Holding

Section 108 creates a limited presumption that the person is dead at the time the question is raised after seven years of absence, does not fix the date of death, and the claimant must prove the date of death; a lapsed policy obliges the insurer to pay only the paid‑up value.

Summary

The wife of a missing insured, Anuradha, claimed the death benefit under a life insurance policy after her husband disappeared and remained unheard of for more than seven years, invoking Section 108 of the Evidence Act. The insurer, LIC, rejected the claim on the ground that the policy had lapsed due to non‑payment of premiums, relying on Rule 14 of its Insurance Manual. The High Court allowed the claim, holding that the presumption of death under Section 108 does not fix the date of death and that the insurer had failed to prove the husband was alive. The Supreme Court clarified that Section 108 only presumes death at the time the question is raised after a seven‑year absence, not at the date of disappearance, and that the burden of proving the date of death rests on the claimant. Consequently, a lapsed policy entitles the claimant only to the paid‑up value, and the appeal was allowed, setting aside the High Court judgments while confirming the insurer’s right to limit payment to the paid‑up amount.

Issues considered

The scope of the presumption of death under Section 108 of the Evidence Act – whether it presumes death at the date of disappearance or only at the time the claim is made after seven years.
Whether the insurer is justified in denying the claim on the ground of policy lapse despite the statutory presumption of death.
The burden of proving the date or time of death for the purpose of claiming insurance benefits.
Whether the claimant is entitled to the full sum assured or only the paid‑up value of a lapsed policy.

Legislation cited

Indian Evidence Act, 1872s. 107, s. 108

Subjects

presumption of deathSection 108life insurance claimpolicy lapseburden of proofpaid‑up valuemissing personstatutory presumption

Judgment

L.l.C. OF INDIA A
v.
ANURADHA

MARCH 26, 2004

[R.C. LAHOTI AND DR. AR. LAKSHMANAN, JJ.] B

Evidence Act, 1872:

Section 108-Presumption as to death-Of a person not having been
heard of for seven years-Drawing of-Held: There is no automatic C
presumption or assumption that a person not heard of for seven years was
dead on the date of his disappearance or soon after the date and lime on
which he was last seen-The only inference permissible was that such a person
was dead at the time when the question arose-At what point of time the
person was dead is not a mat/er of presumption but of evidence, factual or D
circumstantial-The onus of proving that death had taken place at a given
point of time or date lay on the person staking the claim.

Insurance Manual:

Rule 14-life insurance policy-Benefits under-In respect of a person E
reported missing-Husband took life insuran6e policy-Premium was paid
regularly for two years-Subsequently, the husband sudden(v disappeared
and never traced thereafter-Wife preferred claim on the presumption that the
husband was dead as having not been heard for a period of more than seven
years-UC turned down the claim on the ground that the policy lapsed due
to non-payment of premium-However, High Court allowed the claim- F
Correctness of-Held: The policy has to be kept alive by punctual payment of
premiums until claim was made-UC was justified in turning down the claim-
The claimant was only entitled to the paid-up value of the policie~.

The respondent's husband had taken a life insurance policy from the G
appellant. The premium was regularly paid for two years. Subsequently, the
respondent's husband disappeared suddenly and was never to be traced out
thereafter.

The respondent approached the appellant for releas~ of the benefits
629 H
630 SUPREME COURT REPORTS r"004] 3 S CR.

A under the policy on the presumption that her husband was dead as having
not been heard of for a period of more than seven years in terms of Section
108 of the Evidence Act, 1872. The appellant rejected the claim of the
respondent relying on Rule 14 of the Insurance Manual on the ground that
the policy had lapsed due to non-payment of premium. However, the High
Court held that there was no presumption as to the time of death and
B inasmuch as the appellant-UC had failed to show that the respondent's
husband was alive when the claim was preferred, the benefits payable undi~r
the policy were liable to be released to the respondent. Hence, the appeal.

