# Gokul Pandey & Ors v. Gram Pradhan & Anr

- **Citation:** (2022) 5 ILRA 1454
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-04
- **Case number:** Second Appeal No. 957 of 2017
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gokul-pandey-ors-v-gram-pradhan-anr-48430
- **Pages:** 6

## Headnote

Civil Law - Specific Relief Act,1963 -
Section 34 - Declaratory Suit against
defendants/respondent-for declaring them as
legal heir of deceased-and for declaring
Markandey Pandey as dead-not heard and
seen for last ten years-Appellate Court
recorded-though suit u/s 34 maintainable-
no notice u/s 80 (2) CPC given to defendants
being
St.
-appeal
rejected-error
in
dismissing.

Second Appeal allowed. (E-9)

List of Cases cited:

## Text

1454 INDIAN LAW REPORTS ALLAHABAD SERIES
daughter namely Smt. Annapurna Devi.
Ram Shankar Shukla was from the other
wife. Being wife, Smt. Ram Shri Kunwar
was entitled for residence and maintenance
from her husband Pt. Jagan Mohan Shukla.
Through
family
settlement
several
properties were devised in favour of her
and her step son Ram Shankar Shukla by
Pt. Jagan Mohan Shukla to avoid future
disputes. She was also conferred right of
full ownership in respect of other properties
but the houses in dispute except the right to
transfer with the consent of Ram Shankar
Shukla. Possession was also handed over to
her. In the year 1956, the Hindu Succession
Act came into force with Section 14
conferring the rights of full ownership on
Hindu women. At that time, she was
occupying the property. She died on
16.04.1977. It is crystal clear that through
family settlement the pre-existing right of
residence & maintenance of Smt. Ram Shri
Kunwar was recognized. No any new right
was conferred on her. So she became full
owner of the property in question by virtue
of sub-section (1) of Section 14 of the
Hindu Succession Act and sub-section (2)
of Section 14 of the Act, cannot be applied.

22.

Consequently
the
defendant/respondent
Smt.
Annapurna
Devi, daughter of Smt. Ram Shri Kunwar,
who became the full owner of the property
in question, is also entitled to inherit the
property.

23. This Court is of the considered
opinion that there appears no illegality or
impropriety in the judgment and decree
dated 12.09.1997 passed by learned First
Additional District Judge, Pilibhit by which
learned court had allowed the appeal and
set aside the judgment and decree dated
28.11.1981 passed by Civil Judge, Pilibhit
in O.S. No.49/2007.

24. Accordingly, this second appeal
lacks merit and is, hereby, dismissed and
the judgment and decree passed by first
appellate court is confirmed.

25. No order as to costs.
----------

(2022)05ILR A1454
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.05.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Second Appeal No. 957 of 2017

Gokul Pandey & Ors. ...Appellants
Versus
Gram Pradhan & Anr. ...Respondents

Counsel for the Appellants:
Sri Sheo Shankar Tripathi, Sri Adya Prasad
Tewari

Counsel for the Respondents:
Sri Girish Vishwakarma, Sri Tariq Maqbool
Khan, Sri P.K. Giri (Addl. C.S.C.)

Civil Law - Specific Relief Act,1963 -
Section 34 - Declaratory Suit against
defendants/respondent-for declaring them as
legal heir of deceased-and for declaring
Markandey Pandey as dead-not heard and
seen for last ten years-Appellate Court
recorded-though suit u/s 34 maintainable-
no notice u/s 80 (2) CPC given to defendants
being
St.
-appeal
rejected-error
in
dismissing.

Second Appeal allowed. (E-9)

List of Cases cited:

1. LIC of India Vs Anuradha, 2004 (10) SCC 131

2. Sanju Devi & ors. Vs St. & ors. 2014 SCC
Online Delhi 65
5 All. Gokul Pandey & Ors. Vs. Gram Pradhan & Anr.
1455
3. Smt. Alka Sharma & ors. Vs U.O.I. & ors.,
Second Appeal No.192 of 2007
(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri A.P. Tewari, learned
counsel for the appellant and Sri P.K. Giri,
learned Additional Chief Standing Counsel
for the respondents.

2. This is plaintiffs' appeal under
Section 100 of Code of Civil Procedure (in
short "CPC") against the judgment and
decree
dated
04.08.2017
passed
by
Additional
District
and
Sessions
Judge/Special Judge (Gangster Act), Court
No.8, Deoria in Civil Appeal No.45 of
2016 arising out of judgment and decree
dated 22.11.2016 passed by Additional
Civil Judge (Junior Division), Court No.24,
Deoria in Original Suit No.983 of 2007.

