Sunteți pe pagina 1din 15

BEFORE THE HONOURABLE DISTRICT COURT

PLAINTIFF DEFENDANT

Brother’s VERUS Rupalidevi & Roopa

SUBMISSION TO

CIVIL JUDGE SENIOR DIVISION OF

THE HONOURABLE DISTRICT COURT

Memorial on behalf of Defendant Page 1


Table of Contents

i. List of Authorities………………………………………………………………… 3

ii. Statement of Jurisdiction………………………………..………………………….4

iii. Summary of Facts …………………………………………………….……………5

iv. Issues Raised ………………………………………………………………………6

v. Summary of Arguments……………………………………………………….…. 7

vi. Arguments Advanced…………………………………………………….…….. ...9

vii. Prayer for Relief……………………………………………………………….......15

Memorial on behalf of Defendant Page 2


Index of Authorities
Dictionary

Merriam Webster

Statutory Authorities

 Transfer of Property Act

 Code of Civil Procedure.

 Specific Relief Act.

Memorial on behalf of Defendant Page 3


Statement of Jurisdiction
The defendants have approached the hon.ble court under section 16 of the Code of Civil
Procedure. Section 16 states as follows:

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 distraint 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.

Memorial on behalf of Defendant Page 4


Summary of Facts
One Rupali Devi was a well educated, talented in the skill of tailoring, Hindu Widow. The name
of her deceased husband was Late shri Gullabchand.She was about 29 years of age and was
childless. Rupalidevi was residing with the family of late husband in the village of Roopgarh. On
dated 1" May 1995, Partition in the said joint family took place amicably. Every coparcener in
the family took his/her respective share and Rupalidevi was allotted her share- 30 acres of
agricultural land and also moveable property in the form of cash and jewellary.

On 1't December 1996 Prakashraj purchased a huge house in the metropolitan City namely City
Beautiful with his money but he never intended to reside the city and preferred to continue to
live in the village Roopgarh in his ancestral house which was not partitioned. However
Prakashraj permitted Rupalidevi to settle in the City Beautiful and reside in the House purchased
by him and start her profession of tailoring in one portion of the said house. He executed a
document of the said permission in favour of Rupalidevi.

On 1st of March 1997 Rupalidevi started a boutique in the said house and soon her business
flourished. On lst luly 1998 Rupalidevi adopted a five years old infant female child Roopa. On
November 2010 Prakashraj expired.

With the passage of time Roopa grew up and like her mother she also became adept in the skill
of tailoring and started earning handsomely from the profession. On October 2011, Rupalidevi
executed a gift deed of her property including the said house wherein both of them were residing.
Roopa spent a huge amount of rnoney on renovation of the said house as well as on constructing
2nd and 3rd floors of the house.

On May 2018 , the younger brothers of the late Gullabch and filed a suit for declaration that the
said Gift Deed dated 1't Octobe r 2Ot7 was invalid and further for the eviction of Rupalidevi and
Roopa from the said house. Rupalidevi and Roopa decided to contest the suit.

Memorial on behalf of Defendant Page 5


Issues Raised

 Whether the gift deed was valid or not?

 Whether Rupalidevi and Roopa be evicted from the house or


not?

Memorial on behalf of Defendant Page 6


Summary of Arguments
 Whether the gift deed was valid or not?
It is humbly submitted that the gift deed that was executed by Rupalidevi in the favor of her
daughter Roopa was completely valid. Gift, as defined in this section, is gratuitous transfer of
ownership in some existing property made voluntarily. The definition includes gift of both
movable as well as immovable property. The transferor is called donor and the transferee is
called donee. There are certain essentials of a gift like a must transfer of ownership, the
ownership must relate to a property in existence, the transfer must be without consideration, it
must have been made voluntarily, the donor must be a competent person and lastly the transferee
must accept the gift. In the end, in lieu of arguments forwarded and authorities cited, it is humbly
submitted that in the instant case, all these essentials are being completed and Ruplaidevi has
executed the gift deed validly.

 Whether Rupalidevi and Roopa be evicted from the house or not?