Allowing the appeal, the Court

c HELD: I. I. Neither Section 108 of the Evidence Act, 1872 nor logic,
reason or sense permit a presumption or assumption being drawn or made
that the person not heard of for seven years was dead on the date of his
disappearance or soon after the date and time on which he was last seen. The
only inference permissible to he drawn and based on the presumption is that
D the man was dead at the time when the questicn arose subject to a period of
seven years' absence and being unheard of having elapsed before that time.
The presumption stands un-rcbutted for failure of the contesting party to
prove that such a man was alive either on the date on which the dispute arose
or at any time before that so as to break the period of seven years counted
backwards from the date on which the question arose for determination. At
E what point of time the person was dead is not a matter of presumption but of
evidence, factual or circumstantial, and the onus of proving that the death
had taken place at any given point of time or date since the disappearance or
within the period of seven years lies on the person who stakes the claim, the
establishment of which will depend on proof of the date or time of death.
F 1636-G-H; 637-A-q

N. Jayalakshmi Ammal v. P. Copa/a Pathar, [19951 Supp. 1 SCC 27 and
Darshan Singh v. Gujjar SJngh, [20021 2 SCC 62, relied on.

Lal Chand Afarwari v. Mahanl Ramrup Gir, AIR (1926) PC 9 and Re:
Phene 's Tmsts, (1970) 5 Ch. App. 139 and Chipchase v. Chipchase, (1939) P
G 391, referred to.

1.2. A presumption assists a party in discharging the burden of proof 1·-
by taking advantage of presumption arising in his favour dispensing with the
need of adducing evidence which may or may not be available. 1637-Cj

H Phipson and Elliot: "Manual of the Law of Evidence" I Ith Edn. p. 77,
L.l.C. OF INDIA'" ANURADHA 631
referred to. A

2. The law as to presumption of death remains the same whether in
Common Law of England or in the statutory provisions contained in Sections
107 and 108 of the Evidence Act, 1872. In the scheme of the Evidence Act,
though Sections 107 and 108 are dn:fted as two '>ec:ions, in effect, Section B
I 08 is an exception to the rule enacted in Section I 07. The human life shown
to be in existence, at a given point of time which according to Section 107
ought to be a point within 30 years calculated backwards from the date when
the question arises, is presumed to continue to be living. The rule is subject
to a proviso or exception ·as contained in Section 108. If the persons, who would
have naturally and in the ordinary course of human affairs heard of the person C
in question, have not so heard of him for seven years, the presumption raised
under Section 107 ceases to operate. Section 107 has the effect of shifting the
burden of proving that the person is dead, on hilJI who affirms the fact. Section
I 08, subject to its applicability being attracted, has the effect of that person
being alive. The presumption raised under Section 108 is a limited
presumption confined only to presuming the factum of death of the person D
whose life or death is in issue. Though it will be presumed that the person is
dead but there is no presumption as to the date or time of death. There is no
presumption as to the facts and circumstances under which the person may
have died. The presumption as to death by reference to Section 108 would
arise only on lapse of seven years and would not by applying any logic or E
reasoning be permitted to be raised on expiry of 6 years and 364 days or at
any time short of it. An occasion for raising the presumption would arise only
when the question is raised in a Court, Tribunal or before an authority that
is called upon to decide as to whether a person is alive or dead. So long as the
dispute is not raised before any forum and in any legal proceedings the
occasion for raising the presumption does not arise. 1637-F-H; 638-A-DI F
3. The view taken by the High Court that on the expiry of seven years
by the time the issue came to be l"aised in a court of law and evidence was
adduced that the person was not heard of for ~ period of seven years by the
wife and/or family members of the person then not only the death could be
presumed but it could also be assumed that the presumed death had G
synchronized with the date when he was reported to be missing or that the
date and time of death could be correlated to the point of time coinciding
with the commencement of calculation of seven years backwards from the
date of initiation of legal proceedings cannot be countenanced. 1638-E-GI
H
632 Sl!PREME COl!RT REPORTS 120041 3 S.C.R.

