Missing
Querist :
Anonymous
(Querist) 08 March 2010
This query is : Resolved
Hi,
My father is missing from 2001 June onwards.My mother is staying with me in bangalore and i have one brither also. I am 23 years old and brother is 21 years.
Coming to the Question
We have 10 cents of land which is in the name of my Father and mother, but as my father is missing for last 9 years we are not able to sell this out. Is there any way to make this land to my Mom's name only so that we can sell it off. Also my Father's mother still alive. Please give me a suggestion.
Thank you.
A V Vishal
(Expert) 08 March 2010
Your grandmother is a Class I heir and has share in the property held by your father. Further, in order to transfer the share of your father in her own share you will require a court declaration However, in case of a missing person, her/his death is presumptive where the actual date of death and place of death cannot be ascertained. Ordinarily, a person unheard of for the statutory period shall be presumed to be dead on the expiry of 7 years and not earlier. The presumption of death and its date and place of occurrence is a matter of burden of proof. The date and place of the death of a person who is missing for more than 7 years, is determined by the competent court/ authority on the basis of oral and documentary evidence produced before him in this regard. Since the Registration of Birth and Death Act and Rules is silent on the question of determination of the date and place of death of a missing person, the date and place determined by the court in a declaratory suit as may be filed for this purpose can be relied upon.
Further, a letter of administration can be applied after the above formalities to formally mutate the LR's names in the registry and concerned records.
Raj Kumar Makkad
(Expert) 08 March 2010
Police Report for missing your father is required to be lodged. If it was lodged at the appropriate time then it is ok and obtain declaration from court qua his civil death. If i was not lodged then get it lodged now and mention all the facts of his missing and not hearing of him since last 9 years. In case it is lodged then file suit for declaration seeking civil death of your father and thereafter law of inheritance shall prevail wherein you all 3 shall be owners to the extent of 1/3 of your father.
Parveen Kr. Aggarwal
(Expert) 08 March 2010
Section 108 of the Indian Evidence Act, 1872:
"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."
As your father has not been heard of for more than seven years by those who would have naturally heard of him if he had been alive, civil death of your father can be presumed under the aforesaid provision. You along with your mother, your brother and your grandmother become owners in equal shares under law of succession. Either all of you can jointly sell the land or rest of you may execute any document in favour of your mother authorising her to sell the land of your shares.
adv. rajeev ( rajoo )
(Expert) 08 March 2010
Since 9 years your father is missing so it can be presumed that it is civil death. But you will have get it declared by filing a suit for declaration.
After getting the court decree regarding civil death of your father file a suit for partition and compromise in the suit to relinquish your share and your grandmother's share to your mother. After obtaining the decree get enter your mother's name then you can easily sell the property.
Parveen Kr. Aggarwal
(Expert) 08 March 2010
Section 108 of the Indian Evidence Act, 1872 is placed in Chapter VII (from sections 101 to 114-A) which is a chapter providing for presumptions.
So will civil death be not presumed?
Is it necessary to file a suit for declaration?
Under which provision of law, filing a suit for declaration of civil death is necessary?
