TEAM CODE: P06

IN THE HON’BLE CIVIL COURT OF LUCKNOW

UNDER SECTION 9 R/W SECTION 16 OF THE CODE OF CIVIL PROCEDURE,

1908

IN THE MATTER OF

ARSHI DAS................………………………………………..…………..…PETITIONER

V.

HIROM DAS.........................................................................……………...RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF PLAINTIFF

 MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................... 2

LIST OF ABBREVIATIONS .................................................................................................... 3

INDEX OF AUTHORITIES...................................................................................................... 4

STATEMENT OF JURISDICTION.......................................................................................... 5

STATEMENT OF FACTS ........................................................................................................ 6

STATEMENT OF ISSUES ....................................................................................................... 8

SUMMARY OF ARGUMENTS ............................................................................................... 9

ARGUMENTS ADVANCED ................................................................................................. 10

[ISSUE 1] THAT THE EXCHANGE DEED WAS EXECUTED UNDER UNDUE

INFLUENCE. ...................................................................................................................... 10

[ISSUE 2] THAT ONLY THE TESTATOR COULD HAVE SOUGHT THE

RECTIFICATION OF THE EARLIER DEED. .................................................................. 11

[ISSUE 3] THAT THE AMENDED WILL DOESN’T REFLECT THE ORIGINAL

INTENTION. ....................................................................................................................... 12

[3.1] There was no attempt made to know the real intention of the father. ..................... 13

PRAYER .................................................................................................................................. 15

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 MEMORIAL ON BEHALF OF THE PETITIONER

LIST OF ABBREVIATIONS

Abbreviations Full Forms

AIR All India Reporter

Anr Another

Art Article

Co Company

Dr Doctor

Edn Edition

Ltd Limited

Para Paragraph

Pvt Private

SCC Supreme Court Cases

SCR Supreme Court Reporter

SLP Special Leave Petition

WLR Weekly Law Reporters

WP Writ Petition

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 MEMORIAL ON BEHALF OF THE PETITIONER

INDEX OF AUTHORITIES

CASES

Afsar Sheikh v. Soleman Bibi, (1976) 2 S.C.C. 142. ................................................................ 10

Joseph John Peter Sandy v. Veronica Thomas Rajkumar, (2013) 3 S.C.C. 801. ........ 11, 12, 14
Krishna Mohan Kul v. Pratima Maity, (2004) 9 S.C.C. 468. .................................................. 11
Madan Mohan Singh & Ors v. Rajni Kant & Anr., AIR 2010 SC 2933.................................. 14
Raghunath Prasad v. Sarju Prasad, A.I.R. 1924 P.C. 60........................................................ 10
State of Bihar & Ors. v. Radha Krishna Singh & Ors., AIR 1983 SC 684. ............................ 13
Subhadra v. Thankam, (2010) 11 S.C.C. 514. ................................................................... 12, 13
Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib, A.I.R. 1967 S.C. 878. ............ 10

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 MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF JURISDICTION

The Court has derived its jurisdiction under Section 16 read with Section 9 of the Code of
Civil Procedure which states that:

“16. Suits to be instituted where subject matter situate.- Subject to the pecuniary or other
limitations prescribed by any law, suits—

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon
immovable property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distrait or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the property is
situate:

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable
property held by or on behalf of the defendant, may, where the relief sought can be entirely
obtained through his personal obedience, be instituted either in the Court within the local
limits of whose jurisdiction the property is situate, or in the court within the local limits of
whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or
personally works for gain.

Explanation: In this section “property” means property situate in India.”

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STATEMENT OF FACTS

Mr. Mayank Das, an ex-employee of Eronit Corporation made huge fortunes and has duly
invested the money in big farm houses in Lucknow, Noida and Delhi. He purchased two
bungalows in Luckow. The bungalows are in Hazratganj and Thakurganj areas of Lucknow.

