Report No. 185

Section 108

The section refers to the 'Burden of proving that person is alive who has not been heard of for seven years'. That sections reads as follows:

"108. Provided that where 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."

The principle involved in this section is taken out from the one laid down in England in "In re Phene's Trust" (1869) LR 5 Ch. 139 and according to the 69th Report, (Para 49.5) it is traceable to a statement of law of the year 1603. The period of seven years is also referred to in Section 494. Indian Penal Code, in the Exception to section 27(h) of the Special Marriage Act, 1954 and section 13 (viii) of the Hindu Marriage Act, 1955. In para 49.10, the Report refers to English cases where a woman, in the honest belief that her husband is dead, he not having been heard of for seven years, was held not guilty of bigamy. The law could be the same in India for Section 79 of the Indian Penal Code also refers to the defence of mistake of fact or law or action in good faith.

The real controversy under Section 108 is with regard to the "date of death". The Privy Council in Lalchand v. Mahant Rup Ram: AIR 1926 P.C. 4 stated, following the English case in 'In Re Phene's Trusts', referred to above, that there is no presumption that death must be deemed to have taken place on the date of expiry of the period of seven years referred to in the section. The Supreme Court in Jaya Lakshmi Ammal (N) v. R. Gopalal Pathar: AIR 1995 SC 995 has also held that the question of whether a person was alive or dead at a given date will be decided on the evidence available at the date of the hearing. It would be advantageous to refer to the observations of the Privy Council in Lalchand's case:

"Following these words in the case of Re Phene's Trusts, it is constantly assume.- not perhaps unnaturall.- that where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. But, this is not accurate. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or four periods of seven years. It would be accurate to say that the period of disappearance should be 'seven years or more' or 'not less than seven years'."

The Privy Council further observed that, on this aspect, the English law and Indian law were the sam.- there is no presumption that a person not heard of for seven years should be treated as dead on the date of expiry of seven years.

Sarkar however refers (see 15th Ed;, 1999, page 1560) to a large number of decisions of various High Courts, starting from Jeshankar v. Bai Divali : AIR 1920 Bom 85 and other judgments of the High Courts of Madras, Calcutta, Punjab & Haryana and Rajasthan to the effect that once the period of seven years has lapsed, and a suit is filed later, it can be presumed that the person died by the date of suit. But Sarkar points out that these decisions being contrary to English law and the Privy Council having stated that the English law and Indian law are the same, the above views are not correct.

There does not, however, appear to be any change in the law in England (see Phipson, Evidence, 1999, 15th Ed. para 4.24 to 4.25). But it is pointed out that in sec.19 of the Matrimonial Causes Act, 1973, it is provided that a petitioner can present a petition to have a marriage dissolved after seven years' absence where the petitioner has no reason to believe that other party has been living within that time. (Thompson v. Thompson: 1956 (1) All ER 603)

Section 27(h) of the Indian Special Marriage Act, 1954 and section 13 (vii) of the Hindu Marriage Act, 1955 provide that if a person has not been heard of as being alive for seven years or more by those who would have naturally heard of him,- had that person been aliv.- it is a ground for divorce at the instance of the other spouse.

The 69th Report suggested that the presumption in Section 108 has not been helpful and that in cases of remarriage relying on the presumption of death by date of marriage, insurance claims made after seven years, and testamentary succession, prejudice is caused to a party because he or she is not able to prove the exact date of death (see para 49.18 and 49.19). The Commission suggested that section 108 be redrafted in the manner stated in para 49.20 by stating that (a) the burden of proving that he is alive after the expiry of seven year.- shifts to the person who affirms it and (b) the Court shall, as respects the period after seven years, presume that he is dead.

Now so far as the first proposal in clause (a) mentioned above, it is nothing new but only a clarification of what is already contained in Section 108, namely that the burden shifts to the other party who states he is alive. But so far as recommendation (b) above is concerned, it says the "the Court shall, as respects such period (i.e. after seven years), presume that he was dead". The Commission inserted the word 'and' between the two clauses. The question then is about clause (b).

We recommend that clause (b) as recommended should be modified on the following lines: "if the said burden is not discharged, the Court shall, as respects such period starting from the expiry of seven years, presume that the person was dead." We shall give the draft of the provision afterwards.

The reason for adding these words is as follows: Section 108 first states that when it is proved that a person has not been heard of for seven years by those who would have heard of him if had been alive, the burden proving that he is alive i.e. after seven years, is shifted to the other party who says he is alive. Once the evidentiary burden thus shifts to the opposite party who contends that even after seven years, the person was alive, and that person does not discharge that burden which has so shifted to him, the Court should draw the presumption that the person is dead, after that period expires.

Presuming death after the expiry of seven years (if the person on whom the burden has shifted does not prove that the person is alive after seven years) does not in our view offend the principle laid down in In Re Phene's Trusts: (1870) 5 Ch 139; (1861-1873) All ER 514. The principle laid down in that case that there is no presumption as to date of death was with reference to the period within the seven years. This is clear from the facts of that case as well as the proposition laid down. In that case, the testator died in Jan 1861, leaving his estate to his nieces and nephews.

