Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 31.01.2019
Registered on : 14.06.2019
Decided on : 03.08.2024
Duration : 05 Y : 06 M : 03 D
EXHIBIT-20.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO.1398 OF 2019
(C.N.R.No.MHCC01-001311-2019)
Netra Mahadeo Govalkar & Anr. ] …. Plaintiffs.
V/s.
The State of Maharashtra & Ors. ] ..Defendants.
Appearance :
Learned Adv. Mr. Vivek Surve for the plaintiffs.
Learned Adv. Mr. Amit Kapse for defendant Nos.2 to 4/State.
Learned Adv. Mr. Rahul Rathod for defendant No.5/BMC.
CORAM : HIS HONOUR JUDGE
SHRI. V. S. KHOT
(C.R.NO.09)
DATE : 3rd AUGUST, 2024
JUDGMENT
(delivered on 3rd August, 2024)
01. This suit is filed for declaring the missing person dead
under the provisions of Section 108 of the Indian Evidence Act.
02. The facts of the litigation can be stated as under :
The plaintiffs are daughters of missing person by name Mahadev
Shiva Govalkar who turned missing on 20.02.1997. The wife of
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missing person died on 30.07.2018 at Mumbai. The plaintiff Nos. 1
and 2 are the sole heirs of missing person. The plaintiff No.1 is a
young married daughter whereas the plaintiff No.2 is elder married
daughter of the missing person. On 20.02.1997, the father of plaintiffs
told that he is going to outside to see his friend and accordingly, left
the house and thereafter never returned. The matter came to be
reported to police station and police registered the missing complaint
vide No.29/1997 on 24.05.1997 and issued certificate on 20.02.2006
that the missing person could not be traced out till the day.
03. The plaintiffs contended that neither themselves or any
other relatives heard or seen the missing person till today. The
whereabouts of the missing persons are not known to anybody. The
missing person has left some property and now, the plaintiffs are
entitled to get the properties. The plaintiffs require the death
certificate and declaration for claiming the property. Plaintiffs issued a
legal notice under Section 80 of the C.P.C. and 164 of MCS Act, prior
to filing of the suit. The plaintiffs submitted that it be declared that the
missing person is died (Civil Dead) as he is missing since 20.02.1997.
The plaintiff therefore, filed this suit and prayed for declaration of civil
death of missing person and issuance of death certificate.
04. The suit summons came to be issued against the
defendants. The defendants received the summons but nobody filed
the written statement. The defendants did not furnish any evidence or
took any specific defense. The plaintiff’s side examined one witness
and relied the following documents viz., original school leaving
certificates of plaintiffs (Exh.08 and Exh.09), original Aadhar card of
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plaintiff No.1 (Exh.10), original Aadhar card of plaintiff No.2
(Exh.11), original school leaving certificate of missing person
(Exh.12), original missing certificate (Exh.13), original share
certificate (Exh.14), original Death Certificate (Exh.15), original letter
dated 11.11.2018 issued by the defendant No.3 Society (Exh.16), The
photocopy of the legal notice dated 26.02.2019 (Exh.17 Colly.). As
there is no evidence or written statement on behalf of defendants, the
evidence of plaintiff’s side is unchallenged. The matter came to be
closed with the arguments of plaintiff and defendant No.5.
05. In view of rival contentions of the suitor, following points
arise for my determination and I have recorded my findings to each of
them as under:
Sr. no. Points Findings
1. Whether the plaintiff proves that the
missing person by name Shri. Mahadev
Shiva Govalkar turned missing on
20.02.1997?
In the
affirmative.
2. Whether the plaintiffs further prove that
the plaintiffs or any other relatives are
having no information about the missing
person till today?
In the
affirmative.
3. Whether the plaintiffs are entitled to the
declaration and death certificate as
prayed ?
In the
affirmative.
4. What order ? As per final
order.
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REASONS
As to point No. 1 to 4 :-
06. This litigation is instituted by the plaintiffs, therefore,
naturally the burden of proof under Section 101 of Indian Evidence
Act, lies upon them. In order to discharge the burden, the plaintiffs
examined PW-1 Netra who deposed vide Exh.06 that she is a daughter
of Mahadev Govalkar who is missing. She alongwith her sister
instituted the suit. The said Mahadev Shiva Govalkar was engaged in
one private service. On 20.02.1997 her father informed her that he is
going to see his friend and accordingly, left the residence at 10.00 AM
and thereafter did not return. The plaintiffs waited till 23.05.1997 but
their father did not turn up. Her mother who is now deceased,
informed the police and filed the complaint with police station N. M.
Joshi Marg, Mumbai. Police tried to search but they could not do so.
