Report No. 69

VI. Need for Change

50.18. Need for change.-

So much as regards the English law and the law in other countries. The question to be considered is, whether a statutory provision should be inserted in our Act on the subject of deaths in a common catastrophe. The Select Committee which discussed the Evidence Bill1 did consider the subject briefly, but that Committee described the provision contained in the laws of several countries2 on the subject as "somewhat arbitrary", and treated the matter as an instance of the rule as to the burden of proof. "The person who affirms that A dies before B must, prove it. This is the principle adopted by the English Courts."

1. Report of the Select Committee (31st March, 1871) Gazette of India, July 1, 1871, Part V, p. 273. Legislative Depth Papers No. 6 to 130 relating to the Evidence Act (National Archieves).

2. The countries were not mentioned.

50.19. It should be noted that the law in England has now been altered by statute. 1 Moreover, we are not convinced that the fact that a statutory rule would be arbitrary is a conclusive argument against its adoption. The present position leads to anomalies, by leaving the matter, to the general rule as to burden of proof of particular facts in section 103. This will be clear from a comment made on the Bill. Clause 95 in the original Evidence Bill, had an illustration under the topic of "burden of proof", in the clause which dealt with burden of proof as to particular facts2 According to the illustration3to that clause, A and B. husband and wife, are both drowned in the same wreck. C is entitled to certain property if B survived A, while D is entitled to that property if A survives.

If C claims the property, he must prove the survival of A. That was the gist of the material part of the illustrations to clause 95. Now, it was pointed out, in one of the comments on the Evidence Bill.4 that this was unsatisfactory. "In the illustration given, it would appear impossible to prove whether A or B died first: so if C and D for property, D will win; if El sues C, C will win: the effect would be that whichever first get possession of the property5 would keep it. But if the property were in the possession of E, A's executor, he, E might retain it: for though it would clearly belong to either C or D, neither of them would be able to get a decree".

It is remarkable that this very incisive comment came not from a lawyer but from an Army Officer-Major Wilkinson. There is considerable force in this criticism. In our opinion, there is a strong case for inserting a statutory provision on the point under consideration.

1. Section 184, Law of Property Act, 1925 as amended, (supra).

2. Clause 95, now section 103.

3. The illustration did not appear in the Bill as passed.

4. Major Alfred Wilkinson Offg. Deputy Commissioner, Lucknow: Printed File of the Evidence Bill, p. 145, comment relating to clause 95 of the Bill (National Archives).

5. Emphasis supplied.

50.20. Course recommended.-

As to the precise content of the statutory provision, we would favour adoption of the English rule-with one modification which we shall mention in due course. Where the matter is difficult to prove, not much damage would result if an arbitrary rule is adopted. After all, the present position. under which the matter is decided by the rule of burden of proof, is also arbitrary in its operation in the sense that the accidents of litigation may tilt the scales.1 The statutory rule adopted in England has the merit of certainty, even if such a provision is arbitrary.

Major Wilkinson, in his comment on the Evidence Bill, had brought out the anomaly under the present position. It may further be added, that if the rule in India is brought into harmony with the rule in England and other countries which have adopted such a rule, it will lead to convenience, because such a course would avoid conflicting presumptions as between Indian courts and the courts of various other countrie.- -an .aspect that becomes important whe're the persons concerned have immovable property situated in more countries than one.

VII. Indian Cases

1. tire Major Alfred Wilkinson's comment on the Evidence Bill, supra.

50.21. Indian cases.-

It may be of interest to study by taking actual cases, how the proposed amendment would be useful. Thus, in a Privy Council case,1 the facts were as follows:

Sir Shamas Shah, a retired officer of the Political Department of the Government of India, aged 68, and his wife Lady Shamas Shah, aged 26, who were staying in a bungalow in Quetta, were killed in the earthquake and buried under the debris. The question was, whether Lady Shamas Shah survived her husband for a moment. This question was material for determining the order of succession. The appellants were her parents. The appellant's case was, that the lady was taken alive when she was extracted at about the same time as her husband's body was recovered, and that she thus survived her husban.- though she expired immediately thereafter.

