MOOT MEMORIAL,JAI NARAIN VYAS

TOPIC-MOOT PROBLEM

A
Project Report Submitted in partial fulfillment of the requirement for the
Examination of Ninth Semester of B.A.LL.B. (Five Year Law Course.)
Subject : 5.9.1
Law of property

SUBMITTEDTO: SUBMITTED BY:

Dr.Akshyashukla

To
Department of Law
Faculty of Law
Jai Narain Vyas University
Jodhpur

MEMORANDUM IN FAVOUR OF DEFANDANT

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BEFORE
THE HON’BLE
Civil Court Senior Division

IN THE MATTER OF

Ravi................plantiff

Vs

Vs

Bhagat...............Defendant

MEMORIAL ON BEHALF OF Defandant

MEMORANDUM IN FAVOUR OF DEFANDANT

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TABLE OF CONTENTS

IndexofAuthorities............................................................4

StatementofJurisdiction....................................................5

StatementofFacts..............................................................6

IssueRaised.......................................................................7

SummaryofArguments.....................................................8

ArgumentsAdvanced...................................................9-11

Prayer..............................................................................12

MEMORANDUM IN FAVOUR OF DEFANDANT

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INDEX OF AUTHORITIES

TEXTBOOKS:-

THE TRANFER OF PROPERTY ACT BY S N SHUKLA

ACTS AND STATUTES :-

 The TRANSFER OF PROPERTY

ACT,1882CASES:-
 Venkataramanna v.Brahmana(1869),
 Rosher v.
RosherWEBSITES:-

 https://indiankanoon.org
 Livelaw.com

 www.slidshare.com

 www.Wikipedia.com
 www.legalserviceindia.com

MEMORANDUM IN FAVOUR OF DEFANDANT

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STATEMENT OF JURISDICTION

The herein have Approached this Hon’ble Court under section 9 of

civil procedural code 1908 which is read as follows:
The Courts shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred.

[Explanation I].--A suit in which the right to property or to an office

iscontestedisasuitofacivilnature,notwithstandingthatsuchright
maydependentirelyonthedecisionofquestionsastoreligiousrites or
ceremonies.

[Explanation II].--For the purposes of this section, it is immaterial

whether or not any fees are attached to the office referred to in
ExplanationIorwhetherornotsuchofficeisattachedtoaparticular
place.]

MEMORANDUM IN FAVOUR OF DEFANDANT

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STATEMENT OF FACT

Ravi sold his house to Bhagat by registered sale deed with condition
thatBhagatshouldnottransferittoanyone.laterBhagatagreedtosale it to
Sameer. And further soldit.
On coming to know of the fact, Ravi filed a suit against Bhagat to
restrain him from Selling the house. Discuss and Decide.

MEMORANDUM IN FAVOUR OF DEFANDANT

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ISSUE RAISED

1. Whether the registered sale deed with condition between Ravi and
Bhagat is valid ornot?

2. Whether the suit filed by the Ravi to restrain Bhagat is maintainable or

not?

MEMORANDUM IN FAVOUR OF DEFANDANT

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SUMMARY OF ARGUMENTS

1. Whether the registered sale deed with condition between Ravi and
Bhagat is valid ornot?

IT is humbly submitted before this Hon’ble court that the

condition stipulated by Ravi on the property is not valid as per
section 10 or transfer of property act a condition restraining
alienation is void.

2. Whether the suit filed by the Ravi to restrain Bhagat is

maintainable ornot?

IT is humbly submitted before this Hon’ble court that the suit

filed by the Ravi to restrain Bhagat is not maintainable as per
section 11 the terms direct that such interest shall be applied or
enjoyed by him in a particular manner , he shall be entitled to
receive and dispose of such interest as if there were so direction.

