Report No. 185

Section 107

This section refers to 'Burden of proving death of person known to have been alive within thirty years.' It reads as follows:

"107. 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."

This section is based upon the principle of the continuance of things in the state in which they have once existed, as stated in Section 114, illustration (d). As pointed in para 48.5 of the 69th Report and para 6.18 of Phipson (15th Ed., 1999), in England, the law is the same but is not treated as a presumption of 'law'. The 69th Report also pointed out in para 48.6 and 48.7 that there is no need to reduce the period. The longer the period, the lesser the strength of the presumption.

Though there is a presumption of continuance of life, the law ought not to assume that which, in view of the usual duration of human life, is practically impossible. (Spring v. Moale: 92. Am Dec. 698; Taylors 2000, Sarkar 15th Ed., 1999 page 1555). In the 69th Report, reference was made to a suggestion in a judgment of the Mysore High Court in Shankarappa v. Shivarudrappa AIR 1963 Mys. 115 for deletion of Section 107 in as much as in an age of aeroplanes and sputniks, death can take place at an unknown place and under unidentifiable circumstances. The Commission observed in para 48.9 that even so, it is difficult for ordinary men not to believe that a person who was earlier alive is not alive.

But in para 48.10, the Commission recommended addition of a proviso giving a discretion to the Court where it appeared to the Court likely that the person concerned was involved in an accident or calamity. The proviso below Section 107 as recommended in para 48.11 of the 69th Report reads as follows:

"Provided that where it appears to the Court from the evidence that the person concerned had been involved in an accident or calamity in circumstances which render it highly probable that the accident or calamity caused his death, the Court may, for reasons to be recorded, direct that the provisions of this section shall not apply."

We may, in this context refer to the combined discussion on Section 107 (Continuance of life within 30 years) and Section 108 (presumption of death if a person is not heard for seven years), in Sarkar 15th Ed., 1999, page 1555: the learned author echoes the same idea propounded in the 69th Report:

"If a person leaves by an aircraft which does not arrive at its destination long after it was due and there is no trace of it on account of a crash somewhere on a mountain or into the sea, should not his death be presumed before the end of seven years because his body was not found? Even if his life was spared by some fortuitous circumstance, he could have communicated the fact to his relations or friends within a few days. In such and other special cases, the law should allow presumption of death before the lapse of seven years and Court should be invested with such a discretion."

In fact, Section 108 is also a proviso to Section 107. It has been held that it is erroneous to seek to apply both Section 107 and 108 to one and the same case, in the same way as a person cannot, at the same time, both be alive and dead.

Section 108 comes as a proviso to Section 107: To a case where the proviso (i.e. Section 108) is attached, Section 107 can have no application (Sarojini v. Sivabandan: AIR 1956 T-C. 129).

The Malaysian High Court has held that Section 108 does not prevent the Court from finding on circumstantial evidence, that the death of a person occurred before the expiry of seven years from the date of disappearance (Osman Bin Bachit, Re. 1997(4) Malayan LJ 445 (Melaka HC).

Of course, when a person absconds from justice in order to evade trial on a charge of murder, the presumption in Section 108 (regarding death) does not apply, as he would not naturally communicate with his relations (East Punjab v. Bachan AIR 1957 Punjab 316).

In the light of the above, we agree that a proviso in the manner referred to in para 48.11 of the 69th Report as extracted above can be added below Section 107 as it now stands.

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