Delhi District Court
Narinder Kaur vs The State on 3 June, 2025
IN THE COURT OF MS. NEHA PANDEY, JSCC/ASCJ/GJ-01
(WEST),
TIS HAZARI COURTS, DELHI.
CS SCJ no. 1275/2023
CNR no.DLWT03-002428-2023
Smt. Narinder Kaur
W/o Late Sh. Gurvinder Singh
R/o H.No. B-7, Janta Colony,
Shivaji Vihar, Tagore Garden,
West Delhi-110027 ......Plaintiff
Versus
1. The State
2. MCD, West Delhi
Rajouri Garden New Delhi-110027
(Near Shivaji College, Near West Gate Mall)
3. S.D.M. (West)
Rajouri Garden
Plot No. 3, Shivaji Place,
Near West Gate Mall,
Raja Garden, New Delhi-110027 ......Defendants
Date of Institution : 04.09.2023
Date of decision : 03.06.2025
Decision : DECREED
JUDGMENT
1. The plaintiff has filed the present suit against the
defendants for declaration seeking declaration of the civil death
of Shri Gurvinder Singh(husband of plaintiff) S/o Late Shri
Gurbachan Singh.
CS no.1275/2023 Narinder Kaur vs The State & Ors 1/14
PLAINT
2. In brief it is the case of the plaintiff who is the wife of Sh.
Gurvinder Singh and the marriage was solemnized on
22.04.2004. Copy of marriage card, Marriage photograph, ration
card and Aadhar Card of the plaintiff and Sh. Gurvinder Singh is
annexed with plaint. On 23.06.2003 at about 9:15 am, the
husband of the plaintiff left the house without informing anyone
and after that never returned back or found despite the best
efforts of the plaintiff to trace him out. The matter with regard to
his missing was also reported to the concerned P.P. Raghubir
Nagar, PS Rajouri Garden, Delhi vide D.D.no.8 dated
05.07.2003. Also in Punjabi poster in the locality of the missing
of Sh. Gurvinder Singh was also published. The police
investigated the matter and stated that Sh. Gurvinder Singh is still
not traced as per police record and more than 20 years passed
since his missing. The plaintiff is entitled for the issuance of
death certificate for the legal purposes and thus the present suit
has been filed with the prayers that :
A decree for declaration may please be passed to declare
that husband of the plaintiff namely Sh. Gurvinder Singh,
S/o Late Gurbachan Singh is dead, and directed the
defendant to issue Death Certificate of Sh.Gurvinder
Singh.
WRITTEN STATEMENT OF DEFENDANT NO.2/MCD
3. Written statement was filed on behalf of defendant no.2
whereby stated that the suit of the plaintiff is not maintainable as
the plaintiff is not entitled to any relief against the answeringCS no.1275/2023 Narinder Kaur vs The State & Ors 2/14
defendant and the suit is liable to be dismissed. The plaintiff has
not fulfilled the requirement of the provision of Section 478 of
DMC by not giving any advance notice to the defendant and on
basis of this ground the suit is liable to be dismissed.
4. In the instant case, defendant no.1 and 3 had neither
appeared nor filed the written statement.
ISSUES
5. On the pleadings of the parties, following issue was framed
for trial on 02.05.2024:-
i) Whether the plaintiff is entitled to decree of
declaration that husband of plaintiff namely Sh. Gurvinder
Singh is dead? OPP
ii) Whether the plaintiff is entitled to decree of
mandatory injunction directing defendant no. 2 to issue
death certificate of Sh. Gurvinder Singh? OPP
iii) Relief.
