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Case Number

S.B Civil Regular Second Appeal No. 202 of 1965

Attorney(S)

Sumer Chand Bhandari, for Appellants;
M.L Shrimal, for Respondent

Judges

Mr. Vedpal Tyagi

Acts

SECTION 108 EVIDENCE ACT
Indian Evidence Act. Section 108

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Smart Summary

Structured Summary of the Opinion — Second Appeal concerning Section 108, Evidence Act

Factual and Procedural Background

Ram Prasad owned a house in village Gulgaon and certain agricultural land. He had not been heard of by his wife, Mst. Pani, for more than seven years. Assuming Ram Prasad to be dead, Mst. Pani executed a gift deed in favour of plaintiff Ram Dayal on 4 June 1962 and the plaintiff asserted he came into possession pursuant to that gift. On 20 July 1962 the defendants-appellants (Mst. Narbada and Bhura-lal) forcibly took possession of the properties and the plaintiff instituted a suit seeking a declaration that he was the real owner.

The defendants contested the suit, admitting only that Ram Prasad had not been heard of for more than seven years, but asserting that Ram Prasad was alive on 4 June 1962 and therefore Mst. Pani lacked authority to alienate his property by gift. The trial court held that the plaintiff failed to prove Ram Prasad was dead on 4 June 1962, found Mst. Pani not competent to alienate the ancestral property, and held the suit not maintainable. On appeal the Senior Civil Judge, Aimer, reversed the trial court by judgment dated 20 January 1965 and held that Ram Prasad should be deemed to have been dead at the time the gift deed was executed; the present second appeal challenges that appellate judgment.

Legal Issues Presented

What is the true scope of the presumption under Section 108 of the Indian Evidence Act—does it permit presuming the time of death (i.e., that death occurred at or before a particular earlier date such as the date of a gift deed) or only the fact of death after a period of seven years?
When can the presumption under Section 108 be drawn (i.e., what is the relevant point of time): at the date of a contested transaction (here, 4 June 1962), at the date the dispute first became material, or only at the date the dispute is brought before a court (the date of filing the suit)?
What is the effect of the presumption under Section 108 on the burden of proof—does it shift the onus to the person who asserts the person is alive, and from what date can that shifting be given retrospective effect?

Arguments of the Parties

Appellants' Arguments

It was conceded that Mst. Pani executed the gift deed, but the defendants challenged her authority to alienate Ram Prasad's property on the ground that unless it was established he had died on or before 4 June 1962, the property did not vest in her and she could not validly gift it.
Relying on Section 108, the appellants argued that no presumption can be drawn that death of a person not heard of for seven years occurred at the end of seven years or at any particular time within that period; therefore the exact time of death is not a matter of presumption but of proof by evidence and the onus to prove death at a particular time lies on the person who claims rights dependent on that fact.
The appellants relied on multiple precedents (listed in the opinion) to support the contention that, absent positive evidence of death on the date of the gift, the gift conferred no title on the plaintiff.

Respondent's Arguments

The respondent argued that Section 108 does not prescribe a presumption as to the exact time of death, but that the presumption under Section 108 extends to the fact of death at the expiration of seven years (i.e., when the person has not been heard of for seven years) and not to a specific earlier time.
The respondent further urged that the relevant point of time for raising the presumption is when the fact of death becomes material (for example, the date on which Mst. Pani executed the gift and thereby raised the question of ownership), and if the person had not been heard of for seven years prior to that date, the presumption would be that the person was dead on or before that date. The respondent relied on selected authorities (cited in the opinion) supporting this approach.

