Presumptions of Life and Death under Sections 107 and 108 of the Indian Evidence Act

Presumptions of Life and Death under Sections 107 and 108 of the Indian Evidence Act, 1872: Doctrinal Foundations, Judicial Trajectory, and Contemporary Applications

1. Introduction

Sections 107 and 108 of the Indian Evidence Act, 1872 (hereinafter “Evidence Act”) codify two complementary presumptions that control civil and criminal litigation whenever the existence or continuance of human life is disputed. Section 107 presumes the continuance of life if a person is shown to have been alive within thirty years, whereas Section 108—drafted as a proviso to Section 107—presumes death where a person has not been heard of for seven years by those who would naturally have heard from him if he were alive. These provisions sit at the confluence of substantive inheritance law, contractual obligations (particularly life insurance), and criminal jurisprudence involving missing persons. The Supreme Court’s decision in Life Insurance Corporation of India v. Anuradha (2004) has become the contemporary lodestar, yet a century-long jurisprudential arc—from Emperor v. Bankatram Lachiram (1904) to Ramnath Cherwa v. State of Chhattisgarh (2024)—demonstrates the provisions’ evolving doctrinal nuances.

2. Statutory Framework

  • Section 107: Where the question is whether a person is alive or dead and it is shown that he was alive within thirty years, the burden of proving that he is dead lies on the person who affirms the death.
  • Section 108 (proviso to Section 107): Where it is proved that a person has not been heard of for seven years by those who would naturally have heard of him if alive, the burden shifts to the person who asserts that the person is alive.

These rules operate within Chapter VII of the Evidence Act (“Of the Burden of Proof”) and embody a policy choice: evidentiary burdens should track ordinary human experience about communication and visibility of living persons. The presumptions are rebuttable; they allocate the initial burden without obviating the need for proof if contested.

3. Jurisprudential Evolution

3.1 Early Common-Law Influences and the Privy Council

The Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir (1926) AIR PC 9 clarified that Section 108 merely establishes a presumption of fact of death, not of its exact time. Indian High Courts consistently echoed this limitation (e.g., Karpagambal v. Alamelu Ammal, 1988 Mad HC), rejecting arguments that death could be presumed at any anterior date convenient to the claimant.

3.2 Doctrinal Consolidation: LIC v. Anuradha (2004)

The Supreme Court, deciding two conjoined appeals, held that:

  • Section 108 permits a presumption only of the factum of death after the lapse of seven years, not of the precise moment within that period.
  • The claimant who relies on the presumption must still establish foundational facts: the missing individual’s identity, the absence of communication, and the class of persons who would “naturally have heard”.
  • Contractual stipulations (e.g., LIC Manual Rule 14 requiring premiums to be kept alive) cannot override the statutory presumption, but the lapse of a policy for non-payment may nevertheless defeat the substantive claim if policy conditions so dictate.

The judgment synthesised prior case law (N. Jayalakshmi Ammal v. Gopala Pathar, 1994; Gnanamuthu Udayar, 1960 Mad HC) and is now the primary authority cited by courts (see United India Insurance Co. v. Rafeeqa Bano, 2020 J&K HC).

3.3 Clarifying the Burden: Interaction with Section 106

Recent criminal jurisprudence has invoked Section 106 (special knowledge) in tandem with Sections 107/108. In Dharmendra Rajbhar v. State of U.P. (2021 All HC) and Ramnath Cherwa (2024 Chhattisgarh HC), courts reiterated that Section 106 never absolves the prosecution of its primary burden. The same logic applies to Section 108: the party invoking the presumption must discharge foundational facts; opposing parties may rebut by proof of life. Hence, presumptions under Sections 106, 107 and 108 coexist without inverting the golden thread of criminal law—that guilt must be proved beyond reasonable doubt (Ram Prasad @ Munna v. State of Chhattisgarh, 2023).

4. Substantive Issues and Doctrinal Controversies

4.1 Time of Death

Courts uniformly hold that the presumption does not extend to the date of death. The claimant must furnish independent evidence if the exact timing is legally material (e.g., succession opening, applicability of particular statutes). N. Jayalakshmi Ammal illustrates the point: absence of proof that the missing coparcener died after the 1937 Hindu Women’s Rights to Property Act deprived the widow of statutory rights.

4.2 Continuance of Life v. Continuance of Legal Rights

In civil disputes, a claimant may invoke Section 107 to resist attempts to declare a person dead (e.g., pension or service benefits). Conversely, Section 108 aids claimants seeking estate administration or insurance proceeds. However, the presumption of death does not, by itself, vest title. The Supreme Court’s reasoning in Indrani Wahi v. Registrar of Cooperative Societies (2016) concerning nominations in cooperative societies, while not directly on Sections 107/108, reinforces the dichotomy between procedural entitlement (membership transfer) and substantive title (succession), underscoring that presumptions and statutory mechanisms address different juridical interests.

