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Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Presumption under Section 110 of the BSA Act: Several cases recognize that courts can adjudicate the existence or non-existence of presumptive death using Section 110 of the BSA Act, which dispenses with the need for full proof and allows for fact-finding based on preponderance of probabilities ["Savitribai W/o Rajhans Ambagade (Dead) through Legal Representatives VS Superintendent Engineer, Maharashtra State Road Development Corporation - Bombay"].In such matrimonial cases and other cases, Court dealing with such issue may adjudicate existence or non-existence of his/her presumptive death as fact-finding Court with the help of presumption as to presumptive death as provided under Section 110 of BSA Act... ["Savitribai W/o Rajhans Ambagade (Dead) through Legal Representatives VS Superintendent Engineer, Maharashtra State Road Development Corporation - Bombay"].
Distinction between Presumption and Declaration of Civil Death: Courts acknowledge that presumption of death (Section 108 of the Evidence Act) is a limited evidential presumption, not a declaration of civil death, which requires a separate court declaration. Presumption can be used as a procedural tool to infer death but does not automatically lead to a civil death declaration ["Amardeep Kashyap VS State Of U. P. Thru. Addl. Chief Secy. Msme Lko. - Allahabad"], ["Ganga Bai (Dead) Through Legal Representative (Plaintiff) Mahesh Kanwar v. Leela Bai and Others - Chhattisgarh"].
Application in Civil and Matrimonial Cases: Courts have applied these presumptions in civil suits for heirship, property, or matrimonial issues, often drawing inferences about the existence of death without requiring a formal declaration of civil death. For example, in cases where a person has not been heard of for 7 years, the presumption of death is invoked, and courts can proceed to determine legal heirs or status based on this presumption ["Chhaya W/o Govardhansingh Solanki VS Public At Large Senior Accountant Officer, Principle Controller Of Defense Accounts - Madhya Pradesh"], ["Saroj Gupta VS Sanjay Kumar Gupta - Calcutta"].
Simultaneous Deaths and Presumption: In cases involving simultaneous or uncertain deaths (e.g., common disaster), the law applies presumption that the younger survived until evidence proves otherwise. This presumption is also used in succession cases and to establish the timeline of death ["Madambath Rohini VS Devi - Kerala"].
Use of Presumption in Criminal Cases (Dying Declarations): While primarily related to criminal proceedings, courts recognize that dying declarations, which carry a presumption of truth, can be used to establish cause of death and sometimes support presumption of death in civil contexts ["Labanya Das, S/o. Sri Haricharan Das vs State Of Assam, Represented By Its Chief Secy. - Gauhati"], ["Mritunjaya @ Tinku VS State of U. P. - Allahabad"], ["Pranab Das @ Gopal Das VS Pradip Das - Calcutta"].
References:- ["Savitribai W/o Rajhans Ambagade (Dead) through Legal Representatives VS Superintendent Engineer, Maharashtra State Road Development Corporation - Bombay"]- ["Amardeep Kashyap VS State Of U. P. Thru. Addl. Chief Secy. Msme Lko. - Allahabad"]- ["Ganga Bai (Dead) Through Legal Representative (Plaintiff) Mahesh Kanwar v. Leela Bai and Others - Chhattisgarh"]- ["Chhaya W/o Govardhansingh Solanki VS Public At Large Senior Accountant Officer, Principle Controller Of Defense Accounts - Madhya Pradesh"]- ["Madambath Rohini VS Devi - Kerala"]- ["Labanya Das, S/o. Sri Haricharan Das vs State Of Assam, Represented By Its Chief Secy. - Gauhati"]- ["Mritunjaya @ Tinku VS State of U. P. - Allahabad"]- ["Pranab Das @ Gopal Das VS Pradip Das - Calcutta"]
In legal matters involving missing persons, families often seek clarity on whether someone can be presumed dead under Indian law. A common query is: find me cases that allow simultaneous application of declaration of presumption of death. This question typically arises under Section 108 of the Indian Evidence Act, 1872, which deals with the presumption of death after seven years of unexplained absence. But can this presumption be invoked alongside a court's declaration of civil death? Courts have addressed this in several judgments, allowing concurrent application under specific conditions. This post explores the legal framework, key cases, and practical considerations.