II

After Mayank’s wife dies and he gets older, he consults his Advocate for proper settlement of
properties to his son and daughter. He at the age of seventy transfers his bungalows Tulip
Gardenbearing nos.22 located at Hazratganj measuring 30000 square feet of 200 crores to his
daughter and Acacia View of 25000 square feet of Rs. 180 crores bearing no 23, Vajirganj,
Thakurganj in favour of his son.

III

So, Mayank executed two registered settlement deeds on 27.8.2016 bearing nos. 1690/16 and
1691/16 at the office of Sub-Registrar, Lucknow, transferring House No. 22 in the name of
his daughter and House No. 23 in the name of his son, to which Hirom made an objection. He
talked to his father about the transfer and demanded that the property of Hazratganj be given
to him and had a talk regarding this with Arshi which was consented by her. The matter was
settled with the will of father. Thus, the parties to give effect to the real intention of their
father decided to exchange the properties given to them, and in furtherance thereof, executed
a Agreement Deed to exchange the same on 1.9.2016. The said document was witnessed by
Vinit and Mrs. Molly, who were neighbours and teachers and colleagues of the daughter.

IV

When Arshi came to attend her father’s funeral, she found that Hirom was planning to sell the
Hazratganj property at much higher rates to start up a new venture. Arshi wanted to settle in
Lucknow and proposes to her boss the idea to open an outlet in Lucknow for which the boss
asks for a place in Hazratganj area. She asks her brother for the ancestral house which in
exchange deed has been settled with him for the investment wherein he also can be made

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partner. Hirom rejects the idea and holds that he has moved on with the real estate project
with Tata Homes and now huge stakes are involved.

The tussle between brother and sister goes hard and they say to see each other in courts. She
filed a case in Civil Court Lucknow challenging the exchange deed executed on 1.9.2016
taking the plea that she was under undue influence of her father and brother. According to
her, she signed on the blank non-judicial stamp papers under undue influence. But Hirom
argues that everything was consensual and even endorsed before their father.

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STATEMENT OF ISSUES

ISSUE 1. Whether the Agreement Deed was excluded under undue influence and hence
invalid?
ISSUE 2. Whether the testator has sought the rectification of the earlier deed?
ISSUE 3. Whether the ‘Will’ reflect the original intention of the testator?

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 MEMORIAL ON BEHALF OF THE PETITIONER

SUMMARY OF ARGUMENTS

[ISSUE 1] That the exchange deed was executed under undue influence.

When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally,

the burden is on him to prove such fraud, undue influence or misrepresentation. But when a
person is in a fiduciary relationship with another and the latter is in a position of active
confidence the burden of proving the absence of fraud, misrepresentation or undue influence
is upon the person in the dominating position, and he has to prove that there was fair play in
the transaction and that the apparent is the real, in other words, that the transaction is genuine
and bona fide. In such a case the burden of proving the good faith of the transaction is thrown
upon the dominant party, that is to say, the party who is in a position of active confidence.

The first prong of the undue influence test is fulfilled since the two parties were siblings,
which is a fiduciary relationship. Secondly, Hirom was in the position of active confidence
and therefore, the burden of proof is on him to show that there was no undue influence under
section 16 of the Indian Contracts Act.

[ISSUE 2] That only the testatorcould have sought the rectification of the earlier deed.

Such an arrangement as in the present case was only a rectification deed between the two
parties and could not have been regarded as an agreement in exchange. Further, the settler
and not the contesting parties could only have executed the rectification deed. In the present
circumstances, the Court should hold the same because neither of the parties have examined
any witnesses who could have explained the conduct of the parties. However, since it was not
done, the rectification of deed could not have been done by the contesting parties and hence,
is not binding.

[ISSUE 3]That the amended will doesn’t reflect the original intention.

In the present case at hand it is important to ascertain the real intention of the father in the
Transfer of property deed executed on 27th August, 2016. The Exchange of Property is the
rectification deed of the Transfer of property deed, which can only be carried out when there
is some ambiguity related to the transfer of the property deed, which was not the case in the
present case in hand. Also no attempt was made to examine either the witnesses nor the
farther himself.

