SHRI.

KONERU LAKSHKMAIAHA MOOT COURT COMPETITION , 2018 --TABLE OF CONTENTS

TEAM CODE:

SHRI. KONERU LAKSHAMAIAH MEMORIAL ALL INDIA MOOT COURT

COMPETITION

21st-22nd SEPTEMBER 2018

BEFORE SUBMISSION TO THE HONOURABLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE HONOURABLE SUPREME COURT OF INDIA

PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA SEEKING

DECLARATION AND/OR ANY OTHER JUST AND EQUITABLE RELIEFS

IN THE MATTER OF

MR. ARJUN GANGULY.………..…………………….PETITIONER

v.

MR. GAUTAM GANGULY…………………………RESPONDENT

WRITTEN SUBMISSIONS ON THE BEHALF OF RESPONDENT

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION , 2018 --TABLE OF CONTENTS

TABLE OF CONTENTS

Table of Contents

LIST OF ABBREVIATIONS .................................................................................................... 1

INDEX OF AUTHORITIES ...................................................................................................... 2
I. BOOKS ........................................................................................................................... 2

II. LINKS REFERRED .................................................................................................... 3

III. CASES ........................................................................................................................ 4

IV. STATUTES ................................................................................................................. 7

STATEMENT OF JURISDICTION .......................................................................................... 8

STATEMENT OF FACTS......................................................................................................... 9
ISSUES RAISED ..................................................................................................................... 10
SUMMARY OF ARGUMENTS ............................................................................................. 11
WRITTEN SUBMISSIONS .................................................................................................... 13
PRAYER .................................................................................................................................. 22

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 --LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

Abbreviation Full Form

¶ Paragraph
& And
Add. Additional
AIR All India Reporter
Anr. Another
Cr.P.C. Code of Criminal Procedure
CriLJ Criminal Law Journal
ed. Edition
Exh. Exhibit
Hon’ble Honourable
i.e. That is
IPC Indian Penal Code
Mohd. Mohammed
M.P. Madhya Pradesh
MPLJ M.P. Law Journal
NOC Notes on Cases
Ors. Others
r/w Read with
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
Sr. Senior
U.P. Uttar Pradesh
u/s Under Section
v. Versus

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 --INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

I. BOOKS

 THE TRANSFER OF PROPERTY ACT-

1. MULLA,THE COMMENTARY ON THE TRANSFER OF PROPERTY

ACT(LEXIS NEXIS BUTTERWORTHS, TENTH EDITION, 2006)
2. R.K. SINHA,THE TEXTBOOK ON TRANSFER OF PROPERTY ACT,1882

 THE CONSTITUTION OF INDIA-

1. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA,

WADHWA, INDIA, 2007, 8TH EDITION, VOLUME I AND II
2. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (LEXIS NEXIS EIGHT
EDITION, 2018)
3. H.M. SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL
PUBLICATIONS, INDIA, 2004, 4TH EDITION, VOLUME I,II AND III.

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 --INDEX OF AUTHORITIES

II. LINKS REFERRED

1. www.lexisnexisacademic.com
2. www.westlawindia.com
3. www.heinonline.org
4. www.manupatra.com
5. www.scconline.com
6. www.livelaw.com
7. www.bar&bench.com
8. www.google.com
9. www.vakilno1.com
10. www.legalserviceindia.com
11. www.thehindu.com
12. www.law.cornell.edu

