IN THE HON’BLE

SUPREME COURT OF INDIA

IN THE MATTER OF

AVIK SINGH (PETITIONER)

VS.

SIMRANJEET KAUR (RESPONDENT)

MEMORANDUM ON BEHALF OF PETITIONER

COUNSEL ON BEHALF OF PETITIONER

AYUSH DWIVEDI

B.A. LL.B (HONS.)

SEMESTER III

SECTION A

ROLL NO. 44

HIDAYATULLAH NATIONAL LAW UNIVERSITY

 AVIK SINGH V. SIMRANJEET KAUR

TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................... 1

LIST OF ABBREVIATIONS ............................................................................... 2

INDEX OF AUTHORITIES................................................................................. 3

STATEMENT OF JURISDICTION..................................................................... 4

STATEMENT OF FACTS ................................................................................... 5

ISSUES RAISED .................................................................................................. 7

SUMMARY OF ARGUMENTS .......................................................................... 8

WRITTEN PLEADINGS ..................................................................................... 9

I. THE NATURE OF THE PROPERTY IS COPARCENARY IN NATURE. 9

II. THE APPELLANT IS ENTITLED TO PROPERTY IN DISPUTE. ........ 12
III. THE TRANSFER OF PROPERTY BY KARTAR SINGH IS INVALID. . 13

PRAYER FOR RELIEF ..................................................................................... 15

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LIST OF ABBREVIATIONS
1. & And
2. Acc. According
3.No. Number
4. VS. Versus
5. Ors. Others
6.Hon’ble Honorable
7.A I R All India Reporter
8. Sec. Section

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INDEX OF AUTHORITIES

Cases Referred:

 Shyam Narayan Prasad v. Krisha Prasad & Ors. AIR (2018) 7 SCC646
 Yudhishter v. Ashok Kumar : AIR 1987 SCC 204
 Valliammai Achi v. Nagappa Chettiar and Ors: AIR 1957 SCC 1153
 T.G. Ashok Kumar v. Govindammal & Ors., (2010) 14 SCC 370
 Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors.,
(2019) 3 SCC 520
 Rani & Anr. v. Santa Bala Debnath & Ors. : (1970) 3 SCC 722.

Books Referred:
 Mulla Hindu Law, S. A. Desai Publisher: LexisNexis Butterworths21
Ed Rd 2012
 Modern Hindu Law, Paras Diwan Publisher : Allahabad Law Agency
Edition: 22 Ed Rp 2014

Statutes:
 Hindu Succession Act, 1956 – Sec. 08

Dictionaries:
 Black’s Law Dictionary (West Group Publisher, 2002)
 The Law Lexicon, Bakshi, P.M., Ashoka Law House, New Delhi

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STATEMENT OF JURISDICTION

The present case is being appealed under Article 136 of the Constitution of
India which states :--

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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STATEMENT OF FACTS

 Mohan Singh was the owner of large tracts of agricultural land in

Khanna, Punjab. The Appellant herein is the great-grandson of Mohan
Singh. Mohan Singh passed away in 1951, and his only son Karam Singh
inherited his entire property. In 1964, Karam Singh during his lifetime,
effected a partition of the entire property vide decree dated 04.11.1964
passed in Civil Suit No. 142 of 14.03.1975 between his three sons viz.
Gurukripa Singh, Kartar Singh, and Swaraj Singh in equal shares.
 Thereafter, the three sons transferred one-fourth share in the entire
property back to their father Karam Singh for his sustenance.
Consequently, Karam Singh and his three sons held one-fourth share
each in the property.
 Karam Singh expired on 15.04.1970, and his one-fourth share was
inherited by his heirs i.e. his widow, three sons, and his daughter. The
present matter pertains to the property, which came to the share of
one of his sons viz. Kartar Singh hereinafter referred to as the “suit
property”, which was agricultural land comprised of about 119 kanals 2
Marlas, situated in Khanna, Punjab.
Kartar Singh had only one son viz. Avik Singh the Appellant herein. The
Appellant was born on 22.08.1985 to Kartar Singh through his first wife.
 Kartar Singh purportedly sold the entire suit property to Respondent no.
1 Simranjeet Kaur vide two registered Sale Deeds dated 01.09.1999
for an ostensible sale consideration of Rs. 500,000/- which was to be
utilised for the purpose of registration. The respondent no. 1 as well as
Kartar Singh admitted that no consideration was exchanged in lieu of the
two sale deeds. Kartar Singh subsequently married Simranjeet Kaur on
29/09/1999.

