PRESUMPTION OF DEATH AND

SURVIVORSHIP

Submitted to: Submitted by:

Dr. Ajay Ranga Vanshika Attri

BA.LL.B(HONS.)

Section B, Sem-IX

Roll No.108/13

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CONTENTS: Pg.no.
1. Acknowledgement 3
2. Introduction 4
3. Presumption in general 5
4. May presume, shall presume and Conclusive proof 7
5. Presumption as to death. 9
6. Presumption of survivorship 13
7. Conclusion 16
8. Bibliography. 17

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr.

AJAY RANGA ,who gave me the golden opportunity to do this wonderful
project on the topic "RESUMPTION OF DEATH AND SURVIVORSHIP",
which also helped me in doing a lot of Research and i came to know about so
many new things I am really thankful to them.

Secondly i would also like to thank my parents and friends who helped me a lot
in finalizing this project within the limited time frame.

Vanshika Attri

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INTRODUCTION
Forensic science is defined as the application of science in answering questions
that are of legal interest. More specifically, forensic scientists employ
techniques and tools to interpret crime scene evidence, and use that information
in investigations. Forensic scientists and technicians come from a variety of
academic backgrounds, although most have completed coursework in the life
sciences, chemistry and law enforcement. Forensic scientists often work as
generalists, meaning that they have expertise in working with a wide variety of
evidence types. However, many also specialize in the use of certain techniques
and tools. Different types of evidence require different skills and equipment.
Types of evidence that are most frequently analyzed during investigations
include: trace evidence and biological and ballistic evidence. Trace evidence is
found wherever an object or person has had contact with another object or
person and each of the objects leaves behind some sign of its having been there.
Fingerprints and tire tracks are examples of trace evidence. Biological evidence
will be found wherever there is bodily fluid or human or animal remains, and
can include DNA testing. Ballistics is the study of firearms and, in particular,
the path that a bullet takes during flight.1

Forensic science is the combination of two different Latin words: Forensic and
science. The former, forensic, relates to a discussion or examination performed
in public. Because trials in the ancient world were typically held in public, it
carries a strong judicial connotation. The second, of course, is science, which is
derived from the Greek for knowledge and is today closely tied to the scientific
method, a systematic way of acquiring knowledge. Taken together, then,
forensic science can be seen as the use of the scientific methods and processes
in crime solving.2
1
https://www.omicsonline.org/scholarly/forensic-investigation-journals-articles-ppts-list.php
2
www.criminalforensicinvestigation.org

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Despite its ancient etymology, forensic science is anything but old-fashioned.
Branches of forensic science are rooted in almost every branch of science and
many other aspects of modern society. Because of its ability to find and present
objective evidence from areas as diverse as chemistry and accounting, today it
is recognized as an essential part of the judicial system.

Why essential- Because when it comes to cases of life and death, objective
evidence is crucial. While key evidence in criminal cases may have come from
witnesses or other subjective means in the past, forensic science allows for
objective evidence. That means that forensic evidence, based as it is on the
scientific method, is seen as more reliable than even eyewitness testimony. In a
judicial system which maintains that the accused is innocent until proven guilty,
evidence gathered by forensic scientists is now regularly used by both the
defence and the prosecution in many court cases.

PRESUMPTION-A presumption is an acceptance of a fact as true or existent

based upon its strong probability evident from the circumstances. For example,
if a man has not been heard from for 7 years by his closest relatives, the court
may believe in that the man is dead. This is a presumption. Thus, when the court
presumes the existence of a fact because of its strong probability but without a
direct or conclusive proof, it is called as presumption. When a court presumes a
fact, the party in whose favour the fact is, is relieved of the initial burden of
proof. For example, as per Negotiable Instruments Acts, every holder of an
instrument is presumed to be a holder for consideration. So if a person A holds a
cheque signed by another person B, it is presumed that A has given
consideration for the cheque and so Adobes not have to provide any proof of
that consideration. Of course, this presumption only applies at the beginning.
The other party is free to provide proof that disproves the presumption. For

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example, the opposite party can show letters by the person or recent photograph
of the person showing that he is still alive.3

PRESUMPTION IN GENERAL
In the books of Law, a presumption can be of two kinds - presumption of fact
and presumption of law

.Presumption of Fact:

Presumption of fact are those presumption about things or events that happen in
day to day life, which we accept as true due to inference drawn logically and
naturally by our mind. Such as, presumption that a man with blood
stained clothes and a knife in his hands is the murderer. Such presumptions are
rebuttable from further evidence.

