Court can not grant declaration of civil death of person missing for seven years in succession case

 Reference to Section 372(1)(a) may be made. This section enjoins upon the applicant to state the time of death of the deceased. Time, as contemplated herein, means the date when the deceased died. It would, thus, be seen that the death prior to filing of the application is an uncertain event not to be adjudicated or declared by the DIstrict Judge in proceedings under the Succession Act, as the District Judge exercises limited jurisdiction passed upon a death already having taken place and ascertained. The District Judge under the said jurisdiction cannot strike issue as to whether a person is dead or not if dead when dead. It is beyond his jurisdiction. A reference may also be made to Section 373 wherein it is specifically provided that Page 1061 the District Judge while exercising jurisdiction under the Succession Act has to proceed in a similar manner.

7. Thus, it would be seen that the District Judge is incompetent to make a declaration with regard to a person whether he was dead or not and further even if Section 108 of the Evidence Act is pressed into service, the only presumption that can arise is that a person may be dead but when he died cannot be ascertained. 

Patna High Court

Sunita Roy Choudhary And Ors. vs Jageshwar Choudhary And Ors. on 11 May, 2006

Equivalent citations: AIR 2006 Pat 127

2. The present application is directed against the order dated 26.07.2005 passed by the learned Additional District Judge I. Vaishali at Hajipur in Succession Certificate Case No. 20 of 2003. By the impugned order, the learned Court below has directed the parties to get the civil death of the husband of the applicant declared by competent Court in absence whereof he was unable to grant succession certificate.
3. It appears that the husband of the applicant was an employee in Punjab National Bank. He disappeared and became traceless on 16.10.1996 on way to Bank. Under such circumstances after seven years of his disappearance in order to receive payments due under Employees Provident Fund Scheme on the event of death, the present application for grant of succession certificate as contemplated under Section 370 of the Indian Succession Act was filed before the District Judge, taking a plea that as the husband had been traceless for over seven years so in view of presumption as provided under Section 108 of the Evidence Act, the Court should presume the civil death of the husband and proceed to grant succession certificate. The Court has refused to do so and left the parties to approach competent civil court for such a declaration only whereafter the succession certificate would be granted. I see no illegality in the order. Section 108 of Evidence Act is in Chapter VII thereof which deals with burden of proof. It is commonly referred to as a clause dealing with presumption of civil death. Sections 107 and 108 of the Evidence Act are schemes under which if a person is seen to be alive within past thirty years then the burden of proving that he is dead shifts to the person so asserting. This Section 108 provides that if a person is not heard from or seen within seven years by persons who would normally hear from him then the burden of proof that he is alive is on the person asserting it or in other words he is presumed to be dead till proved to be alive.
4. These provisions do not by itself declare a person to be alive or dead. That finding is to be arrived in a duly constituted suit and upon shifting of burden of proof in one contingency or the other the Court is to give such a declaration and/or finding.
5. So far as the Succession Act is concerned, it is a Special Act. Part X thereof deals with grant of succession certificate. Section 371 confers a special jurisdiction on the District. Judge within whose jurisdiction, the deceased ordinarily resided at the time of his death or where the property of the deceased may be found to grant the succession certificate. From this, it would be seen that the jurisdiction to grant succession certificate is on a death having taken place.
6. Reference to Section 372(1)(a) may be made. This section enjoins upon the applicant to state the time of death of the deceased. Time, as contemplated herein, means the date when the deceased died. It would, thus, be seen that the death prior to filing of the application is an uncertain event not to be adjudicated or declared by the DIstrict Judge in proceedings under the Succession Act, as the District Judge exercises limited jurisdiction passed upon a death already having taken place and ascertained. The District Judge under the said jurisdiction cannot strike issue as to whether a person is dead or not if dead when dead. It is beyond his jurisdiction. A reference may also be made to Section 373 wherein it is specifically provided that Page 1061 the District Judge while exercising jurisdiction under the Succession Act has to proceed in a similar manner.
7. Thus, it would be seen that the District Judge is incompetent to make a declaration with regard to a person whether he was dead or not and further even if Section 108 of the Evidence Act is pressed into service, the only presumption that can arise is that a person may be dead but when he died cannot be ascertained. It is these facts which gives the jurisdiction to the District Judge to proceed in the matter and it is not that the District Judge would decide these matters and then assume jurisdiction.
8. I find no merit in this application and it is dismissed accordingly.

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