Report No. 69

Chapte 50

Proposed New Section

Section 108A-commorientes

I. Introductory

50.1. Introductory.-

Sections 107 and 108, which we have discussed so far, do not deal with one question which has assumed some importance in modern times. The question relates to the situation where many persons die in a common catastrophe. This is usually discussed under the topic of "commorientes".

50.2. Commorientes.-

"Commorientes" are persons who perish at the same time in consequence of the same calamity. These are difficult cases which pose vexed problems to jurists, and their complexities have not, in any way, abated despite the enunciation of several principles not always all-embracing.1

Simultaneous deaths may occur in consequence of a variety of circumstances, usually, they are, the result of ship-wrecks, air-crashes, collisions, bomb explosions, conflagrations, earthquakes, fatalities during war, and other similar calamities, involving a number of person. On the priority, in point of time, of the death of one over the other commorientes, regardless of the brevity of interval between the deaths, valuable rights of third parties very often depend.2

1. Mahabir Singh (in re:) v. Prithviraj Dillon, AIR 1963 Punj 66 (72).

2. Mahabir Singh (in re:) v. Prithviraj Dillon, AIR 1963 Pun' 66 (72).

II. Present Law

50.3. Indian law.-

In India, there is, in the absence of statutory provision,1 no presumption of law arising from age or sex to the effect that the younger or the female survived for some time, when a number of deaths took place in a common catastrophe.2 Nor is there any presumption that all persons involved in a common catastrophe died at the same time. If the survivorship of one person cannot be established by evidence, so that, on the evidence, the court cannot come to a conclusion as to whether A survived B in a common catastrophe, the normal rules as to burden of proof will be applied, and he who has the burden of proving the death will suffer if there is want of evidence. This general rule is, of course, subject to one special statutory rule to which we shall advert later, contained in the Hindu Succession Act.

The matter of survival, in all other cases, is treated as a question of fact. The courts may, of course, draw their own deductions by taking into consideration the circumstances, the minutes of the disaster and the manner of deaths of the parties, or take assistance from other circumstances tending to show who outlived whom. Facts might be examined which might suggest as to who was best able to struggle for life as against others.3 But there are no legal presumptions. In one Bombay case-Y.N. Kulkarni v. Laxmibai Kesheo, AIR 1922 Born 347-Macleod C.J. did give importance' to the fact that out of the deceased, the younger man was 18 years old and the other was aged 60. The Chief Justice observed-

"when the evidence on the question, who died first, is so evenly balanced, I think we are entitled to say that the probabilities are in favour of the younger man surviving the elder". But, this view may be taken as impliedly overruled by the later Privy Council case.4

1. Section 21, Hindu Succession Act, 1956,

2. K.S. Agha Mir Ahmed v. Mudassir Shah, AIR 1944 PC 100: 71 LA 171 (see infra).

3. Mahabir Singh (in re:) v. Prithviraj Singh Dillon, AIR 1963 Punj 66 (72).

4. Agha Mir Mohammed, AIR 1944 PC 100, Infra.

50.4. Section 21 of the Hindu Succession Act1 provides for the application of the presumption (until the contrary is proved) that the younger survived the elder. The section does not apply to the property of the persons other than Hindus. However, in the absence of such specific statutory provisions, the matter is left to be decided on the basis of onus of proof. This creates difficulties and anomalies, since the answer given depends on the accidents of litigation.

1. Section 21, Hindu Succession Act, 1956.

III. Roman Law and Civil Codes

50.5. It would, at this stage, be useful to discuss a few comparative aspects. The continental jurists endeavoured to solve the difficulty by recourse to artificial presumption where the circumstances connected with deaths were unknown.1 These presumptions, though artificial and arbitrary, are based on probabilities of survivorship resulting from physical strength, age and sex. Some of these presumptions to which the jurists in Rome resorted in the event of a common catastrophe resulting in the deaths of several persons, may be noted. They are:

(a) cum bello batar cum filloia perissat-when in war, father and son die together;

(b) uxor aixul cum marito decssssrit-husband and wife die together. There were also what may be called biological considerations. Thus, a grown-up son was presumed to have survived his parent;

(c) cum explorari non posist uter prior extinctus sit, humanius est credere fillum diutius uixisse-This means that when it is not possible to determine who between the father and the son, died first, it is more natural to believe that the son survived the father.

Similarly, the Code Napoleon2 provides as follows:-

"Si pluesieurs personnes respectivement appellees a la succession lune de lature, parissent dans un mems evenement, sans quon puisae reconseitrc lacquelle eat determinee par les circonstances du fait, etc., a leur defaut par la force do lage et due sexe."

The above passage may be rendered thus:3.

"If several persons who are respectively to succeed one to the other, perish in the same happening without one's knowing who died first, the presumption of survival is determined by the circumstances of the case and, in their absence, by considering their age and sex."

1. Mahabir Singh (in re:,) AIR 1963 Punj 66 (72).

2. Article 720, Code Napoleon.

3. Mahabir (in re:), AIR 1963 Punj 66 (72).

50.6. In some cases the presumptions were considerably elaborated in the legislative provisions such elaboration ostensibly resting on natural probabilities. Thus, the French Code1 assumed that of those under the age of 15, the eldest survived, and in the case of those above 60, the youngest survived. If one of those parties were under the age of 15 and the other above the age of 60, the former was presumed to have survived. If all were between 15 and 60, the males were presumed to have been the survivors if the ages were equal or the difference in ages not greater than one year; in other cases the youngest was presumed to be the survivor.2 The Civil Codes in other continental countries and in some States of America are modelled on the Roman pattern, for example,3 Civil Codes of Austria, Germany, Italy, Portugal and Spain.

1. Mahabir (in re:), AIR 1963 Punj 66 (73).

2. Code Civil, sections 720, 721 and 722, referred to in Taylor on Evidence, 12th Edn., Vol. 1, pp. 182, 183.

3. Sherman Roman Law in the Modem World (2nd Edn.), Vol. 2, p. 42, cited in Mahabir Singh (in re:), AIR 1963 Punj 66 (73).

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