Dying declaration

 Sec 32 (1) of Indian evidence Act  1872  now restructured in sec 26 of BSA 2023

When it relates to cause of death : when the statement is made by a person as to the cause of his death , or as to any of the circumstances of the transaction which resulted in his death , in cases in which the cause of that person’s death comes in to question , such statement are relevant whether the person who made them was or was not , at the time when they were made , under expectation of death and whatever may be the nature of proceeding in which the cause of his death comes in to question 

Corpus Juris Secundum vol XL page 1283 & American jurist also interpret weighting of dying declaration in what circumstances under which they were made , whether it was outside influence ,sprit of  revenge , deceased not cross examined  ,under  expectation of death or not , these are the questions raised for the cause of death 

The principle on which dying declaration is admitted in evidence “ 

Statement having truth ness and also said voluntarily are the factors for making conviction by court 

Hon’ ble supreme court in his judgement  2023 INSC 758 Irphan @ Naka v state of UP explained that there is no hard & fast rule for determining when a dying declaration should be accepted the duty of court is to decide this question of  in the facts and surrounding and be fully convinced of the truthfulness of the same 

Certain factors considered to determination , however they will only affect the weight of dying declaration and not its admissibility

1) whether the person making them was or statement was in expectation of death ?

7)

2) whether the dying declaration was made at the earliest opportunity ?

3! Whether there is any reasonable suspicion to believe the dying declaration as put in the mouth of the dying person ?

4)whether there is any dying declaration was a product of prompting , tutoring or leading at the instance of police or any interested party ?

5) whether the statement was not recorded properly ?

6! Whether there is any dying declarant  had opportunity to clearly observe the incident ?

7) whether there is any dying declaration has been consistent throughout ?

8) whether there dying declaration in itself is a manifestation of/ fiction of the dying persons imagination of what he thinks transpired ?

9) whether the dying declaration was itself voluntary ?

10) in case of multiple dying declarations , whether there is any first one inspires truth and consistent with the other dying declaration was a?

11) whether as per the injuries it would have been impossible for the deceased to make a dying declaration ?

Supreme Court in this judgement further relied the reported judgement title Sujt Biswas v state of Assam (2013)12,SCC 406 in which it was held that :

The court has a duty to ensure that mere conjunctures or suspicion don't take place of legal proof 

The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand , then the benefit of doubt must be given to accused keeping in mind that a reasonable doubt is not an imaginary , trivial or merely probable doubt but a fair doubt based upon reason and common sense 

To Think & To understand

 These phrases have immense effect upon our life , Our life rounds between two phrases and we spend our life to understand the real things 

In our Hindu joint family our relations are so interrelated some time we surrender our emotions and even rights for the pious tie of joint family 

The principle to think and to understand applies in our every  area of life , this principle is not related to our joint family only  but it applies in each and every step we proceed in our daily life 

Our logics are some related to principles and some are  very practical   Some time our logics are tried by courts and the battle comes in last when we take last breath of judgement of final court 

This process to think and to understand is time consuming but it gives a satisfaction when resolved by the principle of understanding 

The gap between to think and to understand resolved some time by our mutual consent and this is a principle where we surrender our logics for the shake of solution of “To understand “

Many battles in our history was fought for securing the result between to think and to understand the universal concept of justice 

Maintainability of suit against sarfaesi proceedings

 A civil suit  was filed by plaintiff third party smt  Prabha jain against Sarfaesi proceedings  initiated by central bank of india 

central bank filed application under order 7 rule 11 of CPC claiming suit is barred under section  17 of the sarfacie act and appeal is the only remedy to DRT 

Trial court rejected application under order 7 rule 11 and bank went to high court against rejection of application &  high court accepted the appeal of central Bank and held  that trial court has no jurisdiction to try the case and  accepted appeal of bank

The matter went in Supreme Court by respondent / original plaintiff and Supreme Court observed the relief prayed in suit and documents pertaining to and  concluded that suit is maintainable as the sale deed and mortgage deed was executed without making partition of share in property and prayer in suit was prayed of document of sale to be declared  nullity and sec 17 of Sarfaesi act does not oust the jurisdiction of “ any  person” The question of validity of sale deed can not be decided by DRT The only argument posed by bank  that under sec 34 of Sarfaesi civil court has no jurisdiction to try the suit The jurisdiction to declare sale deed or a mortgage deed illegal is vested with civil court under sec 9 of cpc 

DRT can never have the jurisdiction to decide such civil disputes of title between a third party & borrower 

Number of appeals of Banks were also decided by common judgement where matter of adoption in title were involved and Supreme Court dismissed these appeals of bank and order of high court of Madhya Pradesh was set aside 

This was in essence  in reported case title  central Bank of India & ors v/s  Prabha jain & ors  civil appeal number 1876 of 2016 judgement delivered on dt 09/01/2025 

Rules inconsistencies to Act

 Supreme Court ordered in appeal  of dismissed writ  filed in high court , that particular rule framed in statue if is inconsistent to provisions of act , to be declared ultra virus and accepted appeal  This was held in civil appeal number 3954/2025! K Gopi v/s The sub registrar & ors  decided on 07/04/2025 