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 MEMORIAL ON BEHALF OF THE PETITIONER

ARGUMENTS ADVANCED

[ISSUE 1] THAT THE EXCHANGE DEED WAS EXECUTED UNDER UNDUE

INFLUENCE.
The law as to undue influence in the case of a gift inter vivos is the same as in the case of a
contract.1 Section 16 of the Contract Act provides that:

“16. ‘Undue influence’ defined.—(1) A contract is said to be induced by ‘undue influence’

where the relations subsisting between the parties are such that one of the parties is in a
position to dominate the will of the other and uses that position to obtain an unfair advantage
over the other.”

The Privy Council had expounded three stages for consideration of a case of undue
influence.2 It was pointed out that the first thing to be considered is, whether the plaintiff or
the party seeking relief on the ground of undue influence has proved that the relations
between the parties to each other are such that one is in a position to dominate the will of the
other. Up to this point, ‘influence’ alone has been made out. Once that position is
substantiated, the second stage has been reached namely, the issue whether the transaction
has been induced by undue influence. That is to say, it is not sufficient for the person seeking
the relief to show that the relations of the parties have been such that the one naturally relied
upon the other for advice, and the other was in a position to dominate the will of the first in
giving it.

Upon a determination of the issue at the second stage, a third point emerges, which is of the
onus probandi. If the transaction appears to be unconscionable, then the burden of proving
that it was not induced by undue influence is to lie upon the person who was in a position to
dominate the will of the other.3 ‘Error is almost sure to arise if the order of these propositions
be changed.4 The unconscionableness of the bargain is not the first thing to be considered.
The first thing to be considered is the relations of the parties. Were they such as to put one in
a position to dominate the will of the other?5

When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally,

the burden is on him to prove such fraud, undue influence or misrepresentation. But when a

1
Afsar Sheikh v.SolemanBibi,(1976) 2 S.C.C. 142.
2
Raghunath Prasad v. Sarju Prasad, A.I.R. 1924 P.C. 60.
3
Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib, A.I.R. 1967 S.C. 878.
4
Raghunath Prasad v. Sarju Prasad, A.I.R. 1924 P.C. 60.
5
Raghunath Prasad v. Sarju Prasad, A.I.R. 1924 P.C. 60.

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person is in a fiduciary relationship with another and the latter is in a position of active
confidence the burden of proving the absence of fraud, misrepresentation or undue influence
is upon the person in the dominating position, and he has to prove that there was fair play in
the transaction and that the apparent is the real, in other words, that the transaction is genuine
and bona fide. In such a case the burden of proving the good faith of the transaction is thrown
upon the dominant party, that is to say, the party who is in a position of active confidence.6

In the case of Joseph John Peter Sandy v. Veronica Thomas Rajkumar7, the factual matrix
was very similar and hence relevant points considered there ought to be taken into account in
the present case. It was held in the case that it is crystal clear that even though the document
may be admissible, still its contents have to be proved and since in the case, the appellant had
not examined either the attesting witnesses of the document, nor proved its contents, no fault
can be found with the judgment impugned before the Supreme Court. Taking note of the
statutory provisions of Section 16 of the Contract Act and the parameters laid down by this
Court for application of the doctrine of undue influence, the High Court had reached a correct
conclusion stating that there was an undue influence.8

In the present case, Hirom was Arshi’s brother who had got her consent in her absence even
after their father had specifically allotted the disputed property to Arshi.9 Further, the
exchange deed was executed without applying for the rectification of the deed as highlighted
in the previous sub-issue under section 26 of the Specific Relief Act. The first prong of the
undue influence test is fulfilled since the two parties were siblings, which is a fiduciary
relationship. Secondly, Hirom was in the position of active confidence and therefore, the
burden of proof is on him to show that there was no undue influence under section 16 of the
Indian Contracts Act.