A 4. In order to successfully maintain the claim for benefit under the 4'-.

insurance policies, it is necessary for the policy to have been kept alive by
punctual payment of premiums until the claim was made. The appellant-UC
was justified in turning down the claims by pleading that the policies had
lapsed and all that could be paid to the claimants was the paid-up value of
B the policies. 1638-G-H; 639-AI

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2655 of
1999.

From the Judgment and Order dated 20.11.98 of the Jammu and Kashmir
C High Court in C.l.M.A. No. 107 of 1998.
WITH

C.A. No. 1884 of 2004.

G.L. Sanghi. A. Ranganadhan, Buddy A. Ranganadhan, A.V. Rangam,
D S. Rajappa. V. Ramasubramanian and Sudhir Nandrajog (NP) for the appearing
parties.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Leave granted in SLP (C) No.9334 of 2000.
E
A common question of law centering around Sections I07 and 108 of
Indian Evidence Act, 1872 arises for decision in these two appeals.

ln Civil Appeal No. 2655 of 1999 Sham Prakash Shanna, the late
husband of Mrs. Anuradha, the respondent, had taken a life insurance policy
F from tl)e appellant-Life Insurance Corporation of India (hereinafter, the L!C
or Corporation for short). The policy commenced with effect from 8.2.1986.
The premium was payable every six months. For two years, the premium was
paid. On 17.7.1988 Sham Prakash Sharma was at Bombay' wherefrom he just
disappeared, never to be tra~ed out thereafter. The respondent, Anuradha,
G lodged a first information report with the police. On 11th July, 1988, the L!C
had sent a communication addressed to Sham Prakash Sharma and delivered
at his residence informing that the insurance policy had lapsed for non-
payment of premium. On 29.6.1996, the respondent approached the LIC for
release of benefits under the policy proceeding on an assumption that Sham
Prakash was dead as having not been heard of for a period of more than
H seven years. The LIC turned down the claim of the respondent relying on
L.l.C. OF INDIA v. ANURADHA \LA!lOTI . .!.] 633

Rule 14 of the Insurance Manual which reads as under: A
"Where a person is reported missing, it is to be advised to the claimant
that Life insured will be presumed to be dead after seven years or
production of the decree from the court of law and in the meantime
policy is to be kept in force by making payment nf premium regularly."
B
The respondent approached the State Commission constituted under the
Jammu & Kashmir Consumer Protection Act, 1987 complaining of deficiency
in service on the part of the appellant. The UC defended itself mainly by
submitting that as the policy was not kept alive, the claim was not maintainable.
The State Commission upheld the respondent's claim forming an opinion that
Rule 14 relied on by the appellant was of no relevance in view of the statutory C
presumption arising under Section 108 of the Evidence Act. The appellant
preferred an appeal in the High Court which has been dismissed. During the
course of its judgment the High Court has, by referring to Sections 107 and
108 abovesaid, and also taking into consideration a few decided cases (none
of this Court), formed an opinion that there was no presumption as to the D
time of death and inasmuch as the UC failed to show that Sham Prakash was
alive when the claim was preferred the benefits payable under the policy
were liable to be released to the respondent.

In the appeal arising out of SLP (C) No. 9334 of 2000, two insurance
covers of Rs. 50,000 each were taken on the life of one Dev Raj Sharma E
(whose heirs the respondents in that appeal are) who was employed under the
Punjab Government as Junior Engineer. On a day in the month of November
1988 he did not return to his home from the office. The first information
report of his disappearance was lodged with the police. The premiums were
regularly paid upto the time of disappearance of Dev Raj Sharma whereafter F
the premiums were not paid. On 20.9.1997 the respondent filed a civil suit
against the UC claiming release of benefits under the policy on the ground
that the insured should be presumed to have died on the date of his
disappearance, and therefore, the claim had become payable on the date of
disappearance itself though the presumption as to death became available to
be raised after the expiry of period of seven years from the date of G
disappearance and therefore, the question of policies having lapsed for non-
payment of premium after the date of disappearance would not arise as the
assured was dead.

