1785P

IN THE

LEARNED DISTRICT COURT OF XYZ

IN THE MATTERS OF

S2

PLAINTIFF

(Represented by Himself)

V.

S1

DEFENDANT

(Represented by Himself)

SUIT NO.: XYZ/2022

[BROUGHT UNDER SECTION 54 OF THE CODE OF CIVIL PROCEDURE, 1908, READ WITH ORDER
XX RULE 18.]

MEMORIAL ON BEHALF OF THE PLAINTIFF

i
 TABLE OF CONTENTS

INDEX OF AUTHORITIES..................................................................................................iii

STATEMENT OF FACTS.....................................................................................................iv

STATEMENT OF JURISDICTION......................................................................................v

ISSUES FOR CONSIDERATION........................................................................................vi

SUMMARY OF ARGUMENTS...........................................................................................vii

ARGUMENTS ADVANCED..................................................................................................1

I. THE DONATION MADE BY S1 TOWARDS THE ESTABLISHMENT OF ORPHANAGE IS VOID.. 1

A. The alienated property which formed the subject matter of sale deed was joint

family ancestral property...................................................................................................1

B. The undivided interest in the property was sold by S 1 without the authorisation of

other coparceners...............................................................................................................1

II. THE ADOPTED SON, S2 IS ENTITLED TO DEMAND PARTITION OF ALL THE PROPERTIES

FROM HIS FATHER.....................................................................................................................

A. The share in the properties received by S 1 upon partition post death of Ram

Swaroop is ancestral property...........................................................................................2

B. The share in the properties received by S1 upon death of X is also ancestral

property..........……………………………………………………………………………………..3

C. S2 as an adopted son has a legitimate right to demand partition of the ancestral

property..............................................................................................................................3

ii
PRAYER……………………………………………………………………………………...4

INDEX OF AUTHORITIES

Cases

Arshnoor Singh v Harpal Kaur & Ors., AIR 2019 SC 3098.....................................................3

Baijnath v Maharaj, AIR 1932 Oudh 158.................................................................................1

Baital Singh v Shrilal, AIR (NOC) 485 (MP)............................................................................2

Bejai v Bhupinder, (1895) 22 IA 139.........................................................................................1

Beni Prasad v Puran (1896) ILR 23 Cal 262............................................................................2

Gurlingapa v Nandapa, (1897) 21 Bom 797, p 803..................................................................2

Katama Natchiar v. The Rajah of Shivagunga, (1863) 9 MIA 539...........................................1

Krishna Kumar v Sheo Prasad, (1947) ILR Ngp 162................................................................3

Lakshmibai v Ganpat Morabo, (1868) 5 Bom HC (OCJ) 129...................................................1

Lal Bahadur v Kanhaiya Lal, (1907) 34 IA 65..........................................................................1

Muthachi v Kandaswami (1945) Mad Lj 207............................................................................2

Muthoora v Bootan, (1869) 13 WR 30......................................................................................1

Nanabhai v Achrat Bai (1888) ILR 12 Bom 122.......................................................................2

P. Subramania chettiar v Amritham, AIR 2003 Mad 153.........................................................2

Sat Narain v Sri Krishen, 63 IA 384..........................................................................................2

Shyam Narayan Prasad v. Krishna Prasad and Ors. (2018) 7 SCC 64....................................2

Vellaiyappa Chetty v Natarajan, (1932) 55 Mad 1....................................................................3

Statutes

Hindu Adoption and Maintenance Act, 1956 § 12....................................................................3

iii
Treatises

Desai, Satyajeet A. MULLA HINDU LAW. India: LexisNexis, 2011 ¶ 403; Sirtaji (Mst) v Algu

Upadiya, (1937) 12 Luck 273................................................................................................1

Saxena, Poonam Pradhan., Kusum, K., ‘FAMILY LAW LECTURES,’ LexisNexis Butterworths,

¶ 92.........................................................................................................................................2

iv
 STATEMENT OF FACTS

I.

The property in dispute refers to 10 acres of agricultural land, one furniture store, and gold
and diamond jewellery, which was originally held by Mr. Ram Swaroop.

