Case Title: Mansinh Amarsinh Devdhara v. State Of Gujarat
The Gujarat High Court allowed a suit after 38 years of the occurrence of the incident. The Court explained the reason for doing so is that it is a human tendency to wait for the returning of a missing family member for many years and therefore, in a suit for declaration for the death of such person, it cannot be said that the suit is barred by limitation.
The Court further observed that, “There cannot be any assumption or presumption that after certain period of time, the family members would automatically consider that the missing person has died on a particular date or within a particular point of time. Therefore, if father is waited for returning of his son before previous day of filing of the suit, it cannot be held that limitation period has started after seven years of date of missing of his son.”
The main contention of the plaintiff petitioner was that both the Courts below had committed serious error of law in dismissing the suit only on the ground of limitation.
The Court on reading the impugned judgment of the Courts below stated that it is clear that they have heavily relied upon Section 108 of the Evidence Act for their observations that the suit is barred by law of limitation. Thus, the Court found it necessary to intepret the relevant section.
Section 108 of the Evidence Act reads as:
“108. Burden of proving that person is alive who has not been heard of for seven years.—1[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.—1[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."
The Court, therefore, observed that “Section 108 of the Evidence Act clearly provides only for raising presumption. It is a limited presumption confined only to presume the factum of death of the person whose life or death is in issue. There is no presumption as to the facts and circumstances under which the persons may have died. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose, subject to a period of seven years absence, and being unheard of having elapsed before that time….”
"Recourse to the provision of Section 108 cannot be made for deciding starting of point of cause of action, as when any member of family is missing, for whatever reasons, the other members of the family will definitely waiting for return of such missing person. Such waiting period may be ever for decades. There cannot be any assumption or presumption that after certain period of time, the family members would automatically consider that the missing person has died on a particular date or within a particular point of time. Therefore, if father is waited for returning of his son before previous day of filing of the suit, it cannot be held that limitation period has started after seven years of date of missing of his son. The entire approach as adopted by both the Courts below in deciding the question of limitation is completely erroneous..”