Sections 107 and 108 of the Indian Evidence Act, 1872: Burden of Proving Life or Death
Sections 107 and 108 of the Indian Evidence Act, 1872 deal with the burden of proof when a court must determine whether a person is alive or dead. Section 107 applies where the person is shown to have been alive within thirty years, while Section 108 provides a special rule where the person has not been heard of for seven years by persons who would naturally have heard of him or her.
Meaning of burden of proof in this context
The expression burden of proof identifies the party who must establish a fact asserted before the court. Sections 107 and 108 create connected rules for the particular question whether a person is alive or dead. Section 108 operates as a proviso to the general rule in Section 107 and shifts the burden when the statutory conditions relating to seven years of absence and lack of communication are proved.
Section 107: Burden of proving death of person known to have been alive within thirty years
Where the question is whether a person is alive or dead, and it is shown that the person was alive within the preceding thirty years, the burden of proving death lies on the person who asserts that the person is dead.
How Section 107 works
- The issue before the court must concern whether a person is alive or dead.
- There must be proof that the person was alive at some time within thirty years.
- Once that foundational fact is shown, the party alleging death carries the burden of proving it.
Section 108: Burden of proving that a person is alive after seven years unheard of
When it is proved that a person has not been heard of for seven years by those who would naturally have heard of that person if alive, the burden shifts to the person who asserts that the missing person is still alive.
Conditions for applying Section 108
- The question must be whether the person is alive or dead.
- The person must not have been heard of for a continuous period of seven years.
- The absence of news must be from persons who, in the ordinary course, would naturally have heard from or about the missing person if that person were alive.
- After these facts are proved, the burden of proving that the person is alive shifts to the party asserting continued life.
Relationship between Sections 107 and 108
Section 107 states the general rule based on continuity of life where a person is shown to have been alive within thirty years. Section 108 qualifies that rule in the special situation of a person who has not been heard of for seven years by those who would naturally have heard of the person. The two provisions therefore determine which party bears the evidentiary burden; they do not dispense with proof of the foundational facts required by the relevant section.
Does Section 108 prove the exact date of death?
Section 108 concerns the burden of proving whether a person is alive or dead after the required seven-year absence is established. The statutory rule does not itself state that death occurred on the expiry of seven years, nor does it specify the exact date, time, or circumstances of death. Where the precise date of death is independently material to a claim, that issue must be established on the evidence applicable to the particular proceeding.
Practical importance
Questions under Sections 107 and 108 can arise in civil disputes involving succession, inheritance, property, insurance, matrimonial status, service benefits and other rights that depend on whether a missing person is legally treated as alive or dead. The precise relief and the additional facts that must be proved depend on the governing substantive law and the nature of the proceeding.