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प्रश्न
Legal Principle: In the law of evidence, a person missing for long and not heard of, for over seven years is presumed to have died.
Facts: A, B, and C are children of F and M. At the age of 20, A went out in search of a job and was not contacting the family. All attempts to trace A by the family failed. Eight years after the death of the parents, B and C entered into a partition and took an equal share in the property of F and M. One year after this, A returned home with his wife and two children and claimed his share in the property.
Whether A’s claim is legally sustainable?
विकल्प
A was not heard of, for more than eight years, the legal presumption of death will apply and hence, he cannot claim a share in the property.
It was A’s duty to be in touch with the family at least once a year. The failure of this duty will disentitle him from claiming property.
A will succeed because he is a legitimate son of F and M.
B and C are legally bound to give 1/3 share of the property to A.
उत्तर
A was not heard of, for more than eight years, the legal presumption of death will apply and hence, he cannot claim a share in the property.
Explanation:
Presumption of death is governed by sections 107 and 108 of the Evidence Act, which allows for a presumption of death for a person missing for 7 years to be raised in appropriate proceedings before the court
Hence "A was not heard of, for more than eight years, the legal presumption of death will apply and hence, he cannot claim a share in the property." is correct as he went missing for more than seven years and there was no evidence that he was alive so he can be easily presumed to be dead and can not claim his share in the property. A dead person does not have any rights or duties.
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संबंधित प्रश्न
An appellate court, commonly called an appeals court, court of appeals, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In most jurisdictions, the court system is divided into at least three levels: the trial court, which initially hears cases and reviews evidence and testimony to determine the facts of the case; at least one intermediate appellate court; and a supreme court (or court of last resort), which primarily reviews the decisions of the intermediate courts. A jurisdiction's supreme court is that jurisdiction's highest appellate court. Appellate courts may follow varying rules from country to country. The authority of appellate courts to review decisions of lower courts varies widely from one jurisdiction to another. In some places, the appellate court has limited powers of review. Generally speaking, an appellate court's judgment provides the final directive of the appeals courts with regard to the matter appealed, setting out with specificity the court's decision on whether the action that has been appealed should be affirmed, reversed, remanded or modified. In the United States, both state and federal appellate courts are usually restricted to examining whether the lower court made the correct legal determinations, rather than hearing direct evidence and determining what the facts of the case were. Furthermore, US appellate courts are usually restricted to hearing appeals based on matters that were originally brought up before the trial court. Hence, such an appellate court will not consider an appellant's argument if it is based on a theory that is raised for the first time in the appeal. In most US states, and in US federal courts, parties before the court are allowed one appeal as a right. This means that a party who is unsatisfied with the outcome of a trial may bring an appeal to contest that outcome. However, appeals may be costly, and the appellate court must find an error on the part of the court below that justifies upsetting the verdict. Therefore, only a small proportion of trial court decisions result in appeals. Some appellate courts, particularly supreme courts, have the power of discretionary review, meaning that they can decide whether they will hear an appeal brought in a particular case.
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