The Presumption of Civil Death under Section 108 of the Indian Evidence Act, 1872: A Judicial Exposition

Introduction

Section 108 of the Indian Evidence Act, 1872 (hereinafter "the Act"), stands as a crucial provision dealing with the presumption of death when an individual has not been heard of for seven years. This statutory presumption, often referred to as "civil death," plays a pivotal role in various legal domains, including succession, property rights, insurance claims, and service law. The core principle of Section 108 is to provide a legal basis for concluding that a person is deceased under specific circumstances, thereby enabling the resolution of legal issues contingent upon their life or death. This article aims to provide a comprehensive analysis of Section 108, delving into its statutory framework, its interpretation by the Indian judiciary, particularly the Supreme Court and various High Courts, and its application in diverse factual matrices. The analysis will draw extensively upon landmark judgments and relevant legal principles to elucidate the scope, limitations, and implications of this presumption.

The Statutory Framework: Section 108 and its Interplay with Section 107

Section 108 of the Act is intrinsically linked to Section 107 and operates as a proviso to it. Understanding both sections is essential to grasp the full import of the presumption of death.

Section 107 – Burden of proving death of person known to have been alive within thirty years: This section stipulates: "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." Thus, Section 107 establishes a presumption of the continuance of life for a person shown to be alive within the preceding thirty years. The onus lies on the party asserting the death of such an individual.

Section 108 – Burden of proving that person is alive who has not been heard of for seven years: This section, which is the primary focus of this article, states: "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."

As elucidated by the Rajasthan High Court in Narbada v. Ram Dayal (AIR 1968 Raj 48), Section 108 is a proviso to Section 107 and deals with a presumption for a person who has not been heard of for seven years by those who would naturally have heard of him if he had been alive. In such a scenario, the burden to prove that he is alive shifts to the person who affirms his continued existence (Shajeev George v. Chief Registrar Of Births And Deaths, 2021 SCC OnLine Ker 1109). The Kerala High Court in Vareed v. Sukumaran (AIR 1988 Ker 93) noted that Section 108 was enacted to provide for the counter presumption where a person's death would seem more likely than the continuance of life due to prolonged, unexplained absence.

Core Tenets of Section 108: Judicial Clarifications

The Indian judiciary, through a catena of judgments, has meticulously delineated the contours of the presumption under Section 108.

Presumption of Fact of Death, Not Date of Death

The most significant and consistently reiterated principle is that Section 108 raises a presumption as to the fact of death at the time the question is raised in a legal proceeding, provided the seven-year period has elapsed. However, it does not create any presumption regarding the specific date or time of death within that seven-year period, nor the circumstances of death.

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 Council, approving the English case of In re Phene's Trusts ((1870) 5 Ch App 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."

The Supreme Court of India has consistently affirmed this position. In N. Jayalakshmi Ammal And Others v. R. Gopala Pathar And Another (1995 Supp (1) SCC 27), the Court emphasized that while Section 108 allows for a presumption of death after seven years of unaccounted absence, the burden of proving the timing of death remains with the party asserting it. This was critical in determining property rights under the Hindu Women's Rights to Property Act, 1937, as the appellants failed to prove that the concerned individual died after the Act came into force.

Perhaps the most cited contemporary authority on this point is LIC Of India v. Anuradha ((2004) 10 SCC 131). The Supreme Court unequivocally stated:

"Neither Section 108 of the Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years' absence and being unheard of having elapsed before that time." (para 12, as quoted in Amardeep Kashyap v. State Of U.P., 2024 SCC OnLine All 417).

The Court in LIC v. Anuradha further clarified, "The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died." (para 14, cited in Suseela v. The Revenue Divisional Officer, 2020 SCC OnLine Mad 2768). This principle has been consistently followed by various High Courts (e.g., Gopal Bhimji Avte v. Manaji Ganuji Padval, AIR 1923 Bom 163; Narbada v. Ram Dayal, AIR 1968 Raj 48).