PLAINTIFF EVIDENCE
6. In plaintiff evidence, the plaintiff examined herself as
PW-1 who tendered her affidavit in evidence Ex.PW1/A. PW-1
relied on the following documents:-
1) Ex.PW1/1 is marriage card,
ii) Ex.PW1/2 is marriage photographs,
iii) Ex.PW1/3 is ration card,
iv) Ex.PW1/4 is Aadhar card of plaintiff,
v) Ex.PW1/5 is complaint to PS Raghubir Nagar DD
No.8 dated 05.07.2023,
vi) Ex.PW1/6 is poster of ghumsuda in punjabi with
hindi translated copy.
CS no.1275/2023 Narinder Kaur vs The State & Ors 3/14
Plaintiff PW-1 was cross examined by defendant
no.2/MCD and during her cross examination no question
was put to her to dispute her relationship with missing
person nor anything has been brought on record to show
she made false averments in plaint as alleged in W.S of
MCD.
7. Another witness ASI Heera was examined who has
brought the order of West, District, New Delhi vide order
ACP no.2384-2464/HAR/West dated 02.08.2023 at serial
no.17 Daily Dairy A & B PPR 129 upto to 31.12.2013 has
been destroyed. The said order is Ex.PW2/A. Witness was
not cross examined by the counsel for MCD despite
opportunity given.
8. No other witness was examined and PE was closed
on 17.04.2025. Matter was fixed for final arguments. I have
heard Ld. Counsel for the plaintiff and have carefully gone
through the record.
9. My issues wise findings are as follows:
Issue no.(i)Whether the plaintiff is entitled to decree of
declaration that husband of plaintiff namely Sh. Gurvinder Singh
is dead? OPP
Issue no.(ii) Whether the plaintiff is entitled to decree of
mandatory injunction directing defendant no. 2 to issue death
certificate of Sh. Gurvinder Singh? OPP
Both the issues are taken up together as the burden to
prove same is upon plaintiff. The onus to prove these issues was
upon the plaintiff. The jurisdiction of a civil court to grantCS no.1275/2023 Narinder Kaur vs The State & Ors 4/14
declaratory relief flows from section 34 of Specific Relief Act,
1963. Section 34 of Specific Relief Act, 1963 reads as under:
” 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.”
Strictly speaking, the relief as to
declaration of civil death does not fall withing the
purview of section 34 of Specific Relief Act, 1963,
since generally neither it relates to the legal character
or right as to property of the person seeking such
declaration nor can the civic authorities be said to be
interested to deny such character or right. Moreover,
such declaration is generally sought without seeking
any further relief. However, it is no more res integra
that section 34 of Specific Relief Act, 1963 is not
exhaustive of all kinds of declaratory reliefs and that a
declaratory suit can still be maintained which may not
fall within its purview. In Vemareddi Ramaraghava
Reddy v. Konduru Seshu Reddy, AIR 1967 SC 436, It
was observed by Hon’ble Supreme Court:
CS no.1275/2023 Narinder Kaur vs The State & Ors 5/14
“The legal position is also well-established that the
worshipper of a Hindu temple is entitled, in certain
circumstances, to bring a suit for declaration that the
alienation of the temple properties by the de jure
Shebait is invalid and not binding upon the temple.
if a Shebait has improperly alienated trust property a
suit can be brought by any person interested for a
declaration that such alienation is not binding upon
the deity but no decree for recovery of possession
can be made in such a suit unless the plaintiff in the
suit has the present right to the possession.
Worshippers of temples are in the position of cestuui
que trustent or beneficiaries in a spiritual sense (See
Vidhyapurna Thirthaswami v. Vidhyanidhi
Thirthanswami). Since the worshippers do. not
exercise the deity’s power of suing to protect its own
interests, they are not entitled to recover possession
of the property improperly alienated by the Shebait,
but they can be granted a declaratory decree that the
alienation is not binding on the deity (See
for example, Kalyana Venkataramana Ayyangar v.