Section 108 states that if a person has not been heard of for seven years by those who would naturally hear of them, they are presumed dead—unless proven otherwise. Importantly, this is a rebuttable presumption that arises only when the question of death is raised in a legal proceeding, not automatically after seven years. P. Vasantha VS Southern Railway Rep. by its General Manager, Chennai - 2021 0 Supreme(Ker) 409
Courts emphasize that while the presumption confirms death sometime within the seven-year period, it does not fix the exact date or time of death. That must be proved by evidence. Sanwarmal Singhania VS State Of Assam - 2020 0 Supreme(Gau) 459Vidhan Chandra Pandey VS State Of U. P. Thur. District Magistrate, Pratapgarh - 2024 0 Supreme(All) 1425
As noted in one judgment: It will be noticed that in both the cases the presumption under section 108 was applied when the question actually arose before the Court. Narayana Pillai VS Velayuthan Pillai (unsound mind) represented by Lakshmi - 1962 Supreme(Mad) 370 This highlights that the presumption is procedural, triggered in court.
Civil death declaration, often sought via suits under the Specific Relief Act or succession laws, formalizes this presumption for property or inheritance purposes. The key issue: Can both operate simultaneously?
Indian courts have permitted the simultaneous application of Section 108 presumption and civil death declaration when facts support it. Here's a breakdown of landmark cases:
In this matter, the court granted a declaration of death after the person was missing for over seven years. Relying on Section 108, it noted: the occasion for raising the presumption arises only when the question is raised in a legal proceeding. This shows the declaration is grounded in the presumption, allowing both to function together. Khirod Chand Sikhdar VS Babu Lal Sikhdhar - 2022 0 Supreme(Del) 1051
Plaintiffs proved seven years' absence, satisfying Section 108. The court declared civil death and shifted the burden to respondents to prove the person alive—demonstrating concurrent use. Sanwarmal Singhania VS State Of Assam - 2020 0 Supreme(Gau) 459
The court clarified: presumption arises post-seven years, but date of death needs evidence. When raised legally, both presumption and declaration apply. Vidhan Chandra Pandey VS State Of U. P. Thur. District Magistrate, Pratapgarh - 2024 0 Supreme(All) 1425
Additional sources reinforce this:- Section 108 provides no specific procedure for presumption; it's invoked where absence is proven by those who would know. Burden then shifts. Sushilaben Prabhashankar Dhruv VS Collector, Ahmedabad - 2018 Supreme(Guj) 1124- If a person has not been heard of for seven years, there is presumption of law that he is dead but at what time within that period he died is not a matter of Presumption but of evidence. Toralben VS Collector Ahmedabad City - 2018 Supreme(Guj) 1080
These cases establish a consensus: yes, simultaneous application is possible if evidence shows seven years' absence and the issue is before the court. Khirod Chand Sikhdar VS Babu Lal Sikhdhar - 2022 0 Supreme(Del) 1051P. Vasantha VS Southern Railway Rep. by its General Manager, Chennai - 2021 0 Supreme(Ker) 409
Section 107 presumes life continuance unless disproved. Section 108 counters this for long absences, but only rebuttably. Courts depart from strict rules in some cases: This inconvenience has caused the strict rule to be departed from in some cases to allow presumption of death at any given date if seven years absence before that is shown. Sushilaben Prabhashankar Dhruv VS Collector, Ahmedabad - 2018 Supreme(Guj) 1124Oriental Insurance Co. Ltd. VS Mohd. Hameed - 2017 Supreme(Raj) 2514
A recurring theme: These cases show beyond doubt that it is always for the party who pleads that a man died at a particular time, to show the date on which the death took place. Narayana Pillai VS Velayuthan Pillai (unsound mind) represented by Lakshmi - 1962 Supreme(Mad) 370
