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.
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Comments:
Principle:
Section 108 lays down that when it is proved that a man 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 lies on the person who affirms it. Whereas the presumption under section 107 is rebuttal, the presumption under section 108 is about to fact of death. In order to qualify the latter presumption it has to be proved that the man in question has not been heard of for seven years by those persons who would naturally have heard of him, and they have taken all steps to trace him out and his whereabouts. Both presumptions under sections 107 and 108 come into play after a suit is instituted.
Presumption:
The presumption under this section is that if a person has been unheard of for a period not less than seven years, howsoever long the period of disappearance may be the only presumption and conclusion possibly would be that the person died when the question arose, that is the date of plaint, So long as the dispute is not raised before any Forum and in legal proceedings the occasion for raising the presumption does not arise.
No presumption as to time of death:
ADVERTISEMENTS:
The presumption under this section only extends to the fact of death of a person but not that at what time the man died. “The exact time of death is not a matter of presumption but of proof of evidence.” In a case, where only a period of 4Vi years had elapsed, section 108 was not applicable; the presumption under section 108 could not be drawn. In Md. Sharif v Bande Ali their Lordships of the Allahabad High Court held that “the only presumption is that ‘M’ is dead.
There is no presumption that he died in the first seven years or in the last seven years. The presumption merely is that he was dead……………………………… the burden of showing that he was alive being thrown upon the defendant if it was necessary for them to do so.” The Supreme Court in other cases also, held that there is no presumption of the exact time of death and the date of death has to be established on evidence by the person who claims a right for the establishment of which that fact is essential.
Even, otherwise, court may, in the circumstances of each case, make a presumption even regarding time of death. Where the death of a woman was not in question under section 108 the court shall presume that she was dead having not heard of for the period of seven years, it is itself not the ground to presume that she had died seven year prior to the date of institution of suit.
Compassionate appointment:
The question relates to time limit of five years prescribed in relevant rules for seeing compassionate appointment. For the purpose of deciding the case, assumption made that five years to be removed after seven years under section 108 had expired and thus the request for compassionate appointment was beyond time-limit of five years prescribed in relevant rules.