One nephew had not been heard of since August 1858 or seven months before the testator's death (which takes us to June 1860) when he deserted from the US Navy. A claim was made for his share of the estate on the presumption of his death. But the Court would not presume that he had survived the testator, as the period between disappearance and testator's death was small and a presumption could have been drawn that he was alive by Jan. 1861 when the testator died.

In that case, the seven year period would expire only by 1867 and there could be a claim by the nephew's heirs thereafter provided they contended that the nephew of the testator must be presumed to have died by 1867 and called upon the opposite side to prove he was alive after 1867, failing which he could be presumed dead by 1867.

But, the crucial point here is that the nephew could not have been presumed to have died before Jan. 1861 (date of the death of testator), and such a contention, is put forward by the opposite parties, to exclude the nephew's heirs, it would not be accep to the Court. The heirs of the nephew could easily contend that the presumption is that the nephew survived the testator who died in 1861. Steve Uglow (Evidence, Texts & Materials: 1996 page 699) observes:

"The Court did not apparently consider the strong factual inference that he had survived the testator".

In fact, applying the principle contained in Section 107 (that a person shown to be alive within thirty years is presumed to be alive within that period unless the contrary is proved), the court could have said that if the nephew was alive immediately before June 1860, there would be a presumption that he was alive at least in January 1861 when the testator die.- and that he would have been entitled to a share which could have gone to the nephew's heirs, by applying the presumption of death after seven years and before suit (as in Section 108).

We shall once again refer to what was stated in Re Phene's Trusts:

"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 dies 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 the fact is essential".

This applied to the opponents of the heirs of the nephew.

But, it is not clear why there should not be a presumption that a person living in June 1860 was living in Jan. 1861 unless the other party proved that he died before Jan. 1861. Whatever be the decision on facts, the fact remains that the passage in Phene's Trusts refers only to the presumption of death within seven years. The case is not an authority for the proposition that once the period of seven years is over death cannot be presumed.

The amendment proposed in the 69th Report does not clearly say that a person must be presumed dead once the seven years have lapsed. In our view, under Section 108 if it is proved that a person has not been heard of for seven years and if the opposite party does not show that the person was alive after expiry of seven years, the person can be presumed to be dead after the expiry of seven years. We are not stating that a person should be presumed to have died on any particular date 'during the period of seven years.'

We shall also examine the facts in Lalchand's case decided by the Privy Council. In that case, a Mahant made various alienations, without necessity, and the properties were sought to be recovered by his successor. There were two stages of the litigation. The case came up to the Privy Council from the second litigation started on 30.11.1916. The Mahant who made the alienations had assumed office in 1880 and he is said to have made over the Mutt to the plaintiff, (his chela) in 1892 and according to the evidence of a co-chela, the Mahant died on 27.4.1892.

The first litigation to recover the properties from the aliene.- limitation being 12 years from the date of successio.- was initiated on 16.4.1895. The plea that the Mahant died on 27.4.1892 was rejected as the defendant adduced evidence that he was seen alive in 1895, after the suit was filed on 16.4.95. The suit was dismissed on 27.1.1896 as premature, since there was no proof that succession opened in favour of the chela. The decree was confirmed in appeal by the High Court on 30.11.1897.

As the appeal was also dismissed, it was assumed by the plaintiff, when he filed the second suit, that it must be assumed that the Mahant did not die even by 30.11.1897. Otherwise, the High Court could hold that pending appeal, the cause of action arose and it could have given relief. That was the plantiff's assumption. (Of course, he conveniently forgot that in the earlier suit it was found that the Mahant was last seen in 1895 and seven years would have expired by 1902.)

The plaintiff waited for about 19 years more and filed the suits (which went up in appeal to the Privy Council), contending that on 30.11.1897, the Mahant was treated as alive by the High Court, that, as prescribed under Section 108, for seven years from 30.11.1897, the Mahant's whereabouts were not known and that he must be deemed to have died by 30.11.1904 (an expiry of seven years) and the present suits filed on 30.11.1916 were in time. The trial Judge dismissed the suits as barred by time, being beyond 12 years from the date when succession opened.

But the High Court reversed the said decree holding that it was for the defendants to prove that the Mahant was alive once seven years had elapsed from the date of the earlier judgment of the High Court on 30.11.1897 and granted mesne profits for three years from 30.11.1896, implying that the Mahant must have died by 1903. The High Court held that the plea of the plaintiff in the earlier suit that the Mahant died on 27.4.1892 was not accepted and that finding was binding on both parties, that defendant could not say the Mahant died on 27.4.1892, and that the plaintiff could not now be told in the second suit that in the earlier suit of 16.4.1895 he had pleaded that the Mahant died on 27.4.1892 that his suit was barred.

To dismiss the earlier suit as premature on the ground that there was evidence that the Mahant was alive even after April 1895 and to dismiss the present suit as time barred was something like blowing hot and cold. But, surprisingly, the Privy Council held the suit was barred being beyond 12 years from 27.4.1892, the date pleaded by the plaintiff in the earlier suit as the date of the Mahant's death, though that date was not accepted by the trial court and High court, in the earlier litigation. It is in that context that Phene's Trust case was referred and followed.