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III. CASES

 INDIAN CASES

1. CCE V NATIONAL TOBACCO CO OF INDIA LTD………................. AIR 1972 SC 2563

2. LAXMI & CO. V ANAND R DESHPANDE............................................AIR 1973, SC 171
3. ANTULAY V RS NAIK .............................................................................(MAD)-2016-1-55
4. SANWAT SINGH V. THE STATE OF RAJASTHAN ........................542 and 1570 of 1995
5. PRITAM SINGH V. STATE....................................................... AIR 2002 NOC 333 (BOM)
6. PRITISH NATVAR SANGHVI V. NATVAR KESHAVLAL SANGHVI AND ANR.
7. RATANAGIRI V VYANKATRAV1AND RAMSARUP V. BELA........AIR 1961, SC 715
8. MOOL RAJ V. JAMMA DEVI........................................... AIR 1950 SC 169:1950 SCR 453
9. K. BALAKRISHNAN V. K. KAMALAM AND OTHERS..................... AIR 2004 Cal 726
10. SECRETARY OF STATE V. ARATHOON............................................ (1872) 8 Bom HC 1
11. SOHAN LAL VS. MULTAN CHAND.................................................................... 11 IA 44
12. S.PALANI AND OTHERS V. S.BHARATHI DASAN (DECEASED) AND OTHERS
13. KAMARUDDIN SAHEB V. K.T. PALANIAPPA NADAR AND ORS....AIR 1999 HP 455
14. STISH KUMARV. TELU RAM……………………………..………….AIR 1989 MAD 345
15. SHEEL ARORA V. MADAN MOHAN BAJAJ........................................AIR 1962 Ori 130
16. ASHKAN V. LAKSHNIKUTY................................................................. [2003] INSC 658]
17. BIHARI LAL GHOSH V. SINDHUBALA DASI................................ 1978 WLN (UC) 52
18. VILLERS V. BEAMONT.................................................................... (1918) ILR 45 Cal 434
19. SHAKUNTALA DEVI V. AMARDEV.,.................................................... AIR 1985HP 109
20. SMT. GAURJI V. TARA CHAND................................. ILR 2 PAT 52, AIR 1922 PAT 514
21. BAIJINATH SINGH V. MUSSAMMAT BIRAJ............................................ AIR 1962 HP4
22. GHUMMA V RAMCHANDRA (1925)............................................... ILR 47 All 619, p 621
23. AMMIRAJU V. SESHAMMA........................................... (1918) ILR 41 Mad 33,40 IC 352
24. BAIJNATH SINGH V MUSSAMAT BIRAJ ...............ILR 2 Pat 52, 68 IC 383, AIR 1922
Pat 514
25. SHRI SHIV KIRPAL SINGH V. VS. SHRI V.V. GIRI......................... AIR1970SC2097
26. ASOKAN VS. LAKSHMIKUTTY AND ORS.......................................... AIR1967SC878;
27. SUBHAS CHANDRA DAS MUSHIB VS. GANGA PROSAD DAS MUSHIB AND
ORS................................................................................................................. [1967]1SCR331
28. SAMATHA VS. STATE OF A.P. AND ORS............................................ AIR 1985 AP 101
29. SHAKUNTALA DEVI V. AMAR DEVI……………………..………… AIR 1985HP 109
30. GAURJI V. TARA CHAND…………………………………………….……AIR 1962 HP4
31. BAIJNATH SINGH V. MUSSAMMAT BIRAJ………. ILR 2 PAT 52, AIR 1922 PAT 514

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 --INDEX OF AUTHORITIES

32. GHUMMA V RAMCHANDRA ……………….……P 621, 88 IC 411, AIR 1925 ALL 437
33. AZIZ-UN – NISSZ V. SURAJ HUSSAIN ………………...……..…….(1934) ALL LJ 814
34. AMMIRAJU V. SESHAMMA (1918) …………..……...………ILR 41 MAD 33,40 IC 352
35. SMT. JASWANT KAUR VS. SMT. AMRIT KAUR AND OTHERS
………………………………………………...………….. (1977)1SCC369; [1977]1SCR925
36. SMITHSONIAN INSTITUTION V. MEECH………..…………..……………169 U.S. 398
37. NARESH CHARAN DAS GUPTA VS. PARESH CHARAN DAS GUPTA
…………………………………………………………………………….….AIR1955SC363
38. LAKSHMI AMMA VS. T. NARAYAN …………….……………..…….AIR 1967 SC 878
39. SURESH KUMAR VS. SUB, DIVISION OFFICERS AND OTHERS
…………………………………………..…………….1981 CRILJ 928, 19 (1981) DLT 212
40. MANJIT SINGH VS. DISTRICT MAGISTRATE-CUM-DEPTY COMMISSIONER AND
OTHERS ………………………………..…. .PUNJAB AND HARYANA HIGH COURT
41. JAYANTRAM VALLABHDAS MESWANIA VS. VALLABHDAS GOVINDRAM
MESWANIA ………………………….SPECIAL CIVIL APPLICATION NO. 13954 OF
2012 GUJRAT HIGH COURT
42. RADHAMANI AND OTHERS VS. THE STATE OF KERELA………………….. .HIGH
COURT KERELA, WP(C) NO. 13110 OF 2015 (K)
43. KAMALAKANTA MOHAPATRA V. PRATAP CHANDRA
MOHAPATRA……………………………………………………..…….AIR 2010 ORI 13
44. TOKHA V. BIRU…………………………………..…………….AIR 2003 HP 107 AT 112
45. VIDHYADHARV. MANIKARAO ………….………….…(1999)3 SCC 573: AIR 1999
SC1441
46. GANDHADHAR IYER V. KULATHU IYER SANKARA IYER ……..AIR 1952
TRAVANCORE COCHIN
47. BHAGWAN PRASAD AND OTHERS V. HARI SINGH…. 1924 Indlaw NAG 15; AIR
1925 NAG 199
48. LAKSHMI DOSS V. ROOP LAUL(1907) ……………..………..………..ILR 30 MAD 169
49. MANNU SINGH V. UMADAT PANDEV(1890)………...………………..ILR 12 ALL 523
50. RAJA PAPAMMA V. SITARAMAYYA………………..……..…… (1895) 5 MAD IJ 233
51. KAMINEE DASEE V. KRSHNA CHANDRA…………………… (1912) ILR 39 CAL 933
52. RANI CHANDER V. SITAL PRASAD…………………………..…… AIR 1948 PAT 130
53. KHARBUJA KHER V. JANGBAHADUE…………………….…..…… AIR 1963 SC 1203
54. PERUMAL V. RAJAMANIKAM ………..…………………...…………AIR 2003 MAD 27
55. SOONDUR KOOMAREE V. KISHOREE LAL…………….….…..…… (1867) 5 WR 246
56. TACOODREEN TEWARRY V. NAWAB SAYED ALI KH……..…… (1874) 21 WR 340
57. SHAMBATI KOERI V. JAGO BIBI…………………………………..…………… (1902)
58. KRISHNA PRASAD V GOPAL PRASAD……………..…. AIR 2001 PAT 1, BLJR 1834
59. SUNITABALA DEBI V. DHARA SUNDARI………………..… (1919) ILR 47 CAL 175
60. GANGA BAKSH V JAGAT BAHADUR ……………….…..……. (1895) ILR 23 CAL 15
61. KALI BAKSH SINGH V. RAM GOPAL SINGH
62. DUTTON V. THOMPSON……………………………………… ..……. (1883)23 CH D