II.

Mr. Ram Swaroop had three sons, namely Mr. X, Mr. Y, and Mr. Z and a daughter, Ms. A.
Mr. X married Mrs. W and had three sons. Mr. Y married Mrs. W 1 and had two daughters,
and Mr. Z remained unmarried.

III.

Mr. Ram Swaroop died in 1946, and thereafter, his family decided to continue with the
partition of the property and amicably claimed their shares.

IV.

In 1953, Mr. S1, the son of Mr. X, sold half of his property and donated the proceeds for the
establishment of an orphanage. In 1957, Mr. X died and his shares were inherited by his three
sons and his widow, W.

V.

Subsequently, in November 1957 Mr. S1 adopted a son Mr. S2 and a daughter Ms. D1. Mr. S1,
along with his two children relocated to Nainital. Upon attaining majority, Mr. S2 wants to
separate from his father, and seeks partition to the property, claiming that all the properties
are to be categorised as ancestral property.

VI.

He also asserts that the donation made by Mr. S 1 towards the orphanage is void as he had not
right to alienate the coparcenary property. Mr. S 1 objected to the claims and submitted that
since the partition took place prior to the adoption, the properties are his separate properties.

v
 STATEMENT OF JURISDICTION

The Respondent most humbly submits to the jurisdiction of the Ld. District Court at XYZ,

under Section 54 of the Code of Civil Procedure, 1908, read with Order XX Rule 18.

All of which is urged in detail in the written submission and is submitted most respectfully.

vi
 ISSUES FOR CONSIDERATION

I. WHETHER THE DONATION MADE BY S1 TOWARDS THE ESTABLISHMENT OF

ORPHANAGE IS VOID?

II. WHETHER THE ADOPTED SON, S2 IS ENTITLED TO DEMAND PARTITION OF ALL THE

PROPERTIES FROM HIS FATHER?

vii
 SUMMARY OF ARGUMENTS

1. THE DONATION MADE BY S1 TOWARDS THE ESTABLISHMENT OF ORPHANAGE IS

VOID.

The donation made by S1 towards the establishment of is void as the alienated

property which formed the subject matter of sale deed was joint family ancestral

property and the undivided interest in the property was sold by S1 without the

authorisation of other coparceners.

2. WHETHER THE ADOPTED SON, S2 IS ENTITLED TO DEMAND PARTITION OF ALL THE

PROPERTIES FROM HIS FATHER?

The adopted son S2 is entitled to demand partition of all the properties from his father

as the share in the properties received by S 1 upon partition post death of Ram

Swaroop and upon death of X is ancestral property. Moreover, S 2 as an adopted son

has a legitimate right to demand partition of the ancestral property.

viii
 ARGUMENTS ADVANCED

I. THE DONATION MADE BY S1 TOWARDS THE ESTABLISHMENT OF

ORPHANAGE IS VOID.

The donation made by S1 towards the establishment of orphanage is void as the alienated

property which formed the subject matter of sale deed was joint family ancestral property [A]

and the undivided interest in the property was sold by S 1 without the authorisation of other

coparceners. [B]

A. THE ALIENATED PROPERTY WHICH FORMED THE SUBJECT MATTER OF SALE DEED

WAS JOINT FAMILY ANCESTRAL PROPERTY.

Under the classical Mitakshara law, the property which is acquired from ancestors and held

jointly by the members of a family is called a joint family ancestral property or coparcenary

property.1 The Coparcenary property is collectively owned by the coparceners and one of the

basic features of such property is unity of possession and community of interest. 2

