Section 108 IEA | Civil Death Must Be Declared When Statutory Presumption Applies: Bombay High

“Presumption of death arises when a person is not heard of for seven years by those who would naturally have heard of him if alive” – In a significant ruling on the evidentiary presumption of death, the Bombay High Court set aside a 2015 Trial Court decision that had rejected a son's plea to declare his missing father as presumed dead.

Justice Jitendra Jain held:

“Once the statutory conditions under Section 108 of the Indian Evidence Act are satisfied, the declaration of civil death cannot be denied on extraneous considerations.”

The Court categorically held that the Trial Court had committed a legal error in refusing the declaration on irrelevant grounds such as absence of medical evidence of memory loss and non-production of details of other legal heirs.

“Continuous Absence Beyond Seven Years Is Enough”: Presumption of Death Under Section 108 Attracted

The case involved the disappearance of Dogra Venkappa Suvarna, who went missing on April 8, 2003, while on his way for a medical check-up. A missing person complaint was registered with the police, and by 2011, the police issued a certificate stating that despite efforts, the individual remained untraced.

The Trial Court, however, rejected the suit for a declaration of civil death filed by the son on two key grounds:

1. No medical evidence to establish the father’s memory loss or health condition;
2. No clarity on whether the plaintiff was the sole legal heir.

Justice Jain found these considerations legally unsustainable, noting that:

“Such factors are irrelevant for invoking presumption under Section 108. The statutory presumption arises when a person is not heard of for seven years by those who would naturally have heard of him if he were alive.”

Public and Official Records Unrebutted—Statutory Presumption Irrefutable Without Contrary Evidence

The plaintiff had placed on record several public documents, including:

• Ration card,
• Birth certificate,
• Passport,
• Police missing certificate dated 26 November 2011,
• Newspaper notices in Loksatta and a Kannada daily offering rewards for any information.

Justice Jain underscored:

“These documents have been issued by competent public authorities... None of these documents have been found to be incorrect or rebutted by the State.”

He further noted that the State did not produce any contrary evidence to dispute the factual basis of the disappearance.

Trial Court Misapplied the Law—Appeal Warranted on Clear Legal Grounds

The High Court found the Trial Court’s reasoning to be flawed both on facts and law. Particularly, the reliance on the absence of medical records to prove a missing person’s mental state was held to be extraneous and contrary to the purpose of Section 108.

“Merely because the plaintiff could not produce any medical records of his father after a period of more than 7 years... cannot be a ground to disbelieve the claim made by the plaintiff.”

Section 108 of the Indian Evidence Act, 1872 (replaced by Section 111 of the Bharatiya Sakshya Adhiniyam, 2023) clearly provides that if a person has not been heard of for seven years by those who would naturally have heard of him, the presumption of death arises in law.

Declaration Mandatory If Statutory Conditions Are Met

The Court noted that the cumulative circumstantial evidence, including continuous absence, police records, newspaper notices, and official documents, clearly met the threshold for legal presumption of death.

“The circumstantial evidence leans in favour of the plaintiff... There is nothing on record which shows otherwise.”

Accordingly, the Court quashed the judgment and decree dated 31.10.2015 and granted the declaration under prayer clause (b) of the plaint:

“That this Hon’ble Court be pleased to declare and pronounce that Dogra Venkappa Survarna is presumed to be dead on expiry of 7 years from 08.04.2003 or thereabout.”

The interim application was disposed of as infructuous.

A Clear Application of Law on Presumption of Civil Death

This judgment reiterates the settled principle that once the legal conditions for presumption of death are met, courts must not insist on further proof, especially in civil declarations of death.

By recognising the evidentiary sanctity of unrebutted police certificates and public documents, the Bombay High Court has clarified that judicial skepticism cannot override statutory presumptions.

Date of Decision: 29 January 2026