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 --INDEX OF AUTHORITIES

63. MITCHELL V. HOMFRAY ……………………………..……..….(1881) 8 QBD 587 (CA)

64. GLUBB, BAMFIELD V. ROGERS………………………………..…………..……. (1900)
65. PHILLIPS V. MULLINGS………………………………….…..……. (1871) 7 CH AP 244
66. NARSINGH V. RADHAKANTA……………...……. (1950) ILR CUT 375 AIR 1951 ORI
67. MAHOMED BUKSH V. HOSSEINI BIBI ……………….…………..……. (1888) ILR 47
68. SUNITABALA DEBI V. DHARA SUNDA……………..…….….(1919) ILR 37 CAL 175
69. BARKTUNNISA V DEBI BAKSH ……………………….…..……. (1927)25 ALL LJ 314
70. PHUL CHAND V. LAKKU………………………..……………………. (1903) ILR 25 358
71. LAJWANTI V. SAFA CHAND ………………………………….……...1924 AIR(PC) 121
72. MAHABIR PERSHAD V. ADHIKARI KOER …………….……1896 (23) ILR(CAL) 942
73. ELAYAMMAL V N. PADMAVATHY AND OTHE………… 2012 INDLAW MAD 2872
74. SAKUNTHALAMMAL (DIED) AND OTHERS V T. G. RAJABATHAR (DIED) AND
OTHERS…………………………………………………..……..2012 INDLAW MAD 2615
75. VED PRAKASH (MINOR) V PHOOL CHAND AND OTHER.............………….2012
INDLAW ALL 4004, 2012 (5) AWC 4456, 2012 (2) ILR(ALL) 662
76. CHAUDHARY V PRABHAWATI…………2012 INDLAW ALL 4606, 2012 (2)
ILR(ALL) 531
77. S. G. SUBBURAJ V GANGAIAH NAICKER AND OTHERS…………………..2010
INDLAW MAD 2012
78. MUHAMMAD ABDUL NAYEEM V. JHONTI MAHTON……………..1917 (41) I.C. 389
79. BAI RAMBAI V. BAI MANI……………………………….…….1899 (23) ILR(BOM) 234
80. BALBHADRA V. BHAWANI…………………………….……...1907 (34) ILR(CAL) 853
81. DHARMODAS DAS V. NISTARINI DASI…………….………..1887 (14) ILR(CAL) 446
82. KALIDAS MULLICK V. KANHAYA LAL PANDIT……….….1885 (11) ILR(CAL) 121
83. PAHLWAN SINGH V. RAM BHAROSE……………………..…1907 (27) ILR(ALL) 169
84. PHUL CHAND V. LAKKHU………………………………..…….1905 (25) ILR(ALL) 358
85. GAJADHAR PANDE V. PARBATI ………………………..…….1911 (33) ILR(ALL) 312
86. LACHHAN KUNWAR V. MANORATH RAM…………………1895 (22) ILR(CAL) 445
87. SHAM DOER V. DAH KOER…………………………………….1902 (29) ILR(CAL) 664
88. AMSAVENI V DISTRICT REVENUE OFFICER, MADURAI AND
OTHERS…………..……………………………………..……….2014 INDLAW MAD 764
89. MOHINDER SINGH VERMA V J. P. S. VERMA AND ANOTHER………………….2014
INDLAW DEL 1220, 2014 (3) CLT 531, 2014 (212) DLT 432
90. SUNIL BARAN DUTTA V KAMALA BALA DUTTA AND
ANOTHER…………………….2013 INDLAW CAL 302
91. PAGADALA BHARATHI AND ANOTHER V J. RADHA KRISHNA………………2012
INDLAW AP 258, 2013 ALD 373, 2013 (3) ALT 467
92. MALKA DEVI AND OTHERS V ASHOK KUMAR AND
OTHERS…………………………2010 INDLAW HP 363
93. RENIKUNTLA RAJAMMA (DEAD) BY LRS. V K.
SARWANAMMA………………2007 INDLAW SC 1770, (2014) 9 SCC 456, 2015 (1)
RCR(CIVIL) 207

