Evidence act 1872
Querist :
Anonymous
(Querist) 03 January 2012
This query is : Resolved
A person absconding/missing for 15 years. He availed gold loan From a Bank.
The family members/legal heirs have not filed any missing case with police .
Now they have repaid loan and wants settlement of claim by gold ornaments delivery.
However the the Bank is asking for legal death certificate from court of law .
Do they get a certificate of death from court? Till now they have not filed any case of missing with police .
what is the remedy available to the family members for getting back Gold ornaments? Please advise
Raj Kumar Makkad
(Expert) 04 January 2012
Declaration of Civil Death as per section 107 Evidence Act is must so there is no short cut with the family but to lodge a FIR stating therein that the person has not been heard since last 15 years and then to file a civil suit as desired by banker.
M.Sheik Mohammed Ali
(Expert) 04 January 2012
yes, you must get death certificate from the court and get ordered to declared that death, and also get legal heir certificate certificate.
prabhakar singh
(Expert) 04 January 2012
It appears in every law college this year section 108 of Evidence is on the hit list.Two queries have by now revealed them to be a moot problem.What about your's??
Any way,the steps required to be moved is first to lodge a diary with police to the effect that the person is missing since last 15 years and has not been traced nor has been heard of or seen by any of his family,relatives or friends or by persons to whom he was known despite all efforts made in this regard and it should also be alleged that being illiterate,the fact of his missing could not be reported on the very date for it was unknown to lodger.
Then it would be better to move an application before bank for delivery of gold and to take a reply in writing from them that they can not deliver Golds without succession certificate of the court.(it would be better to bring facts in coherence,though not so much a necessity)
There after a succession certificate should be applied in court by arraying one heir as applicant and other heirs as opposite parties to collect those golds from Bank under section 372 of Indian Succession Ac,1925, alleging that the missing person has met the civil death in view of the provisions contained in the section
108 of the Evidence Act,1872,which reads as
"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."
After procedure of notices is complete,evidence should be adduced in the case either entering into the witness box or by affidavit, as court demands.
Doing so cost, time, energy all would be saved because in my view a declaratory suit to first declare him dead then to file for succession certificate is not the legal necessity at all.
If there is single heir then one should not worry for opposite party as that is not the necessity since for grant of a succession,courts publish public notice and it is a proceeding in rem.
prabhakar singh
(Expert) 04 January 2012
section 372 of Indian Succession Ac,1925,runs as:. "Application for certificate.- (1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, (5 of 1908.) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:--
(a) the time of the death of the deceased;
(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;
(c) the family or other near relatives of the deceased and their respective residences;
(d) the right in which the petitioner claims;
(e) the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted; and
(f) the debts and securities in respect of which the certificate is applied for.
(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under section 198 of the Indian Penal Code. (45 of 1860.)
(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof."
It may be noticed that that 372(1)(a) requires the applicant to tell the time of death which in ordinary cases would be available,but in this case one shall plead his civil death alleging facts of missing and untraceable leading to presumption of his death under section 108 of the Evidence Act.
Deepak Nair
(Expert) 04 January 2012
Sifficiently guided by Mr.Prabhakar. Noting more to add.
Shonee Kapoor
(Expert) 05 January 2012
Nothing more to add.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
