IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.04.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.868/2003 CMP.No.7934/2003 The Executive Officer Karumandisellipalayam Town Panchayat Perundurai ..Appellant Vs Karunal ..Respondent Prayer:- This Second Appeal is filed against the Judgement and Decree dated 13.3.2002 passed in AS.No.212/2001 by the learned Principal District Judge, Erode, reversing the Judgement and Decree dated 20.4.2001 passed in OS.No.138/2000 by the learned District Munsif, Perundurai. For Appellant : Mr.S.Saravanan for Mr. D. Shivakumar For Respondent : Mr.S.Lakshmanasamy for Mr. V.N. Subramanian JUDGEMENT The Defendant in the suit has filed this Second Appeal against the Judgement and Decree dated 13.3.2002 passed in AS.No.212/2001 by the learned Principal District Judge, Erode, reversing the Judgement and Decree dated 20.4.2001 passed in OS.No.138/2000 by the learned District Munsif, Perundurai. 2. The case of the Plaintiff/Respondent herein is as follows:- The Plaintiff's husband Raman was working as Sweeper under the Defendant Panchayat and he joined duty on 7.5.1964, even before the marriage was solemnised between him and the Plaintiff. Out of the said wedlock, two female children namely Kalamani and Sivagami were born to them and now they are aged about 38 and 33 years respectively and they got married and are living with their husbands. The Plaintiff's husband had lastly attended his duty under the Defendant https://hcservices.ecourts.gov.in/hcservices/ Panchayat on 28.4.1980 and thereafter, he left the Plaintiff's house, while they were residing at Old Bus Stand Road, Perundurai and his whereabouts were not known either to the Plaintiff or his relatives and friends. The Plaintiff made efforts to trace her husband Raman till this date. Under the Evidence Act, he is deemed to be dead, because no one has seen the Plaintiff's husband till date, though 20 years have lapsed and he did not attend the duty under the Defendant from 29.4.1980. The Plaintiff is entitled to gratuity and other monetary benefits from the Defendant, if his death under the said Act is recorded and hence, the present suit has been filed for declaration of civil death of her husband Raman. 3. The case of the Defendant is as follows:- It is not known to the Defendant whether Raman, the husband of the Plaintiff is alive or dead. Unless the Plaintiff produces some evidence to show the demise of her husband, the monetary benefits due to the Defendant cannot be disbursed. Hence, the suit is liable to be dismissed. 4. On the pleadings of both the parties, necessary issues were framed by the Trial Court. Before the Trial Court, the Plaintiff had marked Exs.A1 and examined herself as PW.1 and one Subban as PW.2. The Defendant had examined one P.R.Shanmugasundaram, The Executive Secretary of the Defendant Panchayat as DW.1. 5. The Trial Court, after considering both the oral and documentary evidence, dismissed the suit and the appeal filed by the Plaintiff as against the Judgement and Decree of the Trial Court was allowed by the lower Appellate Court. Hence, this second appeal has been filed by the Defendant. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. This court, while admitting this second appeal, had formulated the following substantial questions of law:- (a)Whether the lower Appellate Court is right in reversing the Judgement and Decree of the Trial Court? (b)Whether the lower Appellate Court is correct in allowing the appeal without producing evidence to establish the case that the Respondent's husband was not alive? (c)Whether the lower Appellate Court is correct in accepting Ex.A1 which is only a Ration Card? https://hcservices.ecourts.gov.in/hcservices/ (d)Whether the lower Appellate Court is correct that the Respondent has not proved the case under Sections 107 and 108 of the Act? In the absences of any other documentary evidence, the lower Appellate Court reversing the Judgement and Decree of the Trial Court is contrary to the provisions of the Evidence Act? 8. Mr.S.Saravanan, the learned counsel for the Appellant/Defendant submitted that the evidence adduced by the Plaintiff is not sufficient to draw an inference that the Plaintiff's husband is not heard for seven years and in such circumstances, no presumption could be drawn as to the factum of death. The learned counsel would submit that the effect of provision under Section 108 of the Evidence Act is that the presumption of life prevails until displaced by the proof of facts raising the presumption of death and merely on the evidence of PW.1 without any further proof, no presumption under Section 108 of the said Act could be drawn. 9. The learned counsel for the Appellant placed reliance on the decision of this court rendered in the case of Balakrishna Kounder Vs. Amirthavalli Ammal and Another [1959-2-MLJ-186] wherein it is held that when the evidence is not satisfactory, it has to be held that the Plaintiff has not discharged the burden that lay on her to prove that the husband was dead in order to enable her to attain to the position of a widow. 10. The learned counsel for the Appellant also placed reliance on the decision of the Honourable Supreme Court rendered in the case of LIC of India Vs. Anuratha [2004-10-SC-131] to stress his contention that there could be neither a presumption as to date or time of death nor as to facts and circumstances of death of such person and the onus of proving time of death lies on the person who stakes the claim, establishment of which will depend on proof of the date of time of death. 