Presumption of deatn
Akhilkumar S
(Querist) 27 November 2017
This query is : Resolved
Hi,
My grandfather was missing from 1990. I would like to draw a presumption of death by court. How should I file it? Should I say that presumption should be effective from 1997(7 years after missing) or seven years backwards from 2017. I need legal heir-ship of property and do a partition between myself and mother.
P. Venu
(Expert) 28 November 2017
Are you and mother the only legal heirs? Anyhow, the best option is to file a partition suit seeking the declaration of death of the grandfather as well.
R.Ramachandran
(Expert) 28 November 2017
Did you file FIR about the missing person? When did you file it?
Akhilkumar S
(Querist) 29 November 2017
Venu - Yes, we are the only legal heirs. Is it okay if we do a partition without filing a partition suit?
Ramachandran - We have not filed FIR
Akhilkumar S
(Querist) 29 November 2017
Ramachandran - We have not filed FIR. Is it okay if we do a partition without filing a partition suit?
Guest
(Expert) 02 December 2017
Quite a vague query!
Let the court decide. None of the expert can act for and on behalf of a court to decide your issue. First file a case through some lawyer and present proof of missing.
Guest
(Expert) 02 December 2017
Quite a vague query!
Let the court decide. None of the expert can act for and on behalf of a court to decide your issue. First file a case through some lawyer and present proof of missing.
R.Ramachandran
(Expert) 03 December 2017
If you have not filed FIR, on what basis you will claim declaration of civil death?
Guest
(Expert) 03 December 2017
Agree with Expert Mr R.Ramachandran
Guest
(Expert) 03 December 2017
Addressing the Advocates just with Names not to be encouraged please.
Guest
(Expert) 03 December 2017
In side the Courts also the Advocates address each other with due respect as " Learned Counsels "
P. Venu
(Expert) 03 December 2017
Everything will be taken care of if you file partition suit with the mother as the defendant with the specific pleading as to the missing father. You can, within the same suit, seek the declaration as to the missing father the provisions of Evidence Act, Section108 would apply in such a case:
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.—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."
Guest
(Expert) 03 December 2017
Police FIR is mandatory and 7 years of pending missing complaint is mandatory to declare any person as dead by Courts..
Guest
(Expert) 03 December 2017
Presumption of death is governed by Sec 107 and sec 108 of Evidence Act which allows the presumption of death for a person missing for 7 years declared by Police and to be raised with appropriate proceedings before the concerned Court..
Guest
(Expert) 03 December 2017
No partition suit would be entitled to declare any one as dead legally.
