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TMI Blog1998 (6) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ure any information as to his whereabouts. According to the petitioner, he could not be traced in spite of persistent search enquiry until the date of filing of the writ petition. There was no information regarding Gajapathi Raju and he was not seen by any person who in the normal course would have seen him or heard about him, if he were alive or received any information about him. The petitioner has stated that she was not able to understand what happened to her husband and according to her, she was expecting that he might return, if he was alive. The Assistant Controller of Estate Duty, Chennai, on March 25, 1982, issued a notice under section 55 of the Act stating that P. V. Gajapathi Raju died on or about August 2, 1975, and directed the petitioner to file the accounts within 30 days from the date of the service of the notice. Along with the notice, a letter was also enclosed stating that the whereabouts of Gajapathi Raju were not known for the past seven years and he is presumed to have had a watery grave. The respondent desired to know whether the petitioner had moved the High Court in the matter and whether Gajapathi Raju was pronounced to be dead in any court of law. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty Act was inapplicable in the case of a person who died thereafter and since this court pronounced that P. V. Gajapathi Raju was presumed to have died on January 30, 1987, the provisions of the Estate Duty Act are not applicable to the death of P. V. Gajapathi Raju. According to the petitioner, the provisions of section 108 of the Evidence Act are applicable only on the date of the order passed by this court in the Application No. 378 of 1987, and the liability for estate duty would arise only in the event of the death of the person whose property had passed or was deemed to have passed on his death and since P. V. Gajapathi Raju was presumed to have been dead only on the date of the order, viz., January 30, 1987, the provisions of the Estate Duty Act are not applicable. According to the petitioner, the provisions of section 5 of the Act are not applicable. Since the factum of death was proved only on January 30, 1987, the presumption is that section 108 of the Evidence Act would apply only on the date of the order of the court. The petitioner also states that there is no presumption as to the date of death under section 108 of the Evidence Act and the consequential proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it is not established that the death had occurred after the Estate Duty Act was amended. Both learned senior counsel for the parties relied upon several decisions in support of their respective submissions. I am not able to accept the submissions of learned senior counsel for the petitioner. Section 5 of the Estate Duty Act is the charging section and the charge is attracted when a person dies after the commencement of this Act and the property has passed on his death. Section 5 of the Act provides for levy and payment of estate duty on the property passing on the death of a person. The expression "death" is not defined under the Act, but, in my opinion, it is not limited to a natural death. In my opinion, the provisions of section 5 of the Act are attracted in the case of civil death where the provisions of section 108 of the Evidence Act operate. In my opinion, when the presumption of civil death operates, there is no question of any artificial death of a person. The presumption is that the person has died naturally, and, therefore, the death contemplated is also a natural death, though the presumption may operate after a particular point of time prescribed in the Evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on who was not heard of for seven years was dead at the end of seven years is not correct. The court held that the period is one and continuous though it may be divisible into three or even four periods of seven years. The test laid down by the Privy Council is as under : "Now upon this question there is, their Lordships are satisfied, no difference between the law of India as declared in the Evidence Act and the Law of England (Rango Balaji v. Mudiyeppa [1899] 23 ILR Bom 296) and searching for an explanation of this very persistent heresay, their Lordships find it in the words in which the rule both in India and in England is usually expressed. These words taken originally from Phene's Trusts, In re [1870] LR 5 Ch. 139; 39 LJ Ch. 316 run as follows : 'If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.' Following these words, it is constantly assumed--- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablishment of such a fact. In Gnanamuthu v. Anthoni, AIR 1960 Mad 430, this court also held that the presumption as to the fact of death can be raised under section 108 of the Evidence Act. The presumption as to the fact of death and the time of death will arise when the question is raised. In Narayana Pillai v. Velayuthan Pillai, AIR 1963 Mad 385, this court held that the presumption under section 108 of the Evidence Act would extend to the fact of death and not to the date of death, and this presumption can be raised when a question is raised before the court and if such a question is raised before the court and more than seven years have passed from the time when a man was last heard of, the presumption would be that he died before the date when the question was raised. A learned judge of this court in Husseiny J. Bhagat v. LIC of India, AIR 1965 Mad 440, has held that the burden under section 108 of the Evidence Act shifts to the party who affirms that the person is "alive" and it cannot be disputed that it relates to the point of time at which the question itself emerges in the legal proceedings and it cannot be presumed that he was dead even on the date of the disappear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er : "In Narbada v. Ram Dayal, AIR 1968 Raj 48, a learned single judge of that court has held while dealing with section 108 of the Evidence Act that the provision relates to question of burden of proof cannot be missed and at the earliest be drawn when the dispute is raised and brought before the court and cannot be given a further retrospective effect. The question as to when a particular person died was held to be always a subject-matter of proof like any other fact. In Prem Ananthi v. Tahsildar, Coimbatore, AIR 1989 Mad 248 ; [1989] 1 LW 306, a learned single judge of this court held that a presumption of death under section 108 of the Evidence Act could