S 34 Specific Relief Act – Civil Suit For Declaration Of Civil Death Of A Person

Can a person file a civil suit seeking a declaration that his father is no more invoking Section 108 of the Indian Evidence Act?

Section 108 is about the burden of proving that person is alive who has not been heard of for seven years. The provision reads as follows: [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.

One old decision of the Bombay High Court which deals with the question is Zena Gladys Freemantle vs Herbert Charles Freemantle. In the said case, a suit was filed in the year 1945 by a wife against her husband for a declaration that the defendant, not having been heard of since February 1937, be deemed to be dead. The court held that this suit cannot be entertained unless it falls within the scope of Section 42 of the Specific Relief Act. That section inter alia provides that any person entitled to any legal character may institute a suit against any person denying or interested to deny his title to such character, for a declaration that he is so entitled. “The declaration sought in this suit is not a declaration of such a kind.”The declaration sought in this suit is not a declaration of such a kind. The plaintiff does not claim to be entitled to any legal character nor can it be said that there is any person denying or interested to deny such character, because the plaintiff herself states that the plaintiff believes that the defendant is dead. Section 42, in my opinion, postulates the existence of a defendant who denies or is interested to deny the legal character. The possibility of his existence is, in my opinion, not sufficient”, it was observed. The Court however noted that, by refusing the relief the plaintiff may be subject to a great deal of hardship. But that is a matter for the Legislature to look into, it said.

In 2015, a woman filed a similar suit in Mumbai Court seeking a declaration that her husband is no more. The Trial Court dismissed the suit on the ground that the date of death was not specified and that there was no compliance of Section 34 of the Specific Relief Act. Thus she approached the Bombay High Court (Nagpur Bench) which allowed her appeal (Swati vs Abhay Deshmukh) and observed that the Civil Court acting under Section 9 CPC, has inherent powers in its plenary jurisdiction de hors with reference to Section 34 of the Specific Relief Act to grant relief qua Section 108 of the Evidence Act. The Court however observed that in a suit of this nature, the State should be made a party.

We also noticed that this decision in Swati (supra) is followed by Delhi District Courts in some judgments to hold that suit of this kind is ‘very much maintainable‘.

Though we are very much convinced that a declaratory relief can be granted even de hors Section 34 Specific Relief Act, we feel that there is one more issue that needs to be answered. This issue is seen flagged in a note prepared by a District Judge of Uttarakhand. This can be illustrated as follows : A person leaves his family and goes to a place where no one knows about him. After 10 years of his disappearance, his son files a suit seeking a declaration of civil death of his father. The suit is allowed following the dictum laid down in Swati (supra). A decade later, this person returns home. What happens to this declaration? Can he move the Court seeking to set aside this declaration? The answer may be yes or no. But the issue we are flagging is yet to be revealed.

Section 108 of Evidence Act is only a rebuttable presumption meant to aid parties to a litigation who may not be able to prove that a person is no more. To illustrate further, there is a suit in which question is whether the plaintiff’s missing father is dead or alive? Can plaintiff prove that he is dead? If he has to prove, he has to go in search of his father around the world. This is an impossible task. This is why Section 108 enables the Court to presume that the plaintiff’s version that his father is not alive. But note that this is only a presumption and not a tool to obtain declaration. In other words, Section 108 only helps Civil Court to proceed with the aid of presumption. Does it enable the Court to declare civil death of a person?

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