Prabhakar Singh,
Thanks for your clarification. Though, as usual you have every right to oppose my views on this question also, BUT there must be some logic in support of your treating the missing person as dead only on some date occuring after expiry of 7 years.
Even the 86 years old case, as referred to by you does not anywhere specify that the effective death date of a missing person should be taken only after elapse of 7 years of his having gone disappeared.
Even otherwise also, the case referred by you pertained to the limitation period in a property case, which was further based on two controversial dates, the 1st being based on the accepted date of death as April 27,1892, when he was claimed to have cremated personally by the chela of the Mahant, and the other being of November 30, 1897, on which the said person was claimed to be alive, but never proved, as the case clearly mentioned that "the plaintiff had failed-to establish the fact essential to the validity of his claim." The case very clearly indicates that the later date was quoted merely to justify the delay in filing the suit to keep that within the limitation period to confuse and mislead the court.
The aforesaid fact is very clearly established from Para 14 of your case, which clearly states, "Harihar Gir was called as a witness on his behalf, In his evidence in chief he solemnly deposed that Bhawan Gir died in his presence at Hardwar in April, 1892. In cross-examination he added that he himself performed his funeral ceremonies, and that if anybody said that he did not die in April, 1892, it would be false, And by way of confirmation the plaintiff stated in his evidence, as their lordships have already observed, that he himself believed that Harihar Gir was telling the truth in this matter, while, as has also been shown, his own actions and claims ever since have alone been consistent with that belief."
Still further, para 19 of the said case very clearly provided the judgment that the "decree of the High Court should be recalled and that of the trial Judge restored," as the trial court had already admitted the date of death as 27 April 1892.
So, the case quoted by you does not have even any distant relation with the case of a missing person.
However, if you still have any other case in your mind which may prove your contention beyond any doubt, that would be welcome and would help me also to enhance my knowledge.
Guest
(Expert) 02 January 2012
@ Sudhir Kumar,
I would have been delighted had you added some logic with your negative interpretation, rather than merely writing "The problem stands replied by Mr Deepak Nair Long back."
As per your profile, you happens to be a Dy. Director of some Government Department and you are also supposed to know that even the Government has long ago, vide G.I., Dept. of P.&P.W., O.M. No. 1/17/86-P. & P.W., dated the 29th August, 1986, decided that the family of the missing persons should not have to wait for more than one year to get their dues after the employee goes missing. The Rules clearly provide, "(i) when an employee disappears leaving his family, the family can be paid in the first instance the amount of salary due, leave encashment due and the amount of GPF having regard to the nomination made by the employee, (ii) after the elapse of a period of one year, other benefits like retirement or death gratuity/family pension may also be granted to the family subject to the fulfillment of conditions prescribed in the succeeding paragraphs."
So, I wonder, what actually was the basis of your conviction that "the date of completion of the said 7 years is considered as date of death?"
You may like to see the extract of the recent judgment, dated 11.01.2011, above. If you still hold your views, you may kindly like to clarify the following points:
1) How the department would treat the period of service of missing person for those intermediatory 7 years between the missing date of the person and the proposed date of death after those 7 years?
2) On what presumptive pay and under the provisions of which rule would the retirement benefits be permissible to the family members of the missing person after 7 years of his disappearance?
3) Would the employee be dismissed from service and the family of the missing person be confiscated without allowing him the opportunity to defend himself?
4) Would the genuine terminal benfits be denied to the family of the missing person and under which rules, even after lapse of 7 years when by law he has to be treated as dead?
5) Has any rule of Government of India stipulated that the family of the missing person be made eligible to apply for the fmily pension and other dues only after expiry of 7 years from the date of his disappearance?
6) Should the family members die without being any financial aid if there is no other earning hand in the family in his absence and the Government department does not admit their claim within those 7 years?
Guest
(Expert) 02 January 2012
Dear Deepak,
Sorry for difference of opinion. But, I am sure you would appreciate that merely a "will" is not concerned with the exact date of death of a missing person. There are several, rather hundreds if other issues, which are linked to the death of a person, where in several cases, the date of death has least effect to decide the matter, while in several other cases the delay in settlement of cases becomes the cause of life & death of the kith and kins.
In case of a will, if the property issues are settled after elapse of 7 years the date of death has no crucial effect on that issue. The right of the persons are not affected in any way. Only they had to wait for 7 years to get the issues settled.
On the other hand, in case of pension and other retirement dues, if the date of effect is given 7 years, you can realise how much loss the family can have due to loss of 7 years dues and also the extraordinary delay is settlement of the issues.
prabhakar singh
(Expert) 02 January 2012
@Mr.Dhingra!
It is good to here from you that we are banks of the River and this may be good many way for this forum but not personally for me as too much typing tires me then i want to invest time in answering queries instead of convincing others why i am right.
It is not objectionable from my side why one differs from me but it is always objectionable if someone shows compulsion why shall i not agree with HIM.
