An Analysis of Section 108 of the Indian Evidence Act, 1872: The Presumption of Death

An Analysis of Section 108 of the Indian Evidence Act, 1872: The Presumption of Death

Introduction

The Indian Evidence Act, 1872 (hereinafter "IEA"), codifies the principles governing the admissibility and relevance of evidence in judicial proceedings in India. Among its provisions concerning the burden of proof, Sections 107 and 108 address the presumptions relating to life and death. Specifically, Section 108 IEA provides for a presumption of death if a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive. This article undertakes a comprehensive analysis of Section 108 IEA, examining its statutory language, its interplay with Section 107 IEA, and its interpretation by the Indian judiciary through significant case law. The primary focus will be on the scope of the presumption, particularly the distinction between the fact of death and the precise time of death, and the consequential burden of proof.

The Statutory Framework: Sections 107 and 108 of the Indian Evidence Act, 1872

To understand Section 108, it is essential to first consider Section 107, to which Section 108 serves as a proviso.

Section 107 IEA – Burden of proving death of person known to have been alive within thirty years:

"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."

Section 108 IEA – Burden of proving that person is alive who has not been heard of for seven years:

"Provided that when 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."

Section 107 establishes a presumption of the continuance of life for a person shown to be alive within the preceding thirty years. Section 108 carves out an exception: if a person has not been heard of for seven years by those who would naturally have heard of him, the presumption of life ceases, and the burden shifts to the party asserting that the person is alive to prove it. As observed in Life Insurance Corporation Of India v. Anuradha (1999 SRILJ 2 529), Section 108 comes as a proviso to Section 107. The Rajasthan High Court in Narbada v. Ram Dayal (1967 RLW 1967 Raj 193) also emphasized that Section 108 is a proviso to Section 107 and deals with a presumption for a person unheard of for seven years.

Judicial Interpretation of Section 108

The application and scope of Section 108 IEA have been extensively deliberated upon by Indian courts, leading to a well-settled jurisprudential understanding, particularly regarding the critical distinction between the presumption of the fact of death and the presumption of the time of death.

The Presumption: Fact of Death, Not Time of Death

The most significant principle emanating from judicial interpretation is that Section 108 IEA raises a presumption as to the fact of death at the time the question is raised, but not as to the date or time of death within the seven-year period or otherwise. This principle was authoritatively laid down by the Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir And Another (AIR 1926 PC 9). The Privy Council, approving the English case In re Phene's Trusts ((1870) 5 Ch. A. 139), held:

"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 died 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 that fact is essential."

This position has been consistently reiterated by the Supreme Court of India and various High Courts. In N. Jayalakshmi Ammal And Others v. R. Gopala Pathar And Another (1995 SCC Supl. (1) 27), the Supreme Court, relying on Lal Chand Marwari, affirmed that while Section 108 allows for a presumption of death after seven years of unaccounted absence, it does not specify when within those seven years (or thereafter) the death occurred. The Court stated, "the presumption of death does not extend to any particular time within the seven-year period." This was also the finding in Life Insurance Corporation Of India v. Anuradha (1999 SRILJ 2 529), where the Jammu and Kashmir High Court noted that "there is no presumption as to the time of death." The Bombay High Court in Gopal Bhimji Avte v. Manaji Ganuji Padval (AIR 1923 Bom 163) also discussed this, aligning with the view that the exact time of death during the seven-year period must be proved affirmatively. Similarly, in N. Sabapathy And Ors. v. Pattammal And Ors. (1992 (1) MLJ 187), it was held that in the absence of proof that the person died at any particular point within seven years, the presumption of death became effective after the lapse of seven years from when he was last heard of.

Burden of Proof as to Time of Death

Flowing directly from the principle that Section 108 does not presume the time of death, the burden of proving the specific date or time of death lies on the party who asserts it for the success of their claim. As emphasized in N. Jayalakshmi Ammal, "the burden of proving the timing of death remains with the party asserting it." In that case, the appellants failed to prove that Govindaswamy died after the Hindu Women's Rights to Property Act, 1937, came into force, which was crucial for their claim. The Court found that reliance solely on the presumption under Section 108 was insufficient without concrete evidence of the time of death. The Privy Council in Lal Chand Marwari also clearly placed this onus on the person who claims a right to the establishment of which that fact (the specific time of death) is essential.

When Does the Presumption Arise?

The presumption of death under Section 108 arises when it is proved that a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive. The crucial point is the expiry of this seven-year period. In Ajai Kumar Tiwari v. Deputy Inspector General Of Police Establishment, Allahabad And Others (2005 SCC Online All 1796), the Allahabad High Court held that as soon as seven years expire and the person has not been heard of, a presumption of "civil death" arises. The Court noted that the department had accepted that the petitioner's father went missing and was not heard of for seven years, thus the presumption arose. In N. Sabapathy, the court calculated that if Arumugam was not heard of from 1958, the presumption of his death became effective in 1965.

Flexibility in Presuming Date of Death: Judicial Discretion?

While the general rule is that Section 108 is silent on the date of presumed death, some judicial pronouncements suggest a degree of flexibility. The Bombay High Court in Subhash Ramchandra Wadekar v. Union Of India (1992 SCC Online Bom 309) observed that ordinarily, a person unheard of for the statutory period shall be presumed to be dead on expiry of seven years and not earlier. However, it also stated that "Section 108 of Indian Evidence Act, 1872 is not exhaustive. It is permissible for the Court to raise a suitable presumption regarding date of presumed death depending upon the attendant circumstances and other reliable material on record." This view was followed by the Andhra Pradesh High Court in Union Of India v. Polimetla Mary Sarojini (2017 (6) ALT 408), which reiterated that the court can make a suitable presumption regarding the date of presumed death based on circumstances. The Allahabad High Court in Amardeep Kashyap v. State Of U.P. (2024 SCC OnLine All 299), citing Ram Singh Vs. Board of Revenue, U.P. Allahabad (AIR 1964 All 310), noted that while Section 108 does not fix the time of death, "The Court may in the circumstances of each case make suitable presumption even regarding the time of death of person concerned."

