When the statement is made by the person as the cause of his death, or as any of the circumstances of the transaction which resulted in his loss of life, in cases in which the cause of that person’s death comes into question. Such statements made by the person are relevant whether the person who made them was alive or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
Thus, it is the statement made by the person who is going to die, and that statement will be considered as evidence in court, how his death caused and who is the mugger. There are many conditions that relied upon the dying declaration that it should be in an adequate manner as dying declaration is the weapon who convicted the accused and stood as strong evidence.
The statement made by the deceased person will be treated as Evidence and Admissible in a Court of law. The reason behind this can be followed by Latin maxim Nemo Mariturus Presumuntur Mentri which means that “Man Will Not Meet His Maker With Lying On His Mouth.” More precisely in our Indian law, it is the fact that the dying man can never lie or Truth sits on the lips of dying man. Hence, the Dying Declaration is Admissible and considered as Evidence in Court, and can be used as a weapon to punish the culprit.
In the recent “Nirbhaya’s Rape Case,” Dying Declaration was made by her in the form of sign and gesture. Thus, Dying declaration made through signs, gestures or by nods are also admissible as evidence.
In Khulshal Rao Vs. State of Bombay – Apex Court laid down the following principles related to dying declaration : –
Dying declaration is the statement made when a person is at death bed, as the word “dying declaration” itself signifies its meaning. A person having a serious apprehension of death and there shall be no chances for his survival. At this point, the court assumed that whatever the statement made by the declarant is purely true as the man will never meet his maker with a lie on his lips and person will speak only truth.
Probate is the court-supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the person’s assets, paying their final bills and taxes, and distributing the remainder of the estate to their rightful beneficiaries.
The application for probate shall be made by Petition. There shall be annexed to the petition a copy of the last will and testament of the deceased. If the will be not in the English language, an official translation thereof shall be annexed.
The original will shall be filed separately and kept by the Prothonotary and Senior Master in the strong room of his office in Bombay High Court.
There shall also be annexed to the petition:-
Verification of petition. – The petition for probate shall be subscribed by the Petitioner and his Advocate on record (if any), and shall be verified by the petitioner in the manner prescribed for verification of plaints.
The Court-fees of the notice issued by the Prothonotary and Senior Master shall be paid within three days after receipt of such notice.
In any case where an application for probate is made for the first time after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the Petition. Should the explanation be unsatisfactory, the Prothonotary and Senior Master may require such further proof of the alleged caused of delay as he may deem fit.
In cases in which it is not necessary that a will should be signed by the testator or attested by witnesses to constitute a valid testamentary disposition of the testator’s property, the testator’s intention that it should operate as his testamentary disposition shall be clearly proved by affidavit or otherwise.
All processes and citations shall issue from and be returnable to the office of the Prothonotary and Senior Master and shall be prepared, signed and dated by him or one of his assistants and sealed executed and returned, in the same manner as processes in suits on the Original Side of the Court.
Citations shall be served personally when possible. Personal service shall be affected by leaving a true copy of the citation with the party cited and taking his acknowledgement on the original.
Any person intending to oppose the grant of probate shall file a caveat in within fourteen days from the service of the citation upon him or within such shorter time as the Judge in Chambers may direct. Notice of the filing of the caveat shall be given by the Prothonotary and Senior Master to the petitioner or his Advocate on record.
An affidavit in support of aCaveat shall be filed within eight days from the date of the filing of theCaveat, notwithstanding the Court vacations. Such affidavit shall state theright and interest of the caveator, and the grounds of the objections to theapplication.
A copy of the said affidavit shall be served by the caveator onthe petitioner or his advocate on record. If such affidavit be not filed withinthe prescribed time, the caveat shall not prevent the grant of probate. No such affidavit shall be filed after the expiry ofthe said eight days without an order of the Judge in Chambers.
Certified copies of wills and other documents furnished by the office shall be signed by the Prothonotary and Senior Master or one of his assistants and shall be sealed with the seal of the Court.
Grants of probate issued during a calendar year along with the wills and their translations, if any, shall be copied out in registers to be maintained by the Prothonotary and Senior Master.
Banks and financial institutions duly registered with Reserve Bank of India (RBI) provide loan facility to legal entities and individuals (borrowers). In the event where the borrower fails to repay loan amount or any part thereof which also includes unpaid interests and other charges and/or debt becomes Non-Performing Asset (NPA), banks and financial institutions can recover the debt by approaching appropriate judicial forums.
