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Report No. 69

IV. Hindu Law and Muslim Law

50.7. It has not been possible to trace the rules of Hindu law, if any, on the subject, Mahomedan Law, in the case of persons perishing together, is stated thus by Baillie1:-

"Where several persons have been drowned or burnt together and it is not known which of them died first, we treat them all as having died together. The property of each will accordingly go to his own heirs, and none of them can be heir to another, unless it is known in what order they died, when those who died last will inherit to those who died before them. And the rule is the same when several are killed together by the falling of a wall or in the field of battle, and it is not known which of them died first."

Section 21 of the Hindu Succession Act reads-

"Section 21-Presumption 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."

If the husband and wife die in the circumstances stated and if the husband is older than the wife, then, unless the contrary is proved, it is to be presumed that he died before the wife so that the wife would be the sole heir of the husband (if there are no other relatives mentioned in Class I of the Schedule to the Act) and the property of the husband would devolve upon the heirs of the wife (under section 15) and not of the husband (under section 8).

1. Baillie Digest of Mohammedan Law, Part 1, (2nd Edn. 1875), Vol. 2, p. 714. quoted Mahabir Singh v. Prithviraj Dillon, AIR 1963 Punj 66 (73).

50.8. Case law.-

At this stage, a few cases on the subject may be noted. Thus, where a woman and her married daughter died in a fire in their house but there was no evidence as to who died first, it was held that the mother must be presumed to have died first; the daughter therefore became her heir and was entitled to the mother's property and on the daughter's death her husband as her heir became entitled to it.1 Where mother and daughter were murdered on the same day and at the same time, the presumption is that the younger survived the elder. It was held in a Mysore case.2

1. Jayantilal Manshukhlal v. Mehta Chananlal Ambalal, AIR 1968 Guj 212.

2. Padmaraja Setty v. Ganachandappa, AIR 1970 Mys 87.

50.9. In a Punjab case, the testator and his wife were killed on November 14, 1955, by gun-shot wounds; the testator had, by his will, bequeathed all his property to his wife, and the wife's mother claimed the right to obtain letters of administration as the heir of her daughter; the claim was resisted by the testator's nephew who claimed to be the heir of the testator on the allegation that the wife had died before the testator and the property would go as on intestacy. The Punjab High Court held that section 21 of the Hindu Succession Act, being only procedural, had retrospective operation and applied; the wife must be presumed to have survived her husband and the property belonged to her under the will and would pass on to her mother as her heir.1

Section 21 applies to testamentary as well as to intestate succession.2

1. Mahabir Singh (in re:), AIR 1963 Pun 66.

2. Mahabir Singh (in re:), AIR 1963 Pun 66.

V. English Law

50.10. Common law.-

At common law, there was no presumption of survivorship in respect of "Commorientes". The matter was left to be decided by evidence if possible, failing which the rules as to burden of proof applied.

50.11. Statutory provision in England.-

This position has, however, been altered in England, so far as title to property is concerned, by a statutory provision1- section 184, of the Law of Property Act, 1925-subject to certain amendments made separately. The section was mainly intended to deal with cases of "Commorientes"-though the language seems to be wide enough to cover all situations in which uncertainty arises.2

The section reads-

"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 deaths shall (subject to an order of the court),3 for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder."

It should incidentally be noted that the section does not deal with the factum of death. It assumes that death has occurred, and deals with the order of deaths.

1. Section 184, Law of Property Act, 1925 (15 & 16 Geo. 6, C. 20).

2. Hickman v. Peacey, (1945) AC 304: (1945) 2 All ER 245 (HL), infra.

3. The words "subject to an order of the court", are usually understood as allowing specific evidence for rebuttal. For criticism of these words, see infra.

50.12. This provision must now be read with section 46(3) of the Administration of Estates Act, 1925. That section, as amended by the Intestates Estates Act, 1952 (15 and 16 Geo. 6 & 1, Eliz. 1, C. 64) (which contains the revised law), is quoted below:1

"46 (3). Where the intestate and the 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."

1. Section 46(3), Administration of Estates Act, 1925, as amended in 1952.

50.13. Spouses.-

In case involving spouses, one should bear in mind that most husbands are older than their wives and a common effect of a rule favouring the wife's survival in regard to intestate succession would be to negative the wishes of a husband in favour of those of his wife-unless it can positively be shown that she predeceased him. Even in modern times men are usually better off than women; few men, it seems, accidentally want to benefit the familiarities of their wives to the detriment of their own, but this could be a curious effect of the rules in regard to intestate spouse cases.1

This seems to be a good reason for not applying to spouses a rule of survivorship of the younger, whether they died testate or intestate. The principal object of the provision of section 40, Administration of Estates Act, 1925 is to deal with the case of spouses. The effect of this special provision is, that if the question arises

(i) on intestacy,

(ii) between husband and wife, then the rule given in the Law of Property Act-Section 184-does not apply, and is replaced by a provision whereunder the intestate is deemed to have died without spouse. The result is that only his heirs get the estate, and not the heirs of the spouse.

1. Article in 119 New lj 325.

50.14. Case law on the statutory provision.-

Reverting to section 184 of the Law of Property Act, 1925, we may refer to a few reported cases thereon. In Hickman v. Peacey, 1945 AC 304 (314, 315): (1945) 2 All ER 215 (218) (HL), the House of Lords, by a majority, held that when four persons die in a house as a result of one bomb explosion, they were to be taken to have died in the order of their respective ages. It was also observed that the section would apply even where the death did not occur in a common calamity. Thus, according to the observations made in this case, where a husband goes on a voyage and his ship disappears in circumstances from which the fact of his death (as opposed to the time of his death) could be inferred, while his wife dies in another operation, and there is no means of ascertaining which of them died first, the section would apply.

50.15. Order of the Court.-

Section 184 itself incorporates the words "subject to any order of the Court". It is doubtful, however, whether those words have any meaning. In re Lindop Lee-Barber (in re:) v. Reynolds, 1942 Ch 377, Bennett, J. said that they did not give the court a discretion not to apply the section because it might be unfair in the particular case. Subsequently, it has been observed, that the words are obscure, if not meaningless.1

1. Hickman v. Peacey, 1945 AC 304 (314); Bate, Chillingworth (in re:) v. Bate, (1947) 2 All ER 418.

50.16. Finance Act, 1958, section 29(1).-

The effect of section 184 is to cause the property to pass from the older to the younger, and then from the younger to the person entitled under his will or upon intestacy. There is, therefore, a double passing, and estate duty is normally charged upon each "passing". However, section 29(1), Finance Act, 1958, provides that for the purposes of estate duty only, both people are deemed to have died at the same instant.

50.17. Intestate spouses.-

Under the intestacy rules, where a married person dies, his or her spouse becomes entitled to certain benefits. The effect of section 184 in the event of virtually simultaneous deaths was-assuming the husband to be the elder-to cause his property to pass to his wife, and it would then, in the absence of children, pass to her family. By virtue of the Intestates Estates Act, 1952, section 1(4) in the case of post-1952 deaths, where it is uncertain which of the intestate husband and the wife survives the other, each is regarded as having survived the other.

Indian Evidence Act, 1872 Back

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