Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 30.08.2019
Registered on : 03.10.2019
Decided on : 18.10.2024
Duration : 06 Y : 01 M : 18 D
EXHIBIT-.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO. OF 2644 OF 2019
(C.N.R.No.MHCC01-009063-2019)
Mr. Prabhakar Yashwant Jagdale ]
Aged 78 years of Mumbai, ]
Indian Inhabitant, residing at : OM Shriram]
Co-Op. Hsg. Soc. Ltd. 2/B, Ram Ratan ]
Trivedi Road, Mulund (W), ]
Mumbai-410 080 ] …. Plaintiff.
Versus
1. The State of Maharashtra ]
Through the Govt. Pleader ]
having their office at City Civil Court, ]
Mumbai. ]
2. The Mahanagar Co-op. Bank Ltd. ]
a Co-operative Bank, having their branch ]
office at Mulund (W), Mumbai & registered]
office at Hiramani Market, Ground Floor, ]
Dr. B. A. Road, Lalbaug, Mumbai – 400 012 ]
3. The Incharge of Mulund Police Station ]
Mulund (E), Mumbai – 400 081. ] ....Defendants.
Appearances :
Learned Adv. Ms. Samiksha Kamble for the plaintiff.
Learned Adv. Mr. Amit Kapse for defendant Nos.1 and 3/State.
Learned Adv. Mr. D. R. Talankar kar for defendant No. 2.
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Judgment 2 S.C. Suit No.2644-2019
CORAM : HIS HONOUR JUDGE
SHRI. V. S. KHOT
(C.R.NO.09)
DATE : 18th OCTOBER, 2024
JUDGMENT
(delivered on 18th October, 2024)
01. This suit is instituted for declaration that the missing
person is dead and for issuance of death certificate of missing person
under the provisions of Section 108 of the Indian Evidence Act.
02. The facts of the case can be stated as under :
The plaintiff is a friend of the missing person and residing at ,
Mumbai. His friend turned missing from Mulund, Mumbai. The
plaintiff took the search of his friend but he could not trace his
whereabouts. Finally, he approached to the police. Police station,
Navghar, Mumbai registered the missing complaint No.33/2010 dated
29.09.2010and tried to search the missing person. Police finally
issued the certificate that person is missing. The plaintiff want the
death certificate of missing person for administrative purposes. The
plaintiff is a nominee to the fixed deposits and amount lying in S. B.
The plaintiff left with no alternative but to file suit for declaration and
issuance of death certificate. The plaintiffs prayed for the same.
03. After institution of the suit, the suit summons came to be
issued to the defendants. The defendant No.2 appeared in response to
the suit summons and filed the written statement and contended that
suit is bad for want of statutory notice under Section 80 of the C.P.C.
The missing person turned missing from Mulund, Mumbai since
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Judgment 3 S.C. Suit No.2644-2019
September, 2010. The police tried to search at their level best but
could not trace him. The suit is misconceived and not maintainable. It
does not reveal any cause of action. The suit is liable to be dismissed.
04. In view of rival contentions of the suitor, my learned
predecessor framed issues vide Exh.06 and I reproduced the said
issues which are described below alongwith reasons for findings as
mentioned hereinafter.
Sr. no. Issues Findings
1. Whether the plaintiff is entitled to a
decree for declaration that Shri. Ashok
Laxman Bhosale is presumed to be dead
as per Section 108 of the Indian
Evidence Act?
In the
affirmative.
2. Whether the plaintiff is entitled for a
Death Certificate of Shri. Ashok Laxman
Bhosale to be issued by B.M.C.?
In the
affirmative.
3. Whether the plaintiff is entitled for the
relief of declaration as prayed?
The plaintiff is
entitled to the
declaration of
death of missing
person but he is
not entitled to
declaration made
in prayer clause
(2)
4. What order ? As per final
order.
REASONS
05. This suit is instituted by the plaintiff, therefore, burden of
proof under Section 101 of Indian Evidence Act lies upon him and in
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Judgment 4 S.C. Suit No.2644-2019
order to discharge the said burden, the plaintiff examined himself. The
plaintiff relied upon the following documents viz., Original passbook
of S. B. A/c. No.58/10584 (Exh.09), original letter dated 23.11.2017
(Exh.10), original letter dated 16.12.2017 issued by the Navghar
Police station (Exh.11), xerox copy of letter dated 15.01.2018
(Exh.12), original reply of the bank dated 19.01.2018 (Exh.13),
original letter dated 14.07.2018 addressed to Navghar police station
by plaintiff (Exh.14), original reply letter dated 17.08.2018 of
Navghar police station to plaintiff (Exh.15), original letter dated
26.12.2018 with the xerox of other papers, viz. PAN card, Aadhar Card
and affidavit (Exh.16), xerox copy of the letter dated 03.06.2019 of
the defendant Bank (Exh.17). The plaintiff filed evidence close pursis
vide Exh.18. The plaintiff in his oral evidence deposed that missing
person was his friend. He turned missing from Mulund, Mumbai since
September, 2010. He could not be traced by him as well as police. He
approached the police to register the missing complaint and issue
certificate that friend of plaintiff is still missing. The other side cross-
examined the plaintiff wherein he admitted that he had not issued
notice to BMC before filing the suit. He had not published notice in
newspaper. He did not approach to BMC before filing the suit.
06. The oral evidence of plaintiff as well as documents make it
clear that the missing person was a friend of plaintiff and he turned
missing since September, 2010. Plaintiff as well as police could not
trace the missing person. The period of 7 years or more have been
elapsed from the date of missing of friend of plaintiff. There is a
provision under Section 108 of the Indian Evidence Act that missing
person can be declared dead, if, he is missing for 7 years or more. The
plaintiff is entitled for the declaration as prayed.
