Burden of proving that person is alive who has not been heard of for seven years
Section 108 of the Indian Evidence Act, 1872 deals with 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. The Act came into force on 01 Sep 1872. Repealed by section 170 of the Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
[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.
Section 108, The Indian Evidence Act, 1872 (Act 1 of 1872).
Now in the Bharatiya Sakshya Adhiniyam
BSA 111 Burden of proving that person is alive who has not been heard of for seven years Text carried over almost unchanged 99%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Toralben v. Collector, Ahmedabad City
Court's Decision & Legal Precedent
HC Final Order order-3.pdf 2018-07-16 DATE VERIFIED. J.B. Pardiwala J. FA 907/2016. Reportable. IEA 108 (exception to 107) raises only a limited presumption that a person unheard of for seven years is dead when the question arises in a legal proceeding; there is no presumption of the date or time of death (LIC v. Anuradha; Lal Chand Marwari). Husband missing since 2006 declared dead; non-joinder of the corporation is not fatal to that declaration. Map iea 108 + BSA 111 successor (near-identical 0.9916). Do not pad iea 107.
On this section: IEA 108 presumes only the fact of death after seven years' absence when the question is raised in a proceeding; it does not presume the date or time of death (Toralben).
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… Reply – After the guidelines issued by GR dated 08/07/1993 and GR dated 22/07/1998, the compensation was paid for over the period from year 1992 to 2010 after thorough scrutiny of the cases of compensation as per the GR norms, from time to time. " (emphasis added) 22. Under Section 108 of the Indian Evidence Act, 1872, there is a presumption that if a person has not been heard of for seven years or more by those who would naturally have heard of him if he had been alive, such a person is presumed to be dead unless the contrary is proved by the person who affirms it. It is in view of the statutory …
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… State of Uttar Pradesh, (2009) 6 SCC 481, In that case the father of the appellant was untraced from 1981. The Supreme Court held that without going into the issue as to whether compassionate appointment could be sought in a case or deemed death under Section 108 of the Indian Evidence Act, such a right could have been exercised in 1988 itself and the period of five years under Rule 5 would not enable the appellant to compute the period until 1993. In that context, the Supreme Court observed as follows: "11. The very concept of giving a compassionate appointment is to …
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… liabilities and in the light of the fact that the whereabouts of the aforesaid Sasidharan Pillai are not known for nearly 30 years, the condition in Ext.P1 requiring the petitioner to pay a sum of Rs.15,000/- to him is practically unworkable and unimplementable. It is submitted that going by the provisions of Section 108 of the Indian Evidence Act, persons whose whereabouts are not known for more than 7 years are presumed to be dead and that presumption may be applied to the facts of this case. 2. The learned Government Pleader on instructions would submit that it was after noticing the condition in Ext.P1 that there is a …
Questions about Section 108
What have the courts held on Section 108 of the Indian Evidence Act?
Toralben v. Collector, Ahmedabad City (16 Jul 2018) is the leading judgment on this section among those set out below: IEA 108 presumes only the fact of death after seven years' absence when the question is raised in a proceeding; it does not presume the date or time of death (Toralben).
How do I find court cases under Section 108 of the Indian Evidence Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: IEA 108, section 108 IEA, section 108 of the Indian Evidence Act. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 1 reported judgment on this section is set out on this page, beginning with Toralben v. Collector, Ahmedabad City (16 Jul 2018).
What should I read with Section 108 of the Indian Evidence Act, and has it changed?
For anything done on or after 1 July 2024 the provision to read is BSA 111 (Burden of proving that person is alive who has not been heard of for seven years), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 108 of the Indian Evidence Act come into force?
Section 108 of the Indian Evidence Act, cited as IEA 108, came into force on 01 Sep 1872, having been enacted on 15 Mar 1872. It is no longer in force.
Other sections of this Act
- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant1207 words
- 14. Facts showing existence of state of mind, or of body of bodily feeling1080 words
- 92. Exclusion of evidence of oral agreement809 words
- 8. Motive, preparation and previous or subsequent conduct773 words
- 65B. Admissibility of electronic records743 words
- 3. Interpretation-clause667 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item e51341fa-7528-4327-9a57-5d194e16db6f). This page is not a substitute for legal advice.