be made only if it is proved at the time when the presumption is sought to be raised before a court and no person can make use of the said presumption to get an entry made in the register of deaths and births by the Registrar concerned that such person was dead and the certificate issued by the revenue officials of such civil death was interfered with by this court. In Tadepalli Ram Rathnam v. Kantheti Varadarajulu, AIR 1970 AP 246, a learned single judge of the Andhra Pradesh High Court held that the presumption about contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to keep in mind the well settled principles of justice and fair play and the discretion exercised keeping in view the ends of justice since justice is the hall mark and it cannot be administered in vacuum. In Sodhi Transport Co. v. State of U. P., AIR 1986 SC 1099 ; [1986] 2 SCC 486 ; 99 LW 30 (SN) (SC), the apex court while dealing with the claim of presumption under sections 111 and 114 of the Evidence Act observed that presumption is not itself an evidence. It only makes a prima facie case for the party in whose favour it exists and it is a rule concerning evidence which also indicates the person on whom the burden of proof lies. It was also observed therein that when a presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts and it is only when it is a rebuttable presumption, the provision further pointed out the party on whom lies the duty of going forward with the evidence on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption are said to be deduced from enlightened human knowledge an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact is not cast under section 108 of the Evidence Act, but is cast under the general principles of burden of proof. The learned judge also held that there is no presumption that the death took place at the close of the seven years or earliest at the time of the institution of the suit. The learned judge of the Andhra Pradesh High Court held that the plaintiff should adduce evidence that a particular person died after the Hindu Succession Act came into force. When such an evidence is let in, then, the burden would shift to the other party. The Orissa High Court has also taken the same view in Parikhit Muduli v. Champa Dei, AIR 1967 Orissa 70 and held that the presumption under section 108 of the Evidence Act will be available at a point of time when a party approaches the court for necessary relief. The Himachal Pradesh High Court in Mathru v. Rami, AIR 1986 HP 6 has taken the same view holding that the burden of proving the date of death is always upon the person who asserts that the person died at a particular date because there is no presumption about the date of death and the presumption as to the fact of death arises when a question is raised and such a presumption can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed October 19, 1983, clearly show that the Assistant Controller of Estate Duty has drawn the presumption as to the factum of death on the expiry of seven years when he initiated the proceedings for the purpose of estate duty assessment, and he has relied upon the presumption as to the fact of death on the expiry of seven years. The proceedings for the estate duty are quasi-judicial proceedings and if the Assistant Controller of Estate Duty has drawn the presumption of factum of death, it is open to him to determine the date of death as the seven year period had expired and it is open to the petitioner to establish by evidence or to dispute the factum of death on the expiry of seven years. In the proceeding for estate duty, the death is a relevant and material factor on the basis of which alone the proceedings for the estate duty could be initiated and levy of estate duty can be enforced. Once the presumption has been drawn by the respondent on the expiry of seven years as to the factum of death, if the petitioner desires to rebut the same, it is open to the petitioner to disprove the same. In other words, once the presumption as to the factum of death was drawn by the Assistant Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner establishes the contrary fact that P. V. Gajapathy Raju was seen alive or heard after the date or even before the date, then, it can be said that the petitioner has discharged the onus cast upon the petitioner. I, therefore, hold that the respondent has drawn the presumption as to the factum of death and initiated proceedings before the Act ceases to apply to deaths occurring after a particular date and he is entitled to rely upon the materials and determine the date of death and it will be for the accountable person to disprove the same by cogent evidence, and if the accountable person fails to discharge the burden, then, the presumption as to the fact of death and his determination as to the date of death would operate and it will be open to the Assessing Officer to continue the assessment proceedings validly initiated by him. Therefore, it cannot be said that the respondent lacked jurisdiction when he initiated the proceedings for estate duty assessment and it is open to him to rely upon the presumption under section 108 of the Evidence Act as to the factum of death, and it is equally open to him to determine the date of death on the date when he initiated the estat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore passing the final order, it has to be mentioned that on the basis of the orders of this court in W. M. P. No. 6784 of 1988, this court permitted the respondent to proceed with the assessment proceedings and it is not clear whether he has passed any final order. However, even if the final order has been passed, I hold, it will have no effect. In the view I have taken, it is open to the respondent to draw a presumption as to the factum of death on the expiry of seven years and it is for him to determine the date of death. It is open to the petitioner to establish the fact that P. V. Gajapathy Raju was alive subsequently, if the petitioner desires to avail of the opportunity and it is open to the petitioner to avail of the same within thirty days from the date of this order. If the petitioner does not avail of the opportunity, it is open to the respondent to rely upon the presumption under section 108 of the Evidence Act that would operate against the petitioner as to the fact of death and determine the exact date of death on materials or draw suitable presumption as to the date of death as he has initiated and continue the estate duty assessment proceedings before the Act was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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