Suit For Declaration Of Civil Death Not Barred By S. 34 Specific Relief Act Merely Because Further Relief Wasn't Claimed: Allahabad HC

The Allahabad High Court has ruled that a suit for mere declaration of civil death is maintainable and is not barred by Section 34 of the Specific Relief Act, 1963 merely because the plaintiff did not claim further relief.

A bench of Justice Arun Kumar Singh Deshwal further noted that there is no bar under Section 34 of the 1963 Act for filing a suit for the declaration of a civil death of another person if the plaintiff is a legal heir of such a person and such legal character of civil death is for his benefit and the same is attributed to such legal character.

The court made these observations by the single judge while allowing a second appeal filed by one Raeesa Bano contesting a 2016 judgment from the Additional District Judge, Lucknow. This judgment upheld the dismissal of the suit by the Civil Judge (Senior Division), Mohanlalganj, Lucknow.

The case in brief

Essentially, the plaintiff/appellant had filed the suit in 2015 for the relief that her husband has been missing for more than 13 years; therefore, he may be declared dead given the presumption under Section 108 of the Evidence Act.

In her plaint, she specifically stated that she had lodged an FIR, the publication in the newspaper and required format as well as notice u/s 80 CPC to the District Magistrate, Lucknow regarding the missing of her husband (Akhtar Ali) for more than 13 years.

It was also pleaded in the complaint that her husband was working in the Electricity Department, but he did not attend his duty for more than 13 years, and unless he is declared dead, she will not be able to get his service benefit.

Though none of the respondents contested the above suit, even the State supported the claim of the plaintiff-appellant, the same was dismissed by the Civil Court on the ground that the suit for mere declaration of civil death without further relief is barred by Section 34 of the 1963 Act.

Before the HC, the counsel for the plaintiff-appellant argued that such a suit would be maintainable. It was also pleaded that because of the non-declaration of the death of her husband, she was deprived of the service benefits of her husband from the Electricity Department as he was an employee of the Electricity Department.

HC's observations

At the outset, the Court noted that the suit in question was not only a declaration of civil death but also to get service benefits to the wife of the missing person, who worked as a Lineman in the Electricity Department.

Further, examining the mandate of Section 34 of the 1963 Act, the Court noted that the provision does not bar the suit for the declaration of civil death of a person, but it simply regulates the suit which is like a mere declaration without seeking further relief, which the plaintiff can seek, however, the Court added that when there is no requirement for further relief, then seeking further relief is not necessary.

The Court further noted that declaring a person's civil death is a substantial relief and has an immediate consequential effect. On the declaration of the death of a person, benefits are accrued on the legal heirs of the person declared as dead, therefore relief of all such benefits cannot be sought vaguely in the garb of further relief.

"Even Section 34 of 'Act, 1963' itself permits seeking declaration without further relief except in those cases where without seeking relief, mere declaration has no effect and such is not a position in the declaration of civil death of a person by a legal heir," the Court remarked.

Further, referring to the facts of the case, the Court noted that the basis of the suit itself was to get the service benefit of the late Akhtar Ali from the Electricity Department and for that declaration of the death of Late Akhtar Ali is necessary.

"On declaration of civil death of late Akhtar Ali, the consequence will be that his wife, along with other legal heirs, would be entitled to the property and service benefit of the late Akhtar Ali as per the law. Relief of the same is not required to be pleaded as the same will automatically flow to them after the declaration of his civil death. Therefore, even if no specific relief is sought against the Electricity Department even then the suit for the declaration of the death of the husband of the appellant cannot be dismissed as not maintainable under Section 34 of the Act, 1963," the Court noted as it set aside the judgment of the first appellate order .

Consequently, the matter was remanded back to the Civil Judge, Senior Division, Mohanlalganj, Lucknow to pass a fresh order in light of the above observation within 3 months.

Appearances 

Counsel for Appellant: Alok Mishra, Adnan Ahmad, Dr. Manoj Kumar Dubey, Roopani Mishra

Counsel for Respondent: CSC Amar Nath Mishra, Mohd Wajid Irfan, Narendra Kumar Pandey, Vidhu Bhushan Kalia, Sabul Khan

Case title - Raeesa Bano vs. Smt. Tabassum Jahan And Ors 2024 LiveLaw (AB) 204 [SECOND APPEAL No. - 428 of 2016]

Case citation: 2024 LiveLaw (AB) 204

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