Civil death
Mugundhan
(Querist) 23 April 2013
This query is : Resolved
a person had gone missing in 1982 itself. But there was no police complaint or fir. Now whether his legal heirs can file a suit for declaration of civil death? Is Police complaint compulsory?
prabhakar singh
(Expert) 23 April 2013
How now an occasion have come as need of declaration.?
Mugundhan
(Querist) 23 April 2013
declaration has become necessary because the legal heirs want to partition the property standing in his name.
prabhakar singh
(Expert) 23 April 2013
A police complaint at least proves the cut off date.
The legal heirs should file mutation application pleading civil death of the missing person and when disallowed,let a suit be filed for declaration of civil death.
adv. rajeev ( rajoo )
(Expert) 23 April 2013
No police complaint? is there is any paper publication? Suit can be filed but burden lies on the plaintiff to prove it. Wittnesses play the vital role.
Rajeev Kumar
(Expert) 23 April 2013
Prabhakar sir has advised well and nothing left to differ.
Raj Kumar Makkad
(Expert) 23 April 2013
Revenue officer is not going to oblige and moreover the civil death is meant for many purposes for the suit for declaration is the only remedy. It shall also be better t lodge a GD in the police prior to filing of the suit about the missing of that person since 1982. The certified copy of GD can also support the claim.
prabhakar singh
(Expert) 23 April 2013
Refer to Classical homeopathy for anxiety and jealousy by George Vithoulkas.?????
prabhakar singh
(Expert) 23 April 2013
Revenue officer may not going to oblige but their refusal shall afford a cause of action.
How shall one justify lodging FIR of a person missing since 1982 in year 2013.
What explanation about delay of 31 years,where the presumption is to be raised
just passing 7 years?
Should not one apprehend a wait of further 7 years more on choosing to file FIR now?
In one way or the other burden of proof would be upon plaintiffs.
And it can be discharged by adducing oral evidence.
are not???
Is FIR a sine qua non?
Raj Kumar Makkad
(Expert) 23 April 2013
FIR is not a sine qua non but definitely General Diary entry of police can be just one of the mode of the evidence in pleading before the court.
Civil suit do not deserve the refusal of revenue authorities to enter mutation because if a mutation has been denied by a revenue authority then the mode is to file its appeal before Collector and then to Commissioner and then financial commissioner and then to high court.
The presumption of civil death is a recurring cause of action in the given case.
Difference of opinion should never be taken as a jealous as unfortunately some experts do feel.
prabhakar singh
(Expert) 23 April 2013
How can there be an entry in GD of police without information?
On refusal of mutation t initial stage party seeking mutation is not obliged to exhaust
all the channels so as to to file its appeal before Collector and then to Commissioner and then financial commissioner and then to high court.??
Notice should be taken that a presumption has to be taken.
There is no necessity of any declaration unless there is refusal!
J K Agrawal
(Expert) 24 April 2013
I cut and paste my answer given to Anusha for same quesion
Dear Anusha
In fact no formal expression from any court is required to prove a civil death.
You just claim your rights stating that X is died as he is not heard for more than 7 years. Rest is upon the authority who is to decide your rights. It may be a Court or may be a government office.
Section 107 and 108 of the Evidence act are very clear in this regard and these imposes burden of proof upon the person who want to challenge it.
However In practice no government officer or the Courts want to bother to decide this question and they simply says to get a declaration from a Court.
Now you are correct. Only deposition and affidavits of the persons who naturally have heard of him if he had been alive is requirement. You are required to prove so up to last 7 years but you should take a longest possible period.
Raj Kumar Makkad
(Expert) 24 April 2013
I also pay thanks Mr. Aggarwal for citing the practical trend of the authorities which I had tried to put in my answer.
