Presumption of Death: Section 108 IEA & 111 BSA Explained

The Statutory Framework: Sections 107 and 108 IEA (Sections 110 and 111 BSA)

The two sections must always be read together, for the latter is merely a proviso to the rule stated in the former, and both together constitute a single integrated rule. Section 107 of the IEA provides that 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 rests on the person who so affirms. The principle here is one of the continuity of an existing state of things — life, once established, is presumed to continue until the contrary is proved.

Section 108 is the exception — and the key provision in K's case. It provides that when it is proved that a person 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 shifts to the person who affirms it. The Supreme Court confirmed in LIC of India v. Anuradha (AIR 2004 SC 2070) that these two sections together constitute the Indian law on presumption of death. The starting point — Section 107 — creates a presumption of life, and Section 108, the proviso, displaces that presumption when the conditions of seven years' unexplained absence are met.

Applying the Law to G's Case

G, aged 35, went for a pilgrimage to the Amarnath cave in August 1995 and did not return after 20.8.1995. He was never seen or heard of by his relations or friends since that date. The question is whether K, his wife and nominee under four LIC policies totalling Rs. 1,25,000, is entitled to the benefit of Section 108, and whether the LIC's demand for a court decree is legally sustainable.

The First Question: Is There a Presumption That G Died?

The answer, when all the facts are applied to the law, is clearly yes — but only after the expiry of seven years from the date he was last heard of. The disappearance was on or after 20.8.1995. The seven-year period would therefore expire on or after 20.8.2002. Once that period expired, and it is proved that G had not been heard of by those — principally K, his family, and friends — who would naturally have heard of him if he had been alive, the law raises the presumption that G is dead. The burden then shifts to the LIC, if it wishes to resist the claim, to prove that G is alive.

The conditions for Section 108 are two in number. First, it must be proved — not merely shown — that the person has not been heard of. The use of the word "proved" in Section 108 (as opposed to "shown" in Section 107) is deliberate and significant. Proving non-existence — proving that someone has not been heard of — is inherently difficult. K must establish this by showing that no information was received about G's whereabouts, that enquiries were made, that perhaps an FIR was lodged about his disappearance, that relatives were contacted, and that G made no contact whatsoever with those who would have heard of him. Second, the persons who have not heard of G must be his close relatives and friends — those who would naturally have maintained regular contact with him if he were alive. K, as his wife, clearly occupies this position. His other relatives and friends would reinforce this proof.

Once these conditions are satisfied, the presumption under Section 108 arises. But it is a rebuttable presumption — and the LIC, to defeat the claim, would have to prove that G is alive. As was held in Bhanumati Dayaram Mhatri v. LIC (AIR 2008 Bom 196), where a certificate of death was taken on proving completion of the statutory period and the life insurance claim was lodged, if the insurer contended that the insured was still alive, it would have to prove that fact, and the fact that premiums were kept up for some years after disappearance was not material to defeat the claim.

In G's case, the circumstances of his disappearance — vanishing during a pilgrimage to the Amarnath cave, a place known for harsh terrain and arduous conditions — add weight to the inference that he perished. The common course of natural events under Section 114 of the IEA (Section 119 of the BSA) also supports the inference: a man who disappears without trace while trekking in treacherous mountain terrain, and is never heard of again, has in all probability died.

The Second and Central Question: Can the Presumption Arise Only After Seven Years?

This is the heart of the problem. The LIC has refused to entertain K's claim and has told her to obtain a court decree that G is presumed to be dead. The question is whether Section 108 requires the mechanical passage of a full seven years before the presumption can be raised at all.

The answer, settled by a series of authoritative pronouncements, involves two connected propositions.

First, the presumption under Section 108 can, in the strict sense, be raised only after the expiry of seven years. As the Supreme Court stated with precision in LIC of India v. Anuradha (AIR 2004 SC 2070): "The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it." This is an absolute rule. There is no judicial discretion to shorten the seven-year period. When the Supreme Court in Sahdeo v. State of UP (2010 3 SCC 705) was invited to draw the presumption where only four and a half years had elapsed since an FIR was lodged about a missing person, it declined.

In G's case, assuming K is approaching the LIC shortly after the disappearance — that is, before August 2002 — the presumption under Section 108 has not yet arisen. K cannot claim the insurance benefit by relying on Section 108 until seven full years have passed since G was last heard of.

Second, however — and this is equally important — the LIC's demand that K "produce a decree from a Court of Law to the effect that G is presumed to have died" represents a misunderstanding of the law. Section 108 does not by itself provide a procedure for obtaining a declaration of death. But the Supreme Court in LIC of India v. Anuradha clarified that the occasion for raising the presumption would arise only when the question is raised before a Court, Tribunal, or before an authority who is called upon to decide whether a person is alive or dead. So long as the dispute is not raised before any forum in legal proceedings, the occasion for raising the presumption does not arise. This means that once seven years have passed, K can invoke the presumption before the LIC or, if the LIC refuses, before a court. She is not compelled to obtain a decree of presumed death as a precondition — she can file a suit for the insurance money and plead Section 108. The court, in that suit, can raise the presumption and direct the LIC to pay.

