Case Note & Summary
The appellant, Vishwesh Dogra Suvarna, filed a suit in the Trial Court seeking a declaration that his father be declared as 'dead'. The father had been missing since 8 April 2003, and the plaintiff had lodged a complaint with the police, obtained a police certificate, and published newspaper advertisements, but the father was not traced. The Trial Court dismissed the suit on the ground that no evidence was led regarding the father's memory loss and that the plaintiff failed to prove he was the sole legal heir. The appellant appealed to the Bombay High Court. The High Court framed the issue of whether the Trial Court was justified in refusing the declaration. The Court held that the presumption under Section 108 of the Indian Evidence Act, 1872 applies when a person is missing for seven years and not heard of by those who would naturally have heard of him if alive. The plaintiff had produced sufficient evidence including a police complaint, certificate, ration card, birth certificate, passport, and newspaper advertisement. The Court found that the Trial Court erred in requiring evidence of memory loss and in not applying the presumption. The appeal was allowed, the judgment of the Trial Court was set aside, and the father was declared dead. The Court directed the authorities to issue a death certificate accordingly.
Headnote
A) Evidence Act - Presumption of Death - Section 108 Indian Evidence Act, 1872 - Suit for declaration of father as dead - Plaintiff son filed suit seeking declaration that his father be presumed dead as he was missing since 8 April 2003 and not heard of for over 7 years - Trial Court dismissed suit on ground that no evidence of memory loss or that plaintiff is sole heir - Held that presumption under Section 108 applies when a person is missing for 7 years and not heard of by those who would naturally have heard of him if alive; plaintiff's evidence of police complaint, certificate, ration card, birth certificate, passport, newspaper advertisement sufficient to shift burden on defendant - Appeal allowed, father declared dead (Paras 4-6).
Issue of Consideration
Whether the Trial Court was justified in refusing to grant a declaration that the plaintiff's father be declared as 'dead' despite evidence of him being missing for over 7 years.
Final Decision
Appeal allowed. Judgment and order dated 31 October 2015 of the Trial Court is set aside. The father of the appellant is declared dead. The authorities are directed to issue a death certificate accordingly.
Law Points
- Presumption of death under Section 108 of the Indian Evidence Act
- 1872
- Burden of proof
- Missing person declaration
- Suit for declaration of death