Presumption of Law:

Presumption of law is arbitrary consequences that are annexed by law to

particular facts. They are legal fiction. They may not be same as the inferences
that we may ordinarily draw but the law prescribes that such inference may be
drawn. For example, it is a presumption of law that a child below seven years of
age is not capable of committing a crime. Or that a person who has not been
heard from for seven years is dead.

Such presumptions may or may not be rebuttable depending on the law. For
example, the presumption that a child below seven years of age is not capable of
committing a crime cannot be rebutted. Law presumes the age of the child as
conclusive proof of his innocence. But the presumption that a person is dead
when he is not heard from for 7 years is rebuttable by showing evidence.

3
Dr. Bahadur, Rai, “Book of Medical Jurisprudence and Toxology”, 7 th Edition.

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May Presume and Shall Presume
In a general sense, correspond to the above classification. The first part deals
with defining "May Presume" as follows -

"May presume" -

Whenever it is provided by this Act that the Court may presume a fact, it may
either regard such fact as proved, unless and until it is disproved, or may call for
proof of it. It gives the court a discretionary power to presume the existence of a
fact. Which means that the court may regard the fact as proved unless and until
it is disproved? For example, in the case of Dr T T Thomas’s Elisa AIR
1987,where a doctor failed to perform an emergency operation due to lack of
consent, the court presumed that the consent was there since the patient was
brought to the hospital. It was up to the doctor to prove that the consent was not
there. The court may also ask for further proof before making the
presumption. All the presumptions of this kind, which says that the court may
presume the existence of any fact which it thinks likely to, have happened
regard being had to the common course of natural events, human conduct, and
public and private business, in their relation to the facts of the particular
case. For example, the court may presume that a man who is in possession of
stolen goods soon after theft, is either the thief of has received the goods
knowing them to be stolen, unless he can account for his possession. The
second part of the section for defines "Shall Presume" as follows -

"Shall presume" -

Whenever it is directed that the Court shall presume a fact, it shall regard such
fact as proved, unless and until it is disproved. It basically forces the court to
presume a fact that is specified by the law unless and until it is disproved. The
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court cannot ask for any evidence to prove the existence of that fact but it may
allow evidence to disprove it.

.For example;

provides that where any document, purporting or proved to be thirty years old,
is produced from any custody which the Court in the particular case considers
proper, the Court may presume that the signature and every other part of such
document, which purports to be in the handwriting of any particular person, is
in that person's handwriting, and, in the case of a document executed or attested,
that it was duly executed and attested by the persons by whom it purports to be
executed and attested.

Conclusive proof - When one fact is declared by this Act to be conclusive

proof of another, the Court shall, on proof of the one fact, regard the other as
proved, and shall not allow evidence to be given for the purpose of disproving
it. For example, birth during marriage is a conclusive proof of legitimacy.4

PRESUMPTION OF DEATH:
The question of presumption of death arises at the time of obtaining property or
any kind of inheritance, When a particular person has gone abroad and has not

4
Dr. Lal, Rattan, “ The Law of Evidence”, 26 th Edition.

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been heard of for a considerable time, or when he is alleged to have been dead
and the body is not forthcoming .The Indian law presumes that the person is
alive ,if he is proved to be alive with in the last 30 years, unless his friends and
relatives have not heard from him for 7 years. The law however does not
presume anything as to time of death that has to be proved from the evidences
Section 107 and section 108 of Indian evidence act talks about it. 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. Whereas Section 107 deals
with the presumption of continuance of life, Section 108 with the presumption
of death. Section 107 is merely a deduction from this presumption. Section 107
of the Indian Evidence Act provides that if a question whether a man is dead or
alive is raised and if such person was alive within 30 years of the question being
raised, the burden of proving that he is dead is on the person, who affirms it. In
other words, Section 107 permits a presumption to be drawn that such a person
is alive. On the other hand, Section 108 of the Act provides that when such a
question is raised and if it is proved that the person in question has not been
heard of for 7 years by those who would have naturally heard of him if he had
been alive, the burden of proving that the person is alive is shifted to the person
who affirms it. A reading of the two provisions of the Indian Evidence Act as
noted above would go to show that Section 108 really carves out an exception to
the rule laid down in Section 107 of the Act. The presumption that the person is
alive permissible under Section 107 of the Act will cease to operate if such
person has not been heard of for a period of 7 years and in such a situation a
presumption in law will arise that the person is dead, which presumption,
however, can be rebutted by proof being laid that the person is alive. Such proof
is required to be adduced by the one who affirms that such person is alive.5

5
http://www.avensonline.org/medical/forensic-investigation/home-14/

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SECTION 107 and SECTION 108-
Section 107 lays down-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.