Coming to Section 108 of evidence the section it self is clear.Law is creating a fiction that one unheard of for continuous 7 years would be presumed to have been dead,then before any authority if it is pleaded that person in question is unheard of since last 7 years,then such authority by virtue of s.108 is bound to presume civil death of the person in question,unless contrary is proved.
i do not want to comment about your understanding of law laid down in 1925PC case as that is a citation from me which demands your disagreement.The only drawback as well as a happy situation is this that one of us does not belong to the family of law but has been adopted to have all such rights of natural son of law and this is also a fiction of law in Hindu adoption law.
Now coming to the very case law cited by you"Smt Kumud Bhatt vs State Of Raj And OrsCivil Writ Petition No.7622/2007" IS ALSO EXACTLY WHAT I AM ADVOCATING AS IT CONCLUDES IN THE FOLLOWING WORDS"On expiry of period of seven years from 02.03.1988 a presumption should arise with regard to death of petitioner's husband with effect from 02.03.1995."
prabhakar singh
(Expert) 02 January 2012
Following your advise that i need to read ten times a section because i lack intellectual capacity to understand law i read thIS section, 108 times as it runs::::::
"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."
And it is enforced since 1872 till date.
Even law in England is exactly the same on this topic.
We while acting in courts are not concerned
with 'how old is the law'?,we are simply concerned
with 'what the law is'??
The concern should be but as a citizen or as
parliamentarian but not as bar acting before the
bench.
THAT AFTER READING EVEN HUNDRED EIGHT TIMES WHICH
IS TEN TIMES MORE THAN YOUR SUGGESTION I
FOUND ONLY THAT PRESUMPTION DICTATED BY LAW
IS SIMPLY WITH REGARD TO "DEATH" AND NOT TO
THE "DATE OF DEATH"; HENCE TO PROVE THE "DATE
OF DEATH" EVIDENCE DIRECT OR INDIRECT WHICH
ASSIST TO CONCLUDE A DEATH DATE IS
REQUIRED.THAT IS ALL SO FAR HAS BEEN
UNDERSTOOD BY ME AND FOR MY SELF I AM RIGHT
WITHOUT BLAMING YOU WRONG.BUT YOU PLEASE DO
NOT FORCE ME TO BUY WHAT IS NOT SALABLE.
Guest
(Expert) 02 January 2012
Dear Mr. Prabhakar,
I appreciate your ability to twist the issues even on the face of the fact, as you have tried to twist even the judgment, dated 11.01.2011 in to your favour by misinterpreting the same, when you have stated that "Smt Kumud Bhatt vs State Of Raj And OrsCivil Writ Petition No.7622/2007" is also exactly what you were stating. BUT THAT IS NOT THE CASE. Clearly, you have misinterpreted the language of the sentence "on expiry of period of seven years from 02.03.1988 a presumption should arise with regard to death of petitioner's husband with effect from 02.03.1995."
If you go through the sentence carefully, you may not need to read the said sentence 108 times, like you did for sec.108. The sentence lays stress on the PRESUMPTION to ARISE with effect from 02.03.1995, BUT NOT about date of death to arise.
Had the judgment been based on the date of death with effect from 02.03.1995, the order dated 13.01.1995 would not have been quashed and judgment not set aside, on which the case arose. Still further, the the court would not have allowed the widow to draw family pension and other benefits from 02.03.1988, that being the actual date of disappearance of the person. If the judgment would have been what exactly you said (effective date of death after 7 years) the judgment would have ordered the authorities to allow the widow to draw the pension only with effect from 02.03.1995, instead of 1988, which is not the case.
Guest
(Expert) 02 January 2012
@ Prabhakar Singh,
May Section 108 not been discussing about the date of death, but the question of the querist was about the date of death in the case of a missing person. Your replies as well as interpretation of law was also about the date of death. Case law quoted by you was also about the date of death, although that did not have even any distant relation with the question.
I am not forcing you to buy what I say. But rest assured, I am ready to by your viewpoints provided those are based on sound footing.
You may or may not buy the correct position of law, but if you have to oppose the contention of any one, you are also required to support your contention with correction position of law to convince the other person. I have given full justification with my replies, whereas you have simply provided evasive replies, not even justifying your earlier stand/ quotation of case law.
Advocate. Arunagiri
(Expert) 02 January 2012
My opinion regarding the date of death:-
The court or law does not speak about the date of death. It speaks about the presumption and regarding declaration of death. If any person is missing for 7 years, that person is declared as dead on after 7 years.
The actual date of death (if any) may be any time between the date of disappearance and final date of 7th year.
Who ever willing to claim any benefit, from the missing person, has to wait for 7 years.
Pension can be calculated for entire 7 years, but the application for pension can be moved only after 7th year of missing.
prabhakar singh
(Expert) 02 January 2012
Dear Mr.Dhingra!
It is hard to convince those minds who lack in basic understanding.Be it any one and who so ever.
In answer to your first post of reply that i have not twisted any thing in the judgement cited by you"Smt Kumud Bhatt vs State Of Raj And OrsCivil Writ Petition No.7622/2007".