3. The facts, in brief, are that the
plaintiffs-appellants filed a declarator suit
against the defendants-respondents for
declaring them as the legal heirs of
deceased Markandey Pandey and also for
declaring Markandey Pandey as dead.

4. The plaint version is that, on
12.10.1996, Markandey Pandey left the
home to visit Vaishno Devi Temple, but
when no whereabouts were heard by the
family members, a report of missing person
was given to the concerned police station.
Further, as the whereabouts of Markandey
Pandey was not heard for 7 years and the
defendants were not passing orders for
entry in the revenue records of the
plaintiffs-appellants, Original Suit No.983
of 2008 was filed.

5. The aforesaid suit was contested by
the defendant no.2, who filed his written
statement and denied the allegations. It was
further stated that no first information
report has been lodged nor any publication
in newspaper has been made regarding
missing of Markandey Pandey. The trial
Court framed the following issues:-

"01- क्या वादीगण वाद पत्र में
उन्धल्लन्धखत
कारणोूं
के
आधार
पर
उदघोषणात्मक ब्यादेर् का अनुतोष पाने का
अभधकारी है ?

02- क्या वाद अवम ल्ाूंभकत है ?

03- क्या अदा न्याय र्ुल्क अपयाशप्
है ?

04- क्या न्यायालय को मामले की
सुनवाई के क्षेत्राभधकार नहीूं है ?

05- क्या वाद आदेर् 7 भनयम-11
भस० प्र ० सूं ० से बाभधत है ?

06- अन्य कोई अनुतोष ? "

6. The trial Court, while deciding
issue no.1, held that no first information
report has been brought on record and only
through Paper No.23-Ga, an application
given to the police station was filed. The
Court held that it had no jurisdiction to
declare the plaintiffs as the successors of
Markandey Pandey and thus, dismissed the
suit.

7. Against the said judgment, a Civil
Appeal No.45 of 2016 was preferred and
the lower appellate Court dismissed the
appeal on the ground that notice under
Section 80 (2) CPC was not given before
the filing of the suit and there was technical
error in the filing of the suit and thus,
1456 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal was dismissed on 04.08.2017, hence
the present appeal.

8. I have heard learned counsel for the
parties and perused the material on record.

9. The plaintiffs-appellants filed suit
for declaring them to be the legal heirs of
Markandey Pandey who was missing since
12.10.1996
and
further
sought
that
Markandey Pandey be declared dead.

10. Section 34 of the Specific Relief
Act provides for the declaratory decrees for
which any person is entitled to. Section 34
of Specific Relief Act, 1963 is extracted
hereasunder:-

" 34. Discretion of court as to
declaration of status or right.--Any person
entitled to any legal character, or to any
right as to any property, may institute a suit
against any person denying, or interested
to deny, his title to such character or right,
and the court may in its discretion make
therein a declaration that he is so entitled,
and the plaintiff need not in such suit ask
for any further relief: Provided that no
court shall make any such declaration
where the plaintiff, being able to seek
further relief than a mere declaration of
title, omits to do so.

Explanation.--A
trustee
of
property is a "person interested to deny" a
title adverse to the title of some one who is
not in existence, and whom, if in existence,
he would be a trustee."

11. From the bare perusal of the
above provision, it is clear that a suit for
declaration could be filed by any person for
the following objects (a) for his or her legal
character, (b) for any right as to any
property. Thus, it is clear that a suit for
declaration may be instituted for declaring
status
or
legal
character
which
a
person/party may be entitled to. However,
in a suit for declaration of a civil death of
another person, plaintiff is not entitled to
such legal character under Section 34 of the
Act. It is because that a suit has been
brought for legal character for another
person and not of the plaintiff.

12. Section 34 clearly provides that
any legal character may be declared for
which a plaintiff is entitled. Besides this, he
should not be stranger to a dead person, but
he must be interested in such legal
character, may be as his legal heirs. The
suit filed at the instance of plaintiff can be
contested by anyone, denying or interested
to deny his title to such character or right.
Section 34 of the Act further bars any such
declaration where the plaintiff is able to
seek further relief. Legal character is a
position recognised by law. A person's
legal character is the attribute which law
attaches to him. After death of a person his
heirs, having interest
in such legal
character, have title to seek declaration of
such legal character as to the death of the
person. The suit at the instance of any such
person for a declaration is maintainable, if
he can stand the test that he is entitled to
any legal character, even though, he cannot
lay to immediate claim to any property.