On facts of the case, it will be noticed that the earlier suit was dismissed as premature after disbelieving the plea of the plaintiff that the Mahant died in 1892 but the latter suit was again dismissed by the Privy Council as time barred because plaintiff pleaded in the earlier suit that the Mahant died in 1892. The High Court held that once the plea of death of the Mahant in 1892 was disbelieved in the earlier suit, that finding was binding on the parties and the plaintiff could not, in the second suit, be non suited on the basis of his plea in the earlier suit.

To us, it appears that the reasoning of the Privy Council does not appear to be correct. We shall give alternative reasons for those given by the Privy Council for supporting the ultimate judgment. But, whatever that be, the proposition laid down in Lalchand's case is only a repetition of what was laid down in Re Phene's Trusts, namely, that there can be no presumption of death on any particular date 'during the seven years'.

In Lalchand's case, if the earlier suit was dismissed on the ground that the Mahant was last seen in 1895, (after April) then a presumption of his death arises by 1902 (after April) (i.e. after the High Court decision on 30.11.87 in the earlier suit) and the second suit was filed on 30.11.1916. The plaintiff assumed however that the Mahant must be deemed to be alive upto 30.11.1897, the appellate judgment in the earlier case. That assumption was wrong. The crucial date is 1895 (after April) and seven years end by 1902 (after April).

The plaintiff who filed the suit on 30.11.1916, should have noticed that the Mahant must be presumed to have died by 1902 (after April) but the suit was filed on 30.11.1916. The defendants could have raised this plea. The plaintiff was obliged then to prove that, even after the 1902, he lived upto 30.11.1904. This, he has not proved and the suit was liable to be dismissed. Thus, while the conclusion of the Privy Council, on facts, may be correct, though for different reasons, they could not say that Phene's Trusts case decided that, even after seven years expire, death could not be presumed from the date of expiry of seven years.

In other words, the principle in Phene's Trusts was that in the first seven years of one's disappearance, one cannot say that the person must be deemed to have died on any particular date within the period of seven years. The principle is not that you cannot presume his death even after the expiry of seven years and shift the burden to the opposite party that the person was alive even after seven years.

We find that the US Uniform Probate Code (1972) states (para 1-107) (quoted in para 2531, page 605 of Vol. IX Wigmore, 1981) reads thus in clause (3):

"(3) a person who is absent for a continuous period of 5 years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. His death is presumed to have occurred at the end of the period, unless there is sufficient evidence for determining that death occurred earlier."

This provision in the US Code puts the matter beyond doubt that death must be presumed to have occurred at the end of the prescribed period, subject to the same being disproved by the party who says he was alive after seven years. The absence of presumption of death is related only during the period prescribed and no doubt, if anybody wants to say that death occurred during the prescribed period, he has to establish it. (American law relating to insurance however creates special contract clauses and longer periods so that a person does not deliberately go underground to enable his heirs at law or nominees to claim the amount insured. Wigmore p. 613 para 2531 a).

Wigmore (1981) says clearly (para 2531 page 610) that the rule of the presumption extends merely to the fact of death from and after the end of the period; it is not to be understood to specify anything time of death within that period.

Presumption before the end of the period has been confined to cases of 'specific point' (para 2531(a)). See Dave v. Briggs: (1878) 97 US 628.

We are, therefore, convinced that from the date a person's whereabouts are not known, as stated in Section 108, a presumption arises about his death at the end of seven years and then, as provided in Section 108, after seven years, the burden shifts to the party who wants to prove that he was alive thereafter, to prove that fact. If that burden is not discharged, a presumption of death on the expiry of seven years must follow. It must also be made clear however that if a person wants to contend that a person whose whereabouts are not known had died on any particular date within the seven years, then, of course, as stated in Re Phene's Trusts and Lalchand's case, the burden must be on him to prove that fact.

We have already referred to the new Section 108 as proposed in the 69th Report and our suggestion to add some further words therein. In the light of the above discussion, the proposed section requires another Explanation that there is no presumption of death during the seven years.

The format of section 108 proposed in the 69th report is being modified in the draft recommended below. The proposed Section 108, in our view should read as follows:

"108. Burden of proving that a person is alive who has not been heard of for seven years .- Notwithstanding anything contained in section 107, where the question is whether a man is alive or dead, or was alive or dead at a particular time, and it is proved that he has not been heard of for seven years or more by those who would naturally have heard of him if he had been alive, the burden of proving that he was alive during any period after the expiry of seven years shall be upon the person who affirms it and if the said burden is not discharged, the Court shall, as respects such period starting from the expiry of seven years, presume that the person was dead.

Explanation:- If any question is raised that the man died on any particular date during the period of seven years aforesaid, the burden of proving that he died on such date during that period, shall be on the person who so affirms, and the presumption referred to in this section has no application."

Back

Index

Next