Shajeev George v. Chief Registrar of Births and Deaths, Office of the Director of Panchayats; Registrar of Births and Deaths, Chengannur Municipality; Chengannur Municipality (WA No. 1727 of 2021)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 ``` ``` WA NO. 1727 OF 2021 ``` ``` AGAINST THE JUDGMENT IN WP(C) 4159/2021 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER IN WPC:`** ``` SHAJEEV GEORGE AGED 41 YEARS, S/O. P.I.GEORGE, RESIDING AT PARATHOLIL HOUSE, CHENGANNUR P.O.,ALAPPUZHA DISTRICT-689 121. ``` ``` BY ADV V.PHILIP MATHEWS ``` ## **`RESPONDENTS/RESPONDENTS IN WPC:`** - `1 THE CHIEF REGISTRAR OF BIRTHS AND DEATHS, OFFICE OF THE DIRECTOR OF PANCHAYAT, PUBLIC OFFICE, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033.` - `2 THE REGISTRAR OF BIRTHS AND DEATHS, CHENGANNUR MUNICIPALITY, ALAPPUZHA DISTRICT-689 121.` - `3 CHENGANNUR MUNICIPALITY, CHENGANNUR MUNICIPALITY, ALAPPUZHA DISTRICT-689 121, REPRESENTED BY ITS SECRETARY.` ``` SRI. V.TEK CHAND SR GP FOR R1 AND R2 SRI.S.HARIKRISHNAN, SC FOR R3 ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.No.1727 of 2021** **2** ## **“C.R.”** ## **JUDGMENT** Dated this the 2[nd] day of February, 2022 ## **S.Manikumar, C.J.** The appeal is filed by the petitioner in W.P.(C)No.4159 of 2021, challenging the judgment of the writ court dated 02.11.2021 whereby the following reliefs sought for by the petitioner were declined and the writ petition was dismissed. - “i) Issue a writ of mandamus or other appropriate writ, order or direction commanding second respondent to issue death certificate to the petitioner in respect of death of petitioner’s father, Late P.I.George. - ii) Issue appropriate writ or order declaring that the stand taken by the second respondent to produce an order of civil court declaring the civil death of petitioner's father for granting death certificate is illegal and unjust, considering the findings and observations in Exhibit P2.” 2. Brief material facts for the disposal of the appeal are as follows: Appellant has sought for a direction to the Registrar of Births and Deaths – the 2[nd] respondent herein, to issue a death **3** ## **W.A.No.1727 of 2021** certificate of appellant’s father Mr.P.I.George, who is missing since 10.03.2007 onwards. According to the appellant, there is no information about his father from 10.09.2007 and his whereabouts are not known and therefore, there is a presumption of civil death as per section 108 of the Indian Evidence Act, 1872. It was taking into account the said aspect that the appellant has submitted an application before the Registrar of Births and Deaths seeking to issue the death certificate of the appellant’s father. The grievance highlighted by the appellant is that the 2[nd] respondent did not consider the application by taking a stand that the application can be considered only if the appellant produces an order from the court declaring the civil death of the appellant’s father. Thus aggrieved by the inaction on the part of the 2[nd] respondent, the writ petition has been preferred. 3. After a detailed and elaborate consideration of sections 107 and 108 of the Indian Evidence Act, 1872 and bearing in mind the principles of law laid down by this court in **Devaki Amma Kamalamma and Another v. Grace Appa** **4** ## **W.A.No.1727 of 2021** **Amma and Others** (2017 (3) KHC 12), the judgment in **Bhargavi Amma v. Bhaskara Pillai** (1988 KHC 496), the judgment of the Hon’ble Apex Court in **LIC of India v. Anuradha** (2004 (2) KLT 351 (SC)) and the judgment of this court in **Joseph Peter and Others v. Elizabeth Manuel and Others** (2019 (3) KLT SN 17), the learned single Judge has arrived at the conclusion that the appellant is not entitled to get any orders directing the Registrar of Births and Deaths to consider the application submitted by the appellant to issue the death certificate. It is thus challenging the legality and correctness of the judgment of the learned single Judge, the appeal is preferred. 4. The basic contention advanced by the appellant is that the learned single Judge did not consider the contention of the appellant that the circular issued by the Directorate of Panchayats dated 10.05.2017 issuing guidelines and revised instruction on births and deaths registration is against the provisions of the Registration of Births and Deaths Act, 1969 and the Indian Evidence Act, 1872. **W.A.No.1727 of 2021** **5** 5. It is also pointed out that on the basis of the counter affidavit filed by the 2[nd] respondent and the circular produced, the appellant filed an application for amendment of the writ petition, intended to raise a ground challenging the circular issued by the Directorate of Panchayats, directing the registrars of births and deaths as to the manner in which a death certificate is to be issued in the light of Sections 107 and 108 of the Indian Evidence Act 1872. 6. That apart, it is contended that the learned single Judge was not justified in ignoring Exhibit P2 judgment passed by the Munsiff’s Court, Chengannur in O.S.No.298 of 2014 dated 28.05.2015 in a partition suit filed by the appellant as well as his mother wherein the appellant, the mother and the appellant’s sister were set apart with one-third share each. 7. Relying upon the said judgment, contention of the appellant is that the civil court has taken into account the fact that the whereabouts of Mr.P.I.George is not known for 7½ years and it was accordingly that the shares were set apart to **6** ## **W.A.No.1727 of 2021** the appellant as well as the other two legal heirs of Mr.P.I.George. 8. Sum and substance of the contention advanced by the appellant is that since it is specifically found by the civil court in a properly constituted proceedings that the whereabouts of Mr.P.I.George is not known, the Registrar of Births and Deaths was duty bound to issue a certificate declaring the death of Mr.P.I.George. 