Kasturiranga Ayyangar(4) and Chidambaranatha
Thambiran v. Nallasiva Mudaliar). It has also been
decided by the Judicial Committee in Abdur Rahim
v. Mahomed Barkat Ali that a suit for a declaration
that property belongs to a wakf can be maintained
by Mahomedans interested in the wakf without the
sanction of the Advocate-General, and a declaration
can be given in such a suit that the plaintiff is not
bound by the compromise decree relating to wakf
properties. In our opinion, s. 42 of the Specific
Relief Act is not exhaustive of the cases in which a
declaratory decree may be made and the courts have
power to grant such a decree independently of the
requirements of the section. It follows, therefore, in
the present case that the suit of the plaintiff for a
declaration that the compromise decree is not
binding on the deity is maintainable as falling
outside the purview of s. 42 of the Specific Relief
Act.”
It was further observed by Hon’ble
Supreme Court that declaratory reliefs falling outside
Specific Relief Act may fall under the general
provisions of Civil Procedure Code, like section 9 or
Order VII Rule 7 CPC. This was reiterated in General
Films Exchange Ltd. v. H.H. Maharaja Sir Brijnath
Singhji Deo, AIR 1975 SC 1810, wherein it was
CS no.1275/2023 Narinder Kaur vs The State & Ors 6/14
observed by Hon’ble Apex Court:
” In Sheoparsan Singh & Ors. case (supra), what
was really held by the Privy Council was that a
grant of probate under the Probate and
Administration Act (V of 1881), which operated
as a judgment in rem, could not be collaterally
assailed by a suit for a declaration brought by
reversioners seeking to question the will. Sir
Lawrence Jenkins who had, incidentally, decided
Deokali Koer’s case (supra) too said (at
p. 97)
It is not suggested that in this litigation
the testamentary jurisdiction is, or can be,
invoked, and yet there can be no doubt that this
suit is an attempt to evade or annul the
adjudication in the testamentary suit, and
nothing more.”
We think that the decision in this case also
does not assist the appellant much.
In Bai Shri Vaktuba’s case (supra), the
Bombay High Court held that a Talukdar
plaintiff could bring a suit for a declaration
and an injunction to restrain the defendant
from claiming that he was the plaintiff’s son.
Learned Counsel for the appellant, however,
relied upon the following passage from it (at
p. 650):
“It has long been established that the general
power vested in the Courts in India under the
Civil Procedure Code to entertain all suits of
a civil nature excepting suits of which
cognizance is barred by any enactment for
the time being in force, does not carry with it
the general power of making declarations
except in so far as such power is expressly
conferred by statute.”
Kishori Lal’s case (supra) was cited to
CS no.1275/2023 Narinder Kaur vs The State & Ors 7/14
show that declaratory decrees falling outside S ection
42 of the Specific Relief Act are not permissible
because Section 42 Specific Relief Act is exhaustive on
this subject. This view must be held to have been
rejected by this Court when it declared in Veruareddi
Rmaranghava Reddy & Ors. v. Konduru Seshu
Reddy & ors (1) (at p. 277)
In our opinion, S. 42 of the Specific Relief
Act is not exhaustive of the cases in which
a declaratory decree may be made and the
courts have power to grant such a decree
independently of the requirements of the
section It follows, therefore, in the present
case that the suit of the plaintiff for a
declaration that the compromise decree is
not binding on the deity is maintainable as
falling outside the purview of S.. 42 of the
Specific Relief Act“.
The result is that Section 42 merely gives statutory
recognition to a well-recognised type of declaratory relief
and subjects it to a limitation, but it cannot be deemed to
exhaust every kind of declaratory relief or to circumscribe
the jurisdiction of Courts to give declarations of right in
appropriate cases falling outside Section 42.”
Therefore, section 34 of Specific Relief Act cannot be not
held to be the sole repository of the cases in which declaratory
decrees may be made and the Courts have the power to grant
such a decree independently of the requirements of the section,
and such declarations can be granted even though no
consequential relief is capable of being granted.
