Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in S.C. Suit No.470/2018
Filed on : 12.02.2018
Registered on : 14.02.2018
Decided on : 07.12.2019
Duration : Year01 Month09 Days22
Exh17
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
S.C. Suit No.470/2018
(CNR NO. MH CC010022092018)
1) Smt. Hansa Jagjivan Vadher
Age : 44 years, Occupation : Service
2) Miss. Vishakaha Jagjivan Vadher
Age : 22 years, Occupation : Service
3) Shri. Parag Jagjivan Vadher
Age : 20 years, Occupation : Service
All Adult Indian Inhabitants
R/at : 3A, Luis Apartment, College Lane,
Near Portuguese Church,
Prabhadevi Telephone Exchange,
Dadar (W), Mumbai400 028. …..Plaintiffs
V/s.
State of Maharashtra
Through Chief Secretary,
Government of Maharashtra
Mantralaya, Mumbai 400 032. ....Defendant
Appearance:
Ms. Deepali Basamia, Advocate for the plaintiffs.
Mr. R. S. Khatib, Advocate for the defendant.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 07 th December, 2019.
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JUDGMENT
1. This suit is filed for declaration under section 108 of Indian
Evidence Act that Mr. Jagjivan @ Jaggubhai Bhimji Vadher (In short Mr.
Jagjivan) is presumed as dead.
2. It is averred by plaintiffs that they are legal representatives
of Mr. Jagjivan @ Jaggubhai Bhimji Vadher. He is missing since
04.06.2001 from the place of his residence at 3A, Luis Apartment,
College Lane, Near Portuguese Church, Prabhadevi Telephone Exchange,
Dadar (W), Mumbai. The plaintiffs have stick public notices in Trains as
Mr. Jagjivan left house to board train of Gujrat to reach at Ahmedabad.
Despite diligent search by plaintiffs and their family members Mr. Mr.
Jagjivan was not found. Therefore, plaintiff lodged complaint with
Senior Inspector of Mumbai Central Police dated 23.01.2010 bearing
No.1/2001. On 23.01.2010, police station of Mumbai Central issued
certificate that Mr. Jagjivan is untraceable. Thereafter, Pubic Notices
were issued in the News papers i.e. “Free Press Journal” and “Nav
Shakati” in respect of missing of Mr. Jagjivan on 16.12.2017. Plaintiffs
being legal representatives of Mr. Jagjivan would have naturally heard
of him, if he had been alive but they have not heard about him for more
than seven years.
3. Plaintiff No.1 is wife and plaintiff Nos. 2 and 3 being
daughters of Mr. Jagjivan are entitled for declaration of presumption of
death of Mr. Jagjivan for the educational purpose of plaintiff Nos. 2 and
3 and for getting property at Gujrat in the name of plaintiff. Resultantly,
the suit is filed.
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4. In response to writ of summons defendant i.e. State of
Maharashtra has tendered written statement at Exh6.
5. It is the contention of defendant that suit is bad for want of
statutory notice under Section 80 of Code of Civil Procedure (In short
CPC). The plaint does not disclose any cause of action against
defendant. It is further averred that the complaint was lodged by Mr.
Shekhar Kamade at Mumbai Railway Police station on 04.06.2001 that
from 01.06.2001 at about 22.20 hrs. Mr. Jagjivan is missing after the
Gujrat Mail left the station. Certificate dated 23.01.2010, issued by
Mumbai Central Police Station in respect of missing person Mr. Jagjivan.
For all these reasons it is prayed that suit may kindly be dismissed with
cost.
6. My learned predecessor has framed issues vide Exh7. Those
are reproduced alongwith the findings and reasons against each of them
are as stated below.
SR. NOS. ISSUES FINDINGS
1. Whether the plaintiffs prove that
Jagjivan @ Jaggubhai Bhimji
Vadher is not heard of who would
have naturally heard of him since
the date of his missing for period
of more than 7 years, if he would
have been alive ?
In Affirmative
2. Whether the plaintiffs are entitled
for the relief of declaration as
prayed ?
In Affirmative
3. What Order and Decree ? As per final order
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REASONS
As to Issue No.1:
7. In order to substantiate the claim, plaintiff No.1 Mrs. Hansa
Jagjivan Vadher, has tendered affidavit of ExaminationinChief at Exh9.
She has reiterated the contentions raised in the plaint. In support of her
contention, she has relied on copy of Public Notices issued in “Free Press
Journal” and “Nav Shakati” and copy of notice under Section 80
alongwith acknowledgment at Exh11 to 14.
8. It is averred by PW1 Mrs. Hansa Jagjivan Vadher that her
husband Mr. Jagjivan @ Jaggubhai Bhimji Vadher is missing since
04.06.2001 and the compliant was lodged in Mumbai Central Railway
Police Station. In her cross examination she has stated that Mr. Jagjivan
@ Jaggubhai Bhimji Vadher is her husband. He is disappeared since the
year 2001. In this context, the recitals of letter dated 23.01.2010 issued
by Senior Inspector Mumbai Central Police Station is evident to show
that the complaint was registered bearing No.1/2001 against missing
person Mr. Jagjivan and he is untraceable as per the record of police
station. Public Notices issued in “Free Press Journal” and “Nav Shakati”
reflects that despite publication of the said notices Mr. Jagjivan is
untraceable.