11. In the present case, it is the case of the Plaintiff that the whereabouts of her husband were not known after 28.4.1980 on which date he left the house where they lived together with their two children and he did not even receive the salary for the said month. She had examined herself as PW.1 and reiterated the same in her evidence. On Subban, a relative co-worker of her husband has been examined as PW.2, who would assert the above facts. 12. It is not in dispute that the husband of the Plaintiff by name Raman worked as a last grade servant in the Appellant Panchayat and he was not seen after 28.4.1980. The Executive Officer of the Appellant Panchayat while he was examined as DW.1 admitted that Raman did not turn up to duty since 29.4.1980 as per the attendance register and other records maintained by the authorities. https://hcservices.ecourts.gov.in/hcservices/ The said admission is made by him on a reference to the attendance register and service Roll Register maintained for the last grade servant that is for sweepers. It is not their case that they have seen Raman at any point of time after 28.4.1980 or heard him through any other source. 13. From the clear plan and unambiguous language employed in Section 107 and 108 of the Evidence Act, it is clear that the initial burden to prove that the person who was shown to be alive within thirty years is dead is on the person who asserts that he is dead. However, the burden will be discharged on the Plaintiff establishing that person has not been heard of for seven years. It cannot be disputed that the Plaintiff and PW.2 a relative of Raman would be those persons who would naturally have heard of him, had he been alive. The evidence adduced by the Plaintiff clearly established that Raman had not been heard of for seven years and there is nothing to suggest contra to their evidence. In such event, the burden of proving that he is alive will be shifted to the person who maintains that he was alive. 14. But, in the present case, DW.1 has admitted that the husband of the Plaintiff has not reported for duty since from 29.4.1980. His evidence only indicated that he is not aware as to whether he is alive or dead. There is no evidence to indicate that there is every possibility for him to be alive. 15. Once the rule of presumption is involved on the ground that a man has not been heard of for seven years, the beneficiary or the claimant is entitled to ask for the relief on the footing that he is dead. In the case of Parikhit Muduli and others Vs. Chama [AIR- 1967-Orissa-70], it has been held that the presumption under Section 108 of the Evidence Act is available at the point of time when the party approaches the court for necessary relief. It is pertinent to state that there cannot be any presumption as to the actual date of death and this fact has to be proved like any other fact. In this connection, a reference can be made to the decision of the Honourable Supreme Court relied on by the learned counsel for the Appellant in 2004-10-SC-131 wherein the Honourable Supreme Court has ruled that the presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue emphasising that though it would be presumed that the person is dead but there is no presumption as to the date or time of death and it is a matter of evidence. The relevant passage from the decision cited supra is extracted below:- "The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no https://hcservices.ecourts.gov.in/hcservices/ 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 only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years' absence and being unheard of having elapsed before that time. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death. Rarely may it be permissible to proceed on the premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed." 16. From the above position of law laid by the Honourable Supreme Court, the presumption under Section 108 of the Evidence Act is as to the fact of death at the time when the question is raised and not any particular antecedent time. While initially the presumption of life exists over the whole period of 30 years, when the same is displaced, the presumption of death could be drawn which tantamount to physical death in the eyes of law for giving the benefits to the legal representative and dependent of the deceased. In this case, the presumption under Section 108 of the Evidence Act regarding death could only be as on the date of suit in the absence of evidence regarding death on any particular date. 17. Having regard to the facts of this case, I am of the considered view that the finding of the first appellate court drawing presumption under Section 108 of the Evidence Act that the husband of the Plaintiff is dead and the said presumption has stood unrebutted and there is no perversity or legal infirmity in the said finding warranting interference. Accordingly, the substantial questions of law are answered against the Appellant. 18. In the result, this Second Appeal is dismissed. No costs. Consequently, the connected MP is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Srcm https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal District Judge, Erode. 2. The District Munsif, Perundurai. 3. The Record Keeper, VR Section, High Court, Madras. + 1 c.c. to c.c. to Mr. D. Krishnakumar, Advocate. S.R.No.25065. SA.No.868/2003 MG (CO) GSK 02.06.2010. https://hcservices.ecourts.gov.in/hcservices/