[ISSUE 2] THAT ONLY THE TESTATORCOULD HAVE SOUGHT THE

RECTIFICATION OF THE EARLIER DEED.
Section 26 of the Specific Relief Act, 1963 provides for rectification of instruments, where
through fraud or a mutual mistake of the parties, an instrument in writing does not express the
real intention, then the parties may apply for rectification. However, sub-section (4) thereof
provides that such a relief cannot be granted by the court, unless it is specifically claimed.

6
Krishna Mohan Kul v. PratimaMaity, (2004) 9 S.C.C. 468.
7
Joseph John Peter Sandy v. Veronica Thomas Rajkumar, (2013) 3 S.C.C. 801.
8
Joseph John Peter Sandy v. Veronica Thomas Rajkumar, (2013) 3 S.C.C. 801.
9
Moot Proposition ¶ 7.

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In Subhadra v. Thankam10, the Supreme Court while deciding upon whether the agreement
suffers from any ambiguity and whether rectification is needed, held that when the
description of the entire property has been given and in the face of the matters being beyond
ambiguity, “the question of rectification in terms of Section 26 of the Act would, thus, not
arise. The provisions of Section 26 of the Act would be attracted in limited cases. The
provisions of this section do not have a general application. These provisions can be
attracted in the cases only where the ingredients stated in the section are satisfied. The relief
of rectification can be claimed where it is through fraud or a mutual mistake of the parties
that real intention of the parties is not expressed in relation to an instrument.”

Further, in the case of Joseph John Peter Sandy v. Veronica Thomas Rajkumar11, it was held
that such an arrangement as in the present case, was only a rectification deed between the two
parties and could not have been regarded as an agreement in exchange. 12 Further, the settler
and not the contesting parties could only have executed the rectification deed.13 In the present
circumstances, the Court should hold the same because neither of the parties have examined
any witnesses who could have explained the conduct of the parties. However, since it was not
done, the rectification of deed could not have been done by the contesting parties and hence,
is not binding.14

[ISSUE 3] THAT THE AMENDED WILL DOESN’T REFLECT THE ORIGINAL

INTENTION.
It is humbly submitted the Hon’ble Civil Court of Lucknow that the will which was settled 15
between Defendant Hirom and Petitioner Arshi to exchange the properties given to them and
to give effect to the real intention of the father is baseless.

The Original Intention of the Father is clearly visible from the original will which was in
relation to transfer of his properties to his Son and Daughter. The transfer of the properties
was done after consulting an advocate and there was no dubiousness as to which property
was given to whom.16 The Contention that the parties to give effect to the real intention of
their father decided to exchange the properties given to them, and in furtherance thereof,
executed a Agreement Deed to exchange the same on 1.9.2016, which was witnessed by
10
Subhadra v. Thankam, (2010) 11 S.C.C. 514.
11
Joseph John Peter Sandy v. Veronica Thomas Rajkumar, (2013) 3 S.C.C. 801.
12
Moot Proposition ¶ 8.
13
Joseph John Peter Sandy v. Veronica Thomas Rajkumar, (2013) 3 S.C.C. 801.
14
Moot Proposition ¶ 8.
15
Moot Problem [p. 1, ¶ 7].
16
Moot Problem ¶ 5.

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Vinit and Mrs. Molly, who were neighbours and teachers and colleagues of the daughter.,
falls apart as Section 26 of the Special Relief Act 1963 provides for rectification of
instruments, where through fraud or a mutual mistake of the parties, an instrument in writing
does not express the real intention, then the parties may apply for rectification. However,
clause 4 thereof, provides that such a relief cannot be granted by the court, unless it is
specifically claimed.

In Subhadra&Ors. v. Thankam17, this Court while deciding upon whether the agreement
suffers from any ambiguity and whether rectification is needed, held that when the
description of the entire property has been given and in the face of the matters being
beyondambiguity, the question of rectification in terms of Section 26 of the Act would, thus,
not arise. The provisions of Section 26 of the Act would be attracted in limited cases. The
provisions of this Section do not have a general application. These provisions can be attracted
in the cases only where the ingredients stated in the Section are satisfied. The relief of
rectification can be claimed where it is through fraud or a mutual mistake of the parties that
real intention of the parties is not expressed in relation to an instrument. It can be held that
Section 26 of the Act has a limited application, and is applicable only where it is pleaded and
proved that through fraud or mutual mistake of the parties, the real intention of the parties is
not expressed in relation to an instrument. Such rectification is permissible only by the parties
to the instrument and by none else.

