TEAM CODE :18

35th BAR CONCIL OF INDIA (TRUST) ALL INDIA INTER-UNIVERSITY

MOOT COURT COMPETITION 2019

Before
THE HON’BLE PRINCIPAL CIVIL COURT OF LUCKNOW
UNDER ORDER 32, ORDER 7 RULE 1 READ WITH §26 OF CPC

PETITION (CIVIL) NO._____________ OF 2019.

IN THE MATTER OF

ABHAY THROUGH JOHN FERNANDEZ………….………. PLAINTIFF

VERSUS
SARVESH SHARMA & Ors…………………………………. DEFENDANT

UPON SUBMISSION TO THE HON’BLE JUSTICE(S) OF THE PRINCIPAL

CIVIL COURT OF LUCKNOW

MEMORIAL FOR THE DEFENDANT

35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

TABLE OF CONTENTS

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

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

• STATUTES REFFERED
• BOOKS REFFERED
• WEB SOURCES
• CASES REFFERED…………………………………………..................................4
STATEMENT OF JURISDICTION......................................................................................5

STATEMENT OF FACTS.....................................................................................................6
ISSUES RAISED ...................................................................................................................7

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

ARGUMENTS IN DETAIL..............................................................................................9-11
1. Whether the suit filed for declaration of title under§ 26 read with order32 &
order 7 rule 1 of CPC is maintainable or not?
1.1.No Cause of Action
1.2.Child is not a part of the Contract
2. Whether the surrogacy contract is to be limited to the surrogacy terms alone or not?
2.1. Surrogacy is a form of adoption

3. Whether the Hindu Succession Act,1956 is to be given purposive interpretation or

not?
3.1.The intent of the legislatures can be achieved only by applying the principle
of purposive construction.

PRAYER…………………………………………………………………………………12

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MEMORIAL FOR THE DEFENDANT
35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

LIST OF ABBREVIATIONS

SI.No. TERM ABBREVIATION

1. Art. Article
2. AIR All India Report
3. SCR Supreme Court Reporter
4. SCC Supreme Court Cases
5. ILR Indian Law Reports
6. Hon’ble Honourable
7. Ors. Others
8. v. Versus
9. ABR All India Bombay Report
10. SCALE Supreme Court Almanac
11. ¶ Paragraph
12. § Section
13. Bom. Bombay
14. Mad. Madras
15. Anr. Another
16. IPC Indian Penal Code
17. No. Number
18. SC Supreme Court
19. HC High Court
20. CPC Code of civil procedure

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MEMORIAL FOR THE DEFENDANT
35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

INDEX OF AUTHORITIES

STATUTES REFFERED:

1. CODE OF CIVIL PROCEDURE, 1908

2. HINDU SUCCESSION ACT,1956
3. HINDU ADOPTION & MAINTANANCE ACT,1956
4. TRANSFER OF PROPERTY ACT,1882

BOOKS REFFERED:

1. Commentaries on Code of Civil Procedure,1908 by justice C.K. Thakker; Dr. Justice

A.S. Anand; Justice S.B. Mjumdar.
2. 4th edition-Commentaries on Hindu Succession Act, 1956 by Jayant.D.Jaibhave
3. 3rd edition-Commentaries on Hindu Adoption & maintenance Act, 1956(Act no.78 of
1956) by M.N. Srinivasan.
4. 2nd edition-Commentaries on The Transfer of Property Act,1882 by Goyle revised by
Justice M.R. Mallick

WEB SOURCES:
1. http://www.scconline.com
2. http://www.manupatra.com
3. http://www.legalserviceindia.com
4. http://www.lexisnexis.in
CASES REFFERED:

SI.NO. PRECEDENT CITATION PAGE

NO.
1. S.M.P. Shipping Services Pvt. Ltd. v. World AIR 2000 Bom 34
Tanker Carrier Corporation.
2. Baby Manji Yamada v. The Union of India 2008 13 SCC 518
3. Jan Balaz v. Anand Municipality Civil Appeal No. 8714
of 2010

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MEMORIAL FOR THE DEFENDANT
35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

STATEMENTOF JURISDICTION

All the procedures that have been laid down under Order32 & Order7, Rule 1 of CPC read
along with § 26 of the Code confers upon this Hon’ble Court its jurisdiction to try, entertain
and dispose of the present case. However, permission of this hon’ble court is humbly sought
by the Defendants to contend on the maintainability of the present suit.

