Family Moot Court Memorial.docx

BEFORE THE HONORABLE COURT OF DELHI

TEAM CODE:-

IN THE MATTER OF ………PETITIONER

SEETA SINGH Vs. Saurabh Singh & ors...

……..RESPONDENT

MEMORIAL FOR PETITIONER

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TABLE OF CONTENTS SR No.

Topic

Page No.

1

INDEX OF AUTHORITIES

03

2

STATEMENT OF JURISDICTION

04

3

STATEMENT OF FACTS

05

4

STATEMENT OF ISSUES

06

5

ADVANCED ARGUEMENTS

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6

PRAYER

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STATUTES REFERED 1. Hindu Succession Act , 1956 2. Civil Procedure Code, 1908

BOOKS REFERED 1. Hindu Succession Act ,1956(bare Act) 2. Civil Procedure Code, 1908 (bare Act) 3. Family law by Paras Diwan

CASES REFERED 1.

Danamma Suman Surpur & Another V. Amar & Others, AIR 2018 SC 721

2. Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari (AIR 2014 Bom 151) 3. Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36)

WEBSITES REFERED https://indiankanoon.org/doc/1883337/ www.lawnotes.in http://chdslsa.gov.in/right_menu/act/pdf/codecivil.pdf https://www.sci.nic.in/judgments

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STATEMENT OF JURISDICTION The petitioner humbly submits that this Honorable Court has the jurisdiction under Section 9 of Civil Procedure Code 1908.

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Statement of Facts Raman Singh was the head of a Joint Family comprising of his wife Param Kaur and three sons Rohan Singh (married ) ,Shyam Singh (unmarried )and unmarried daughter Kavita.

Rohan Singh was running Joint Family Business with his sons at Delhi by diverting a major portion of the income from 500 acres of ancestral land, into the business of the family. All the members of the joint family were residing at an ancestral house in Delhi. Rohan Singh had 3 sons; namely, Saurabh, Ram and Biren and one daughter Seeta. Raman Singh and his wife died in the year 1985 and 1986 respectively. After the death of his father, Rohan Singh became the head of the family. On becoming the head of the family he undertook a large scale diversification of business which was shifted to Noida. and in order to enhance the joint family business, Rohan Singh sold 10 acres of ancestral land for rupees 10 crores to the Punjab and Sind Bank. He also made a gift of Rs 20 lakhs in favor of his un-married daughter Seeta. Biren the youngest son of Rohan Singh was sent abroad for his higher education at the expenses of the family. After completing law, he returned to India and established a flourishing practice as an advocate. Although he was staying in the joint family, he kept his earnings for himself, which was not liked by his two elder brothers and his sister. Frustrated and depressed by the behavior of his sons, Rohan died of heart attack in 2006. Realizing the reactionary behavior of her brothers, Seeta daughter of Rohan filed a suit in the year 2007 for declaration of ownership as coparcener and co-sharer in the joint family property where she also made a prayer for joint possession of the property in the dispute that included agricultural land, business assets/ goodwill and ancestral house. She also prayed that income of Biren be included in the joint property of the family .the alienation made by Rohan in favour of Punjab was also challenged. In this suit she impleaded all her 3 brothers, Punjab and Sind Bank and her uncle as defendants.

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STATEMENT OF ISSUES

ISSUE No. 1 Assuming the existence of HUF, whether Seeta can be a coparcener?

ISSUE No. 2 Whether the income of Biren Singh is included in Hindu Undivided Family?

ISSUE No. 3 Whether the alienation made by Rohan in favour of Punjab and Sindh bank is valid?

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Advanced Arguments

ISSUE No. 1 1. Assuming the existence of HUF, whether Seeta can be a coparcener? It is humbly submitted that, yes Seeta is a coparcener as: According to Section 29A of Hindu Succession Act states that, EQUAL rights to daughter in coparcenary property- notwithstanding anything contained in section 6 of this act1) In a joint Hindu family governed by mitakshara law, the daughter of a coparcener shall by birth become coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship ; and shall be subject to the same liabilities and disabilities in respect thereto as the son; 2) At a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same shall as is allocable to a son: Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such predeceased son or of such predeceased daughter; if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son of such predeceased daughter, as the case may be; 3) Any property to which a female Hindu becomes entitled by virtue of the provisions of clause(i) shall be held by her with the incidents of coparcenary ownership and shall be rejected, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition: 4) Nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been effected the commencement of Hindu Succession Act, 1986.

