Wednesday, October 24, 2018

‘FIR not a must to presume death’

HC Paves Way To Sell Property Of Man Missing Since 1970

In an important order, Gujarat high court has ruled that a person continually absent from home for seven years and unheard of by his family, friends or acquaintances can be presumed to be dead.
The court said that the missing person’s family is not required to either lodge an FIR or to inform any authority upon a person going missing, for the law does not lay down any procedure for declaring a person presumed dead. There is no requirement of the police investigation to trace the missing person or police record to raise the presumption. In such cases, the burden of proof lies on the person who insists that the missing person is still alive.
With this observation, the high court on Tuesday held a person, who had gone missing in 1970, presumed dead and paved way for his family members to sell a joint family property in Maninagar, which has remained unsold for decades because the person did not return for 38 long years after leaving home.
The case involves a bungalow ‘Dhruv Nivas’ in Maninagar area. In 1970, 22-year-old Arvind Dhruv left home and has not returned till date. The family members did not inquire into his whereabouts since he was a wanderer who used to get irritated upon being asked about his location.
As decades passed, the family planned to sell the property, a 352-sq m bungalow. It faced problems in transferring the property because Dhruv was a natural heir. In 1994, his father issued an advertisement stating that Dhruv had nothing to do with the family property since he was missing. This did not solve the issue.
After waiting for more than a decade, Dhruv’s family moved a civil court in 2012 for the declaration that he should be presumed dead and the family is allowed to sell the property. The civil court last year rejected their suit saying that Dhruv could not be presumed dead because the family had not registered an FIR and there was no police investigation.
When the order was challenged in the HC, Justice J B Pardiwala observed that the Indian Evidence Act does not provide any procedure to declare a person presumed dead, except the condition of his continuous absence for seven years be satisfied. The court said, “Where a person is continually absent from home for a period of seven years unheard of by persons known other than his own family members, who would have naturally received intelligence from him, he is presumed to be dead. The burden of proving that he is alive thereafter is shifted to the person, who affirms that he is not dead. It is a rebuttable presumption.”
In Dhruv’s case, the judge said that if Dhruv was alive after 1970, there was no reason for him not to contact his immediate family. “The fact that he has not contacted his family members at all since 1970 makes me, as a man of ordinary prudence, believe that Arvindbhai must have died in 1970 or soon thereafter,” the court said.

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