Report No. 185
Section 108A: (as proposed in the 69th Report)
This section relates to presumption in case of death of several persons in a single catastrophe, like an accident, drowning, air-crash, battle, earth quake or the like.
This aspect is dealt with by courts and commentators as part of Section 108. We agree that there should be a separate section like the proposed Section 108A to deal with the presumption arising in such cases.
The relevant presumption here is called the 'presumption of survivorship' (Commorientes). When more than one person dies in catastrophes like the ones mentioned above, it is difficult to prove who died first. The order of death may be relevant in matters relating to succession.
In India, there has been no presumption of survivorship arising from age or sex, nor was there any legislative enactment (see K.S. Agha Mir Mohamad v. Mudassirshah, AIR 1944 PC 100). Section 21 of the Hindu Succession Act, 1956 provided that until the contrary is proved, it shall be presumed that the younger person survives the elder one, in such situations. The section does not apply in relation to succession to persons other than Hindus. Section 21 of the Hindu Succession Act, 1956 reads as follows:
"Section 21Presumption in cases of simultaneous deaths.- where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other, then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder."
Section 21 applies to testamentary or intestate succession (In Re Mahabir Singh: AIR 1963 Punjab 66).
In England, Section 184 of the Law of Property Act, 1925, reads as follows, and it relates to title to property:
"184. In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such death shall (subject to an order of the Court), for all purposes affecting the title to property, be presumed to have occurred in the order of seniority, and accordingly the younger shall be deemed to have survived the elder."
The words 'subject to the order of the Court' refers to an order allowing rebuttal (para 50.11 of 69th Report, footnote 5). Phipson says (15th Ed., 1999, para 4.25, footnote): "See, however, Section 46(3) of the Administration of Estates Act, 1925, added by Section 1(4) of the Intestates Estates Act, 1952 (while disposing of estate of intestate, where spouses die in circumstances rendering it uncertain who survived the other, spouse treated as having predeceased intestate.) This provision is fully quoted in para 50.12 of the 69th Report and reads as follows:-
"Section 46(3): Where the intestate and intestate's husband or wife have died in circumstances rendering it uncertain which of them survived the other, and the intestate's husband or wife is, by virtue of section 184 of the Law of Property Act, 1925, deemed to have survived the intestate, this section shall nevertheless, have effect as respects the intestate as if the husband or wife had not survived the intestate."
The principle appears to be that if an intestate (whether male or female) died along with the spouse in such catastrophes, it shall be presumed that the spouse other than the one whose succession is in question, has died earlier, thereby permitting the heirs of the intestate alone to succeed to the intestate and so that the property of the intestate does not go to the heirs of the other spouse, who also died in the same catastrophe.
In Hickman v. Peacey: 1945 A.C. 314, the House of Lords held that four persons who died in a bomb explosion must be held to have died according to who was, by reason of his age, older to the other. The principle was held applicable even to a 'common calamity'.
There is an interesting discussion in the 69th Report (see para 50.19) about what transpired in 1872 at the stage the Bill was prepared for the purpose of the Evidence Act of 1872. It is pointed out in the general section, which is now Section 103 which was clause 95 of the Bill, contained an illustration, which was dropped at the stage the Act was passed, and that related to this very question. It was like this:
'A and B, husband and wife, are both drowned in the same wreck. C is entitled to certain property if B survived, while D is entitled to that property if A survives. If C claims the property, he must prove the survival of A'. It appears that one Major Alfred Wilkinson, offg. Dy. Commissioner, Lucknow, objected to the illustration on good grounds: He pointed out that if D is in possession after the death of A and B, D will win in a suit by A; likewise if C is in possession in a suit by D, C will win. He said:
"In the illustration given, it would appear impossible to prove whether A or B died first, so if C sued D for property, D will win; if D sues C, C will win: the effect would be that whichever first gets possession of the property, would keep it. But if the property were in the possession of E, (A's executor), he E, might retain it; though it would clearly belong to either C or D, neither of them would be able to get a decree."
The difficulty with Section 103 is that it requires the person who asserts a fact to prove it. But if it is impossible to ascertain who, in a case of a catastrophe resulting in more than one death, died first,- whoever is the plaintiff will fail because it is impossible for him to prove that the person to whom he would succeed died first.
The 69th Report therefore suggests that the rigour of Section 103 can be reduced only if the statute provides for a presumption to be raised as under section 184 of the Law of Property Act, 1925 in England, along with the further provision referred to in Section 46(3) of the Administration of Estates Act, 1925 (brought in by the Intestates Estates Act, 1952). It must be noted that while Section 184 of the English Act raises a presumption, Section 46(3) of the other English Act deems the other spouse as having pre deceased, and it does not raise any presumption of the other spouse having pre deceased.
The reason was that in most cases, wives are younger and under Section 184, they will all be deemed to have survived. The husband and the husband's property may not go to his heirs. This is how it was explained in para 50.13 of the 69th Report. It was felt, in UK, it would help the families of the wife, if she gets the whole and the entire property including the estate of the husband would go to her heirs, after her death and that therefore it was not just.
Now Section 184 of the Law of Property Act, 1925 (already extracted) is simple and raises a presumption that the elder of the persons must be deemed to have died first. So far as the modification of this rule in the case of deaths of a husband and wife in the same catastrophe, with the view that the legal heirs of one are not deprived of succession, it is provided that, in the case of simultaneous death of husband and wife, it shall be deemed that "the husband or wife (of the intestate) had not survived the intestate."
