Presumption of Life and Death under Sections 110 and 111 of the Bharatiya Sakshya Adhiniyam, 2023

Two short sections, thirty years and seven years apart, decide who must prove whether a missing person is alive. They are read together as a single scheme: life continues until somebody proves it has ended, and after seven years of unexplained absence the position reverses. What neither section does — and this is the point on which more claims fail than any other — is fix the moment at which death occurred.

1. The Two Provisions

Section 110 corresponds to Section 107 of the Indian Evidence Act and Section 111 to Section 108. In the earlier Act, Section 108 was expressed as a proviso to Section 107, and the two have always been read as a single scheme.

Neither section is framed as a presumption. Both are framed as rules about the burden of proof, and they operate by placing on a stated person the obligation to prove a stated fact. The practical effect is the same as a presumption, and the decisions frequently describe them that way, but the statutory language is worth noticing because it explains why the sections say nothing about the content of what is presumed.

2. Section 110 — The Continuance of Life

The section gives effect to the ordinary continuity of things. A person shown to have been alive within thirty years is taken to continue alive, and whoever asserts that he has died must prove it.

Three elements must be established before the section operates.

1. The question must be whether a man is alive or dead. The section applies where that is a fact in issue or a relevant fact, not to a collateral question.
2. It must be shown that he was alive within thirty years. This is the foundational fact and must be proved. Evidence that a person was alive thirty-five years ago does not attract the section.
3. Somebody must affirm that he is dead. The burden then lies on that person.

The thirty-year period is a legislative estimate of the span over which the inference of continued life remains reasonable without more. Beyond it the section simply does not apply, and the ordinary rule in Section 104 governs — whoever asserts a state of affairs must prove it.

3. Section 111 — Seven Years' Absence

After seven years the position reverses, and the burden moves to whoever asserts that the missing person is alive.

The foundational facts are more demanding than the section's brevity suggests, and each must be proved.

3.1 Seven years

The period must have run and expired. A person missing for six years is not within the section, and the burden remains where Section 110 placed it.

3.2 Not heard of

The requirement is that he has not been heard of — not merely that he has not been seen. Any communication, any reliable report of his existence, restarts the period.

3.3 By those who would naturally have heard of him

This is the element most often left unproved and it carries real weight. The section does not ask whether anybody has heard of the person; it asks whether those who would naturally have heard of him if he had been alive have heard of him.

What is therefore required is evidence of two things: who those persons are — the spouse, children, parents, siblings, close associates, employer, the community in which he lived; and that enquiries were made of them and produced nothing. A party who deposes only that he himself has not heard of the missing person has not established the foundational fact.

4. The Scheme Read Together

The relationship is sequential. Section 110 operates from the moment a person is shown to have been alive; Section 111 displaces it once seven years of unexplained absence are established. Where the absence is shorter than seven years, Section 110 alone applies and the party asserting death must prove it by ordinary evidence — which is why a claim brought too early is so much harder than the same claim brought later.

5. The Critical Limitation — Section 111 Says Nothing About When

This is the single most important proposition about the section and the one on which most claims founder.

Section 111 shifts the burden on the question whether a person is alive. It establishes nothing about the time of death. There is no presumption that death occurred at the end of the seven years, at the beginning of the absence, on the date of the petition, or at any other moment.

The consequences are practical and are felt across several fields.

• Succession. Where the order of deaths determines who inherits, or where a person must be shown to have survived another, the date must be proved. Section 111 does not supply it.
• Insurance. A policy in force at the date of death is one thing; a policy that lapsed during the seven years is another. The insurer is entitled to require proof of when death occurred.
• Limitation. Where a cause of action accrues on death, the date fixes the running of time.
• Matrimonial relief. Where a spouse remarries on the footing of presumed death, the validity of the second marriage may turn on when the first spouse died.

Where the date genuinely cannot be proved and the statute requires one, the answer is usually to be found elsewhere — in a specific statutory provision fixing a date for the purpose in hand, or in a declaration by the court on the evidence available. The Adhiniyam does not supply it.

6. Where the Sections Are Used

The scheme operates across a wide range of proceedings, and in each the question is the same — who must prove what.

7. What Happens If the Person Reappears

The sections create rules of evidence, not rules of substantive law, and they do not extinguish the rights of a person who turns out to be alive.

Where a person presumed dead reappears, the position depends on what was done in the interval and on the substantive law governing it. A decree of dissolution obtained on the ground of seven years' absence is a judgment of a court and stands until set aside, which is why the matrimonial statutes deal with the matter expressly. Property distributed among heirs is dealt with on ordinary principles, and a person who reappears may have remedies against those who took his estate, subject to limitation and to the protection given to persons who dealt in good faith.

What the reappearance does establish, conclusively, is that the presumption was wrong — and this is a useful reminder of what the sections actually are. They do not determine that a person is dead. They determine who bears the risk of the court being unable to decide, which is a different thing entirely.

8. Proving the Case

A party relying on Section 111 should be prepared to establish the following, and the order matters.

1. When and where the person was last seen or heard of, and by whom. This fixes the start of the period.
2. That seven years have since expired.
3. Who would naturally have heard of him — the spouse, children, parents, siblings, close friends, employer, and the community in which he lived.
4. That enquiries were made of each of them, when, by whom, and with what result. The person who made them should depose.
5. What other steps were taken — a police report, a missing-person complaint, advertisements, enquiries at his last known workplace or residence.
6. Any circumstances explaining the disappearance, which may either support the inference or cut against it — a person who left after a quarrel, or who was in debt, or who was seen boarding a train, is in a different position from one who disappeared without any known reason.
7. Where the date of death is material, evidence directed to it separately, because the section supplies nothing.

9. The Position Stated Shortly

1. Section 110 places the burden of proving death on whoever asserts it, where the person was shown to be alive within thirty years.
2. Section 111 reverses that after seven years' absence, placing the burden of proving life on whoever asserts it.
3. The two are a single scheme, Section 111 having been a proviso to Section 107 in the earlier Act.
4. The foundational fact under Section 111 is demanding — not merely that seven years have passed, but that he has not been heard of by those who would naturally have heard of him.
5. The enquiry must be proved by the person who made it, not asserted in an affidavit.
6. Neither section establishes the date of death — LIC v. Anuradha — and where the date is material it must be proved by evidence.
7. The sections place a burden; they do not find a fact. They decide who loses if the court cannot decide.
8. Circumstances suggesting a motive for disappearance may displace the shifted burden even where the seven years are established.

10. Related Topics and Provisions