1606R

IN THE

HONOURABLE HIGH COURT

AT XYZ

IN THE MATTER OF

MR. A.................................................................................................................APPELLANT

VERSUS

MR. F...............................................................................................................RESPONDENT

CIVIL APPEAL NO. XXXX/2019

(Under Article 227 of the Constitution of India Act, 1950)

On behalf of the Respondent

 TABLE OF CONTENTS

Index of Authorities.................................................................................................................3

Statement of Jurisdiction.........................................................................................................4

Statement of Facts....................................................................................................................5

Issues for consideration...........................................................................................................6

1. The appeal is not maintainable as the appellant has no Locus Standi.....................6

2. Arguendo: The interest does not account as contingent interest..............................6

3. Arguendo: The transfer of the said property is not barred by Section 52...............6

Summary of Arguments..........................................................................................................7

Arguments Advanced...............................................................................................................8

1. The appeal is not maintainable as the appellant has no Locus Standi.....................8

The appeal is not maintainable with regards to the law of privity....................................8

2. Arguendo: The interest does not account as contingent interest..............................9

3. Arguendo: The transfer of the said property is not barred by Section 52.............10

Prayer for Relief.....................................................................................................................12

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 INDEX OF AUTHORITIES

Cases

A. Nawab John v VN Subramanium, (2012) 7 SCC 738.........................................................10

Chunilal v Baimuli, (1900) ILR 24 Bom 420............................................................................9

Donoghue v Stevenson [1932] UKHL 100................................................................................8

Lallu v Jagmohan, (1898), ILR 22 Bom 409.............................................................................9

Peston Bhicajee v PH Anderson, AIR 1939 PC 6......................................................................9

R v Inland Revenue Commissioner, (1981) 2 WLR 722...........................................................8

Rewan Prasad v Radha Beeby, (1846) 4 MIA 137....................................................................9

Thomas Press (India) Ltd. v Nanak Builders and Investors Pvt. Ltd, AIR 2013 SC 2389......10

Veena Sethi v State of Bihar, AIR 1983 SC 339.......................................................................8

Statutes

Transfer of Property Act, 1882..................................................................................................9

Treatises and Books

Anson's Law of Contract", 27th ed. (Oxford: OUP...................................................................8

Black's Law Dictionary, 6th edition...........................................................................................8

2
 STATEMENT OF JURISDICTION

The Respondents submit to the jurisdiction of this honourable court and approach this court

under Article 227 of the Constitution of India.

Hence, the Jurisdiction.

3
 STATEMENT OF FACTS

A owned a property of worth Rs 3,00,000. A created a life interest in the name of B with

respect to same. The property was to vest over to the unborn child of B. Certain powers and

responsibilities were imposed upon B for the purpose of proper management of the same.

C filed a suit challenging the very title of said portion over the property. The court arrived at

a verdict stating the judgment in favor of A. Meanwhile E being the son of B died at the age

of 45 years leaving behind a son of 14 years F. The local guardian of F, on behalf of F,

decided to sell of the property to ensure proper maintenance from the sale deed. C went on to

file an appeal against the verdict so given. Following which C raised an objection, in the very

same appeal, against the interest of F and also the sale deed stating that the interest over the

entire portion has not been vested since the interest itself happens to be of contingent in

nature. That it is contingent to the appeal that had been filed by C.

The suit has been filed in the High Court as an appeal against the judgment given in Lower

Court.

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 ISSUES FOR CONSIDERATION

1. THE APPEAL IS NOT MAINTAINABLE AS THE APPELLANT HAS NO LOCUS STANDI

2. ARGUENDO: THE INTEREST DOES NOT ACCOUNT AS CONTINGENT INTEREST.

3. ARGUENDO: THE TRANSFER OF THE SAID PROPERTY IS NOT BARRED BY

SECTION 52

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 SUMMARY OF ARGUMENTS

In the present matter, the facts indicate towards absence of any interest or locus standi of the

appellant in the present matter, which is why the appeal is fit to be dismissed. The appeal is

bound to be dismissed on grounds of privity. The said interest in question amounts to a vested

interest and not a contingent interest. In the present case, the same applies to the case as it is

of the same nature and there also appears a malafide intention on part of the appellant in

question. Therefore, the transferability is not hit by Section 52 of the Act.

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 ARGUMENTS ADVANCED

1. THE APPEAL IS NOT MAINTAINABLE AS THE APPELLANT HAS NO LOCUS STANDI

In the maintainability of an appeal or suit, one of the foremost conditions is that of locus

standi. The concept emerges from the right to bring upon an action, if one exists in the first

place.1 One of the most important criteria for adjudging the locus standi of a party is the

sufficiency of interest in the suit or the property concerned. 2 In a private action, the same has

to be very specific in order to claim or ensure that the suit instituted is maintainable.

In the present matter, the facts indicate towards absence of any interest or locus standi of the

appellant in the present matter, which is why the appeal is fit to be dismissed.

