- (1.) In this petition directed against the order of the Deputy Director, the only controversy that now survives for consideration is whether presumption of law raised under Sections. 107 and 108 of the Indian Evidence Act in relation to a person who has not been heard of for seven years by those who would have naturally heard of him extends to the death or also to the time of death at any point within seven years or immediately after expiry of the aforesaid period.
(2.) There appears to be no judicial divergence that Section 108 enacts a rule of legal presumption that a person not heard of for seven years by those who would naturally have heard of him shall be ; presumed to be dead. But there is no unanimity in respect of the point when death shall be presumed to have taken place. In Shankarappa v. Sheo Durappa, AIR 1963 Mys 115 a Division Bench of the Mysore High Court relying on two English decisions in Chipchase v. Chipchase, 1939 3 AER 895 and Watkins v. Watkins, 53 AER 1113 agreed with the principle laid down by the Madras High Court in Balnicken v. Achmanicken, AIR 1921 Mad 285 and held : In a case where the point of time of which the death has to be referred, may be placed indifferently either wherein the seven years or after the lapse of seven years (it not being necessary to show that the person lived during the same year), there is a presumption after the lapse of seven years in favour of the death and it is for the other side to displace the presumption and the party relying on the presumption is entitled to succeed if no evidence is offered by other side.
(3.) In Venkateswarly v. Bappaiya, AIR 1957 AP 381, a Division Bench of Andhra Pradesh High Court held: Now the question is whether there is any warrant either on the language of the section or on the authority of the decided cases, for the view that if the exact date of death is not proved the earliest date on which the death could be presumed is the date on which the suit was filed. The true rule is that, the presumption under Section 108 of the Evidence Act extends to the fact of death at the expiration of seven years and not to the time of death at any particular period. There is no ? presumption that death took place at the end of seven years or at any particular time within that period. The exact time of death is not a matter of presumption but of proof by evidence, and the onus of proving that death took place at a particular time within the period of seven years lies on the person who claims a right for the establishment of which that fact is essential. If that is the true rule death cannot be presumed to have occurred on the date on which the suit was filed. It may be presumed that the man is not alive by the date of the institution of the suit but the presumption cannot be that he is dead on that date.;