Section 107 & 108 of the Evidence Act

Section 107 & 108 of the Evidence Act (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.

1. 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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