Declaration of civil death of a person not seen for 7 years
A declaration of civil death of a person is a declaration as to the status of that person, who has not been heard of for seven years by those who would naturally have heard of him, if he had been alive.
If any person gets affected by the missing of a person for seven years, then he can very well file suit for a declaration of the death of the person, if he is his legal heir.
Legal provisions governing such a declaration
Such a declaration as to civil death can be granted by a civil court under Section 34 of the Specific Relief Act 1963 (SRA), read with Section 9 of the Code of Civil Procedure 1908 (CPC).
The decree that declares a civil death of a person is granted based on the presumption of law under Section 108 of the Indian Evidence Act, 1872 (IEA). The provision propounds that if a person 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 upon the person who affirms it.
The court where the suit is to be files & its procedures
The declaration of civil death is sought through a civil suit filed in a competent civil court.
The procedure involves proving the person’s absence for at least seven years, filing a suit with supporting evidence to prove his absence, and then the court issues a decree declaring the civil death of the person.
Declaration of civil death maintainable with no other relief
A suit for mere declaration of civil death, when a person is not seen for seven years, is maintainable and is not barred by Section 34 of the SRA merely because the plaintiff did not claim further relief, says the Allahabad High Court in Raeesa Bano v Smt. Tabassum Jahan & Others.
The court must presume civil death, if no contrary evidence
In the absence of any reliable material to the contrary, the court must presume that the missing person died on completion of 7 years of his missing. Ordinarily the court may make such presumption in all the cases in absence of any reliable evidence to the contrary, says the Bombay High Court in Subhash Ramchandra Wadekar v Union of India [AIR 1993 BOMBAY 64].
Declaration can be made by invoking Section 108 of IEA
The declaration can be made by invoking Section 108 of the IEA, which provides for presumption of death when a person has not been heard of for seven years by those who would naturally have heard of them if they were alive.
The IEA does not provide a specific procedure for a court to declare civil death. The presumption under Section 108 can be used in legal proceedings where the person’s status is in question.
Declaration for plaintiff’s benefit permissible
There is no bar under Section 34 of the SRA 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 obtaining his benefits, the court says.
Declaration of civil death has consequential effect
The court further states that declaring a person’s civil death is a substantial relief which 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.
Opposing party to prove contrary
The Section 108 of the IEA, proposes presumption of death when a person has not been heard of for seven years by those who would naturally have heard of them if they were alive.
The presumption shifts the burden of proving that the person is alive to the person who affirms it. It is a rebuttable presumption, which means that the presumption can be proved otherwise by contrary evidence.
Conclusion
As Calcutta High Court says, in Narayan Nayak v State Bank of India & Others, no suit lies for a declaration that a person not having been heard of for 7 years was deemed to be dead, unless the suitor seeks to establish that he is entitled to any legal character or to any right as to any property.
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