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2020 DIGILAW 184 (GAU)

Sanwarmal Singhania v. State Of Assam

2020-02-11

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT Achintya Malla Bujor Barua, J. - Heard Mr. B Chakravarty, learned counsel for the appellants. Also heard Mr. G Bordoloi, learned State counsel for the respondents. 2. The appellant plaintiffs instituted T.S No.220/2009 in the Court of the learned Civil Judge Junior Division No.3, Kamrup at Guwahati with the following prayer: wxyz "a. For a declaration that victim Prakash Singhania is dead who is missing since 17.02.2002 to enable the plaintiffs to take further course of action to which they are entitled as per law; zyxw wxyz b. and any other such relief/reliefs to which the plaintiffs are entitled as per law and equity." zyxw 3. The only relief sought for in the title suit was for a declaration that Prakash Singh Singhania is dead since he is missing since 17.02.2002. The prayer made in the plaint itself makes it apparent that the plaintiffs intend to invoke the provisions of Section 108 of the Evidence Act which provides for a presumption that in the event a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden to prove that he is alive shifts to the person who affirms it that he is alive. 4. In paragraph 2 of the plaint, it is stated that the plaintiff No.1 is the father and appellant No.2 is the brother of Prakash Singh Singhania, who was a brilliant student pursuing his studies in the final year Chartered Accountant course and was last seen on the night of 16.02.2002 and then went missing from the early morning of 17.02.2020 and since then, his whereabouts could not be ascertained. 5. As regards the missing of Prakash Singh Singhania, an FIR was lodged in the Paltan Bazar Police Station vide GD Entry No.1065 dated 17.02.2002. There were publications in the print as well as visual media as regards the missing of Prakash Singh Singhania seeking information from any person if his whereabouts were known. After a lapse of the period of 7(seven) years since the date of missing of Prakash Singh Singhania the plaintiffs approached the respondent United Bank of India, where Prakash Singh Singhania has some account and also had a locker for allowing them to verify the bank account as well as the locker. After a lapse of the period of 7(seven) years since the date of missing of Prakash Singh Singhania the plaintiffs approached the respondent United Bank of India, where Prakash Singh Singhania has some account and also had a locker for allowing them to verify the bank account as well as the locker. But when the bank authorities had refused the plaintiffs to give access to the bank account and locker of Prakash Singh Singhania, a title suit was filed seeking for a declaration, as otherwise the bank authorities were not inclined to cooperate with the plaintiffs. 6. In the written statement, the defendants other than taking certain mechanical stand that the plaintiffs are put to a strict proof to substantiate that they are entitled to the deposits of Prakash Singh Singhania, no further stand had been taken, other than that the plaintiffs are put to strict proof as regards the death of Prakash Singh Singhania. Similar bank accounts of Prakash Singh Singhania were also there in Canara Bank and other banks and all the banks by taking the similar stand had refused the plaintiffs from having access to the bank accounts of Prakash Singh Singhania. 7. In course of the trial, amongst others, an issue was framed as to whether the plaintiffs are entitled for a decree for declaration that Prakash Singh Singhania is presumed to be dead. 8. The said issue was decided by referring to issue No.1 as regards the cause of action for the suit wherein a conclusion was arrived that in the plaint as well as in the evidence there is not a whisper that the defendants had denied that the Prakash Singh Singhania is missing. Accordingly, it was concluded that there was no cause of action for the suit. 9. On an appeal being carried out being TA No.78/2010 in the Court of the learned Civil Judge No.1 Kamrup(M), the learned Court in its judgment dated 07.09.2011 took note of the submission of the learned counsel for the appellant plaintiffs that nothing had been heard about the victim although 7(seven) years had elapsed in the meantime, therefore, had the victim been alive it is the plaintiffs who could have known about his whereabouts and existence. But the learned Court also took a serious note of the submission of the learned counsel for the State respondents that whether the victim is dead or alive is a matter of evidence and police reports are lacking in the present case. In other words, a stand was taken by the respondents that it would be the burden of the plaintiffs to prove that the victim Prakash Singh Singhania is dead. Accordingly as the investigation by the police went on continuing for even more than 7(seven) years, the learned appellate court took a view that the evidence is insufficient to presume that the victim was dead and the plaintiffs have failed to prove the fact of the alleged death of the victim by any evidence. From a reading of the conclusion arrived at by the learned appellate court it is to be understood that the learned court proceeded in the premises that it is for the plaintiffs to prove through evidence that the victim concerned is dead and they having failed to prove that the victim is dead, the declaration sought for was denied. 10. Section 108 of the Evidence Act provides as follows: wxyz 108. Burden of proving that person is alive who has not been heard of for seven years. 1[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 2[shifted to] the person who affirms it. 1[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 2[shifted to] the person who affirms it." zyxw 11. Section 108 clearly provides that if there is a question 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, in such event, the burden shifts to the person who affirms it that he is alive. In other words, for a presumption that the person is dead, the person seeking such declaration is required to prove in evidence that the person who would have naturally heard of him had not heard for more than 7(seven) years. When we go though the evidence on record, the plaintiffs have discharged the said burden through the PW-1, 2 and 3, amongst whom, PW-1 is the father of the victim and PW-2 is the brother of the victim, Prakash Singh Singhania, that they have not heard of him for more than 7(seven) years since the date of he being missing i.e. 17.02.2002. If it is for the respondents to make a claim that the victim Prakash Singh Singhania is still alive, Section 108 of the Evidence Act shifts the burden upon the respondents to prove that he is alive. The only stand taken by the respondents is that the plaintiffs have failed to discharge their burden that the victim Prakash Singh Singhania is dead. In other words, the respondents have failed to discharge their burden to prove that the victim is still alive. 12. In the aforesaid circumstances, as it is a title suit of the year 2009 and from the evidence in record, the plaintiffs have discharged their burden to prove that the victim Prakash Singh Singhania was not seen or heard by the person who would have naturally heard of him for seven years since 17.02.2002 when he went missing, we are of the view that the plaintiffs are entitled to a declaration under Section 108 of the Evidence Act that the victim Prakash Singh Singhania is dead. 13. Accordingly, the regular second appeal stands allowed with a declaration that the victim Prakash Singh Singhania is dead and the plaintiffs are accordingly entitled to all the consequences that they are entitled to get under the law by presuming that the victim Prakash Singh Singhania is dead, subject to any restriction and conditions as may be provided under the law. 14. This regular second appeal, accordingly, stands allowed. 15. Send back the LCR.