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MEMORIAL FOR THE DEFENDANT
35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

STATEMENT OF FACTS

BACKGROUND:
John and Siya got married to each other but were unable to conceive a child and decided to
go for Surrogacy. They met Savitri and found her to be the right match as a surrogate mother
to their child. Thereafter, Savitri had to undergo an artificial insemination process.

RELEVANT FACTS:

When John and Siya decided for Savitri to be the surrogate mother to their child, they
executed a surrogacy contract with her. One term of the contract mentioned explicitly that the
child would never claim any property of Savitri to which both the parties agreed. When
Abhay reached the age of 13, he received a letter from Savitri which said that she wants him
to take her cottage in Lucknow after she dies, and she has mentioned the same to her brother
and sister. She also mentioned her wish of Abhay to conduct her last rites as she was critical
with cancer and she would meet her end soon. Abhay wanted to fulfil her last wish but while
claiming the property, Savitri’s brother had gone to Court to claim the right over all of her
property.

JUDICIAL TREATMENT:
Abhay through his father filed a suit for Declaration of Title over the cottage as he claimed to
be a Class 1 heir to the property. Suit is now pending in front of this Honourable Court.

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MEMORIAL FOR THE DEFENDANT
35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

ISSUES RAISED

1. WHETHER THE SUIT FILED FOR DECLARATION OF TITLE UNDER §26

READ WITH ORDER 32 & ORDER 7 RULE 1 OF CPC IS MAINTAINABLE
OR NOT?

2. WHETHER THE SURROGACY CONTRACT IS TO BE LIMITED TO THE

SURROGACY TERMS ALONE OR NOT?

3. WHETHER THE HINDU SUCCESSION ACT,1956 IS TO BE GIVEN

PURPOSIVE INTERPRETATION OR NOT?

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MEMORIAL FOR THE DEFENDANT
35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

SUMMARY OF ARGUMENTS

1. WHETHER THE SUIT FILED FOR DECLARATION OF TITLE UNDER §26

READ WITH ORDER 32 & ORDER 7, RULE 1 OF CPC IS MAINTAINABLE
OR NOT?

It is humbly submitted that, the suit filed for declaration of title under §26 read with order 7
rule 1 of CPC is not maintainable. Firstly, there exist no cause of action. Secondly, the child
(Abhay) was not a part of the contract.

2. WHETHER THE SURROGACY CONTRACT IS TO BE LIMITED TO THE

SURROGACY TERMS ALONE OR NOT?

It is humbly submitted that; the surrogacy contract is to be limited to the terms of surrogacy
alone. Firstly, surrogacy is a form of adoption. Secondly, in a contract for adoption the
consent of the child is not obtained.

3. WHETHER THE HINDU SUCCESSION ACT,1956 IS TO BE GIVEN

PURPOSIVE INTERPRETATION OR NOT?

It is humbly submitted that the intent of the legislatures in enacting a law can be achieved
only when the statute is interpreted in the lights of purposive construction. Firstly, when the
Hindu Succession Act,1956 was enacted there were no surrogacy contracts, hence by
applying the rule of purposive construction the term “son” in the said Act cannot be
interpreted to include surrogate son also.

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MEMORIAL FOR THE DEFENDANT
35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

ARGUMENTS ADVANCED

1. THE SUIT FILED FOR DECLARATION OF TITLE UNDER §26 READ

WITH ORDER 7 & ORDER 32, RULE 1 OF CPC IS NOT MAINTAINABLE.

It is the humble submission of the respondents that the suit filed by the Petitioners is not
maintainable as there is no cause of action. Also, the child has no right over the property as
he does not belong to the Class 1 heir. Purposive construction should be given to the law. The
respondents would like to elaborate on the following grounds:

1.1 No Cause of Action:

If the plaintiff does not disclose facts that give the plaintiff right to seek relief against
defendant, the facts that are necessary to prove the damage caused to plaintiff, there is no
cause of action that has been proved.1 Under Order 32 & Order 7, Rule 11(a) of Civil
Procedure Code, the plea of the Plaintiff is to be rejected. In the current case, it is not
maintainable because the Plaintiff is claiming Rights over a property which he has no right
over at all. He is only a surrogate child and not a son.

