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1 Title Suit (Declaration of Death) No.53/2014.

IN THE COURT OF DISTRICT JUDGE: LAKHIMPUR:


AT NORTH LAKHIMPUR

Title Suit (Declaration of Death) No.53/2014.

P A R TI E S

Smti Jonaki Boro.


W/O Kalicharan Boro. … Petitioner.

Versus

1. The Deputy Commissioner,


Lakhimpur, North Lakhimpur.
2. The Joint Director,
Health & Family Welfare,
North Lakhimpur.
3. The Officer-in-charge,
Boginadi Police Station.
Lakhimpur. … Respondents.

Present : Md. Imtiaz Ali,


District Judge,
Lakhimpur, North Lakhimpur.

A P P E A R A N C E
Sri Bikash Gogoi, the learned advocate for the Petitioner.
Sri Pradip Sarma, the learned advocate for the Respondent Nos.1 and 2.

Date of argument : 23.02.2017.


Date of Judgment : 18.03.2017.

J U D G M E N T

1. This is an application filed u/s 108 of the Evidence Act,


1972, by the Petitioner, Smti Jonaki Boro, w/o Kalicharan Boro praying for
declaration/ presumption of death of her husband, Kalicharan Boro.
Contd…
2 Title Suit (Declaration of Death) No.53/2014.
2. The case of the Petitioner is, in brief, is that the husband of
the Petitioner namely Kalicharan Boro was a school teacher working at Hatiemara
L.P. School under BEEO, Lakhimpur, who had joined in the said school as a school
teacher and subsequently, transferred to another school in the year, 1994. It is
also stated by the Petitioner that she was given in marriage to Kalicharan Boro
and out of their marital wedlock, two sons, namely Sri Ajit Boro and Sri Keshab
Kr. Boro and two daughters, namely Smti Bina Boro and Smti Premalata Boro @
Sarma were born to them. It is also stated that one day in the year, 1994, her
husband, Kalicharan Boro went to school and since then, he never returned
home and the matter was reported to the Officer-in-charge of Boginadi PS and
accordingly, GDE No.402 dtd. 21.05.1995 was made and subsequently a report
was submitted by the O.C of Boginadi PS in this regard. It is further stated that
her husband was a govt. Employee and for the purpose of realisation of pension
and other benefits as admissible in the eye of law, his death certificate, and legal
heir certificate is utmost necessary. It is also stated that though she had
approached the Deputy Commissioner, Lakhimpur, with an application in this
regard, and on receipt of the same, the said application was forwarded to the Jt.
Director, Health & Family Welfare, North Lakhimpur, but no fruitful action
emerged from that. Accordingly, the Petitioner has prayed to issue direction(s)
declaring the person presumed to be untraced/ dead and/or thereby pass
necessary order(s) for issuance of Death certificate.

3. On receipt of notice, the Respondent No.2 for himself and


on behalf of the Respondent No.1, filed the written statement, wherein it is
contended that there is no cause of action against the Respondent Nos.1 and 2.
It is also contended that death certificate of a person can be obtained under the
procedure and provision of Birth & Death Registration Act, 1969 followed by the
registration of Births & Deaths Rules, 1978, and no birth/ death certificate can be
issued from the Respondent side beyond the procedure and provision of said Act.
It is also contended that the Petitioner has filed the instant suit for declaration,
but relief is sought for direction which is contradictory to each other. Accordingly,
the Respondent Nos.1 and 2 have prayed to dismiss the suit.
Contd…
3 Title Suit (Declaration of Death) No.53/2014.
4. On receipt of the notice, the Respondent No.3 did not
contest the case, for which the case was heard and proceeded exparte against
him.

5. Upon the pleadings of both sides, the following issues were


framed :
1. Whether there is cause of action for the suit?
2. Whether Kalicharan Boro, the husband of the Petitioner, Smti Jonaki Boro
has become untraceable or died?
3. Whether the Petitioner is entitled to get the declaration as prayed for?
4. What other relief/ reliefs the parties are entitled to?

6. I have heard the argument of the learned counsels of both


sides, and perused the record.

7. To arrive at a just decision in the case, the following issue-


wise discussion is taken up.

