(1) This second appeal involves a question of considerable interest, upon which I am not able to find many decided authorities in this country, there are, indisputably, English authorities, but, for reasons I shall state later, I am certainly doubtful if those authorities could be implicitly followed in India. The broad facts are not in controversy, and a very brief conspectus of them will be sufficient for the disposal of the appeal.
(2) There was a certain T. J. Bhagat, a young man of about 24, who according to the record, disappeared form his house on 12-12-1950 and has not been subsequently heard of. It is proved that this young man was married, that he was living with his parents and brothers, and that he was receiving a regular allowance of Rs. 100 per mensem from Bhagat Estates Ltd., a family concern. His father-in-law inserted an advertisement in the "Hindu" in January 1951, along with a photograph, announcing a reward for the informer of the whereabouts of the missing man. There was also complaint to the police. But these efforts were all in vain and, to this day, T. J. Bhagat, who is said to have disappeared on 12-12-1950, has not been traced. There were heavy insurances upon the life of this young man, one policy with the Sun Life Assurance Co., of Canada and another with the Hindustan Co-operative Insurance Society now taken over by the defendant, Life Insurance Corporation of India.
(3) About 5 or 6 years after the disappearance of this young man, his father, (the first plaintiff) preferred a claim in respect of one of the policies with the defendant-corporation, and some correspondence followed. It is not in dispute that the defendant-Corporation insisted on a decree form a competent court establishing the fact of death. That led to the suit from which the second appeal has emerged. The declaration actually sought for by the plaintiffs, legal representatives of the first plaintiff, was to the effect that T.J. Bhagat 12-12-1950, or at any rate from January 1951. The defendant-Corporation did not admit the allegations, put the plaintiff to strict proof of them, and contended that claims arising under the policies could not be directly the subject matter of the suit, but would have to be dealt with after enquiry, on their merits.
(4) The learned First Assistant Judge of the City Civil Court, granted a decree declaring that T. J. Bhagat has not been heard of for at least 7 years prior to the institution of the suit and must, therefore, be presumed to be dead; indisputably, the declaration can have meaning and reference only to the date on which the action commended, as regards the presumption of death. There was a first appeal to the learned Additional Judge of the City Civil Court, which was dismissed.
(5) In this country, the presumption arising upon facts of this kind has been subject of statute; the Indian Evidence Act which deals with general presumptions under the law, declares in S. 108 that where 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 had been alive, the burden of proving that he is alive is shifted to the person who affirms it. Since Bhagat was not heard of on and after 12-12-1950, the burden of proving that he was alive on the date of action was to be incontrovertible that the
defendant-Corporation did not discharge that burden of proof. In the light of those facts, the plaintiffs would clearly appear to be entitled to the declaration granted.
But learned counsel for the plaintiffs (Appellants in the second appeal) strenuously contends that the declaration should be in the form it was sought for, namely, that Bhagat should be presumed to be dead as and from 12-12-1050, or, at any rate, from January 1951, when he failed to appear and drew the allowance of Rs. 100 which was the sole means of his subsistence and which he had regularly drawn prior to that time. It is the only if the declaration is granted in this form that plaintiffs will be able to make an effective claim regarding all outstanding amounts upon both the policies. It is further contended that light is thrown on this issue by the English decisions. Even S. 108 of the Indian Evidence Act proceeds no more than to the extent that I have earlier indicated.
(6) Indisputably, S. 108, itself is founded upon the principles of English common law, which have been tersely stated in Halsbury's Laws of England, Simonds Edn. Vol. 15 S. 624, page 345. As the authoritative treatise states:
"There is no legal presumption either that the person concerned was alive up to the end of the period of not less than 7 years, or that he died at any particular point of time during such period, the only presumption being that he was dead at the time the question arose if he has been beard of during the proceeding 7 years. If it is necessary to establish that a person died at any particular date within the period of 7 years, this must be proved as a fact by evidence raising that inference; for example, that when last heard of he was in bad health, or exposed to unusual perils, or had failed to apply for a periodical payment upon which he was dependant for support."
I do not think that it can be at all doubted that the above passage, the substance of which is also reflected in our enactment, namely, S. 108 of the Indian Evidence Act, justifies the restricted declaration which the courts below have granted, unless the last part of the passage extracted above is brought in to aid the plaintiffs in obtaining the wider declaration they actually seek. For the shifting of the onus itself relates only to the point of time at which the question arose after the lapse of 7 years, during which the party presumed to be dead has not been heard of. That can only be the date of the institution of the suit, and, on that date when the defendant-Corporation did not discharge the burden, it must be presumed that the young man was dead. There is no legal presumption that he died at any earlier point of time, or even that he was alive up to any particular date; any such inference can only be based on the strength of the facts in the individual case.