Shri G.L. Sanghi, the learned senior counsel for the appellant-
Corporation in both the appeals stated at the very outset and under instructions H
634
SUPREME COURT REPORTS
(2004] 3 S.C.R.
A that the appellant-Corporation d
the insurance pol" . . b h oes not 1iave any objection to the amounts of
. ic1es m ot the cases being released to the respondent• as
ex-grat1a payment and therefore the LIC would hon th . d ·'
H" h · our e JU 0 ment of the
Ig . Comt in both the appeals but the LIC was interested i~ havina the
question of l~w decided. Having placed the abovesaid statement of r:cord
B a~d also placing ~n recor? our appreciation of the good gesture shown by the
Life ~nsurance Corporation of India, we proceed to adjudicate upon the
question of law.

Sections 107 and I 08 of the Evidence Act read as under:

"!07. Burden of proving death of person known to have been
c 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."

"I 08. Burden of proving that person is alive who has not been heard
D 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 cf
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."
E
There is no difference in the English Law and the Indian law on the
subject. The English Law as stated in Halsbury's Laws of England (Fourth
Edition, Vol. 17, paras 115 and 116) is as under:

"115. Presumptions of life and death. There is generally no
F presumption of law by which the fact that a person is alive or dead
on a given date can be established but the question must be decided
on the facts of the particular case.

Certain exceptions to this general rule are provided by statute,
and, in addition where there is no acceptable affirmative evidence
G that a person was alive at some time during a continuous period of
seven years or more and it is proved that there are persons who
would be likely to have heard of him over that period, that those
persons have not heard of him, and that all due inquiries have been
made appropriate to the circumstances, there arises a rebuttable
presumption of law that he died sometime within that period."
H
L.l.C. OF INDIA 1·. ANURADHA [LAHOTI. J.] 635
"116. Proof of life or dealh al a parlicular lime. He who asserts that A
a person was alive on a given date, or dead on that date. must prove
the fact by evidence, since there is no presumption of continuance of
life, and, generally, no presumption of death at a particular tirne.
Where there is insufficient evidence in support of the fact alleged, the
party bearing the burden of proof will fail.
B
Where the presumption of death after seven years absence applies,
the person will be presumed to have died by the end of that period;
where the presumption does not apply, or is displaced by evidence,
the issue will be decided on the facts of the particular case. In some
old cases, where neither the evidence nor the incidence of the burden C
of proof was decisive, the court made the best order it could in the
circumstances. Where the question to be decided, for purposes affecting
the title to property, is which of two persons died first, a statutory
rule may apply.

The question of whether a person was alive or dead at a given D
date will be decided on all the evidence available at the date of the
hearing."

We may with advantage quote the statement of law as contained in
Manual of The Law of Evidence by Phipson and Elliott (Eleventh Edition,
at pp. 83-84). The learned authors after stating the presumption, further state: E
"It must be noted that the presumption is only as to the fact of death,
not as to the time of death, so that if it has to be established that A
was alive or dead on a particular day during the seven-year period,
that fact will have to be proved by evidence, aided by any presumption
of fact which the jury may see fit to act on. The presumption of death F
does not oblige the court to presume that death occurred at any time
during the seven years, nor is there any presumption of law that life
continued for any part of the seven-year period. Strictly, according to
the leading case on the subject Re Rhene 's Trusls ( 1870) L.R. 5 Ch.
App. 139-the presumption only operates to establish that if at the
date of an action in which the death is called in question, seven years G
or more have elapsed without news. A is dead at that date, i.e. the
date of the action. Accordingly, it is impossible to use this presumption
to prove that A was dead in, say 1950, even if he has not been heard
of since 1943. This inconvenience has caused the strict rule to be
departed from in some cases to allow presumption of death at any H
636 SUPREME COURT REPORTS (2004] 3 S.C.R.

A given date if seven years absence before that is shown."

