The presumption of death under S. 108 of the Indian Evidence Act arises only at the point of time when the question arose after the lapse of 7 years, and not at any earlier point of time.

JUDGMENT :- This second appeal involves a question of considerable interest, upon which I am not able to find many decided authorities in this country, there are, indisputably, English authorities, but, for reasons I shall state later, I am certainly doubtful if those authorities could be implicitly followed in India. The broad facts are not in controversy, and a very brief conspectus of them will be sufficient for the disposal of the appeal.

2. There was a certain T.J. Bhagat, a young man of about 24, who according to the record, disappeared from his house on 12-12-1950 and has not been subsequently heard of. It is proved that this young man was married, that he was living with his parents and brothers, and that he was receiving a regular allowance of Rs. 100 per mensem from Bhagat Estates Ltd., a family concern. His father-in-law inserted an advertisement in the "Hindu" in January 1951, along with u photograph, announcing a reward for the informer of the whereabouts of the missing man. There was also a complaint to the police. But these efforts were all in vain and, to this day, T.J. Bhagat, who is said to have disappeared on 12-12-1950, has not been traced. There were heavy insurances upon the life of this young man, one policy with the Sun Life Assurance Co., of Canada and another with the Hindustan Co-operative Insurance Society now taken over by the defendant, Life Insurance Corporation of India.

3. About 5 or 6 years after the disappearance of this young man, his father, (the first plaintiff) preferred a claim in respect of one of the policies with the defendant-corporation, and some correspondence followed. It is not in dispute that the defendant-Corporation insisted on a decree from a competent court establishing the fact of death. That led to the suit from which the second appeal has emerged. The declaration actually sought for by the plaintiffs, legal representatives of the first plaintiff, was to the effect that T.J. Bhagat should be presumed to be dead as and from 12-12-1950, or at any rate from January 1951. The defendant-Corporation did not admit the allegations, put the plaintiff to strict proof of them, and contended that claims arising under the policies could not be directly the subject matter of the suit, but would have to be dealt with after enquiry, on their merits.

4. The learned First Assistant Judge of the City Civil Court, granted a decree declaring that T.J. Bhagat has not been heard of for at least 7 years prior to the institution of the suit and must, therefore, be presumed to be dead; indisputably, the declaration can have meaning and reference only to the date on which the action commenced, as regards the presumption of death. There was a first appeal to the learned Additional Judge of the City Civil Court, which was dismissed.

5. In this country, the presumption arising upon facts of this kind has been subject of statute; the Indian Evidence Act which deals with general presumptions under the law, declares in S. 108 that where 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. Since Bhagat was not heard of on and after 12-12-1950, the burden of proving that he was alive on the date of action was shifted to the defendant-Corporation. It seems to be incontrovertible that the defendant-Corporation did not discharge that burden of proof. In the light of those facts, the plaintiffs would clearly appear to be entitled to the declaration granted. But learned counsel for the plaintiffs (Appellants in the second appeal) strenuously contends that the declaration should be in the form it was sought for, namely, that Bhagat should be presumed to be dead as and from 12-12-1950, or, at any rate, from January 1951, when he failed to appear and drew the allowance of Rs. 100 which was the sole means of