9. It is further submitted that Section 2(1)(b) of the Registration of Births and Deaths Act, 1969 defines “death” to mean the permanent disappearance of all evidence of life at any time after live–birth has taken place. That apart, it is also contended that the action of the 2[nd] respondent is violative of Articles 21 and 300A of the Constitution of India, since the appellant and other legal heirs are put to innumerable difficulties in the matter of enjoyment of the property. 10. We have heard Mr.V.Philip Mathews, learned counsel for the appellant, Mr.V.Tekchand, learned Senior Government Pleader for respondents 1 and 2 and Mr.S.Harikrishnan, **7** ## **W.A.No.1727 of 2021** learned standing counsel for the 3[rd] respondent and perused the pleadings and the materials on record. 11. The question emerging for consideration is revolving around sections 107 and 108 of the Indian Evidence Act, 1872. Section 107 of the Indian Evidence Act deals with burden of proving death of person known to have been alive within thirty years, which specifies that 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. 12. Section 108 deals with burden of proving that person is alive who has not been heard of for seven years which stipulates 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 shifted to the person who affirms it. 13. On a clear analysis of the aforesaid provision, it can be seen that the death of a person in the circumstances **W.A.No.1727 of 2021** **8** mentioned in the provisions has to be established before a court of law and the initial burden is absolutely on the person who asserts that a person is dead. 14. Here is a case where the contention of the appellant is that the Registrar of Births and Deaths – the 2[nd] respondent, would have to consider the aspects in regard to the civil death of a person as per sections 107 and 108 of the Indian Evidence Act and then arrive at the conclusions in the applications submitted by the appellant. 15. We are unable to agree with the contentions of the appellant for the reason that in order to declare the civil death of a person there is no power vested with the Registrar of Births and Deaths under the Registration of Births and Deaths Act, 1969. The Indian Evidence Act, 1872 applies to the courts considering the questions before it and not to an administrative authority discharging the functions in the matter of issuance of a death certificate. To put it otherwise, the 2[nd] respondent is not vested with powers to adjudicate the issue in question and declare that a person has suffered **W.A.No.1727 of 2021** **9** civil death and then issue a death certificate. 16. Even though the learned counsel for the appellant has referred to various judgments of this court as well as the appellate court with respect to the power under Article 226 to pass declaratory orders, we are of the clear opinion that it is a well settled position in law that the writ court is vested with powers to make declaratory orders. But however, the question arose before the writ court was whether the Registrar of Births and Deaths is having powers to declare the death of a person in contemplation of the provisions of the Evidence Act and issue a certificate. 17. The learned single Judge, in our view, has rightly arrived at the conclusion that the evidence with respect to a civil death in contemplation of the provisions of law will have to be established before a civil court, and the Registrar of Births and Deaths is not vested or enjoined with such powers. 18. Moreover, it is interesting to note that in O.S.No.298 of 2014 leading to Exhibit P2 judgment, though the appellant has sought for a decree to declare the civil death of **W.A.No.1727 of 2021** **10** Mr.P.I.George, the said prayer has been declined by the court. Therefore, if the appellant was aggrieved by such a finding rendered by the civil court, the appellant ought to have preferred an appeal in accordance with law. It may be true that the decree passed declining the relief of declaration may be binding only by and between the parties, but at the same time the said judgment and decree is not binding on the Registrar of Births and Deaths and, therefore, he is not duty bound to issue a death certificate to the appellant declaring the civil death of Mr.P.I.George. 19. It is further clear from the provisions of the Evidence Act referred to above that there should be sufficient proof for declaration of the civil death. It is also clear from the said provision that the declaratory decrees can be made by a court only after being satisfied with sufficient proof available on record to do so. The Registrar of Births and Deaths is not expected to go into such intrinsic aspects relating to the burden of proof and the nature of evidence required for arriving at a conclusion with respect to the declaration of the **W.A.No.1727 of 2021** **11** civil death of a person. We are also of the view that the said exercise can only be undertaken by a competent civil court. 20. Be that as it may, Mr.V.Philip Mathews, learned counsel for the appellant, has a case that the writ court is vested with powers to declare the civil death of Mr.P.I.George. We are unable to agree with the same for the fundamental reason that the power exercised by a writ court under Article 226 is of a summary nature and going through the pleadings and the photocopies of the documents produced before it, it is not expected to make a declaration of the civil death of a person, apart from the fact there are no materials at all to make a declaration. 21. We are also of the view that the declaration of the civil death of a person is a very serious matter, which cannot be done by a statutory authority empowered to issue a death certificate or by any court casually and in haste. Taking into account all the above aspects, we have no hesitation to hold that the learned single Judge was right in dismissing the writ petition and there is no merit in the **12** ## **W.A.No.1727 of 2021** appeal. Upshot of the above discussion is that the writ appeal fails. Accordingly, it is dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** //true copy// P.A. to Judge