Presumption of death

2017 PLD 162 ISLAMABAD Judicial Precedent

S. 42Qanun-e-Shahadat (10 of 1984), Arts. 123 & 124Suit for declarationMissing person, not heard of for seven years-Presumption of deathOnus to prove-Inheritance, opening ofScope

Plaintiff (brother of missing person) filed suit that his brother was dead having gone missing since 1973 and suit property was liable to be transferred to his legal heirs

Trial Court decreed the suit by declaring that plaintiff and other legal heirs of deceased were entitled to inherit all his estate and inheritance would be considered to have opened in the year 1980 i.e. seven years after the year of disappearance

Appellate Court modified the judgment of Trial Court to the extent that missing person would be considered as dead with effect from the date of institution of suit and his inheritance was declared to have opened from the date of institution of suit

Validity

If a person had not been heard of for seven years then presumption would be that he was dead

Burden of proving that missing person was alive would shift to the other side

None of the defendants had asserted that missing person was heard of after 1973 so question of shifting of burden did not arise in the present case

Appropriate inquiry should have been made before a presumption of death that missing person had not been heard of for seven years

Presumption would be that missing person was alive unless it was established that the whereabouts of said person were not known and he had not been heard of for seven years before the date of suit

Owner of suit property was unheard of for seven years since 1973 and he could be deemed to have met with a civil death and not a death occasioned on his last breath

Presumption of death did not extend to the date of death

No presumption could be drawn as to the date or time of the death of a person who had not been heard of for seven years but it could be inferred on the basis of evidence factual or circumstantial

Onus of proving that a person was dead on a particular date would lie on the party who asserted the same

Plaintiff was bound to prove that owner of suit property died after the death of private defendants to exclude them from inheriting their share in the missing person's estate

Said onus, in the present case had not been discharged by the plaintiff

Nothing was on record that missing person died on a date after all his legal heirs (except the plaintiff) had died

Plaintiff had not pleaded in the suit that his brother died after the death of private defendants

Plaintiff could not seek to deprive the other legal heirs of missing person from their inheritance by claiming to be his sole heir on account of being alive on the date of institution of suit in absence of any specific pleadings to date and time of his death

Plaintiff had not even prayed for missing person's inheritance to open with effect from the date of institution of present suit

Plaintiff had not produced any evidence to show that his brother was heard of after 1980 or after his legal heir had died

Statutory period of seven years had expired in 1980 i.e. before any of missing person's legal heirs died

Missing person would be presumed to have died before any of his legal heirs died and not on the day of the institution of the suit by the plaintiff

Inheritance of owner of suit property would be considered to have opened in 1980 i.e. upon the lapse of seven years from the date when he went missing and was unheard of when all his legal heirs were living

Successors of all the legal heirs of missing person including plaintiff would have a share in his estate/suit property

Legal heirs of deceased could gift or transfer their respective share in the suit property to the plaintiff if they so desired

Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored

Second appeal was allowed in circumstances.

2011 CLD 1594 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 124Missing personPresumption of deathRelevant personsPrinciple

Relevant persons about presumption of death of a person are those who could naturally hear about the person as if he had been alive

Wife as well as sons and daughters are the first persons who can claim refuge under Art. 124 of Qanun-e-Shahadat, 1984.

2011 CLD 1594 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 381Qanun-e-Shahadat (10 of 1984), Art. 124Succession certificatePresumption of deathInsurance claim

Legal heirs filed application for issuance of succession certificate on the ground that their predecessor-in-interest was kidnapped 12 years ago and his whereabouts were not known, therefore, he should be presumed to be dead

Succession certificate issued by Trial Court in favour of legal heirs was maintained by Lower Appellate Court

Insurance company assailed the certificate on the plea that insurer could not pay the claim unless it was established that the insured had died

Validity

After elapse of 12 years no one had claimed that he had seen the insured person and insurance company was not claiming that it had evidence about fact that the insured was alive

It was a proven fact that insured was dead, insurance policy was covered against death of insured and as such insurance company was bound to pay insurance claim to legal heirs of insured in terms of succession certificate issued by competent court of law

Insurance claim had matured from the date of expiry of seven years which commenced from the date of kidnapping

High Court, in exercise of revisional jurisdiction declined to interfere in succession certificate issued by the courts below and insurance company was bound to pay the insurance claim to legal heirs of insured

Revision was dismissed in circumstances.

2011 CLC 1959 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 124Missing personPresumption of deathRelevant personsPrinciple

Relevant persons about presumption of death of a person are those who could naturally hear about the person as if he had been alive

Wife as well as sons and daughters are the first persons who can claim refuge under Art.124 of Qanun-e-Shahadat, 1984.

2011 CLC 1959 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 381Qanun-e-Shahadat (10 of 1984), Art.124Succession certificatePresumption of deathInsurance claim

Legal heirs filed application for issuance of succession certificate on the ground that their predecessor-in-interest was kidnapped 12 years ago and his whereabouts were not known, therefore, he should be presumed to be dead

Succession certificate issued by Trial Court in favour of legal heirs was maintained by Lower Appellate Court

Insurance company assailed the certificate on the plea that insurer could not pay the claim unless it was established that the insured had died

Validity

After elapse of 12 years no one had claimed that he had seen the insured person and insurance company was not claiming that it had evidence about fact that the insured was alive

It was a proven fact that insured was dead, insurance policy was covered against death of insured and as such insurance company was bound to pay insurance claim to legal heirs of insured in terms of succession certificate issued by competent court of law

Insurance claim had matured from the date of expiry of seven years which commenced from the date of kidnapping

High Court, in exercise of revisional jurisdiction declined to interfere in succession certificate issued by the courts below and insurance company was bound to pay the insurance claim to legal heirs of insured

Revision was dismissed in circumstances.