IN THE HON BLE HIGH COURT OF PATNA

Transcription

1 ITM SCHOOL OF LAW - MOOT COURT EXERCISE IN THE HON BLE HIGH COURT OF PATNA IN THE MATTER OF INDAR SINGH AND ORS...APPELLANT Vs. PARMESHWARDHARI SINGH AND ANR...RESPONDENT COUNSEL FOR APPELLANT SAKSHI JI 13LLB064

2 TABLE OF CONTENTS 1. List of Abbreviations (iii) 2. Index of Authorities (iv) 3. Statement of Jurisdiction (vi) 4. Statement of Facts (vii) 5. Issues Raised (viii) 7. Written Submissions (ix) 6. Summary of Arguments (xv) 8. Prayer for Relief (xvi) Memorandum for the Appellant Page 2

3 LIST OF ABBREVIATIONS & AIR ALL ANR. CAL HC HON BLE ICA ORS. And All India Reporter Allahabad Another Calcutta High Court Honorable Indian Contract Act Others P. Page PAT QB Sec. Vs. WWW Patna Queen s Bench Section Versus World Wide Web Memorandum for the Appellant Page 3

4 INDEX OF AUTHORITIES Statutes Referred:- 1. The Indian Contract Act, Sec The Indian Contract Act, Sec The Indian Contract Act, Sec The Indian Penal Code, Sec The Indian Penal Code, Sec The Indian Penal Code, Sec 421 Cases Referred:- 1. U Aung Ya v. Ma E Mai 1 2. Kanhaiyalal, Tannalal v. Harsingh, Laxman 2 3. Mahomed Yakub v. Abdul Quddus Loan Co. v. Stone 4 5. Amina Bibi v. Saiyid Yusuf 5 6. Baburam Mahali v. State of West Bengal 6 Books Referred:- 1 AIR 1932 RANG 24 2 AIR 1944 NAG AIR 1923 PAT (1872) 1 QB AIR 1922 ALL (2005)3CALL 331 (HC) 1. Amit Bajaj & Puneet s Law Of Contracts by Bajaj 2. Building Contracts And Practice by Emden 3. Contract & Specific Relief by Avtar Singh 4. Contract Law In India by Akhileshwar Pathak Memorandum for the Appellant Page 4

5 5. CrunchTime: Contracts by Steven L. Emanuel 6. Digest of Indian Contract Act, 1872 ( ) by Sandeep Bhalla (Advocate) 7. Dutt on Contract - The Indian Contract Act, 1872 by H. K. Saharay 8. Examples & Explanations: Contracts by Brian A. Blum 9. Gt Gajria's Law Relating To Building And Engineering Contracts In India by Kishore Gajaria 10. Law of Contract by S. S. Ujjannavar 11. Law of Simple Contracts by Prof. G.P.Tripathi 12. Law Relating to Indian Contract Act, 1872 by M.L.Bhargava (Advocate) 13. MLJ : Law Of Contract And Specific Relief by Editorial Team 14. Mulla: Indian Contract Act by Anirudh Wadhwa 15. The Contract by Margaret Cavendish 16. The Indian Contact Act by Sir Frederi 17. The Indian Contract Act (Act 9 of 1872) : Short Notes by Thorpe S 18. The Principles of the Indian Law of Contract by P. K. Nambyar 19. Treitel The Law of Contract by Edwin Peel 20. Working With Contracts: What Law School Doesn't Teach You by Charles M. Fox Websites: Memorandum for the Appellant Page 5

6 STATEMENT OF JURISDICTION This memorandum of appeal submitted by the appellant, Indar Singh, has approached the HON BLE High Court of Patna under Sec 96 7 of The Code of Civil Procedure. 7 SECTION 96: Appeal from original decree (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. [(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.] Memorandum for the Appellant Page 6

