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Suraj Kumar (Business)     02 January 2015

Declaration suit for civil death

Hi Ld Members,

 

Please help me by sharing the format for Declaration suit for Civil death. The person is a male and missing since 1997 and a simple complaint to police station was made. There was no FIR to that effect.

 

Whom to make the parties? The family consists of wife, son and daughter.

 

Thanks,

Suraj



Learning

 5 Replies

Jai Karan Nagwan (consultant)     02 January 2015

Can you explain the purpose to enable right opinion.

Dr J C Vashista (Advocate)     03 January 2015

Lodge a police complaint for missing person, obtain "not tracable" report, engage a local lawyer and proceed in a professional manner.

Try yourself if you can, which require lot of procedural, technical and legal aspects to be taken care for  proceeding.

Suraj Kumar (Business)     03 January 2015

A complaint was already there which was lodged in 1997 however it was not converted into FIR by police and they are denying for any report. Police is saying to proceed with court and only on their instruction they will do the necessary investigation i.e. take the witness from neighbors.

 

The same is required to change the wife's status from married to widow so that she may be eligible for Widow Pension. There were no properties of the deceased.

 

Right now thinking of filing a suit with Plaintiff as wife & Union, Municipal Corporation and Police Department as defendant.

 

Please help with a draft of Plaint and How much time will it normally take... Thanks !!

 

Jai Karan Nagwan (consultant)     03 January 2015

Meet advocate, he will prepare your case as per sec 108 of evidence act. However lot many genuine question will arise as to why. FIR not filed, why matter is not followed by near dears. Is that a conspiracy, is the close relatives involved in missing. Be prepare with all this.

T. Kalaiselvan, Advocate (Advocate)     06 January 2015

It is unbelievable that you have lodged a complaint with the police in the year 1997 and they have not taken any action on the complaint so far and you remained silent about it without any follow up for a period of almost 18 years. 

There is a legal presumption that an individual is alive until proved dead. In attempting to determine whether a person has died after having been missing for a certain period of time, the law assumes that the person is alive until a reason exists to believe otherwise.

The common-law rule is that where evidence indicates that the absent person was subject to a particular peril, he or she will be legally presumed dead after seven years unless the dis-appearance can be otherwise explained. The seven-year interval may be shortened if the state decides to enact legislation to change it. Some states may permit the dissolution of a marriage or the administration of an estate based on a mysterious disappearance that endures for less than seven years.

A special problem emerges in a situation where a person disappears following a threat made on his or her life. Such an individual would have a valid reason for voluntarily leaving and concealing his or her identity. Conversely, however, the person would in fact be dead if the plot succeeded. A court would have to examine carefully the facts of a particular case of this nature.

The court will not hold that an individual has died without proof that an earnest search was made for him or her. During such a search, public records must be consulted, wherever the person might have resided, for information regarding marriage, death, payment of taxes, or application for government benefits. The investigation must also include questioning of the missing person's friends or relatives as to his or her whereabouts.

Legal death is a presumption by law that a person has died. It arises following a prolonged absence, generally for a prescribed number of years, during which no one has seen or heard from the person and there is no known reason for the person's disappearance that would be incompatible with a finding that the individual is dead (e.g., the individual had not planned to move to another place).

Procedure for declaration of death

  1. After receipt of an application for declaration of death, a court shall publish a notice in a national daily newspaper calling on all persons to provide information concerning the person whose declaration of death is applied for.
  2. A court shall not declare a person dead if within six months after publication of the notice information is received which proves that the person is alive.

 

In your case, if there is no person who will oppose to this declaration suit,  the defendant will be "NIL".

 

It is advisable to take the help of a local advocate to follow the legal procedures to file the suit.


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