SCA/6443/2008 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6443 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the Civil Judge? No ========================================================= POOJA VIJAY RAICHANDANI W/O VIJAY M RAICHANDANI & 2 - Petitioner(s) Versus STATE BANK OF INDIA & 2 - Respondent(s) ========================================================= Appearance : MR YATIN SONI for Petitioner(s) : 1 - 3.MS MARIYA M DALAL for Petitioner(s) : 1 - 3. MR PRANAV G DESAI for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2 - 3. None for Respondent(s) : 4 - 6. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 25/11/2008 ORAL JUDGMENT 1. The short facts of the case appear to be SCA/6443/2008 2/18 JUDGMENT that the petitioner No.1 claiming the status as the wife, petitioner No.2 claiming the status as the daughter and petitioner No.3 claiming the status as the son of Vijay M. Raichandani (who shall be referred to as “the person concerned”), have approached to this Court contending interalia that the person concerned has left the house since so many years and on 05.07.2000 when the father of the person concerned had expired, public advertisement was also given in the newspaper viz. “Gujarat Samachar”. However, he has not returned back and as per the petitioners his whereabouts are also not known. The said fact has also been reported to the police vide entry No.19 of 2003 dated 25.06.2003 that the person concerned Vijay M. Raichandani has left the home and his whereabouts are not known. The aforesaid entry is recorded at Satellite Police Station, Ahmedabad city. As per the petitioners the person concerned had the bank account with State Bank of India, Sahijpur-Bogha branch, Krishnanagar Road, Ahmedabad and was having FDR etc. including the locker. It is stated by the petitioners that all details are not available but such details are called for by the petitioners. The SCA/6443/2008 3/18 JUDGMENT petitioners have further prayed to release money which is lying in the bank account for prosecuting the studies of the petitioners No. 2 and 3, and the petitioner No.1 as such has no independent source of income. The contention of the petitioners is that, as per section 108 of the Indian Evidence Act, if the whereabouts of the person concerned is not known for a period of last 7 years, it should be presumed that he is not available and the amount lying in the bank account deserves to be allotted to the petitioners. Under these circumstances, the petitioners have approached to this Court by preferring the present petition praying that the respondent No.1 bank be directed to provide information to the petitioners about all bank accounts and the balance of Shri Vijay M. Raichandani person concerned and be further directed to release all the amounts to the petitioners. 2. Heard Ms. Dalal learned counsel for Mr. Soni for the petitioners and Mr. P.G.Desai, learned counsel for the respondent No.1 bank and Mr. Vinay Pandya, learned A.G.P. of the State and Commissioner SCA/6443/2008 4/18 JUDGMENT of Police, Ahmedabad. 3. Two aspects at the first instance are required to be examined. First is about the relationship of the petitioners with the person concerned. The another is for the mode of succession in effect if the whereabouts of the person concerned is not known for a period of 7 years or more. 4. The petitioners have stated on oath that the petitioner No.1 is the wife, petitioner No.2 is the daughter and petitioner No.3 is the son of Vijay M. Raichandani. There is no statement available on record to the contrary nor there is any denial of the status of the petitioners concerned as referred to hereinabove. Further, the School Leaving Certificate of petitioner No.3 is produced of Narayan Guru Vidyalaya dated 22.05.2006 which shows that the name of the father of the petitioner No.3 as Vijaykumar Raichandani. The S.S.C. Board result is also produced in which the name of the petitioner No.3 is shown as Raichandani Satish Vijaykumar. Even in the result card of Institute of Chartered Accounts, the SCA/6443/2008 5/18 JUDGMENT petitioner No.3 is shown as Raichandani Satish Vijaykumar. Similarly, in the School Leaving Certificate of petitioner No.2 of Shree Sahajanand Secondary & Higher Secondary School dated 24.05.2007, the name of petitioner No.2 Neeta is shown with her father as Raichandani Vijaykumar. In the same way in the mark-sheet of Gujarat Secondary and Higher Secondary Education Board as well as in the result card of Institute of Chartered Accounts, the name is shown of her with her father as Vijaykumar. In the further affidavit filed by the petitioner No.1 Pooja Vijaykumar Raichandani, the photographs are produced showing the performance of the marriage ceremony of the petitioner No.1 with Vijay Raichandani. The brother of Vijay Raichandani viz. Shri Harish Maniram Raichandani has also filed the affidavit in support of the petition before this Court stating that Pooja, petitioner No.1, is the widow of Vijay Raichandani and petitioners Nos. 2 and 3 are their children. Shri