13. In most of the case, the defendants
almost accept the fact of missing of a
person for whom declaration of civil death
is sought, therefore, absence of denial from
the side of defendants bars the relief
sought. A mere suit of declaration of death
of a person is not maintainable. Section 107
and 108 of the Evidence Act are regarding
missing of person. Relevant Sections 107
5 All. Gokul Pandey & Ors. Vs. Gram Pradhan & Anr.
1457
and 108 of Evidence Act are extracted
hereasunder:-

"107. Burden of proving death
of person known to have been alive
within thirty years.- When the question is
whether a man is alive or dead, and it is
shown that he was alive within thirty years,
the burden of proving that he is dead is on
the person who affirms it.

108. Burden of proving that
person is alive who has not been heard of
for seven years.- [Provided that when] the
question is whether a man is alive or dead,
and it is proved that he 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 2[shifted to] the person who affirms it."

14. Evidence Act is procedural law
and doesn't create any substantial right or
obligation. It only facilitates the Court in
trial and the above provision comes under
the Chapter (burden of proof). From the
reading of above provision, it is clear that
they come into play only when question
arises, whether a man is alive or dead.
Section
108
only
provides
for
the
circumstances on which onus of proof
shifts upon the person who claims that a
person is alive for whom no one had heard
for seven years. Moreover, it is established
principle of law that presumption under
Section 108 would be raised in any
proceeding.

15. Thus, in a suit filed for declaration
by plaintiff claiming himself to be the legal
heir of a person missing, the Court can take
presumption of death of a missing person
under Section 108 of the Evidence Act. The
Apex Court in LIC of India Vs.
Anuradha, 2004 (10) SCC 131, while
dealing with the scope of Sections 107 and
108 of the Evidence Act held that
presumption as to death by reference to
Section 108 would arise only on lapse of
seven years. Relevant para 14 is extracted
hereasunder:-

"On the basis of the abovesaid
authorities, we unhesitatingly arrive at a
conclusion which we sum up in the
following words. The law as to presumption
of death remains the same whether in
Common Law of England or in the
statutory provisions contained in Section
107 and 108 the Indian Evidence Act, 1872.
In the scheme of Evidence Act, though
Sections 107 and 108 are drafted as two
Sections, in effect, Section 108 is an
exception to the rule enacted in Section
107. The human life shown to be in
existence, at a given point of time which
according to Section 107 ought to be a
point within 30 years calculated backwards
from the date when the question arises, is
presumed to continue to be living. The rule
is subject to a proviso or exception as
contained in Section 108. If the persons,
who would have naturally and in the
ordinary course of human affairs heard of
the person in question, have not so heard of
him for seven years the presumption raised
under Section 108 ceases to operate.
Section 108 has the effect of shifting the
burden of proving that the person is dead
on him who affirms the fact. Section 108,
subject to its applicability being attracted,
has the effect of shifting the burden of proof
back on the one who asserts the fact of that
person being alive. The presumption raised
under Section 108 is a limited presumption
confined only to presuming the factum of
death of the person who's life or death is in
issue. Though it will be presumed that the
person is dead but there is no presumption
as to the date or time of death. There is no
1458 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption
as
to
the
facts
and
circumstances under which the person may
have died. The presumption as to death by
reference to Section 108 would arise only
on lapse of seven years and would not by
applying any logic or reasoning be
permitted to be raised on expiry of 6 years
and 364 days or at any time short of it. An
occasion for raising the presumption would
arise only when the question is raised in a
Court, Tribunal or before an authority who
is called upon to decide as to whether a
person is alive or dead. So long as the
dispute is not raised before any forum and
in any legal proceedings the occasion for
raising the presumption does not arise."

16. In Sanju Devi and others Vs.
State and others 2014 SCC Online Delhi
65, the Court held that proceedings under
the Indian Succession Act, 1925 are
summary proceedings and the petitioner
has to file a civil suit to establish the
factum of death and then claim the decree
accordingly from the civil Court.

