FORENSIC SCIENCE PROJECT ON PRESUMPTION OF

DEATH AND PRESUMPTION OF SURVIORSHIP

Submitted to:
AJAY RANGA Submitted by:
Padma Lhadol
Roll no.- 45/18
Sem- 9th (Sec- A)

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 ACKNOWLEDGEMENT

This project has been compiled by Padma Lhadol, of 9th semester on the topic
‘Presumption of Death and Survivorship and submitted to MR. AJAY RANGA
for the internal assessment of Forensic Science course.
I would also like to thank our professor who gave me this opportunity to cover the
said topic. And also want to thank my friends who helped me in this topic.

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 TABLE OF CONTENTS

Presumption of death……………………………………………………………4-6

Cases …………………………………………………………………………………….6

Presumption of survivorship………………………………………………….7-9

Presumptions in case of simultaneous deaths………………………….9

Conclusions………………………………………………………………………………10

References……………………………………………………………………………..11

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 PRESUMPTION OF DEATH

The concept of presumption of death is associated with the legal issues

related to inheritance or succession of property, divorce, re-marriage etc. in
case of a person missing for a long period, and is alleged that the individual
is dead but the dead body is not found. Presumption of a death is
disappearance of a person which are mostly related to each other like spouse,
family, child, heir, creditor (and such party bear the cost).
A declaration that a person is dead resembles other forms of "preventive
adjudication", such as the declaratory judgment1 Different jurisdictions have
different legal standards for obtaining such a declaration and in some
jurisdictions a presumption of death may arise after a person has been
missing under certain circumstances and a certain amount of time.

Presumption of death is governed by sections 107 and 108 of the Indian

Evidence Act 1872, which are as follows:

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.”
In other words, a person is presumed being alive, if there is nothing to
suggest the probability of death within thirty years unless the contrary is
proved by the person who claims him to be dead.

Section 108- “Burden of proving that a person is alive who has not been
heard of for seven years – 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.

_____________________________________________________________
1- Bray, Samuel L. (2010). "Preventive Adjudication". University of Chicago Law Review. 77 (3): 1275.
SSRN 1483859.

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 As per Section 108 of the Indian Evidence Act, it is presumed under certain
conditions, that a person in question is dead, if it is proved that the said
person has not been heard for seven years by them who are expected to hear
about him.
Burden of demonstrating death within thirty years of a person believed to
have been alive. When the issue is if a man is alive or dead, and it is seen
that within thirty years he was alive, the responsibility of showing that he is
dead lies on the person who claims it. The responsibility of demonstrating
that an individual who has not been heard of for seven years is alive.

Given that when the issue is if a man is alive or dead, and it is proven that
those who would normally have heard of him if he were alive have not
learned of him for seven years, the responsibility of demonstrating that he is
alive is [shifted to] the person who asserts it.

Similarly in the case of Balambal vs. Kannammal2, the court held that the
presumption of death could only be invoked if the death or inexistence of
that person is proved when the presumption is raised in the court and no
person can utilize such presumption for generating any type of death record
of the called person.
In Smt. Radha Gajapathi Raju vs. The Assistant Controller of Estate3
duty, it was upheld that there is a presumption of death at the end of seven
years, although there is no presumption as to the actual time of death. The
specific time of death is not a matter of inference, and the burden of proof
lies with the individual seeking the right to prove that the death occurred at a
particular time.
In OIC vs. Mohd Hameed4, it was stated that under Sections 107 and 108
of the Indian Evidence Act 1872, a presumption of death can be formed
when someone is not heard alive by those who should ordinarily have heard
about him within a span of seven years, but no presumption can be derived
about the time and cause of death of the expired.

_____________________________________________________________
2- A.I.R 1989 Madras 248 = 1989-1-L.W. 306)
3- AIR 2017 SC 14
4- AIR 2017 Raj. HC 10
5- AIR 2004 SC 26 [1884

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In L.I.C of India vs. Anuradha5, it was deduced that if, after seven years of
absence, the presumption of death applies, the person shall be assumed to have
died by the end of that time, where the presumption does not apply or is substituted
by proof, it shall be determined on the facts of the case in question.

In T.K Rathnam vs. Varadarajulu6, the dissenting opinion of the learned judge
explains in his judgement that the presumption of the existence of the person or
death of the person is always rebuttable. He also observed that the accurate timing
of death is not a matter of presumption rather it is a matter of evidence.

The court does not declare a missing person dead: the order merely creates a
rebuttable presumption that the person is dead.

5- AIR 2004 SC 26 [1884]

6-AIR 1970 AP 246

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 PRESUMPTION OF SURVIORSHIP

A presumption in law means inferences which are concluded by the court

with respect to the existence of certain facts. The relevant presumption here is
called the ‘presumption of survivorship’.
The concept of presumption of survivorship is associated with the legal issues
related to inheritance or distribution of property when two or more persons, who
are natural heirs of each other, die almost at the same time. Death may occur due to
a common disaster such as aircraft crash, earthquake, shipwreck, road traffic
accident, battle etc..
It is sometimes even suggested that adults have the power of resistance against a
common dangermore than the young and old but it is doubtful if such inferences
could be made against the express provision of law that is applicable to succession
operating for a hindu.
In such cases it has to be decided that who survived for longer time – presumption
of survivorship.
By postmortem examination, it may not be possible to determine, who died earlier
and who later, if the deaths have occurred almost at the same time. In such a case,
it has to be presumed who might have survived whom.