While possible, simultaneous application has boundaries:- No automatic invocation: Presumption doesn't apply without a legal dispute. Vidhan Chandra Pandey VS State Of U. P. Thur. District Magistrate, Pratapgarh - 2024 0 Supreme(All) 1425- Evidence for specifics: Date/time of death isn't presumed. Sanwarmal Singhania VS State Of Assam - 2020 0 Supreme(Gau) 459- Rebuttable nature: Anyone claiming the person alive can disprove it.- Not for cause of death: E.g., in workmen compensation, presumption doesn't link to accidents without proof. Oriental Insurance Co. Ltd. VS Mohd. Hameed - 2017 Supreme(Raj) 2514
Declarations without seven-year proof or evidence may fail. Other presumptions (e.g., dowry death under Section 113B) require distinct evidence like cruelty. Rang Nath Gaggar S/o Sanwarmal VS State of Rajasthan - 2024 Supreme(Raj) 1674
Note: Cases on simultaneous deaths (e.g., under Hindu Succession Act Section 21) address order of death, not presumption after absence. A. PARVATHI AMMA VS K. M. GOWRI AMMA - 2016 Supreme(Ker) 22Ramesh Kumar VS Kamal Deep Bhutani - 2006 Supreme(P&H) 2256
If pursuing this:- Gather evidence: Affidavits, police reports, inquiries proving absence by natural informants.- File appropriately: Suit for declaration under Specific Relief Act, 1963, invoking Section 108.- Prove date if needed: For inheritance/titles, supplement with circumstantial evidence.- Anticipate rebuttal: Be ready for counter-claims.
Courts typically require: seven years from last heard, no news from expected sources. Usha Devi VS State Of Uttar Pradesh Thru The Prin. Secy. Co-Operative Deptt. Lko - 2023 0 Supreme(All) 1116
The consensus is clear: Courts recognize concurrent application of Section 108 presumption and civil death declaration when:- Seven years' absence is evidenced.- Question raised in proceedings.- No conflicting proof of life.
This balances presumption of life (Section 107) with practical needs for closure in property/succession matters. However, it's not absolute—evidence rules supreme.
Key Takeaways:- Presumption arises post-7 years in court. P. Vasantha VS Southern Railway Rep. by its General Manager, Chennai - 2021 0 Supreme(Ker) 409- Declaration possible simultaneously with proof. Khirod Chand Sikhdar VS Babu Lal Sikhdhar - 2022 0 Supreme(Del) 1051- Date of death: Prove separately. Sanwarmal Singhania VS State Of Assam - 2020 0 Supreme(Gau) 459- Rebuttable; burden shifts post-presumption. Sushilaben Prabhashankar Dhruv VS Collector, Ahmedabad - 2018 Supreme(Guj) 1124
For those grappling with a missing loved one, Section 108 offers a pathway, often alongside civil declarations. Cases like Shri Khirod Sikdar affirm this possibility, providing relief after prolonged uncertainty. Always consult a legal professional for case-specific advice, as this is general information and outcomes depend on facts.
This post is for informational purposes only and does not constitute legal advice.
She prayed that said order be called back and Special Court be directed to allow to amend the reference application to bring appellants as legal representatives of late Savitribai on record. 13. ... In such matrimonial cases and other cases, Court dealing with such issue may adjudicate existence or non-existence of his/her presumptive death as fact finding Court with the help of presumption as to presumptive death as provided under Section 110 of the BSA Act which dis....
However, it is also clear that the presumption of Section 108 is not the only mechanism for declaration of death. ... Thus, it is clear as broad daylight from the aforesaid judgments that a declaration of civil death by the civil court under Section 108 of the Indian Evidence Act, 1872 would not lead to a presumption with regard to date and time of death. ... Review Application Defective No.117 of 2024 respectively. ... According to the learned couns....
In other words, the doubt or dilemma that arises in cases of this nature is as to the date of death of the person in respect of whom the presumption is raised. The moment it is established that a person has not been heard of for 7 years, the presumption of death arises. ... Thereafter appellants have filed the civil suit for declaration of date of civil death of Surendra Singh. 3. ... (iii) Whether, date of death cannot be presumed and does Section....