9. Considering the evidence of Mrs. Hansa Jagjivan Vadher
and relevant documents i.e. letter dated 23.01.2010 and Public Notices,
it has came on record that Mr. Jagjivan is untraceable.
10. Section 107 and 108 of Indian Evidence Act, 1872 reads
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thus :
Section:107 Burden of proving death of person known to
have been alive within thirty years. When the question is
whether a man is 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
person who affirms it.
Section 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.
In the scheme of Indian Evidence Act, Section 108 is an exception
to the rule enacted in Section 107. The life of person shown to be in
existence at a given point of time according to Section107 ought to be a
point within 30 years calculated backwards from the date when the
question arises, is presumed to continue to be living. As per Section 108,
if the person who would have naturally and in the ordinary course of
human affairs heard of the person in question have not so heard of him
for seven years, the presumption raised under Section 107 ceases to
operate. Though, it will be presumed that person is dead but there is no
presumption as to the date or time of death. There is no presumption as
to the facts and circumstances under which the person may have died.
11. Learned Advocate for plaintiffs vehemently submitted that
the question as to the death of Mr. Jagjivan was raised for educational
purpose of plaintiff Nos. 2 and 3 and for purchase of property in the
name of plaintiff at Gujrat. It is further submitted that since Mr. Jagjivan
is missing from 04.06.2001, plaintiffs are entitled for the relief of
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declaration.
On the other hand, learned Advocate of defendant submitted that
defendant has not denied rights of plaintiffs and cause of action arose on
the date of filing of complaint i.e. from 04.06.2001. Therefore, plaintiffs
are not entitled for the relief of declaration.
12. Considering the dictum laid down by Hon'ble Supreme
Court in “LIC of India V/s. Anuradha AIR 2004 SC 2017”, that the
presumption as to death by reference to Section108 would arise only on
lapse of seven years. An occasion for raising the presumption would
arise only when the question is raised in a Court, Tribunal or before an
Authority who is called upon to decide as to whether a person is alive or
dead, I am of the opinion that evidence on record is evident to show that
Mr. Jagjivan has not been heard of by the persons who would have
naturally heard of him since 04.06.2001.
In the case in hand Mr. Jagjivan is missing from 04.06.2001.
Letter dated 23.01.2010, issued by the Mumbai Central Railway Police
Station shows that Mr. Jagjivan is untraceable. The objection as to death
of Mr. Jagjivan is raised for the educational purpose of plaintiffs Nos. 2
and 3 and for purchase of property in the name of plaintiff at Gujrat.
Therefore, plaintiffs have proved that Mr. Jagjivan is missing for the
period of more than seven years. Accordingly, issue No.1 is answered in
affirmative.
As to Issue No.2 :
13. It is averred by defendant that suit is hit by Section 80 of
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Code of Civil Procedure, as notice before filing the suit is not issued to
the defendant. As per Section 80 of CPC, prior notice of two months
has to be issued to the Government or any public officer in respect of any
act purporting to be done by such public officer in his official capacity.
In the case in hand Exh14, notice dated 04.12.2017 issued by the
plaintiffs to the State of Maharashtra i.e. defendant alongwith
acknowledgment is filed on record. The record shows that the suit is
filed on 12.02.2018. Therefore, there is no substance in the contention
of defendant that prior notice as per Section 80 of CPC is not issued and
delivered to the defendant.
14. Considering the evidence tendered on record coupled with
documents relied on behalf of plaintiff, I am of the opinion that plaintiffs
are entitled for the relief of declaration of civil death of Mr. Jagjivan @
Jaggubhai Bhimji Vadher. Resultantly, issue No.2 is answered in
affirmative.
As to Issue No.3.
15. In view of the findings and reasons for issue Nos.1 and 2,
plaintiffs are entitled for relief of declaration as sought. The plaintiffs
have claimed the declaration of civil death of Mr. Jagjivan @ Jaggubhai
Bhimji Vadher against defendant/State of Maharashtra. Therefore, they
shall bear the cost of suit. Resultantly, for answer of point No.3, I pass
following order.
ORDER
1) Suit is decreed.
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2) Plaintiffs shall bear their own cost.
3) It is declared that Mr. Jagjivan @ Jaggubhai Bhimji Vadher is
presumed to be dead.
4) Decree be drawn accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 07/12/2019
Dictated on : 07.12.2019
Transcribed on : 09.12.2019
Signed on : 10.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
12.12.2019 11.55 a.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 07.12.2019
Order signed by P.O. on 10.12.2019
Order uploaded on 12.12.2019
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No.470/2018
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