As to Indian decided cases of authority we are relieved of the need of
entering into a research and review thereof on account of availability of two
recent decisions of this Cou1t on the point. In N. .Jayalakshmi Ammal and
Ors. v. R. Gopala Pathar and Anr., [ 1995) Supp I SCC 27, this Court went
B in-depth into the jurisprudential concept underlying Section 107 and 108 of
the Evidence Act and referred to commentaries of settled authority by eminent
jurists such as Sri John Woodroffe and Amir Ali's Law of Evidence, M.
Monir's Principles and Digest of the Law of Evidence, Sarkar on Evidence
as also the leading authority of Judicial Committee of the Privy Council in
C Lal Chand Marwari v. Mahan! Ramrup Gir, AIR (I926) PC 9, which has
stood the test of the times for over three quarters of a century by now. The
law laid down in N. .Jaya/akshmi Ammal and Ors. 's case (supra) has been
reiterated in Darshan Singh and Ors. v. Gujjar Singh (D) by Lrs. and Ors.,
r20021 2 sec 62.
D Peter Murphy states in 'A practical approach to Evidence' (Second
Edit;on pp 460-461 )-"The presumption is only that the subject died at some
time during the period; !.is death on any particular day will not be presumed,
and must be proved by evidence if in issue". The learned author having set
out in brief the facts of the cases in Re Phene 's Trusts (1870) 5 Ch App 139
and Chipchase v. Chipchase (1939) P 391 and having noticed the law laid
E down therein proceeds to state-"The period of seven years is, however,
strictly insisted upon, and it is often pointed out that, though the rule is to
some extent illogical, a period of six years and 364 days is not enough. Nor
is there any presumption that the subject died from any particular cause, died
childless or died celibate, though these matters may be capable of inference
F on the evidence, as a question of fact. It should be remembe~ed that it is
always open to the court to infer death (or that someone is alive) as a matter
of fact, as it is to make any other proper inferences from the evidence. No
question of the presumption arises in such a case; it is a matter of circumstantial
evidence. What is sometimes called the 'presumption of continuance' -an
instance of which is that if a person is shown to be alive at a certain time,
G his continuing life may be ir.ferred-is no more than an example of such an
inference, and will yield to the presumption of death where the latter applies".
Neither Section I08 of Evidence Act nor logic, reason or sense permit
a presumption or assumption being drawn or made that the person not heard
of for seven years was dead on the date of his disappearance or soon after
H the date and time on which he was last seen. The only inference permissible
U.C. OF INDIA v. ANURADHA ILAHOTI ..I.I 637
to be drawn and based on the presumption is that the man was dead at the A
time when the question arose subject to a period of seven years absence and
being unheard of having elapsed before that time. The presumption stands
un-rebµtted for failure of the contesting party to prove that such man was
alive either on the date on which the dispute arose or at any time before that
so as to break the period of seven years counted backwards from the date on B
which the question arose for determination. At what point of time the person
was dead is not a matter of presumption but of evidence, factual or
l!+ circui;nstantial, and the onus of proving that the death had taken place at any
given point of time or date since the disappearance or within the period of
seven years lies on the person who stakes the claim, the establishment of
which will depend on proof of the date or time of death. C
A presumption assists a party in discharging the burden of proof by
taking advantage or presumption arising in his favour dispensing with the
need of adducing evidence which may or may not be available. Phipson and
Elliott have observed in 'Manual of the Law of Evidence' (Eleventh Edition
at p.77) that although th_ere is almost invariably a logical connection between D
basic fact and presumed fact, in the case of most presumptions it is by no
means intellectually compelling. In our opinion, a presumption of fact or law
which has gained recognition in statute or by successive judicial
pronouncements spread over the years cannot be stretched beyond the limits
permitted by the statute or beyond the contemplation spelled out from the E
logic, reason and sense prevailing with the Judges, having written opinions
valued as precedents, so as to draw such other inferences as are not
contemplated.