ISSUE NO.1 :
8. From the averments made in the Petition by the Petitioner,
Smti Jonaki Boro, it appears that the husband of the Petitioner namely Kalicharan
Boro was a school teacher working at Hatiemara L.P. School under BEEO,
Lakhimpur, one day in the year, 1994, her husband, Kalicharan Boro went to
school and since then, he never returned home and the matter was reported to
the Officer-in-charge of Boginadi PS and accordingly, GDE No.402 dtd.
21.05.1995 was made and subsequently a report was submitted by the O.C of
Boginadi PS in this regard. Her husband was a govt. Employee and for the
purpose of realisation of pension and other benefits as admissible in the eye of
law, his death certificate, and legal heir certificate is utmost necessary. The
Respondent Nos.1 and 2, in the written statement contended that death
certificate of a person can be obtained under the procedure and provision of
Birth & Death Registration Act, 1969 followed by the registration of Births &
Deaths Rules, 1978, and no birth/ death certificate can be issued from the
Contd…
4 Title Suit (Declaration of Death) No.53/2014.
Respondent side beyond the procedure and provision of said Act. It is also
contended that the Petitioner has filed the instant suit for declaration, but relief is
sought for direction which is contradictory to each other. Accordingly, the
Respondent Nos.1 and 2 have prayed to dismiss the suit. In view of the
contentions raised by the Petitioner and the Respondent, it is seen that the
instant suit was filed by the Petitioner seeking direction or to say declaration that
her husband can be presumed to be dead. On the other hand, the Respondents
did not deny that the husband of the Petitioner has been dead. In such a
situation, in order to claim declaration of right, someone has to deny that right.
Thus, in order to declare that a person was dead on a particular date somebody
has to deny the death of that particular person. In the instant suit, nobody has
denied that the husband of the Petitioner had died or claimed to be alive. On
considering the materials on record as well as the evidence, it seems that there
arose no cause of action for such a suit. Accordingly, issue no.1 is decided in
negative.

ISSUE NOs. 2, 3 and 4 :


9. All the three issues have been taken up together as they
are related each other. In support of the case, the Petitioner has examined
herself as PW.1 and the Respondent No.2 has also examined Dr. J.N. Das as
DW.1. The PW.1, in her affidavit evidence, stated that she was the legally
married wife of Kalicharan Boro and out of their marital wedlock two sons and
two daughters were born to them. She also stated that her husband, Kalicharan
Boro was a school teacher working at Hatiemora LP School under Block
Elementary Education Officer, Lakhimpur, who had joined in the said school on
25.09.1967, and subsequently transferred and worked in different schools, and in
the year, 1994, her husband, Kalicharan Boro son of Lt. Sabharam Boro went to
school and since then he never returned home, and the matter was informed to
the Officer-in-charge of Boginadi PS, and on receipt of such information, the O.C
of Boginadi PS made GDE No.402 dd. 21.05.1995. She also stated that for the
purpose of realization of pension and other benefits as admissible in the eye of
law, the ‘death certificate’ and ‘legal heir certificate’ is utmost necessary. She also
stated that she approached before the Dy. Commissioner, Lakhimpur, and filed an
application and on receiving such application, the Dy. Commissioner forwarded
Contd…
5 Title Suit (Declaration of Death) No.53/2014.
the same to the Joint Director, Health & Family Welfare, North Lakhimpur, but no
fruitful action emerged from that, and as such, she has prayed to pass an order/
direction for declaration of death of her husband as per relevant provisions of the
Evidence Act. During cross examination, PW.1 stated that she had not sent notice
u/s 80 CPC prior to filing of this suit and she also did not file any petition before
this court seeking permission to file this suit. She also stated that she had not
collected any document from police regarding the status of the investigation.
DW.1, Dr. J.N. Das, the then Joint Director of Health Services, Lakhimpur, has
stated in his affidavit evidence that they have no authority to issue Death
Certificate to the Petitioner as per claim made in her petition. He also stated that
they can issue Death / Birth certificate under the provision of Birth and Death
Registration Act, 1969 followed by the registration of Birth and Death Rules,
1978, and as such, he has prayed to dismiss the suit of the Petitioner with cost.