Before, the enactment of the RDDBFI Act, banks and financial institutions were facing huge challenges in recovering debts from the borrowers as the courts were overburdened with large numbers of regular cases due to which courts could not accord priority to recovery matters of the banks and financial institutions. The Government of India in 1981 constituted a committee headed by Mr T. Tiwari, this committee suggested a quasi-judicial setup exclusively for banks and financial institutions which by adopting a summary procedure can quickly dispose-off the recovery cases filed by the banks and financial institutions against the borrowers.
Again in 1991, a committee was set up under Mr Narashmam, which endorsed the view of the Mr T. Tiwari Committee and recommended the establishment of quasi-judicial for the speedy recovery of debts. Pursuant to which Government of India enacted the RDDBFI Act. Through, the RDDBFI Act quasi-judicial authorities were constituted, and the procedure was specified for the speedy recovery of debt.
Section 4 provides that, DRT consists of sole member only, known as Presiding Officer.
Section 5, provides that a person who has been or is qualified to become District Judge can be appointed as Presiding Office of DRT.
Section 6 provides that the terms of the Presiding Office shall end after the expiry of the period of 5 years from the date he enters the office and he will be eligible for reappointment provided he has not attained the age of 65 years.
Sections 8 to Section 11 deals with the establishment, qualification, and term of the Chair Person of the Debt Recovery Appellate Tribunal (DRAT). DRAT is established to exercise control and powers conferred under the RDDBFI Act. DRAT consist of sole member to be known as Chair Person.
A person is eligible to become a Chair Person, if he has been an or qualified to become a High Court Judge, or has been a member of the Indian Legal Services and held a Grade 1 post as such member for the minimum period of three years or has held office of Presiding Officer of Tribunal for period of at least three years.
The Chair Person of DRAT can hold his office for the period of five years and is also eligible for reappointment, provided, that he has not attained the age of seventy years. DRAT has appellate and supervisory jurisdiction over DRTs.
As per section 1(4), the provisions of RDDBFI Act does not apply where the amount of debt due to the bank or financial institution or the consortium of banks and financial institutions is less than Rupees Twenty Lakhs.
In the case of SARFESAI Act, if the asset has been declared as Non-Preforming Asset (NPA), eligible banks and financial institutions after enforcing security can recover remaining amount under RDDBFI Act which is in excess, of Rupees One Lakh.
As per section 2 (g) debt is any liability inclusive of interest, which is claimed to due from any person by any bank or financial institution or consortium thereof.
Such liability may be secured or unsecured or assigned, whether payable under the order of court or arbitration award or under the mortgage. Such a liability shall be subsisting and validly recoverable on the date of application.
The debt also includes liability towards debt securities which remains unpaid in full or part after notice of ninety days served upon the borrowers by the debenture trustees or any authority in whose favour a security interest is created for the benefit of the holder of the debt security.
As per section 17 of RDDBFI Act, vests jurisdiction, power and authority on DRT to entertain and decide application from banks and financial institutions to recover a debt due to such banks and financial institutions.
Further, section 17A confers on DRAT power of general superintendence and control and confers appellate jurisdiction on DRAT. DRAT is also empowered to transfer a case from one DRT to another DRT. DRAT is also empowered to call for information from DRT, about cases pending and disposed of them. DRAT is also empowered to convene the meeting of Presiding Officers. It also empowered to conduct an inquiry of Presiding Officer and recommend suitable action to the Central Government.
Section 18 bars the jurisdiction of any civil court or authority for recovery of debt, except High Court and Supreme Court in the exercise of their writ jurisdiction under Article 226 and 227 of the Constitution of India. Thus in essence order of DRAT can be challenged in writ jurisdiction of High Court or Supreme Court
An Application has to be filed within the local jurisdiction of relevant DRT, as per section 19(1) of the Act, Application can be filed within the local limit of DRT in whose jurisdiction where:
Further, where a bank or a financial institution, which has to recover its debt from any person, has filed an O.A and against the same person another bank or financial institution also has claim to recover its debt, then, the later bank or financial institution may join the applicant bank or financial institution at any stage of the proceedings, before the final order is passed, by making an application to that DRT.
In terms of DRT act bank and financial institutes may follow the process outlined below to recover dues:
(1) Attachment and subsequent sale of the movable /immovable property of the debtor;
(2) Arrest the debtor for detention in prison;
(3) Appoint a receiver for managing the movable or immovable properties of the debtor.(Section 25)
However Procedure followed by Bank and Financial institution after promulgation of Securitization act read harmoniously with DRT act.