1.2.Child is not a part of the Contract:

The Surrogacy contract is a personal contract between the parents and the woman who is the
surrogate bother. The terms of the contract are to be judged on the lines that the contract was
only for the purpose of surrogacy alone and property right over the surrogate mother’s
property does not come under the ambit of the surrogacy contract.

2. THE SURROGACY CONTRACT IS TO BE LIMITED TO THE SURROGACY

TERMS ALONE.

It is the humble submission of the Defendants that the Surrogacy contract was first time
recognized by this Hon’ble Supreme Court in the case of Baby Manji v. Union of India.2 The

1
S.M.P. Shipping Services Pvt. Ltd. v. World Tanker Carrier Corporation, AIR 2000 Bom 34.
2
2008 13 SCC 518.

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MEMORIAL FOR THE DEFENDANT
35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

whole intention of the Court in this case was to recognize surrogacy as legal and to validate
the contract and the terms of the contract on which the surrogacy will work out.

2.1.Surrogacy is a form of adoption:

The law does not expressly recognize surrogacy but views traditional surrogacy. As the
adoption of the surrogate’s child by the intended parents, so, it needs to be examined
considering the Hindu Adoptions and Maintenance Act, 1956. § 17 of the said Act expressly
forbids the payment of any sum or any rewards in consideration for adoption. In Baby Manji
Yamada v. The Union of India3, a landmark Indian surrogacy case, the position taken by the
courts was that such an arrangement was viewed as adoption under the law. In Jan Balaz v.
Anand Municipality4. As well, the German couple parents, in this case, were only allowed to
take their twins to Germany, who were born out of surrogacy in India, upon completion of
adoption formalities.

Under the Hindu Adoptions and Maintenance Act, 1956, the consent of the child to be
adopted is not considered. In the very same way, in a surrogacy contract the child and his
consent or his wish is not considered. It is merely a contract executed between the Parents
and the Surrogate mother and it should be limited to the terms of the surrogacy alone and no
other terms are to be made or considered.

3. THE HINDU SUCCESSION ACT,1956 IS TO BE GIVEN PURPOSIVE

INTERPRETATION.

It is humbly submitted that the intent of enacting a law can be achieved only if it is
interpreted in the lights of purposive construction.

Abhay being a surrogate child can never claim property rights over that of Savitri’s as he
does not come under the class one heir as mentioned under the schedule to the Hindu
Succession Act,1956. The intent of the legislature was only to benefit the successors of the
original parents and not surrogate child. If it was so intended then a clear differentiation of
such children would have been mentioned but, the Act does not make any such differences.
Way back in 1956 when the law was enacted there were no such surrogacy contracts that
existed. Only in the due course of modernization such methodologies to have a child was

3
2008 13 SCC 518.
4
Civil Appeal No. 8714 of 2010.

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MEMORIAL FOR THE DEFENDANT
35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

adopted. In a surrogacy contract the agreement is only to give a child to the childless couple
for something in consideration. As in the present case, Savitri was agreed to be paid 5 lakh
which would include all her medical expenses that has been incurred in the course of
delivering Abhay. She can demand only for the agreed amount to be paid to her and can
neither request Abhay to inherit her property, nor can he claim for the same. In general, if a
surrogate child can inherit the property of the surrogate mother this will affect the rights of
the original children of that surrogate mother though it does not exist in the case of Savitri,
this case should not set a wrong precedent. Therefore, Abhay cannot claim rights over the
cottage of Savitri.

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MEMORIAL FOR THE DEFENDANT
35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

PRAYER

Therefore, in the light of the facts stated, evidence adduced, arguments advanced &
authorities cited, the Counsels for the Defendants humbly pray & implore before this Hon’ble
Court for the following among other reliefs:

1. The suit filed for declaration of title under §26 read with order 7 rule 1 of CPC is not
maintainable.
2. To declare that the plaintiff is not entitled to inherit the property from Savitri

The Court may make any other such order as it may deem fit in terms of justice, equity &
good conscience.

And for this act of Kindness the Defendants shall as duty bound ever humbly pray.

Respectfully submitted

S/d_____________________

Counsels for the Defendants.

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35th BAR CONCIL OF INDIA(TRUST) ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION

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MEMORIAL FOR THE DEFENDANT