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2018 DIGILAW 2169 (HP)

Ramesh Kumar v. General Public

2018-12-06

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - Aggrieved by the order passed by the learned trial Court on 05.11.2014, whereby the application filed by the appellants/petitioners for grant of succession certificate was ordered to be dismissed, the appellants have filed the instant appeal. 2. Notice of the appeal was issued to the general public, however, none has appeared on behalf of the general public. 3. In the application under Section 372 of the Indian Succession Act, filed before the learned Court below, it was averred that the appellants are the son and daughter of deceased late Shri Prem Singh son of Shri Dhan Singh, resident of village and P.O. Bhuntar, Tehsil Bhuntar, Distt. Kullu, H.P. The deceased was serving in Himachal Pradesh State Electricity Board, Sub-Division Bhuntar, District Kullu, H.P. as T-Mate and was posted in the Sub Division Bhuntar, Distt. Kullu, H.P. The deceased was having accounts in State Bank of India, Bhuntar and The Kangra Central Co-operative Bank Limited Branch Bhuntar and also a fixed deposit account in the latter bank. 4. The mother of the appellants i.e. Ram kali, wife of the deceased Prem Singh, had gone missing since 19.04.2006 and her whereabouts till the date of the filing of the petition was not known. It was contended that only the appellants were the legal heirs of deceased Prem Singh and, therefore, entitled to Succession Certificate in respect of the service benefits of the deceased Prem Singh and the amount lying in the saving bank accounts as also in the fixed deposit in the aforesaid banks. 5. On the basis of the aforesaid averments, the appellants/petitioners claimed the following reliefs:- (i) Release of amount lying in GPF account No. 35566 of deceased Shri Prem Singh, who was serving as T-Mate in H.P. State Electricity Board Sub Division Bhuntar, Distt. Kullu (H.P.) and other service benefits of the deceased Prem Singh from the date of his death amounting to Rs.2,12,624/- (GPF Amount) alongwith upto date interest thereon till payment. (ii) Release of amount of Saving Account No. 20041035298 of deceased Prem Singh lying in The Kangra Central Co- operative Bank Limited Branch, Bhuntar amounting to Rs.1055/- alongwith upto date interest thereon. (iii) Release of amount of Saving Account No. 11038796096 of deceased Prem Singh lying in The State Bank of India Branch Bhuntar amounting to Rs.2,851.35 alongwith upto date interest thereon. (iii) Release of amount of Saving Account No. 11038796096 of deceased Prem Singh lying in The State Bank of India Branch Bhuntar amounting to Rs.2,851.35 alongwith upto date interest thereon. (iv) Release of amount of Fixed Deposit Account of deceased Prem Singh in The Kangra Central Co-operative Bank Limited Branch Bhuntar vide account No. 461424 amounting to Rs.20,000/- alongwith upto date interest thereon. (v) RD Account in Post Office Bhuntar vide account No. 81801 amounting to Rs. 25,500/-. (vi) LIC Policy No. 152420079 with LIC, Kullu amounting to Rs.50,000/- (sum assured) plus bonus alongwith upto date interest. 6. Notice to the general public was issued by the trial Court, however, none put in appearance before it. Thereafter, the trial Court proceeded to record the evidence of the appellants and after evaluating the same, the petition filed by the appellants was ordered to be dismissed on the ground that they were unable to make out a case that both of them alone were entitled to Succession Certificate qua service benefits of the deceased on his death. 7. Aggrieved by the order passed by the learned trial Court, the appellants have filed the instant appeal on the ground that the findings recorded by the learned Court below are perverse and, therefore, deserves to be set aside. I have heard learned counsel for the appellants and have gone through the records of the case. 8. Before proceeding further, it would be necessary to state that on 11.10.2018, this Court issued notice to Ram Kali wife of deceased Prem Singh on her last known address but the same was returned back unserved with the report that no such person is residing at the given address. 9. Adverting to the record, it would be noticed that the specific case of the appellants in the application for grant of succession certificate was that their mother had gone missing since 19.04.2006 and her whereabouts were not known and, therefore, under Section 108 of the Evidence Act, she is presumed to have died. However, learned Court below took a hyper technical view that the appellants had not been able to prove the death of their mother even though the appellants had duly proved on record the copy of missing report Ext.PW1/A. 10. However, learned Court below took a hyper technical view that the appellants had not been able to prove the death of their mother even though the appellants had duly proved on record the copy of missing report Ext.PW1/A. 10. That apart, it is not a case where even if the mother of the appellants was alive, the appellants would not get anything and, therefore, in such circumstances, the court below could have conveniently ordered the release of the amount subject to the appellants furnishing indemnity bond, especially when despite service none had put in appearance on behalf of the general public to oppose the petition. 11. Admittedly, the mother of the appellant had gone missing since 19.04.2006, therefore, it was a case of deemed death under Section 108 of the Evidence Act. 12. Sections 107 and 108 of the Evidence Act reads thus:- "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." 13. There is neither any doubt nor dispute that the date of death of Smt. Ram Kali is not certain, therefore, a presumption of death can be raised under Section 108 of the Evidence Act. The Court shall presume that she was dead as she has not been heard for seven years by those who would naturally have heard of him/her if she had been alive though that by itself may not be a ground to hold that she died seven years prior to the date of institution of the petition. 14. Having said so, it can conveniently be held that the findings recorded by the learned Court below are totally perverse, therefore, not sustainable in the eyes of law. 15. 14. Having said so, it can conveniently be held that the findings recorded by the learned Court below are totally perverse, therefore, not sustainable in the eyes of law. 15. Accordingly, the order dated 05.11.2014, passed by learned Civil Judge (Senior Division), Kullu Exercising the Powers of Ld. District Judge, Kullu, H.P. in I. S. Act No. 05 of 2014, is set aside and the appellants are held entitled to the reliefs as prayed for. In addition, they shall further be entitled to any other amount(s) to which they are legitimately entitled to being the sole successors to the estate of deceased Prem Singh. 16. The appeal is disposed of in the aforesaid terms.