**Property Litigation based on Presumption of Death**

Querist : Anonymous (Querist) 08 January 2011 This query is : Resolved
Hi..
My query is related to property litigation case…

The property (Agricultural Lands) belongs to my mother. She left the house in the year 2000 without informing anybody. We searched her all around but could not find her. But we gave a paper advertisement of her missing in the year 2005 and police complaint in the year 2007.In the police complaint I mentioned that she is missing form 2000. The FIR was given on April 2007.

By brother refused to give me share of my mother’s property. After waiting for 7 long years I filed a petition in the District court for the partition of the property which was totally in the possession of my brother. He with a bad intention not to give my share of property responded back saying my mother is very much alive and she was with him up to 2006 and left the house only in the year 2006 informing that she is going to some pilgrimage places and asking him not to search for her. Also he stated that my mother has written a WILL for the entire property in name of her grandson (my brother’s only son) in the year 1996. We made his son a third party and asked him to produce the WILL in the court. He said that since her grandmother is alive he will produce the WILL only on confirmation of her death stating there is no point of producing the WILL when she is alive and that the WILL cannot be executed until she is alive.

But all these are absolute false allegations. The actual facts are she left house in the year 2000 from then on her whereabouts are not known. And there was no WILL at all on anyone’s name.
The mistake I did was not reporting her missing on time i.e. in 2000. Instead I gave a complaint in April 2007 stating of her missing from the year 2000. But FIR was given on April 2007. I have not given complaint in 2000 since my brother told that he has given complaint to the police in 2000 which I came to know is a lie.

Under these circumstances,
 What way should I need to proceed to prove my mother’s death presumption under section 108 of evidence act and get my property share since my brother is always trying to prove that she is alive by relying on section 107 just to dodge the proceeding so that I can drop off for claiming my property share which is under his possession.

 Since she is missing and the presumption of death is yet to prove, will the property be under his possession until death presumption of my mother is proved. Is there any legal way to take over the possession of the property from him until the facts are proved. Can I also plead the court to provide enjoyment rights to half of my mother’s property .

 Should I need to wait up to 2014 to ask for partition of my share of property since I gave police complaint in 2007.

 If my brother keeps saying that my mother is alive and she is visiting his house rarely even after 2006 or after that. If he is producing some oral (relatives/friends favour to him) evidences by making them say that they have seen my mother even after 2006 just to have sec 107 in his favour. Under these situations what should I do to establish presumption of death of my mother who is really missing.

Please guide/help me in this matter. Please also help me with some citations related/favouring to my case.
Thanks a lot in advance for your precious time.

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Amit Minocha (Expert) 08 January 2011
you can immediately file a suit for partition giving your stand. It would be a matter of trial as when your mother left. If your brother says it was in 2006, he has also to prove the same ( i donot think any neighbour would depose in court that they saw her with your brother ever since 2000-2006) . In the mean while you can also pray for possession / entry rights and take a stay against any construction and third party stay on the said property. Thx....amitminocha@yahoo.com

Uma parameswaran (Expert) 08 January 2011
Your brother has to prove what he has told. Go with the partition suit.You can also take criminal action against your brother for the missing of your mother.Why you have n't given any complaint till 2007 even though your mother went missing on 2000. It is too strange.

Pritam Saini, Advocate (Expert) 08 January 2011
As per section 107 there is word 'shown' and rise presumption of live a person for 30 year.But when a person claim that person is missing and not heard or seen and proved person not seen or heard for last seven year.then burden is shifted on him who claim live a person.So continue your case its matter of evidence after evidence you need to case law. Moreover during pend ency of suit seven seven year more will be expired.

Arun Kumar Bhagat (Expert) 08 January 2011
I agree with Mr. Amit Minocha and Mr. Pritam Saini.

Querist : Anonymous (Querist) 08 January 2011
Thank you..

We already filed a suit in district court.. Very unfortunate thing is my brother has produced some neighbours & relatives (in favour of him) as false witness & made them say they have seen her in 2006..which is making very difficult to prove presumption of death..

***Since a made a police complaint in 2007..Can i at least get my share in 2014..What if my brother again produce some sort of false oral witnesses & made them say they have seen my mother between 2007 & 2014..Please let me know which way to proceed to overcome these sort false allegations made by him and how to establish missing of my mother..***

Can I request for non-traceable certificate from police in the year 2014.

Can you please share citations asking for possession & entry rights related to my suit.

Property Litigation based on Presumption of Death

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