Table of Precedents Cited

Precedent	Rule or Principle Cited For (as stated in the opinion)	Application by the Court (how the opinion used or described the precedent)
In re Phene's Trusts (1870) 5 Ch. A. 139	Stated: if a person has not been heard of for seven years there is a presumption of death, but the time of death within that period is a matter of evidence and the onus of proving a particular time lies on the person who requires it.	Quoted by the Privy Council and discussed by this Court as the source of confusion; used to explain the traditional statement of the rule that the time of death is not presumed.
Privy Council — AIR 1926 PC 9 (Lal Chand v. Ramrup Gir referenced)	Held that there can be no presumption that death occurred within the seven-year period or at its close; the presumption that a person is dead is the same whenever the period of disappearance is not less than seven years, but the date of death remains a matter for proof.	The Court relied on this Privy Council decision as a primary authority and adopted its clarification that the timing of death within the period is not a matter of presumption.
Gopal Bhimji v. Manaji Ganuji — AIR 1923 Bom 163	Relied upon by appellants to support that the exact time of death is a matter of proof and not presumption.	Listed among authorities on the side of the appellants; the opinion groups it with other cases that hold time of death must be proved.
Ramchandra Sadashiv v. Keshav Dhondu — AIR 1923 Bom 208	Relied upon by appellants for the proposition that the date of death within seven years must be proved.	Included in the list of cases relied upon by appellants to support that presumption does not fix time of death.
Rekhab Das v. Mst. Sheobai — AIR 1923 All 495	Relied upon by appellants for the same principle that time of death is not presumed.	Grouped among several decisions cited by appellants; the opinion notes such authorities supported the appellants' position historically.
Jeshankar v. Bai Divali — AIR 1920 Bom 85 (2)	Early authority (Bombay/Allahabad High Courts) taking the view that timing of death is a matter of proof.	The opinion states that, even before the Privy Council dictum, Allahabad and Bombay High Courts adopted the same view in this case and others.
Punjab v. Natha — AIR 1931 Lah 582 (FB)	Listed among authorities relied upon by appellants for the proposition that timing is for proof.	Mentioned as part of the corpus of cases supporting the appellants' position; no separate application beyond being cited.
Ram Kali v. Narain Singh — AIR 1934 Oudh 298	Relied upon by appellants on the time-of-death-as-proof principle.	Listed among cases cited by appellants; used to show consistent judicial approach in earlier decisions.
Vithabai Dattu v. Malhar Shankar — AIR 1938 Bom 228	Relied upon similarly to show timing is matter of proof.	Included in appellants' list; treated as supporting precedent.
Wall Mohd. v. Gaman — AIR 1944 Pesh 29	Relied upon by appellants to support rule on time of death.	Listed among the cited cases relied upon by the appellants.
Mt. Harnam Kaur v. Mt. Ratna — AIR 1949 EP 267	Relied upon by appellants for the same general proposition.	Mentioned in the opinion as one of the authorities cited by the appellants.
Ramabai v. Saraswathi — AIR 1953 Trav. Co. 114	Relied upon by appellants to support their contention regarding proof of time of death.	Included in the list of cases on which appellants relied.
Huseinny J. Bhagat v. Life Insurance Corporation of India — AIR 1965 Mad 440	Relied upon by appellants (as cited in the opinion).	Included in the catalogue of authorities relied on by appellants; the opinion does not detail a separate ruling from this case.
Ram Lal v. Ram Niwas — ILR (1959) 9 Raj 276 (Ramlal's case)	Held that while there is a presumption of death after not being heard of for seven years, there is no presumption as to the date of death; where no specific date can be proved, the earliest date which can be presumed is the date on which the suit was filed (no further retrospective effect).	The Court in this appeal adopted and expressly agreed with the reasoning of this decision (citing Modi J.), treating it as a sound rule and applying it to hold that the earlier date (4 June 1962) could not be presumed as the date of death in the absence of proof.
K. Venkateswarlu v. K. Bapayya — AIR 1957 Andh Pra 380	Relied upon by the respondent to support that Section 108's presumption extends to the fact of death at the expiration of seven years; not to the date of the suit per se.	The opinion records that this decision was relied upon by the respondent and that the Andh. Pra. High Court, after scrutiny, concluded the presumption extends to death at the expiration of seven years but not that the presumption is necessarily the date of the suit.
Shankareppa v. Shivarudrappa — AIR 1963 Mys 115	Relied upon by the respondent; held that the relevant point of time is when the fact of death becomes material and if seven years had passed before that date, the presumption applies as of that date.	The opinion summarizes this Mysore decision and cites it as authority for the view that the presumption is available when the fact becomes material (e.g., the date of the contested transaction), although the Court here ultimately rejected applying that rule to the present facts.
B. Veeramma v. G. Chinna Reddi — AIR 1914 Mad 505	Cited as authority for the proposition that Section 108 does not state the presumption is that the person concerned was dead on the date of the suit.	Referenced in the opinion (in the discussion of the Mysore case) to note that Section 108 does not itself fix a presumption that the person was dead on the date of suit.
AIR 1923 Bom 163 (as repeated reference)	Cited again among Bombay decisions reflecting the earlier view.	Referenced as part of the historical set of authorities noted by the Court.

