Madhya Pradesh High Court: In a second appeal filed under Section 100 of the Civil Procedure Code, 1908 (CPC) against the order affirming the judgment which partly allowed the appellants’ application for the declaration of civil death, a single-judge bench comprising of Anil Verma, J., partly allowed the second appeal and modified the judgment and decree to declare the date of death of missing solider (appellant’s son) as 25-07-2010. The Court held that the appellants are entitled to all benefits as per the circular letter No. 4-52/86-Pen, dated 03-03-1989 issued by the Government of India and directed the respondent to compute and pay all retiral benefits to the appellants.
Factual Matrix
The appellants, parents of the alleged deceased, who joined the Indian Army in 2002 and was promoted to Signal Man in Srinagar in 2010, filed a civil suit for the declaration of civil death of their son. The appellants’ son went missing on 25-07-2010, while traveling to a military training center in Goa. A missing person report was filed, and the appellants received an ordinary family pension from 25-07-2010. However, in 2020, they were informed that special family pension and other benefits could not be paid without a death certificate. The trial court declared the civil death of appellants’ son as of 24-06-2020, which was upheld by the appellate court vide order dated 25-07-2023. The trial court had partly allowed the appellants’ suit for the declaration of the civil death of their son but declared the date of death as 24-06-2020, the date of the institution of the civil suit. The appellants filed a second appeal, challenging the impugned orders as the trial court had partly allowed the appellants’ suit for the declaration of the civil death of their son but declared the date of death as 24-06-2020, the date of the institution of the civil suit and appellants’ first appeal was dismissed.
Moot Point
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Whether the lower courts erred in determining the date of death of appellants’ son as 24-06-2020, instead of 25-07-2010?
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Whether the date of civil death should be the date of disappearance?
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Whether Section 108 of the Evidence Act, 1872, raises only a presumption of death and not a presumption of the date of death?
Court’s Observation
Presumption of Death (Sections 107 and 108, Evidence Act, 1872)
The Court noted that the appellants provided evidence, including their statements and documents, that the deceased went missing on 25-07-2010, and they had been receiving an ordinary family pension from that date. The Court of Inquiry also noted that appellants’ son was missing from 25-07-2010.
The Court reiterated that while there is a presumption of death if a person is not heard from for seven years, the exact date of death is a matter of evidence and not presumption. The Court relied on the Supreme Court rulings in LIC of India v. Anuradha, (2004)10 SCC 131 and N. Jayalakshmi v. R. Gopala Pathar, 1995 Supp (1) SCC 27, which clarified that the presumption of death does not include the exact date of death.
Application of Preponderance of Probability
Applying the test of preponderance of probability, the Court concluded that the appellants’ son must have died on or soon after 25-07-2010, as he was not under distress or disability that would prevent him from contacting his family.
The Court noted that the trial court’s finding is not based on any cogent material but is based upon an inference drawn for which there was no basis. The Court held that the appeal deserves to be allowed as “in the present case the finding of the both the courts below are erroneous and unsustainable due to lack of proper appreciation of fact and law.”
Government Circular and Hardship to Families
The Court noted the Government of India’s decisions under Rule 54 of the CCS (Pension) Rules support the presumption of death and provision of benefits after seven years of disappearance. The Court emphasised that administrative rules should not cause hardship to the families of soldiers who serve the country with pride. The Court asserted the need to reconsider and possibly abolish outdated rules that cause hardship to families of missing soldiers.
“The brave soldiers of the Indian Army live for the country and die for the country. But unfortunately when a soldier suddenly goes missing, the Indian Army’s behavior towards him becomes somewhat rude. Instead of helping the family of the missing solider, the Indian Army expects them to get the date of his civil death declared through civil Court, and they are denied to release the pension and other retirement allowances of the missing solider. It is a hardship for grieving family of a missing soldier.”
Court’s Decision
The Court partly allowed the second appeal and modified the trial court’s judgment to declare the date of death of appellants’ son as 25-07-2010. The Court directed the respondents to compute and pay the appellants all due benefits, including GPF, gratuity, family pension, and other retirement benefits as per the Government of India circular dated 03-03-1989.
[Chhaya v. Public at Large, 2024 SCC OnLine MP 3733, order dated 27-05-2024]
Advocates who appeared in this case:
Shri Nitin Singh Bhati, Counsel for the Appellants
Shri Himanshu Joshi, Counsel for the Respondent No. 2
