Section 107: Burden of proving death of person known to have been alive within 30 years.

When the question is whether that 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. This section deals with the burden of proving death of a person known to have been alive within 30 years. This is the presumption of continuity of life. It provides that the burden lies on the party who asserts it. This section must be read with section 108 of the Act. However both the sections cannot be apply to the same case as a person cannot at the same time be both alive and dead. Section 108: Burden of proving that person is alive who has not been heard of for 7 years. When the question is whether a man is alive or dead, and it is proved that he had 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. This is the presumption of death. If a person, who was not heard from him for not less than 7 years and people would have normally communicated with him within that period if he is alive, the presumption is that he is dead. The burden of proving that he is alive is shifted to the person who affirms it. It must be read with section 107. Section 108 is designed to determine whether a man is alive or dead at the time the question arises in court. Per Augustine Paul JC in Re Othman bin Bachit [1997] 4 MLJ 445, 448, Section 107 deals with the presumption of continuance of life and Section 108 deals with the presumption of death. Section 107 provides that when a persons existence is in question and he is shown to have been living at a given time within 30 years and there is nothing to suggest the probability of

his death, the continuance of life will be presumed and the person who asserts the contrary has the burden to prove it. Paul J cited Smt Mathru v Smt Rani AIR 1986 HP 6, 8, held that, There is no presumption that a person who has not been heard of for a period of not less than 7 years died at the end of the first seven years or on any particular date. The burden of proving the date of death of a person is always on the person who asserts that a person had died on a certain date because there is no presumption about the date of death. The only presumption under Sec. 108 is that a person is dead if he has not been heard of for 7 years and this presumption only arise when a question is raised in court, etc as to whether a person is alive or dead. Such presumption can earliest be drawn when dispute is brought in a court proceeding.

Question 5 Per Augustine Paul J in Re Othman Bachit [1997] 4 MLJ 445, 448 cited Smt Mathruv. Smt Rani AIR 1986 HP 6. What was argued in these cases?

Fact :Osman Bachit (the applicant) applied for an order by way of Motion that his father,Dogol Bachit (the deceased) be presumed to have died 1938 and that he be grantedleave to depose that the deceased died in 1945 pursuant to s 108 of the Evidence Act1950. The deceased passed away in the year 1938 and his death certificate could notnow be located. Osman Bachit applied to the court to grant leave to depose that thedeceased is presumed dead in the year 1945 in order to transfer the land in his favour.

In order to invoke the aid of s 108, two basic facts must be proved. They are: a.the person must not have been heard of for seven years; and b.this must be by those who would naturally have heard of him, if he had been alive.

In this regard, Augustine Paul J referred to Smt Mathru v Smt Rani AIR 1986 HP 6where Gupta J said at p 8: There is no presumption that a person who has not been heard of for a period of not less than seven years died at the end of the first seven years or on any particular date.The burden of proving the date of death of a person is always upon the person whoasserts that a person had died on a certain date because there is no presumptionabout the date of death. The only presumption under s 108 of the Act is that a personis dead if he has not been heard of for seven years and this presumption only ariseswhen a question is raised in a court, etc as to whether a person is alive or dead. Such presumption can earliest be drawn when a dispute is brought in a court or proceeding.

Osman Bachit was praying for an order to determine the date of death of the deceased and the facts disclosed in the various affidavits reveal that there was no dispute in a court or proceeding as to whether the deceased is alive or dead. These are matters which do not come within the ambit of s 108 as under that section: i.no presumption can arise as to when a person died; and ii.such a presumption arises for consideration only when there is a dispute i n a court or proceedings as to whether a person is alive or dead.

In the circumstances, the motion filed by the applicant was not competent because there was positive evidence of the date of death of the deceased. Thus, on the facts presented the applicant

would not even be entitled to a declaration to determine the precise period of death of the deceased.