By Adv. R. S. Agrawal 

 

 

IN THE judgement of the Second Appeal between Chhaya and Govardhan Singh delivered by Justice Anil Verma on May 27, 2024, at the Indore Bench of the Madhya Pradesh High Court, it has been observed that the history of Indian Army is full of unique tales of courage, sacrifice and martyrdom. 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 behaviour towards him becomes somewhat rude. Instead of helping the family of missing soldier, the Indian Army expects them to get the date of his civil death declared through Civil Court, and they are denied the release of the pension and other retirement allowances of the missing soldier. It is a hardship for grieving family of a missing soldier. Although this is done under certain rules, but considering his pride and self-respect of the soldier, now these worn out Rules need to be abolished. The appellants have filed this Second Appeal against the impugned judgmental decree passed by the District Judge-5, Mandsaur on July 25, 2023 in appeal and thereby affirming the judgement and decree of Third Civil Judge, Class II in Regular Civil suit whereby this Suit was partly allowed on December 7, 2020. The appellants-plaintiffs are the parents of Surendra Singh Solanki, who had joined the Indian Army in the year 2002 as Soldier and in the year 2010 he was promoted to the post of Signal Man in Srinagar.

 

He underwent training from February 4, 2010 to February 21, 2010 at Military Technical Training Institute, Goa and was again called by the Center for further military training on July 25, 2010 in Goa. He went to Goa for training but never returned from there and on July 27, 2010, Military Training Center Goa informed the appellants that Surendra Singh has not reached the Training Center on July 25, 2010. Thereafter, the appellants lodged a missing person report at Police Station, Ponda, Goa.The appellants started receiving ordinary family pension with effect from July 25, 2010 and in the year 2020, they received a communication from department that due to non-availability of death certificate of Surendra Singh, Special Family Pension, GPR and other arrears could not be paid to them. Thereafter, appellants have filed the civil suit for declaration of date of civil death of Surendra Singh. The respondents/defendants – 3 and 4 filed their written statements before the trial court supporting the appellants’ claim except the factum of civil death of Surendra Singh since July 25, 2010.

 

On the basis of pleadings, the trial court framed issues and after hearing both the parties and recording evidence has decreed the suit filed by plaintiffs/appellants by declaring civil death of Surendra Singh since June 24, 2020, that is the date of institution of civil suit. Being aggrieved by the impugned judgement and decree, the appellants filed first appeal, but after re-appreciating the entire evidence, the first Appellate Court has affirmed the findings of fact, so recorded by the trial court and dismissed the appeal. Hence, the appellants came up with Second Appeal. As the three substantial questions of law formulated by the Court are inter-connected, therefore, those have been answered simultaneously. Though the provisions of Sections 107 and 108 of Evidence Act are very clear as to the rising of presumption, but the sections do not throw any light upon the date on which a person can be presumed to be dead. In other words, the doubt or dilemma that arises in cases of this nature is as to the date of death of death of the person, in respect of whom presumption is raised.

 

The moment, it is established that a person has not been heard of for seven years, the presumption of death arises. Although, the presumption under the Evidence Act is confined only to the factum of death, but is silent about the actual date of death or presumed death. If the test of preponderance of probability laid down by section 3 of the Evidence Act is applied, that is to say, a fact is said to be proved if the court considers its existence to be so probable that a prudent man ought, under the circumstances of the particular case, to act upon under certain supposition that it exists, then it would have to be held that Surendra Singh died on July 25, 2010 or soon thereafter. If he was alive after July 25, 2010, there was no reason for him not to contact his immediate family members. It is not the case that Surendra Singh left the house in distress or he was under some disability nor he was in a situation wherefrom he could not contact his parents or close family members which prevented him from returning home or contacting his family members coupled with the fact he has not contacted his family members at all since July 25, 2010 and has been declared to be dead by the declaratory decree of the competent court makes ‘me’ (the Judge) as man of ordinary prudence to believe that Surendra Singh must have died on July 25, 2010 or soon thereafter.

 

In this case, the Court of Inquiry has already accepted that since July 25, 2010, Army person Surendra Singh was missing and thereafter he became untraceable. Therefore, it is impossible to think that a person can be presumed to be dead from the date on which he went missing. Unless a period of seven years expires from the date of his missing, the very occasion for raising the presumption does not arise. The parents were in continuous correspondence with the Military Department / Union of India since 2010, then after receiving the letter they have filed civil suit before the trial court. Has been under consideration of the Government for some time as withholding of benefits due to the family has been causing a great deal of hardship. Hence, the date of filing of the present suit would be considered as date of death of Surendra Singh is contrary to above position of law. Therefore the finding given by the trial court is not based on any cogent material based upon only an inference drawn for which there was no basis for the In this case, aforesaid reasons. In this case, the finding of both the courts below are erroneous and unsustainable due to lack of proper appreciation of fact and law and hence the appeal deserves to be allowed. In the result, the second Appeal has been partly allowed and the impugned judgement and decree passed by the trial court is modified by declaring July 25, 2010 as the date of death of “missing” Surendra Singh. The appellants have been held entitled to all the benefits under the Circular of Government of India of March 3, 1989.