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 --INDEX OF AUTHORITIES

94. NERUSU SEETHARAVAMMA V NERUSU DURGAIAH……………2006 INDLAW AP

274, 2007 (4) ALT 52
95. MUNNA KUMARI V UMRAO DEVI AND OTHERS……………………2005 INDLAW
RAJ 141, AIR 2006 RAJ 152, 2006 (2) RCR(CIVIL) 150
96. ARULMIGHU MAHALAKSHMI TEMPLE V (1) M.S. SRINIVASA RAGHAVAN; (2)
M.S. KALYANARAMAN; (3) SRI MAHALAKSHMI
TRUST……………………………………..…..2004 INDLAW MAD 284, 2004 (4) MLJ 61
97. SAROJA AND OTHERS V R. P. MATHESWARAN,.,… 2014 INDLAW MAD 1431;
2014 (6) MLJ 5
98. MUNICIPAL CORPORATION, ROHTAK V BALWAN SINGH AND
ANOTHER………………………………………………………..2017 INDLAW PNH 374
99. SYAMALA RAJA KUMARI AND OTHERS V ALLA SEETHARAVAMMA AND
ANOTHER………………2017 INDLAW HYD 6; AIR 2017 HYD 86; 2017 (2) ALD 733;
100. SEHDEV SINGH VERMA V J. P. S. VERMA AND ANOTHER…….2015 INDLAW
DEL 5334; AIR 2016 DEL 1; 2015 (4) CLT 31; 2015 (223) DLT 235

IV. STATUTES

1. MAINTAINENCE AND WELFARE OF PARENTS AND SENIOR CITIZENS

ACT, 2007
2. THE REGISTRATION ACT, 1908
3. THE TRANSFER OF PROPERTY ACT, 1882
4. CONSTITUTION OF INDIA, 1949

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION , 2018 --STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Honourable Supreme Court of India has the jurisdiction to entertain and dispose of the
present case by virtue of Article 136 of the Constitution of India. The Respondent approached
before the Supreme Court through Special Leave Petition .i.e.,

Article 136 provides special leave to appeal by the Supreme Court-

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 --STATEMENT OF FACTS

STATEMENT OF FACTS

 BACKGROUND
1. Sri Gautam Ganguly, aged 62, a retired government employee drawing about Rs. 10,000/-
per month as pension. His first wife died in 2010. He lives with Mr. Arjun Ganguly(Son)
and Mrs. Saara (daughter-in-law ).In January 2011, When Mr. Gautam expressed his wish
to have live in relationship with Ms. Neelima (aged 45), they both were rudely shocked to
listen to his wish. But later, they relented and requested their father that half share in the
property in Hooghly Estates House, (value was estimated to be Rs.10,00,000/-) should be
transferred to them.
 TRANSFER OF PROPERTY
2. Gautam Ganguly transferred half share in the property to his son in May, 2011 through a
Registered Gift Deed to maintain peace in the family. However, the son and daughter-in-
law started insulting to Ms. Neelima and also does unbearable ill-treatment for more than
one year, thereafter Gautam and Neelima shifted their residence to other premises.
 LEGAL ACTIONS THEREOF
3. Subsequently in 2013, Mr. Gautam Ganguly lodged a complaint to the Sub-Collector,
City of Kolkata seeking an order to revoke the Gift Deed executed in favour of his son
under Sec. 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
 ACTIONS TAKEN BY TRIBUNAL & COURT
4. In the Tribunal, the Sub-Collector passed an order that ‘elderly parents can take back
property gifted to a son, if he ill-treats them’. This order permits the Complainant that
Father to withdraw the gift deed from his son, since his son is not providing basic needs
of both parents. In the Appellate Tribunal, the District Collector reversed the order of the
Tribunal on ‘accepting the argument of son that an accepted gift through registered deed
cannot be revoked’ under the provisions of Transfer of Property Act, 1882 read with the
Registration Act, 1908.
5. Thereafter, Mr. Gautam got relief from Calcutta High Court when the High Court
restored the order of the Tribunal. As a last resort, Mr. Ajay (son of Mr. Gautam)
preferred a Special Leave Petition before the Supreme Court.