7 STATEMENT OF FACTS 1. Indar Singh and Ors. the Appellant, primarily plaintiff, initiated a suit against the respondent, Parmeshwardhari Singh for a declaration that they have acquired valid title to the disputed properties by virtue of their purchase under a registered sale-deed dated the 28th April The disputed properties belonged to late Babu Mangaldhari Singh, father of defendant No. 1. Babu Mangaldhari Singh died in 1943, leaving respondent No. 1, his son, as his heir. Respondent No. 1 contracted to sell the disputed properties for Rs. 7,000 to the plaintiffs by executing a contract of sale dated the 19th April 1944, in their favour and that the plaintiffs paid Rs. 700 as an advance at that time. Subsequently, he executed a sale deed in the plaintiffs' favour on the 28th April Rs. 1,300, being the decretal dues, was set off and Rs. 4,000 was kept in deposit with the plaintiffs to be paid to Sheo Prasad Singh, the Ijaradar of the Milkiat interest of the disputed properties. The balance of Rs. 1,000 was said to have been paid in cash to respondent at the time he executed and signed the sale-deed. 4. Respondent then refused to admit the execution of the sale-deed before the Sub-Registrar, the plaintiffs then had to take proceeding for compulsory registration of the sale-deed. The District Sub-Registrar ordered compulsory registration. 5. On the date the sale-deed was registered, respondent in the Sub-registry office snatched away the sale-deed and tore it into pieces. A criminal case was started and he was ultimately acquitted. 6. The plaintiffs applied for mutation of their names in respect of the disputed properties on the strength of their sale-deed and they came to know that defendant No. 2, the mother of defendant No. 1, was mutated for those properties. 7. The defendants had no right to the properties in suit after the execution of the sale-deed in favour of the plaintiffs which was valid, genuine and for consideration. Hence the appeal was initiated by the plaintiffs. Memorandum for the Appellant Page 7

8 ISSUES RAISED Whether appellants are entitled for the mutation of their names in the disputed property of the defendants or not? (i) Whether the defendant was of sound mind or not? (ii) Whether the defendant had the right to sell off the property to the appellant or not? Memorandum for the Appellant Page 8

9 ARGUMENTS ADVANCED Whether appellants are entitled for the mutation of their names in the disputed property of the defendants or not? (i) Whether the defendant was of sound mind or not? (ii) Whether the defendant had the right to sell off the property to the appellant or not? Yes, appellants are fully entitled for the mutation of their names in the property and also the defendant No. 1 is sane. The suit filed by the appellant for the mutation of their names in the disputed property was contested by Defendant No. 2, the mother of defendant No. 1. She said that defendant No. 1 is a congenital idiot, incapable of understanding transactions relating to transfer of properties, and is a man of unsound mind and mostly wanders about here and there. She also contested that on the death of her husband, Babu Mangaldhari Singh, she and not defendant No. 1, came into possession of the entire properties. As defendant No. 1 is insane and idiot, he was excluded from inheritance and, as such, he had no right, title and interest to the disputed properties. The counsel here strongly challenges the arguments of Defendant No. 2 and the decision of the trial Court that - defendant No. 1 was mentally defective (incapable of understanding transactions). Memorandum for the Appellant Page 9

10 Sec 11 of the I.C.A. 11. Who are competent to contract:- Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is sound mind and is not disqualified from contracting by any law to which he is subject. Section 11 also says that any person who is a major and is of sound mind is competent to enter into a contract and Section 12 of the Act attempts to define what is the meaning of 'sound mind' Sec 12 of the I.C.A. 12. What is a sound mind for the purposes of contracting:- A person is said to be of sound mind for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interest. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind. If the defendants are contesting that the defendant No.1 is of unsound mind, under Section 12 of the Contract Act, then it was necessary for the defendants to establish that at the time the contract was entered into, defendant No. 1 was incapable of understanding the transaction in question forming a rational judgment as to its effect upon his interests. Memorandum for the Appellant Page 10

11 In the case of U Aung Ya v. Ma E Mai 8 ; Kanhaiyalal, Tannalal v. Harsingh, Laxman 9 ; and Mahomed Yakub v. Abdul Quddus 10. The principle of law enunciated in all these cases is the same. Mahomed Yakub's case is a Division Bench case of Patna High Court only. It lays down that:- "... The test of soundness of mind is that he is capable of understanding the business and of forming a rational judgment as to its effect upon his interest,. There being a presumption in favour of sanity, the person who relies on the unsoundness of mind must prove it sufficiently to satisfy this test...mere weakness of mind is not sufficient..." In the case of Imperial Loan Co. v. Stone 11, LORD ESHER said that a lunatic can only aside a contract entered into with a person of sound mind in the following circumstances: when a person enters into a contract and afterwards alleges that he was so insane at the time that he did not know what he was doing and proves the allegation, the contract is as binding on him in every respect, whether it is executory or executed as if he had been sane when he made it, unless he can prove further that the person with whom he contracted knew him to be insane as not to be capable of understanding what it was about. In the present case, the material fact was hidden from the appellant. Another relevant case is Amina Bibi v. Saiyid Yusuf 12, and the relevant passage is at p. 453: "Not being in a position to understand or to determine rationally whether it was likely to operate to his benefit by reason of his mental condition, the lease must be held to be void and unenforceable." 8 AIR 1932 RANG 24 9 AIR 1944 NAG AIR 1923 PAT (1872) 1 QB AIR 1922 ALL 449 Memorandum for the Appellant Page 11