Court's Reasoning and Analysis

The Court began by identifying Section 108 of the Evidence Act and its position as a proviso to Section 107. Section 108 provides 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 shifts to the person who affirms it.

The Court focused on two distinct legal points: (i) the difference between the presumption of death (the fact that the person is dead) and the presumption as to the time of death (i.e., at what point in the seven-year or longer period the death occurred), and (ii) the temporal moment from which the presumption under Section 108 may be drawn (whether it can operate retrospectively to an earlier private act such as a gift deed or whether it only becomes operative when the dispute is placed before a court).

The Court relied centrally on the Privy Council decision (AIR 1926 PC 9) which had quoted In re Phene's Trusts and clarified that, while a presumption of death arises where a person has not been heard of for seven years or more, the time of death within that period is not a matter of presumption but of evidence. The Privy Council expressly rejected the notion that if the period of disappearance exceeds seven years the death may be presumed at its close; rather, the presumption is the same whenever the period is not less than seven years, and the precise date remains to be proved.

The Court observed that this view had been consistently followed in Indian courts and that some High Court decisions (including a judgment of this Court in ILR (1959) 9 Raj 276 — Ramlal's case) had held that, where no specific date of death is proved, the earliest date on which the person can be presumed not to have been alive is the date the suit was filed and that the presumption cannot be given a further retrospective effect.

The respondent's submissions (relying on K. Venkateswarlu and Shankareppa) urging that the relevant moment for drawing the presumption is when the fact of death becomes material (for instance, the date of the gift) were considered. The Court explained that Section 108 is a provision about burden of proof and operates when a dispute is before a court — the moment for shifting the burden is when the question is put to a court and the lis arises. In consequence, the Court found persuasive the reasoning that the presumption under Section 108 can be drawn earliest when the dispute is brought to the court (i.e., on the date of the suit), and not given retrospective effect beyond that date.

Applying these principles to the facts, the Court found it could not accept that Ram Prasad was dead on 4 June 1962 (the date of the gift). The Court emphasized that proof that Ram Prasad was dead on that specific date was wholly lacking. Absent such proof, the properties did not devolve on Mst. Pani and therefore her gift could not confer a valid title on the plaintiff.

Holding and Implications

HOLDING: The appeal of the defendants-appellants is ALLOWED. The Court held that the presumption under Section 108 does not permit presuming the date of death within the seven-year period without positive evidence of that date, and the presumption can be drawn at the earliest when the dispute is before a court (the date of the suit) and cannot be given a retrospective effect earlier than that date in the absence of proof.

Direct consequence for the parties: The plaintiff's suit is dismissed with costs throughout because the plaintiff failed to prove that Ram Prasad was dead on 4 June 1962 when Mst. Pani executed the gift deed; therefore Mst. Pani had no authority to alienate her husband's property and the gift did not confer a valid title on the plaintiff.

Broader implications: The opinion reaffirms the principle (following the Privy Council and earlier Indian decisions, including ILR (1959) 9 Raj 276) that Section 108 creates a presumption of death where a person has not been heard of for seven years or more, but the precise date of death within that period remains a matter for proof. The Court emphasised that Section 108 functions as a rule about the burden of proof in disputes before courts; accordingly, the presumption normally becomes operative when the question is litigated and cannot, absent evidence, be given retrospective effect to a date before the dispute was brought to court.

