IN THE HON BLE SUPREME COURT OF INDIA

Transcription

1 ITM SCHOOL OF LAW - MOOT COURT EXERCISE IN THE HON BLE SUPREME COURT OF INDIA IN THE MATTER OF SMT. VIDYA...APPELLANT Vs. NAND RAM ALIAS ASOOP RAM (DEAD) by LRs...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. Issues Raised (vii) 5. Statement of Facts (viii) 6. Summary of Arguments (ix) 7. Written Submissions (x) 8. Prayer for Relief (xv) Memorandum for the Appellant Page 2

3 LIST OF ABBREVIATIONS & AIR H.S.A. HON BLE LRs SC Sec. MAD Vs. WWW And All India Reporter Hindu Succession Act Honorable Legal Representatives Supreme Court Section Madras Versus World Wide Web Memorandum for the Appellant Page 3

4 INDEX OF AUTHORITIES Statutes Referred:- 1. Hindu Marriage Act, Sec 4 2. Hindu Marriage Act, Sec 5(i) 3. Hindu Succession Act, Sec 14(1) 4. Hindu Succession Act, Sec 14(2) 5. Indian Succession Act, Sec 2(h) Cases Referred:- 1. V. Tulasamma & Ors Vs. V. Sesha Reddi (Dead) By L. Rs 1 2. Radha Rani Bhargava Vs Hanuman Prasad Bhargava 2 3. Kalawatibai Vs Soiryabai and Others 3 4. Bhura and Others Vs. Kashiram 4 5. Jagan Singh (Dead) Through Lrs Vs Dhanwanti & Ors 5 6. A. Subba Naidu Vs. Rajammal alias Thayammal 6 Books Referred:- 1. Hindu Law by Werner F. Menski 2. Hindu Law Digest 3. Hindu Law of Marriage & Divorce by Sukhdev Singh 4. Hindu Laws Bare Act by Universal s Publication 5. Mayne's Hindu Law and Usage by Justice Ranganath Misra & Dr. Vijender Kumar 6. Mulla Hindu Law by S.A. Desai 7. The Hindu Law of Religious and Charitable Trusts by B.K. Mukherjea & T.S. Grewal 1 AIR 1977 SC AIR 1966 SC AIR 1991 SC AIR 1994 SC Civil Appeal No OF AIR 1977 Mad 64 Memorandum for the Appellant Page 4

5 Websites: ( Memorandum for the Appellant Page 5

6 STATEMENT OF JURISDICTION This memorandum of appeal submitted by the appellant, Smt. Vidya, has approached the HON BLE Supreme Court of India under Sec of The Code of Civil Procedure read with Sec of The Constitution of India When appeals lie to the Supreme Court? Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies? (i) that the case involves a substantial question of law of general importance; and (ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters. (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under article 134A (a) that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. (2) Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided. (3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court. Memorandum for the Appellant Page 6

7 ISSUES RAISED Whether the appellant is the rightful owner of the property? Whether the said appeal is maintainable? Whether the respondents have any right over the property? Memorandum for the Appellant Page 7

8 STATEMENT OF FACTS 1. There was one Khimi Ram who had three wives, namely, Smt. Khunki, Smt. Nengu and Smt. Durga. The appellant is the daughter of Smt. Nengu, namely, Smt. Vidya. 2. Khimi Ram executed a Will, dated 30th September, 1932, giving his disputed property to the appellant but also gave the same property to his three wives. The said three wives had limited right to enjoy it during their lifetime. 3. Khimi Ram died on 30th September, 1932 and Smt. Khunki died in 1953, Smt. Nengu died in 1960 & Smt. Durga died on 8th March, Before the death of Smt. Durga on 27th February, 1965, Smt. Durga executed a Will, of the property of that she had got from Khimi Ram, in favour of Nand Ram. 5. Nand Ram was her son from her first husband. On the basis of this Will, dated 27th February, 1965 executed by Smt. Durga, the respondent filed the suit for declaration. 6. This suit was contested by the appellant in the trial court. The plaintiff then filed second appeal which was dismissed by learned Single Judge but the appeal of the plaintiff under the letter patent was allowed. 7. The present appeal is preferred against the judgment of the High Court. Memorandum for the Appellant Page 8

9 SUMMARY OF ARGUMENTS The appeal filled by the appellant, Smt. Vidya is completely valid as she is the rightful owner of the property by the virtue of Sec. 14(2) of The H. S. A. and the respondents are not entitled for any share in the property. Memorandum for the Appellant Page 9

