Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in Suit No.750/2018
Filed on : 13.02.2018
Registered on : 16.03.2018
Decided on : 05.02.2020
Duration : Year-01 Month-11 Days-21
Exh-25
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Suit No.750/2018
(CNR NO. MH CC01-002262-2018)
Smt. Jahanara Begam Vazeer Lala Khan
Age :- 59 years,
Occupation:- Housewife,
R/at :- Gopidham Society, New Prakash Nagar,
Dargah Cross Road, Sonapur,
Bhandup (W), 400 078 …..Plaintif
V/s.
1) State of Maharashtra
Through Collector Mumbai
Suburban Collectorate,
Off. at :- Administrative Bldg, 10th Floor,
Nr. Chetna College, Government Colony,
Bandra (E), Mumbai 400 051.
2) State Bank of India
Through its Branch Manager,
Off. at :- Bhandup Panalal Compound,
Bhandup (W), Mumbai 400 078 ....Defendants
Appearance:-
Mr. Sanjay Mishra, Advocate for the plaintif.
Ex-parte against defendants.
CORAM :- HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE :- 05th February, 2020.
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JUDGMENT
1. This suit is fled for declaration of civil death of
husband of plaintif that Mr. Vazeer Lala Khudiwala Khan @
Vazir Kudai Lala be presumed as dead.
2. It is averred by plaintif that she is legally wedded
wife of Mr. Vazeer Lala Khudiwala Khan @ Vazir Kudai Lala (In
short “Mr. Vazir Khan”). They have fve children out of the
said wedlock. In the year 1996, plaintif was under medical
treatment. On 21.05.1996, the plaintiffs husband Mr. Vazir
Khan left residence in order to visit native place i.e. Village-
Pahademalav, Taluka-Bansgaon, Dist- Gorakpur, U.P, since then
husband of plaintif did not return.
3. It is further averred that plaintif and her sons tried
their level best to search Mr. Vazir Khan. They also tried to
inquire where abouts of her husband from other relatives of
plaintiffs who were residents of native place of husband, but it
was in vain. Therefore, plaintif lodged oral missing complaint
on 13.02.1999 with Bhandup Police Station which was
registered bearing serial No.21/1999. The plaintif further
lodged police complaint with Bhandup police station on
09.06.2003 but it was in vain and till today plaintiffs husband
is untraceable. Bhandup police station issued certifcate dated
14.06.2003.
4. It is further averred that in the month of February-
2008, plaintif approached Bhandup police station to inquire
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about progress of search of her husband, but concerned police
station issued certifcate dated 05.02.2008, stating that despite
diligent search, husband of plaintif was untraceable. On
06.12.2017, plaintif issued notice through her Advocate to
Bhandup police station but concerned police station has not
provided any information to the plaintif.
5. It is further averred that L.C. Suit No.2820/2008 was
fled by plaintif in the City Civil Court, Bombay for declaration
of death of her husband which was dismissed on 22.12.2011 on
the grounds of non issuance of notice under section 80 of Code
of Civil Procedure and due to non maintainability of the suit.
The husband of plaintif was having two Fixed Deposit receipts
of Rs.50,000/- and Rs.75,000/- but defendant No.2 had denied
to pay the said amount to plaintif without declaration of death
of Mr. Vazir Khan. Hence, the suit is fled.
6. In response to writ of summons, defendants failed to
appear. Therefore, ex-party order is passed against them.
7. Following points arise for determination. Those are
reproduced along with the fndings and reasons against each of
them as stated below.
SR.
NOS.
POINTS FINDINGS
1. Whether the plaintif proves
that Mr. Vazeer Lala
Khudiwala Khan @ Vazir
Kudai Lala is not heard of
who would have naturally
heard of him since the date
In Afrmative
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of his missing for period of
more than 7 years, if he
would have been alive ?
2. Whether the plaintif is
entitled for the relief of
declaration as prayed ?
In Afrmative
3. What Order and Decree ? As per fnal order
REASONS
As to Point No.1:-
8. In order to substantiate the claim, plaintif Smt.
Jahanara Begam Vazeer Lala Khan has tendered afdavit of
Examination-in-Chief at Exh-7. She has reiterated the
contentions raised in the plaint. In support of her contention,
she has relied on original copy of complaint lodged in Bhandup
police station Exh-8, Original copy of certifcate issued by
Bhandup police station on 14.06.2003 Exh-9, Original copy of
certifcate issued by Bhandup police station on 05.02.2008 Exh-
10, Ofce copy of notice issued by plaintif through her
Advocate to Bhandup police station Exh-11, Original copy of
postal receipt Exh-12, Original copy of acknowledgment
received by Bhandup police station Exh-13, Certifed copy of
Judgment in L.C. Suit No.2820 of 2008 Exh-14, Ofce copy of
notice issued by plaintif to defendant No.1 Exh-15, Original
copy of postal receipt and acknowledgment Exh-16 and Exh-17,
Original Ration card & Aadhar card Exh-19 and Exh-20 and
original Fixed Deposit receipts of Rs.50,000/- and Rs.75,000/-
Exh-21 and Exh-22.