4.3 Foundational Facts: “Not Heard Of”

Whether a person has been “heard of” is fact-intensive. Communications in the digital era complicate the inquiry: email, social media presence, or digital footprints may rebut the presumption even absent physical sightings. Courts increasingly demand affirmative proof of due inquiry (Zishan Khan v. District Inspector of Schools, 2012 All HC), placing the onus on claimants to establish diligent search among the natural circle of acquaintances.

4.4 Insurance Contracts and Policy Conditions

Post-Anuradha, insurers cannot insist upon court decrees of civil death as a condition precedent to claim processing. Nonetheless, they may legitimately rely on policy lapsation. The 1999 J&K High Court decision in LIC v. Anuradha (upheld in 2004) rejected the insurer’s argument that premiums must be kept current during the seven-year hiatus, reasoning that the statutory presumption nullifies such circular requirements.

5. Applications in Criminal and Accident Litigation

5.1 Homicide Prosecutions Involving Missing Victims

In murder trials where no body is recovered, prosecutors rarely invoke Section 108 because a seven-year waiting period is impractical. Instead, they rely on circumstantial evidence and Section 106 burdens. The Supreme Court in Jarnail Singh v. State of Punjab (2009) emphasised reliable identification of decomposed remains rather than the statutory presumption of death.

5.2 Motor Accident Claims

The J&K High Court in United India Insurance Co. v. Rafeeqa Bano (2020) considered Sections 107/108 where a victim’s body was never recovered after a gorge accident. The Tribunal awarded compensation without waiting seven years, accepting eyewitness evidence of the accident. On appeal, the insurer invoked the statutory presumptions; the High Court upheld the award, distinguishing between presumption of death and proof of accidental death through direct evidence. The case illustrates that Sections 107/108 are default rules; they recede when positive evidence exists.

6. Critical Assessment and Reform Perspectives

Although the seventy-year-old text of Sections 107 and 108 continues to function effectively, digital connectivity and ease of cross-border travel invite reconsideration of the seven-year threshold. Comparative jurisdictions (e.g., the U.K. Presumption of Death Act 2013) have introduced judicial declarations sooner than seven years in specified circumstances (terror attacks, natural disasters). Indian Parliament may contemplate analogous amendments, balancing the need for certainty with protection against fraud.

Further, uniform procedural guidelines—akin to Order 33, Rule 6 of the Civil Procedure Code for indigent persons—could assist courts in verifying “not heard of” claims, standardising inquiries among family, employers, and digital service providers.

7. Conclusion

Sections 107 and 108 of the Evidence Act continue to serve as foundational pillars allocating evidentiary burdens in disputes over life and death. Judicial exposition—from Bankatram through LIC v. Anuradha to recent High Court decisions—has stabilised doctrinal uncertainties, particularly regarding the date of death and interplay with Section 106. While the statutory language remains robust, emergent societal and technological realities suggest a measured legislative review. Until then, the courts’ nuanced application—rooted in the principles of fairness and evidentiary pragmatism—ensures that these venerable presumptions remain fit for purpose in modern Indian jurisprudence.

References

  1. Indian Evidence Act, 1872, Sections 106, 107, 108, 114.
  2. Life Insurance Corporation of India v. Anuradha, (2004) 10 SCC 131.
  3. Life Insurance Corporation of India v. Anuradha, 1999 SRILJ 2529 (J&K HC).
  4. Indrani Wahi v. Registrar of Cooperative Societies, (2016) 6 SCC 440.
  5. Jarnail Singh v. State of Punjab, (2009) 9 SCC 719.
  6. Emperor v. Bankatram Lachiram, (1904) ILR 28 Bom 333.
  7. N. Jayalakshmi Ammal v. R. Gopala Pathar, 1995 Supp (1) SCC 27.
  8. Zishan Khan v. District Inspector of Schools, 2012 (Allahabad HC).
  9. Karpagambal v. Alamelu Ammal, 1988 (Madras HC).
  10. United India Insurance Co. v. Rafeeqa Bano, 2020 SCC OnLine J&K 656.
  11. Dharmendra Rajbhar v. State of U.P., 2021 SCC OnLine All 631.
  12. Ramnath Cherwa v. State of Chhattisgarh, 2024 SCC OnLine Chh 757.
  13. Ram Prasad @ Munna v. State of Chhattisgarh, 2023 SCC OnLine Chh 512.
  14. Sushilaben P. Dhruv v. Collector, 2018 SCC OnLine Guj 1524.
  15. Banumathi Gopalakrishnan v. Registrar, 2022 SCC OnLine Mad 4932.
  16. Lal Chand Marwari v. Mahant Ramrup Gir, AIR 1926 PC 9.