Report No. 69
Presumption of Life
Section 107
I. Introductory
48.1. Introductory.-
Human affairs ordinarily continue to exist for a certain period. On the basis of such continuity, various presumptions are founded. A state of affairs once known to exist can be presumed to continue to exis.- the period for which such continuance is presumed will, of course, depend on our usual experience.
48.2. Section 107.-
This principle is applied by section 107 in the narrow sphere of continuance of human life. The section provides that 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. This section is, however, subject to the next section, whereunder, if a person has not been heard of for seven years by those who would naturally have heard of him if he were alive, the burden of proving that he is alive is shifted to the person so asserting.
II. English Law
48.3. English law.-
In England, this presumption is a species of the general presumption of "continuance of a state of affairs". As the presumption is in favour of the continuance of life, the onus of proving the death lies on the party who asserts it.1
The late Professor Thayer wrote of "a general supposition of continuance, applicable to everything which has once been proved to exis.- to an orange as well as a ma.- a presumption which serves, in reasoning, to relieve from the necessity of constantly re-proving, from minute to minute, this once-proved fact of existence".2
The position in this regard has been lucidly stated thus by Phipson3 in his Manual-
"Another commonly met with (Sic) presumption of fact is the presumption of continuance. Any proved state of affairs may be presumed to have continued for some time. Thus, if a man is proved to have been alive on a certain date, it may well be inferred that he was alive on a slightly4 or even considerably later date,5 depending upon his state of health and mode of life."
In Lawson on Presumptive Evidence,6 the rule with regard to the presumption of life is thus summarised:
"Love of life is presumea (therefore suicide will not be presumed), and a person proved to have been alive at a former time is presumed to be alive at the present time until his death is proved or a presumption of death arises."7
Where a person is once shown to have been living, the law, in the absence of proof that he has not been heard of within the last seven years, will in general presume that he is still alive, unless after a lapse of time considerably exceeding the ordinary duration of human life. In the civil law, the legal presumption of life ceases at the expiration of one hundred years from the date of the birth, and the same rule appears to have been adopted in Scotland. In England, however, no definite period has been conclusively fixed during which the presumption is allowed to prevail.
1. Wilson (in re:), (1964) 1 WLR 214 (217) (reviews cases).
2 The late Professor J.B. Thayer Preliminary Treatise on Evidence, at Common Law, (1898), p. 348, cited in Axon v. Axon, (1937) 59 CLR 395.
3 Phipson Manual of Law of Evidence, (1972), p. 245.
4. Phene's Trusts (in re:), 1870 LR 5 Ch App 139.
5. R. v. Willshire, (1881) 6 QBD 366; Forster's Settlement (in re:), 1942 Ch 199.
6. Lawson Presumptive Evidence, p. 192, cited in Woodroffe's Evidence, (1941), p. 772.
7. Cross & Wilkins Outline of the Law of Evidence, (1971), p. 42.
48.4. Inference of fact allowed.-
Speaking of the English law, one may state that though there is no presumption of law as to the continuance of life1 an inference of fact might legitimately be drawn that a person who was alive and in health at a certain time, was alive a short time after. There is presumption of fact in favour of the continuance of life,2 and the onus of proving his death lies on the party asserting i t.3
Further, the fact of death may be proved by presumptive as well as by direct evidence. And the presumption of the continuance of life ceases at the expiration of seven years from the period when the person in question was last heard o.-a rule which, in India, is to be found in the next section.
1. (a) Lapsley v. Grierson, 1 HLC 498;
(b) Phene's Trusts (in re:), LR 5 a 139;
(c) R. v. Lumley, LR 1 CCR 196.
2. (a) Smartle v. Pentiallow, 2 Lord Rang 999;
(b) Throgmorton v. Walton, 2 Rs 461.
(c) Wilson v. Hegde, (1802) 6 RR 427.
