2001(4) ALL MR 297
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
J.A. PATIL, J.
Mr. Mohammed Ali Mohamamed Ismail Khan Vs.
Misc. Petition No.87 of 2000
14th June, 2001
Petitioner Counsel: Shri K.G.S. TRIPATHI
Succession Act (1925), S.370 - Evidence Act (1872), S.108 - Heirship certificate - Application for - Person missing and not heard of for more than 7 yrs - Such person presumed to be dead as per S.108 - Affirmation by applicant son that father was missing, police informed and that efforts made to search at different places were unsuccessful - Certificate granted. (Para 4)
JUDGMENT
JUDGMENT :- Heard Shri K.G.S. Tripathi for the petitioner.
2. By this petition, the petitioner has prayed for declaration and order of presumption about the death of his father Mohammed Ismail Idu Khan, who has been not heard for a period of more than 7 years. He has further prayed for issue of legal heirship certificate in his name as well as in the name of his mother Smt. Jamila Mohammed and sister Mrs. Najabul Nisha. It appears that the missing person - Mohammed Ismail Idu was working as Tindel with the Bombay Port Trust Authorities and that he was removed from the services in 1988. He was the a resident of village Nandi, Makhadumpura Kala, Thana Bazar Shukl, Tehsil Musafirkhana Ragiganj, Dist. Sultanpur in U.P.
3. According to the petitioner his father Mohammed Ismail has been missing and that he has not been heard of for more than seven years. Earlier the petitioner had filed Misc. Petition No. 47/2000 in this court, praying for a declaration that his father is a missing person. However, this court rejected that petitioner on the ground that no such declaration could be granted and that the petitioner was at liberty to file a petition for succession certificate or heirship certificate. This order was passed on 9.11.2000. Thereafter, the petitioner filed the present petition for the above mentioned reliefs.
4. A proclamation issued and duly published, inviting objections, if any, from any person to the grant of heirship certificate to the petitioner, his mother and sister. However, nobody appeared before this court within the stipulated period of one month after publication of the proclamation to raise any objections for grant of such certificate. Petitioner has affirmed that his father Mohammed Ismail has been missing from Mumbai since 23rd January, 1985 and that all efforts to trace him have been unsuccessful. He has also averred that the police were informed and that search was made at different places but without any avail. It is thus seen that the said Mohammed Ismail has been missing and is not heard of for a period of more than seven years since before the filing of this petition. Therefore, in view of the provisions of section 108 of the Evidence Act presumption about his death can be drawn. Petitioner has also filed the affidavits of his mother, Smt. Jamila and sister Mrs. Najabul Nisha in support of the petition. It appears that the heirship certificate is required for the purpose of obtaining the terminal dues of the said Mohemmed Ismail. The Mumbai Port Trust authorities have informed this court the total amount payable to the said Mohammed Ismail is Rs.97,195/-. The petitioner and his mother and sister being the only legal heirs of the said Mohammed Ismail who must be presumed to have died, are entitled to get a legal heirship certificate in their joint names for collecting of dues which were payable to the said Mohammed Ismail.
5. In the result, the petition is granted in terms of prayer clauses (a) and (b). Legal heirship certificate be issued accordingly on petitioner's furnishing a surety in the sum of Rs.97,000/-.
6. Petition is accordingly disposed of. Certified copy expedited.