MEMORANDUM IN FAVOUR OF DEFANDANT

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ARGUMENT INADVANCE

1. Whether the registered sale deed with condition between Ravi and
Bhagat is valid ornot?

condition on the property transfer by Ravi to Bhagat is not valid as per

section 10 or transfer of property act which says:
Where property is transferred subject to a condition or limitation
absolutely restraining the transferee or any person claiming under him
from parting with or disposing of his interest in the property, the
condition or limitation is void, except in the case of a lease where the
condition is for the benefit of the lessor or those claiming under him:
provided that property may be transferred to or for the benefit of a
woman (not being a Hindu, Muhammadan or Buddhist), so that she
shall not have power during her marriage to transfer or charge the
same or her beneficial interest therein.

The principle is self evident. One cannot transfer a property to its total
destruction. The right of owner does not include the liberty to ruin the
ownership. The owner can destroy the” property” of he so likes but he
cannotruinthe“theownership”.Theownerhasfulllibertytotransfera
property but has no right to make it non-transferableever.
In this problem the Ravi is restraining Bhagat to transfer the property
and it means he is making the property to non- transferable ever by
applying that condition.

MEMORANDUM IN FAVOUR OF DEFANDANT

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Categorisation of Restraints
Since alienation of property is the sole prerogative of the owner of
the property, he is empowered to sell it at any point of time, for any
consideration, to any person, and for any purpose. A restraint on
alienation
could include a condition that dictates to him when to sell it, to sell at
how much consideration, or how to utilise the consideration; to whom
to
for what purpose he should sell. Therefore, restraints on alienations
can appear in the following ways:
(i) restraints on transfer for a particulartime;
(ii) restraints directing control overconsideration/money;
(iii) restraints with respect topersons/transferee,and
(iv) restraints with respect to sale for particular purposes or useof
property.

In the case of Venkataramanna v. Brahmana(1869), A,B,C and D

effected a partition of joint family property and agreed that if any one
ofthemshouldhavenoissue,hewouldhavenopowertosellhisshare but
should leave it for other sharers. A sold his share and died without
issue. B, C and D sued to recover the shares. The Court held that the
condition was void as repugnant to one of the legal incidents of
property even if partition is not transfer ofproperty.
ii.In Rosher v. Rosher, a person A died leaving behind his wife W and
asonS.HelefthisentirepropertytoS,underhisWill.Thewillprovided that S
had to first offer the property for sale and also had to sell her at L
3000 while the market price was L 15000. The court held that these
restrictions amounted to an absolute restraint on S’s and his heir’s
power of alienation and were thereforevoid.

MEMORANDUM IN FAVOUR OF DEFANDANT

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2. Whether the suit filed by the Ravi to restrain Bhagat is

maintainable ornot?

IT is humbly submitted before this Hon’ble court that the suit

filed by the Ravi to restrain Bhagat is not maintainable as per
section 11 which is read as follows:

Where, on a transfer of property, an interest therein is created

absolutely in favour of any person, but the terms of the transfer direct
that such interest shall be applied or enjoyed by him in a particular
manner, he shall be entitled to receive and dispose of such interest as
if there were no such direction.
1[Where any such direction has been made in respect of one piece of
immoveable property
for the purpose of securing the beneficial enjoyment of another piece
of such property, nothing in this section shall be deemed to affect any
right which the transferor may have to enforce such direction or any
remedy which he may have in respect of a breach thereof.]

AS per the case the absolute rights are transfer by Ravi to Bhagat and
restriction impose which says that he cannot transfer this property
against his interest. Here the restriction imposed is that he shall only
use the enjoyment of himself and cannot transfer it further but is not
valid as per section 11.

MEMORANDUM IN FAVOUR OF DEFANDANT

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PRAYER
WHEREFORE,
In light of the facts stated, issue raised, arguments advanced and
authorities cited it is humbly prayed before this Hon'ble Court that :-

Firstly A decree stating that the Mr. Bhagat is absolute owner of the
house and he can also sale it without any restriction.
Secondly The cost of suit must be incurred by the plaintiff.

And/OrpassanyorderorordersasthisHon'bleFamilyCourtmaydeem fit
and proper in the circumstances of the case and in the interests of
Justice, Equity and GoodConscience.
All of which is most humbly and respectfully submitted.

Place:-Jodhpur S/d...............................
Counsel for theDefandant

MEMORANDUM IN FAVOUR OF DEFANDANT

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