12 Therefore, in this case, defendant No. 2 must establish that defendant No. 1 was incapable of understanding business and forming a rational judgment as to its effect upon his interest. Also in the section 84 of The Indian Penal Code insanity is defined, it reads as follows: Section 84 in The Indian Penal Code 84. Act of a person of unsound mind:- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. But in the case of Baburam Mahali v. State of West Bengal 13, the court upheld that there is a difference between LEGAL INSANITY and MEDICAL INSANITY every type of insanity is not a legal insanity unless the cognitive faculty is destroyed as a result of unsoundness of mind. So just by proving the fact that defendant no. 1 is mentally insane, it cannot be proved that he was legally insane and was insane at the time of execution of the sale deed. Also the defendants cheated the appellant as the fact was fraud committed under section 17 of the I.C.A. by the defendants. Section 17 read as follows: Section 17 in I.C.A., Fraud defined:- 13 (2005)3CALL 331 (HC) Memorandum for the Appellant Page 12

13 Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:- (1) The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) The active concealment of a fact by one having knowledge or belief of the fact; (3) A promise made without any intention of performing it; (4) Any other act fitted to deceive; (5) Any such act or omission as the law specially declares to be fraudulent. Explanation. Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak2, or unless his silence, is, in itself, equivalent to speech. In this case, if appellant would have known the fact that defendant No.1 doesn t have title over property then they would not have purchased the property. It was shown to the appellants that he was the legal heir of the property and also he is sane but later it came in the knowledge of the appellants that defendant No. 2 is being mutated for the property. This will not only result into the legal consequences against them in context of contractual suit but also a criminal suit as under The Indian Penal Code. Section 415 in The Indian Penal Code Section 415. Cheating:- Memorandum for the Appellant Page 13

14 Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat. Explanation: A dishonest concealment of facts is deception within the meaning of this section. According to this section they have committed cheating with the appellant and not only this they have sold the property of worth rupees 7,000 knowing that it was of worth 25,000 to fool the appellant, which is again an offence under section 421 of The Indian Penal Code 14. And when the appellant have paid all the expenses and to the persons who were the creditors of defendants they are not misleading the court and also have a dishonest heart and are guilty. Hence, there is no point taking off the property and mutating the name of defendant No. 2 with that as the ultimate owner will be appellant after the execution of sale deed. 14 Section 421:- Dishonest or fraudulent removal or concealment of property to prevent distribution among creditors: Whoever dishonestly or fraudulently removes, conceals or delivers to any person, or transfer or causes to be transferred to any person, without adequate consideration, any property, intending thereby to prevent, or knowing it to be likely that he will thereby prevent, the distribution of that property according to law among his creditors or the creditors of any other person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Memorandum for the Appellant Page 14

15 SUMMARY OF ARGUMENTS The appeal for acquiring valid title in the disputed property filled by the appellant Indar Singh and Ors. is completely valid based on the ground that the Sale Deed which was executed by the respondent is completely valid and rational and also the respondent had the competency to execute the deed at the time of its execution as mentioned in section 12 of The Indian Contract Act, 1872 and hence the judgment of the lower court should be repealed in order to grant valid title to the plaintiff under the aforesaid ground. Memorandum for the Appellant Page 15

16 PRAYER FOR RELIEF In the light of" the facts stated, arguments advanced, and authorities cited, the Counsel for appellant humbly prays before this Honorable High Court of Patna to declare that:- 1. The appellant are legally entitled for the disputed property and they have right for mutation of their names in the property 2. The defendants have played fraud with the appellant and court shall entertain criminal proceedings against them And pass any other order that this Honorable Court may deem fit in the interests of justice equity and good conscience. Date: - 10 th October, 2014 ALL OF WHICH IS REPECTFULLY SUBMITTED Place: - Gurgaon Counsel for Appellant Sakshi Ji 13LLB064 Memorandum for the Appellant Page 16