The appeal is not maintainable with regards to the law of privity.

As per the Black’s Law Dictionary, the law of privity of contract means that a contract

confers rights and imposes liabilities only on the contracting parties and no other party.3

Privity stands to be one of the most basic essentials with regard to the maintainability of a

suit. In the present case, C has no interest whatsoever in the property in question, as he is not

one of the contracting parties to the original contract, which shows the mala fide intention on

part of C, as only the contracting parties have an interest in matters of contract law. 4 Also, in

contracts which are of a public nature, give right to third party beneficiaries to sue or stand as

an exception to the law of privity.5 But, in the present matter, there exist no contract of public

nature ensuring the maintenance of the appeal.

Therefore, the appeal is bound to be dismissed on grounds of privity.

1
R v Inland Revenue Commissioner, (1981) 2 WLR 722
2
Veena Sethi v State of Bihar, AIR 1983 SC 339
3
Black's Law Dictionary, 6th edition, at 1962
4
Beatson (1998)" Anson's Law of Contract", 27th ed. (Oxford: OUP), at 246
5
Donoghue v Stevenson [1932] UKHL 100

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 2. ARGUENDO: THE INTEREST DOES NOT ACCOUNT AS CONTINGENT INTEREST.

As defined under Section 21, a contingent interest is an interest which exists, as in the

transfer deed, on happening or not happening of a specified uncertain event.6 The Supreme

Court, in the case of Usha Subbarao v BN Vishveshwaraih, held that a contingent interest is

said to be of the nature, depending on the intention of the drafter of the said document or

deed.7 The underlying assumption of the same is that the same should be specified in the

deed.8 A vested interest is not defeated by the death of the transferee before he obtains

possession9 or by a creation of a vested interest. 10 As a corollary, if a life interest is created in

favour of a person, intending to vest an absolute interest on the beneficiary, the property vests

on to the beneficiary as a vested interest with postponement of enjoyment.11

In the present case, the interest as per the deed was absolute and vested, which is why there is

no scope for a contingent interest. The uncertain event has to be specified in the deed to

ensure that there is a contingent interest, nut the lawsuit filed is a subsequent action and did

not have anything to deal with the contents or intention of the transfer deed or document.12

There also emerges as a case where there is a distinction drawn between spes succession

under Section 613 and a contingent interest under Section 21. Under Section 6, there is a

positive speculation as to the person being an heir of the property, whereas in a contingent

interest, the same is dependent on the happening or non-happening of a specified uncertain

event,14 which stands obliterated in the present case.

6
Section 21, Transfer of Property Act, 1882
7
Usha Subbarao v BN Vishveshwaraih, AIR 1996 SC 2260
8
Id
9
Section 19, Transfer of Property Act, 1882
10
Rewan Prasad v Radha Beeby, (1846) 4 MIA 137
11
Chunilal v Baimuli, (1900) ILR 24 Bom 420
12
Lallu v Jagmohan, (1898), ILR 22 Bom 409
13
Section 6, Transfer of Property Act, 1882
14
Peston Bhicajee v PH Anderson, AIR 1939 PC 6

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Therefore, the said interest in question amounts to a vested interest and not a contingent

interest.

3. ARGUENDO: THE TRANSFER OF THE SAID PROPERTY IS NOT BARRED BY

SECTION 52

Section 5215 of the Act discusses about the bar on transferability of the property owing to the

doctrine of lis pendens. The doctrine stipulates that during the pendency of a suit or a

proceeding in which the right of movable property is in question, the property is barred from

transferring because of the effect of right of the party in the suit.16

But, considering the nature of the suit, the same amounts as a collusive suit with a malafide

intention. Also, in the case of Thomas Press (India) Ltd. v Nanak Builders and Investors Pvt.

Ltd, it was held that the effect of the doctrine of lis pendens as embodied under Section 52 of

the impugned Act is not to annul all voluntary transfers effected by any party to a suit but

only to render it subservient to the rights of the parties thereto under the decree or order

which may be made in that suit.17

Considering the present case, the same applies to the case as it is of the same nature and there

also appears a malafide intention on part of the appellant in question. Therefore, the

transferability is not hit by Section 52 of the Act.

15
Section 52, Transfer of Property Act, 1882
16
A. Nawab John v VN Subramanium, (2012) 7 SCC 738
17
Thomas Press (India) Ltd. v Nanak Builders and Investors Pvt. Ltd, AIR 2013 SC 2389

iii
 PRAYER FOR RELIEF

Wherefore, in the lights of facts stated, authorities cited, issues raised and arguments

advanced, it is prayed humbly before this Honourable High Court at XYZ to:

 Dismiss the appeal.

Or pass any such orders in favour of the respondent, which this court may deem fit in the

ends of Equity, Justice and Good Conscience.

All of which is most humbly and respectfully submitted

Place: XYZ Counsel: 1606R

Date: 14th March, 2019

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