10 ARGUMENTS ADVANCED Whether the appellant is the rightful owner of the property? Whether the said appeal is maintainable? Whether the respondents have any right over the property? Yes. The appeal is maintainable as being the right owner of the property she has right to restrict others to take her property. She has got the property by a will which clearly stated that she has ulterior right to enjoy the property and only she will have absolute right over the property. The will was also executed in favour of the 3 wives but 3 of them were not actually wives. Only the first wife, Khunki has the legal title to be called as the wife of Mr. Khimi Ram as, under the Hindu Law, one cannot have more than one wife. In accordance with Section 4 of The Hindu Marriage Act any law prior to this act ceases to have effect with respect to any matter for which the provisions are made under this act. Section 5(i) of The Hindu Marriage Act lays down certain conditions for a valid marriage and out of which 1 st conditions is that Monogamy is the rule. So only one marriage is permitted and thus is legally valid. 4. Over-riding effect Act,- (a) Any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) Any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. 5. Conditions for a Hindu marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i) Neither party has a spouse living at the time of the marriage; ************** Memorandum for the Appellant Page 10

11 Hence right of maintenance is only for the first wife. Smt. Durga was the 3rd wife, her marriage is not valid; hence she had no right of maintenance and Sub-section (1) of Sec 14 of The Hindu Succession Act would not apply to her. Even under the Shastri Hindu Law a wife was considered to be Ardhangini that is: the better half of the husband. So it indirectly states that only wife can have the title of WIFE and also she was known as the Dharmapatni only is she is the 1 st wife. The Dharma also permits only one marriage and not more than that. Section 14 of The Hindu Succession Act goes like this:- Section 14: Property of a female Hindu to be her absolute Property.- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.- In this sub-section, property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. In the present case Sub-section (2) of Sec 14 of H.S.A. is applicable and not Sub-section (1) as in the case of - V. Tulasamma & Ors Vs. V. Sesha Reddi (Dead) By L. Rs 9. The case was decided by a bench of Justice Bhagwati and Justice P.N. and the bench said that only in cases of pre-existing rights Sub-section (1) of Sec 14 of H.S.A. will prevail but when a new right is conferred then the rules of the instrument (Will) through which the right is conferred will be followed. It has been earlier proved by the council that Smt. Durga was not her legal wife. Hence she doesn t have any pre-existing right on the property of the Khimi Ram. So the rule of succession will be followed according to the Will of Khimi Ram and the will clearly says that all his wives have only life time ownership over the property and only the plaintiff has the absolute right enjoy the property. So when Smt. Durga herself doesn t have any absolute right then defendants too 9 AIR 1977 SC 1944 Memorandum for the Appellant Page 11

12 doesn t have any right. In the case of Radha Rani Bhargava Vs Hanuman Prasad Bhargava 10. In the above mentioned case a female alienated the property but she was not supposed to do that so the female and the Alienee can t be benefitted so her brother-in-law got the property. The Supreme Court said if any female does any act beyond his powers then she will be stripped off her rights and even her right will be taken off and even her descendents can be benefitted. In the case of Kalawatibai Vs Soiryabai and Others 11, there was one female Hindu she got the property from her husband and by a gift deed she gave all the property to her one daughter excluding the other daughter. The Supreme Court said gift deed is not valid and she herself will be stripped off her rights. In the case of Bhura and Others Vs. Kashiram 12 Tula Ram was the common ancestor of the parties He had a son by name Pancham, who died on Pancham had 3 wives by name Smt. Punji, Smt. Kaushalya and Smt. Sarupa. Sarjabai was the daughter from his 3 rd wife. Pancham executed a will on in favour of Sarjabai, whereby he bequeathed certain sir lands and a house to her. The will dated created only a life interest in favour of Sarjabai and the plaintiff was an exclusive owner of the said property. The court said that the limited estate conferred upon Sarjabai by the will could not even be enlarged into an absolute estate under the Hindu Succession Act, 1956, even though she was in possession of that property at the time of the coming into force of the Hindu Succession Act Section 14(2) of the Act mandates that nothing contained in Sub-section 1of Section 14 of the Hindu Succession Act,1956 shall apply to any property acquired by way of gift or under a will instrument prescribing a restricted right in such property. The will itself prescribed a restricted right of lifeestate in the property in favour of Sarjabai, that estate could not be enlarged into an absolute estate in view of the express provisions of the Hindu Succession Act In case of Jagan Singh (Dead) Through Lrs Vs Dhanwanti & Ors 13 on 19 January, 2012:- 14 New Delhi: the Supreme Court has ruled that a Hindu woman who gets property from her husband through a will cannot have absolute right over it unlike property inherited by her through succession In other words, though the Hindu Marriages Act provide absolute right to a woman on the property inherited through succession from her husband, she cannot have the same privilege if the property devolves on her through a "will" with restricted clauses. A bench of justices P Sathasivam and H L Gokhale passed the ruling while upholding an appeal filed by a land owner Jagan Singh challenging the right of his widowed sister-inlaw Dhanwanti to sell her plot which was gifted through a will by her husband Umrao Singh. 10 AIR 1966 SC AIR 1991 SC AIR 1994 SC Civil Appeal No OF Memorandum for the Appellant Page 12