The opinion therefore resolves the controversy in favour of the view that the burden-shifting under Section 108 operates in the context of litigation and that timing of death remains a fact to be proved when specifically relied upon to establish titles or rights that depend on that specific date.

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Narbada v. Ram Dayal

1. This defendants' second appeal raises an important question about the true scope of presumption under Section 108 of the Evidence Act, and it arises out of the following circumstances:

2. Ram Prasad had a house in village Gulgaon where he also held certain agricultural land. He was not heard of by his wife Mst. Pani for more than seven, years and therefore she made a gift of the property of Ram Prasad in favour of plaintiff Ram Dayal on 4th June, 1962, assuming that Ram Prasad had died. The plaintiff contended that he came in possession of these properties after the same were gifted to him by Mst. Pani but on 20th July, 1962, the defendants-appellants Mst. Narbada and Bhura-lal forcibly took possession of these properties and therefore a suit was filed by the plaintiff for the declaration that he was the real owner of the properties.

3. The defendants contested the suit and pleaded that Ram Prasad was alive on the 4th June, 1962, when the gift deed was executed by Mst. Pani in favour of the plaintiff and therefore the plaintiff had no right to file a suit. It is, however, admitted by both the parties that Ram Prasad had not been heard of for more than seven years.

4. The trial court held that the plaintiff had failed to prove that Ram Prasad was dead on the 4th June, 1962 and therefore Mst. Pani was not competent to alienate the ancestral property of Ram Prasad by way of gift to the plaintiff and hence the suit was not maintainable.

5. An appeal was preferred against the judgment and decree of the trial court and the learned Senior Civil Judge, Aimer, bv his judgment dated the 20th January, 1965, reversed the decision of the trial Court and held that in the circumstances of the case Ram Prasad shall be deemed to have been dead at the time when the gift deed was executed by Mst. Pani in favour of the plaintiff and therefore the plaintiff was entitled to a decree in the suit. It is against the said appellate iudgment that this second appeal has come to this Court.

6. It is not disputed by the defendants-appellants that Mst. Pani had executed the gift deed in favour of the plaintiff-respondent but the defendants challenge the authority of Mst. Pani to alienate the property of Ram Prasad by way of gift on the ground that unless it was established that Ram Prasad had died on or before 4th June, 1962 the property of her husband did not vest in Mst. Pani and therefore she was not competent to dispose it of. It was also contended that under Section 108 of the Evidence Act no presumption can be drawn that the death of Ram Prasad who was not heard of for seven years or more had taken place either at the end of seven years or at any particular time within that period, and therefore unless it was proved by the positive evidence that Ram Prasad was not alive on the date when the deed of gift was executed, the gift could not confer any valid title on the plaintiff to maintain the present suit.

He also urged that the exact time of the death of a person who has not been heard of for seven years is not a matter of presumption but of proof by evidence and the onus of proving the fact that such a man died at a particular time within a period of seven years or thereafter lies on the person who claims a right for the establishment of which that fact is essential. In support of this contention, he placed reliance on Gopal Bhimji v. Manaji Ganuji, AIR 1923 Bom 163; Ramchandra Sadashiv v. Keshav Dhondu, AIR 1923 Bom 208, Rekhab Das v. Mst. Sheobai AIR 1923 All 495, Lal Chand v. Ramrup Gir, AIR 1926 PC 9, Punjab v. Natha, AIR 1931 Lah 582 (FB), Ram Kali v. Narain Singh, AIR 1934 Oudh 298, Vithabai Dattu v. Malhar Shankar, AIR 1938 Bom 228, Wall Mohd. v. Gaman, AIR 1944 Pesh 29, Mt. Harnam Kaur v. Mt. Ratna, AIR 1949 EP 267, Ramabai v. Saraswathi, AIR 1953 Trav. Co. 114, Huseinny J. Bhagat v. Life Insurance Corporation of India, Madras, AIR 1965 Mad 440 and Ram Lal v. Ram Niwas, ILR (1959) 9 Raj 276.