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 --ISSUES RAISED

ISSUES RAISED

The following issues have arisen for determination before the Hon’ble Court in the
instant matter:
A.
WHETHER THE GIFT DEED IS REVOCABLE OR NOT?

B.
WHETHER SECTION 23 MAINTAINANCE OF WELFARE OF PARENTS AND
WELFARE AND SENIOR CITIZENS ACT, 2007 IS
MAINTAINABLE OR NOT?

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 -SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

A. WHETHER THE GIFT DEED IS REVOCABLE OR NOT?

It is humbly submitted by petitioner that the Hon’ble Supreme Court has the power to grant
special leave under Article 1362 of the Constitution of India and the petition filed for
revoking registered gift deed is absolutely maintainable.The Culcutta High Court the held
that the revocation of registered gift deed is valid, as the basic needs are not maintained by
Mr. Arjun, and ill-treating his parent(Mr. Gautam).
The Cousel brings notice to the Hon’ble Supreme Court that revocation can be done on
various grounds .i.e. Gift is transfer of ownership without consideration. Like other
transfers gift too can be made subject to certain conditions. Donor may make gift subject to
a condition of its being suspended or revoked A deed of gift can be revoked if there is a
prior condition, therefore it can be revoked, the deed has been executed condition under
influence , commits fraud. Furthermore, with concern of fact there was free will of Mr.
Gautam to transfer his half property to petitioner, under influence.

B. WHETHER SECTION 23 MAINTAINANCE OF WELFARE OF PARENTS

AND AND SENIOR CITIZENS ACT, 2007 IS MAINTAINABLE OR NOT?

The counsel submits before the hon’ble court,that the gift deed can be revoked by the
petitioner. As per the The Maintainance of Welfare of Parents and Senior Citizens Act,
2007. The counsel submits that the judgement of tribunal and the Culcutta High Court is
justicible. However, not providing basic needs and ill-trating parents can be grounds for

2
Article 136 --Special leave to appeal by the Supreme Court;
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 -SUMMARY OF ARGUMENTS

revocation of gift deed .Therefore, Counsel on behalf of respondents presents its case to
grant relief.

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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 -WRITTEN SUBMISSIONS

WRITTEN SUBMISSIONS

A. WHETHER THE GIFT DEED IS REVOCABLE OR NOT?

It is humbly submitted before the Honorable Supreme Court that the gift deed can be
revoked. The more usual grounds for revocation of gift deed is undue influence. Here the
respondent Mr. Gautum relied on his son Mr. Arjun that the peace and harmony among the
family members will be maintained and there will be no further fights after the transfer of
property. However the fight between the members continued.

 REVOCATION OF GIFT DEED BY RESCISSION

1. Gift3 is gratuitous transfer of ownership made voluntarily If it could be proved that the gift
was not made voluntarily i.e. the consent of the donor was not free, the gift must be
revoked. Gift always preceded by an express or implied contract.

2. Section 19 of the Indian contract act provides that” where the consent to an agreement is a
contract voidable at the option of the party whose consent was not obtained”. Thus, where
the gift is not made voluntarily because of any of the factors mentioned above, the gift
may be revoked by the donor. It is to be noted that this section deals with cases where gift
is void e.g. for want of donor’s tide. So, where the donor’s consent has been obtained by
coercion, undue influence, fraud or misrepresentation the donor has option, the gift is not
revoked. Gift4 may be revoked on the above mentioned grounds only by donor, he cannot
assign this right to any other person. However after the death of donor, his legal heirs may
sue for the revocation of gift on any of these grounds.

3
Section 122 of Transfer of Property Act
4
K balakrishnan v. k kamalam AIR 2004 SC 1257, Para 18(2004)1 SCC
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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 -WRITTEN SUBMISSIONS

3. The period of limitation for the revocation of the gifts on the fraud, coercion, undue
influence or misrepresentation is 3 years from the date on which such facts are known to
the plaintiff. 5

4. In the case of Shakuntala Devi v. Amar Devi6, it was held by the court that the gift deed
not based on fraud, undue influence or, misrepresentation its cancellation was not valid
under section 126 of the Transfer of Property Act.