13 Umrao Singh in his will had stated that his wife Dhanwanti will be the owner his plot, but would not have any right to dispose off the property. However, after the death of her husband, Dhanwanti attempted to sell the plot which was challenged by Jagan Singh. Both the trial court and the Allahabad High Court rejected his plea on the ground that Dhanwanti enjoyed the protection of the Hindu Marriages Act under which she had absolute right to enjoy, dispose or gift the property to any person. However, upholding his appeal, the apex court said, "Section 14 of the Hindu Succession Act, 1956 undoubtedly declares in sub-section (1) thereof that a property of a female Hindu is her absolute property, but it creates an exception in sub-section (2) which provides that sub-section (1) will not apply to any property which is given away by instruments such as by way of a gift or under a will. "In the present case Umrao Singh had made a will, and under that he had created a restricted estate in favour of respondent No.1 which was permissible under this section 14 (2)," Justice Gokhale writing the judgement said. The apex court cited its ruling in the 1971 Karmi Vs. Amru case said that a widow who succeeds to the property of her deceased husband on the strength of his will, cannot claim any right other than those conferred by the will. "Thus life estate given to her under a will cannot become an absolute estate under the provisions of Section 14 (2) of the Hindu Succession Act, "Respondent No.1 was entitled to a share in the land on account of that will only, and not on the basis of her own independent right. "The will giving her a share had restricted it to her life time which Umrao Singh was entitled to do under Section 169 (1) of the U.P. Act, and the same would remain restricted in view of Section 14 (2) of Hindu Succession Act, 1956, " the bench said. The apex court further said that the purported sale effected by Dhanwanti to another woman during the pendency of the dispute was not valid. The bench said that Section 52 of the Transfer of Property Act forbids any such sale transaction of a disputed property which is the subject matter of litigation unless a final decree had been passed in favour of either of the parties to the dispute. In the case of A. Subba Naidu Vs. Rajammal alias Thayammal 15, the court said that a limited grant in lieu of maintenance would be nothing more than a restricted estate as contemplated in Section 14 (2). In the present case, the property of the Khimi Ram was a disputed property so the appellant is entitled to the share through the will but the defendant doesn t have right over the property by any means. 15 AIR 1977 Mad 64 Memorandum for the Appellant Page 13

14 As far as the will is considered there is no question of the valid marriage of appellant s mother, Smt. Nengu because there are not as such restrictions for executing a will and a person can execute in anyone s favour. When it comes to will section 2(h) of The Indian Succession Act defines will as:- 2. Definitions: - In this Act, unless there is anything repugnant in the subject or Context,-- ************ (h) "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Hence it has been proved that only the appellant has absolute right over the property and thus the appeal should be allowed and the appellant should be declared the owner of the property. Memorandum for the Appellant Page 14

15 PRAYER FOR RELIEF In the light of" the facts stated, arguments advanced, and authorities cited, the Counsel for appellant humbly prays before this Honorable Supreme Court of India to declare that:- 1. The appellant is the absolute owner of the property. 2. The defendants doesn t have any right over the property. And pass any other order that this Honorable Court may deem fit in the interests of justice equity and good conscience. Date: - 28 th April, 2014 ALL OF WHICH IS REPECTFULLY SUBMITTED Place: - Gurgaon Counsel for Appellant Sakshi Ji 13LLB064 Memorandum for the Appellant Page 15