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2016 DIGILAW 667 (KAR)

Meera Kini v. K. R. Kini

2016-09-01

B.V.NAGARATHNA

body2016
JUDGMENT : B.V. Nagarathna, J. Plaintiffs have preferred this appeal assailing judgment and decree dated 21-8-2008 passed in O.S. No. 7099 of 2004 by the VIII Additional City Civil Judge, Bengaluru. The Trial Court by the said judgment has dismissed the suit. 2. It is the case of the plaintiffs that K.R. Kini husband of plaintiff 1 and father of plaintiffs 2 to 4 was dead as he had in fact disappeared on 19-10-1993 and was not traced since then. Therefore, they sought a declaration that he was presumed to be dead. As already noted, plaintiff 1 is stated to be the legally wedded wife and plaintiffs 2 to 4 are the children of K.R. Kini. K.R. Kini was working in the Department of Telecommunication. He retired on attaining the age of superannuation on 30-9-2002. He was suffering from Alzheimer's disease. Despite treatment given to him, he was under constant watch as he would lose his memory often. On 19-10-1993, except his mother-in-law, when none of his family members was at home, he went out of the house to get cigarettes from a nearby shop. Thereafter, he did not return home. Plaintiff 1, on returning home, enquired from her mother about the whereabouts of her husband. She was informed that he went at about 4.001 p.m. in the afternoon to buy cigarettes from a nearby shop and did not return. Plaintiffs went in search of him and they informed his relatives and friends about his disappearance. The fact that he was missing was announced over Television channels and pamphlets were distributed and an advertisement was also given in the daily newspaper to bring him home. A complaint was also lodged before the Vijayanagar Police Station, so as to trace him, but the (efforts were in vain. They were informed by the police that he could not be traced. Plaintiffs also searched the houses of their friends and relatives, but their efforts were not fruitful. 3. As plaintiff 1 was getting old, she decided to make arrangements with regard to the house property and one LIC Policy worth Rs. 10,000/-, which was purchased by her husband. They were informed by the police that he could not be traced. Plaintiffs also searched the houses of their friends and relatives, but their efforts were not fruitful. 3. As plaintiff 1 was getting old, she decided to make arrangements with regard to the house property and one LIC Policy worth Rs. 10,000/-, which was purchased by her husband. She approached the Life Insurance Corporation (LIC) Office, who issued an endorsement stating that they could not release the amount under the Policy until she obtains a decree from a Competent Court that her husband was presumed to be dead or was dead, Plaintiffs submitted that he was not heard of for seven years. Therefore, they approached the Court by filing a suit on 22-9-2004 seeking a declaration that K.R. Kini had died. Incidentally, K.R. Kini was made the defendant in the suit. Subsequent to the institution of the suit, paper publication was taken out, but K.R. Kini, the defendant did not respond either to the suit summons, Court notices or paper publication. 4. In order to substantiate their case, plaintiff 1 filed her affidavit by way of examination-in-chief. She got six documents marked in support of plaintiffs' case. Obviously, there was no evidence from the side of the defendant. The Trial Court raised the following point for its consideration: "Whether the suit of the plaintiffs deserve to be decreed as prayed for and whether the declaration as sought in the plaint can be given?" After considering the oral and documentary evidence on record, the Trial Court answered the said point in the negative and dismissed the suit. 5. Being aggrieved by the dismissal of the suit, plaintiffs have preferred this appeal. During the pendency of this appeal, the Life Insurance Corporation of India was impleaded as a respondent after deleting respondent 1, defendant before the Trial Court, in respect of whom declaration was sought by the plaintiffs. 6. I have heard learned Counsel for the appellants and learned Counsel for the respondent-Life Insurance Corporation of India. 7. At the out set, learned Counsel for the respondent-Corporation submitted that in respect of the Policy that was taken by K.R. Kini, the LIC decided to release the amount under that Policy and, therefore, the claim made by the appellants herein has been settled. 