Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010042872020
Lodged on : 29.09.2020
Registered on : 01.02.2022
Decided on : 03.01.2024
Duration : 03 Y : 03 M : 05 D
EXHIBIT-15
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 199 OF 2022
(C.N.R. NO. MHCC-004287-2022)
Mrs. Pratibha Chandrakant Khokale, ]
Maidenly Miss. Pratibha Gangadhar Shimoga ]
Age 73 years, ]
Residing at Orbit Heights, Annexe-1, 301, ]
Nana Chowk, Tardeo, Mumbai- 400 007. ] ... Plaintiff.
V/s.
1. The State of Maharashtra, ]
Through Senior Police Inspector, ]
Gamdevi Police Station, ]
Gamdevi, Mumbai – 400 007. ]
2. Assistant Municipal Commissioner, ]
MCGM ‘D” Ward Office, Gamdevi, ]
Mumbai – 400 007. ] ...Defendants.
Advocates Mr. Mohd. Hussain for the plaintiff.
Advocate Ms. Priyanka Gaonkar h/f. Adv. Martina Sakpal for Defendant
No.1/State.
Advocate Ms. Chandramore for defendant No.2/BMC.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 3rd JANUARY 2024.
-- 1 of 8 --
2
JUDGMENT
Present suit is instituted for the relief of death declaration
that Kumari Meena Gangadhar Shimoga is presumed to be Civil dead as
she has not been heard of for more than 7 years.
2. It is the case of plaintiff that plaintiff is the married sister of
Kumari Meena Gangadhar Shimoga who went missing on 02.05.2001
from Gamdevi, Mumbai. The plaintiff took search of her sister but she
could not find her. Hence she lodged missing complaint of her sister on
02.05.2001 with Gamdevi Police Station, Mumbai and the police
registered said complaint and recorded missing report dated
02.05.2001. Thereafter, plaintiffs, as well as police made every possible
efforts to trace Kumari Meena Gangadhar Shimoga however, she could
not be found even-after due and diligent search. Gamdevi Police Station
issued missing certificate on 10.01.2020.
3. It is further contention of the plaintiff that her sister’s
whereabouts are not known for last more than seven years. The cause
of action has arisen at Mumbai. Hence, this Court has jurisdiction to
entertain, try and dispose of this Suit. Hence, the plaintiff has sought
declaration that this Hon’ble Court be pleased to make an order of
presumption of death of Kumari Meena Gangadhar Shimoga who is not
heard of for more than seven years under section 108 of Indian
Evidence Act, 1908.
4. The Defendant No. 1 filed written statement vide Exh.05
and resisted the claim of plaintiff. Defendant No.2 failed to file written
statement. Hence, suit came to be proceeded without written statement
-- 2 of 8 --
3
of defendant No.2.
5. In view of pleadings, following issues arises my
determination, I have recorded my findings to each of them for the
reasons stated below.
Sr.
No.
ISSUES FINDINGS
1. Wether the plaintiff is entitled to a decree
for declaration that Kumari Meena
Gangadhar Shimoga is presumed to be dead
as per Sec. 108 of the Indian Evidence Act?
In the
Affirmative
2. Whether the plaintiff is entitled for a Death
Certificate of Kumari Meena Gangadhar
Shimoga to be issued by B.M.C.?
In the
Affirmative
3. Whether the plaintiff is entitled for the relief
of declaration as prayed ?
In the
Affirmative
4. What Order and decree ? As per Final Order
R E A S O N S
AS TO ISSUE NOS.1 TO 3 :
6. As all the points are related with each other, they are
discussed together to avoid repetition.
7. The plaintiff has filed affidavit of evidence in lieu of
Examination-in-Chief of Power of Attorney Mr. Pandharinath Mukta
-- 3 of 8 --
4
Avhad at Exhibit-8. He has deposed on oath and he has reiterated all
the contentions in the plaint in the Affidavit of Evidence. He was cross-
examined by the advocates of defendants. In cross examination he has
stated that missing person is having only legal heir i.e. her sister,
plaintiff, who is residing in Germany. He stated that they had not issued
notice to BMC prior to institution of the suit.
8. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.9. The plaintiff has produced on
record copy of Original Special Power of Attorney dated 27.02.2020
(Exh.10), Original Death Certificate (Exh-11), Copy of Missing Report
dated 02.05.2001 issued by the Sr. Inspector of Police, Gamdevi Police
Station (Exh.12), Copy of original Certificate of Missing dated
10.01.2020 (Exh.13).
9. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the sister of
the plaintiff went missing since 02.05.2001. Therefore, she ought to has
instituted the suit within three years from the date of cause of action, to
which she failed. Hence, suit is barred by law of limitation. In reply, the
learned advocate for the plaintiff submitted that the plaintiff did not
hear anything about her sister Kumari Meena Gangadhar Shimoga since
02.05.2001 and the cause of action for institution of the suit is recurring
one and until the plaintiff realized that her sister Kumari Meena
Gangadhar Shimoga cannot be traced, she cannot be compelled to
institute the suit for declaring her dead. Therefore, the suit is within
limitation. I find substance in the argument advanced on behalf of the
plaintiff. The cause of action for filing the present suit is recurring one
and there is continuous cause of action and therefore, it cannot be said
-- 4 of 8 --
5
that the suit is barred by law of limitation. Therefore, submission made
by the learned advocate for the defendants in this regard cannot be
accepted. Thus, it is crystal clear that the suit is very well within
limitation.
10. Here reference needs to be made to section 108 of the
Indian Evidence Act which runs as under;
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.
11. In the present case, it is evident that the sister of the
plaintiff went missing since 02.05.2001. The plaintiff has deposed on
oath that she took all the efforts to find her and she also lodged missing
complaint with police, but police also could not trace him. Despite of
their efforts, she could not find the missing person. Thus, it is proved
from the evidence produced on record by the plaintiff that her sister
was missing since 02.05.2001 and despite all the efforts to find her, she
could not be found. Therefore, presumption under section 108 of the
Indian Evidence Act comes into play. Section 108 of the Indian Evidence
Act enables the Court under the circumstances stated therein to draw
the statutory presumption that a man is not alive unless the contrary is
proved by the opposite party. In the present case, nobody has come
forward to state that the missing person is alive. Even the defendants
have not raised contention that the missing person is alive. Therefore, in
-- 5 of 8 --
6
such circumstances, presumption under section 108 of the Indian
Evidence Act can be raised in this case.
12. In view of above documents and the oral evidence, plaintiff
has proved that Kumari Meena Gangadhar Shimoga went missing
since 02.05.2001. The defendants have not disputed the said fact that
she is still missing and her whereabouts are not traced. As stated above,
the legal presumption is attracted under section 108 of the Evidence Act
that she is dead. I therefore, hold that the plaintiff is entitled for
declaration to that effect.
13. The State is under statutory obligation to maintain the
record of birth and death of citizens. Therefore, in view of above
discussion, the plaintiff is entitled for death certificate of Kumari Meena
Gangadhar Shimoga to be issued by the defendant No.2.
14. In the circumstances above, I have come to the conclusion
that plaintiff is entitled to the declaration as prayed for. Accordingly, I
answer Issue Nos.1 to 3 in the affirmative and in answer to Issue No. 4,
I proceed to pass following order.
ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the sister of the
plaintiff Kumari Meena Gangadhar Shimoga is not
being heard of for more than last seven years
and she is Civil Dead.
3. The defendants are directed to register the death
of Kumari Meena Gangadhar Shimoga and to
-- 6 of 8 --
7
issue death certificate accordingly.
4. No order as to costs of the suit.
5. Decree be drawn up accordingly.
6. The original documents, if any, be returned to
the plaintiff after the appeal period is over.
7. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 03.01.2024 Gr.Mumbai.
Dictated on : 03.01.2024
Typed on : 03.01.2024
Signed on : 05.01.2024
-- 7 of 8 --
8
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05/01/2024 At 5.30 P.M. Ms. Manisha Hirole
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
03.01.2024
Judgment/Order signed by P.O. on 05.01.2024
Judgment/Order uploaded on 05.01.2024
-- 8 of 8 --