Suit for declaration of civil death
ganesh kumar
(Querist) 22 January 2012
This query is : Resolved
Sir,
problem:
A person is missing since 2004, a complaint is also lodged with the concerned police station. Now the concern authority is unable to grant death certificate. Wife of the missing person for availing the "widow pension" require the same.
what is the procedure to get the death certificate in case of missing person?
Is there is any provision to get the death certificate or i have to file a suit for declaration of civil death. Kindly guide me the pre-requirement of the suit, procedudre of suit, prayer and the competent court for granting the death certificate or decree of declaration of civil death.
Sudhir Kumar, Advocate
(Expert) 22 January 2012
please read :-
The Indian Evidence Act,1872
108. Burden of proving that person is alive who has not been heard of for seven years. -
1Provided 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 2shifted to the person who affirms it.
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1. Subs. by Act 18 of 1872, sec. 9, for "When".
2. Subs. by Act 18 of 1872, sec. 9, for "on".
s.subramanian
(Expert) 22 January 2012
You have to take certificate from the police that they could not trace the missing person. then you have to approach the civil court by filing a civil suit seeking a declaration that the said person is dead since his whereabouts are known for the past seven years.
Shailesh Kumar Shah
(Expert) 22 January 2012
what is the procedure to get the death certificate in case of missing person?
Is there is any provision to get the death certificate or i have to file a suit for declaration of civil death
Answer: Proceed U/s 108 as advised by Mr.s.subramanian. I am completely agree with his views.
V R SHROFF
(Expert) 22 January 2012
Agree with advised by experts.
it was already discussed in great detail.i m of opinion , that widow be pad interim, pending 7 yrs.
Guest
(Expert) 22 January 2012
rightly advised by Mr. Sudhir
Raj Kumar Makkad
(Expert) 22 January 2012
As advised in detail, you shall have to first of all get declaration from civil court to the effect that .......has dead as per provisions of section 108 of Indian Evidence Act as he has not been heard since 2001 and further that his legal heirs are entitled to get inheritance of such dead person as per law of land.
This prayer shall include all rights in favour of such widow and all other legal heirs in all respects.
Devajyoti Barman
(Expert) 22 January 2012
If you ndo not wish to file civil suit then you have to wait for 7 years from the date of missing.
Only after that time the public authority will treat him as civilly dead.
Else you can try with the Report submitted by the Police.
Raj Kumar Makkad
(Expert) 22 January 2012
Date of missing has already been told by author as 2004 so waiting period has already been expired.
ajay sethi
(Expert) 22 January 2012
agree with mr subramaniam
prabhakar singh
(Expert) 22 January 2012
First of all get a police certificate that missing person is not traceable,then file an application with the authority concerned to treat him dead as 7 years have already passed referring provisions of section 108 of the evidence Act and make a prayer to release his service benefit in favor of his heirs/widow.
If the authority grants you the prayer of service benefits then you need not file any suit but in case the authority rejects you to grant your prayer a cause of action has arisen to you,then in case appointment employer is any government authority,you need to issue a legal notice under section 80 C.P.C. FIRST BY REGISTERED POST WITH ACKNOWLEDGEMENT DUE AND AFTER PASSING OF 60 DAYS TO BE COUNTED FROM THE DATE OF SERVICE OF NOTICE YOU NEED TO FILE A SUIT IN THE COURT OF CIVIL JUDGE.
M/s. Y-not legal services
(Expert) 22 January 2012
from the date of missing 7 years enough to claim civil death..
MADRAS HIGH COURT
Evidence Act, 1872, Section 107, 108 - Missing son - Suit for declaration of civil death of missing son and as to plaintiffs rights to properties as heir of missing person - Object is declaration of heir and declaration of civil death is only incidental - Son disappeared on 17.2.1964 - Suit filed on 18.3, 1977 - At the moment also son missing and not traceable - Suit decreed.
-tom-