Section 108 lays down that when it is proved that a man 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 lies on the person who affirms it.
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 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. Both presumptions under

sections 107 and 108 come into play after a suit is instituted. Where
the presumption of death after seven years absence applies, the person will be
presumed to have died by the end of that period; where the presumption does
not apply, or is displaced by evidence, the issue will be decided on the facts of
the particular case. In some old cases, where neither the evidence nor the
incidence of the burden of proof was decisive, the court made the best order it
could in the circumstances. Where the question to be decided, for purposes
affecting the title to property, is which of two persons died first, a statutory rule
may apply.6

Presumption:
6
https://definitions.uslegal.com/p/presumption-of-death/

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In Subhash Ramcharan Wadekar v. UOI7, it was observed that the person who
has not been heard of from seven years should be presumed to be dead.
Ordinarily it is presumed that such a person should be presumed to be dead after
seven years and not before that. There is no universal proof as to the dare of
death. Section 108 of the Indian evidence act enacts a rebuttal presumption
about the person who has not been heard of for seven years. In this context the
presumption is the same in the English as well as the Indian Law. It is not a
CONCLUSIVE PERSUMPTION but a rebuttable presumption.

Presumption made under section 108 is not exhaustive, it is possible for the
court that in existing circumstances and material on record that the court can
make presumption as to the date of the death. In other words there can be no
presumption as to the date of death.

The meaning of these two sections can be clear with the help of following
example:

The question arises when did A died. No proof about the exact date of death is
available .This question arose in 1950. One of the parties filed the deed of
mortgage executed by A in 1922.Now for the time being upon the proof of this
fact it will be presumed that A was alive on that date of the suit and the burden
shifts on the other side who tries to prove otherwise. Now the other side who
tries to prove to that A was dead adduces evidences that nothing was heard
about A by the members of the family or near and dear friends since 1942. This
evidence being led presumption about A being alive will be changed and it will
be presumed that he is dead. Now if the other party wants to prove that he is
alive he may succeed only if he proves by direct evidence that A is alive, It is
clear that if a man is said to be alive between 30 years he may be presumed to
be alive on the date of issue unless and until it is proved that he has not being

7
1968 AIR 1270, 1968 SCR (2) 354

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heard of for more than 7 years by those who must have heard of him, had he
been alive and the moment this fact is proved, the presumption about the person
being alive is lost, to the contrary is presumed that he is dead.

East Punjab province v. Bachan Singh 8Where a person is absconding from

justice in order to evade a trial upon a charge of murder, in such a case he if is
not meeting his relatives then he would not be presumed to be dead because in
such a case he would not himself meet them.

The presumption under this section is that if a person has been unheard of for a
period not less than seven years, howsoever long the period of disappearance
may be the only presumption and conclusion possibly would be that the person
died when the question arose, that is the date of plaint, So long as the dispute is
not raised before any Forum and in legal proceedings the occasion for raising
the presumption does not arise.

No presumption as to time of death:

The presumption under this section only extends to the fact of death of a person
but not that at what time the man died. “The exact time of death is not a matter
of presumption but of proof of evidence.” In a case, where only a period of 4Vi
years had elapsed, section 108 was not applicable; the presumption under
section 108 could not be drawn. In Md. Sharif v Bande Ali 9their Lordships of
the Allahabad High Court held that “the only presumption is that ‘M’ is dead.

There is no presumption that he died in the first seven years or in the last seven
years. The presumption merely is that he was dead the burden of showing that
he was alive being thrown upon the defendant if it was necessary for them to do
so.” The Supreme Court in other cases also, held that there is no presumption of
the exact time of death and the date of death has to be established on evidence
8
AIR 1957SC.
9
(1912) ILR 34 All 36

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by the person who claims a right for the establishment of which that fact is
essential.

Even, otherwise, court may, in the circumstances of each case, make a

presumption even regarding time of death. Where the death of a woman was not
in question under section 108 the court shall presume that she was dead having
not heard of for the period of seven years, it is itself not the ground to presume
that she had died seven year prior to the date of institution of suit.

PRESUMPTION OF SURVIVORSHIP:
The question of survivorship arises in the distribution of property, when several
persons, naturally hires each other lose their lives in a common disaster. In such
cases English law does not lay down any rule and hence, The courts are
influenced in establishing The survivorship from the facts and evidences where
available. In the absence of such evidences the following conditions should be
taken into consideration in determining the question of survivorship with a
reasonable certainty:-

Injury-wounds even if small and insignificant inflicted on the vital organs or

main blood vessels are likely to produce death much earlier than injuries even
though extensive inflicted on those parts of body which are not vital.

