Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010016062018
Lodged on : 31.01.2018
Registered on : 30.07.2018
Decided on : 09.01.2023
Duration : 04Y, 05M, 10D
EXHIBIT-13
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
L. C. CIVIL SUIT NO.2243 OF 2018
( CNR No.MH-CC-01-001606-2018)
Smt. Mangala Narendra Kandke ]
Age 44 years, Occ:House Wife ]
Indian Inhabitant, Residing at Room No.6 ]
Chawl No.1, Sanjay Smruti Society, ]
Behind Acharya College, Chembur, ]
Mumbai-71 ].. Plaintiff
V/s.
1. The Municipal Corporation for ]
Gr. Bombay, a body corporate duly ]
constituted under the provisions of the ]
Bombay Municipal Act, 1888, having ]
their registered office at Mahapalika ]
Bhavan, Mahapalika Marg, Mumbai-01 ]
2. Sr. Inspector of Police ]
Parksite Police Station, Vikhroli, Mumbai ]..Defendants
Advocate Mitesh Parmar for the plaintiff.
Advocate Chandramore for defendant No.1/BMC.
Advocate Khatib for State/defendant No.2
CORAM : HIS HONOUR JUDGE
SHRI SITARAM N. PATIL
(C.R.No.09)
DATE : 9th January, 2023
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JUDGMENT
The suit is instituted for the relief of death declaration of
Shri. Narendra Gopinath Kandke and for directions be given to the
defendant No.1 for issuance of death certificate of missing Narendra
Gopinath Kandke
2. It is the case of plaintiff that she is the legal heirs and
representatives of Narendra Gopinath Kandke. She further submit that,
she has lodged complaint with Parksite Police Station on 17.03.2009
that her husband is missing since 06.03.2009.
3. It is the case of the plaintiff that, she has been issued a
Unique Identification Card (Adhar Card) by the appropriate authority of
Government of India. She also possess Pan Card and an Election Card.
Prior to year 2009, her husband was cohabiting together with other
members of the family. The Rationing authority has issued a Ration
Card, which stood in the name of Narendra Gopinath Kandke. She
further submit that her husband is the only son of Late Shri Gopinath
Kandke and she and her family members are entitled to succeed their
share to the property of Late Gopinath Kandke.
4. It is further the case of the plaintiff that she had
approached the department of Crime Branch in respect of filing a
Missing Complaint of her husband, upon which the department has
issued a Certificate of affirmation of missing person dated 05.06.2011.
5. It is the case of the plaintiff that there is no impediment
under Section 108 of the Indian Evidence act to declare that her
husband has died within seven years of his missing i.e. from
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06.03.2009. The suit is within limitation. The plaintiff did not file any
suit for the same cause in this Court or any other Court for Succession
Certificate in respect of any debt or security belonging to the estate of
her husband. Therefore, the plaintiff has prayed for declaration.
6. Defendants did not file a written statement. Hence, suit
proceeded without written statement of the defendants.
7. I have heard learned advocate for the plaintiff, the learned
advocate for BMC/defendant No.1 and learned Advocate for
State/defendant No.2.
8. Considering the plaint, documents on record and oral
evidence of plaintiff and submissions of both learned advocates,
following points arise for my determination and my findings to them
are as stated below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiff has proved that
Narendra Gopinath Kandke is missing
and has not been heard for more than
7 years ?
In the
Affirmative
2 Whether plaintiff is entitled to the
declaration as prayed for ?
In the
Affirmative
3 What Order and decree ? As per Final Order
R E A S O N S
AS TO POINT NOS.1 TO 3 :
9. As all three points are related with each other. Hence, they
are discussed at once to avoid repetition.
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10. The plaintiff has filed his Affidavit of Evidence by way of
examination-in-chief at Exhibit-5 and deposed on oath and she has
reiterated all the contentions in her plaint in the Affidavit. She was
cross-examined by the defendant No.2. In the cross-examination, she
had stated that the missing person is her husband. He was missing from
17.03.2009. She searched him at various places but he was not found.
Thereafter she lodged missing compliant at Vikhroli Parksite Police
Station. In the year 2011, she visited the police station and inquired
about her husband, but they replied that, he was not found.
