The presumption of death under Section 108 of the Evidence Act supersedes the time of presumption provided in Hindu Law and Hanafi law. This presumption of civil death is tantamount to physical death in the eye of the law.

( 1 ) IT is alleged that the father of the petitioner has been missing since July, 1992. F. I. R. was lodged before the appropriate police Authority. Newspaper publications were also made. In the meantime, more than 7 years have passed. The petitioner had applied for appointment on compassionate ground presuming death of his father.

( 2 ) THE Respondent-Bank by its letter dated February 1, 2001 asked the petitioner to furnish some documents including a copy of the decree of the competent Court declaring civil Death of the employee. The petitioner had furnished all the documents except the decree of a competent Court declaring 'civil death' of the employee.

( 3 ) IT is now contended by the learned counsel appearing on behalf of the petitioner that the Respondent-Authority cannot insist upon a decree of a competent Court declaring 'civil Death' of the employee. She relied on a decision of the Andhra Pradesh High Court in the case of Chief Engineer, Central Zone, A. P. State Electricity Board, Vijaywada and Others v. K. Naga Hema reported in 1996-I-LLJ-1121 in support of her contention.

( 4 ) THE learned counsel for the Respondent- State Bank of India had pointed out that the retiral benefits payable to the deceased father of the petitioner have since been paid. She also prays that unless a copy of the decree of the competent Court declaring'civil Death' of the employee is furnished, it is not possible for the bank to presume the employee as dead.

( 5 ) THE learned counsel for the Respondent- State Bank of India insists that the case of the petitioner will be considered within 3 months from the date of furnishing a copy of the decree of the competent Court declaring 'civil Death' of the employee, to the Bank.

( 6 ) THE learned counsel appearing for the respondent No. 4, however, took a neutral stand.

( 7 ) AFTER hearing the respective Counsel appearing for the parties, it appears that the father of the petitioner is alleged to have been missing since 1992. On the expiry of 7 years from the date of such missing, legal death is presumed for all purposes.

( 8 ) IN the decision in the case of K. Naga hema (supra) it was so held by a Division bench of Andhra Pradesh High Court in fact, under the provisions of Section 108 of the evidence Act, death is presumed when a person I has not been heard of for 7 years by those who would naturally have heard him if he had been alive. Therefore, having regard to the legal proposition, particularly when the Bank had already accepted the legal death by its conduct viz. by the payment of retiral benefits to the heirs of the missing employee, the death is already presumed by the Bank.

( 9 ) THE rule in Section 108 of the Evidence act supersedes the time of presumption provided in the Hindu Law as well as Hanafi law which are 12 years and 30 years respectively; (Penduri v. Jaladhi) 43 MLJ 725. It is a rule of presumption. By reason of the language applied in Section 108 of the Evidence act, the burden to prove that such person is alive, lies on the person who affirms it, despite the person having not been heard of for 7 years by persons who would have heard of him if he were alive. The presumption of civil death or fictional death by reason of Section 108 of evidence Act tantamounts to physical death in the eye of law. On this proposition I am supported by Parikhit v. Champa AIR 1967 orissa 70. Thus the presumption is a rule of evidence. By fiction the death is presumed in such circumstances unless otherwise proved by him who controverts it. Therefore there cannot be any question of obtaining a decree of declaration of civil death by the near relatives who have not heard of him. If some one insists that he is not dead then it is he who has to prove it. In asmuch as the burden lies on the person who asserts that affirmative; (Agha Mir v. Mir mudasir AIR 1944 PC 100 ). Therefore no suit lies for a declaration that a person not having been heard of for 7 years was deemed to be dead