Rather you have failed to under stand it as the question raised by you in your reply post as absurd remarks copied and posted here as"Had the judgment been based on the date of death with effect from 02.03.1995, the order dated 13.01.1995 would not have been quashed and judgment not set aside, on which the case arose. Still further, the the court would not have allowed the widow to draw family pension and other benefits from 02.03.1988, that being the actual date of disappearance of the person. If the judgment would have been what exactly you said (effective date of death after 7 years) the judgment would have ordered the authorities to allow the widow to draw the pension only with effect from 02.03.1995, instead of 1988, which is not the case."
I need not to reply you as its reply is in the judgement it self, which you know yet to prove me wrong you are trying to hammer my head but failing each time and getting hurt each time your self.Let me tell you master of service law that as missing person was employee of the state of Rajasthan and governed by service rules of Rajasthan.
"The proviso of Rule 268B of the Rajasthan Service Rules Provided that if a Government servant is unheard of for more than a period of one year the family pension at the rate prescribed under Rule 268 C shall be sanctioned and authorized to the member of his/her family as defined under Rule 268D on submission of an application alongwith Indemnity Bond and Affidavit in the prescribed form and also a copy of F.I.R. lodged with the Police about the dis-appearance of the Government servant. If in any case, the Government servant subsequently re-appears the family pension shall immediately cease to be admissible and payable. The amount of family pension already paid to the family, shall be recoverable from the salary of the Government servant."
And it was the above rule which became the basis for the court to grant the relief with effect from 02.03.1988.Any man of ordinary prudence can easily understand that to get benefits under those rules her widow was NOT required to wait for 7 years to raise any presumption as desired in Evidence Act.If one can not understand such a little thing,he should not always show off his knowledge,the day some one impressed by your knowledge start doing cases in courts,
even God would not able to save his fate.
You blame others with several things but truth is that you own some ego of knowledge
and start arguing with others that yours should be the last say.I know you do with a purpose that is not beyond my comprehension.I know you shall again make post in reply.
You have also taken class of Expert Mr. Sudhir Kumar.You your self know a rule about the employees "vide G.I., Dept. of P.&P.W., O.M. No. 1/17/86-P. & P.W., dated the 29th August, 1986, decided that the family of the missing persons should not have to wait for more than one year to get their dues after the employee goes missing. The Rules clearly provide, "(i) when an employee disappears leaving his family, the family can be paid in the first instance the amount of salary due, leave encashment due and the amount of GPF having regard to the nomination made by the employee, (ii) after the elapse of a period of one year, other benefits like retirement or death gratuity/family pension may also be granted to the family subject to the fulfillment of conditions prescribed in the succeeding paragraphs."
Then when this rule or any rule of such kind would be there with respect to service of any employee where comes the play of section 108 and wait of 7 years.If you can not make these distinctions in your mind with clarity why are you continuing.......
any way continue...... you have reaffirmed what you are.
Deepak Nair
(Expert) 03 January 2012
Dear Arpita,
After all these exhaustive arguments, i request you to give your understanding on the subject. Please tell us what will be your stand in this??
Arpita
(Querist) 03 January 2012
Dear All,
I would like to thank everyone for their valuable time and suggestions. Well, I could see conflict in the opinions with respect to time of death mentioned in the death certificate of a missing person.
First of all, I would like to state the facts clearly.
There is a person who went missing in the year 1954. He had migrated from Pakistan. Now, one of his son had obtained a death certificate from the President of Municipal Committee in the year 1956. This person had some property in Pakistan. After obtaining the death certificate, his sons became the legal heirs and property was vested in them. The missing person had one daughter also. She claimed her rights in the aforesaid property. No, the old Hindu succession act did not lay down any provision where a daughter has a right in the property.
So, I have to prove that the death certificate is valid and admissible and the property should devolve upon the sons and not the daughter as per the provisions of Old Hindu Succession Act.
My line of arguments would be:
1. the certificate is issued by the president of a Municipal committee(MC) who is a public servant under sect 21 of the IPC. so, the death certificate is a public document and it should be admissible in evidence under section 35 of the Evidence act. But now the question that arises whether he has the authority to issue a death certificate? I am not sure of this
2.I want to say that even if i satisfy the presumption clause of 7 years, the court presumes the person to be dead, the date and time would trace back to the year 1954 (when he went missing). if i prove this, the property would devolve as per Old Hindu Succession Act.
So, I am looking for cases where the president of the MC has the authority to issue the death certificate and where the supreme court has held that the date of death in case of missing person would be the day when he went missing and not the day when the court declares the person to be dead.
I should have stated the entire facts long back..
I cannot prove things by logical deduction. But in the year 1954, there was no act which governed the registration of births and death. There was no proper authority who had the power to issue a death certificate. In the absence of laws and provisions, if a person who has migrated from Pakistan, not aware of Indian laws, manages to get a certificate from a public servant to get hold of the property situated in Pakistan. So, the certificate should be admissible in evidence..
If this argument is not accepted then my alternate argument would be my presumption as to time of death
regards,
Arpita.
Sudhir Kumar, Advocate 
(Expert) 02 January 2012