In the 69th Report, it was explained in para 50.13, that in that event Section 184 would not apply and the intestate succession to whose estate is in question, must have died without a spouse (i.e. Section says other spouse has not survived the intestate).
In the 69th Report, the above principles relating to presumptions were sought to be introduced by means of a new Section 108A. We shall extract the same but we have a small comment to make on the latter part of the provision concerning death of husband and wife. If (say) the claim is made by a person as the legal heir of the husband, the proposa.- as under Section 46(3) of the (UK) Administration of Estates Act, 1925 (as amended in 1952) is that the succession must be reckoned as if the wife died earlier (or viceversa). But, in the above example, if the wife is also one of the heirs of the husband, along with others who are claimants, should she be considered as not entitled to a share and should her heirs be deprived of the right to claim to her share?
For example, under the Hindu Succession Act, 1956, if a male dies, intestate, the heirs in class I are his wife, mother, sons and daughters. Let us assume that the male and his wife died in the same accident. Now the claim, if it relates to the estate of the male, it is to be deemed (mind you, no presumption is being raised here) that his wife predeceased him and she will not get even her share along with other heirs. It is therefore logical to make a further exception that if she is also a heir to the estate of the deceased husband, then the fraction of the share that would have gone to her if she survived the husband shall first devolve on her and to the extent of that fraction, the further entitlement will be of her heirs.
The reason is that when by statute, in the case of an uncertainty, wants to introduce some certainty and a deeming fiction not even raise a presumptio.- that one spouse died earlier to the intestate, we cannot deprive that spouse of her share, and then her heirs, if she was entitled to a share. That does not mean that the entire property would go to the spouse other than the one whose estate is in question.
The 69th Report refers to an article in (Vol. 119) New Law Journal (UK) and to another one (1962) Vol. 36, Australian Law Journal, p. 193.
In USA, instead of an evidential rule of presumption, a rule for the distribution of property is laid down by statute (see Vol IX Wigmore, para 2532(a), pages 622-623). This is contained in the Uniform Simultaneous Deaths Act as adopted in 1940 and amended in 1953 by the National Conference of Commissioners on Uniform State Laws. A clear statement of the plan and purpose of the Act and reasons for its adoption is given in the Prefatory Note of the Commissioners. The text of the Act (as reproduced in Wigmore pp 622-623) is as follows:
"No Sufficient Evidence of Survivorship: Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this act."
Then we have Section 2 of the US Act which prescribes rules as between beneficiaries, Section 3 which prescribes rules as to Joint Tenants or Tenants by the Entirety. Section 4 deals with 'community property' of husband and wife, Section 5 deals with 'Insurance Policies'. Section 6 excepts cases of special provisions in wills, living trusts, deeds, contracts of insurance. Section 4 divides the 'community property' of husband and wife who died in a catastrophe between the heirs of the husband and heirs of the wife, in equal status.
The 69th Report proposed repeal of Section 21 of the Hindu Succession Act, 1956 and insertion of Section 108A (see para 50.26) as follows:
"108A. Presumption in case of simultaneous deaths.- Where two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall, for all purposes, be presumed to have occurred in order of seniority, of age and accordingly the younger shall be deemed to have survived the older.
Provided that where the question arises in respect of title on intestacy or testamentary rendering it uncertain which of them survived the other, and the husband or wife is, by virtue of this section, deemed to have survived the intestate. or the testator, then the law of succession shall, nevertheless, have effect as respects the intestate or the testator, as if the husband or wife had not survived the intestate or the testator".
We agree with this recommendation with modifications and recommend insertion of new section 108A as follows:-
108A. Presumption in case of simultaneous deaths.- (1) Subject to the provisions of sub-section (2), where two or more persons have died in circumstances rendering in uncertain which of them survived the other or others, such deaths shall, for all purposes, be presumed to have occurred in the order of seniority of age and until the contrary is proved, the younger shall be presumed to have survived the elder.
(2) In the case of husband and wife dying in circumstances rendering it uncertain which of them survived the other and
(a)where the question arises in respect of title on intestacy or testamentary succession to the property of a deceased spouse; and
(b)the husband or the wife is, by virtue of subsection (1) presumed to have survived intestate or the testator, being the younger of the two, then succession, whether intestate or under the testament shall, nevertheless have effect as respects the intestate or testator, as if the younger spouse has predeceased the intestate or the testator:
Provided that where the younger spouse, who is so deemed to have predeceased the intestate or the testator is, according to law, the sole heir or heir along with others, to the estate of the intestate or the testator, then the younger spouse shall not to be so deemed to have predeceased the intestate or the intestate under this subsection and the property of the intestate or testator shall devolve according to law on the younger spouse and the heirs of the said spouse may claim the estate of the said spouse.
(a) Two brothers A and B die simultaneously in an accident and in that event, B, the younger brother, shall be deemed to have survived A.
(c) In the first part of Illustration (b), if the wife B is younger to the husband A, but is to be deemed to have predeceased her husband, because of sub-section (2), she will not be so deemed where, if she had survived the husband A, she would have been the sole heir or have to a share along with others to her husband's estate, whether by virtue of intestacy or testamentary succession and in that event, once such property of A, the husband devolves on the wife B, her heirs would be entitled to claim the same.
(d) In the second part of Illustration (b), if the husband A is younger to the wife B, but is to be deemed to have predeceased his wife, because of sub-section (2), he will not be so deemed where, if he had survived the wife B, he would have been the sole heir or heir to a share along with others to his wife's estate, whether by virtue of intestacy or testamentary succession and in that event, once such property of B, the wife devolves on the husband B, his heirs would be entitled to claim the same."