The Hon'ble Bombay High Court in a ruling in the case of Vijaya Shrikant Revale V/s Shirish Shrikant Revale & Ors. held that when an Application for Succession Certificate is filed for a person that has not been heard of for a period of 7 years and when the exact date of death is unknown, the courts shall not insist on compliance of Sub-Section (1) of Section 372 of the Indian Succession Act, 1927.
- The wife of a missing person viz. one Shrikant Revale had filed an Application before the Civil Judge junior division Khalapur for issuance of Succession Certificate to the securities of the Shrikant Revale u/s 372 of the Indian Succession Act 1927. The children of Shrikant Revale had filed their respective affidavits consenting for the issuance of Succession Certificate. Shrikant Revale was not heard of for more than 10 years prior to the Application for Succession Certificate. The wife of Shrikant Revale had filed a missing person report with the local Police Station. After investigation a report was registered by the Police Station that the missing person, Shrikant Revale could not been found and his whereabouts were unknown. In the Application for Succession Certificate, paper publication was issued and no objection was received to the same.
- The Ld. Civil Judge however rejected the Application for Succession Certificate on the ground that the Application did not mention the date of death of the deceased as is required under Sub-Section (1) of Section 372 of The Indian Succession Act, 1927. This is despite the fact that the Applicant was not aware of the date of the death of Shrikant Revale who went missing. The Ld. Civil Judge had taken a view that Section 108 of the Indian Evidence Act deals with presumption of civil death of a person. However, it does not itself declare that a person is dead or alive and therefore he insisted that the Applicant should have filed a suit for declaration of death of the husband of the Applicant. It also held that granting of Succession Certificate under Section 372 of the act requires a summary inquiry and therefore rights and liabilities of the parties claiming Succession Certificate cannot be decided by the said court. It was observed by the Ld. Judge that procedure contemplated for declaration of civil death of a particular person is a detailed inquiry and therefore the Ld. Civil Judge refused to grant relief prayed for in favour of the Applicant. The therefore filed a First Appeal before the Hon'ble Bombay High Court challenging the order of the Ld. Civil Judge Junior Division Khalapur.
- The Hon'ble Bombay High Court while deciding the First Appeal relied upon Section 108 of the Indian Evidence Act which prescribes that when the question is whether a man is alive or dead and it is proved that he has not been heard of for 7 years by those who would have naturally heard of him had he been alive, the burden of proving that he is alive is shifted to the person who affirms it. The Hon'ble Bombay High Court therefore held that if a person is not heard of continuously for 7 years then it is to be presumed that he's dead unless it is countered and if countered that the person is alive, then the burden of proving so lies on the person asserting it.
- The Hon'ble Bombay High Court further held that when a person is missing and his heirs apply for Succession Certificate under Section 372 of the Indian Succession Act, certainly the Application is based on Section 108 of the Indian Evidence Act. If a person missing and is not heard of for more than 7 years then, the legal heirs of the missing person cannot be deprived of the monetary assets of such person which are lying idle either in the bank or in other deposits. The status of the existence of a person who is not heard of for more than 7 years is required to be fixed or to be declared for many practical purposes. Thus the issue cannot be kept in uncertainty and therefore under Section 108 of the Indian Evidence Act, a way out is provided in the form of presumption of the fact. It provides a presumption that a person, if not at all known or missing or not heard of for more than 7 years then it is to be presumed that he is not alive. There may be a possibility of his return. However, law has considered a period of 7 years as sufficient for the missing person either to come back or to give details of his whereabouts to his near relatives to whom generally his whereabouts are to be known. Though the missing person may however return after several years and clean his assets. This possibility cannot be overruled. However, the law cannot take into account each and every remote possibility which may be closer to impossibility. The general yardstick of reasonableness and prudent man thinking is applied while appreciating any fact. The Hon'ble Bombay High Court also relied upon the judgment of the Supreme Court in the case of LIC of India V/s Anuradha reported at AIR 2004 SC 2070 where it was held that neither Section 108 of the Indian Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for several years was dead on the date of his disappearance or soon after the date and time on which he was last seen. 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 7 years absence and being unheard of having elapsed before that time. The presumption stands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of 7 years counted backwards from the date on which the question arose for determination. 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 7 years lies on the person who stakes the claim, the establishment of which will depend on proof of the death or time of death.
- In light of the judgement of the Hon'ble Supreme Court the Hon'ble Bombay High Court held that while dealing with the case of heirship certificate and where the date of death of a person missing is not known under such circumstances the Courts shall not insist on compliance of Sub-section (1) of Section 372 of the Indian Succession Act i.e. the requirement as to specifying the date of the death of the deceased.
By - Chaitanyaa Bhandarkar