RAJESH PATEL AND ORS. v.

SHASHWAT PATEL

IN THE HON’BLE SUPREME COURT

IN THE MATTER RELATING TO

RAJESH PATEL AND ORS…………………..…(Appellant) v.

SHASHWAT PATEL………………………....…(Respondent)

MEMORANDUM ON BEHALF OF THE RESPONDENT

BY: SANKET JAMUAR

SEM. III SECTION B
ROLL NO. 128

MEMORANDUM ON BEHALF OF THE RESPONDENT

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 RAJESH PATEL AND ORS. v. SHASHWAT PATEL

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .............................................................................................. iii

INDEX OF AUTHORITIES ............................................................................................... iv

STATEMENT OF FACTS ................................................................................................... 1

STATEMENT OF ISSUES .................................................................................................. 2

SUMMARY OF ARGUMENTS ........................................................................................... 3

ARGUMENTS ADVANCED ............................................................................................... 4

1. WHETHER THE GIFT IS VALID?

2. WHETHER THE DISPUTED PROPERTY IS ANCESTRAL OR SELF-ACQUIRED?

PRAYER… .......................................................................................................................... 10

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LIST OF ABBREVIATIONS

AIR All India Reporter

SCC Supreme Court Cases

SCR Supreme Court Report

SC Supreme Court

Pg. Page

ed. Edition

In Re In Reference

L.J. Law Journal

u/s Under Section

HC High court

Ors. Others

Anr. Another

& And

Hon’ble Honourable

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INDEX OF AUTHORITIES

STATUTES:

1. The Hindu Succession Act, 1956

2. The Indian Evidence Act, 1872

CASELAWS CITED:

S.NO CASES CITATION

1. Muddun Gopal v. Ram Buksh (1863) 6 WR 71.
Rao Balwant Singh v. Rani
2. (1898) ILR 20 All 267.
Kishori
3. Bishen v. Bawa 20 WR 137 (PC).
4. Sital v. Madho (1877) ILR 1 All 394.
5. Yamunabai v. Manubai (1899) ILR 23 Bom 108.
6. CWT v. Chander Sen 1986 AIR 1753.
Commissioner of Income Tax v.
7. 1992 197 ITR 646 SC
PL Karuppan Chettiar
Rosammal Issetheenammal
8. Fernandez and Ors. v. Joosa MANU SC 0510 2000.
Mariyan Fernandez and Ors
9. CIT v. Babubhai Mansukhbhai 1977) 108 ITR 417 (Guj).

BOOKS
S.NO. NAME
1. Dr Poonam Pradhan Saxena, Family Law Lectures, 3 rd edn., 2011.
2. Paras Diwan, Modern Hindu Law, 23rd edn., 2015.

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 RAJESH PATEL AND ORS. v. SHASHWAT PATEL

STATEMENT OF FACTS

1. Ramesh Chander had three sons namely, Shashwat, Rajesh and Brajesh. Ramesh Chander
executed a gift deed in favour of his son Shashwat Patel in 1980. Ramesh Chander died
in the year 2004. The other sons of Ramesh Chander filed a suit challenging the gift and
claiming an equal share in the said property. Their claim was that Ramesh Chander has
inherited the said property from his father, and therefore it was ancestral property.
Another contention that was raised was that the attestation of gift deed was not proved.

2. The trial court decreed in favour of Rajesh Patel and ors. and held that the property was
ancestral and hence Ramesh Chander did not have the authority to give away the property
by way of gift to Shashwat.

3. On an appeal, the High Court of Delhi set aside the decree of trial court on the ground
that that the said disputed property was the self-acquired property of Ram Chander i.e.
the father of Ramesh Chander.

4. An SLP was filed by the plaintiff’s before the Supreme Court against the decision of the
High Court of Delhi.

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STATEMENT OF ISSUES

~ISSUE 1~
WHETHER THE GIFT OF PROPERTY BY RAMESH CHANDER IS VALID?

~ISSUE 2~
WHETHER THE DISPUTED PROPERTY IS ANCESTRAL OR SELF-ACQUIRED?

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SUMMARY OF ARGUMENTS

1. Whether the gift by Ramesh Chander is valid?

Yes, the gift of property by Ramesh to his son is valid because it his self-acquired property. He
has absolute right over its disposal. He can choose to dispose the property in any way. As
regards the contention of the Appellant about the gift deed being not proved, the Appellant have
not specifically denied the execution of the gift deed.