5. Similar discussion was made before the judicial commissioner of Himanchal Pradesh in
the case of Smt. Gaurji v. Tara Chand, the same conclusion was lead down in this case
also that the gift deed based on fraud, undue influence etc can be cancelled. This provides
a clear image that all the cases which consists undue influence within them can be
cancelled.7

6. But within this case this was no where mentioned or proved in this case that there was any
undue influence, coercion or fraud on the part of Mr. Arjun and his wife, so it cannot be
said that the revocation in this case shall be made valid.
It is important to bring that into courts notice that it was a mere conversation and normal
bombardation of words which happens in every house and it cannot be covered under the
circumference of undue influence or and such issue.

7. In the case of Bahu Baijinath singh v. Mussammat Biraj 8, the donee may not profit by his
wrong, a gift may be revoked for coercion, fraud, misrepresentation or undue influence in
the same way as a contract may be rescinded. But if the donor does not revoke, he cannot
transfer his right to sue for revocation9.In the instant case the son and daughter-in-law
gambled Mr. Gautam. And create the situation for his father to transfer half share of
property. It is crystal clear that there was undue influence. Furthermore, consent was not
free under Section 13 of Indian Contract Act.

5
Limitation Act of India
6
AIR 1985HP 109
7
AIR 1962 HP4
8
ILR 2 PAT 52, AIR 1922 PAT 514
9
ILR 47 All 619, p 621, 88 IC 411, AIR 1925 all 437 the decision to the contrary in Aziz-un-nissa v Suraj
Husain (1934) All LJ 814
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SHRI. KONERU LAKSHKMAIAHA MOOT COURT COMPETITION, 2018 -WRITTEN SUBMISSIONS

8. In the cases Ghumma v ramchandra (1925) 10and Ammiraju v. Seshamma (1918) 11 both
these cases talks about revocation of deed when there is death of the donor and coercion
made by party respectively. The case of Baijnath Singh v Mussamat Biraj (1923)12 the
respective case dealed about the revocation of deed when it was done by committing
fraud. Not only is this but innocent misrepresentation under s 18(3) of the Indian Contract
Act 1872 also a ground for revoking gift.13

9. In the case of Girraj Prasad v. Tribeni Devi, it was quoted that when the parties are in
fiduciary relationship and a person is in position to dominate the will of another person,
the burden to prove that the transaction in question is a genuine transaction lies upon a
person in whose favour the document has been executed.14

10. Renikuntla Rajamma (D)Vs. K.Sarwanamma15In this case at hand as already noticed by us,
the execution of registered gift deed and its attestation by two witnesses is not in dispute.
It has also been concurrently held by all the three courts below that the donee had accepted
the gift. The recitals in the gift deed also prove transfer of absolute title in the gifted
property from the donor to the donee. What is retained is only the right to use the property
during the lifetime of the donor which does not in any way affect the transfer of ownership
in favour of the donee by the donor. The High Court was in that view perfectly justified in
refusing to interfere with the decree passed in favour of the donee. This appeal accordingly
fails and is hereby dismissed but in the circumstances without any orders as to costs. Case
of Bhagwan Prasad and Another v Harisingh16 was cited in this case and then the final
the final judgment was quoted.

10
ILR 47 All 619, p 621, 88 IC 411, AIR 1925 all 437 the decision to the contrary in Aziz-un-nissa v Suraj
Husain (1934) All LJ 814,
11
(1918) ILR 41 Mad 33,40 IC 352
12
ILR 2 Pat 52, 68 IC 383, AIR 1922 Pat 514
13
Cf Re Glubb, Bamfeild v Rogers (1900)
14
AIR 2004 ALL 348
15
(2004) 1 SCC 581
16
1924 Indlaw NAG 15, AIR 1925 NAG 199
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11. Plaintiff-respondent in terms of the revocation deed was, on that basis, assailed and a
declaration about its being invalid and void ab initio prayed for the suit was contested by
the defendant-appellant herein on several grounds including the ground that the gift deed
executed in favour of the plaintiff was vitiated by fraud, mis-representation and undue
influence. The parties led evidence and gift, According to trial court, had been validly
made and accepted by the plaintiff, hence, irrevocable in nature. It was went through the
trial with the trial court eventually holding that the deed purporting to revoke the gift in
favour of the plaintiff was null and void. The trial court found that the defendant had failed
to prove that the gift deed set up by the plaintiff was vitiated by fraud or undue influence
or that it was a sham or nominal document.

12. Quoting the present case the counsel wants to put forth the discussion on the revocation of
the gift deed and maintenance of the donor. Relating it with the present case counsel wants
to correlate the matter and present before the court that revocation on the part of Mr.
Gautum was correct.

13. In case of Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Ors17, the court waited for the
dominant will to be proved and it was the matter for discussion that if the undue influence
and will get proved the gift deed will be revoked.