It is humbly submitted that both Rupalidevi and Roopa shall not be evicted from the house as
they have been residing in the same house for more than 20 years peacefully and with the
knowledge of family members and after the death of owner Prakashraj, they have also received a
right of ownership by mode of prescription.

On the basis of above observation, it may, however, be pointed out that in modem times the chief
modes of acquisition of ownership may be either:

I. Original, or

II. Derivative

The claim of ownership/title based on adverse possession by a possessor stems from


uninterrupted, uncontested, hostile and exclusive possession of the property for a prescribed
limitation period. In such case, the prescription of period of limitation for recovering possession
goes against the rights and interests of true owner.

Memorial on behalf of Defendant Page 7


The statutory period of limitation for initiating action for repossession of immovable property or
any interest therein, stipulated in Section 65 of the Limitation Act, 1963, is 12 years in the case
of private property. In order to acquire title over a property by adverse possession, the possession
should be open, peaceful, exclusive, uninterrupted, unobstructed and unbroken for more than the
statutory period of limitation.

The adverse possession must be actual possession. It must be evinced by exercising activities
such as construction of house, erection of shed or some structure, fencing the property, grazing
cattle in the land, farming and harvesting of crop in the land, planting and cutting trees etc. for
the entire period of limitation.

In the end, the council would just like to submit that the in the instant case both the defendants
have been residing in the house for more than 12 years which also shows that they were living
way beyond the limitation period and they stay was not only peaceful and continuous but all the
member were also aware of the situation of the defendants. Moreover, the defendants have also
constructed and made 2 more buildings over the original house which also adds onto their claim.
So, it is humbly submitted that in the light of arguments raised and authorities cited, the
defendant shall not be evicted from the impugned house.

Memorial on behalf of Defendant Page 8


Arguments Advanced

1. Whether the gift deed was valid or not?

It is humbly submitted that the gift deed that was executed by Rupalidevi in the favor of her
daughter Roopa was completely valid. Section 122 of the Transfer of Property Act, 1882 defines
a Gift as –

“Gift is the transfer of certain existing movable or immovable property made voluntarily and
without consideration, by one person, called the donor, to another, called the donee, and
accepted by or on behalf of the donee.”

Gift, as defined in this section, is gratuitous transfer of ownership in some existing property
made voluntarily. The definition includes gift of both movable as well as immovable property.
The transferor is called donor and the transferee is called donee. A gift is a transfer of property
without any monetary consideration by one person in favour of another and accepted by him or
by a person on his behalf. Transfer without consideration is called a gratuitous transfer.

A gratuitous transfer may take place between two living persons or, it may take place only after
the death of the transferor. Gift may, therefore, be either inter vivos or, testamentary. Gift inter
vivos is gratuitous transfer of ownership between two living persons and is a transfer of property
within the meaning of Section 5 of Transfer of Property Act, 1882. Gift testamentary is called a
will which is transfer by operation of law and is outside the scope of this Act. A gift made during
apprehension of death is called a gift mortis causa.

There are certain essentials of a gift like a must transfer of ownership, the ownership must relate
to a property in existence, the transfer must be without consideration, it must have been made
voluntarily, the donor must be a competent person and lastly the transferee must accept the gift.
So, the essentials of a valid gift deed are as followed1:-

 There must be transfer of ownership

It is humbly submitted that as in case of a sale, there must be a transfer of all the rights in the
property by the donor to the done. It may, however, be noted that it is permissible to make

1 Section 122 of Transfer of Property Act, 1882

Memorial on behalf of Defendant Page 9


conditional gifts. The only restriction is that the condition must not be repugnant to nay of the
provisions of Section 10 to 34 of the Transfer of Property Act, 1882. In the instant case as well,
the actual owner Prakashraj had allowed Rupalidevi to reside in his house and even carry a
tailoring business since11996 and its been more than 20years that she is residing in that house
without any interruption form any member of the family and she has acquired ownership by
means of prescription.

Further, Gift must be made of existing movable or immovable property capable of being
transferred. Future property cannot be transferred. The share obtained after partition of the joint
family property can be gifted which in the case in hand it was.