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The Hindu Succession Amendment Act, 2005 gave women equal rights of inheritance, making them coparceners. A Hindu Undivided Family (HUF) is a concept based on traditions and customs. This concept has, however, undergone changes by amendments in law. By an amendment in 2005 to the Hindu Succession Act, 1956, the entire concept of HUFs, as was then prevalent, underwent a fundamental change.

According to Section 6 of Hindu Succession (amendment) Act) 2005 in a joint family granted by the Mitakshara, law, the daughter of a coparcener shall,(a)

By birth become a coparcener in her own right in the same manner as the son;

(b)

Have the same rights in the coparcenary property as she would have had if she had been a son;

(c)

Be subject to the same liabilities in respect of the said coparcenary property as that of a son, (1) And any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,— (a) The daughter is allotted the same share as is allotted to a son; 8

(b) The share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect?

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may

be

or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005)

had

not

been

enacted. 9

Explanation- For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005).

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day

of

December,

2004.

Explanation- For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]”

In the case of Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari (AIR 2014 Bom 151). The Full Bench held that clause (a) of sub-section (1) of Section 6 would be prospective in operation whereas clause (b) and (c) and other parts of sub-section (1) as well as sub-section (2) would be retroactive in operation. It held that amended Section 6 applied to daughters born prior to June 17, 1956 (the date on which Hindu Succession Act came into force) or thereafter (between June 17, 1956 and September 8, 2005) provided they are alive on September 9, 2005 i.e. on the date when Amended Act, 2005 came into force.

Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women. According to Section 6A of Hindu Succession Act 2005, states that,

(a) In a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a co-parcener in her own right in the same manner as the son 10

and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son.

(b) At a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allocable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter: Provided further that the share allocable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be (c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(d) Nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession Act.

The Bombay High Court in the case of Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36) stated that the text of the amendment itself clearly provides that the right conferred on a “daughter of a coparcener” is “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born

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The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth.

Hence it is clear from the above stated provisions that a woman can be a Coparcener and has equal rights like a Son in the Property.

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ISSUE No. 2 (2). Whether the income of Biren be included in Hindu Undivided Family? Yes Income of Biren has to be included in the HUF as it is specified and clear from the facts that he studied with the help of the family money and established himself with the help of the family money.

Coparcenary property (i) Property inherited from paternal ancestor; Property inherited by a person from his father, or father’s father or father’s father’s or property his own son, son’s sons or son’s son’s son’s acquires an interest by birth as coparcenary rights. It is, therefore, coparcenary property. An accretion to this property, such as purchases made with income of the coparcenary property is also coparcenary property.

Coparcenary property includes; (a) Ancestral property. (b) Acquisition made by coparceners with the help of ancestral property. (c) Joint acquisition of the coparceners and there is no proof of intention on the part of the coparceners that such property should not be treated as joint property and (d) Separate property of the coparceners thrown into the common stock. Hence until when there is an undivided interest Biren has to contribute to the family.

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ISSUE No.3 (3) Whether the alienation made by Rohan in favour of Punjab and Sindh bank is valid? No the alienation made by Rohan in favour of Punjab and Sindh bank is invalid:As Firstly the property being HUF property the Karta has to take the consent of the family as it is undivided interest of all the coparceners equally according to Sec 6 of Hindu Succession Act (2005 Amendment).

Secondly, assuming that the sale to be valid: Karta is accountable to the family members and the coparceners as it’s the duty of a karta to provide the details of the transactions made in the interest of the HUF. ‘A Karta must act with prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct and such alienation on part of the karta without the family purpose or necessity clause, is void’.

Thirdly, the reason for the alienation is supposed to be communicated to the co- parcenars as it is the right of every coparcener to know about the affairs related to the joint Hindu family property.

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PRAYER Wherefore, in the light of the facts presented, issues raised, arguments advanced and authorities cited, the Counsels on behalf of the Appellant humbly pray before this Honorable Court that it may be pleased to adjudge and declare: (a) Seeta as coparcener in the Joint Hindu family (b) To include income of Biren Singh in the Joint Hindu Family (c) To invalidate the alienation of the property by the karta (Rohan Singh)

Or pass any other order that the court may deem fit in the light of equity, justice and good conscience and for this Act of kindness of Your Lordships the Appellant shall as duty bound ever pray.

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