The presumption of death: a comparative appraisal from the perspective of the common law, Malaysian law and shariah

Section 108 of the Evidence Act 1950 states ‘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 af...

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Main Authors:	Shair Mohamad, Mohd Akram, Ramlee Saad, Zulfakar
Format:	Article
Language:	English
Published:	Serials Publications 2015
Subjects:	KPG Malaysia
Online Access:	http://irep.iium.edu.my/48516/ http://irep.iium.edu.my/48516/ http://irep.iium.edu.my/48516/1/article_dr_zulfakar.pdf

id	iium-48516
recordtype	eprints
spelling	iium-485162017-11-27T02:03:58Z http://irep.iium.edu.my/48516/ The presumption of death: a comparative appraisal from the perspective of the common law, Malaysian law and shariah Shair Mohamad, Mohd Akram Ramlee Saad, Zulfakar KPG Malaysia Section 108 of the Evidence Act 1950 states ‘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.’ This section reflects the English common law. In other words, if a person has not been heard of for at least seven years both the Evidence Act 1950 and the common law create a rebuttable presumption of law that, that person is dead, and the burden of proving that he is alive is shifted to the other side. However, the exact date of death after the expiry of seven years period is not a matter of inference but a matter of evidence. Under the common law, there are two views as to the date on which the fact of the death may be presumed. The stricter view says that the fact of death may be presumed retrospectively, while the laxer view suggests that the fact of death may be presumed prospectively. Unlike the English common law which accommodate both views but prefers the laxer view, so far the Malaysian and Indian courts followed the stricter view. Shariah law too recognises the concept of presumption of death but wisely it is not stuck with the common law and Evidence Act notion of not less than seven years. Interestingly, it has followed the earlier view of four years period. However, it shares the common law view that there is no presumption as to the exact date of the fact of death. Serials Publications 2015 Article PeerReviewed application/pdf en http://irep.iium.edu.my/48516/1/article_dr_zulfakar.pdf Shair Mohamad, Mohd Akram and Ramlee Saad, Zulfakar (2015) The presumption of death: a comparative appraisal from the perspective of the common law, Malaysian law and shariah. Journal of Islamic Law Review, 11 (1). pp. 59-76. ISSN 0973-2918 http://serialsjournals.com/archives.php?journals_id=272
repository_type	Digital Repository
institution_category	Local University
institution	International Islamic University Malaysia
building	IIUM Repository
collection	Online Access
language	English
topic	KPG Malaysia
spellingShingle	KPG Malaysia Shair Mohamad, Mohd Akram Ramlee Saad, Zulfakar The presumption of death: a comparative appraisal from the perspective of the common law, Malaysian law and shariah
description	Section 108 of the Evidence Act 1950 states ‘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.’ This section reflects the English common law. In other words, if a person has not been heard of for at least seven years both the Evidence Act 1950 and the common law create a rebuttable presumption of law that, that person is dead, and the burden of proving that he is alive is shifted to the other side. However, the exact date of death after the expiry of seven years period is not a matter of inference but a matter of evidence. Under the common law, there are two views as to the date on which the fact of the death may be presumed. The stricter view says that the fact of death may be presumed retrospectively, while the laxer view suggests that the fact of death may be presumed prospectively. Unlike the English common law which accommodate both views but prefers the laxer view, so far the Malaysian and Indian courts followed the stricter view. Shariah law too recognises the concept of presumption of death but wisely it is not stuck with the common law and Evidence Act notion of not less than seven years. Interestingly, it has followed the earlier view of four years period. However, it shares the common law view that there is no presumption as to the exact date of the fact of death.
format	Article
author	Shair Mohamad, Mohd Akram Ramlee Saad, Zulfakar
author_facet	Shair Mohamad, Mohd Akram Ramlee Saad, Zulfakar
author_sort	Shair Mohamad, Mohd Akram
title	The presumption of death: a comparative appraisal from the perspective of the common law, Malaysian law and shariah
title_short	The presumption of death: a comparative appraisal from the perspective of the common law, Malaysian law and shariah
title_full	The presumption of death: a comparative appraisal from the perspective of the common law, Malaysian law and shariah
title_fullStr	The presumption of death: a comparative appraisal from the perspective of the common law, Malaysian law and shariah
title_full_unstemmed	The presumption of death: a comparative appraisal from the perspective of the common law, Malaysian law and shariah
title_sort	presumption of death: a comparative appraisal from the perspective of the common law, malaysian law and shariah
publisher	Serials Publications
publishDate	2015
url	http://irep.iium.edu.my/48516/ http://irep.iium.edu.my/48516/ http://irep.iium.edu.my/48516/1/article_dr_zulfakar.pdf
first_indexed	2023-09-18T21:08:48Z
last_indexed	2023-09-18T21:08:48Z
_version_	1777411113545105408

The presumption of death: a comparative appraisal from the perspective of the common law, Malaysian law and shariah

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