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Report No. 185 Section 108 Section 108 states that if a man is not heard of for seven years, the burden of proving that he is alive is shifted to the person who affirms it. Two questions arise, one is as to the position at the end of the period of seven years and the other is about the burden of proof within the period of seven years. Having regard to the case law in England and in India and problems regarding succession and re-marriage, in regard to both these situations it is recommended to modify section 108 to say, so far as the first situation is concerned that at the end of seven years, a presumption arises that the person is not alive and the burden shifts then to the party who claims he is alive after expiry of seven years to prove it failing which, it will be presumed that the person died at the expiry of seven years. The proposed Explanation covers the second situation and says that, within the period of seven years, there is no presumption of death and it will be for the person who says that a person died on a particular day within the seven years to prove that fact. 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."    |
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