 The transfer must be without consideration

It is humbly submitted that the concept of Gift is diametrically opposed to any presence of
consideration or compensation. The essence of a gift is that it is a gratuitous transfer.

In Shakuntala v. State of Haryana2 the Hon’ble Supreme Court stated that it is one of the
essential requirements of a gift that it should be made by the donor ‘without consideration’. The
word consideration has not been defined in the Transfer of Property Act, 1882 but we have no
doubt that it has been used in the Act in the same sense as in the Indian Contract Act, 1872 and it
excludes natural love and affection. If it were to be otherwise a transfer would really amount to a
sale or an exchange for each party will have the rights and be subject to the liabilities of a seller
as to what he gives and have the rights and be subject to the liabilities of a buyer as to what he
takes. It is the essence of a gift that it should be without consideration.

 It must have been made voluntarily

The offer to make the gift must be voluntary. A gift therefore should be executed with free
consent of the donor. This consent should be untainted by force, fraud or undue influence. Mere
relationship between the donor and donee is not a conclusive fact of the exercise of undue
influence and it must be proved that the transaction is unconscionable.

2 (1979)3 SCC 226.

Memorial on behalf of Defendant Page 10


 The donor must be a competent person

Donor is the person who makes the gift. In a transaction by way of gift the transferor is called a
donor and he divests his ownership in the property so as to vest it in the transferee, the done. The
donor must be a sui juris. He must have therefore attained the age of majority, possess a sound
mind and should not be otherwise disqualified. Section 7 of this Act provides that only such
persons can affect a transfer of property who are competent to contract. The result is, therefore,
that a minor cannot make a gift of his properties. According to Halsbury’s Laws of England 3,
persons in fiduciary positions, e.g., trustees cannot make gifts of the property vested in them on
behalf of others unless they are authorized to do so.

 The transferee must accept the gift:

The gift must be accepted by the donee himself. Acceptance can be validly given by a minor
donee himself or by his mother or guardian or by an agent is case of a deity. If the guardian gives
the acceptance on behalf of the minor the minor on attaining majority can either accept it or
reject it. If a gift is made to two or more persons, one of whom is capable of taking and the other
is not, it has been held that the former will take the whole of the property. 4 Acceptance must be
made during the lifetime of the donor and while he is capable of giving. According to Section
122 if the donee dies before the acceptance of gift the gift is void.

In the end, in lieu of arguments forwarded and authorities cited, it is humbly submitted that in the
instant case, all these essentials are being completed and Ruplaidevi has executed the gift deed
validly.

2. Whether Rupalidevi and Roopa be evicted from the house or not?

It is humbly submitted that both Rupalidevi and Roopa shall not be evicted from the house as
they have been residing in the same house for more than 20 years peacefully and with the
knowledge of family members and after the death of owner Prakashraj, they have also received a
right of ownership by mode of prescription. In the instant case, Rupalidevi and her daughter were
living in the house for the last 22 years without any interruption of any of the family members.

3 Vol. 15, para 795.


4 Nandi Singh v. Sita Ram, (89) 16 Cal. 677;

Memorial on behalf of Defendant Page 11


According to SALMOND5 2, basically a person is said to acquire ownership in two ways, viz.

 By operation of law, or
 By reason of some act or event.

As to first, a statue may provide that all A’s property should after a certain period of time vest in
B. As to the second, it may consist, in the first taking or making a thing, both being cases of
original acquisition. Or it may consist in taking the thing from another with or without his
consent, both being now cases of derivative acquisition. Thirdly, the thing may fall into a man’s
ownership without any human acts, as would be the case if a piece of land were to break off from
an Island in a river and attach itself to A’s land on the opposite bank.

