Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in
Suit No.1576/2018
Presented on : 22.03.2018
Registered on : 25.03.2018
Decided on : 06.01.2020
Duration : Year1 Month9 Days11
Exh12
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
S.C. Suit No.1576 of 2018
(CNR NO. MH CC010040732018)
Anil C.Lohana
A/11 Shree Nav Bharat Apt
Mahul Road
Chembur
Mumbai 400 074. …..Plaintiff
V/s.
1) The State of Maharashtra,
Through The Senior Police Officer
Chembur Police Station
Opp Basant Park Society
Chembur
Mumbai 400 071
2) Health Officer/Ward Officer
M(West) Ward of MCGM,
Chembur
Mumbai 400 071 ....Defendants
Appearance:
Smt. Jyoti Maldev Advocate for the plaintiff.
Suit proceeded exparte against defendant nos.1 and 2
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 6 th January, 2020.
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Suit No.1576/2018
JUDGMENT
1. The plaintiff has filed the present suit u/s. 108 of the Indian
Evidence Act for declaration that Smt. Hiramani Chandulal Lohana(in
short Smt. Hiramani) be presumed to be dead.
2. It is averred by the plaintiff that mother of the plaintiff, Smt.
Hiramani was residing with him and left her residence situated at A10,
Nav Bharat Apartment, Opp. Nityanand Baug, Chembur, Mumbai on
01/06/2008 at about 9.00 a.m. The plaintiff lodged the missing
complaint with Chembur police station which is registered as AMR No.78
of 2008. On 02/06/2008, the investigation was followed and despite
due inquiry made from time to time, Smt. Hiramani could not be found.
3. On 02/06/2008, the Sr. Inspector of Crime Branch(for
missing person Centre), Mumbai issued the certificate to the registration
of the missing complaint. The public notice was issued in Times of India
in June 2008. However, Smt. Hiramani could not be traced out. The
certificate dated 25/02/2016 was issued by Sr. Inspector of Crime branch
to the effect that Smt. Hiramani was not traced out.
4. It is further averred that the plaintiff is the son of Smt.
Hiramani and he is entitled for declaration of presumption of death of
Smt. Hiramani. A public notice was issued in the Times of India in June
2008. Hence, the suit is filed.
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Suit No.1576/2018
5. In response to the Writ of summons, defendants failed to
appear. Therefore, the suit proceeded exparte against them.
6. Heard Ld. Advocate for the plaintiff. Following points arise
for consideration. Those are reproduced with the findings and reasons
which are stated as below:
SR. NOS. POINTS FINDINGS
1. Whether the plaintiff proves that
Smt. Hiramani Lohana has not
been heard of by the persons who
would have heard of her since the
date of missing for the period of
more than seven years, if she
would have been alive?
Affirmative
2. Whether the plaintiff is entitled
for the declaration as prayed for?
Affirmative
3. What order and decree? As per final order
REASONS
As to Point Nos.1 and 2:
7. In order to substantiate his claim, the plaintiff has filed
affidavit of examinationinchief at Exh.6. He has reiterated the
contentions raised in the plaint. In support of his contentions, he has
relied on certificates of registration of missing complaint issued by Sr.
Inspector at Exh.8 and 9, Society maintenance bill, MTNL bill and
electricity bill at Exh.10 colly.
8. It is averred by PW1 Shri. Anil Lohana that his mother Smt.
Hiramani is missing since 01/06/2008. Despite diligent search by the
concerned police station, she was not traced out. His evidence further
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reflects that eventually public notice was issued in the local Newspaper.
However, as per the record of concerned police station, Smt. Hiramani is
untraceable. Considering the evidence of PW1 Shri.Anil Lohana and
relevant documents i.e. certificates issued by Sr. Inspector, it has come
on record that Smt. Hiramani is untraceable.
9. 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 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.
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10. Learned Advocate for the plaintiff submitted that question as
to the death of Smt. Hiramani was raised for the flat A10, Nav Bharat
Apartment, Opp. Nityanand Baug, Chembur, Mumbai. It is further
submitted that since Smt. Hiramani is missing since 01/06/2008, the
plaintiff is entitled for the relief of declaration as sought.
11. 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
Smt.Hiramani has not been heard of by the persons who would have
naturally heard of her since 01/06/2008.
In the case in hand Smt.Hiramani is missing from 01/06/2008.
The certificate dated 25.02.2016, issued by the Sr. Inspector of Police,
Chembur Police station shows that Smt. Hiramani Chandulal Lohana is
untraceable. Therefore, plaintiff has proved that Smt.Hiramani Lohana is
missing for the period of more than seven years. Accordingly, Point
Nos.1 and 2 are answered in affirmative.
As to Point No.3.
12. In view of the findings and reasons for point Nos.1 and 2,
plaintiff is entitled for relief of declaration as sought. The plaintiff has
claimed the declaration of civil death of Smt.Hiramani Chandulal Lohana
against defendant/State of Maharashtra. Therefore, he shall bear the
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cost of suit. Resultantly, for answer of point No.3, I pass following
order.
ORDER
1) Suit is decreed.
2) Plaintiff shall bear his own cost.
3) It is declared that Smt.Hiramani Chandulal Lohana is presumed
to be dead.
4) Decree be drawn accordingly.
Date : 06/01/2020 (Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Judgment dictated on: 06/01/2020
Judgment transcribed on: 06/01/2020
Judgment signed on: 07/01/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
08.01.2020 11.15 a.m. Mrs.T.C.Kamble
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 06.01.2020
Order signed by P.O. on 07.01.2020
Order uploaded on 08.01.2020
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