The Allahabad High Court while allowing an appeal said that it is true that Section 108 of the Evidence Act 1872 provides a presumption of civil death of a person who has been missing for more than seven years, but, if any person gets affected by the missing of such person either by express or implied denial by any of the person, than he can very well file suit for a declaration of the death of the person being his legal heir.
A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing a Second Appeal filed by Smt Raeesa Bano.
The appeal has been filed against the judgment dated 18.1.2016 passed by Additional District Judge, Lucknow in Regular Civil Appeal confirming the judgment and decree dated 31.8.2015 passed by Civil Judge (Senior Division), Mohanlalganj, Lucknow.
The appeal was admitted on 27.02.204 on the following substantial question of law “whether a suit for declaration of civil death of a person on the ground that he is missing for more than 7 years, is barred under Section 34 of the Specific Relief Act”.
The facts of the case are that the appellant had filed a suit for the relief that her husband is missing for more than 13 years; therefore, he may be declared dead in view of presumption under Section 108 of the Evidence Act. In her plaint, she specifically stated that she had lodged an FIR dated 31.05.2009, the publication in the newspaper and required format as well as notice u/s 80 CPC to the District Magistrate, Lucknow regarding missing her husband (Akhtar Ali) for more than 13 years.
It was also pleaded in the complaint that her husband was working in the Electricity Department, but he did not attend his duty for more than 13 years, and unless he is declared dead, she will not be able to get his service benefit. Though none of the respondents contested the above suit, even the State has supported the claim of the plaintiff appellant.
The Court noted that,
After hearing the parties and on perusal of the record, the Civil Judge (Senior Division) Mohanlalganj, Lucknow, vide order dated 31.08.2015, dismissed the suit on the ground that the suit for mere declaration of civil death without further relief is barred by Section 34 of Specific Relief Act, 1963.
Against the order of the Civil Judge, the plaintiff-appellant had also preferred an appeal before the District Judge, Lucknow, which was registered as Civil Appeal and the same was heard by Additional District Judge, Lucknow, who, after hearing the parties, rejected the appeal of the appellant on the same reasoning as of the Civil Judge.
Contention of counsel for the appellant is that under Section 34 of the ‘Act, 1963’ the legal heirs of the person who is missing for more than seven years can file a suit for declaration of his civil death, as this legal character will make him entitled to receive benefits in the missing person’s property.
Per contra, Additional Chief Standing Counsel has stated that though in the complaint, the appellant has mentioned that because of the non-declaration of death of her husband, who has been missing for more than 13 years, she could not get the service benefits of her husband from the Electricity Department as he was an employee of the Electricity Department, but the appellant has not impleaded Electricity Department as a party and also no consequential relief was sought, and the suit is only for a mere declaration, which is not maintainable under Section 34 of the Act, 1963.
The Court observed that,
After hearing the counsel for the parties and on perusal of the record, it appears that the suit in question was filed for the declaration of the death of Akhtar Ali (husband of the appellant) who was missing for more than 13 years, and because of this the plaintiff-appellant could not get the service benefit of Akhtar Ali, who was working as a Lineman in Electricity Department. Therefore, the suit in question is not only a declaration of civil death but also to get service benefits for Akhtar Ali.
From the perusal of Section 34 of the Act, 1963 and its proviso, it is clear that it does not bar the suit for declaration of civil death of a person, but it simply regulates the suit which is in the nature of mere declaration without seeking further relief, which the plaintiff is able to seek, but when there is no requirement for further relief, then seeking further relief is not necessary. The declaration seeks to clear what is doubtful, and it prevents future litigation by removing existing causes of controversy. It gives a remedy to a person against all persons who not only claim adverse interest to his own but against all those who may do so, and it is intended that all such claims may once and for all be determined in one suit.
Declaring a person’s civil death is a substantial relief and has an immediate consequential effect. On the declaration of the death of a person, benefits are accrued on the legal heirs of the person declared as dead, therefore relief of all such benefits cannot be sought vaguely in the garb of further relief. Even Section 34 of ‘Act, 1963’ itself permits seeking declaration without further relief except in those cases where without seeking relief, mere declaration has no effect and such is not a position in the declaration of civil death of a person by a legal heir. Therefore, this Court holds that a suit for mere declaration of civil death is very well maintainable and is not barred by Section 34 of the ‘Act, 1963’ merely because further relief was not claimed.
Though it is true that Section 108 of the Evidence Act 1872 provides a presumption of civil death of a person who has been missing for more than seven years, but, if any person gets affected by the missing of such person either by express or implied denial by any of the person, than he can very well file suit for a declaration of the death of the person being his legal heir. Though, provision of Section 34 of the ‘Act, 1963’ provides that a suit for mere declaration is not maintainable if the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.
But in the case, the basis of the suit itself was to get the service benefit of the late Akhtar Ali from the Electricity Department and for that declaration of the death of Late Akhtar Ali is necessary. For another reason, no further relief is required in the case regarding seeking the death benefit of Late Akhtar Ali because on the declaration of civil death of Late Akhtar Ali, the Government Department will respect the same.
“In this case, there is no averment in the complaint that the Electricity Department had denied to pay service benefits or there is apprehension of none payment despite the decree of the civil Court for the declaration of the civil death of Late Akhtar Ali. On declaration of civil death of Akhtar Ali, the consequence will be that his wife, along with other legal heirs, would be entitled to the property and service benefit of the late Akhtar Ali as per the law. Relief of the same is not required to be pleaded as the same will automatically flow to them after the declaration of his civil death. Therefore, even if no specific relief is sought against the Electricity Department, even then the suit for the declaration of the death of the husband of the appellant cannot be dismissed as not maintainable under Section 34 of the Act, 1963.
From the material available on record, it is undisputed that Late Akhtar Ali was missing for more than 13 years, and the appellant has completed all required formalities, including the lodging of FIR. Therefore, there is sufficient material to declare the civil death of Late Akhtar Ali at the instance of the appellant, who is his wife”, the Court further observed while allowing the appeal.
In view of the above analysis, the Court found that the order of the Civil Judge and the first appellate Court suffers from illegality, which is apparent on the face of the record. Therefore, the judgement dated 18.1.2016 passed by the Additional District Judge, Lucknow in Regular Civil Appeal and judgment dated 31.8.2015 passed by Civil Judge (Senior Division), Mohanlalganj, Lucknow are hereby set aside.