(7) But learned counsel for the appellants contends that the fact that the young man failed to apply for his regular allowance of Rs. 100 per mensem, which is his sole mans of subsistence, in January 1951, would justify an inference that he was dead by that date.
The authorities to which my attention has been drawn may be now briefly referred to. In re, Beasney's Trusts, (1869) 7 Eq 498 refers to an earlier case In re Henderson's Trusts and, on the facts, the Vice Chancellor held that the fact that William Beasney never applied for his October dividends could be accounted for, only on the presumption that he was dead then. The report In re, Henderson's Trusts is not available, in spite of efforts made by me to tract it; actually, it seems to be an unreported decision of July 1868. But the facts of that case have been referred to in one report of (1869) 7 Eq 498. That, again, related to the holder of an annuity who did not apply for the dividends of certain trust funds on which he was chiefly dependent for his livelihood.
In re Aldersey; Gibson v. Hall, 1905-2 Ch 181 contains the statement of the law by Kekwich J. to the effect that, where a party claims that the concerned individual, John Joseph Hall, was alive after the date when he was last heard of, the burden would be on the party to establish that; there is no presumption in favour of the continuance of life; it is entirely a matter of evidence in each case.
Webster v. Birchmore, (1807) 33 ER 329: 13 Ves Jun 362 may also be referred to in this context as well as the passage form Macgillivrey on Insurance Law, 2nd Edn., page 557 to the effect that.
"As a rule, the date of disappearance is a more probable fate of death than any other point of time during the 7
years....................If the court finds it necessary to come to some decision as to the date of death in the absence of any evidence beyond the fact of 7 years' absence, it fixes the date of disappearance as the date of death".
I have given careful consideration to his aspect, both on the principle of law applicable to facts of this matter, and to the merits of the present case. In my view, it would be very unsafe to enunciate my general principle of law applicable to this country that, where a person has disappeared and has not been heard of for 7 years, the presumption of death might be made not merely with reference to the point of time at which the question arose after the expiry of 7 years, but even with reference to the point of time when the person actually disappeared, without any other light being thrown upon the facts of that disappearance. It is noteworthy that under S. 108 of the Indian Evidence Act, the burden shifts to the party who affirms that the person " is alive"; it cannot be disputed that that relates to the point of time at which the question itself emerges in the legal proceeding. In the present case, it would be most unsafe, unwarranted by facts and probabilities to draw any inference that Bhagat must be presumed to have died on or about the date of his disappearance or in January 1951, when he failed to draw the usual allowance. The young man suddenly disappeared, and no light is thrown on any probable motive; not is it suggested that foul play was at work, or that any one had a motive to murder this young man, or even that he met with some accident or peril. All that we know is that this young man disappeared without a trace, and has not been subsequently discovered, in spite of the best efforts. A variety of circumstances and facts might account for such conduct on his part. It is not unusual, in the social and cultural climate of this country, for young and impressionable persons, even though they might be well-off, to suddenly forsake this world, and to disappear upon some presumed religious or spiritual quest. It is also possible that elopement, not to the relish of the family, might have been at the back of this behaviour. All that, as learned counsel for the appellants argues, may be speculation. But the facts do not warrant the inference that the mere failure of this young man to draw his remittance, is any safe foundation for a presumption of death on or about that time. In may view, the dicta of the English decisions that I have referred to, cannot be applied without qualification and uncritically to such a situation in this country. As far as S. 108 of the Indian Evidence Act is concerned, the only conclusion possible is that the young man was dead at the time when the question arose (date of plaint) owing to the failure of the defendant-Corporation to prove that he was alive.
(8) In the result, therefore, this second appeal is dismissed, confirming the declaration of the courts below in the restricted form. It is certainly open to the plaintiffs to advance their claim before the defendant-Corporation for the amounts assured on the policies, including the one policy that is alleged to have lapsed up to the surrender or paid-up value of the policy. I may add that the case appears to deserve sympathetic treatment at the hands of the defendant-Corporation, during any such enquiry. Parties to bear their own costs here. No leave.
(9) Appeal dismissed.