Harish M. Raichandani is the real brother of Vijay Raichandani and he has also stated that his real brother Vijay Raichandani is missing since 1997 and all the family members of Vijay Raichandani have no SCA/6443/2008 6/18 JUDGMENT objection if amounts lying with the State Bank of India are given to petitioner No.1 and they have no objection if anything found from the locker No.39 is given to petitioner No.1 Pooja V. Raichandani. It is also stated that the father of Vijay Raichandani had expired on 28.05.2000 and mother had expired on 23.01.2006. There is reference to the family comprising of his father and there are three brothers viz. Mohanbhai, Harishbhai and Vijaybhai. It may also be recorded that in support of the claim, the petitioners have produced the ration card, election card and telephone bill showing the name of Vijay Raichandani being husband of petitioner No.1 Pooja Raichandani. 5. The aforesaid goes to show that the petitioner No.1 is the wife of the person concerned, petitioner No.2 is the daughter of person concerned and petitioner No.3 is the son of person concerned. Further, the father and mother of Vijay Raichandani have expired. Therefore, in the first degree heir being Hindu, wife, daughter and son will be successor to receive the properties, if any, of Vijay M. SCA/6443/2008 7/18 JUDGMENT Raichandani by mode of succession, in equal share. 6. Sections 107 and 108 of the Indian Evidence Act, which are relevant for the purpose of this petition, read as under: Section 107 - Burder of proving death of person known to have been alive within thirty years.- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. Section 108 – Burden of proving that person is alive who has not been heard of for seven years.- [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 [shifted to] the person who affirms it. 7. As per the aforesaid provisions of law, for proving the factum of the death of the person concerned, if direct evidence is not available, two things may be required to be proved, first is that he was alive for 30 years before his death and while proving the question whether a person is alive or dead, if it is proved that he has not been heard for 7 years by those who would naturally have heard of him that he is alive, the burden of proving that he SCA/6443/2008 8/18 JUDGMENT is alive would be shifted to the other side. Therefore, if the whereabouts of the person concerned are not known from the other persons who are naturally suppose to know about him for about 7 years or more, the presumption can be drawn that the person concerned is not alive. In the present case, the wife, son and the daughter, brother, father and mother of the person concerned are the relatives who may be aware about the whereabouts of the person concerned. It has been stated by all the aforesaid persons who are in blood relations of Shri Vijay Raichandani that he has left the home and his whereabouts are not known. Even as per the police record, his whereabouts are not known and he is missing. Therefore, under these peculiar circumstances, no evidence being available to the contrary on record, it would be reasonable to proceed on the basis that Vijay Raichandani is not alive and his first degree legal heirs viz. Pooja Vijay Raichandani, Neeta Vijay Raichandani and Satish Vijay Raichandani would be entitled to inherit the property by way of succession in absence of Shri Vijay Raichandani. SCA/6443/2008 9/18 JUDGMENT 8. It is true that in normal circumstances, this Court may relegate the parties to approach before the civil Court for getting the declaration to the effect that Vijay Raichandani is not alive and consequently for succession certificate by the petitioners herein being the legal heirs of Shri Vijay Raichandani. However, it appears that the peculiar circumstances demonstrated in the present petition are that the petitioners have no means of survive. The second is that no fact to the contrary is available on record which may prima facie create any doubt about the genuineness of the claim made by the petitioners and the third is that the police has also not reported to the contrary. The fourth circumstance as may be referred to hereinafter is that inspite of the public notice issued, none has reported about raising any objection to the claim put forward by the petitioners herein being heirs of Shri Vijay Raichandani. 9. In furtherance to the above, it may be recorded that this Court, on 22.10.2008, had passed SCA/6443/2008 10/18 JUDGMENT the following order. 1. Upon hearing Ms.Mariya Dalal for Mr.Soni for the petitioners and Mr.Desai for the respondent Bank, it prima facie appears that the petitioners are claiming the amount lying with the Bank and the operation of the locker on the basis that they are wife, daughter & son of Vijay M.Raichandani whose whereabout is not known for a period exceeding 7 years. The police has supported the version of the petitioner No.1 about non-availability of the husband of the petitioners and even the advertisement in the newspaper was given, a copy whereof is produced. 