10. Further, there are judicial precedents to hold that a suit for
declaration of civil death of a person unheard of for more than
CS no.1275/2023 Narinder Kaur vs The State & Ors 8/14
seven years is maintainable. In Swati & Others V.s Abhay &
Others, MANU/MH/0334/2016, Hon’ble Bombay High Court
has held such a suit to be maintainable. The relevant observation
are as under:
” 7. In the light of the dictum laid down by the Apex Court
as above, I am of the firm opinion that the Civil Court
acting under Section 9, has inherent powers in its plenary
jurisdiction de hors with reference to Section 34 of the
Specific Relief Act to grant relief qua Section 108 of the
Evidence Act. Therefore, the reason that Section 34 of the
Specific Relief Act was required to be called in aid does not
appear to be sound.”
In Alka Sharma v. Union of India & Others
MANU/UP/0209/2020, the plaintiff had filed a suit for
declaration of civil death of his mother. The Trial Court as well
as the first appellate Court had dismissed the suit. Hon’ble
Allahabad High Court, while passing decree in second appeal,
held as under :
“16 In the light of the aforesaid decision of the Hon’ble Supreme
Court, there is no hesitation in my mind to hold that the courts
below have failed to act judiciously and in accordance with the
provisions of law and have unnecessarily entered into those grey
areas which are not subject matter of any dispute and in regard to
which no dispute was raised depicting limited extent of their
judicial knowledge and capability to appreciate and deal with the
facts of the case. Since, Union of India was a party, it was
represented through out, and it was not the case of the Union that
any objection was filed by any of the relatives of Sri Govind
Prasad Sharma so to the claim put-forth by the applicant or to the
effect that she was not entitled to the residence allotted to SriCS no.1275/2023 Narinder Kaur vs The State & Ors 9/14
Govind Prasad Sharma in her official capacity, there was
sufficient plethora of evidence to the effect that the presumption
should have been drawn as to the civil death of Sri Govind
Prasad Sharma as twin requirements of law as laid down in
Sections 107 and 108 of the Evidence Act about declaration of a
civil death were fulfilled. There is no requirement of final report
from the police to draw a presumption under Sections
107 and 108 of the Evidence Act. As far as final report is
concerned, Section 173 of the Code of Criminal Procedure deals
with report of police officer on completion of investigation.
Section 173(2) does not prescribed any time limit for
completion of investigation and further Section 173(8) only
provides for further investigation in respect of an offence after a
report under sub-section (2) has been forwarded to the
Magistrate. Further, the law prescribes that in case the
Magistrate is inclined to accept the final report and decides to
drop the charges against the accused, then only notice to the
complainant is necessary. In case, cognizance is taken by the
Magistrate on a report submitted by the police under Section
173 (2) of Cr.P.C., then no notice is required to be served on the
complainant. In case of Pramod Behl vs. State of Jharkhand,
2004 Crl. L. J NOC 362 (Jhar), though it has been held that
where the police after investigation files final report, copy of
final report would be given to the informant and opportunity of
hearing shall also be given to him.
17. In the light of the above discussion, the courts below
committed serious error in law, which has resulted into
miscarriage of justice to the appellant and which is corrected
now.
18. In view of the aforesaid, the substantial question of law
framed in this appeal is answered in negative and it is held that
submission of the final report by the police is not mandatory
inasmuch as police investigation is in the domain of criminal law
and that is neither influenced by the plaintiff claiming such
declaration nor is within the authority and control of the plaintiffCS no.1275/2023 Narinder Kaur vs The State & Ors 10/14
seeking such declaration. Once the factum of lodging a report and
not hearing about that person for seven years or more is proved
and admitted by the defendant employer of the husband in regard
to whom declaration is being sought, is sufficient to hold that
requirement of Section 108 of the Evidence Act has been
fulfilled. It has been arbitrarily held by the learned Civil Judge
(Senior Division) that the plaintiff was oblige to seek any other
declaration in regard to claim of service benefits in addition to
the declaration of civil death.