As per the DRT act, any application made by the Banks and Financial Institutions is to be dealt by the Tribunal expeditiously. The stipulated time period for Tribunal to dispose off the application is 180 days from the date of receipt of application.
The appeal filed before the Appellate Tribunal shall be disposed off expeditiously .All efforts are required to be made by Tribunal to finally adjudicate on the matter finally within a period of six months from the date of receipt of appeal.
Practically the proceedings before DRT/DRAT may take one to three years or longer depending upon the facts and circumstances of the case.
An absolute contract is a one where the promisor performs the contract without any condition. Contingent contracts, on the other hand, are the ones where the promisor performs his obligation only when certain conditions are met.
A contract is an agreement enforceable by law. [Section 2(h) of The Indian Contract Act, 1872]. For every contract, there should be an agreement that is made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object. The agreement should not be declared void hereby to form a contract. This definition of contracts as per Indian Contract Act, 1872 is based on Sir Pollock’s definition which states that every agreement and promise enforceable at law is a contract. Thus for the formation of a contract, there must be an agreement and something in addition to that, i.e., an agreement, and its enforceability at law.
Section 31 of the Indian Contract Act, 1872 defines the term ‘Contingent Contract’ as follows:
‘A contingent contract is a contract to do or not to do something, if some event collateral to such contract does or does not happen’.
In simple words, contingent contracts are the ones where the promisor performs his obligation only when certain conditions are met. The contracts of insurance, indemnity, and guarantee are some examples of contingent contracts.
Illustration:- A contracts to pay to B Rs. 20,000 if B’s house is burnt. This is a contingent.
Chandulal Harjivandas v. CIT – In this case, it was held that all contracts of insurance and indemnity are contingent.
After examining the definition of the contingent contract given under section 31 of the Act, the essentials of the term contingent contract are as follows:
Section 32 and 33 of the Act talks about enforcement of the contingent contract on the happening or not happening of the events respectively. The contract will be valid only if it is about performing or not performing an obligation.
The condition for which the contract has been entered into must be a future event, and it should be uncertain. If the performance of the contract is dependent on an event, which is although a future event, but certain and sure to happen, then it’ll not be considered as a contingent contract.
The event on whose happening or non-happening of the event on which the performance of the contract is dependent should not be a part of the consideration of the contract. The happening or non-happening of the event should be collateral to the contract and should exist independently.
Illustration: X enters into a contract with Y and promises to deliver 10 books to him. Y promises to pay Rs. 2000 upon delivery. This is not a contingent contract since Y’s obligation depends on the event which is a part of the contract (delivery of 10 Books) and not a collateral event.
The event so considered as for contingency should not at all to be dependent on the promisor. It should be totally a futuristic and uncertain event.
Illustration: X promises to pay Y, Rs. 10,000 if Y leaves Delhi for London on 31st March 2019. This is a contingent contract. Going to London can be within Y’s will but is not merely his will.
Provisions related to the enforcement of the contingent contract are given under section 32 to 36 as follows:
Condition #1- enforcement of contract contingent on the happening of an event
The contingent contracts to do or abstain from doing something if an uncertain future event happens. However, the contract cannot be enforced by law unless the event takes place. If the event becomes impossible, such contracts become void.[Section 32]
Illustration: X promises to pay Y, Rs. 100,000 if he marries Z, the prettiest girl in the neighborhood. This is a contingent contract. Unfortunately, Z dies in a car accident. Since the happening of the event no longer possible, the contract is void.
Condition #2 – enforcement of contract contingent on an event not happening
The contingent contracts to do or abstain from doing something if an uncertain future event does not happen can be enforced when the happening of that event becomes impossible. If the event takes place, then the contingent contract is void.[Section 33]
Illustration: X promises to pay Y a sum of money if a certain ship does not return. The ship is sunk. The contract can be enforced when the ship sinks. On the other hand, if the ship returns, then the contract is void.
Condition #3 – when an event on which contract is contingent to be deemed impossible if it is the future conduct of a living person
If a contract contingent upon how a person will act at a future time, the event shall be considered impossible when such person does anything which makes it impossible for the event to happen. (Section 34)
Illustration: X agrees to pay Y, Rs. 100,000 if Y marries Z. However, Z marries A. The marriage of Y to Z must now be considered impossible, although it is possible that A may die and that Z afterward marry Y.