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 The appellant attained majority on 10/04/2004. On 11 / 08 / 2005, he filed

a suit for declaration against his father Kartar Singh as Defendant 1 and
Simranjeet Kaur as Defendant 2 for a declaration that the suit property
was Coparcenary property and hence the two sale deeds were null and
void. During the pendency of suit, the Respondent no. 1 to Respondent 2
and 3 sold the said property on 15/10/2008.
 The Additional Civil Judge decreed in favour of the plaintiff. An appeal
filed by the respondent was dismissed by the Appellate Court. Aggrieved
by the order of the Appellate Court, the respondents moved to the Punjab
and Haryana High Court. The High Court gave a decision in the favour of
the respondents and hence the appellant filed a civil appeal before the
Supreme Court.

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ISSUES RAISED

1. WHETHER THE NATURE OF PROPERTY IS COPARCENARY

OR SEPERATE?
2. WHETHER THE APPELLANT ENTITLED TO PROPERTY IN
DISPUTE?
3. WHETHER THE TRANSFER OF PROPERTY BY KARTAR
SINGH VALID?

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SUMMARY OF ARGUMENTS

1. THE NATURE OF THE PROPERTY IS COPARCENARY IN

NATURE.

The succession in this case opened in 1951 which is prior to the

commencement of the Hindu Succesion Act, 1956 when Karam Singh
succeded to his father Mohan Lal’s property in accordance with the old hindu
mitakshara law. The succession opened under the old Hindu Law, i.e. prior to
the commencement of the Hindu Succession Act,1956, the parties would be
governed by mitakshara law. The property inherited by a male Hindu from his
paternal male ancestor shall be coparcenary property in Mitakshara Law.

2. THE APPELLANT IS ENTITLED TO PROPERTY IN DISPUTE.

The underlying principle of the doctrine of lis pendens is that if a property is

transferred pendente lite, and the transferor is held to have no right or title in
that property, the transferee will not have any title to the property. The Plaintiff
being a male coparcener in the suit property, was vitally affected by the
purported sale of the suit property by his father Kartar Singh.

3. THE TRANSFER OF PROPERTY BY KARTAR SINGH IS

INVALID.

It is settled in a case law that Karta has the power to sell coparcenary property
is subject to certain restrictions viz. the sale should be for legal necessity or for
the benefit of the estate & in the present case the Respondent has not proved
that the sale is for a legal necessity. Hence, the transfer of property by Kartar
Singh is invalid.

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WRITTEN PLEADINGS

I. THE NATURE OF THE PROPERTY IS COPARCENARY IN

NATURE.
In the present case, it is the admitted position that Karam Singh Singh had
inherited the entire suit property from his father Mohan Lal Singh upon his
death. As per the Mutation Entry dated 16.01.1956 produced by Respondent
No. 1, Lal Singh’s death took place in 1951. Therefore, the succession in this
case opened in 1951 prior to the commencement of the Hindu Succession Act,
1956 when Inder Singh succeeded to his father Lal’s Singh’s property in
accordance with the old Hindu Mitakshara law.

Mulla in his commentary on Hindu Law (22nd Edition) has stated the position
with respect to succession under Mitakshara law as follows:

Page 129

“A son, a grandson whose father is dead, and a great-grandson whose father and
grandfather are both dead, succeed simultaneously as single heir to the separate
or self-acquired property of the deceased with rights of survivorship.”

Page 327

“All property inherited by a male Hindu from his father, father’s father or
father’s father’s father, is ancestral property. The essential feature of ancestral
property according to Mitakshara law is that the sons, grandsons and
great-grandsons of the person who inherits it, acquire an interest, and the rights
attached to such property at the moment of their birth.

A person inheriting property from his three immediate paternal ancestors holds
it, and must hold it, in coparcenary with his sons, son’s sons, and son’s son’s

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sons, but as regards other relations, he holds it, and is entitled to hold it as his
absolute property.”

Court has recently held that it is settled that the property inherited by a male
Hindu from his father, father’s father or father’s father’s father is an ancestral
property. The essential feature of ancestral property, according to Mitakshara
Law, is that the sons, grandsons, and great grandsons of the person who inherits
it, acquire an interest and the rights attached to such property at the moment of
their birth. The share which a coparcener obtains on partition of ancestral
property is ancestral property as regards his male issue. After partition, the
property in the hands of the son will continue to be the ancestral property and
the natural or adopted son of that son will take interest in it and is entitled to it
by survivorship.”1

In Yudhishter v. Ashok Kumar2, this Court held that the moment a son is born,
he gets a share in father's property and become part of the coparcenary. His
right accrues to him not on the death of the father or inheritance from the father
but with the very fact of his birth. Normally, therefore whenever the father gets
a property from whatever source, from the grandfather orfrom any other source,
be it separated property or not, his son should have a share in that and it will
become part of the joint Hindu family of his son and grandson and other
members who form joint Hindu family with him. This Court observed that this
position has been affected by Section 8 of the Hindu Succession Act, 1956 and,
therefore, after the Act, when the son inherited the property in the situation
contemplated by Section 8, he does not take it as Kar of his own undivided
family but takes it in his individual capacity.