[3.1] THERE WAS NO ATTEMPT MADE TO KNOW THE REAL INTENTION OF THE FATHER.

In the present case at hand there was no attempt made to know the real intention of the father,
and the execution of exchange deed was a futile practice.

In State of Bihar &Ors.v. Radha Krishna Singh &Ors.,18 this Court held as under:

Admissibility of a document is one thing and its probative value quite another - these two
aspects cannot be combined. A document may be admissible and yet may not carry any
conviction and weight of its probative value may be nil.... Where a report is given by a
responsible officer, which is based on evidence of witnesses and documents and has "a
statutory flavour in that it is given not merely by an administrative officer but under the
authority of a Statute, its probative value would indeed be very high so as to be entitled to
great weight. The probative value of documents which, however ancient they may be, do not
17
Subhadra v. Thankam, (2010) 11 S.C.C. 514.
18
State of Bihar &Ors.v. Radha Krishna Singh &Ors., AIR 1983 SC 684.

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disclose sources of their information or have not achieved sufficient notoriety is precious
little. Reiterating the above proposition in Madan Mohan Singh &Ors v. Rajni Kant &Anr,19
this Court held that a document may be admissible, but as to whether the entry contained
therein has any probative value may still be required to be examined in the facts and
circumstances of a particular case.

In the Joseph John Peter Sandy v. Veronica Thomas20, in which the facts of the case wer very
similar to the case in hand, in which one Shri B.P. Sandy executed a transfer of Property deed
to transfer his two property to his son and daughter and the son disputed that the deed was not
according to the real intention of the father, the Court held that “There is no dispute that by
the settlement deed dated 27.8.1981, late Shri B.P. Sandy had given House No. 23
admeasuring 2413 Sq. Ft. to the daughter respondent no.1 and House No. 22 admeasuring
730 Sq. Ft. to the son appellant. None of the attesting witnesses to these documents had been
examined by either of the parties, to ascertain whether late B.P. Sandy, father of the parties,
had expressed any intention in respect of the properties before them.”

AlsoS. 123 of Transfer of Property Act, 1882 states “For the purpose of making a gift of
immovable property, the transfer must be effected by a registered instrument signed by or on
behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of
movable property, the transfer may be effected either by a registered instrument signed as
aforesaid or by delivery.Such delivery may be made in the same way as goods sold may be
delivered.”

Hence in the light of aforementioned facts and arguments, it is submitted that in the present
case at hand the amended will doesn’t reflect the real intention of the father as he transferred
the property only after consulting his advocate and gave full details of the properties to be
transferred and to whom. Still if there was some dubiousness there was attempt made by the
Defendant to know the real intention of the father. After the Dispute arose, neither were the
two witnesses of the two registered settlement deeds, when they were executed on 27.8.2016,
were examined nor the Father, who was alive for a brief period after the execution of the
exchange of property deeds carried out by the Son and the Daughter.

19
Madan Mohan Singh &Ors v. Rajni Kant &Anr., AIR 2010 SC 2933.
20
Joseph John Peter Sandy v. Veronica Thomas Rajkumar, (2013) 3 S.C.C. 801.

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PRAYER

Therefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed before this Hon’ble Civil Court, Lucknow that:

1. The plaintiff was under undue influence of her father and brother.
2. The testator has sought the rectification of the earlier deed.
3. The will does not reflect the original intention of the testator.

The Hon’ble Court may pass any such order, writ or direction as deems fit and proper, for
this the Plaintiff shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_________________________________

_________________________________

COUNSEL FOR THE PLAINTIFF

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