10 May 2008
hello i wanted to know uder which provision of law can i seek for suit for declaration that the person who i missing since 7 years be declared as death. what should be the pleadings of suit and procedures. Any notice to be given to collector? before filing suit.What documents to be intacked? How many witness to be brought.and lastly main qestion which party to be joined collector or ? Kindly help me . AM from gujarat valsad. Am junior lawyer.
10 May 2008
To get declaration about a missing person that he should be supposed dead is a judgment in rem and as such the government is necessary party. Section 108 of Evidence Act does not provide a right that when a person is missing for more then seven years he should be declared Dead. It shifts only Burdon of proof over the other side to disprove your this fact if proved. There is no law that when a missing person should be declared dead. No other law is there about missing persons in India so all the answers are guess work and have no support of law. My personal view (not supported by any law) is that you should file a declaration suit in civil court. The valuation and court fee is at your sweet will. you should make all the legal representatives party and of course the government through the collector. As no relief is sought against the government application of section 80 CPC is not necessary. It would be better if you array one of LR as plaintiff and rest as defendant. Pleadings are simple. cause of action arises on the last day he was heard alive. There is no limitation period fixed for such a suit.
12 June 2008
after filing of the suit as suggested earlier by Mr.Agrawal, the onus is upon you to prove from evidence that the person has not been heard of for seven years by those who would naturally heard of him if he had been alive. It is only after that the onus shifts on the other side to prove that he is alive and if he fails the suit may be decided in your favour
29 October 2010
hi, i have also filed this kind of case in civil court but the judge has asked me in which provision he will passed the order and he demanded judgement in this regard, if any one has judgement of the above mentioned fact please mention here. the fact in brief :-Mr. A who was working in Postal & telegraph department and he been missed since July, 2002, in this regard FIR has been lodged and police has been filled untraceable report in 2004. now the LRs of missing person want to take fund & gratuity etc. now for what to do for take these funds from the office of postal & telegraph department. please help me with law and judgement. thanks raj kr. solanki advocate