The High Court allowed the second appeal, holding that the suit for declaring a person dead under Section 108 of the Evidence Act was maintainable since notice under CPC was dispensed with. The court set aside lower appellate findings and allowed the original suit.
Second appeal allowed; judgment and decree of Courts below set aside; Suit O.S.138 of 2001 allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated on 02.02.2017
CORAM
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
S.A.No. 731 of 2007
P.Natarajan ....Appellant/Appellant/Plaintiff
Vs.
1. State of Tamilnadu rep
by District Collector,
Erode District,
Erode.
2. The Tahildar,
Taluk Office,
Perundurai Taluk,
Erode District.
3. The Superintendent of Police
Erode District Police Office,
Erode, Erode District.
4. The Inspector of Police,
Uthukuli Police Station
Uthukuli, Perundurai
Taluk, Erode District. ...Respondents/Respondents/Defandants
Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 24.11.2004 made in A.S.No.49 of 2004 on the file of the Principal District Court, Erode confirming the judgment and decree dated 15.12.2003 made in O.S.No.138 of 2001 on the file of the District Munsif Court-cum-Judicial Magistrate, Perundurai.
This second appeal is directed against the concurrent findings of the Courts below, by dismissing the suit filed by the appellant herein stating that his father Ponnusamy was not heard for more than seven years and therefore to declare him presumed to a dead person as contemplated in Section 108 of
Indian Evidence Act. The plaintiff was examined as P.W.1 and one independent witness Manian was examined as P.W.2 and the paper publication was marked as Ex.A.1. The Courts below dis-believed the same and refused to grant the relief as the plaintiff not examined his mother and sister to substantiate his claim. The first appellate Court also held that the suit itself is not maintainable for the failure on the part of the plaintiff/appellant to take steps to issue notice as provided under Section 80 of C.P.C.
a) Whether the lower appellate Court is right in holding that the suit is not maintainable for want of notice under Section 80 C.P.C. especially when an application to dispense with notice was filed and ordered by the trial Court?
b) Whether findings of the Court below are correct in law for not drawing the legal inference under Section 108 of Evidence Act?
“12. Neither Section 108 of Evidence Act
nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to
be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years absence and being unheard of having elapsed before that time. The presumption stands un-beutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption by of evidence, factual or circumstantial, and the onus of proving t hat the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death.
The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life of death is in issue. Though it will be presumed that the 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. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days at any time short of it. 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. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise.”
“ 107. Burden of proving death of person known to have 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. 108. Burden of proving the 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”
was laid on 05.10.2001 which is after the expiry of the statutory period of seven years. Therefore this Court does not find any legal impediment for granting reliefs sought for by the appellant/plaintiff.
3 issues framed by the court
Whether the suit was not maintainable due to failure to issue notice under Section 80 of CPC despite application to dispense with notice.
Whether the courts below erred in not drawing a legal inference under Section 108 of Indian Evidence Act regarding presumption of death.
Whether the presumption of death under Section 108 of Evidence Act applies when a person has not been heard of for more than seven years.
Colour shows how this judgement treated each authority
Life Insurance Corporation Vs AnuradhaRelied on¶17
Life Insurance Corporation Vs Anuradha 2004 (2) CTC 552
4 provisions across 2 enactments
P. Natarajan
State of Tamilnadu
Tahildar, Perundurai Taluk
Superintendent of Police, Erode
Inspector of Police, Uthukuli
G. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
