Section 40: Presumed to be dead

1) If a person disappears without any notice for a period of consecutive twelve years or if a person for whom it is natural to have information about such a disappeared person has not received any information about him or her for the last twelve years, such a person shall, except in cases where evidence establishing that he or she is alive is received, be deemed or presumed to be dead.

Provided that in the following circumstances, such a person shall be deemed to have died after the completion of the following period:

(1) In the case of a person having attained eighty years of age, five years,

(2) In the case of a soldier deputed to the war field, four years after the cessation of the war;

(3) In the case of a person traveling by an aircraft, ship, or other vehicle that met with an accident, three years after the date of such accident.

2) Notwithstanding anything contained in clause (3) of the proviso to sub-section (1), if a person dies in an accident and there is no evidence of another person meeting with the same accident to remain alive, such a person also shall be deemed to have died at the same time.

3) Where more than one person is dead at the same time in an accident, each person so died is deemed, except as otherwise proved, to have died at the same time.

Provided that, where, for a particular purpose, a question which of the persons died first in such an accident requires to be settled, the person who was older in age at the time of death shall, unless otherwise proved, be deemed to have died first.

4) If the concerned person files a petition stating that any person has disappeared without a notice or died due to a disaster or accident and requests for a judicial declaration on such person’s death, disclosing therewith the date, place, cause of death and basis thereof, the court may, after examining the evidence, make an order of judicial declaration on the death of such a person.

5) If a person already declared dead pursuant to sub-section (4) comes back alive and files a petition in person to get the judicial declaration made earlier to be annulled or if his or her successor files a petition for amendment to the previous judicial declaration on death for the reason that the date of death of such deceased happened to be different than the date referred to in the judicial declaration, the court shall, having examined into this matter, annul or amend the judicial declaration made pursuant to sub-section (4).

Provided that-

(1) Where a living wife has concluded another marriage after such declaration, the matrimonial relationship with the person declared to be dead cannot be re-established.

(2) There shall be no adverse effect on the legal right of the person declared to be dead.

(3) The act that has already been carried out pursuant to the previous judicial declaration shall not be prejudiced by virtue of the establishment of a new date of death.

(4) The right, interest, or concern of the person provided by law shall not be affected by any act done or action taken pursuant to clause (3).