17. In Smt. Alka Sharma and others
Vs. Union of India and others, Second
Appeal No.192 of 2007, decided on
17.01.2020, this Court while deciding
question of law framed in the appeal as
"whether in view of Section 108 of
Evidence Act, 1872 for proving a civil
death of a person who is reported to be
missing and is not traceable for over seven
years, submission of final report by police
is mandatory?" This Court held that
submission of final report by police is not
mandatory inasmuch as police investigation
is in the domain of criminal law and that is
neither influenced by plaintiff claiming
declaration nor is within the authority and
control seeking such declaration. Once, the
factum of lodging of report and not hearing
about that person for seven years or more is
proved and admitted by the defendants in
regard to whom declaration is being sought
is sufficient then requirement of Section
108 of the Evidence Act has been fulfilled.

18. In the case in hand, the relief
sought in the suit was for declaring the
plaintiffs as the legal heirs of deceased
Markandey Pandey against the defendants
and also for declaring Markandey Pandey
as dead. The contesting State in its written
statement has denied the averment of the
plaint, while the trial Court while deciding
the issue no.1 had recorded finding that
DW-1, Vishwakarma Sharma, the Lekhpal
in his examination-in-chief had stated that
Markandey Pandey is not heard for last ten
years and he has not seen him for the said
time.

19. Moreover, Paper No.23-Ga was
filed before the trial Court to prove the fact
that missing report of Markandey Pandey
was given to the police. The trial Court had
wrongly held that it did not have the
jurisdiction to grant such declaration.

20. The lower appellate Court while
recording the finding that the suit for
declaration under Section 34 of the Specific
Relief Act, though, being maintainable, the
relief could not be granted as no notice
under Section 80 (2) CPC was given to the
defendants being the State and, on the basis
of technical error dismissed the appeal.

21. From the perusal of the judgment
of the trial Court as well as the appellate
Court, it is clear that Paper No.9-C and 10C were brought on record which were the
notice given by the plaintiffs under Section
80 CPC and Section 106 of Panchayati Raj
Act, 1947, the finding recorded is totally
against the material on record. Thus, I find
that both the trial Court and the lower
5 All. Master Prakhar @ Palash & Anr. Vs. State of U.P. & Ors.
1459
appellate
Court
committed
error
in
dismissing the suit and the appeal, thus,
finding recorded by both the Courts below
are against the material on record as well as
the provisions of law and are, thus, set
aside.

22. Thus, considering the facts and
circumstance of the case, I find that the suit
filed by the plaintiffs as to the legal
character that they may declared as the
legal heirs of Markandey Pandey being the
sons and wife of the deceased and
Markandey Pandey be declared dead, was
very well maintainable before the trial
Court. Both the Courts below fell into trap
of holding that the suit as well as the appeal
was not maintainable.

23. The judgment and decree passed
by the lower appellate Court dated
04.08.2017 and judgment and decree dated
22.11.2016 passed by the trial Court is,
hereby, set aside. The suit filed by the
plaintiffs-appellants
seeking
relief
of
declaration as the legal heir of deceased
Markandey Pandey stands decreed.

24. In view of the above, as the the
judgment and decree of both the Court
below having been set aside, the second
appeal stands allowed.
----------
(2022)05ILR A1459
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2022

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Habeas Corpus Writ Petition No. 58386 of 2017

Master Prakhar @ Palash & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Amit Daga, Sri Mayank

Counsel for the Respondents:
G.A., Sri Rahul Sahai

Habeas Corpus-Corpus-minor son-does not
want to meet his father-resides with maternal
grandparents- father seek visitation rights-if
custody given to one parent-other parent must
have visitation rights-father cannot be deprived
of his visitation rights.

Petition disposed off. (E-9)

List of Cases cited:

1. Yashita Sahu Vs St. of Raj. & ors. in Criminal
Appeal No. 127 of 2020 (Special Leave Petition
(CRL) No. 7390 of 2019)
(Delivered by Hon'ble Anil Kumar Ojha,
J.)

1. Heard learned counsel for the
petitioners,
learned
counsel
for
the
respondent no. 5 & 6, learned A.G.A. for
the State and perused the record.

2. In compliance of order dated
12.04.2022, the respondent no. 5 & 6
produced the corpus Prakhar Singhania @
Palash before this Court.

3. On interaction and some queries,
the corpus replied that he does not want to
live with his father. He said that his name is
Prakhar Singhania and he is studying in
D.A.V. Public School, Ghaziabad. He
further stated that he does not want to meet
his father.

4. Submission of learned counsel for
the petitioner is that corpus is the son of
petitioner no. 2. The corpus Master Prakhar
Singhaniya is currently residing with his