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Judgment 5 S.C. Suit No.2644-2019
07. The defendant No.2 filed the written notes of arguments and
submitted that, the plaintiff and missing person were working in Premier
Automobiles limited, Kurla, but there is no inquiry made by the plaintiff
in this regard, whether there are legal heirs available and existed. The
plaintiff’s claim is on the point of presumption of death. He is also
claiming the property of missing person. He is a nominee and nominee is
a trustee only. The undertaking be furnished by the plaintiff that, he
would disburse the amount to the heirs of missing person. The plaintiff’s
side accordingly filed the undertaking wherein it is mentioned that, he
would distribute the amount to the legal heirs of the missing person and
defendant No.2/Bank will not be responsible for any third party claim.
08. This case is instituted for the declaration of death. The
plaintiff is claiming the declaration. As held already, the plaintiff is a
friend and nominee of the missing person’s assets lying in the bank. Till
today, nobody appeared/filed his claim before the defendant No.2
regarding the assets. The plaintiff is certainly entitled to claim the
declaration of death of missing person. The missing person as per the
pleadings was a friend and they were working in the company. They were
having very close contact with each other. It is also stated by the plaintiff
that, they resided jointly for some time. The plaintiff being the nominee
is entitled to claim the declaration of death from the Court. As far as
security to the assets are concerned, this court is having no concern with
the assets of the deceased person. The assets of the deceased person are
lying in the bank and as per the available record, the plaintiff is the
nominee. This Court is not going to direct the delivery of assets to
anybody. This Court is concerned with the fact of declaration of death
and the fact of missing. It is for the bank to take the security while
considering the claim of the plaintiff. Even if, the declaration is allowed,
it does not mean that, the bank should give the money to the plaintiff. It
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Judgment 6 S.C. Suit No.2644-2019
is for the bank to conduct it’s inquiry and come to the conclusion
whether the plaintiff is entitled to the money or not. At the same time,
the bank is at liberty to seek the legal heir certificate or any such
document from the plaintiff. As far as, the declaration is concerned, the
plaintiff is nominee and he is a friend of the missing person. On the basis
of nominee, he can claim the money and for that, he requires the
declaration of death. The locus standi of the plaintiff for claiming such a
reliefs is the nomination made by the missing person. The plaintiff can
claim the money for giving it to legal heirs. If, he finds any legal heir,
then he can take the money from bank and give it to the legal heirs. The
declaration of death is having no concern as regards to the property. The
disposal of the property is in the hands of the bank and disposal should
be made as per the law and rules in that respect. So, I find no reason to
ask the plaintiff to furnish any security for the assets. It is apparent that,
the plaintiff has furnished one undertaking today before this Court. The
said declaration is kept with the record.
09. The plaintiff is praying for issuance of death certificate. He
never approached to the BMC for issuance of death certificate. As far
as the death certificate is concerned, the plaintiff is entitled to receive
it under the patronage of Section 108 of the Indian Evidence Act. The
plaintiff has completed all the formalities and entitled to the relief
claimed. The plaintiff has not served the notice under Section 80 of
C.P.C. and Section 527 of MCGM Act for prior to institution of the suit
but plaintiff is not challenging the action or act of any public servant,
therefore, the suit is not bad for want of above notices. The plaintiff is
also entitled for the death certificate under Section 108 of the Indian
Evidence Act i.e. under the presumption mentioned in Section 108 of
the Indian Evidence Act. The plaintiff by prayer clause (b) has prayed
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Judgment 7 S.C. Suit No.2644-2019
that, it be declared that, he is a nominee appointed by the missing person
in regard to the property lying with the bank together with interest and
locker property. The claim of the plaintiff is controverted by the
defendant No.2/Bank. In this case, the plaintiff is claiming the
declaration in respect of interest and bank locker, but he was never
nominated for the locker contents. As far as, the interest is concerned,
the interest is covered in the FDs itself. He is a nominee in respect of FDs
and SB only. And letter of bank show that, interest is covered in
nomination. So no declaration regarding interest is required. The plaintiff
is not entitled to any such declaration as he was not nominated for the
locker contents. In view of above said reasons, my answer to issue Nos.
1 and 2 are in affirmative and my answer to point No.3 is ‘the plaintiff
is entitled to the declaration of death of missing person, but he is not
entitled to the declaration of prayer clause(b). In view of
circumstances, the parties are required to bear their own costs. Finally,
I am inclined to pass following order resulting in grant of declaration
and issuance of death certificate. Hence, the following order :
ORDER
1. The suit No.2644 of 2019 is hereby partly decreed.
2. It is hereby declared that friend of plaintiff by name
Shri. Ashok Laxman Bhosale is dead (Civil death) under the
provision of 108 of Indian Evidence Act.
3. The death certificate of friend of plaintiff by name Shri. Ashok
Laxman Bhosale be issued under Section 108 of Indian
Evidence Act (presumption of Civil Death).
4. No any order as to costs.
5. The decree be drawn up accordingly.
(V. S. KHOT)
Judge,
City Civil Court,
Date: 18.10.2024 Gr. Bombay.
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Judgment 8 S.C. Suit No.2644-2019
Dictated on : 18.10.2024
Transcribed on : 18.10.2024
Signed on : 24.10.2024
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24.10.2024 At 04.50 P.M. Ms. Manisha D. Hirole
UPLOAD DATE AND TIME Stenographer, Grade-I
Name of the Judge (With Court Room
Number)
HHJ SHRI. V. S. KHOT
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
18.10.2024
Judgment/Order signed by P.O. on 24.10.2024
Judgment/Order uploaded on 24.10.2024
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