Age- The adults have got the power of resistance against a common danger
more than young and old and it is therefore presumed that the former will
survive the latter, but much will depend on the mood of death.

Sex-The males stronger are presumed to survive longer than the females but
when there is the question of physical endurance females will live longer than
males as the former can withstand the severe physical strains better than the
later.

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Constitution-The vigorous and healthy individuals are ordinarily presumed to
live longer than the weak and debilitated from disease. Healthy individuals have
better immune system to fight from outside influences.10

Modes of death:

Drowning- Females are presumed to survive longer then man however in case
where there has been a struggle for life men being stronger will probably
survive women and those who know swimming will live longer than those who
do not.

Heat-Old can tolerate heat better than adults and children, and children are
presumed to tolerate heat better than adults. So here one can presume that adults
have the least chance of survival when subjected to sever heat conditions as
compared to children and old people.

Cold-Men are presumed to have more resistance power than that of women
when subjected excessive cold conditions, therefore in any given situation of
such kind a male will survive the female, but then again much will depend upon
the clothes an individual is wearing. If between a male and a female, the female
is found wearing more woollen clothes then chances are she would survive the
male with less woollen clothes on.

Burns-When it come to burn injuries, young children and old people are
because of less resistance power of the body cannot survive for longer, where
the adults have more survival chances here comparatively.

Delivery-When it is case of death during pregnancy or while delivering the

child, it is a general presumed as to the survival of the child before mother,
10
Dr. Vij, Krishan, “Forensic Medicine and Toxology; Principles and Practice”, 5 th Edition.

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meaning thereby-if both the mother and the child die during delivery then it is
presumed that the child died first and the mother later. However, if it is a case of
death by haemorrhage then mother is presumed to have died first.

Starvation-It is presumed that people who are fat can easily survive starvation
as their body can keep consuming the fat and produce energy from it as
compared to people who are already lean and slim.

Suffocation-It is presumed that females requirement for oxygen is

comparatively low than that of the males because of the same they can survive
their male counterparts when suffocated.

In addition to the above considerations a medical man should note the presence
of the degree of warmth to ascertain which of them died first it’s everybody’s
meeting death in the same accident was sent to post-mortem.11

CONCLUSION:
It can be concluded from the above discussion that presumption is an
acceptance of a fact as true or existent based upon its strong probability evident
from the circumstances. For example, if a man has not been heard from for 7
years by his closest relatives, the court may believe in that the man is dead. This

11
Supra, 3.

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is a presumption. Thus, when the court presumes the existence of a fact because
of its strong probability but without a direct or conclusive proof, it is called as
presumption. When it comes to dealing with presumption as to death the two
main sections which come into picture are section 107 and section 108 of the
Indian evidence act, Section 107 of the Indian Evidence Act provides that if a
question whether a man is dead or alive is raised and if such person was alive
within 30 years of the question being raised, the burden of proving that he is
dead is on the person, who affirms it. In other words, Section 107 permits a
presumption to be drawn that such a person is alive. On the other hand, Section
108 of the Act provides that when such a question is raised and if it is proved
that the person in question has not been heard of for 7 years by those who would
have naturally heard of him if he had been alive, the burden of proving that the
person is alive is shifted to the person who affirms it. A reading of the two
provisions of the Indian Evidence Act as noted above would go to show that
Section 108 really carves out an exception to the rule laid down in Section 107
of the Act. When we talk about the question of survivorship it arises in the
distribution of property generally, when several persons, naturally hires each
other lose their lives in a common disaster. In such cases English law does not
lay down any rule and hence, the courts are influenced in establishing the
survivorship from the facts and evidences where available. In the absence of
such evidences the following conditions should be taken into consideration in
determining the question of survivorship with a reasonable certainty.

REFERENCES
 Textbook of Forensic Medicine & Toxicology: Principles &
Practice – 5th edition
By Krishan Vij.

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  A Text-Book of Medical Jurisprudence and Toxicology
By Rai Bahadur.

 The Law Of Evidence -26th edition

By Ratan Lal Dhiraj Lal.
 https://www.omicsonline.org/scholarly/forensic-
investigation-journals-articles-ppts-list.php
 http://www.avensonline.org/medical/forensic-investigation/
home-14/

 https://definitions.uslegal.com/p/presumption-of-death/

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