The presumption of death under Section 108 of the Indian Evidence Act extends only to the fact of death and not to the time of death.

R.M. Sahai, J.

In this petition directed against the order of the Deputy Director, the only controversy that now survives for consideration is whether presumption of law raised under Sections. 107 and 108 of the Indian Evidence Act in relation to a person who has not been heard of for seven years by those who would have naturally heard of him extends to the death or also to the time of death at any point within seven years or immediately after expiry of the aforesaid period.

2. There appears to be no judicial divergence that Section 108 enacts a rule of legal presumption that a person not heard of for seven years by those who would naturally have heard of him shall be ; presumed to be dead. But there is no unanimity in respect of the point when death shall be presumed to have taken place. In Shankarappa v. Sheo Durappa AIR 1963 Mys 115 a Division Bench of the Mysore High Court relying on two English decisions in Chipchase v. Chipchase 1939 3 AER 895 and Watkins v. Watkins 53 AER 1113 agreed with the principle laid down by the Madras High Court in Balnicken v. Achmanicken AIR 1921 Mad 285 and held :

In a case where the point of time of which the death has to be referred, may be placed indifferently either wherein the seven years or after the lapse of seven years (it not being necessary to show that the person lived during the same year), there is a presumption after the lapse of seven years in favour of the death and it is for the other side to displace the presumption and the party relying on the presumption is entitled to succeed if no evidence is offered by other side.

3. In Venkateswarly v. Bappaiya AIR 1957 AP 381, a Division Bench of Andhra Pradesh High Court held:

Now the question is whether there is any warrant either on the language of the section or on the authority of the decided cases, for the view that if the exact date of death is not proved the earliest date on which the death could be presumed is the date on which the suit was filed. The true rule is that, the presumption u/s 108 of the Evidence Act extends to the fact of death at the expiration of seven years and not to the time of death at any particular period. There is no presumption that death took place at the end of seven years or at any particular time within that period. The exact time of death is not a matter of presumption but of proof by evidence, and the onus of proving that death took place at a particular time within the period of seven years lies on the person who claims a right for the establishment of which that fact is essential. If that is the true rule death cannot be presumed to have occurred on the date on which the suit was filed. It may be presumed that the man is not alive by the date of the institution of the suit but the presumption cannot be that he is dead on that date.

4. On the other hand in Huseinny J. Bhagat and Another Vs. Life Insurance Corporation of India, Madras, AIR 1965 Mad 440, it was held that in absence of any evidence in respect of the exact time of death the only conclusion possible was that the death shall be presumed at the time when the question arose (date of plaint). To the same effect are the decisions reported in AIR 1967 Orissa 71; AIR 1943 TC 114 and AIR 1944 Pat 29.

5. As regards this Court it is settled that the presumption which is enacted by Section 108 of the Indian Evidence Act is that the party is dead at the time of the suit. See Mohd. Sherif v. Bande Ali ILR All 36 ; Rekhab Das Vs. Musammat Sheobai and Another, AIR 1923 All 495.

6. Section 108 deals with the presumption of death and it is proviso to Section 107 which deals with the presumption of continuance of life. The word 'when' in the beginning of Section 107 is significant. It indicates that the presumption contained in these sections is to be drawn “when the question is”. The question for purposes of presumption arises only when a suit is instituted. The presumption regarding continuance of life or death therefore has to be drawn when the s