7. At the out set, learned Counsel for the respondent-Corporation submitted that in respect of the Policy that was taken by K.R. Kini, the LIC decided to release the amount under that Policy and, therefore, the claim made by the appellants herein has been settled. He submitted that the said claim was settled after the dismissal of the suit, having regard to the long lapse of time i.e. from 19-10-1993 from whence the whereabouts of K.R. Kini have not been known. He, therefore, submitted that there could be no further claim made to the LIC concerning K.R. Kini. 8. Learned Counsel for the appellants contended that the Trial Court was not right in placing reliance on a decision of the Madras High Court in the case of N. Prem Ananthi v. Tahsildar, Coimbatore and Others AIR 1989 Mad. 248 , to dismiss the suit. She contended that in the said decision, a lady sought a certificate from the Tahsildar to the effect that she was a widow, in order to seek admission in a Government Medical College under the quota reserved for widows. The Madras High Court found that such a certificate could not be issued by the Revenue Officials based on a presumption that the lady was a widow. However, in that case, her husband was very much alive, but she had sought a false certificate. Learned Counsel submitted that the decision could not have been the basis for dismissal of the suit in the instant case. 9. Drawing my attention to Sections 107 and 108 of the Indian Evidence Act, 1872 ('Act' for short), learned Counsel submitted that those provisions are essentially rules with regard to burden of proof which would aid in determination of the issue raised and that on the basis of the said sections, the Trial Court out to have granted relief to the appellants. In support of her case, she placed reliance on a decision of the Hon'ble Supreme Court in the case of Life Insurance Corporation of India v. Anuradha (2004) 10 SCC 131. She contended that the Trial Court was not right in dismissing the suit and that the appeal may be allowed by decreeing the suit. 10. In support of her case, she placed reliance on a decision of the Hon'ble Supreme Court in the case of Life Insurance Corporation of India v. Anuradha (2004) 10 SCC 131. She contended that the Trial Court was not right in dismissing the suit and that the appeal may be allowed by decreeing the suit. 10. Having heard learned Counsel for the appellants and on perusal of the material on record as well as the original records, it is noted that the appellants-plaintiffs sought a declaration with regard to K.R. Kini, husband of plaintiff 1 and father of plaintiffs 2 to 4. In fact, K.R. Kini was arrayed as a defendant in the suit. They contended that since 19-10-1993, the whereabouts of K.R. Kini are not known. On his superannuation from the Department of Telecommunication, K.R. Kini was not keeping good health and that he was suffering from Alzheimer's disease and that on 19-10-1993 when he went out to a nearby shop to get cigarettes, he did not return. Obviously, in response to the suit summons, Court notices, newspaper publications, K.R. Kini did not respond. By way of examination-in-chief, plaintiff 1 filed her affidavit reiterating that her husband was suffering from Alzheimer's disease and on account of which, he would have lost his memory and that on 19-10-1993 when he went to a nearby shop at about 4.00 p.m. in the afternoon to get cigarettes, he did not return. All efforts to trace him were in vain. 11. In support of her case, she produced a photograph of her husband as Ex. P. 1 and pamphlets published and circulated giving details of her husband stating that he was missing with effect from 19-10-1993 as Ex. P. 2. A copy of the complaint given to the police station is at Ex. P. 3. FIR is at Ex. P. 4 and endorsement issued by the LIC requesting plaintiff 1 to obtain succession certificate and declaration of death of her husband is at Ex. P. 5. Endorsement stating that her husband could not be traced is at Ex. P. 6.1 have perused those documents. Those documents would cumulatively establish plaintiffs' case that since 19-10-1993, the husband of plaintiff 1 and father of plaintiffs 2 to 4 was not seen or heard of. P. 5. Endorsement stating that her husband could not be traced is at Ex. P. 6.1 have perused those documents. Those documents would cumulatively establish plaintiffs' case that since 19-10-1993, the husband of plaintiff 1 and father of plaintiffs 2 to 4 was not seen or heard of. The suit was filed subsequently on 22-9-2004 i.e, nearly 11 years after the date on which the whereabouts of K.R, Kini became unknown. 12. Sections 107 and 108 of the Act read as under: "107. Burden of proving death of person known to have been 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 that 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." Under Section 107, it is stated that when the question is whether a man is alive or dead and it is shown that he was alive within 30 years, the burden of proving his death is on the person who affirms it. Therefore, in the instant case, the burden of proof was on the plaintiffs. Section 108 is by way of an exception or a proviso to Section 107. It states that 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. It states that 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. In the instant case, Section 108 would apply as the plaintiffs who are the wife and children of K.R. Kini have approached the Court stating that he was not heard of for seven years and they are the persons who would naturally have heard of him as they are his family members of course, K.R. Kini himself was made a defendant in the suit and in fact there was no contest, but the fact