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Report No. 185

61. Substitution of section 108.-

For section 108 of the principal Act, the following sections shall be substituted, namely:-

"108. Burden of proving that a person is alive who has not been heard of for seven years .- Notwithstanding anything contained in section 107, where the question is whether a man is alive or dead, or was alive or dead at a particular time, and it is proved that he has not been heard of for seven years or more by those who would naturally have heard of him if he had been alive, the burden of proving that he was alive during any period after the expiry of seven years shall be upon the person who affirms it and if the said burden is not discharged, the Court shall, as respects such period starting from the expiry of seven years, presume that the person was dead.

Explanation.- If any question is raised that the man died on any particular date during the period of seven years aforesaid, the burden of proving that he died on such date during that period, shall be on the person who so affirms, and the presumption referred to in this section has no application.

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 subsection (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 subsection (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."



Review of the Indian Evidence Act, 1872 Back




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