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Presumption of Survivorship

OBJECT

A presumption in law means inferences which are concluded by the court with respect to the existence of certain facts. There is a general presumption of continuity of things. Once a thing is shown to exist, the law presumes that it continues to exist until the contrary is shown. This applies to continuity of life also. 
The concept of presumption of survivorship is associated with the legal issues related to inheritance or distribution of property when two or more persons, who are natural heirs of each other, die almost at the same time. Death may occur due to a common disaster such as aircraft crash, earthquake, shipwreck, road traffic accident, battle etc..

Section 107 Indian Evidence Act

accordingly provides that when a person is shown to have existed within the last thirty years, the presumption is that he is still alive and if anybody alleges that he is dead, he must prove that fact.
S.1 07. 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 21 of the Hindu Succession Act, 1956

Presumption in case of simultaneous deaths:  provides that until the contrary is proved, it shall be presumed that the younger person survives the elder one, in such situations. – Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which survived the other then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder. The section does not apply in relation to succession to persons other than Hindus. Section 21 applies to testamentary or intestate succession. Section 21 of the Hindu Succession Act,1956 reads as follows:
“Section 21 Presumption in cases of simultaneous deaths.- where two persons have
died in circumstances rendering it uncertain whether either of them, and if so
which, survived the other, then, for all purpose affecting succession to property , it
shall be presumed, until the contrary is proved, that the younger survived the
elder.”

The courts decide on the issue related to the survivorship after examining the available facts and evidence. In absence of such evidence, following factors maybe be taken into consideration in determining the presumption of survivorship:
1. Injury: In case the deaths have occurred due to injuries, the presumption of survivorship maybe on the basis of nature of injury sustained, extend of hemorrhage, involvement if vital organs and whether death by such injury can be instantaneous or prolonged.
2. Age: The presumption of survivorship may be made on the basis of age of the dead person who died in the same incident. Children may succumb to trauma earlier than adult.
3. Gender: The presumption of survivorship may be made on the basis of gender of the dead person who died in the same incident. Female may succumb to trauma earlier than male.
4. Built: The presumption of survivorship may be made on the basis of built of the persons who died in the same incident. Strong and robust withstand better than weak, debilitated and diseased. Thin built person may succumb to trauma earlier than strong built.

CONCLUSION

A presumption in the old sense of the word is merely a logical inference, usually from circumstantial evidence, or it maybe regarded as a fixed rule of law .The question of survivorship is one which can only arise in connection with the devolution or descent of property, real or personal, and only in those cases where its course would be changed by the fact that one person outlived another. It is usually in connection with some such event as the sinking of the Titanic or a Conemaugh flood that the question most clearly arises. The terms "common disaster, .... same accident," "common calamity," "same catastrophe," and similar terms -are used to indicate the event which has ended the lives of two or more
persons and made it necessary to determine which if any survived.
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