remains that no other person came forward to prove that he was alive. Therefore, the burden of proving that K.R. Kini was not alive as he was not heard of for a period of seven years under Section 108 was on the plaintiffs in the first instance and if there was any contest to that evidence and any person contended otherwise, then, the burden of proving that K.R. Kini was alive would have shifted to the other person. But what is noted in the instant case is that the Trial Court has failed to approach the matter in the aforesaid manner vis-a-vis the plaintiffs. Instead, it relied upon the decision of the Madras High Court to hold that plaintiffs 1 and 2 to 4 could not seek a declaration to the effect that K.R. Kini had died. The factual matrix in the Madras decision is not similar to the one which occurs in the present case. In that case, the wife knew that her husband was alive. Even then, she approached the Revenue Officials to get a certificate that he was dead and that she was a widow and on that basis to seek a seat in the Government Medical College under the quota reserved for widows. Such is not the case herein. The plaintiffs have not approached the Court to seek a declaration despite having knowledge that K.R. Kini is alive or having knowledge that he is alive. The facts are quite different from what occurs in the Madras decision. Such is not the case herein. The plaintiffs have not approached the Court to seek a declaration despite having knowledge that K.R. Kini is alive or having knowledge that he is alive. The facts are quite different from what occurs in the Madras decision. Therefore, the Trial Court was not right in basing its reasoning on the decision of the Madras High Court and thereby declining to grant relief to the plaintiffs. 13. The Hon'ble Supreme Court in the case of LIC of India (supra) has considered the very issue under Sections 107 and 108 of the Act. After referring to Halsbury's Laws of England, the Hon'ble Supreme Court has stated that there is no difference in the English Law and the Indian Law on the subject. Reference has also been made to Manual of the Law of Evidence by Phipson and Elliott, wherein it has been stated that the presumption of death does not oblige the Court to presume that death occurred at anytime during the seven years, nor is there any presumption of law that life continued for any part of the seven year period. Placing reliance on two other decisions namely, N. Jayalakshmi Amtnal and Another v. R. Gopala Pathar and Another, 1995 Supp. (1) SCC 27 and Lal Chand Marwari v. Mahant Ramrup Gir, AIR 1926 PC 9 , the Hon'ble Supreme Court has held that the law laid down in N. Jayalakshmi Ammal's case revolves on the jurisprudential concept underlying Sections 107 and 108 of the Act with reference to commentaries by eminent jurists such as Sir John Woodroffe and Amir Ali, Law of Evidence, and M. Monir, Principles and Digest of the Law of Evidence, Sarkar on Evidence. Referring to Peter Murphy "A Practical Approach of Evidence" it has been stated that "the presumption is only that the subject died at sometime during the period; his death on any particular day will not be presumed, and must be provided by evidence if in issue". The Hon'ble Supreme Court has stated as under: "12. Neither Section 108 of the 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 Hon'ble Supreme Court has stated as under: "12. Neither Section 108 of the 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 unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at anytime 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 but of evidence, factual or circumstantial, and the onus of proving that 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. 13. A presumption assists a party in discharging the burden of proof by taking advantage of presumption arising in his favour dispensing with the need of adducing evidence which may or may not be available. Phipson and Elliott have observed in Manual of the Law of Evidence (11th Edn., at p. 77) that although there is almost invariably a logical connection between basic fact and presumed fact, in the case of most presumptions it is by no means intellectually compelling. In our opinion, a presumption of fact or law, which has gained recognition in statute or by successive judicial pronouncements spread over the years, cannot be stretched beyond the limits permitted by the statute or beyond the contemplation spelled out from the logic, reason and sense prevailing with the Judges, having written opinions valued as precedents, so as to draw such other inferences as are not contemplated. 14. 14. On the basis of the above said authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words: the law as to presumption of death remains the same whether in the Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of the Evidence Act, though Sections 107 and 108 are drafted as two sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards form the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or 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 or 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 airy logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at anytime 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. 