Report No. 69
III. Absence for less than Seven Years
49.8. When death may be presumed before seven years.-
So much as regards various other provisions relevant to the presumption of death, after an absence of seven years or more. It is to be noted that the fact that the law does not specifically provide for the case where a man is unheard of for less than seven years, does not mean that the court has no power to presume death in such circumstances. The special circumstances of the case may warrant such a presumption. Such special circumstances may be illustrated by the cases where, for example, the person in question embarked on a vessel, which was not heard of and which was long overdue, or where the habit and character and domestic relations and necessities of that person made it certain that if he were alive within that period, he would have returned to or communicated with persons at his place of residence or domicile.1
1. American cases cited in Sarkar on Evidence Act, under section 108.
49.9. Illustrative cases of absence for less than seven years.-
To take one more example from an English case, as failure to apply for moneys which are due to the person concerned might also be strong evidence in favour of a presumption of death. Beasley's Trust (in re:), 1869 LR 7 Equity 498, a person who was entitled to the dividends on stock payable in April and October every year applied for his dividends in April, 1860, and was last seen in August of that year in a very bad state of health.1 He never applied for his half-yearly dividend in the ensuing October. It appeared that he was of very dissolute habits, and that he chiefly depended on dividends for his maintenance. The question was whether he died before November 1860. It was held that since he had not applied for the dividend due to him in October 1860, and having regard to the state of his health when last seen, the presumption must be that he died before November, 1860.
1. Facts taken from Presumption of Death, (1942) Vol. 92, ij 277, 283.
49.10. Remarriage by wife before seven years under mistake of facts.-
Then, where the wife of a missing man wishes to remarry before the expiry of seven year believing in good faith after proper inquiries that the husband is dead, the act is not an offence. Indeed, during war, if her husband has been missing for so long a period that there is no chance of his being reported as a prisoner of war, she might be reasonably safe in so doing.1
Whether, if the husband appeared subsequently, the women could be prosecuted for bigamy depends upon the facts of the case principally on her ability to prove good faith2 and due inquiries. This will be a question of fact, depending on the circumstances of each case.
1. Presumption of Death, (1942) Vol. 92, LJ 277, 283.
2. Sections 76-79, Indian Penal Code.
49.11. Even where the first husband or wife has not been continually absent for seven years, it is well-settled in England that it is a good defence to prove a bona fide belief upon reasonable grounds that at the time of the second marriage the first husband or wife was dead,1 if proper and reasonable inquiries have, in fact, been made by the prisoner.
1. R. v. Tolson, (1889) 23 QBD 168 (CCR).
49.12. In R. v. Tolson, (1889) 23 QBD 168 (CCR), the accused was deserted by her husband, and after wards heard that her husband had been lost at sea. Five years after last seeing her husband, the accused went through a ceremony of marriage with another man. It turned out that her husband was still alive. The accused was convicted by the trial court of bigamy, under section 57 of the offences against the person Act, 1861. Her conviction was, however, quashed by the Court for Crown Cases Reserved. The fact that section 57 itself1, provided for the situation where 7 years' absence was proved, was taken as not excluding the general defence of mistake of fact. In other words, the argument that the exception in section 57 was the only case intended to be excluded, was not accepted.
Honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicated an innocent one was held to be a good defence. The section, so far as is material, may be requoted. It was in these terms: "whosoever, being married, shall marry any other person during the life of the former husband or wife shall be guilty of felony Provided that nothing in this section contained shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years than last past, and shall not have been known by such person to be living within that time."
This specific exception, confined to 7 years' absence, was held not to exclude the defence of honest and reasonable mistake of fact. In India, the position would be the same. Under section 79 of the Indian Penal Code, nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it.
1. Para. 49.5, supra.
49.13. Reverting to section 108, we may note that the rule in section 108 is one merely creating a presumption, thus varying the burden of proof. The rules enacted in some of the statutory provisions to which we have referred1do not treat the matter merely as one of evidence. They take the matter beyond the mere region of presumptions and have the status of rules of substantive law. For example, if after seven years' absence, a wife petitions for dissolution, the absence is itself a substantive ground for dissolution in the sense that she need not allege any other ground of relief.
1. Para. 49.7, supra.
IV. Date of Death-Present Law
49.14. No presumption as to date of death.-
It is to be noted that there is, under section 108, no presumption of the date of death. Previously, some misunderstanding seems to have prevailed as to whether there is any such presumption. That there is no such presumption, was made clear in Lalchand's case,1 by the Privy Council. In that case, the Privy Council observed, "Searching for an explanation of this very persistent hereby, their Lordships find it in words in which the rule both in India and in England is usually expressed. These words, taken originally from Re Phene's Trusts2 run as follows:
"If a person has not been heard of for seven years, there is a presumption of law, that he is dead; but at what time within that period he dies is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential."
The Privy Council added:
"Following these words in the case of Re Phene's Trusts, it is constantly assume.- not perhaps unnaturall.- that where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. But, this is not accurate. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or four periods of seven years. It would be accurate to say that the period of disappearance should be "seven years or more" or "not less than seven years"."
These observations of the Privy Council, with respect, state the position accurately, so far as the present section goes.
1. Lalchand v. Mahant Rup Ram, AIR 1926 PC 4.
2. Phene's Trusts (in re:), (1870) 5 Ch App 139: (1861-1873) All ER Rep 514.
49.15. Reference may also be made in this connection to the earlier decision of the Bombay High Court in Rango Balaja v. Mudiyappa, ILR 23 Born 296. Shanker dies in September, 1878, leaving a widow Raghubai. One year before his death, his only son (Bala), a child of eight years old, had left his home and was never heard of again. A few days before his death, Shankar adopted the plaintiff (his nephew), and executed a deed of adoption, which stated that he had no hope that his son Bala was alive, and that he had, therefore, adopted the plaintiff.
