SUNITHAROY CHOUDHARY Vs. JAGESHWAR CHOUDHARY

JUDGEMENT

(1.) Heard.

(2.) The present application is directed against the order dated 26-7-2006 passed by the learned Additional District Judge I. Vaishali at Hajipur in Succession Certificate Case No. 20 of 2003. By the impugned order, the learned Court below has directed the parties to get the civil death of the husband of the applicant declared by competent Court in absence whereof he was unable to grant succession certificate.

(3.) It appears that the husband of the applicant was an employee in Punjab National Bank. He disappeared and became traceless on 16-10-1996 on way to Bank. Under such circumstances after seven years of his disappearance in order to receive payments due under Employees Provident Fund Scheme on the event of death, the present application for grant of succession certificate as contemplated under Section 370 of the Indian Succession Act was filed before the District Judge, taking a plea that as the husband had been traceless for over seven years so in view of presumption as provided under Section 108 of the Evidence Act, the Court, should presume the civil death of the husband and proceed to grant succession certificate. The Court has refused to do so and left the parties to approach competent civil Court for such a declaration only whereafter the succession certificate would be granted. I see no illegality in the order. Section108 of Evidence Act is in Chapter VII thereof which deals with burden of proof. It is' commonly referred to as a clause dealing with presumption of civil death. Sections 107 and 108 of the Evidence Act are schemes under which if a person is seen to be alive within past thirty years then the burden of proving that he is dead shifts to the person so asserting This Section 168 provides that if a person is not heard from or seen within Seven years by persons who would normally hear from him then the burden of proof that he is alive is on the person assorting it or in other words he is presumed to be dead till proved to be alive.