2. Whether the disputed property is ancestral or self-acquired property?

The property is a self-acquired property. A property is not considered as an ancestral property if

it was gifted by a father to his son. Post 1956, therefore, the property inherited by a son from his
father, under Section 8 of the Hindu Succession Act, 1956, would be his separate or exclusive
property and his male issue will not have a right by birth, in his property

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ARGUMENTS ADVANCED

ISSUE I: WHETHER THE GIFT BY RAMESH CHANDER IS VALID?

It is humbly prayed before The Hon’ble Supreme Court that gift of property by Ramesh Chander
to respondent is absolutely valid and within the provisions of the law. From the fact itself and by
the statements of appellant themselves they have clearly accepted the fact that there is a transfer
of property in form of gift from donor to donee i.e. respondent and there only contention to this
action is the lack of attestation of gift deed and the same not yet proved by the respondent. The
case of the Plaintiffs is very specific. According to them, the suit properties were purchased by
their grandfather and those properties came to Be devolved upon their father by Testamentary
disposition i.e. on the strength of the will of their grandfather. The Hindu Law, as it stands today,
clearly postulates that if it is a self-acquired property of the father, it falls into the hands of his
sons not as coparcenary property, but would devolve on them in their individual capacity. Where
the property is a self-acquired property of the father, it falls into the hands of his son in his
individual capacity and not as coparcenary property in such case son's son cannot claim right in
such property. Also in case of Govindbhai Chhotabhai Patel and Ors. Vs. Patel Ramanbhai
Mathurbhai1 court clearly held that properties devolved upon the father of the Plaintiffs could
not be said to be coparcenary property. The properties were purchased by the grandfather of the
Plaintiffs, as pleaded and admitted by the Plaintiffs themselves. Such self-acquired properties of
the grandfather came to be devolved upon the father of the Plaintiffs by way of a 'will' i.e.
testamentary disposition. In such circumstances, it could be said that the properties are self-
acquired properties of the father of the Plaintiffs. The succession would have been in accordance
with Section 8 of the Hindu Succession Act. When the properties could be said to be self-
acquired properties of the father of the Plaintiffs, then the father could have definitely transferred
those properties by way of a gift deed.
On the other hand, as the Counsel for the Donee we argue that the appellant have failed to prove
that the property was ancestral property after admitting that their grandfather has purchased the
property and given it under Will to their father to the exclusion of other family members. And
due to lack of evidence from the informant side we plead to kindly take this thing into due
1
ILR 1 All 394

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 consideration. Also The Bombay High Court in Jugmohan Das v. Sir Mangal Das2 held that if
the son takes by devise, the property continues to be self acquired in his hands. A man can give
away his self-acquired property to whomsoever it pleases, including his own sons and that
property so given would be considered self-acquired in the hands of the donee. The Court held
as under: “I now come to the question, whether a son, to whom a father leaves his self acquired
property by, will takes the estate by devise or by descent. This is a most important point, perhaps
the most important point in the case. For, if the son takes by devise, the property would, in my
opinion, continue to be self-acquired in his hands, and a ready means would be afforded by the
use of the testamentary power of checking enforced partitions...” Such view of the Bombay High
Court was accepted by the Allahabad High Court and the Lahore High Court. Also Court in C.N.
Arunachala Mudaliar case approved the view of the Bombay High Court and held as under: “It
was held, therefore, that the father of a joint Hindu family governed by Mitakshara law has full
and uncontrolled powers of disposition over his self-acquired immovable property and his male
issue could not interfere with these rights in any way.” This statement of the law has never been
challenged since then and it has been held by the various High Courts in India, and in our
opinion rightly, that a Mitakshara father is not only competent to sell his self-acquired
immovable property to a stranger without the concurrence of his sons3 but he can make a gift of
such property to one of his own sons to the detriment of another4 and he can make even an
unequal distribution amongst his heirs.5

2
1886 I.L.R. 10 Bom 528
3
Muddun v. Ram, 6 WR 71
4
Sital v. Madho ILR 1 All 394
5
Bawa v. Rajah, 10 WR 287
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ISSUE II: WHETHER THE DISPUTED PROPERTY IS ANCESTRAL OR

SELF-ACQUIRED PROPERTY?