The Seven-Year Rule: Commencement and Proof

The presumption under Section 108 is triggered when 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 party seeking to invoke this presumption must first establish these foundational facts. The Madhya Pradesh High Court in Bahadur Singh v. Bunty Singh @ Nihal Singh (MANU/MP/0017/2015, assuming 2025 is a typo for 2015) noted, relying on LIC v. Anuradha, that if it is claimed the deceased went missing in a particular year, then it would be the starting point for calculating the period of seven years.

The phrase "those who would naturally have heard of him" implies persons with whom the missing individual had close relations, such as family members, close friends, or business associates, depending on the circumstances. The nature and extent of inquiries made to locate the missing person would also be relevant in proving that he has not been heard of.

Burden of Proof

As stated, Section 107 places the burden of proving death on the person who affirms it if the individual was alive within thirty years. Section 108 shifts this burden. Once it is established that a person has not been heard of for seven years by those who would naturally have heard of him, the burden of proving that he is alive shifts to the party who asserts that he is still living. The presumption of death is rebuttable; the opposing party can lead evidence to show that the person is, in fact, alive or was alive at a relevant point in time.

Application of Section 108 in Specific Contexts

Insurance Claims

The judgment in LIC Of India v. Anuradha ((2004) 10 SCC 131) is particularly instructive in the context of insurance claims. The Supreme Court held that the presumption of death under Section 108 does not automatically lead to the success of an insurance claim if the policy had lapsed due to non-payment of premiums. The Court emphasized that the presumption of death does not extend to the date of death. Therefore, if the policy had lapsed before the expiry of seven years or before the question of death was raised, the claim could be denied. Beneficiaries must ensure that insurance policies remain active through timely premium payments. The ruling underscored that the presumption cannot be used to revive a policy that has already lapsed under its terms.

Property and Succession Disputes

In property and succession matters, the precise date of death can be crucial. As established in N. Jayalakshmi Ammal (1995 Supp (1) SCC 27), mere reliance on Section 108 to presume death is insufficient if the claimant's rights depend on the death occurring at a specific time (e.g., after the enactment of a particular succession law). The party whose claim hinges on death occurring on or by a certain date must adduce affirmative evidence to prove that fact. Similarly, in Lal Chand Marwari (AIR 1926 PC 9), the Privy Council dealt with the limitation period for a suit concerning math properties, where the timing of the previous Mahant's death was critical. The Karnataka High Court in Shankareppa v. Shivarudrappa Maharudrappa Biradar (AIR 1963 Mys 115) considered Section 108 in a suit involving adoption and claim for a share in property, noting that the presumption of death would arise on the date the suit was filed, provided the conditions were met.

Service Law and Compassionate Appointments

Section 108 is frequently invoked in service law, particularly for claiming terminal benefits or compassionate appointments for dependents of missing employees.

The Allahabad High Court in Ramakant Singh v. State Of U.P. (2011 (3) UPLBEC 1902; 2011 SCC OnLine All 661) held that Section 108 of the Evidence Act comes into play for presuming civil death in the context of compassionate appointments. The Court, referencing Ajay Kumar Tewari v. Dy. Inspector General of Police (2005 ESC (Alld) 671), affirmed that Section 108 would be applied for claiming compassionate appointment (also see Suryansh Trivedi v. State of U.P., 2015 (5) ADJ 230; District Judge v. Saurabh Kumar, 2014 SCC OnLine All 16198).

A recurring issue is whether a formal court declaration of civil death is mandatory. The Calcutta High Court in Narayan Nayak v. State Bank Of India And Ors. (2002 (3) LLJ 1013 (Cal)) observed that when a person has not been heard of for seven years, death is presumed under Section 108, and the insistence on a court decree by the bank was questioned, especially when retiral benefits had already been paid.

The Jharkhand High Court in Bijay Kumar Pradhan v. State Of Jharkhand (2013 SCC OnLine Jhar 1417) held that there is no distinction between civil death (under Section 108) and natural death for the purpose of compassionate appointment, as in both cases, the family loses its bread earner.