2. It appears that as per the Bank record, in the locker, name of the petitioner No.1 is shown with her husband Vijay M.Raichandani and operating instructions are either/or. The petitioner has produced material to show prima facie that she is the wife of Vijay M.Raichandani and such material includes the ration card, election card, etc. Therefore, it prima facie appears that petitioner No.1 is wife of Vijay M.Raichandani who has left the home since a period of more than 7 years and his whereabouts are not known. Section 108 of the Evidence Act, reads as under: “Burden of proving that person is alive who has not been heard alive within thirty years.- [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 [shifted to] the person who affirms it.” 3. Therefore, the presumption can be drawn unless any reliable material is made available to the Court that Vijay M.Raichandani is alive. As a consequence thereof, the petitioner in capacity as wife of the original holder of the bank account and the locker would be entitled to SCA/6443/2008 11/18 JUDGMENT receive the money and operate the locker, but subject to any liability thereof or upon the properties of Vijay M.Raichandani, the husband of the petitioner No.1. All as stated above, would equally apply to petitioner No.2 as daughter and petitioner No.3 as son. 4. In normal circumstances, the matter could be considered for relegating the petitioners to approach before the Civil Court for succession certificate or otherwise, however, two peculiar circumstance arise in the present case; one is that, it is not a question of succession based on the death of the husband, but is a question of conferring right upon the wife, daughter and son whose husband/father is not available for a period of 7 years and his whereabouts are not known; and the second is that, the petitioners have no means to undergo the long drawn litigation, unless the withdrawal is permitted by the Court by making the fund available for such purpose. 5. The aforesaid is with the additional circumstance that the matter is pertaining to money lying with the nationalised Bank which could be said as a “State” within the meaning of Article 12 of the Constitution. 6. Therefore, in view of the peculiar circumstances, I find that the departure can be made to the normal principles of relegating for succession certificate and if no other dispute exists pertaining to the property or any other person may not have the claim. 7. Further, if the dispute is genuine, the Court may relegate a different remedy or the Court may reject such objection and may consider the matter to see that benefit goes to the family of Vijay M.Raichandani, who is the petitioner and his daughter and son, as sought to be canvassed. 8. It further appears that since it is a matter of claiming right by way of succession by the wife, daughter and son, and as all the material may SCA/6443/2008 12/18 JUDGMENT not be available with the petitioners or with the Bank, it would be just and proper to direct the petitioners to issue public advertisement in the local newspaper having circulation in Ahmedabad viz. “Sandesh”, intimating all concerned that the petitioner No.1 in the capacity as the wife, petitioner No.2 in capacity as daughter and petitioner No.3 in the capacity as son of Vijay M.Raichandani have claimed the right in the Bank balance and for operation of the locker with, State Bank of India by way of the present petition, and the next date of hearing is fixed on 19.11.2008 and if any person has any objection to such claim, they may submit their objections in the proceedings of this Court or may intimate State Bank of India, Sahijpur-Bogha Branch, Krishnanagar Road, Ahmedabad by intimation in writing. 9. As the petitioners are not having any fund available for such purpose and expenses of advertisement can be said as in furtherance to the right claimed as successor and as the Bank is also having balance available, the amount of Rs.10,000/- by A/c. Payee cheque drawn in favour of petitioner No.1 shall be paid to the petitioners towards the expenses of the advertisement etc. subject to the adjustment or further orders as may be passed by this Court. The cheque shall be handed over to the petitioner No.1 on or before 24.10.2008. The petitioners shall ensure the publication of the advertisement and place on the next date. 10.S.O. to 20.11.2008 for passing further orders. The petitioners shall be at the liberty to move the Bank for withdrawal of the amount of Rs.10,000/-and Mr.Desai for the respondent Bank shall convey this order to the Manager of the Bank. 10. Thereafter, on 20.11.2008, following order has been passed: SCA/6443/2008 13/18 JUDGMENT “1. Pursuant to the order dated 22.10.2008 passed by this Court, Ms. Dalal for Mr. Yatin Soni, learned counsel for the petitioners, has placed on record the copy of the advertisement published in “Sandesh”, newspaper dated 9.11.2008. 