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Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proving that a Person is Alive Who Has Not Been Heard of for Seven Years[Section 111]
1. Introduction
Questions relating to whether a person is alive or dead frequently arise in civil and criminal proceedings, especially in matters concerning succession, insurance, property rights, or matrimonial disputes. The Bharatiya Sakshya Adhiniyam, 2023 provides specific rules governing the burden of proof in such situations. Section 111 deals with the presumption of death where a person has not been heard of for a continuous period of seven years.
2. Statutory Provision under Section 111Section 111 provides that:
Thus, the law raises a presumption of death after seven years of unexplained absence.
3. Scope and RationaleThis provision is based on the principle of continuity of things. Ordinarily, once a state of affairs is shown to exist, the law presumes that it continues for the period during which such a state usually lasts. Human life is presumed to continue for a reasonable period, generally up to thirty years, as reflected in Section 110 of the Bharatiya Sakshya Adhiniyam.
Section 111 operates as an exception or proviso to Section 110. While Section 110 presumes continuance of life, Section 111 introduces a presumption of death when the condition of seven years’ absence is satisfied. Both sections must therefore be read together.
4. Burden of Proving DeathUnder Section 110, when a person is shown to have been alive within the last thirty years, the burden lies on the party asserting that he is dead. However, once the conditions under Section 111 are fulfilled, the presumption of continuance of life ceases, and the burden shifts to the party who claims that the person is still alive.
To attract Section 111, the following conditions must be proved:
(i) Absence for Seven YearsThe person must not have been heard of for a continuous period of seven years. Such absence gives rise to a rebuttable presumption of death.
(ii) Persons Who Would Naturally Have HeardThe absence must be established with reference to persons who would naturally and ordinarily have heard of him had he been alive, such as close family members, relatives, or friends.
If a person deliberately avoids contact—for example, an absconder evading arrest—the presumption may not arise, as silence in such cases is not unnatural.
In Hemat Kishore v. Brij Raj Kishore, where the father claimed to have seen his son alive within five years, the court refused to raise the presumption of death despite the claims of the wife and children.
5. No Presumption as to Time or Manner of Death
A crucial limitation of Section 111 is that it raises only a presumption of death, and not of:
In Saroop Singh v. Bantoo, the court held that although death could be presumed due to seven years’ absence, it could not be presumed that death occurred exactly seven years prior to the institution of the suit.
6. Presumption as to Survivorship (Simultaneous Deaths)
The principle relating to simultaneous deaths—such as when two persons die in a common calamity and the order of death cannot be determined—is not covered under Sections 110 and 111. Traditionally, the younger is presumed to have survived the elder, but this rule has been statutorily recognized under Section 21 of the Hindu Succession Act, not under the Bharatiya Sakshya Adhiniyam.
7. Judicial Interpretation
In LIC of India v. Anuradha, the Supreme Court examined the interplay between Sections 110 and 111 and laid down important principles:
8. Conclusion
Section 111 of the Bharatiya Sakshya Adhiniyam, 2023 provides a balanced rule of evidence by recognizing human probabilities while safeguarding legal certainty. By shifting the burden of proof after seven years of unexplained absence, it prevents indefinite uncertainty regarding a person’s status. At the same time, by refusing to presume the time or manner of death, the law ensures that critical facts affecting rights and liabilities are established only through proper evidence.
1. Introduction
Questions relating to whether a person is alive or dead frequently arise in civil and criminal proceedings, especially in matters concerning succession, insurance, property rights, or matrimonial disputes. The Bharatiya Sakshya Adhiniyam, 2023 provides specific rules governing the burden of proof in such situations. Section 111 deals with the presumption of death where a person has not been heard of for a continuous period of seven years.
2. Statutory Provision under Section 111Section 111 provides that:
- When the question is whether a person is alive or dead, and
- it is proved that he has not been heard of for seven years by persons who would naturally have heard of him if he had been alive,
Thus, the law raises a presumption of death after seven years of unexplained absence.
3. Scope and RationaleThis provision is based on the principle of continuity of things. Ordinarily, once a state of affairs is shown to exist, the law presumes that it continues for the period during which such a state usually lasts. Human life is presumed to continue for a reasonable period, generally up to thirty years, as reflected in Section 110 of the Bharatiya Sakshya Adhiniyam.
Section 111 operates as an exception or proviso to Section 110. While Section 110 presumes continuance of life, Section 111 introduces a presumption of death when the condition of seven years’ absence is satisfied. Both sections must therefore be read together.
4. Burden of Proving DeathUnder Section 110, when a person is shown to have been alive within the last thirty years, the burden lies on the party asserting that he is dead. However, once the conditions under Section 111 are fulfilled, the presumption of continuance of life ceases, and the burden shifts to the party who claims that the person is still alive.
To attract Section 111, the following conditions must be proved:
(i) Absence for Seven YearsThe person must not have been heard of for a continuous period of seven years. Such absence gives rise to a rebuttable presumption of death.
(ii) Persons Who Would Naturally Have HeardThe absence must be established with reference to persons who would naturally and ordinarily have heard of him had he been alive, such as close family members, relatives, or friends.
If a person deliberately avoids contact—for example, an absconder evading arrest—the presumption may not arise, as silence in such cases is not unnatural.
In Hemat Kishore v. Brij Raj Kishore, where the father claimed to have seen his son alive within five years, the court refused to raise the presumption of death despite the claims of the wife and children.
5. No Presumption as to Time or Manner of Death
A crucial limitation of Section 111 is that it raises only a presumption of death, and not of:
- the time of death, or
- the manner or circumstances of death.
In Saroop Singh v. Bantoo, the court held that although death could be presumed due to seven years’ absence, it could not be presumed that death occurred exactly seven years prior to the institution of the suit.
6. Presumption as to Survivorship (Simultaneous Deaths)
The principle relating to simultaneous deaths—such as when two persons die in a common calamity and the order of death cannot be determined—is not covered under Sections 110 and 111. Traditionally, the younger is presumed to have survived the elder, but this rule has been statutorily recognized under Section 21 of the Hindu Succession Act, not under the Bharatiya Sakshya Adhiniyam.
7. Judicial Interpretation
In LIC of India v. Anuradha, the Supreme Court examined the interplay between Sections 110 and 111 and laid down important principles:
- Section 111 is an exception to Section 110.
- Section 110 shifts the burden to prove death on the person asserting it.
- Section 111 shifts the burden back to the person asserting that the individual is alive.
- The presumption under Section 111 is limited strictly to the fact of death.
- No presumption arises regarding the date, time, or cause of death.
- The presumption arises only after the full lapse of seven years, not even a day earlier.
- The presumption can be raised only when the issue is brought before a competent court or authority.
- If a specific date or time of death is asserted, it must be proved by evidence and not by presumption.
8. Conclusion
Section 111 of the Bharatiya Sakshya Adhiniyam, 2023 provides a balanced rule of evidence by recognizing human probabilities while safeguarding legal certainty. By shifting the burden of proof after seven years of unexplained absence, it prevents indefinite uncertainty regarding a person’s status. At the same time, by refusing to presume the time or manner of death, the law ensures that critical facts affecting rights and liabilities are established only through proper evidence.
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