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. 15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence, direct or circumstantial, and not by assumption or presumption. The burden of proof would lie on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely may it be permissible to proceed on the premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed." 14. Succinctly stated, the Hon'ble Supreme Court has held that though it would be presumed that the person is dead, but there is no presumption as to the date and time of death. There is no presumption as to the facts and circumstances under which a 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 permitted to be raised on expiry of six years and 364 days or at anytime 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 proceeding, the occasion for raising the presumption does not arise. 15. In the instant case, the plaintiffs approached the Court on account of an endorsement being issued by the LIC to the effect that the plaintiffs ought to have produced a succession certificate or some other document in order to claim the benefit under the Policy. It is under this context, the plaintiffs approached the Trial Court. 15. In the instant case, the plaintiffs approached the Court on account of an endorsement being issued by the LIC to the effect that the plaintiffs ought to have produced a succession certificate or some other document in order to claim the benefit under the Policy. It is under this context, the plaintiffs approached the Trial Court. But the Trial Court neither raised a presumption with regard to the death and obviously did not go into the question of date of death as the presumption with regard to K.R. Kini itself was not raised by the Trial Court while dismissing the suit. In my view, the approach of the Trial Court was not right having regard to the fact that the plaintiffs had established by adequate evidence to the effect that the whereabouts of K.R. Kini were not known since 19-10-1993 and therefore, after nearly 10 years he ought to have been presumed to be dead. Exs. P. 1 to P. 6 would clearly establish that his whereabouts was not known. Therefore, the presumption that he had not been heard of for seven years by those who would have naturally heard of namely, by his family members, who are the plaintiffs and therefore, he ought to be presumed to be dead ought to have been raised by the Trial Court. Therefore, the presumption that K.R. Kini is presumed to be dead is raised in the instant case. 16. But the further question is as to whether he died on 19-10-1993. Insofar as that aspect is concerned, the evidence let in by the plaintiffs is that he was not heard of from that date by his family members who would have naturally heard of, if he had to be alive and secondly, since then till they filed a suit on 22-9-2004 i.e. for a period of nearly a decade thereafter, he was not heard of. Even after the institution of the suit, to the suit summons, Court notices and newspaper publication, there was no response from either K.R. Kini himself or from any other person who could have come forward before the Trial Court to establish that he was indeed alive and not dead. Under the circumstances, the Trial Court could have also come to a definite conclusion that K.R. Kini was dead, even if no specific date of death could have been assigned. Under the circumstances, the Trial Court could have also come to a definite conclusion that K.R. Kini was dead, even if no specific date of death could have been assigned. In fact, the plaintiffs sought a declaration that he should be presumed to be dead after completion of seven years from the date of his disappearance i.e. seven years after 19-10-1993. In the absence of there being any contra evidence to the evidence of the plaintiffs, the Trial Court ought to have held that the plaintiffs had indeed established his death and having regard to the provisions of Section 108 of the Act, as K.R. Kini was not heard of for a period of seven years by the plaintiffs who are his family members and in the absence of there being any contra evidence, the Trial Court could have also held that his death had been proved and thereby granted a declaration. 17. In the circumstances, it is declared that K.R. Kini is dead and that his death would be reckoned as the date LIC settled the claim on the lapse of more than seven years after his actual disappearance, which was on 19-10-1993. It is also significant to note that despite dismissal of the suit, the LIC has settled the claim of plaintiff 1 possibly on account of lapse of time with effect from 19-10-1993. Therefore, the instrumentality of the State namely, Life Insurance Corporation of India has also raised a presumption about his death and settled the claim of plaintiff 1. 18. The appeal is allowed in the aforesaid terms by setting aside the judgment and decree of the Trial Court. No costs.