2. Mr. Desai, learned counsel for the respondent Bank states that no objection is received by the bank. 3. Office to examine as to whether any objection is received by it in response to the said advertisement or not and if yes, the same may be placed on record. 3. S.O. to 25.11.2008 for passing further orders.” 11. Even as per the report by the office dated 24.11.2008, no objections are produced. Under the above peculiar circumstances, I find that if the power is exercised by this Court on the basis that Vijay M. Raichandani who was holding the bank account, F.D.R./T.D.R. and the locker with the respondent No.1 bank, which is a nationalized bank and also an instrumentality of the State within the meaning of Article 12 of the Constitution, the same may fall in the category of issuance of Writ “for any other purpose” as per Clause-1 of Article 226 of the Constitution so as to meet with ends of justice to the members of the family who have no direct means to survive nor may have capacity to undergo civil SCA/6443/2008 14/18 JUDGMENT litigation including payment of requisite court fees also for succession certificate etc. I am inclined to take such view because the facts are undisputed in the present proceedings and even no dispute has been raised on the status of the petitioners or on the aspect of presumption about the whereabouts of the person concerned by the respondent No.1 bank or by any State Authorities including the police. Therefore, when the facts are undisputed, it may not be required for this Court to decline the relief to the petitioners merely because they have not resorted to the remedy of civil suit for succession certificate. It is hardly required to be stated that as per settled legal position existence of alternative remedy is no bar to the exercise of jurisdiction by this Court under Article 226 of the Constitution of India. 12. On behalf of respondent No.1 bank, the affidavit has been filed stating that Vijaykumar Maniram Raichandani had following transactions with the bank. (1) Saving Bank Account No.10109200640 with the balance of Rs.1,05,649=01ps. SCA/6443/2008 15/18 JUDGMENT (2) Term Deposit Receipts 10109289461 Rs.12,042=00 10109289472 Rs.50,376=00 (3) Locker No.39 13. As per the petitioners they are not having the key of locker No.39. Therefore if the locker is to be opened, the bank will have to make arrangement for breaking open of the locker or through master key, as may be permissible in law. So far as the amounts lying in the S.B. account as well as the Term Deposit Receipts are concerned, since such balance are available minus of Rs.10,000/- as was ordered by this Court to pay earlier, the same being liquid money, can be allocated to the petitioners concerned in equal proportionate. 14. In above view of the matter, following conclusions can be recorded: (1) Vijay Maniram Raichandani is presumed to have been not alive since his whereabouts are not known for a period of more than 7 years. SCA/6443/2008 16/18 JUDGMENT (2) The petitioner No.1 in capacity as the wife, petitioner No.2 in capacity as the daughter and the petitioner No.3 in capacity as the son would be entitled to inherit the property, if any, of Vijay M. Raichandani by way of successor of the first degree. (3) The respondent No.1 bank will be required to pay the amounts lying in the Saving Bank Account or Fixed Deposit Receipts/Term Deposit Receipts of Vijay M. Raichandani in equal share to all the petitioners. The locker No.39 with the respondent No.1 bank would also be required to be opened by the bank at the costs of the petitioners after drawing necessary panchnama and the petitioners would be entitled to equal share of anything lying inside the locker No.39 belonging to Vijay M. Raichandani. 15. Hence, the claim of the petitioners is accepted and the respondent No.1 bank is directed to SCA/6443/2008 17/18 JUDGMENT pay the amount lying in the aforesaid saving bank account as well as FDR/TDR to all the petitioners in equal share by account payee cheque within three (3) weeks from the receipt of the order of this Court. It is further ordered that the petitioners would be entitled to get locker No.39 opened through the Manager of the respondent No.1 bank at their costs. The concerned Branch Manager of respondent No.1 bank shall undertake the necessary formalities for opening of locker No.39 in presence of all the petitioners and the cost shall be borne by the petitioners and the locker shall be opened by drawing necessary panchnama and the items lying inside the locker may also be permitted to be taken over by all the petitioners jointly by drawing necessary panchnama, for such purpose. 16. It is also observed that if any amount is to be recovered by the bank towards the arrears of rent of the locker or any other banking charges, the same shall be recoverable by the respondent No.1 bank from the petitioners. The arrangement for opening of locker No.39 shall be made within four (4) weeks from the receipt of the order of this Court. SCA/6443/2008 18/18 JUDGMENT The petition is allowed to the aforesaid extent. Rule is made absolute accordingly. No order as to cost. Direct service is permitted. [JAYANT PATEL, J.] jani