DECLARATION OF CIVIL DEATH

RELATED PROVISIONS

SPECIFIC RELIEF ACT 1963 - SEC 34

CODE OF CIVIL PROCEDURE  1908 - SEC 9

INDIAN EVIDENCE ACT 1872 - SEC 107 & 108

(Should be Filed as Civil Suit)

It is undisputed that a declaration as to civil death is a declaration as to the status of a person. A declaration as to civil death can be granted by a civil court under section 34 of the Specific Relief Act 1963 read with section 9 of the Code of Civil Procedure 1908. The grant of decree of declaration to declare a civil death of a person is structured on the presumption envisaged in Section 108 of the Indian Evidence Act, 1872. The said provision propounds that if a person 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 upon the person who affirms it.

In effect section 108 of Evidence Act is an exception to the rule enacted in Section 107 of Evidence Act. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the facts and circumstances under which the person may have died.

In LIC of India –Vs- Anuradha [(2004) 10 SCC 131, it was observed by the SC as follows: "Neither Section 108 of the Evidence Act nor logic, reason or sense permits 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. The presumption stands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence- factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death."