14. Internationally as well in the case of Smithsonian Institution Vs. Meech , the discussion on
undue influence related to gift deed was made it was held that the clause
of revocation was valid, that the gift over took effect, and that the benefits given by the
will to the daughter were forfeited by that which had taken place.18

I. WHETHER IT WAS UNDUE INFLUENCE FROM MR. ARJUN?

1. Naresh Charan Das Gupta V. Paresh Charan Das Gupta19 in this caset the first
respondent told his father that he could not live under the same roof with his brother, and
that in view of that attitude, the testator gave no share to the appellant in the house. The
first respondent was entitled to put forward his views been inspired by the first respondent.

17
AIR1977SC74; (1977)1SCC369; [1977]1SCR925
18
169 U.S. 398
19
AIR1955SC363; [1955]1ITR1035(SC); [1955]1SCR1035
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We are unable to agree. It is one thing for a father who feels that he has been wronged by a
disobedient son to wish him well in life, and quite another thing to give him any of
his properties.

2. This case in very similar to the present case also the father just to maintain peace and
healthy environment in family get influence by son’s request and transfer the property of
worth 10 lakhs.

B. WHETHER SECTION 23 OF MAINTAINANCE OF PARENTS WELFARE

AND SENIOR CITIZEN IS MAINTAINABLE OR NOT?

It is humbly submitted before the Honorable Supreme Court that the gift deed can be
revoked. The gift deed according to the facts of the present case can be revoked under Sec. 23
of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

 TRANSFER OF PROPERTY TO BE VOID IN CERTAIN CIRCUMSTANCES-

1. Where any senior citizen who, after the commencement of this Act, has transferred by way
of gift or otherwise, his property, subject to the condition that the transferee shall provide
the basic amenities and basic physical needs to the transferor and such transferee refuses
or fails to provide such amenities and physical needs, the said transfer of property shall be
deemed to have been made by fraud or coercion or under undue influence and shall at the
option of the transferor be declared void by the Tribunal.
2. Here the son created undue influence on the father so that for maintaining peace and
harmony in the family the father has to transfer his land on of worth rs 1o lak t the son.
The father in the fiduciary situation assumed that the son will provide him with basic
amenities and help him in completing the journey of life with the simple fact.
3. The continuous fights at home and ill-treatment to Mrs Neelima and Mr. Gautum forced
Mr. Gautum and to name the property in Hoogly Estates worth Rs 10 lakhs to transfer on
the name of husband. Essentials of undue influence-

 One of the Contracting Parties dominates the will and mind of another;

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 The Dominating Party has taken an unfair advantage over the weaker party or the
transaction is unconscionable.

4. Here the party was dominant in nature as continuous fights, bad words, malicious drama
compelled the respondent to sign the deed. Hence the appellant Mr. Arjun took unfair
advantage on the name of Ms Neelima and made asked for the gift deed.

20
5. Lakshmi Amma V .T.Narayana In this case, a person was suffering from a number of
ailments which confined him to a nursing home. There he made a deed gifting all his
properties to one of his sons to the exclusion of others. Court Held that the gift was
caused by undue influence voidable.

6. Similarly here also asking for the gift deed with creating the illusion that Mr. Gautum
will be leading a peaceful life after that, but the matter became worst that Mr. Gautum
was compelled to leave the premises and reside somewhere else.The clause of undue
influence is satisfied and so section 23(1) must prevail and the deed must cancelled and
property must be transferred back to Mr. Gautum.

7. Suresh Kumar V. Sub. Divi. Officer, Sgnr and ors21, Under Section 23 of
the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, 'Act
of 2007').By the order impugned, the learned Tribunal has set at naught a registered gift
deed executed by the second respondent, mother, in favour of petitioner for agriculture 2
land measuring 0.759 hectare precisely on the ground that petitioner is not maintaining
his mother. Accordingly, the order impugned, whereby the registered gift deed is set
aside, is, hereby, annulled.

