A has not been heard of for more than seven years. On whom the burden of proof lies that A is alive?

Question: A has not been heard of for more than seven years. On whom the burden of proof lies that A is alive? [HR.J.S. 2000]

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Answer

A person missing for long and not heard of for over seven years could be presumed to have died under Section 108 of the Indian Evidence Act, 1872 only on the day after the completion of seven years.

Section 108 of the Indian Evidence Act, provides that when it is proved that a person has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is living is shifted to the person who affirms it. Sec. 108 is an exception to the rule contained in Section 107.

This principle was upheld in the case of Ramrati Kuer v. Dwarka Prasad [AIR 1967 SC 1134] and the court said that if a person has not been heard for 7 years then there is a presumption that he is dead and the burden to prove that he is alive is shifted to the other side.

Thus, in the present case at hand, where A has not been heard of for more than seven years, and the burden of proving that A is alive is upon that person who affirms that fact that he is alive.

There is a general presumption of continuity of things. Section 107 provides that when a person is shown to have existed within the last 30 years, the presumption is that he is still alive and if anybody alleges that he is dead, he must prove that fact. This presumption is, however, not a very strong one. According to Section 108, if a person is not heard of for 7 years, the presumption is that he has died, and, if anybody alleges that he is still alive, he must prove that fact.

Thus, seven years absence creates a rebuttable presumption of death.

There is a simple presumption of death and not of the time of death, for which independent evidence is needed. The onus of proving that death took place at a particular time within the period of 7 years lies on the person who claims a right for the establishment of which that fact is essential.

In Muhammad Sharif v. Bande Ali (ILR (1911) 34 All 36), one M mortgaged certain property to the defendant in 1890. Thereafter he disappeared and nothing was heard of him again. His heirs filed a suit for the redemption of the mortgage 18 years after M’s absence. They contended that as M disappeared some 18 years ago, he must be presumed to have been dead for the last 11 years. It was held that presumption in Sec. 108 does not go further than the mere fact of death. There is no presumption that he died in the first 7 years or in the last 7 years.

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 the 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.

Further, the presumption would arise only on the lapse of seven years and would not apply on expiry of six years arid 364 days or any time short of seven years. The presumption can be raised only when the question is raised in court, tribunal or before an authority who is called upon to decide whether a person is alive or dead, not otherwise [LIC of India v. Anuradha (2004) 10 SCC 131].

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X