10. Having regard to the evidence as a whole and the


documents exhibited in the instant suit, it can very well be said that in order to
claim a declaration of right someone has to deny that right in order to declare
the husband of the Petitioner as a dead person u/s 108 of the Evidence Act, until
and unless it is proved that the person has not been heard for more than seven
years by those, who must have heard of him had he been alive and in the
process this fact is proved, and only on presumption that he is dead till then
appropriate authority cannot declare a person dead. Thus, in order to declare a
person as dead on a particular date someone has to deny death of that particular
person. In the instant case, nobody has denied that the husband of the Petitioner
was dead or claimed to be alive. On going through the plaint as well as evidence
on record, this court cannot declare the husband of the Petitioner to be dead
after he was found missing since the year, 1994. Although, the Petitioner has
submitted a photo copy of the Police Report, which shows that he was missing
since 20.05.1994, but, there is nothing to show what had happened to the status
of the investigation in the said matter. Moreover, the Petitioner has approached
the Deputy Commissioner, Lakhimpur, North Lakhimpur, seeking redress in this
regard and the said matter was forwarded to the Joint Director, Health Services,
Contd…
6 Title Suit (Declaration of Death) No.53/2014.
Lakhimpur, North Lakhimpur, but the Petitioner claimed that no fruitful result was
given to her. However, she did not produce even a single paper to assert the fact
that the Joint Director has not taken any steps refusing the prayer of the
Petitioner, for which she has come before this court. In this regard, it is no doubt
seen that the husband of the Petitioner was missing since 20.05.1994, and in
that context, a complaint was lodged with the concerned Police Station. Further,
the concerned authority is also unable to grant certificate as claimed by the
Petitioner, who requires the same for availing widow pension and other benefits
etc. It is no doubt true that the burden of proving that the person is alive, who
has not been heard for more than seven years lies on the person who had
challenged it. But, in this case, nobody has denied the claim of the Petitioner that
her husband has been unheard for seven years. In such circumstances, the
Petitioner had approached the police and the police probably could not trace the
missing person, yet there is nothing in the instant suit relating to present status
of the missing person. Although, the Petitioner has claimed that her husband was
found missing way back in the year, 1994, which she reported to police after a
year in 1995, but no reason have been given by the Petitioner as to why she has
come before this court seeking declaration or direction relating to presumption of
death after about 20 years of the alleged disappearance of her husband. Of
course, the Petitioner has right to file a civil suit before the competent court for
the purpose of pension and other benefits of her husband, who was a
government servant, and in this regard, legal heirs of the person concerned are
also entitled to get inheritance of such dead person if he is dead, as per Law of
the land. However, the prayer of the Petitioner did not include any right in favour
of the other legal heirs. Even none of the legal heirs have been made party in the
instant suit. Before making such prayer before a court, the Petitioner could have
made a prayer to release the service benefits of her husband in her favour, which
she claimed to have done. But, there is nothing on record as to what the
authority had done to her prayer for service benefits. It is only when the
authority rejects her prayer, cause of action can be said to have arisen in the suit.
Viewed from this angle, challenge to the nature of relief sought for by the
Petitioner definitely suffers from infirmities. It is more so in view of the fact that
the Petitioner made the Deputy Commissioner, Lakhimpur, Joint Director of

Contd…
7 Title Suit (Declaration of Death) No.53/2014.
Health Services, Lakhimpur, and the Officer-in-Charge of Boginadi PS as
respondents in this suit without making the State of Assam as party and as per
requirement of Section 80 CPC relating to service of notice, which was not
complied with. As per provision of Sec.80 CPC, cause of action, name,
description, place of residence of the petitioner/ plaintiff along with claim shall all
be stated in such notice and the plaint shall contain a statement that such notice
has been so delivered or left. As the plaintiff/ petitioner did not comply with the
service of notice u/s 80 CPC and there was no prayer made by the Petitioner
seeking leave of the court u/s 80(2) CPC, and as such, non-compliance of such
notice, which is mandatory and since the present suit does not satisfy its
requirement, which is certainly liable to be dismissed, is not in dispute. Viewed
from this angle, the present suit has become not maintainable because of non-
compliance of the terms of Sec.80 CPC. Having found the circumstances clearly
proved that there was no compliance of the terms of Sec.80 CPC, this court finds
the entire claim in the suit must fail. Apart from the above, the nature of claim
made by the Petitioner determines whether the court of Civil judicature will be
one, who has jurisdiction of the matter. If the matter is of civil nature, it will
follow hierarchy of the civil court. When it comes to the civil judicature,
jurisdiction of the court is divided on the basis of pecuniary as well as territorial
jurisdiction. As per Section 6 CPC, every court will have jurisdiction over those
disputes, which are within its pecuniary limit and every suit must be filed in the
lowest court competent to try it. This pecuniary jurisdiction is decided on the
value of the suit, but interestingly, the present suit is not valued at all. After
valuation, the court only having pecuniary as well as territorial jurisdiction can try
the suit. The plaintiff / petitioner needs to mention in its plaint about the facts,
which show that the court has jurisdiction over the matter as per provision of
Order VII Rule 1(f) CPC, but these facts are not included in the instant suit.
Therefore, having regard to the above, the Petitioner could have filed such suit
before the court of lowest rank and in this case, it is the Munsiff court at North
Lakhimpur or otherwise, the plaintiff/ petitioner can very well seek such relief by
way of writ jurisdiction of the Honourable Gauhati High Court. Instead of filing
such suit before the competent court, the Petitioner has come up with the
Petition before this court for the reasons best known to the Petitioner. In that
Contd…
8 Title Suit (Declaration of Death) No.53/2014.

view of the matter, the suit can be said to be not maintainable. As such, no relief
can be given to the person. Accordingly, these issues are decided.

11. In view of the facts and circumstances of the case, the


instant suit is liable to be dismissed. Accordingly, the instant suit is dismissed on
contest. Parties are to bear their own costs.

Given under my hand and seal of this court on this 18th day
of March, 2017.

( I. Ali )
District Judge,
Lakhimpur, North Lakhimpur.
Dictated & corrected by me :

( I. Ali )
District Judge,
Lakhimpur, North Lakhimpur.

Transcribed & typed by -


Sri Satyabrata Kshattry, Stenographer.