Missing Person - Presumption

Missing Person - Presumption

The question of the death of a missing person, under the Hindu law, is simply a question of evidence and not of succession.

In the case of Janmajay Mazumdar v. Keshab Lal Ghose 2 B.L.R. A.C. 134 it was held by the High Court of Calcutta that when a Hindu disappears and is not heard of for a length of time, no person can succeed to his property as heir until the expiry of twelve years from the date on which he was last heard of.

And a similar rule appears to have been adopted by the same Court in Guru Das Nag. v. Matilal Nag 6 B.L.R. Ap. 16. 

But both these rulings are antecedent to the Evidence Act which now regulates all questions of evidence.

The Full Bench ruling of the Allahabad High Court in Parmeshar Rai v. Bisheshar Singh I.L.R. 1 All. 53 where it was held that in a suit by a reversioner next after a missing reversioner the death of such missing reversioner might, for the purposes of such a suit, be presumed under the provisions of Section 108 of the Evidence Act.

Now, Sections 107 and 108 of the Evidence Act may be read together, because the latter is only a proviso of the rule contained in the former, and both constitute one rule when so read together. 

The sections are thus worded:

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. 

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."

The rule so enunciated has obviously been borrowed, with hardly any modification, from the English law of evidence as stated in Taylor's celebrated work (Section 157, 2nd ed.).

It quoted the following passage: "In such case, after the lapse of seven years, the presumption of life ceases, and the burden of proof is devolved on the other party. This period was inserted, upon great deliberation, in the statutes respecting bigamy, and the statute concerning ceases for lives, and has since been adopted, by analogy, in other cases. 

But although a person who has not been heard of for seven years is presumed to be dead, the lair raises no presumption as to the time of his death; and therefore, if any one has to establish the precise period during those seven years at which such person died, he must do so by evidence, and can neither rely, on the one hand, upon the presumption of death, nor, on the other, upon the presumption of the continuance of life.