Final Order 1

Order Details: Copy of Judgment
Pdf Text: L.C. SUIT NO.2466-2019 1 Judgment
MHCC010046902019 Presented on : 22-04-2019
Registered on : 16-09-2019
Decided on : 26-10-2023
Duration : 4 years, 6 months, 4 days
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
L.C. SUIT NO. 2466 of 2019
Exhibit No.:
Smt. Jaya Raybhan Chabukswar ]
Age: 53 years, ]
Add: ZO-2, Vishvabharat Mitra Mandal, ]
Hanuman Nagar, Dairy Road, ]
S.G. Barve Road, Nehru Nagar, Kurla East, ]
Mumbai- 400024 ] ...Plaintiff
Versus
1) The Senior Inspector of Police ]
Nehru Nagar Police Station, ]
Kurla East, Mumbai 400024 ] ...Defendants 1
2) The Ward Officer ]
L Ward Mumbai, ]
S.G. Barve Marg, ]
Opp. Kurla Nagri Sahakari Bank, ]
Kurla West, Mumbai 400070 ] ...Defendants 2
Appearances:-
Ld. Advocate Neelam Gaikwad for Plaintiff.
Ld. Advocate Kapse for Defendant No.1/State.
Ld. Advocate Chandramore for Defendant No.2/BMC
CORAM : V. G. RAGHUWANSHI
JUDGE, (C.R.NO.08)
DATE : 26th OCTOBER, 2023
JUDGMENT
1) This is a suit for declaration that plaintiff’s husband Raybhan
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L.C. SUIT NO.2466-2019 2 Judgment
Kisan Chabukswar is dead and directions to defendants to record
and issue Death Certificate of Raybhan Kisan Chabukswar. Plaintiff
submits that she got married with Raybhan Kisan Chabukswar on
20.03.1982. She was residing with her husband at the address
mentioned in title clause. They have two daughters and two sons
out of this wedlock. Their daughters are married. She filed copies
of Pan cards of both daughters and sons, the Aadhar cards of her
daughters and sons. She is citizen of India. She is residing with her
sons and their wives. She has also filed copy of Ration Card.
2) Plaintiff submits that her husband Raybhan Kisan Chabukswar
went missing on 14.01.2012. Plaintiff tried to search him but he
was not found. She lodged missing report in Nehru Nagar Police
Station on 14.01.2012. Police also tried to search her husband. She
filed documents relating to search conducted by police. Their efforts
were fruitless. The police issued a Certificate No. TVR No. 43/2012
dated 21.01.2012. Thereafter, on 22.01.2013 police again issued a
certificate outward no. 743/2013. Plaintiff, her relatives and
friends also made sincere efforts to search Raybhan Kisan
Chabukswar but their efforts went in vein. Raybhan is still missing.
He is missing for more than 7 years. Therefore, plaintiff is entitled
to seek declaration of his death. Death Certificate of Raybhan is
necessary for disposal of Joint Family Properties of Raybhan.
Plaintiff being his wife is interested in getting such declaration. She
prayed for declaration that Raybhan Kisan Chabukswar is legally
dead as per Section 108 of Indian Evidence Act. She also prayed for
direction to Registrar to register death of Raybhan as on 14.01.2012
in records maintained by defendants under the Registration of Births
and Deaths Act.
3) It appears both defendants were served and they appeared but
they did not file their Written Statements. Therefore, matter was
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L.C. SUIT NO.2466-2019 3 Judgment
proceeded further without their Written Statement.
4) Plaintiff filed Affidavit of her Examination in chief and reiterated
her contentions in plaint. She stated that she was married to
Raybhan Kisan Chabukswar on 20.03.1982 (Exh. 8). She filed
photo copies of her Aadhar Cards and Aadhar Cards of her children
(Exh. 9 colly) to prove that she was residing at the address
mentioned in title clause of plaint. She also filed photo copy of
Ration Card (Exh. 10) to prove her address. She filed Certificate
issued by Sr. P.I. of Police Station Nehru Nagar, Mumbai (Exh. 11)
showing that Raybhan Kisan Chabukswar went missing on
14.01.2012. She also filed Certificate issued by P.I. Crime branch
(Exh.12) that MMR No. 3/2012 was registered in Police Station
Nehru Nagar on 14.01.2012. She filed certificate issued by P.I.
Nehru Nagar Police Station (Exh. 13) that MMR No. 03/2012 was
registered on 14.01.2012 and he was not found till 22.07.2013. She
also filed certificate dated 28.01.2019 certifying that Raybhan was
not found till 28.01.2019.
5) The plaintiff stated in her Affidavit of Examination in chief that
her husband is not found till date of her deposition in spite of all
efforts. Therefore, declaration be granted in her favour. She was
cross examined by Ld. Counsel of defendants but nothing was
brought on record to suspect credibility of this witness.
6) Thus, plaintiff proved that her husband is missing for more than 7
years. He has not been heard of or seen by people who would
naturally have heard of him or seen him if he had been alive.
Therefore, she is entitled to relief of declaration as sought for.
7) She also prayed for relief of mandatory injunction to defendant
no. 2 to register death and issue Death Certificate of Raybhan Kisan
Chabukswar. However, presumption under Section 8 of Indian
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L.C. SUIT NO.2466-2019 4 Judgment
Evidence Act is about death and there is no presumption as to time
and date of death of said person. Plaintiff did not lead any evidence
about date and time of death of Raybhan. Moreover, special
provisions/remedy is available for delayed registration of Births and
Deaths under The Registration of Births and Deaths Act, 1969. In
view of such provisions, this Court finds that there is implied bar to
jurisdiction of Civil Courts for directing defendant No. 2 to register
death of Raybhan Kisan Chabukswar and to issue death certificate.
8) For afore going discussion and reasons mentioned above, this suit
deserves to be allowed partly. Accordingly, I pass following order :-
ORDER
1) Suit is partly decreed.
2) It is hereby declared that Raybhan Kisan Chabukswar, resident
of ZO-2, Vishvabharat Mitra Mandal, Hanuman Nagar, Dairy
Road, S.G. Barve Road, Nehru Nagar, Kurla East, Mumbai 400
024, is dead.
3) Decree be drawn up accordingly.
(V. G. RAGHUWANSHI)
Judge
Dt.:26/10/2023. City Civil Court,
Gr. Mumbai
Dictated and Typed on : 26/10/2023.
Signed on: 26/10/2023.
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L.C. SUIT NO.2466-2019 5 Judgment
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27.10.2023 Mrs. A.V. Lele.
Name of the Judge (With Court room
no.)
SHRI V.G. Raghuwanshi (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
26/10/2023
JUDGMENT/ORDER signed by P.O.
on
26/10/2023
JUDGMENT/ORDER uploaded on 27/10/2023
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