Bombay High Court sets aside trial court order and presumes death of a man missing since April 2003 | File Photo
Mumbai, Jan 29: The Bombay High Court on Thursday allowed an appeal filed by a son seeking a declaration that his father, missing since April 2003, be presumed dead, holding that the trial court had erred in rejecting the claim despite sufficient documentary and circumstantial evidence on record.
Trial court order set aside
Justice Jitendra Jain set aside the October 31, 2015 order of the trial court, which had dismissed the suit filed by Vishwesh Dogra Suvarna (45) and refused to declare his father, Dogra Venkappa Survarna, as presumed dead. The trial court had cited lack of medical evidence relating to memory loss and absence of proof that there were no other legal heirs.
Police records and documents relied upon
The High Court noted that the trial court itself had accepted that the plaintiff had lodged a missing complaint and had produced a police certificate confirming that his father had remained untraced since April 8, 2003. It had also acknowledged documents such as the ration card, birth certificate, passport and newspaper advertisements issued by the plaintiff.
“The documents relied upon are prepared and issued by State authorities and therefore can be relied upon for the purpose of adjudication,” Justice Jain observed, referring in particular to the police certificate issued in November 2011 certifying that the missing person had not been traced even after seven years.
Advertisements support claim
The court also took note of newspaper advertisements published in a Marathi daily and a Kannada newspaper seeking information about the missing man. These publications, the court said, supported the plaintiff’s claim that his father had not been heard of since 2003.
Medical records not mandatory
Rejecting the trial court’s reasoning, the High Court held, “Merely because the plaintiff could not produce any medical records of his father after a period of more than seven years to show memory loss, it cannot be a ground to disbelieve the claim made by the plaintiff.”
Presumption under Evidence Act
The court emphasised that the circumstantial evidence clearly favoured the son and relied on Section 108 of the Indian Evidence Act, 1872 (now Section 111 of the Bharatiya Sakshya Adhiniyam, 2023), which raises a presumption of death if a person has not been heard of for seven years by those who would naturally have heard from him.
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Finding no material on record to rebut this statutory presumption, the High Court held that the trial court was not justified in dismissing the suit.
Accordingly, the High Court quashed and set aside the 2015 order and directed that a decree be drawn declaring that Dogra Venkappa Survarna is presumed to be dead on the expiry of seven years from April 8, 2003.
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