In the present case, the succession opened in 1951 on the death of Mohan Lal
Singh. The nature of the property inherited by his son Karam Singh was

1
Shyam Narayan Prasad v. Krisha Prasad & Ors. AIR (2018) 7 SCC646
2
AIR 1987 SCC 204

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coparcenary in nature. Even though Karam Singh had effected a partition of the
coparcenary property amongst his sons in 1964, the nature of the property
inherited by Karam Singh’s sons would remain as coparcenary property qua
their male descendants upto three degrees below them.

In Valliammai Achi v. Nagappa Chettiar and Ors3. held that it is well settled
that the share which a co-sharer obtains on partition of ancestral property is
ancestral property as regards his male issues. They take an interest in it by birth
whether they are in existence at the time of partition or are born subsequently.

The suit property which came to the share of late Kartar Singh through partition,
remained coparcenary property qua his son – the Appellant herein, who became
a coparcener in the suit property on his birth i.e. on 22.08.1985.

3
AIR 1967 SC 1153.

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II. THE APPELLANT IS ENTITLED TO PROPERTY IN

DISPUTE.

Since Respondent No. 1 has not obtained a valid and legal title to the suit
property through the Sale Deeds dated 01.09.1999, she could not have passed
on a better title to Respondent Nos. 2 & 3 either. The subsequent Sale Deed
dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2
& 3 is hit by the doctrine of lis pendens. The underlying principle of the
doctrine of lis pendens is that if a property is transferred pendente lite, and the
transferor is held to have no right or title in that property, the transferee will not
have any title to the property4. The Appellant being a male coparcener in the
suit property, was vitally affected by the purported sale of the suit property by
his father Kartar Singh. The Appellant therefore had the locus to file the Suit
for a Declaration that the suit property being coparcenary property, could not
have been sold by his father Kartar Singh without legal necessity, or for the
benefit of the estate. The suit property which came to the share of late Dharam
Singh through partition, remained coparcenary property qua his son – the
Appellant herein, who became a coparcener in the suit property on his birth i.e.
on 22.08.1985.

4
T.G. Ashok Kumar v. Govindammal & Ors., (2010) 14 SCC 370

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III. THE TRANSFER OF PROPERTY BY KARTAR SINGH

IS INVALID.

2 sale deeds executed by Kartar Singh dated 01.09.1999 in favour of

Respondent 1 & it was admitted by both the Appellant and the Respondent that
no consideration was exchanged & was mentioned only for purpose of
Registration.

It is settled in a case law that Karta has the power to sell coparcenary property
is subject to certain restrictions viz. the sale should be for legal necessity or for
the benefit of the estate.5 The onus for establishing the existence of legal
necessity is on the alienee.

In Rani & Anr. v. Santa Bala Debnath & Ors.6, this Court held that the onus of
providing legal necessity may be discharged by the alienee by proof of actual
necessity or by proof that he made proper and bona fide enquires about the
existence of the necessity and that he did all that was reasonable to satisfy
himself as to the existence of the necessity.

In the present case, the onus was on the alienee i.e. Respondent No. 1 to prove
that there was a legal necessity, or benefit to the estate, or that she had made
bona fide enquiries on the existence of the same.

Respondent No. 1 has failed to discharge the burden of proving that Dharam
Singh had executed the two Sale Deeds dated 01.09.1999 in her favour out of
legal necessity or for the benefit of the estate. In fact, it has come on record that
the Sale Deeds were without any consideration whatsoever. Respondent No. 1

5
Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors., (2019) 3 SCC 520; Mulla on Hindu Law
(22nd Edition), Pg. 372.
6
(1970) 3 SCC 722.

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had also admitted that the Sale Deeds were without consideration.7 Hence, the
ground of legal necessity or benefit of the estate falls through.

As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as

being illegal, null and void. Dharam Singh could not have sold the coparcenary
suit property, in which the Appellant was a coparcener, by the aforesaid alleged
Sale Deeds.

7
Moot Prop. Para

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PRAYER FOR RELIEF

In the light of facts of the case, issues raised, arguments advanced and
authorities cited, this court may be pleased to:

 Declare the Suit property as Coparcenary Property &

 Declare both the sale deeds as null & void.

And pass any other order in favour of the Appellant that it may deem
fit in the ends of justice, equity and good conscience.

All of which is respectfully submitted.

Place: INDIA (S/d)_____________

AYUSH DWIVEDI

Date: 23rd October, 2019 (Counsel of Petitioner)

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