The deed further declared the plaintiff to be the owner of all Shanker's property with all the rights of a natural son, but provided that in the event of the lost son returning, he the (plaintiff) should have half. In 1892, the plaintiff, as Shankar's adopted son, brought this suit to recover some of Shankar's property, which was in the hands of the defendants, who claimed it as Shanker's heirs. They (inter alia) impeached the plaintiff's adoption.
It was held that, in order to recover the property as the adopted son of Shankar, it lay on the plaintiff to prove a valid adoption. It was a condition precedent to prove that, at the date of the adoption, Shankar was without a son. It was, therefore, for the plaintiff to prove that Bala was then dead. There was, at that time, no presumption that Bala was dead, and there being to evidence on the point, it was impossible to say when he died, or consequently that the adoption was valid. However, the plaintiff succeeded on a different ground in his capacity as the donee under the deed.
49.15A. This being the position, when a person is not heard of for seven years and no specific date of death can be proved, the earliest date to which death can be ascribed can only be the date on which the suit was filled.1 Where the court has to determine the date of the death of a person who has not been heard of for a period of more than seven years, there is no presumption that he died at the end of the first seven years or at any particular date.2
1. Jesankar v. Bai Denali, AIR 1929 Born 85 (86).
2. Vithalbai v. Mithi Shankar, AIR 1938 Born 228 (230).
49.16. Recent cases.-
There have been numerous decisions of the High Courts during recent years, from which it would appear that the above position is now well settled. A few cases on the subject are listed in the footnotes.1-12
1. Ram Singh v. Board of Revenue, AIR 1964 All 230 (320).
2. T. Rama Rathnam v. K. Varadajam, AIR 1970 AP 246.
3. Karthayam v. Raman, AIR 1969 Ker 213.
4. Appula Vadhyar v. Venkatashwara, 1970 Ker Law Times 976 (FB).
5. Parikhit Muduli v. Champa, AIR 1967 Ori 70.
6. Rajula Bai v. Suka, 1971 MPLJ 1014, noted in the Yearly Digest.
7. Narayan v. Velayuthan, AIR 1963 Mad 385, (Annantanarayana Off, C.J.).
8. Bishwa Nath v. Jharamy, (1972) 1 CWR 299 (Ori) (Noted in the Yearly Digest).
9. Har Nana v. Commissioner, AIR 1972 Punj 74.
10. Muasho Singh v. S. Gurdit Singh, AIR 1965 Punj 80.
11. A. Venkatashuba Rao v. G. Subba Rao, AIR 1964 AP 320.
12. H.T, Bhagat v. L.I.C., AIR 1965 Mad 440.
49.17. Need for widening the scope of the presumption.-
It must, however, be stated that this position, namely that the presumption is applicable only at the date of suit, deprives the presumption of much of its value, particularly in cases of marriage or succession.1
In relation to marriage, the question may arise where A, having a wife alive who has not been heard of, wishes to marry again. The provisions contained in certain Acts, for example, section 494, last paragraph, of the Indian Penal Code or section 13(1)(vii) of the Hindu Marriage Act, 1955, or section 27(h) of the Special Marriage Act, 1954, may afford some help, but, then, the ingredients of those provisions must be satisfied (particularly, section 494, I.P.C.) and, moreover, in cases under the Hindu Marriage Act or the Special Marriage Act etc. the spouse must formally obtain divorce by a petition to the district court.2
In the law of succession, again, the question may arise where it becomes necessary to prove the date of death of a particular person-e.g. whether the legatee died before the testator or (under the law of intestate succession), where the immediate heir is dead at the time of controversy and the question is whether the intestate dies before the immediate heir.
It may also arise in testamentary succession, e.g., in the case of joint legatees.3
It would, in our view, be convenient if the presumption is made applicable as respects a period before suit.
1. Lal Chand v. Ramrup, AIR 1926 PC 9.
2. As to criminal liability supra.
3. G.H. Treital Presumption of Death, 1954 MLR 530.
49.18. Desirability of inserting a presumption.-
In view of what is stated above, it appears to us to be desirable to insert a rebuttable presumption that, as respects the period after the expiration of seven years from the date on which such person was last heard of, he was dead. Such an amendment in the section will make the position more certain than at present. The section, as it is now worded, merely enables the court to assume that he was dead at the time of institution of the suit. This does not have much practical utility, as has already been pointed out above.1 The presumption, in our view, should be so framed as to provide that he is not to be taken as alive at any particular time after the expiry of seven years-unless, of course, specific evidence in rebuttal is produced.
1. Para. 49.14, supra.
49.19. Utility of provision as to precise point of death.-
As already stated, such a provision would be convenient in many instances where it is necessary not simply to prove that death has occurred (e.g. for the purposes of life insurance), but also to prove that it occurred before a certain event (e.g. before a particular marriage). In fact, even in England, the strict view has not been followed in cases,1 where, for the purposes of succession, a child of the testator was presumed to have died seven years after the child was last heard of. This view produces more convenient results.
1. Aldersey, Gibson (in re:) v. Hall, (1905) 2 Ch 181: (1904-07) All ER Rep 644.
In the light of the above discussion, we recommend that section 108 be revised as follows:
"108. Notwithstanding anything to the contrary contained in section 107, when 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-
(a) the burden of proving that he was alive in any period after the expiry of seven years is shifted to the person who affirms it, and
(b) the court shall, as respects any such period, presume that he was dead."1
1. As to the meaning of "shall presume", see section 3.