On the basis of the abovesaid authorities, we unhesitatingly arrive at a
conclusion which we sum up in the following words. The law as to presumption F
of death remains the same whether in Common Law of England or in the
statutory provisions contained in Sections I 07 and I 08 of the Indian Evidence
Act, 1872. In the scheme of Evidence Act, though Sections I 07 and I08 are
drafted as two Sections, in effect, Section I08 is an exception to the rule
enacted in Section 107. The human life shown to be in existence, at a given
point of time which according to Section 107 nught to be a point within 30 G
years calculated backwards rrom the date when the question arises, is presumed
to continue to be living. The rule is subject to a proviso or exception as
contained in Section I08. If the persons, who would have naturally and in the
ordinary course of human affairs heard of the perso11 in question, have not
so heard of him for seven years the presumption raised under Section I 07 H
)

638 SUPREME COURT REPOR rs J201l4j 3 S.C.R.
........
A ceases to operate. Section I07 has the effect of shifiing the burden of proving
that the person is dead on him who affirms the fact. Section I08, subject to
its applicability being attracted. has the effect of shifting the burden of proof
back on the one who asserts the fact of that person being alive. The
presumption raised under Section 108 is a limited presumption confined only
to presuming the factum of death of the person who's life or death is in issue.
B Though it will be presumed that the person is dead but there is no presumption
as to the date or time of death. There is no presumption as to the facts and
circumstances under which the person may have died. The presumption as to I!!
+'!
death by reference to Section I08 would arise only on lapse of seven years illl
and would not by applying any logic or reasoning be permitted to be raised
c on expiry of 6 years and 364 days or at any time short of it. An occasion for
raising the presumption would arise only when the question is raised in a
Cou1i, Tribunal or before an authority who is called upon to decide as to
whether a person is alive or dead. So long as the dispute is not raised before ,.,II
any forum and in any legal proceedings the occasion for raising the
presumption does not arise.
D
If an issue may arise as to the date or time of death the same shall have ,.. ~
to be determined on evidence--direct or circumstantial and not by assumption
or presumption. The burden of proof would lay on the person who makes
assertion of death having taken place at a given date or time in order to
succeed in his claim. Rarely it may be permissible to proceed on premise that
E
the death had occurred on any given date before which the period of seven
years' absence was shown to have elapsed. I·

We cannot, therefore. countenance the view taken by the High Court in
either of the two appeals that on the expiry of seven years by the time the
"''
F issue came to be raised in Consumer Forum or Civil Court and evidence was
adduced that the person was not heard of for a period of seven years by the
wife and/or family members of the person then not only the death could be
presumed but it could also be assumed ·that the presumed death had
synchronized with the date when he was reported to be missing or that the
date and time of death could be correlated to the point of time coinciding
G with the commencement of calculation of seven years backwards from the
date of initiation of legal proceedings. In order to successfully maintain the
claim for benefit under the insurance policies it is necessary for the policy to ~
have been kept alive by punctual payment of premiums until the claim was
made. The appellant-UC was justified in turning down the claims by pleading
that the policies had lapsed and all that cou Id be paid to the claimants was
I
H
L.1.C. OF INDIA v. ANURADHA [LAHOTI . .I.] 639
the paid-up value of the policies. A
The appeals are allowed and both the judgments of the High Court
under appeal are set aside but subject to the clarification, that, in view of the
statement made on behalf of the appellant-UC, the monetary benefits available
to the respondents in the two appeals under the judgments of the High Court
shall not be denied by the appellant-UC. B
Before parting we would like to make an observation. Unfortunately
':,.. some of the regions or States in India are insurgency affected. The life has
become uncertain there. People live constantly under fear of death. Uncertainty
of life has been accepted as a normal course of living. The Life Insurance
Corporation, as a social welfare institution, more so when life Insurance has C
been nationalized and the service is not available in private sector, should
think of devising a policy available in insurgency afflicted regions which
would take care of the assured and his family members in such areas. When
the assured suddenly disappears or ceases to be traceable, may be the
beneficiaries or nominees do not even know that the deceased had an insurance D
policy. They may not be aware if the insurance premiums have been paid or
have remained not paid and what were the due dates and other obligations to
be performed by the assured to keep the policy alive. Insurance policies with
terms and conditions suited to the requirements of people inhabiting insurgency
or militancy affected areas need to be devised and propagated.
E
v.s.s. Appeals allowed.