On the hypothesis that the lady survived, the appellants her parents, could claim-one-fourth of her husband's estate, because, under the Muslim law, the widow was entitled to one-fourth, and, on the widow's death, that one-fourth devolved on the parents. If she did not survive her husband, then the respondents were entitled to the entire estate. The legal proposition laid down in this case by the Privy Council was, that where the two individuals perish in a common calamity and the question arises who died first, there is no presumption that the younger survived the elder; the question is a pure one of fact, the onus lying on the party asserting the affirmative. The leading English case of Wing v. Angrave, (1860) 8 HLC 183, was followed.

1. Agha Mir Mohamad v. Mudassir Shah, AIR 1944 PC 100: 71 Ind App 171.

50.22. An Oudh1 case may also be referred to. Two brothers died in a fire, and the widow of one of them sought to succeed to the entire property, on the ground that her husband, being the younger, must be deemed to have survived the other brother. The court held, that there was no such presumption, and pointed out that the rule laid down in the English Act of 1925 was an artificial rule of statute law, and not one of evidence. Incidentally, the Oudh judgment refers to the opinions expressed by other courts-the view that the probabilities are in favour of the younger surviving the elder,2 and "ordinary presumption in human nature that the elder man died first."3 It did not, it seems, share their view. The adoption of the English provision would, in such cases, introduce an element of certainty by avoiding the need for deciding questions of fact too difficult of proof.

1. Neksi Kaur v. Jawala Kaur, AIR 1934 Oudh 101.

2. Yeknath Narain v. Laxmibai, AIR 1922 Born 347 (Sir Norman Macleod, C.J.).

3. Gopal Chandra v. Padampani, (1913) 18 Ind Cas 814

VIII. Comments on the English section

50.23. Australian case-Criticism of the words "subject to any order of the Court".-

The English provision thus furnishes a useful precedent; but we should refer to a few points arising from the English provision. In a case1 which arose in Victoria (Australia), the words "subject to any order of the court" in section 184 of the Property Law Act, 1958 (Victoria), which, in this respect, follows section 184 of the Law of Property Act, 1925 (England), were considered, and Adam, J. of the Supreme Court of Victoria (after reviewing the cases), concluded as follows:

"This survey of the judicial pronouncements on the bracketed words suggests, at best, that if they mean anything at all, they add nothing to the section, and at worst, that they are simply meaningless. Section 184 would not suffer, I think, by their now being omitted."2

In an article on the subject published in Australia,3 the words in question have been criticised as an example of a "deplorable legislative habit" of using words which apparently give a power to affect private rights without stating the circumstances in which the power is exercisable. The words should, therefore, be avoided, when drafting the proposed section.

1. Brush (in re:), 1962 VR 595 (601), note in (1962) 36 Australian LJ 193.

2. Emphasis added.

3. (1962) 36 Australian Law Journal 193, 194.

50.24. Desirability of amendment.-

The provision made regarding the intestate's estates by the Act of 1952 in England, should extend to testate succession between spouses also.

IX. Need for Change

50.25. We are, therefore, of the view that it is desirable to adopt the English provision with the modifications mentioned above. It would be an improvement on the present position. At present, the party asserting (i) concurrent death or (ii) survivorship of one person or (iii) predecease of one person, has to prove it: instead, a fixed rule will come into play if the English provision is adopted. This would not be more arbitrary than the present position, because even now, it is the chance situation of A or B having to institute the legal proceeding, that decides the onus for the purpose of that proceeding. This aspect was very well elaborated in one of the comments on the Evidence Bill, to which we have already referred.1

It will be more beneficial in its working, because it will

(i) introduce certainty,

(ii) apply whether there is litigation or not, and

(iii) apply to all cases and not merely as between the litigating parties.

1. Major Alfred Wilkingson's Comment, (supra).

X. Recommendation

50.26. In the light of the above discussion, we recommend that the following few section should be inserted-say, as section 108A in the Evidence Act. As a :onsequential change, section 21 of the Hindu Succession Act, should be repealed.1

1. Section 21, Hindu Succession Act, 1956 to be repealed.

Section 1.08A (New)

"108A. Where two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall, for all purposes, be presumed to have occurred in order of seniority, of age and accordingly the younger shall be deemed to have survived the older:

Provided that where the question arises in respect of title on intestacy or testamentary rendering it uncertain which of them survived the other, and the, husband or wife is, by virtue of this section, deemed to have survived the intestate, or the testator, then the law of succession shall, nevertheless, have effect as respects the intestate or the testator as if the husband or wife had not survived the intestate or the testator."1

1. Section 21, Hindu Succession Act, 1956, to be deleted in consequence.

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