The presumption raised under S.108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that person is dead, but there is no presumption as to the date or time of death. ... The presumption of civil death or fictional death by reason of S.108 of Evidence Act tantamounts to physical death in the eye of law. ... On this propo....
This provision lays down a rule of evidence and introduces a statutory presumption of a rebuttable character in cases of simultaneous deaths. The law of evidence is a law of procedure and is retrospective. ... Even if we apply the above illustration to our cases, that cannot help the respondents. There is no presumption regarding the date of death, because the case of the appellants is that at least from 1962, Vasudevan was not heard of. The date of death of Achuthan ....
J CA 17/2005 27, 28, 29, 30 MARCH 2009 Penal Code- Murder-Dying declaration- When Could it be admitted? Presumption of Innocence - Ellenborough principle The accused-appellant was convicted and sentenced to death - for the murder of one F. ... not find any irregularity caused in the course of the recording of the dying declaration which would be prejudicial to the substantial rights of the Appellant. ... After trial the Appellant was found guilty for the said offence and sentenced to de....
It will be noticed that in both the cases the presumption under section 108 was applied when the question actually arose before the Court. ... ... These cases show beyond doubt that it is always for the party who pleads that a man died at a particular time, to show the date on which the death took place. ... that the party whose death is relied upon has not been heard of by those persons who would naturally have heard of him had he been alive or, at least, that search has been ineffectually made to #HL....
Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand to dowry, the court shall presume that ... Lastly, learned counsel had contended that the presumption under Section 113B of the Indian Evidence Act, can invoked when soon before the death the victim was subjected to cruelty or ....
The suit preferred is not a suit for declaration of civil death simpliciter. The declaration of civil death is inextricably bound with the declaration of legal status and heirship of the plaintiffs. ... The suit has been preferred by the plaintiffs seeking a declaration that they are the legal heirs of the person missing and that in such a suit, the Court can accept the presumption of death of the person in the light of the provisions of the Indian E....
:(1)When it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. ... He has submitted that in the instant case, there was dying declaration made before the PW 1, PW3 and PW7 and such dying declaration has been discarded. ... The report which was proved as Ext.-5 had, howe....
This inconvenience has caused the strict rule to be departed from in some cases to allow presumption of death at any given date if seven years absence before that is shown." Accordingly, it is impossible to use this presumption to prove that A was dead in, say 1950, even if he has not been heard of since 1943.
This inconvenience has caused the strict rule to be departed from in some cases to allow presumption of death at any given date if seven years absence before that is shown." Accordingly, it is impossible to use this presumption to prove that A was dead in, say 1950, even if he has not been heard of since 1943.
Accordingly, it is impossible to use this presumption to prove that A was dead in, say 1950, even if he has not been heard of since 1943. Ms death on any particular day will not be presumed, and must be proved by evidence if in issue". This inconvenience has caused the strict rule to be departed from in some cases to allow presumption of death at any given date if seven 'years' absence before that is shown." 11. Peter Murphy states in 'A practical approach to Evidence' (Second Edition pp 460-461)-"The presumption is only that the subject died at some time during the period;
The learned munsiff conducted an enquiry and found that the death of Vasanthakumari and Chitra was simultaneous and the presumption under Section 21 of the Hindu Succession Act is that Vasanthakumari died first. The petitioner contended that Chitra died first and respondents 1 to 5 are not the legal heirs of Vasanthakumari and she (the petitioner) alone is her legal heir. The court, therefore, held that the petitioner and respondents 1 to 5 are the legal heirs of Narayanan, and accordingly, it ordered issuance of succession certificate in their favour.
So, definitely after Bhagwan Dass even if considered that their death occurred simultaneously, even then Jyostana will be deemed to have survived Bhagwan Dass. So, the property will devolve upon Ujwala and then to her husband and even if for the sale of arguments it be admitted that the simultaneous death has occurred even then as per Section 21 of the Hindu Succession Act, presumption in cases of simultaneous deaths is that the younger in age will survive the elder. In this case Jyostana Ujwala who also died in the accident. So in these circumstances, on the basis of provi....
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