Report No. 185

Section 108A (as proposed in the 69th Report).

This concerns presumption as to simultaneous deaths.

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 sub-section (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 sub-section 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.

Illustrations

(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.

(b) The husband A and his wife B die simultaneously in an accident. The husband A has agricultural land and the wife has house property. In respect of succession to the estate of A, the husband, by the husband's heirs, it shall be presumed that B the wife died earlier and B's heirs' shall not therefore be entitled to claim the husband's estate. In respect of succession to the estate of B, the wife, by the wife's heirs, it shall be presumed that A, the husband died earlier and A's heirs shall not be entitled to claim the wife's estate.

(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 905 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."