Civil death
senthil
(Querist) 17 October 2013
This query is : Resolved
Hi Experts,
Please help me on this problem
Case Details:
A and B are sisters. "B" was frequently faced dowery problem from her husband.
In 1979 A and B entered into registered partition about their parent's properties.
As per the partition "they can enjoy the income from the property and only their children have rights to sell the property. ".
Due to dowery problem "B" left her husband and sent a legal notice for maintenance cost. But, she was not filed any divorce case.
After that she was missing for long term. Her husband got second marriage. His second wife also left him due to dowery problem..
In 1993, we filed a civil case to get rights for the properties of "B". As "B" was missing, her husband was added as a defendant in the case.
In 2001 the court given a judgement that "B is declared as Civil death and A is the only legal heir for the property".
B's husband was not appeared for the trial so it's given as an ex parte decree
Now in 2013 B's husband filed a civil case for the property rights with the following fake statements
1. "B" was died 3 months back and she was living with him only. So, Declared "B" as civil death is wrong.
(He was not removed her name from his ration card. By using that he got a fake death certificate from his corporation)
2. And he was not aware of the civil case which is filed on 1993
We have the certified copies of the 1993 civil case. We have the Summon and his vakalathanama copies. But he denied that he was not aware of that case.
My Queries:
1. Whether "Civil death" can be set aside by showing the name in the ration card and a death certificate. if he is telling the truth means,
why he was not came for the property rights when she was alive
He was not called any of her relatives for her death burial functions
There is no recent photo graphs
No voter id and any other id proofs
He is not answering for the above questions
2. Other than ration card is there any option to find out number of family members?. whether corporation or any government authorities maintains those records?
3. He having some influence in police department higher authorities. so, that i am hesitate to approach the police for this problem
prabhakar singh
(Expert) 17 October 2013
May be his suit is false and has loopholes too but that does not mean he can not proceed with the suit.
You defend the suit.
For a mind like you i have a question to ask ,when he was impleaded as defendant,and shown to be husband of the missing personality and there was no decree of divorce,then may be EX PARTE how you were declared heir as sister of a missing sister
when her husband was admittedly alive.???????????????????????
To me the Court has wrongly declared you as heir of your missing sister even while her husband was on record as defendant,the court had no option but to declare him as heir according to law,he contested your suit or not.
senthil
(Querist) 17 October 2013
Thanks prabhakar singh sir,
In 2001 the Ex parte judgement was given in based on the following documents
1. The registered partition which says, "only their children can sell the property. In the two sisters if any one died without children then another sister's children will be the heir for the property".
2. They are not legally divorced but she send a legal notice to him for maintenance cost. In that she mentioned about the dowry problems..
3. He got second marriage (We proved it by a marriage certificate from temple)
4. He was not appeared for the trial when judges called him. But his lawyer was attended the trial. The judgement pronounced in front of his lawyer..
Actually this case was closed at 2001. He contested the case also. In his statements he also admitted that "the person was missing for long term". After closed the case he was not made any re appeal with in 90 days.
So, that now he is trying to frame it as a new case and says that "the person was not missing she was live with him up to June 2013".
Actually sir, my question is "whether he can set aside the civil death based on his ration card and death certificate proof?".
Because my lawyer said if court declared some one as civil death then further death certificate will not be accepted is it true?
Adv. Chandrasekhar
(Expert) 17 October 2013
with due permission from Mr. Prabhakar Singh, I slightly add something:
1. In 2013, husband filed a suit saying that wife 'B' died 3 months back. But as per you, he again married in 90s. He is liable to bigamy, if his statement of B's death will be taken correct.
2. As per S.15 (2)(a) of Hindu Succession Act, 1956 the property inherited by a female hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased, not upon the heirs referred to in sub-section (1), but upon the heirs of the father. So, the property in the event of B's death goes to A and any other heirs of the father, but not to B's husband.
My opinion is subject to correction.
R.K Nanda
(Expert) 17 October 2013
nothing to add more.
prabhakar singh
(Expert) 17 October 2013
I openly admit my mistake as I have earlier wrongly opined without taking care of the fact that your missing sister had no kids and the property was inherited from father
so you are the right heir and judgement in your favor is quite correct and unbeatable
and HIS Suit filed presently can not proceed
and is barred by res judicata(section 11 C.P.C).
THANKS A LOT TO MR. Chandrasekhar FOR POINTING OUT THE MISTAKE COMMITTED BY ME.
HE IS QUITE RIGHT IN HIS OPINION.
senthil
(Querist) 18 October 2013
Thanks Mr.Chandrasekhar and Mr.prabhakar sir
To use the section 11 C.P.C whether i need to file a new suit in high court or in district court?
Currently my case is going on in district court. my lawyer has submitted the statement for the current civil case. In that we have mentioned the partition details and 2001 case decree details.
is it enough or i need to take any other action to close this new civil case.
Please guide me on this..
Rajendra K Goyal
(Expert) 22 October 2013
At present defend the case as per advise of your lawyer and as advised by the experts.
senthil
(Querist) 18 November 2013
Thanks Experts
with help of the above details i have found the times of india article (2003)
http://articles.timesofindia.indiatimes.com/2003-08-14/delhi/27185892_1_hindu-succession-act-intestate-property
And also the supreme court judgement about the similar case
CASE NO.:
Appeal (civil) 6626 of 1995
DATE OF JUDGMENT: 08/08/2003
With help of my lawyer i have added these copies in my statement as reference and waiting for the court decision...
