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SECTION 107 & 108 OF THE INDIAN EVIDENCE ACT

Section 107: Burden of proving death of person known to have been alive within thirty years
When the question is whether a man is alive or dead, and it is shown that he was alive within thirty
years, the burden of proving that he is dead is on the person who affirms it.

For Example: A and B are Husband and wife. A use to go to work and come back home around
9:00p.m. But this time husband did not came. Wife slowly fears about the absence of her husband.
She tried husband‘s number so many times but she did not got any response. One morning she
went to the place of husband where he is working. HOD said already her husband went out at
normal time. She called to husband‘s parents, friends and relatives. They said no her husband did
not came there. She went to nearby Police station and filed a missing complaint of her husband.
Twenty years passed and still B can’t find her husband. She lost her hope. Here Burden of proof
rises and she must prove before the court that her husband still not found and she can’t predict
that her husband is alive or not.

Section 108: Burden of proving that person is alive who has not been heard of for seven years
Provided that when the question is whether a man is alive or dead, and it is proved that he has not
been heard of for seven years by those who would naturally have heard of him if he had been alive,
the burden of proving that he is alive is shifted to the person who affirms it.

For Example: A is a person who is walking on the road. He sees all poster which posted on the
wall. Suddenly he stops and sees a poster for two minutes. In that 2nd death anniversary was
written. He runs to particular house where it belongs to the person who is said to be dead. In that
house they were the parents of deceased person. A says to the deceased‘s family that their son is
alive. Family did not believe, asked him to appear before police station and tell to the officer about
their son. Here Burden of proof lies on A that must prove that the son is alive.

Comments:
Sections 107 and 108 have to be read together, because both the sections are complementary to
each other. Section 107 is based on the principle of continuity of life, whereas section 108 is
regarded as proviso to section 107. On the other hands, section 107 deals with the presumption of
continuance of life, whereas section 108 deals with the presumption of death.

Principle of Section 107 and 108 of the Evidence Act, 1872 (Act No. 1 of 1872)
Section 107 of the Evidence Act, 1872 (Act No. 1 of 1872) lays down that if a person is proved
to have been alive within 30 (thirty) years it shall be presumed that he is alive and the burden of
proving that he is dead, lies on that person who affirms that he is dead.
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Section 108 of the Evidence Act, 1872 (Act No. 1 of 1872) lays down that when it is proved that
a man has not been heard of for 7 (seven) years by those who would naturally have heard of him if
he had been alive, the burden of proving that he is alive lies on the person who affirms it.

Presumption under Sections 107 and 108 of the Evidence Act, 1872 (Act No. 1 of 1872)
Section 107 of the Evidence Act, 1872 (Act No. 1 of 1872) suggests that whenever a person in
question is found to be alive within 30 (thirty) years, irrespective of suggestion of his being dead,
the court shall presume that he is alive unless and until any positive proof of his being dead is
proved.

Whereas the presumption under section 107 is rebuttal, the presumption under section 108 is
about to fact of death. In order to qualify the latter presumption, it has to be proved that the man
in question has not been heard of for 7 (seven) years by those persons who would naturally have
heard of him, and they have taken all steps to trace him out and his whereabouts.

This is the presumption of continuity of life that person may be alive up to 30 (thirty) years after
he was last seen. If a married woman wants to remarry she has to prove that her husband remains
unheard for 7 (seven) years (Section 108) or she has to wait up to 30 (thirty) years. However, a
person who was not heard for more than 7 (seven) years cannot be considered to be dead only on
that day on which suit was filed.
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DISTINCTION BETWEEN SECTION 107 AND SECTION 108 OF THE

EVIDENCE ACT, 1872

Although sections 107 and 108 of the Evidence Act, 1872 (Act No. 1 of 1872) have to be read
together, because both the sections are complementary to each other, but there are some differences
between two sections and which are as follows:

1. Section 107 provides burden of proving death of person known to have been alive within 30
(thirty) years, whereas section 108 provides burden of proving that person is alive who has not
been heard of for 7 (seven) years.