7. Learned counsel appearing on behalf of the respondent, on the other hand, urged that Section 108 of the Evidence Act does not lay down any presumption as to how long the person concerned must be deemed to have been alive or at what time he is dead but the presumption under Section 108 of the Evidence Act extends to the fact of death at the expiration of seven years and not to the time of death in a particular time. In support of this proposition he relied on K. Venkateswarlu v. K. Bapayya, AIR 1957 Andh Pra 380 and Shankareppa v. Shiva rudrappa, AIR 1963 Mys 115

8. In view of these rival contentions raised by learned counsel for the parties, it becomes necessary for me to examine the exact scope of the presumption under Section 108 of the Evidence Act. Section 108 of the Evidence Act reads as follows:--

"Section 108. 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."

9. This section is a proviso to Section 107 of the Act which lays down that when a man is shown to be alive within thirty years, the burden of proving that he is dead is on the person who affirms it, but under Section 108 the matter stands otherwise and it 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 and according to this provision the burden to prove that he is alive shifts to the person who affirms it.

10. The basic authority relied upon by learned counsel for the appellants in this case is the Privy Council case of AIR 1926 PC 9. Their Lordships of the Judicial Committee quoted in that case with approval the following well-known passage from In re, Phene's Trusts, (1870) 5 Ch. A. 139:

"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."

And then they proceeded further:

"Following these words, it is constantly assumed -- not perhaps unnaturally -- that where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This of course is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one of not less than seven years."

11. By making these observations, their Lordships of the Judicial Committee tried to remove the confusion that was then prevailing in the courts of law about the true scope of the English Statute on this subject on account of the aforesaid passage in (1870) 5 Ch. A. 139. By this judgment the Privy Council laid down that there can be no presumption of death of a person who has not been heard of for 7 years that he died within that period or at the close of that period. The presumption that such a person is dead would be the same if the period exceeds by seven years, say three times or four times of that period but when did he die will always be the subject-matter of proof like any other fact. This view has been consistently followed in Indian Courts except the two dissenting judgments of Mysore and Andhra Pradesh relied on by learned counsel for the respondent Even before this dictum was laid down by the Privy Council, Allahabad and Bombay High Court took the same view in Jeshankar v. Bai Divali. AIR 1920 Bom 85 (2), AIR 1923 Bom 163: AIR 1923 Bom 208 and AIR 1923 All. 495. In all the cases relied upon by the appellants it has been held that such a person, in the absence of the proof of the exact date about the death, shall be deemed that he is not alive on the day when the dispute arose about the death of the man and it has been brought for adjudication to the court of law.

12. Learned counsel for the respondent urged that there is no warrant on the language of the section for the view that if the exact date of death is not proved, the earliest date on which the death could be presumed is the date on which the suit was filed. He contended that the true rule should be that the presumption under Section 108 of the Evidence Act must be raised after the expiry of seven years since the person has not been heard of and the person must be deemed to have dead at least on the day when the dispute about his existence arose.

In this case, learned counsel pointed out that the dispute about the death of Ram Prasad arose on the day when his widow Mst. Pani executed the gift deed assuming that she was the owner of the property as it had devolved on her after the death of Ram Prasad and, therefore, on the 4th of June, 1962, it should be taken that Ram Prasad was not alive. In support of this view, he placed his reliance on AIR 1963 Mys 115. In that case one Irappa who was mentally deranged left his family house long back and that he had not been heard of for about twenty years prior to the suit. At the time of his disappearance he left behind him his wife Somawwa and a young son who also died after two or three years after Irappa had disappeared. In the year 1950 Somawwa adopted the plaintiff to her husband Irappa, assuming that Irappa was dead. After the adoption, which took place on 15-8-1955, a dispute arose about the share of the adopted son in the family property, and it was in those circumstances that the question was raised in the court as to when Irappa should be deemed to have dead. Their Lordships, after considering the various decided cases referred to them held:

''The language of Sec. 108 does not lend any assistance for the view taken by the first appellate Court. That section nowhere says that the presumption would be that the person concerned was dead on the date of the suit. Section 108 merely deals with the procedure to be followed, when a question is raised before a Court as to whether a person is alive or dead That section does not lay down any presumption as to how long the person concerned must be deemed to have been alive or at what time he died. See B. Veeramma v. G. Chinna Reddi, AIR 1914 Mad 505. In my opinion the relevant point of time at which the presumption under Section 108 is available is when the factum of the death of the person concerned becomes material. In the present case the question whether Irappa was alive or dead becomes material in 1955. If Irappa had not been heard of by persons who should have heard of him if he was alive for 7 years prior to 15-8-1955 then the presumption would be that he was dead on or before 15-8-1955."

13. In AIR 1957 Andh Pra 380, which has been relied upon in the Mysore case, their Lordships of the Andh, Pra. (High Court) after careful scrutiny of the decided cases, also came to the conclusion that the presumption under Section 108 of the Evidence Act extends to the fact of death at the expiration of seven years during which the person concerned was not heard of. They, however, negatived this view that the presumption is that the person is dead on the date of the suit.

14. This question as to when the death of the person who has not been heard of for seven years or more than seven years should be deemed to have taken place came up for consideration of this Court in ILR (1959) 9 Raj 276 and the learned Judge, after considering certain authorities, including the Privy Council case, came to the conclusion that although there is a presumption of death at the expiration of a period of not less than seven years in duration, there is no presumption that the death occurred at the end of seven years or at any other particular time during the period a person has not been heard of. Where a party relies on a specific date of death of a person, who has not been heard of for seven years or more, he must prove the specific date It was also laid down that where a person is not heard of for seven years or more and no specific date of death has been or can be proved, the earliest date on which it can be presumed that such a person was not alive shall be the date on which the suit was filed and it cannot be given a further retrospective effect.

15. Learned counsel for the appellants urged that the proposition laid down by this Court in Ramlal's case, ILR (1959) 9 Raj 276 is a sound rule of law, and his reasoning is that Section 108 of the Evidence Act falls in Chapter VII of the Act which relates to the burden of proof and the question of burden of proof can arise only when there is a lis between the parties which has been taken to the court of law and therefore he contended that the presumption under Section 108 can be drawn only when a case has been filed in a court of law, otherwise Section 108 is not at all attracted and, therefore, no presumption can thereunder be drawn about the death of a person prior to the date of the suit. I find force in this submission of Mr. Bhandari.

The occasion for drawing a presumption under Section 108 of the Evidence Act arises when the dispute regarding the death of a person who has been unheard of for seven years is raised in a court of law and it is only then that the question of the burden of proof would arise under the Indian Evidence Act. Section 108 obviously relates to the question of burden of proof in a matter before a court of law and therefore the presumption about the death of a person under this provision of law can earliest be drawn when the dispute is brought to the Court. In this view of the matter, I am in respectful agreement with Modi J. that death can be presumed on the date on which the suit was filed and it cannot be given a further retrospective effect

16. In the light of the aforesaid discussion it is difficult for me to accept the contention that Ram Prasad was dead on 4th June, 1962 when Mst. Pani made a gift of her husband's property to the plaintiff. Unless it was proved, which proof is wholly lacking in this case, that Ram Prasad was dead on the day of the execution of the gift deed the properties did not devolve on Mst. Pani and therefore the gift made by Mst. Pani did not confer any valid title on the plaintiff.

17. The appeal of the defendants-appellants is, therefore, allowed. The suit of the plaintiff shall stand dismissed with costs throughout.

Narbada v. Ram Dayal

Structured Summary of the Opinion — Second Appeal concerning Section 108, Evidence Act

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Narbada v. Ram Dayal

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