9. It has been deposed by PW-1 i.e. Smt. Jahanara
Begam Vazeer Lala Khan that her husband Mr. Vazeer Khan is
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missing since 21.05.1996 and missing complaint dated
09.06.2003 was lodged at Bhandup police station. The
certifcates Exh-9 and 10 issued by Bhandup police station are
evident to show that complaint was registered about missing
person Mr. Vazir Khan and is untraceable as per the record of
police station. Public notice issued in “PRAHAR” newspaper
which refects that despite publication of the said notice, Mr.
Vazir Khan is untraceable.
10. Considering the evidence of Smt. Jahanara Begam
Vazeer Lala Khan, relevant documents i.e. complaint lodged in
Bhandup police station and certifcate Exh-9 and Exh-10 issued
by Bhandup police station, it has come on record that Mr. Vazir
Khan is untraceable.
11. Section 107 and 108 of Indian Evidence Act, 1872
reads 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 afrms 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
afrms it.
In the scheme of Indian Evidence Act, Section 108 is an
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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 Section-107 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 afairs 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.
12. Learned Advocate for plaintif has fled written
argument at Exh-24. The gist of the said argument is that from
the certifcates issued by Bhandup police station, it has come
on record that Mr. Vazir Khan is missing since 21.05.1996 and
therefore plaintif is entitled for the relief of declaration as
sought.
13. In order to support her contention, learned Advocate
for plaintif has cited the Judgment in the matter of Smt. Swati
w/o Abhay Deshmukh and ors. V/s. Mr. Abhay s/o
Purushottam Deshmukh & ors. in Second Appeal
No.18/2016, dated 26.02.2016.
It has been observed by Honfble High Court, Nagpur
Bench that :
The Civil Court acting under Section-9, has inherent
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powers in its plenary jurisdiction de hors with
reference to Section 34 of the Specifc Relief Act to
grant relief qua Section 108 of the Evidence Act.
Considering the observations in the cited judgment and
in view of the dictum laid down by Honfble Supreme Court in
“LIC of India V/s. Anuradha AIR 2004 SC 2017”, that the
presumption as to death by reference to Section-108 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.
Vazir Khan has not been heard of by the persons who would
have naturally heard of him since 21.05.1996.
14. The copy of judgment in Suit No. 2820/2008 is fled
on record. From the said judgment it appears that the suit of
present plaintif fled for declaration of civil death of Mr. Vazir
Khan was dismissed on the ground that notice u/s 80 of Code of
Civil Procedure was not issued to the State. The fndings on
issue No.2 that whether plaintifs prove that defendant No.
1(the deceased) is not seen or heard by anybody since 1996 is
answered as does not survive. It is held that the suit is not
maintainable as the plaintifs have not fulflled the conditions
u/s 34 of Specifc Relief Act. Therefore, the said issue was not
fnally heard and decided. In view of the observations In LIC of
India V/s Anuradha and Swati Abhay Deshmukh V/s Mr.
Abhay Deshmukh and ors (cited supra) the suit is
maintainable. The plaintif has also complied the mandate of
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Section 80 of C.P.C. From the documents i.e. complaint lodged
in Bhandup police station and certifcate Exh-9 and Exh-10
issued by Bhandup police station, it has come on record that
Mr. Vazir Khan is untraceable. Accordingly, point No. 1 is
answered in afrmative.
As to Point No.2:-
15. Considering the evidence adduced on record
and the documents relied on behalf of plaintif, I am of the
opinion that plaintif is entitled for the relief of declaration of
civil death of Mr. Vazir Khan. In view of the fndings and
reasons for point No.1, plaintif is entitled for relief of
declaration as sought. The plaintif has claimed the declaration
of civil death of Mr. Vazir Khan against defendant/State of
Maharashtra. Therefore, she shall bear the cost of suit.
Resultantly, issue No. 2 is answered in afrmative and for the
answer of point No.3, I pass following order.
ORDER
1) Suit is decreed.
2) Plaintif shall bear her own cost.
3) It is declared that Mr. Vazeer Lala Khudiwala Khan @ Vazir
Kudai Lala is presumed to be dead as he is missing since
21.05.1996.
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4) Decree be drawn accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date :- 05/02/2020
Dictated on : 05.02.2020
Transcribed on : 07.02.2020
Signed on : 12.02.2020
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No.750/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
12.02.2020 03.11 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 05.02.2020
Order signed by P.O. on 12.02.2020
Order uploaded on 12.02.2020
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