What the LIC's position ignores is that Section 108 is a rule of evidence applicable in proceedings before a court or tribunal — it is not a substantive right requiring a prior decree. As Sir James Fitzjames Stephen observed: "He who affirms that a man is dead must usually prove it, but if he shows that the man has not been heard of for seven years, he shifts the burden of proof on his adversary." K does not need a pre-existing decree of death before she can file her suit and rely on Section 108 within the suit.

The Critical Limitation: No Presumption as to the Date of Death

A matter of equal practical importance for K's claim is this: while the law raises a presumption that G is dead after seven years, there is no presumption as to the date or time of death. The Supreme Court in LIC of India v. Anuradha expressly stated: "Though it will be presumed that the person is dead, there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died."

This limitation becomes significant for K's insurance claim in a subtle way. The insurance policies were in force, and G vanished on 20.8.1995. The presumption, once it arises after seven years, will be that G was dead — but the date of death is not presumed. In Mohammed Sharif v. Bande Ali (ILR 34 All 36), where the mortgagor disappeared and was not heard of for more than seven years, the Allahabad High Court held that while Section 108 permits the presumption of death, the section cannot be taken as providing that the death took place at any particular point of time. The actual date of death must be proved by independent evidence. Similarly, in Lal Chand Marwari v. Mahant Ramrup Gir (AIR 1926 PC 6), the Privy Council held that "there is only one presumption, and that is that when the suit was instituted he was no longer alive. There is no presumption at all as to the time he died. That, like any other fact, is a matter of proof."

For K's purposes, the fact that the policies were in force at the time of G's disappearance in August 1995 — and the presumption that he died at some point after that — is sufficient to entitle her to claim, provided she can satisfy the LIC or the court that the policies were alive at the time of disappearance and that the premium was paid. The earliest date to which the death can be presumed can only be the date when the claim or suit is filed. It cannot be pushed back further by artificial reasoning.

The Role of Attending Circumstances

An important nuance in the case of G is that the circumstances of his disappearance — going for a pilgrimage to the Amarnath cave in August 1995 — are not ordinary. Amarnath is one of the highest-altitude pilgrimage sites in India, situated in the Himalayas at an elevation of approximately 3,888 metres, prone to harsh weather, glacial hazards, and extreme conditions in August. The common law as well as Indian courts have recognised that in drawing the presumption, the court must also be guided by Section 114 of the IEA (Section 119 of the BSA), which permits the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events and human conduct. The fact that a person went to such a place and never returned strongly corroborates the presumption of death.

Moreover, the courts have also recognised that the court can presume the date of death of an unheard person on the basis of attending circumstances and reliable material on record. In Subhash Ramchandra Wadekar v. UOI (AIR 1993 Bom 64), it was held that the court can use the attending circumstances to arrive at a finding as to when death may have occurred. In G's case, the mountain terrain, the date of disappearance, and the pilgrimage context are all powerful attending circumstances.

The Position Under BSA, 2023

Under the Bharatiya Sakshya Adhiniyam, 2023, the law remains unchanged in substance. Section 110 of the BSA corresponds to Section 107 of the IEA and deals with the burden of proving death of a person known to have been alive within thirty years. Section 111 of the BSA corresponds to Section 108 of the IEA and deals with the burden of proving that a person is alive who has not been heard of for seven years. The provision has been carried forward as it is, without any modification. The judicial interpretation of these sections under the IEA therefore applies with full force to proceedings under the BSA.

Decision and Advice to K

The position, stated directly, is as follows. The presumption under Section 108 of the IEA (Section 111 of the BSA) can be raised in K's favour only after the expiry of seven years from the date G was last heard of — that is, not before 20.8.2002. Before that date, the LIC is technically within its right to resist the claim on the ground that the statutory period has not elapsed. However, once the seven-year period expires, K is entitled, armed with proof that G has not been heard of by those who would naturally have heard of him, to invoke Section 108 before the LIC or before a court. The LIC's demand that K produce a court decree before entertaining the claim has no statutory basis — K can file a suit directly and rely on the presumption within those proceedings. The presumption, once raised, shifts the burden to the LIC to prove that G is alive, which in the circumstances would be well-nigh impossible. As to the date of death, K must, if it becomes relevant, establish the date through the attending circumstances — the pilgrimage, the terrain, the date of disappearance — and the court may use those circumstances under Section 114 of the IEA to arrive at a finding. The insurance claim of K must therefore ultimately succeed, provided she approaches the appropriate forum after the expiry of seven years and proves the conditions of Section 108.