3. (a) R. v. Wiltshire, 6 QBD 366;
(b) R. v. Jones, 15 Cox 284;
(c) Mac Darmaid v. Att.-Gen., 1950 Probate 218.s
48.5. No presumption of law in England.-
It should be noted that the presumption is not a presumption "of law" in England. The fact that someone was alive at an antecedent date may justify an inference that he was alive at a subsequent date.1 "This point is relied on so frequently that it is not uncommon for language to be used suggesting that the presumption of the continuance of life is the outcome of some special rule of law, but no decision suggests that this really is so."
In the U.S.A., it is stated that certain rebuttable presumptions have developed as a matter of expediency or public policy. Amongst them is the presumption that a person is presumed dead after seven years of unexplained absence.2
1. Cross & Wilkins Outline of the Law of Evidence, (1975), pp. 41-42.
2. Johns v. Burns, 6750 2d 265 (Ha 1953).
III. Period under Section 107
48.6. Reduction of period not favoured.-
We have considered the question whether the period of thirty years in section 107 should be reduced, having regard to the fact that, in some cases, it may produce an artificial consequence. After careful consideration, we have come to the conclusion that it may not be desirable to reduce the period. It is true that with the increasing complexity of life and growing urbanisation, the number of accidental deaths may increase; but it is also to be borne in mind that in general, the average span of life is increasing, not only in India but also in other countries, and to reduce the period already provided for in the section, might, in practice, create an artificial result in a larger number of cases than at present.
48.7. It is also to be pointed out that at least one exception to section 107 is created in section 108. Even where section 108 does not appl.- that is to say, where the statutory period of seven years under section 108 is not satisfie.- it is still open to the party on whom the burden of proving death lies, to produce cogent evidence to persuade the Court that death did, in fact, occur.
The definition of "proved" in section 3 reads-
"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
This may not be regarded as imposing an unduly stringent burden. We are not, therefore, inclined to recommend any reduction of the period in section 107.
IV. Suggestion of the Mysore High Court Considered
48.8. Suggestion made in Mysore case.-
So much as regards the section and the corresponding principle in English law. It remains now to refer to a suggestion made in a judgment of the High Court of Mysore with reference to this section. The High Court of Mysore made1 the following observations in that judgment:
"Before leaving this aspect, I should like to mention that under the changed circumstances, the continuance of section 107 would be a source of immense trouble. We are in an age of aeroplanes and sputniks. Death in unknown places and under unidentifiable circumstances is a matter of every day occurrence. That being so, section 107 would work to the detriment of the heirs of the deceased. Hence it might be advisable to delete that provision."
1. Shanknrappa v. Shivrudrappa, AIR 1963 Mys 115 (118), para. 19 (K.S. Hegde and Ahmed Ali Khan, JJ.).
48.9. Deletion of section 107 not favoured.-
We have given careful consideration to this suggestion, but, with great respect, we are unable to agree with it in its totality.1 The section is based on a sound principle of common sense. It is not, in its essence, a merely technical rule of evidence. Even outside the courts of law, laymen think a hundred times before they take a man whom they knew to have been alive, to be dead. Ordinarily for believing that he has died, they would require very reliable material in support. It is true that the scope of the material which laymen would regard as acceptable would be wider than the material admissible in a court of law. It is also true that laymen do not go by a fixed and immutable period (of 30 years), as in the section. These, however, are matters of detail. The principle underlying section 107 should not be regarded as unsound, even in the present circumstances.
1. For a milder amendment, see infra.
48.10. Recommendation to give discretion to the court.-
At the same time, we think that there is a case for modifying the section so as to allow the court a discretion not to draw the presumption of continuance of life, where it appears to the court likely that the person concerned was involved in an accident or calamity. Modification of the rigidity of the section is desirable to that extent.
V. Recommendation
48.11. We, therefore, recommend that the following proviso should be inserted below section 107, for the purpose mentioned above:
"Provided that where it appears to the court from the evidence that the person concerned had been involved in an accident or calamity in circumstances which render it highly probable that the accident or calamity caused his death, the court may, for reasons to be recorded, direct that the provisions of this section shall not apply."