N.N. Mithal, J. - (1.) Aggrieved by the judgment of the trial court, the plaintiffs have come up in appeal.
(2.) The suit was filed by the plaintiffs who are father, widow, son and daughter of one Rajarsh Kishore Misra respectively. The aforesaid Rajarsh Kishore Misra, (hereinafter R.K. Misra) for short, joined the Army Education Core some time in 1962 - 63 as Havaldar and was attached to 19 Madras Regiment. He availed his annual leave in 1968 and thereafter he returned back to his Unit but soon thereafter he became sick and was hospitalised. On dischrage from the hospital, he disappeared and after a Court of Enquiry, he was declared army deserter with effect from 16th August, 1968. The case of the plaintiffs was that they have not heard about the said R.K. Misra since 1968 and even others who would naturally hear of him if he had been alive have also not heard anything about him for more than 7 years. The plaintiffs' case further was that in view of Section 108 of the Evidence Act, there was a presumption that he was dead and, therefore, the plaintiffs, as his heirs, were entitled to the Provident fund, Family Pension, Gratuity, etc. payable in respect of the deceased. After serving the requisite notice under Section 80 C.P.C. the present suit was filed seeking a declaration that R.K. Misra should be presumed to be dead since he had not been heard of by the members of his family and all others concerned who would naturally have heard of him had he been alive and consequently the plaintiffs were entitled to the Funds, Family Pension and service benefits and other assets left by him.
(3.) The suit was contested by the Union of India and after mentioning the various facts regarding service and his consequent desertion, it was stated that nothing has been heard of about the deserter and that in accordance with Army Rules he will be discharged from service on the expiry of 20 years from the date of desertion. It was also mentioned that certain amounts lying to the credit of said R.K. Misra were either liable to be forfeited or could not be paid as there was no provision for the payment thereof. It was also said that in case of desertion, no Family Pension or Gratuity was admissible. As regards the claim due under the Life Insurance Policy, it was contended that there was no mention about any such policy with the Army Authorities. It may be stated here that although a relief in respect of Life Insurance Policy has been claimed in the suit, curiously the Corporation has not been impleaded as a defendant.;