The property will be considered as a separate property. A property is not considered as an

ancestral property if it was gifted by a father to his son. Therefore, an individual cannot claim his
share in a property which was gifted to his father by his grandfather. The property which a son or
a daughter receives as a gift from the father becomes their self-acquired property. In such cases,
the grandchildren have no legal right in a property their grandfather gifted to his son or daughter
which he could have gifted to any other person, too. Such a property is considered as self-
acquired property unless there is a clear expression of intention by the grandfather to make it an
ancestral property.

The Hindu Succession Act, 1956 both modifies and codifies the Hindu law. Preamble of the Act
states that it is intended to amend and codify the law governing intestate succession amongst
Hindus.

Section 4 of the Hindu Succession Act, 1956 provides that any rule of Hindu law or custom,
Inconsistent with the provisions of the Hindu Succession Act, 1956 would cease to have any
effect and it is the statutory provisions that would prevail.

Thus, a cumulative reading of the preamble and Section 4 would show that wherever the
classical law has been modified or abrogated, the law as given in the HSA would prevail.

Prior to the coming into force of Hindu Succession Act, 1956, it was well established that the
property inherited by a son from his three paternal ancestors in the male line, would be
Coparcenary property in his hands with respect to his male descendants up to three generations,
such sons acquiring a right by birth in the family and a right to enforce a partition.

After enactment of Hindu Succession Act, 1956, the law of inheritance regarding the property of
a male Hindu is laid down under Sections 8-13 and Schedule - I.

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While the son is undoubtedly an heir, the question is whether the property that he inherits from
his father is his ‘separate property’?

Initially, the Gujarat High Court in CIT v. Babubhai Mansukhbhai10 held that the property
would be ‘coparcenary’ property and his sons and grandsons would have a right in it by birth in
the family.

However, subsequently, the Allahabad High Court, Madras High Court, Madhya Pradesh High
Court and Andhra Pradesh High Court had held that such a property inherited by the son from
his father is his personal property and not Ancestral/Coparcenary property.

Supreme Court upheld the views of these High Courts and discarded the decision of the Gujarat
High Court in CWT v. Chander Sen11. It was held that:

"It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's
property and becomes 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 or from any other
source, be it separate 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. But the question is: is the position affected by section 8 of the Hindu
Succession Act, 1956, and, if so, how? The basic argument is that section 8 indicates the heirs in
respect of certain property and Class I of the heirs includes the son but not the grandson. It
includes, however, the son of a predeceased son. It is this position which has mainly induced the
Allahabad High Court in the two judgments we have noticed to take the view that the income
from the assets inherited by a son from his father from whom he has separated by partition can
be assessed as income of the son individually. Under Section 8 of the Hindu Succession Act,
1956, the property of the father who dies intestate devolves on his son in his individual capacity
and not as Karta of his own family."

This view was again reiterated by the Apex Court in CIT v. PL Karuppan Chettiar12

10 (1977) 108 ITR 417 (Guj).

11 (1986) 161 ITR 370.

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Post 1956, therefore, the property inherited by a son from his father, under Section 8 of the
Hindu Succession Act, 1956, would be his separate or exclusive property and his male issue will
not have a right by birth, in his property. The son does not inherit the property as the Karta of his
branch but does it in his individual capacity as the son of a intestate, and not as the representative
of his male issue. He retains the exclusive power of disposal of this property and his male issue
is not competent to restrain him from doing it or to ask for the partition of the property.

Henceforth, it is humbly submitted that the property which Ramesh Chander inherited from his
father is a self-acquired property.

12 1992 197 ITR 646 SC.

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PRAYER

Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is humbly prayed that this honourable court may be pleased to:

1. Declare that the gift of property by Ramesh Chander to his son Shashwat Patel is
valid.

2. Declare that the disputed property is the self-acquired property of Ramesh

Chander.

3. Uphold the decision of the High Court.

And/or pass any judgement, order or decree which the court may deem fit in the light of
equity, justice and good conscience.

Respectfully Submitted,

Sanket Jamuar
Counsel for Respondent
Roll No. 128
Date: 23rd October, 2019

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