8. Manjit Singh V. District Magistrate-cum-Deputy Commissioner, Karnal a .and others22

Undoubtedly, Section 23 of the Act deals with the validity of transfer of property in

20
AIR 1967 SC 878
21
1981 CriLJ 928, 19 (1981) DLT 212
22 Punjab and Haryana, Satish Kumar and Anr. Vs. Telu Ram, B.Ramasamy Vs. 1.The
District Collector,

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certain circumstances. It provides that if a senior citizen who, after the commencement of
the Act, has transferred by way of gift or otherwise, his property, with the condition that
the transferee would provide basic amenities and basic physical needs to the transferor,
who thereafter refuses or fails to provide such amenities and physical needs, then the
transfer of the property made by the senior citizen shall be deemed to have been made by
fraud or coercion or under undue influence and shall at the option of the transferor be
declared void by the Tribunal. It further provides that if a senior citizen has a right to
receive maintenance out of an estate and such estate or part thereof is transferred, then
the senior citizen would have a right to receive maintenance from the transferee if the
transferee has notice of the right or if the transfer is gratuitous but he would not be entitled
to receive maintenance from the transferee to whom he has transferred the property for
consideration and without notice of his right of maintenance as provided
under Section 23(2) of the Act. It further provides that if a senior citizen is incapable of
enforcing the right under Sections 23 (1) and (2) of the Act, then he can be helped by any
of the organisations which are referred to in Explanation to Section 5(1) of the Act.

9. Jayantram Vallabhdas Meswania Vs. Vallabhdas Govindram Meswania23, The petitioner

conveniently overlooks the provision under Section 4 of the Act. Sub-Section (1) of
Section 23 provides, inter alia, that where a senior citizen has transferred by way of gift
or otherwise, his property, subject to the condition that the transferee shall provide basic
amenities and physical needs to the transferor then the transfer may be declared void if
the transferee refuses or fails to provide such amenities. Sub Section (2) of Section 23
provides, inter alia, that where a senior citizen has right to receive maintenance out of an
estate which is transferred, the right to receive maintenance may be enforced against the
transferee provided that the transfer is not made for â consideration. Sub Section (2) of
Section 23 contemplates a situation where the transferor has right to receive maintenance
from such property then such transferor can enforce the right to receive maintenance
from the transferee.

23
Special Civil Application No. 13954 of 2012 Gujarat High Court
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10. Radhamani and Others Vs. The State of Kerala, represented by The Secretary revenue
department24.Section 23, Senior Citizens Act, 2007 gives right to senior citizens to
approach the Tribunal to declare any transfer of property, by way of gift or otherwise, after
the commencement of the above Act, as void, in certain circumstances. It stipulates that
such transfer must be with the condition that (a) transferee shall provide the basic
amenities and basic physical needs to the transferor and (b) such transferee refuses or fails
to provide such amenities and physical needs.

11. Therefore, a deed can be declared as void on fulfilling the two conditions enumerated as
above, declaring transfer as a fraud or coercion or under undue influence, as the case may
be at the option of the transferor. . Section 126 of T.P.Act makes a provision to suspend or
revoke the gift on happening of any specified event on which donor and donee may agree.
If such promise and expectation are treated to be a consideration, certainly transaction as
a gift will be deemed to be void. Therefore, such conditions forming part of gift deed are
also reiterated under Section 23 of the Senior Citizens Act, 2007. Any donor in a gift
deed would expect in a natural course of human conduct that donee continues to behave in
same manner as behaved before execution of the deed. The love and affection influenced
for execution of the deed certainly must be enduring and without any barrier. The human
conduct in relation to a particular relation is presumed to exist in all set of circumstances
for governing relationship of those individuals. Transferee cannot disown his own action
of love and affection after the transfer comes into effect. The transfer itself being based on
love and affection,which would form part as a condition of the transaction for future
conduct as well. Thus, in the absence of any other circumstances to dispel, it must be
presumed that transferor expects continuation of the care and love from the transferee even
after execution of the deed in same manner, he was taken care prior to execution of the
deed.

12. Therefore, condition referred in Section 23 has to be understood based on the conduct of
the transferee and not with reference to the specific stipulation in the deed of transfer.
Thus, this Court is of the view that it is not necessary that there should be a specific
recital or stipulation as a condition in the transfer of deed itself. This condition mentioned

24
High Court Kerela, WP(C) No. 13110 of 2015 (K)
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in Section 23 is only referable as a conduct of the transferee, prior to and after execution
of the deed of transfer. Thus, challenge based on the ground that there is no reference in
the recital of deed that transferee will provide basic amenities and physical needs to the
transferor is of no consequence.

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PRAYER

Wherefore, In light of the facts presented, issues raised, arguments advanced and authorities
cited the Counsel on behalf of respondent humbly pray before this Hon’ble Court that it may
be pleased –

 To upheld the judgement of Culcutta High Court:

a) That, the parents can ask for maintenance and incase the maintenance is not
provide they can revoke the gift deed.
b) That , the respondent (Mr. Gautam) can revoke is registered gift deed of
property; and
 Pass any other order or make directions as the Hon’ble Court may deem fit to meet
the interest of justice, equity and good conscience in the instant case.

And for this act of kindness, the Respondent shall duty bound forever pray.

Respectfully Submitted on Behalf of the Respondent;

COUNSELS FOR RESPONDENT

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