Presumption of death based on section 108 of t evidence act

P. Venu (Querist) 14 July 2020 This query is : Resolved
An agreement has finalised for purchase of 15 cents of land and advance of Rs. 5 lakhs have been made. The property belonged to the late mother. Father had predeceased her. Two sons and two daughters are the legal heirs. Of this, one son went missing more than thirty years ago. In a civil action filed by the son, the Munsiff court has declared the presumption of death of the missing son based on the provisions of Section 108 of the Evidnce Act and has held his share in the property to be partible among the other siblings. Accordingly, the Court has issued the preliminary decree as to the share of the remaining legal heirs. Based on the preliminary decree, the revenue records have been mutated in their names. The agreement is jointly with all of them and the conveyance deed is to be executed by them jointly.

However, the Banks, who have been informally consulted, have expressed their inability to sanction any loan against the property. They are apprehensive that the missing son may return and claim his share. How the Banks and their legal advisors could be convinced of the finality and certainty of the decree? Are there any decided cases?

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Quick Summary

This discussion explores the legal implications of Section 108 of the Evidence Act, which allows for a presumption of death after a person has been missing for seven years. It addresses a specific case where a missing son was presumed dead, allowing his share of inherited property to be partitioned among his siblings. The main challenge discussed is convincing banks to grant loans against this property, given their apprehension about the missing heir potentially returning. The conversation offers various solutions, including providing affidavits, seeking legal advice from bank law departments, and potentially finding a more accommodating financial institution.

Guest (Expert) 14 July 2020
Such Missing Persons have an rare Occasion been found alive after being declared dead and . Instead of seeking the Citations of Court Orders of similar cases convincing the Bankers with providing them Affidavits of Under Takings would serve the purpose. Discuss with Bankers Advocates and try to convince them.. The Discretion of Banks in this issue can not be Legally Questioned.. The Title of the Query and the Section mentioned speaks only about Presumption of Death.

Guest (Expert) 15 July 2020
The Simple Solution would be if the Seller is confident about the Buyer and the Buyer is a Faithful and Honest Person first the Sale Deed could be Executed and Registered and it would clear the hurdles in the Banks and if required the Borrower could switch over to some other Bank.

Rajendra K Goyal (Expert) 15 July 2020
What more proof bank want apart from the court orders.

Refer the matter to Bank Law department.

If Bank does not agree, lodge complaint.

Trying from some other nationalized bank may be useful.

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