An interesting nuance arises regarding the *date* of presumed death for service benefits. While the general rule (as per LIC v. Anuradha) is no presumption as to date, some High Court judgments in service matters have taken a slightly different approach, often guided by welfare considerations or specific rules/circulars. For instance, the Punjab & Haryana High Court in Central Warehousing Corporation And Others v. Lachhami Devi (2019 SCC OnLine P&H 701) referred to a Kerala High Court decision (Indira v. Union of India, 2005 (3) KLT 140) suggesting that for family benefits, the presumption of death could relate back to the date the person went missing, once the seven-year period elapses. 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, but it is permissible for the Court to raise a suitable presumption regarding the date of presumed death depending upon the attendant circumstances and other reliable material on record, stating Section 108 is not exhaustive. The Madras High Court in Suseela v. The Revenue Divisional Officer (2020 SCC OnLine Mad 2768) also noted government circulars regulating benefits in cases of disappearance.

Requirement of Court Declaration

While a suit for a declaration of civil death is a common recourse, particularly to obtain an authoritative pronouncement (as was done in Ramakant Singh), Section 108 itself is a rule of evidence that allows a court to draw a presumption in any proceeding where the question of a person's life or death is in issue. The Allahabad High Court in Ramakant Singh, even though a suit was filed, noted the Supreme Court's view that it was not strictly necessary to file a suit for the presumption to be drawn. The Kerala High Court in Vareed v. Sukumaran (AIR 1988 Ker 93) suggested that an application might be made to the proper court asking leave to presume death, or for the appointment of someone to look after the affairs of the disappeared individual.

Procedural Aspects and Evidentiary Considerations

To invoke Section 108, the party must lead evidence to prove that the person has not been heard of for seven years by those who would naturally have heard of him. This usually involves testimonies from close relatives and evidence of inquiries made (e.g., police reports, newspaper publications). The sufficiency of such evidence is a matter for the court to decide based on the facts of each case. The presumption is rebuttable, and the opposing party can adduce evidence to show that the person is alive or was alive at the relevant time.

Distinguishing from Other Statutory Provisions

It is important to note that Section 108 of the Indian Evidence Act, 1872, dealing with the presumption of death, is distinct from provisions bearing the same section number in other statutes. For example, Section 108 of the Customs Act, 1962, grants power to customs officers to summon persons to give evidence and produce documents, as discussed in cases like Union Of India v. Padam Narain Aggarwal And Others ((2008) 13 SCC 305) and Sampad Narayan Mukherjee v. Union Of India And Others (2019 SCC OnLine Cal 2969). These provisions serve entirely different purposes and should not be confused with Section 108 of the Evidence Act. Similarly, Section 106 of the Evidence Act, which deals with the burden of proving facts especially within the knowledge of a person (as discussed in Dharmendra Rajbhar v. State Of U.P., 2021 SCC OnLine All 795, and the misattributed reference in Emperor v. Bankatram Lachiram, ILR (1904) 28 Bom 533, which actually describes Section 106), operates on a different principle than the specific presumption under Section 108.

Conclusion

Section 108 of the Indian Evidence Act, 1872, provides a vital legal mechanism for addressing situations involving long-unexplained absences. The judiciary has consistently interpreted this provision to mean that while the fact of death can be presumed after seven years of a person being unheard of, the precise date of death is not a matter of presumption and must be proved by the party who asserts it. This distinction is paramount in various legal contexts, from insurance claims, where it affects policy validity, to property disputes, where it impacts inheritance rights.

While the core principle regarding the absence of presumption as to the date of death remains steadfast, particularly as laid down by the Supreme Court in LIC v. Anuradha, some nuances have emerged in service law jurisprudence concerning the effective date for granting terminal or family benefits. These are often influenced by the welfare objectives underlying such benefits and specific governmental policies. The courts continue to apply Section 108 pragmatically, balancing the need for legal certainty with the specific circumstances of each case, ensuring that the presumption serves its intended purpose without causing undue hardship or injustice. The careful application of this rule of evidence remains essential for the orderly resolution of legal disputes contingent upon the unfortunate event of a person's prolonged disappearance.