Missing Person Presumed Dead

20 Nov 2018

Missing Person Presumed Dead

To understand the position of law as regards to the Sections 107 and 108 of the Evidence Act, the same is mentioned as under:

"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." 

"108.Burden of proving that person is alive who has not been heard of for seven years.-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."

Can a person be declared dead on the presumption of considering that person dead? Or is it normal to declare a person dead if he has not contacted his immediate family for a certain period of time? Is there any evidence required to prove that the person is living or dead? If yes, then upon whom the onus of producing evidence to ascertain the claim? Such questions were posed before the Hon’ble Gujarat High Court in an appeal filed against the order passed by the lower Court.

A property in the name of ‘Dhruv Niwas’ was taken on lease-hold rights of 99 years by the Balkrishna Muljibhai Dhruv. After the death of Balkrishna Muljibhai Dhruv, the said suit property devolved upon his three sons viz., 1) Prabhasankar Balkrishna Dhruv, 2) Ratilal Balkrishna Dhruv, 3) ArvindBalkrishna Dhruv.

Arvind left his house in 1970 and the family did not bother to inquire about his whereabouts as Arvind gets irritated when asked about the same. When Arvind did not return after 3-4 months, his brothers made an inquiry but could not trace his whereabouts.

After about 40 years when the present legal representatives of the said property i.e sons of Prabhasankar and Ratilal wanted to sell the property but could not because of the name of Arvind in the property and hence they filed a civil suit in City Civil Court, Ahmadabad.

The lower Court was of the opinion that no reasonable efforts were made to trace out Arvind. It relied upon the judgment of the Hon'ble Gujarat High Court in 2009 Vl-1 GLH 164 in the matter of Puja Vijay Raichandani Wd/o. Vijay M. Raichandani and others, it was shown and established that a missing report was filed before the concerned police station and as per the police record, the whereabouts were not known. Also, it has been held that if the whereabouts of the person concerned are not known from the other persons who are naturally supposed to know about him for about seven years or more, the presumption can be drawn that the person concerned is not alive. However, it is to be borne in mind that burden heavily lies upon the plaintiffs to establish beyond any reason of doubt that all efforts were made to trace out the person for whom relief has been sought for declaring him dead.

Being dissatisfied with the judgment and order passed by the lower Court dismissing the suit, an appeal was filed before the Hon’ble Gujarat High Court.

The Hon’ble Court while deciding the case, observed, “Neither Section 108 of Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years absence and being unheard of having elapsed before that time.”

Hence the Court concluded as under:

“I am unable to agree with the view taken by the trial Court that in the absence of an F.I.R. or any police investigation or police record or in absence of any public notice, the presumption under Section-108 of the death can not be drawn. I am saying so because Section-108 of the Evidence Act does not provide any particular procedure to be followed for the presumption of death.”

Further the Court noted in the judgment, “Where a person is continually absent from home for a period of seven years unheard of by persons known other than his own family members, who would have naturally received intelligence from him, he is presumed to be dead. The burden of proving that he is alive thereafter is shifted to the person, who affirms that he is not dead. It is a rebuttable presumption.”

The Court has held in the judgement that “Considering the fact that Arvindbhai was not under any distress or disability nor was he in the situation where from he could not contact his family members coupled with the fact that he has not contacted his family members at all since 1970 makes me, as a man of ordinary prudence, believe that Arvindbhai must have died in 1970 or soon thereafter.”

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