The Evidence Act, 1872 (Act No. 1 of 1872)

Section 107: Burden of proving death of person known to have been alive

within thirty years

When the question is whether a 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.

Section 108: Burden of proving that person is alive who has not been

heard of for seven years

Provided that when the question is whether a man is alive or dead, and it is proved that

he 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 to the person who

affirms it.

Comments:

Sections 107 and 108 have to be read together, because both the sections are

complementary to each other. Section 107 is based on the principle of continuity of life,

whereas section 108 is regarded as proviso to section 107. On the other hands, section

107 deals with the presumption of continuance of life, whereas section 108 deals with the

presumption of death.

Principle of Section 107 and 108 of the Evidence Act, 1872 (Act No. 1 of

1872)

Section 107 of the Evidence Act, 1872 (Act No. 1 of 1872) lays down that if a person is

proved to have been alive within 30 (thirty) years it shall be presumed that he is alive and

the burden of proving that he is dead, lies on that person who affirms that he is dead.

Section 108 of the Evidence Act, 1872 (Act No. 1 of 1872) lays down that when it is

proved that a man has not been heard of for 7 (seven) years by those who would naturally

have heard of him if he had been alive, the burden of proving that he is alive lies on the

person who affirms it.

Presumption under Sections 107 and 108 of the Evidence Act, 1872 (Act

No. 1 of 1872)

Section 107 of the Evidence Act, 1872 (Act No. 1 of 1872) suggests that whenever a

person in question is found to be alive within 30 (thirty) years, irrespective of suggestion

of his being dead, the court shall presume that he is alive unless and until any positive

proof of his being dead is proved.

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Whereas the presumption under section 107 is rebuttal, the presumption under section

108 is about to fact of death. In order to qualify the latter presumption, it has to be proved

that the man in question has not been heard of for 7 (seven) years by those persons who

would naturally have heard of him, and they have taken all steps to trace him out and his

whereabouts.

This is the presumption of continuity of life that person may be alive up to 30 (thirty)

years after he was last seen. If a married woman wants to remarry she has to prove that

her husband remains unheard for 7 (seven) years (Section 108) or she has to wait up to 30

(thirty) years. However, a person who was not heard for more than 7 (seven) years cannot

be considered to be dead only on that day on which suit was filed.

Case-Law:

Sections 7 and 8 - Date of Death

Presumption of death of a person - Person not heard of for 7 years and the death is

presumed on the date on which the event in question occurred. (Muhammad Afsar PLD

1957 Pesh. 1 (DB)

Section 108 - Murder Committed in presence of a person

Burden is on him to prove that he was not the murderer. (Akhtari Begum PLD 1960 Kar.

797)

Section 108 - Person not heard of for seven years

Burden of proof on person who alleges that he was alive. (Muhammad Zahur PLD 1957

Custodian (Lahore) 62)

Sections 107 and 108 -

The evidence of PWs 1 and 2 that Md. Ismail has not been heard of since 24-12-1971

which made the section 108 of the Evidence Act applicable as it provides that a person

presumed to be dead if he is not heard of by his family members and relations for more

than 7 years when section 107 of the Evidence Act speaks of presumption for continuance

of life for more than 30 years and in the facts and circumstances of the present case section

107 of the Evidence Act has no manner of application. (Islamic Foundation Bangladesh

vs Firoz Alam 6 BLC 599)

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Distinguished between section 107 and section 108 of the Evidence Act,

1872

Although sections 107 and 108 of the Evidence Act, 1872 (Act No. 1 of 1872) have to

be read together, because both the sections are complementary to each other, but

there are some differences between two sections and which are as follows:

1. Section 107 provides burden of proving death of person known to have been alive

within 30 (thirty) years, whereas section 108 provides burden of proving that

person is alive who has not been heard of for 7 (seven) years.

2. Section 107 deals with the presumption of continuance of life, whereas section 108

with the presumption of death.

3. Section 107 lays down that if a person is proved to have been alive within 30 (thirty)

years it shall be presumed that he is alive, whereas section 108 lays down that when

it is proved that a man has not been heard of for 7 (seven) years it shall be presumed

that he is dead.

4. The presumption under section 107 is rebuttal, whereas the presumption under

section 108 is about to fact of death.

5. Example: If a married woman wants to remarry she has to prove that her husband

remains unheard for 7 (seven) years (Section 108) or she has to wait up to 30 (thirty)

years (Section 107)

So, these are the general differences between section 7 and section 8 in the light of

the Evidence Act 1872. (Act No. 1 of 1872)

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