On the basis of above observation, it may, however, be pointed out that in modem times the chief
modes of acquisition of ownership may be either:

 Original, or
 Derivative

They have further been classified into sub categories which are as followed:

I. Original Ownership

This mode of acquisition of ownership is said to have taken place, when ownership is acquired
by reason of some act or event. It is of three types, viz.

a. Absolute
b. Accessory, and
c. Extinctive

The instant case falls under the head of extinctive ownership which states that when ownership is
acquired by a person by some act on his part, which destroys the title of the previous owner, it is
called extinctive acquisition for example prescription.6 It is the Section 5 of the Specific Relief
Act that provides for recovery of specific property on the basis of the title one holds. Who owns
a better title of the property has the power to possess it over the other. Possession itself is a prima

5 SALMOND : Jurisprudence, (12th Ed.) PP.252-253


6 The term “prescription" (prescritio) has its origin in Roman law. It may be defined as the effect of lapse of time n
creating and destroying rights, it is the operation of time as a vestitive fact. SALMOND jurisprudence, 12th Ed.,
P.435. According to Lord COKE, prescription signifies the acquisition of title by length oftime and enjoyment Co.Lit. i
13b

Memorial on behalf of Defendant Page 12


facie proof of ownership or right on property. Possession gives a rebuttable presumption of
ownership, unless the contrary is established. Since the true owner cannot evict a possessor of
property after a long period of non-possession, an actual possessor who sets up a claim for the
property exclusively on the basis of his possession for long becomes a legally valid title holder of
the property against the interest of the true owner. It is called adverse possession.

The claim of ownership/title based on adverse possession by a possessor stems from


uninterrupted, uncontested, hostile and exclusive possession of the property for a prescribed
limitation period. In such case, the prescription of period of limitation for recovering possession
goes against the rights and interests of true owner.

In P.T. Munichikkanna Reddy & Ors vs Revamma And Ors, the Supreme Court held, “adverse
possession is a right which comes into play not just because someone loses his right to reclaim
the property out of continuous and willful neglect but also on account of possessor's positive
intent to dispossess. Therefore it is important to take into account before stripping somebody of
his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and
genuine desire to dispossess and step into the shoes of the paper-owner of the property”.

The statutory period of limitation for initiating action for repossession of immovable property or
any interest therein, stipulated in Section 65 of the Limitation Act, 1963, is 12 years in the case
of private property. In order to acquire title over a property by adverse possession, the possession
should be open, peaceful, exclusive, uninterrupted, unobstructed and unbroken for more than the
statutory period of limitation. The claimant must occupy the property by knowing fully that he
does not have any legal right to posses or occupy that property.

The adverse possession must be actual possession. It must be evinced by exercising activities
such as construction of house, erection of shed or some structure, fencing the property, grazing
cattle in the land, farming and harvesting of crop in the land, planting and cutting trees etc. for
the entire period of limitation. The claimant must be in sole physical possession of the property
against the legal claim, right and title of the true owner or any other claimant. Development of
the land, construction of house and erecting boundary walls are examples of “exclusive
possession” and the possession must not be a pseudo or token one. After expiry of the limitation
period, no cause of action can evict the possessor and he acquires the right, title and interest of

Memorial on behalf of Defendant Page 13


the original owner by prescription. He thereby becomes entitled to own the property in the way
he likes.

In the end, the council would just like to submit that the in the instant case both the defendants
have been residing in the house for more than 12 years which also shows that they were living
way beyond the limitation period and they stay was not only peaceful and continuous but all the
member were also aware of the situation of the defendants. Moreover, the defendants have also
constructed and made 2 more buildings over the original house which also adds onto their claim.
So, it is humbly submitted that in the light of arguments raised and authorities cited, the
defendant shall not be evicted from the impugned house.

Memorial on behalf of Defendant Page 14


PRAYER

Wherefore in the light of facts of the case, arguments advanced and authorities cited, it is most
humbly prayed before the Hon’ble Court that it may be pleased to hold, adjudge and declare-

 The Gift Deed executed by Ruplaidevi in favor of Roopa be held valid.


 Rupalidevi and Roopa not be evicted from the house.

And/or any other relief that this Hon’ble Court may be pleased to grant in the interest of justice,
Equity and Good conscience.

And in these premises the Defendant as duty bound shall forever pray.

Counsels on behalf of Defendant

Memorial on behalf of Defendant Page 15