Accordingly, all the coparceners jointly own the coparcenary property and till a partition

takes place and their shares are specifically demarcated, no one can claim ownership over any

specific part of the property.3 Further, with respect to the ancestral property received after

partition, the rule is that a coparcener having a male issue takes his portion as representing

the branch4, and so long as the father and son relationship continues, the property will be

coparcenary in his hands.5

1
Desai, Satyajeet A. MULLA HINDU LAW. India: LexisNexis, 2011 ¶ 403; Sirtaji (Mst) v Algu Upadiya, (1937)
12 Luck 273.
2
Katama Natchiar v. The Rajah of Shivagunga, (1863) 9 MIA 539.
3
Id.
4
Lakshmibai v Ganpat Morabo, (1868) 5 Bom HC (OCJ) 129; Lal Bahadur v Kanhaiya Lal, (1907) 34 IA 65;
Bejai v Bhupinder, (1895) 22 IA 139; Baijnath v Maharaj, AIR 1932 Oudh 158.
5
Hari Baksh v Babulal, (1924) 51 IA 163

1
In the present case, after the death of Ram Swaroop in the year 1946, the joint family decided

to go with the partition. 6 X received the property from his ancestor Ram Swaroop on behalf

of his branch and he held it jointly with his three sons.7 Since there was no partition effected

amongst X and his relationship with his three sons continued while he was living, the

property was collectively owned by all the coparceners. Therefore, the alienated property

which formed the subject matter of sale deed was joint family ancestral property.

B. THE UNDIVIDED INTEREST IN THE PROPERTY WAS SOLD BY S1 WITHOUT THE

AUTHORISATION OF OTHER COPARCENERS.

A coparcener on his own or individually is not entitled to alienate his undivided interest in the

coparcenary property, unless and until other co-parceners expressly authorise him to do so. 8

Besides this, the power of alienation of joint family property rests only with the Karta, but

only under certain specific situations such as legal necessity, or for benefit of estate or for the

performance of certain religious or charitable duties.9 For instance, in Baital Singh v Shrilal,

where the property was situated in Madhya Bharat erstwhile region, and the parties were

governed by the Mitakshara law, a sale deed executed by one of the coparceners with respect

to only his share in the undivided coparcenary property without the consent of other

coparceners and without partitioning the property by metes and bounds, was held as void. 10

Accordingly, an alienation of undivided interest in the coparcenary without express

authorisation of all the coparceners or where it is outside the three permitted purposes is

voidable at the option of other coparceners who did not consent to this alienation. 11 Further,

the burden of proving the validity of alienation is on the alienee.12

6
Proposition, ¶5.
7
Id.
8
Muthoora v Bootan, (1869) 13 WR 30.
9
Sat Narain v Sri Krishen, 63 IA 384.
10
Baital Singh v Shrilal, AIR (NOC) 485 (MP)
11
Gurlingapa v Nandapa, (1897) 21 Bom 797, p 803; Subheti v Nokhesingh, (1946) Ngp 699
12
P. Subramania chettiar v Amritham, AIR 2003 Mad 153; Muthachi v Kandaswami (1945) Mad Lj 207.

2
In the present case, within the coparcenary of X and his three sons including S 1, there is no

evidence of the property being partitioned by metes and bounds. When S 1 alienated half of his

undivided property in the year 195113 by executing a sale deed in favour of the orphanage,

there was no express authorisation from rest of the coparceners. Since S 1 is also not the Karta

of the family, he also does not enjoy the right to alienate the property individually under the

three legal conditions. Thus, the undivided interest in the property was sold by S 1 without the

authorisation of other coparceners.

II. THE ADOPTED SON, S2 IS ENTITLED TO DEMAND PARTITION OF ALL

THE PROPERTIES FROM HIS FATHER

The adopted son S2 is entitled to demand partition of all the properties from his father as the

share in the properties received by S1 upon partition post death of Ram Swaroop [A] and

upon death of X is ancestral property [B] Moreover, S2 as an adopted son has a legitimate

right to demand partition of the ancestral property [C].

A. THE SHARE IN THE PROPERTIES RECEIVED BY S1 UPON PARTITION POST DEATH OF

RAM SWAROOP IS ANCESTRAL PROPERTY.

