BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/06/2008 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(PD)(MD)No.660 of 2008 1.E.R.Sathiskumar 2.E.R.Sharmila ... Petitioners Vs. K.S.Krishnamoorthy ... Respondent PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India, against the unnumbered O.S.No.... of 2007 on the file of District Munsif Court, Madurai Taluk. !For Petitioners ... Mr.T.R.Subramanian ^ :ORDER
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This civil revision petition is directed against the order of the learned
District Munsif, Madurai Taluk returning the plaint filed by the petitioners for
a declaration that their brother E.R.Saravanan was dead, as his whereabouts were
not known and as he has not been heard of more than 7 years.
2. In the plaint, it was the contention of the petitioners that their
brother E.R.Saravanan was employed in the Madurai City Municipal Corporation as
Record Clerk. While so, they have received a letter dated 07.04.1999 from
Madurai Corporation stating that their brother Saravanan has gone on medical
leave from 05.02.1999 to 27.03.1999 and that he did not report for duty on
28.03.1999. Subsequently, the Municipal Corporation have sent a letter dated
23.04.1999 addressed to Saravanan directing him to report for duty within three
days from the date of receipt of the letter, failing which it was indicated that
he would be suspended temporarily. Since their brother Saravanan failed to
report for duty before the Corporation, he was suspended as per proceedings
dated 30.07.1999. Subsequently, the Corporation made a paper publication in
Malaimurasu, dated 22.01.2002 informing the public that the said Saravanan was
suspended with effect from 30.07.1999 and later he was dismissed from service,
as per proceedings dated 05.09.2002.
3. It was the further contention of the petitioners that their brother was
having close contact with the defendant and though they have enquired with the
defendant about the whereabouts of Saravanan, the defendant stated that he has
no information about Saravanan from the year 1999. It was further contended in
the plaint that they have not known the whereabouts of the said Saravanan for
seven years and as such, as per Section 108 of the Indian Evidence Act, he is
deemed to be dead. A police complaint has also been given on 05.01.2000 with
respect to the disappearance of Saravanan. Accordingly, the plaintiffs have
prayed for a declaration that their brother Saravanan is presumed to have been
dead, as he is not found for the past seven years.
4. The learned trial Judge was pleased to return the plaint on the ground
that the suit against the defendant, who is none other than a relative of the
plaintiffs, is not maintainable for the relief asked for in the plaint. Even
though there are other remarks by the learned trial Judge, those are not
necessary to be considered here, as the main issue to be decided is as to
whether the learned trial Judge was justified in returning the plaint on the
ground that the suit is not maintainable.
5. I have heard Mr.T.R.Subramanian, learned counsel appearing for the
revision petitioners.
6. The learned counsel submitted that as per Section 108 of the Indian
Evidence Act, there is a statutory presumption that if a person is not heard of
for the last seven years, he is presumed to be dead and such being the position,
the trial Court committed a jurisdictional error in returning the plaint as not
maintainable.
7. I have gone through the averments as found in the plaint.
8. The mater relating to grant of a decree of declaration is provided
under Section 34 of the Specific Relief Act, 1963. It is trite that a
declaratory decree granted is binding only on the parties to the suit or persons
claiming through them respectively. Therefore, it is evident that a decree of
declaration is only a right in personam and not a right in rem. The said
position is clear on a plain reading of Section 35 of the Specific Relief Act.
Such being the position, the relief now sought for by the petitioners in the
plaint is binding only on the respondent. However, the issue is as to whether
such a decree could be granted in a suit of this nature.
9. In L.I.C. of India v. Anuradha reported in AIR 2004 SC 2070, the Apex
Court considered the legal presumption as embodied in Sections 107 and 108 of
the Evidence Act and held thus:
“14…………………. The law as to presumption of death remains the
same whether in 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
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 from 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
who’s 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 of 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 any logic or reasoning be
permitted to be raised on expiry of 6 years and 364 days or at any time 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 proceedings the occasion for raising
the presumption does not arise.”
10. It is clear from the judgment of the Apex Court that so long as the
dispute pertaining to death of a person is not raised before any forum and in
any legal proceeding, an occasion for raising the presumption does not arise. In
case it is the grievance of the petitioners that they are entitled to certain
benefits from the Madurai City Municipal Corporation on account of the
termination of service of their brother Saravanan from the service of the
Municipality, they could have claimed the same from the Municipality and if it
was the contention of the Municipality that there was no proof in respect of the
death of the said Saravanan, they could have filed a suit against the
Corporation and in such suit, the legal presumption could be taken advantage by
the petitioners. The issue regarding the death of Mr.Saravanan would arise
directly in such proceedings, and a decree obtained in such suit would be
binding on the Madurai Corporation, being the employer of the said Saravanan.
Such being the position, I am of the view that no relief could be granted in the
suit preferred by the petitioners arraying one of their relatives as defendant.
Even if a decree is granted in such suit, the said decree is not binding on
others including the Madurai Corporation and as such, it would remain to be a
paper decree which cannot be carried into execution. Therefore, I am of the
considered opinion that the suit as framed is not maintainable and as such, the
learned trial Judge was perfectly correct in returning the plaint.
11. The Civil Revision Petition is dismissed with the above observation.
However, in the facts and circumstances of the case, there shall be no order as
to costs.
SML
To
The District Munsif Court,
Madurai Taluk.