'Human Tendency To Wait For Missing Person': Gujarat High Court Says Suit For Declaring Child Missing Since 1984 Dead Not Barred By Limitation

The Appellant-Original Plaintiff had filed a suit for a declaration that his son was missing since 31.01.1984 and could not be found till the filing of the suit. Therefore, he sought that the Nagarpalika, Surat declare his son dead and make an entry to this effect. No written statement was filed by the Defendant-State. However, the suit was dismissed by the Trial Court and a first appeal against the same was also unsuccessful on ground of limitation.

In second appeal before the High Court, the Appellant primarily insisted that he had submitted the missing report as well as taken the help of Police but could not find his son. It was submitted that the Court had wrongly applied the law of limitation, as well.

Justice AP Thaker opined that the Plaintiff had been awaiting the son's return for long and did not know if he would return alive. The law of limitation, was therefore, not applicable. Reliance was placed on the newspaper advertisement that the Plaintiff had issued for inviting public attention to the missing son. It held,

"There cannot be any assumption or presumption that after certain period of time, the family members would automatically consider that the missing person has died on a particular date or within a particular point of time. Therefore, if father is waited for returning of his son before previous day of filing of the suit, it cannot be held that limitation period has started after seven years of date of missing of his son."

The Courts below had relied upon Section 108 of the Evidence Act for their observations that the suit is barred by law of limitation. Section 108 stipulates: 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.

Therefore, the Single Judge Bench clarified:

"Section 108 of the Evidence Act clearly provides only for raising presumption. It is a limited presumption confined only to presume the factum of death of the person who's life or death is in issue. There is no presumption as to the facts and circumstances under which the persons may have died."

It was further held that the onus of proving the death of the disappeared person lies on the person who stakes the claim at any given point of time since the disappearance or within the period of seven years. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose, subject to a period of seven years absence, and being unheard of having elapsed before that time.

"At what point of time the person was dead is not a matter of presumption, but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death."

Holding that the entire approach of the Trial Court and the Appellate Court was not sustainable in the eyes of law, Justice Thaker allowed the Second Appeal and declared that the Plaintiff's son ought to be deemed dead and an entry should be made in the relevant register by the Defendant.

Case No.: C/SA/315/2021

Case Title: MANSINH AMARSINH DEVDHARA v/s STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 223

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