OF The Burden Of Proof
Part III (Production And Effect Of Evidence)
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.
Section 108 of the Evidence Act provides that in case a person was not heard of for seven years, he or she may be presumed to be dead. The section does not provide any presumption as to the actual date of death. There can be no presumption that the person died on the date of his disappearance or on the expiry of the period of seven years from the date of his disappearance or on any other date falling in between the two. In case someone claims a relief on the basis of a certain date being the date of death of a person the onus squarely lies on him or her to prove the date of death by leading evidence….Ful Devi v. State of Bihar, 2004 (103) FLR 407 at 407, 408, 409 (Pat).