In Vijaya Shrikant Revale v. Shirish Shrikant Revale
& Ors., 2016 SCC OnLine Bom 1898, It was held by that a civil
court has the power to grant declaratory relief of civil death. It
was observed by Hon’ble Bombay High Court as under :
“10. It is true that only Civil Court has power
to give suresh relief of declaration in such
matters. The inquiry under section 372 of the
Act is limited. However, the Court which
conducts the inquiry under Section 372 of the
Act is a civil Court and therefore the said Court
is competent to decide the issue of declaration of
death of Shrikant Vishnupant Revale.”
Lastly, Hon’ble Supreme Court in LIC of
India Vs. Anuradha, AIR 2004 SC 2070, held as under:
” On the basis of the above said authorities, we
unhesitatingly arrive at a conclusion which were 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 Sections 107 and
108 of 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 calculatedCS no.1275/2023 Narinder Kaur vs The State & Ors 11/14
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 107 ceases to operate. Section 107
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 on the sa.18.16
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 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 does not arise”.
11. The grant of decree of declaration of civil death of a
person is founded on the presumption envisaged in Section
108 of the Indian Evidence Act, 1972. The said provision
propounds that if a person 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 shifted upon the
CS no.1275/2023 Narinder Kaur vs The State & Ors 12/14
person who affirms it. The presumption raised under Section 108
is a limited presumption confined only to presuming the factum
of death of the person whose 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. In Narbada v. Ram
Dayal, AIR 1968 Raj. 48, it was held that under Section 108 of
the Indian Evidence Act, presumption about the death of a person
is to be drawn when the dispute is brought to the Court and death
can be presumed on the date on which the suit was filed and it
cannot be given a further retrospective effect.
12. There is nothing on record to discredit the testimony of
PW-1 and other summoned witnesses i.e PW-2. The plaintiff has
proved his documents and same not been disputed by MCD. In
natural course of events, it can be reasonably expected that a wife
of a person would hear from her husband. In these circumstances,
a presumption as to civil death of Shri Gurvinder Singh s/o Late
Shri Gurbachan Singh can be raised. Defendant no.2/MCD not
been able to rebut presumption.
13. Accordingly, plaintiff has been successful in proving the
above issues is her favour and she is held entitled to a declaration
that Shri Gurvinder Singh s/o Late Shri Gurbachan Singh be
declared as presumed dead. The declaration of civil death of Shri
Gurvinder Singh s/o Late Shri Gurbachan Singh shall be
effective from the date of filing of the suit in the light of
judgment of Narbada v. Ram Dayal (supra).
14. As far as the prayer for issuance of death certificate is
concerned, nothing has been brought on record by defendant
No.2/MCD that death certificate cannot be granted without
CS no.1275/2023 Narinder Kaur vs The State & Ors 13/14
specific date of death being mentioned in such cases where a
declaration of civil death has been sought from the court. Thus,
said issue No.(ii) is also decided in favour of the plaintiff and
against the defendants.
Relief
15. In view of my aforesaid findings, the suit of the plaintiffs
is decreed and Shri Gurvinder Singh s/o Late Shri Gurbachan
Singh is declared as dead from the date of filing of the present
suit i.e 04.09.2023. Defendant no.2/MCD shall issue death
certificate in respect of Shri Gurvinder Singh s/o Late Shri
Gurbachan Singh and his date of death shall be taken to be the
date of filing of the present suit i.e. 04.09.2023.
16. Decree sheet be prepared accordingly.
17. File be consigned to Record Room.
Announced in the open court (Neha Pandey)
on 3rd June, 2025 JSCC/ASCJ/Guardian Judge-01
West, Tis Hazari, Delhi
Digitally
signed by
NEHA
NEHA PANDEY
PANDEY Date:
2025.06.03
16:00:24
+0530CS no.1275/2023 Narinder Kaur vs The State & Ors 14/14