2. Section 107 deals with the presumption of continuance of life, whereas section 108 with the
presumption of death.

3. Section 107 lays down that if a person is proved to have been alive within 30 (thirty) years it
shall be presumed that he is alive, whereas section 108 lays down that when it is proved that a man
has not been heard of for 7 (seven) years it shall be presumed that he is dead.

4. The presumption under section 107 is rebuttal, whereas the presumption under section 108 is
about to fact of death.

5. Example: If a married woman wants to remarry she has to prove that her husband remains
unheard for 7 (seven) years (Section 108) or she has to wait up to 30 (thirty) years (Section 107)

So, these are the general differences between section 107 and section 108 in the light of the
Evidence Act 1872
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K. SRINIVASAN V THE REGIONAL MANAGER (P & IR) ON 14 FEBRUARY, 2008

This is a famous case before the Madras HC wherein the determination of the date of death of a
person not found for more than 7 years is reached by this honorable court.

The brief facts necessary for disposal of this writ petition are as follows:

Petitioner's father worked in LIC and who was not heard of from 20.4.1993. A complaint was
lodged before the police for missing and the police failed to find the petitioner's father. LIC (first
respondent) initiated action against the petitioner's father on the ground that he was not attending
duties in this present case in K. Srinivasan v The Regional Manager (P & IR).

According to the petitioner, his family waited for seven years and thereafter instituted a suit in Court
for declaration that petitioner's father should be presumed to have attained civil death as per the
provisions of sections 107 and 108 of the Indian Evidence Act. The said suit was decreed and a
declaration was given to the effect that the petitioner's father attained civil death, by decree and
judgment dated 31.1.2002. On the basis of the said decree, the Tahsildar issued legal heirship
certificate on 16.7.2002 and a succession certificate was also granted on 19.2.2003.

Petitioner further states that as he being a legal heir of the deceased employee of the LIC, submitted
a representation in the year 1994 seeking compassionate appointment and the LIC informed that
unless there are records to prove the death of petitioner's father, it is not possible for them to consider
the case of the petitioner for compassionate appointment, as legal presumption will arise only after
the expiry of seven years( S -107 and S-108 of the IEA,1872).

Petitioner's mother requested the second respondent to consider the case of her son
Balasubramaniam, who is brother of the petitioner for compassionate appointment. Since no reply
was given, petitioner filed a suit and Court permitted the petitioner to submit a representation to the
LIC and directed the LIC to consider the representation and pass orders within 12 weeks.

Thereafter petitioner submitted representation on 10.2.2005 and also on 9.4.2005 and the claim
was rejected by the LIC by stating that petitioner's father's presumptive date of retirement was
31.12.1997 and he would be deemed to be dead only on 20.7.2000 and the said date being after
the presumptive date of retirement of the petitioner's father, compassionate appointment cannot be
given.

The above order of LIC is challenged in this writ petition contending that petitioner's father was
missing from 1993 and taking his deemed death on 20.7.2000 and rejecting the claim for
compassionate appointment stating that after superannuation only petitioner's father's deemed date
of death falls is not proper. Therefore petitioner prayed for quashing the said order and issue
appointment order in favour of his brother on compassionate ground.