Under the classical law, the property that a Hindu male inherited from his father, grandfather,

or great grandfather, was regarded as ancestral or coparcenary property in his hands, with

respect to his son, grandson, and great-grand son.14 The original mode of acquisition of

property is immaterial for the determination of character subsequently. 15 The share which a

coparcener obtains on partition of ancestral property is ancestral property as regards his male

issue. After partition, the property in the hands of the son will continue to be the ancestral

13
Proposition ¶ 8.
14
Beni Prasad v Puran (1896) ILR 23 Cal 262; Nanabhai v Achrat Bai (1888) ILR 12 Bom 122.
15
Saxena, Poonam Pradhan., Kusum, K., ‘FAMILY LAW LECTURES,’ LexisNexis Butterworths, ¶ 92.

3
property and the natural or adopted son of that son will take interest in it and is entitled to it

by survivorship.16

In the present case, upon the death of Ram Swaroop, the last holder of the property, a

partition took place in the Joint Hindu Family. 17 As grandson of Ram Swaroop, S1 acquired a

right by birth in the joint Hindu property. Upon partition, X took the property with his branch

and formed the coparcenary with his three sons. Accordingly, the share in the properties

received by S1 within the coparcenary of X upon partition, post death of Ram Swaroop was

ancestral in nature.

B. THE SHARE IN THE PROPERTIES RECEIVED BY S1 UPON DEATH OF X IS ALSO

ANCESTRAL PROPERTY.

In Arshnoor Singh v Harpal Kaur and Ors, the Supreme Court held that if the succession

opened under the old Hindu law, i.e., prior to the commencement of the Hindu Succession

Act, 195618, the parties would be governed by Mitakshara law.19 The property inherited by a

male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-à-

vis his male descendants up to three degrees below him. 20 The nature of property will remain

as coparcenary property even after the commencement of the Hindu Succession Act, 195621

In the present case, the succession of the joint Hindu property opened in the year 1946 22,

under old Hindu law, i.e., prior to the commencement of the Hindu Succession Act, 1956.

Accordingly, the inheritance of property upon death of X would be governed by Mitakshara

law and would not be subjected to the scheme of succession under Hindu Succession Act,

16
Shyam Narayan Prasad v. Krishna Prasad and Ors. (2018) 7 SCC 646
17
Proposition, ¶ 5
18
Act 30 of 1956.
19
Arshnoor Singh v Harpal Kaur & Ors., AIR 2019 SC 3098.
20
Id.
21
Id.
22
Supra, note 17.

4
1956. Accordingly, the share of property inherited by S 1 would be ancestral in nature vis-à-vis

his adopted son, S2.

C. S2 AS AN ADOPTED SON HAS A LEGITIMATE RIGHT TO DEMAND PARTITION OF THE

ANCESTRAL PROPERTY

In the Mitakshara coparcenary, a major coparcener can at any time ask for partition and

demarcation of his share.23 It is the inherent right of a coparcener and can be exercised by him

at any time.24 According to Section 12 of the Hindu Adoption and Maintenance Act, 1956 25

adopted sons have the same right to partition as that of the natural son. Even if after his

adoption, a son is born to a father, then also shares of adopted sons and natural sons will be

equal.

In the present case, in November 1957, S2 was adopted by S1. Due to conflict of ideologies

with his father, S2 on attaining majority has decided to live a separate and peaceful life away

from his father. Since he is major, and by virtue of being a son, he acquires a right in the

ancestral property of S1. Thus, S2 has a legitimate right to demand partition of the ancestral

property in the hands of S1

23
Vellaiyappa Chetty v Natarajan, (1932) 55 Mad 1; Krishna Kumar v Sheo Prasad, (1947) ILR Ngp 162.
24
Id.
25
Hindu Adoption and Maintenance Act, 1956 § 12

5
 PRAYER

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

it is most humbly prayed before this Learned District Court of XYZ, that it may be pleased

to-

1. Declare all the properties in the hands of S 1 to be his ancestral property and allow

S2 to claim partition; and

2. Declare the donation made by S1 towards the orphanage by executing the sale deed

to be void.

And further, grant any other relief or pass any other order in favour of the defendant, which

this Learned District Court may so deem fit in the ends of justice and good conscience.

All of which is most humbly and respectfully submitted.

Date: 16th August, 2022 1785P

Place: Learned District Court of XYZ Counsel for the

Plaintiff