This suggests that while the statute itself does not provide for a presumption of the time of death, courts may, in exceptional cases and based on specific facts and circumstances presented, draw an inference as to the likely period of death. However, this must be distinguished from a legal presumption.

Practical Applications and Consequences

The presumption under Section 108 has significant implications in various legal contexts:

  • Property Disputes and Inheritance: The timing of death is often crucial in determining succession and inheritance rights, as seen in N. Jayalakshmi Ammal and Lal Chand Marwari. The inability to prove the exact date of death can be fatal to a claim dependent on that specific timing.
  • Service Benefits and Compassionate Appointments: In cases of missing government employees, the presumption of civil death under Section 108 becomes relevant for claiming terminal benefits, family pension, and compassionate appointments. In Ajai Kumar Tiwari, the court directed that the consequences of civil death should follow after seven years for compassionate appointment. Similarly, in N.Pankajam v. State Of Tamil Nadu (2006 (3) MLJ 702), the Madras High Court referred to a Government Order allowing family pension after the lapse of seven years, based on the Section 108 presumption. This was also noted in D.Renuga Devi v. S.K.Singhal (W.P.(MD)No.9298 of 2008, Madras High Court, 2011).
  • Insurance Claims: The presumption is invoked in life insurance claims, as in Life Insurance Corporation Of India v. Anuradha, where the claim was made after the insured was not heard of for seven years. The court dismissed the LIC's appeal, holding there is no presumption as to the time of death.

Procedural Aspects and Limitations

Certain procedural aspects and limitations concerning Section 108 are noteworthy:

  • Section 108 as a Rule for Courts: The Madras High Court in Suseela v. The Revenue Divisional Officer (W.P.(MD) No.10536 of 2020, Madras High Court, 2020) clarified that "Section 108 is only a procedure to be followed when the question arises before the court as to one is alive or dead. No individual like the petitioner can take advantage of and make use of the presumption under Section 108 and request the Registrar of Births and Deaths, to make an entry and issue a certificate." The Registrar can only register actual deaths.
  • Declaration of Civil Death and Registration: For official registration of death based on presumption, a declaratory decree from a competent court is often required. As discussed in Shajeev George v. Chief Registrar Of Births And Deaths (W.P.(C).Nos. 4159 & 12086/21, Kerala High Court, 2021), if a judgment granting declaratory relief does not specify the date of death, the date the petitioner approaches the court might be reckoned as the date of death for registration purposes, as per circulars.
  • Suggested Procedures for Disappeared Persons: The Kerala High Court in Vareed v. Sukumaran (AIR 1988 Ker 95), citing an older Patna High Court case, suggested that where a person disappears, an application might be made to the proper court for leave to presume death, or the court could appoint someone to look after the affairs of the disappeared individual.

The Interplay with Section 107

As stated earlier, Section 108 operates as a proviso to Section 107. Section 107 presumes a person to be alive if shown to be alive within 30 years, placing the burden of proving death on the affirmant. Section 108 reverses this burden if seven years of silence from those who would naturally hear from the person are established. The Allahabad High Court in Zishan Khan v. District Inspector Of Schools (2012 SCC Online All 477) examined these provisions, noting their material bearing on determining the presumed date of death for a missing person. The court in LIC v. Anuradha stated that "The presumption of continuance of death under Section 107 of the Evidence Act cannot be applied when Section 108 comes as a proviso to Section 107."

Challenges and Considerations

The application of Section 108 IEA, while largely settled, presents certain challenges:

  • Difficulty in Proving Exact Date of Death: The primary challenge remains the burden on a party to prove the specific time of death when it is crucial for their claim. Often, direct evidence is scarce or non-existent for a person who has disappeared.
  • Need for Legislative Review: In Ajai Kumar Tiwari, the Allahabad High Court observed that the seven-year period under Section 108 might have been relevant over a century ago, but with faster means of communication and travel, "There is as such a need to amend Section 108 of the Indian Evidence Act, 1872 and reduce the period of seven years." This, however, is a matter for the Legislature.
  • Balancing Interests: Courts often have to balance the interests of the dependents of the missing person, who seek closure and benefits, with the procedural rigors of law and the interests of other parties (e.g., insurance companies, government departments).

Conclusion

Section 108 of the Indian Evidence Act, 1872, provides a crucial legal presumption regarding the death of a person unheard of for seven years. The judiciary, through a consistent line of precedents anchored by the Privy Council's decision in Lal Chand Marwari and affirmed by the Supreme Court in N. Jayalakshmi Ammal, has firmly established that this presumption pertains only to the fact of death and not to the specific time of death. The burden of proving the precise time of death rests squarely on the party for whom such fact is essential to their claim.

While some High Court judgments suggest a degree of judicial flexibility in inferring the date of death based on attendant circumstances, this does not dilute the fundamental principle. Section 108 serves as a vital tool in various legal scenarios, from property and inheritance disputes to claims for service benefits and insurance, providing a mechanism to address situations of prolonged, unexplained absence. However, its application requires careful consideration of evidentiary burdens and procedural limitations, ensuring that the presumption is invoked appropriately within the framework of Indian law. The call for legislative review of the seven-year period reflects evolving societal realities, but until such changes are made, the existing jurisprudence continues to guide the application of this important provision.

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