The courts decide on the issue related to the survivorship after examining the
available facts and evidence. In absence of such evidence, following factors
maybe be taken into consideration in determining the presumption of survivorship:

1. Injury: In case the deaths have occurred due to injuries, the presumption of
survivorship maybe on the basis of nature of injury sustained, extend of
hemorrhage, involvement if vital organs and whether death by such injury
can be instantaneous or prolonged.

2. Age: The presumption of survivorship may be made on the basis of age of

the dead person who died in the same incident. Children may succumb to
trauma earlier than adult.
3. Gender: The presumption of survivorship may be made on the basis of
gender of the dead person who died in the same incident. Female may
succumb to trauma earlier than male.

4. Built: The presumption of survivorship may be made on the basis of built of

the persons who died in the same incident. Strong and robust withstand

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 better than weak, debilitated and diseased. Thin built person may succumb to
trauma earlier than strong built.

MODES OF DEATH

Drowning – The females may survive for a less time than the male as the former
are more likely to faint from dread, which delays asphyxia. However, in cases
where there has been struggle for life, men being normally physically stronger will
probably survive women, and those who know swimming will live longer than
those who do not .In cases where bodies are recovered from water, the presence of
severe injuries is likely to be regarded as plea against survivorship, and evidence of
an attempt to save other ,as shown by the position of two bodies, will be strong
proof of survivorship.

HEAT - In case of deaths due to exposure of heat, adults are likely to die earlier
than elderly and younger subjects. However, in case of death due to extensive
burns, children will die earlier.

COLD- Ordinarily, adults are presumed to live longer then the young and the old ,
as the former can endure cold better than the latter. Men generally bear the cold
better than woman, but this hypothesis should be modified by the amount and kind
of clothing, the physical condition of the body, and the habit of using alcohol or
other intoxicating drugs. In case of exposure to cold, young and old subjects are
presumed to die earlier.

STARVATION- In case of death due to starvation, females withstand better than

males. Healthy subjects can tolerate starvation better than weak and sick
individuals. Fat person have better chance of outliving the lean, as they can live on
their fat for some time. Again, one deprived of food alone will live longer than one
deprived of both food and water, as water alone enables a person to live for many
days. In case of children, adults and old people exposed to starvation, children will
die first, then adults and then the old, as the old requires less nourishment than
adults and adults less than children. In the same manner, women consume less food
than men and can bear starvation longer and better.

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BURNS- Children die sooner from the effects of extensive burns than adults do, as
the former are very suspectable to shock the same is true of old people as
compared with the adults.

DELIVERY- When the mother and the child die during delivery without
witnesses, there is strong presumption that the mother survived the child but if she
dies of haemorrage, that is cases of survivorship of a child, it would be necessary
to prove that the child was born alive.

Section 21 of the Hindu Succession Act, 1956 provided that until the contrary is
proved, it shall be presumed that the younger person survives the elder one, in such
situations. The section does not apply in relation to succession to persons other
than Hindus. Section 21 of the Hindu Succession Act,1956 reads as follows:

“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 purpose affecting succession to property , it
shall be presumed, until the contrary is proved, that the younger survived the
elder.”
Section 21 applies to testamentary or intestate succession.

The 69th Report proposed repeal of Section 21 of the Hindu Succession Act, 1956
and insertion of Section 108A as follows:

“108A. Presumption in case of simultaneous deaths.- Where two or more

persons have died in circumstances rendering it uncertain which if them survived
the other or others, such deaths shall, for all purposes, be presumed to have
occurred in order of seniority, of age and accordingly the younger shall be deemed
to have survived the older.

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CONCLUSION
A presumption in the old sense of the word is merely a logical inference, usually
from circumstantial evidence, or it maybe regarded as a fixed rule of law .The
question of survivorship is one which can only arise in connection with the
devolution or descent of property, real or personal, and only in those cases where
its course would be changed by the fact that one person outlived another. It is
usually in connection with some such event as the sinking of the Titanic or a
Conemaugh flood that the question most clearly arises. The terms "common
disaster, .... same accident," "common calamity," "same catastrophe," and similar
terms -are used to indicate the event which has ended the lives of two or more
persons and made it necessary to determine which if any survived.

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 REFERENCES

• https://thelawcommunicants.com/presumption-under-the-indian-
evidence-act-1872/

• https://blog.ipleaders.in/presumption-of-
law/#:~:text=A%20presumption%20in%20law%20means,probable%
20reasoning%20of%20such%20circumstances.

• https://www.legalserviceindia.com/legal/article-6701-presumption-of-
law-and-fact-under-section-113-a-and-113-b-of-evidence-act-
1872.html

• https://www.lawteacher.net/free-law-essays/contract-
law/presumptions-as-to-indian-evidence-act-documents-contract-law-
essay.php

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