IN RE: VENKATAMMA Vs. STATE

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner. There is no respondent to this matter. Having regard to the nature of the case, the petition is considered for final disposal.

(2.) THE petitioner herein is the wife of one Venkataiah, who was said to be a Government servant and was hospitalized. While in hospital, it transpires that he disappeared and his whereabouts are not known. This was from 20.04.1997. Seven years later, a suit is said to have been filed seeking a declaration that the man is dead. The date from which he was said to be missing was inadvertently indicated as 20.1.1997. This inadvertent error had been carried in the plaint and in evidence as well. The judgment also reflected the very date and the suit was decreed as prayed for. It is after realizing the error, in relation to the document on record, it was sought to be proved that the man was not heard of for over seven years. Therefore, such a presumption having been arrived at by the Court below, it is noticed that the documents, such as the first information report filed with the jurisdictional police coincide with the date on which he was shown as missing, namely, 20.4.1997. Consequently, an application under Section 152 of Code of Civil Procedure, 1908 was filed seeking correction of the judgment insofar as the date was concerned. The Court below has, however, held that the error committed is not in the judgment and decree, but an error which is reflected from the plaint and the contents of the plaint and has refused to carry out any such correction. The reasoning of the Court below at first blush does appear to be in order. However, it is to be further noticed that the very suit seeking a declaration that a person is dead was not an appropriate relief that could have been countenanced. A rule of evidence under Section 108 of the Indian Evidence Act, 1877 clearly spells out that when the question is whether a man is alive or dead and if 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, it follows that if a man is unheard of for more than seven years, the presumption is he is dead. This is a presumption in law. Therefore, there was no warrant for the Court to declare that a man is dead. In other words, it was possible for the man to walk into Court and declare that he is alive. In such a situation, unless the judgment and decree is set aside the man is construed to be dead in the eye of law, though he is alive. Therefore, on principle such a declaration ought not to be granted. That is the reason why the law has left the question open and there could be only a presumption subject to proof that a person is either dead or alive. In that view of the matter, there is no advantage to be gained by the present petitioner if there is change or correction as to the date as reflected in the judgment and decree.

(3.) ACCORDINGLY , the petition is allowed.