High court relied upon rule 55A(I) and dismissed writ Supreme Court found that rule making power under section  69 can not be exercised to make a rule inconsistent to registration act 1908 and declared rule 55A(I) to be ultra virus and accepted appeal 

Sec 80 CPC & order 7 rule 11 CPC

 Supreme Court in a decision title Govt of Kerala v Sudhir kumar sharma case number civil appeal nimber 7364 of 2013 decided by division bench on dt 02/09/2013  interpreted the priority & applicability of provision of 80 CPC & order 7 rule 11 CPC  and upheld that application under sec 80 (2) CPC  without any order can’t be presumed as heard as in the case , the   suit was filed without complying provision of 80(1) CPC and cannot be said to filed justifiable 

The apex court perused the consequences if this irregularities continues and if  the application upon 80(2) cPC rejected then suit was to be returned and after then application under order 7 rule 11 CPC to be accepted 

Thus the rejection of application under order 7 rule 11 CPC by trial court without deciding application under sec 80(2) CPC  was against the procedure and irregularities continues , and trial court should decide first an application of sec 80(2) and thereafter application under order 7 rule 11 CPC to be heard and  Supreme Court quashed the order of high court which was confirming order of trial court with regard to rejection of application under order 7 rule 11 and appeal was accepted  by Supreme Court 

MSME Act , Restructuring and sarfacie proceedings

 Number of writs t filed before Bombay high court against financial institutions including NBFC , as the benifit of restructuring NPA defaulting unit was not given and  Sarfaesi    proceedings started 

Number  of  appeal raised the similar question in SLP filed against the order of Bombay high court when order of Bombay high court was against the borrower  and it was held by Bombay high court that bank is not obliged to have a process of sec 9 of MSMED ACT & RBI Notifications issued under sec 21 & 35A

In the judgement case title   M/s Pro knits v/s directors of canara bank  & others       Appeal number SLP  7898/2024 decided on 1:/8/2024 by division bench   It was held that  after NPA of account MSME  borrower may  apply for restructuring of account  but this benefit would not run when sarfaesi proceedings started 

Thus the delaying tactics do not help to borrower when after   Declaration  of NPA of the account  , surfciec proceedings began 

As per MSME act : it is mandatory to classify stress account in three sub categories to resolve it , MSMED Act 2006 and Notification of RBI 2015 and  2016 was matter in issue but banks not followed the mandatory provision and declared  accounts NPA 

It was argued by appellant that non compliance of mandatory provision of MSMED Act and notification of 2015 & 2016 rendered the surfacei proceedings illegal & void ab initio 

It was also argued by Banks that provisions of Sarfaesi    act are not override by the MSMED act 

In essence SLP allowed and held

That provisions of MSMED and RBI notifications has statutory force under sec 9 of MSMED Act & notifications issued under Sec 35 A& 21 of RBI act 

The provisions are mandatory

There is no applicability of MSMED Act 2006 & RBI circular 2015 & 2016 upon regional rural banks 

It 

Partnership firm & liability of Partners

 Partners of firms are responsible to pay the loans , but during loan any partner retires then partnership do not  goes to dissolution of the firm if partners are more then two and accounts are to be settled between the retiring partner and remaining  partner 

In other case if other partner joins the firm in place of retiring partner under new partnership  , then the liability of retiring partner do not cease until the accounts settled  but it may be shifted to new partner if he accepts liability of  payment  under an express agreement 

So far as share in property has concern it would be transferred through registered deed only and mortgage property would remain mortgage until fresh registered transfer  deed is not executed between retiring partner and admitting partner 

In case property  being not changed as collateral security  when the share of retiring partner is already mortgaged  with bank  then liability of retiring partner would remain intact with bank with the new partner 

Bank do not go in dispute of partners and advises to borrower firm to transfer the share present in mortgage property to new admitted partner under new partnership agreement or replace the mortgage property belonging to new partners for accountability of new partnership 

So far as auditing of firm account by bank has concern , mortgage to be replaced in the partnership of new partner in case of continuity of loan account ,executant of loan document of new partners couple with mortgage property  of firms property of retiring partner create diversity in liability , to cope the diversity , liability to be fastened upon new partnership and fresh mortgage to be obtained of new partnership owning share of new partners 

Novation of contract (Sec 62 of Indian contract Act) between financing bank arises when it is arrived between financing bank and new partnership  , the previous contract rescinded and novation of contract formed by new partnership  while acknowledging the  liability of dissolved firm ,

Acknowledgement of previous liability of dissolved firm should be obtained with duly stamped  of acknowledgement, by new partnership firm 

Sec 39 of Partnership Act is very relevant in case where partners are more then two and one retires and in place of retired partner another partner being admitted then partnership continues with the new partnership agreement 

This was discussed in a reported civil appeal number 6659-6660 of 2010 Supreme Court title Guru Nanak Industries Faridabad & another  v/s  Amar singh (D) through LR’s decided on 26/05/2020 

In para number 12 of judgement it was discussed regarding dissolution of firm and retirement  of partner 

There is clear distinction between a  case of retirement and case of dissolution of firm  

On retirement of partner , the reconstituted firm continues and retiring partner is to be paid his dues in terms of sec 37 of the partnership act  but in dissolution of firm  accounts are to be settled and distributed as per mode prescribed  in sec 48 of partnership act