Finally, the police issued missing certificate to the plaintiffs. The
plaintiffs and their deceased mother never seen or heard anything
about the missing person or their father Shri. Mahadevrao. No
relatives got any information about him. If, anybody is missing for the
period of 7 years, then, there is a presumption in law that such
missing person is dead. Plaintiffs require the death certificate for some
administrative procedure. The plaintiffs issued notice to the Collector
and Commissioner, Mumbai Municipal Corporation and Society prior
to institution of the suit. The plaintiffs pray for grant of declaration
and issuance of death certificate of their father.
07. This litigation is instituted by the plaintiffs for, declaration
of civil death of deceased and issuing death certificate. Plaintiff led the
oral evidence which shows that their father turned missing and no
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whereabouts are yet traced. The plaintiffs approached to the police
and police station incharge, N. M. Joshi Marg, Mumbai issued the
certificate that missing person is Mahadev Shiva Govalkar and entry is
taken in the register. The said person is not yet traced. The oral
evidence as well as documents on record shows that the father of
plaintiffs turned missing on 20.02.1997 and his whereabouts could not
be traced yet. He is still missing. The plaintiffs have issued the notice
to the Collector, to the Municipal Corporation and the Society before
instituting the suit. The plaintiffs have complied all the formalities.
The plaintiffs are entitled for the declaration and issuance of death
certificate of Shri.Mahadev S/o Shiva Govalkar.
08. As per as the tenability of suit is concerned the citation of
Sushilaben Prabhashankar Dhruv Vs. Collector reported in 2018
GLH(3)434 is remarkable. The citation mandates that civil death
declaration can be given. The para no. 24 of said judgment is
remarkable and can be reproduced as it is:-
“I am unable to agree with the view taken by the trial
Court that in the absence of an F.I.R. or any police
investigation or police record or in absence of any public
notice, the presumption under Section -108 of the death
cannot be drawn. I am saying so because Section 108 of
the Evidence Act does not provide any particular
procedure to be followed for the presumption of death.
In view of the presumption of continuance of life, it was
thought necessary to provide for the counter-
presumption whether a person’s death would seem more
likely from the nature and circumstances of the case
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than the continuance of life. In such circumstances,
where a person is continually absent from home for a
period of seven years unheard of by persons known
other than his own family members, who would have
naturally received intelligence from him, he is presumed
to be dead. The burden of proving that he is alive
thereafter is shifted to the person, who affirms that he is
not dead. It is a rebuttable presumption. The defendant
in the present case has not appeared and contested the
suit. The defendant has failed to rebut the presumption
by leading any evidence. The presumption is embodied
in Section -108 which is a proviso to Section-107. If a
case comes within the four corners of Section-108, it is
taken out of Section-107. Moreover in Lal Chand
Marwari Vs. Mahant Ramrup Gir, (1926) AIR PC 9,
wherein it was held that the person has not been heard
of for seven years there is presumption of law that he is
dead.” The above mentioned citations and ratio clearly
shows that if the person was not heard of for seven years
or more then presumption under Section 108 of Indian
Evidence Act lies and it can be presumed that the person
disappeared is dead. The present suit is filed for the
declaration of civil death and it is perfectly tenable. The
plaintiffs have successfully proved the issue no. 1 and 2.
09. The above mentioned case laws and facts of case in hand
clearly show that the missing person Mahadev Shiva Govalkar is
required to be presumed to be dead. As far as the issuance of the
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death certificate is concerned, the plaintiff never demanded death
certificate to BMC. The plaintiffs are entitled to the death certificate
under the patronage of 108 of Indian Evidence Act (Presumption of
civil death). The death certificate to the plaintiffs may be issued
mentioning therein that the missing person is untraceable for 7 years,
therefore, the death certificate is issued. In view of the above stated
reasons, I answer point Nos.1 to 3 in the affirmative. Both the parties
have taken several adjournments, so, nobody is entitled for the costs.
Having regard to above said reasons I am inclined to pass following
order resulting in grant of declaration without any order as to costs.
ORDER
1. The suit No.1398 of 2019 is hereby decreed.
2. It is hereby declared that father of plaintiffs by name Mahadev
Shiva Govalkar is dead (Civil death) under the provision of 108
of Indian Evidence Act.
3. The death certificate of father of plaintiffs by name Mahadev
Shiva Govalkar be issued under Section 108 of Indian Evidence
Act (presumption of Civil Death).
4. No any order as to costs.
5. The decree be drawn up accordingly.
(V. S. KHOT)
Judge,
City Civil Court,
Date: 03.08.2024 Gr. Bombay.
Dictated on : 03.08.2024
Transcribed on : 03.08.2024
Signed on : 05.08.2024
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Judgment 8 S.C. Suit No.1398-2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05/08/2024 At 04.50 P.M. Manisha D. Hirole
UPLOAD DATE AND TIME Stenographer, Grade-I
Name of the Judge (With Court Room
Number)
HHJ SHRI. V. S. KHOT
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
03.08.2024
Judgment/Order signed by P.O. on 05.08.2024
Judgment/Order uploaded on 05.08.2024
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