Condition #4 – contracts contingent on an event happening within the fixed time
Contingent contracts to do or not to do anything if a future uncertain event happens within a fixed time. Such a contract is void if the event does not happen and the time lapses. It is also void if before the time fixed, the happening of the event becomes impossible. (Section 35)
Illustration: X promises to pay Y a sum of money if a certain ship returns before 1st April 2019. The contracts may be enforced if the ship returns within the fixed time. On the other hand, becomes void if the ship sinks.
Condition #5 – contracts contingent on an event not happening within the fixed time
Contingent contract to do or not to do anything if an uncertain event does not happen within a fixed time may be enforced by law when the fixed time has expired, and such event has not happened, or before the time fixed has expired, if it becomes certain that such event will not happen.[Section 35]
Illustration: X promises to pay Y a sum of money if a certain ship does not return before 31st March 2019. The contract may be enforced if the ship does not return before 31st March 2019. Also, if the ship burnt before the given time, the contract is enforced by law since the return is impossible.
Condition #6- contract contingent of impossible event void
If an agreement to do or not to do is based on the impossible event, then such agreement is void, whether the impossibility of the event is known or not to the parties to the agreement at the time when it is made.[Section 36]
Illustration: X promises to pay Y, Rs 500 if two straight lines should enclose a space. The agreement is void.
Illustration: Mohan contracts to pay Ram a sum of Money when Ram marries Geeta. Geeta dies without being married to Ram. The contract becomes void.
Illustration: Saurbh promises to pay Servesh if a certain ship returns within the year. The contract becomes void if the ship is burnt within the year.
Illustration: X agrees to pay Y, Rs. 10,000 if Y will marry X’s daughter P. P was dead at the time of the agreement. The agreement is void.
For a contract to be a contingent contract, certain essential elements have to be there. These elements form a contingent contract and without them, a contract will not be contingent. There must be a valid contract to do or not to do something. The performance of the contract must be conditional. The said event must be collateral to such contracts and the event should not be at the discretion of the promisor. These are some rules that have to be followed for a contingent contract to be enforceable. For instance, on the happening of an event, on the event not happening and on the event not happening within a specified time. There are some situations when a contingent contract becomes void. Some of them are: the event being impossible, not happening of event within fixed time, agreements contingent on impossible events and on the conduct of a living person.
The Indian Contract Act, 1872 defines the term “Contract” under its section 2 (h) as “An agreement enforceable by law”. In other words, we can say that a contract is anything that is an agreement and enforceable by the law.
This definition has two major elements in it viz – “agreement” and “enforceable by law”. So in order to understand a contract in the light of The Indian Contract Act, 1872 we need to define and explain these two pivots in the definition of a contract.
The Indian Contract Act, 1872 defines what we mean by “Agreement”. In its section 2 (e), the Act defines the term agreement as “every promise and every set of promises, forming the consideration for each other”.
Section 2(b) which defines the term “promise” here as: “when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. Proposal when accepted, becomes a promise”.
In other words, an agreement is an accepted promise, accepted by all the parties involved in the agreement or affected by it. This definition thus introduces a flow chart or a sequence of steps that need to be triggered in order to establish or draft a contract. The steps may be described as under:
Thus, in other words, an agreement is obtained from a proposal once the proposal, made by one or more of the participants affected by the proposal, is accepted by all the parties addressed by the agreement. To sum up, we can represent the above information below:
Agreement = Offer + Acceptance.
Agreement to change into a Contract as per the Act, it must give rise to or lead to legal obligations or in other words must be within the scope of the law. Thus we can summarize it as Contract = Accepted Proposal (Agreement) + Enforceable by law (defined within the law)
Section 4 provides that, the communication of a proposal is complete when it becomes to the knowledge of the person to whom it is made.
The communication of an acceptance is complete – as against the proposer, when it is put in a course of transmission to him so at to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer.
The communication of a revocation is complete – as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it; as against the person to whom it is made, when it comes to his knowledge.
| Agreement | Contract |
| A promise or a number of promises that are not contradicting and are accepted by the parties involved is an agreement. | A contract is an agreement that is enforceable by law. |
| An agreement must be socially acceptable. It may or may not be enforceable by the law. | A contract is only legally enforceable. |
| An agreement doesn’t create any legal obligations. | A contract has to create some legal obligation. |
| An agreement may or may not be a contract. | All contracts are also agreements. |
The content of this document do not necessarily reflect the views / position of RKS Associate, but remains a probable view. For any further queries or follow up please contact RKS Associate at [email protected]