11. In support of the suit claim, the plaintiff has produced on
record Adhar Card (Exh.7), Pan Card (Exh.8), Ration Card issued to
missing Narendra Gopinath Kandke (Exh.11), Ration Card issued dated
13.07.2006 (Exh.9), Certificates of affirmation dtd.05.03.2011 and
19.12.2016. The learned advocate for the plaintiff has filed evidence
close pursis (Exh.12).
12. The learned advocate for defendant No.2 submitted that
the suit is barred by law of limitation. It is not maintainable. He further
submitted that the husband of the plaintiff went missing since 2009.
The plaintiff did not hear anything about him till the year 2009.
Therefore, she should have instituted the suit within three years from
the year 2009 and the suit filed in the year 2018. Therefore, it is not
within limitation. In reply, the learned advocate for the plaintiff
submitted that the cause of action for institution of the suit is recurring
one and until the plaintiff realized that her husband cannot be traced,
he cannot be compelled to institute the suit for declaring him dead. He
further argued that the plaintiff deposed in her evidence that her
husband is missing from 17.03.2009. Pleadings and evidence is contrary
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to each other and on the same ground the plaintiff’s suit be dismissed.
Ld. Advocate for plaintiff argued that, plaintiff is illiterate lady and due
to trauma she unistately deposed that her husband was missing since
from 17.03.2009. The plaintiff produced certified copy of complaint
lodged before police station. It appears that her husband is missing from
06.03.2009. Therefore, wrong date deposed in her oral evidence not
fatel to the case of plaintiff. Plaintiff is old lady, therefore, there is
chance to commit mistake. Hence, argument advanced by the
defendant’s Advocate is not much more affect the case of the plaintiff.
13. The learned advocate for the plaintiff drawn my attentions
towards sections 107 and 108 of the Indian Evidence Act. It is further
submitted that burden of proving death of the father known to have
been alive within thirty years as mentioned in section 107 of the Indian
Act and period of seven years as mentioned in section 108 of the Indian
Evidence Act is minimum period. Therefore, the suit is within limitation.
The sections 107 and 108 of the Indian Evidence Act speak as under;
Section 107: Burden proving death of the father known to
have been alive within thirty years. When the question is
whether a man ia alive or dead and it is shown that he was
alive within thirty years, the burden of proving that he is
dead is on the father who affirms it.
Section 108: Burden of proving that the father is alive who
has not been heard of for seven years. 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 father who affirms
it.
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14. It is clear that the plaintiff will institute the suit only when
the plaintiff feels that her husband cannot be traced out. She cannot be
compelled to institute such suit. Further-more, period of seven years as
mentioned in Sec. 108 of the Indian Evidence Act cannot be treated as
mandatory period, but it is minimum period which gives right to
institute the suit. However, the cause of action is recurring one.
Therefore, suit cannot be stated to be barred by law of limitation.
15. In view of all above discussion, I have come to the
conclusion that Narendra Gopinath Kandke is found to be missing for a
period of more than 14 years. The legal presumption is attracted under
section 108 of the Evidence Act that her husband is dead. I therefore,
hold that the plaintiff is entitled for declaration to that effect.
16. The State is under statutory obligation to maintain the
record of birth and death. Therefore, the suit filed against the State is
maintainable. It is proved that Narendra Gopinath Kandke is proved to
be not heard of for more than seven years, I hold that the legal
presumption arises that he is dead.
17. In the circumstances above, I have come to the conclusion
that plaintiff is entitled to the declaration as prayed for. Accordingly, I
answer points No.1 and 2 in the affirmative and in answer to point
No.3, I proceed to pass following order.
ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the husband of the plaintiff
i.e. Narendra Gopinath Kandke is not being heard of for
more than last 14 years and he is Civil Dead.
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3. No order as to costs of the suit.
4. Decree be drawn accordingly.
5. The suit stands disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Gr.Mumbai.
Date: 09.01.2023
Dictated on : 09.01.2023
Typed on : 09.01.2023
Signed on : 09.01.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11.01.2023 at 12.15 p.m. Mrs. K.S.Bhosale
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room Number
HHJ MR. SITARAM N. PATIL
Date of pronouncement of
Judgment/Order
09.01.2023
Judgment/Order signed by P.O. on 09.01.2023
Judgment/Order uploaded on 11.01.2023
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