Respondents filed counter affidavit stating that the petitioner's father, remained absent from
15.4.1993 without submitting any leave application and as per the provisions of the Staff
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Regulations, notice was issued to him on 6.5.1993 calling upon him to report for duty immediately.
Since there was no response, another notice was issued by registered post on 13.5.1993, which was
returned with the endorsement 'party left'. Thereafter, the respondents initiated disciplinary
proceeding against the said K.Krishnamurthi, for his unauthorised absence and issued a show cause
notice on 29.11.1993 as per the Staff Regulations. The said show cause notice was also returned
unserved. The LIC affixed the notice and the charge memo on its Notice Board for which also there
was no response. Therefore service of the petitioner's father was terminated with effect from
17.3.1994. It is further stated that on 2.5.1997 petitioner's mother sent representation stating that
her husband was missing from 20.4.1993. FIR was registered on 4.6.1993 and a certificate was
issued by the Police Department on 10.4.1997 stating that the petitioner's father was not traceable.
Therefore, petitioner's mother requested for settlement of terminal benefits, for which the
Corporation sent a reply on 13.7.1997 to produce legal heirship certificate. Civil Court also declared
that the petitioner's father presumed to be died on 19.7.2000 and the petitioner's father having
reached the age of superannuation on 31.12.1997 and the date of his Civil death having been
declared as 20.7.2000, there was no provision to give compassionate appointment to any legal heir
of the petitioner's father. In the counter affidavit it is further stated that the Civil court having given
a clear finding about the date of the presumptive death of the petitioner's father, the direction given
by the Judge to register the death of the petitioner's father as 20.4.1993 is irrelevant. Hence
respondent prayed for dismissal of the writ petition.

The point in issue is whether petitioner's father is deemed to be dead from 20.4.1993 or whether
he is presumed to be died from 20.7.2000, the date of filing of the civil suit wherein a decree is
passed by the Civil Court to the effect that the petitioner's father is to be presumed to have attained
civil death on the expiry of seven years from the date of missing, as per section 108 of the Indian
Evidence Act.

The facts in this case are not in dispute. Petitioner's father was missing from 20.4.1993. Police
complaint was given to search the petitioner's father and the complaint was closed on 14.10.1997
stating that the petitioner's father could not be traced. Civil Suit was filed on 20.7.2000 to declare
that he attained civil death as he was not found for seven years. The said seven years period
admittedly expired in the year 2000 and the petitioner's father's date of presumptive superannuation
was 31.12.1997. Hence the application submitted seeking compassionate appointment based on the
succession certificate obtained in the year 2004 was rejected by the respondents.

The Staff Regulation empowers the respondent Corporation to give compassionate appointment to
a legal heir, who dies while in service or retires, at least five years prior to the date of superannuation.

The contention of the learned counsel for the petitioner is that the date of death of the petitioner's
father should be taken as 15.4.1993 and not as 20.7.2000 and in support of his contention, the
learned counsel heavily relied on the certificate issued by the Department registering the petitioner's
father's date of death as 20.4.1993 and registration was made on 5.7.2002 on the basis of the
direction issued by the Judicial Magistrate Court in 28.6.2002.
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The learned counsel for the respondents on the other hand submitted that the respondents are not
parties before the Judicial Magistrate when the petitioner obtained order for registering the date of
death of petitioner's father as 20.4.1993 and the said order is contrary to the Civil Court's finding
in which the respondents are also parties, wherein it is clearly declared that the petitioner's father
attained civil death on the date of filing of the suit that is on 20.7.2000.

The learned counsel for the petitioner as well as learned counsel for the respondent cited certain
decisions in support of their respective contentions.

On the basis of the above pleading and contentions, the presumption of death of the petitioner's
father has to be considered in the light of section 108 of the Indian Evidence Act, 1872.

In the decision of N.Jayalakshmi Ammal v. R.Gopala Pathar, the Supreme Court considered a similar
issue and the burden of proof in such cases. Section 107 of the Indian Evidence Act deals with
presumption of continuation of life and Section 108 deals with the presumption of death.

In this case, the Civil Court has given a finding that the petitioner's father is deemed to be dead from
the date of the plaint that is 20.7.2000 and not from any anterior date. The said finding having
become final, no other date as claimed by the petitioner can be taken as the date of death of the
petitioner's father and the petitioner also not proved the said fact and only on presumption the
deemed date of death was fixed. Hence the respondents are justified in rejecting the claim of the
petitioner seeking compassionate appointment to his brother, on the ground that before the date of
the presumptive death of petitioner's father, he reached the age of superannuation and therefore there
is no provision to give compassionate appointment to the petitioner's brother.

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