Submitted By:

Aditya Kumar Upadhyay

B.A.LL.B.(H) 4th Sem

Family Law CRE

IN THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 133 OF THE CONSTITUTION OF INDIA,

1950.

MANOJ through Radhika……………………….. (APPELLANT)

V.

TEJAS....................................(RESPONDENT)

MEMORIAL SUBMITTED ON BEHALF OF THE APPELLANT

COUNSEL APPEARING ON BEHALF OF MANOJ.

 TABLE OF CONTENT

 LIST OF ABBREVIATIONS………………………………..Page 3

 INDEX OF AUTHORITIES.

o JUDICIAL PRECEDENT……………………………....Page 4

o BOOKS…………………………………………………Page 5

 STATEMENTS OF FACTS……………..……….….............Page 7

 STATEMENTS OFJURISDICTION………..……….…….Page 8

 STATEMENT OF ISSUES………………….……………....Page 9

 SUMMARY OF ARGUMENTS……………………..……..Page 10

 ARGUMENTS ADVANCED……………………………….Page 11

 PRAYER FOR RELIEF…………………....………………Page 18

MEMORIAL FOR THE APPELLANT

 LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

& And
¶ Paragraph
ABR All India Reports- Bombay High Court Reports
AIR All India Reporter
Anr. Another
AP Andhra Pradesh
Art. ARTICLE.
HC High Court
Hon`ble Honorable
HON’BLE HONORABLE.
I.L.R Indian Law Reporter
Ltd. Limited
Ors. Others
Re. Reference
SC SUPREME COURT.
SCC SUPREME COURT CASES.
SCR Supreme Court Reporter
UP Uttar Pradesh
v./vs. VERSUS.
Vol. Volume

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 INDEX OF AUTHORITIES

CASE CITATION

Rameshwar Paul (Son) v. Shivaji Paul, SA650.2003

Kushavartabai Paul (mother) and Others

Natvarlal V. Dadubhai AIR 1950 Bom 55

Smt. Somavanti And Others v. The State Of Punjab [1962] 2 S.C.R. 813.
And Others

Vide Vellanki Venkata v. Venkatarama MANU/SC/0126/1954

Verabhai v. Bhai Hiraba

MANU/SC/0126/1954
Sawan Ram & Others v. Kala Wanti & Others 1967 AIR 1761,1967 SCR
(3) 687.
Padmja Sharma v. Ratan Lal Sharma (2000) 4 SCC 266

  Kent v. Kent 49 M.L.J. 335 : A.I.R. 1926

Mad. 59
Kanniah Naidu v. Rajammal (1941) AIR 1941 Mad 685
Ahmad Shaikh v. Bai Fatma A.I.R. 1943 Bom. 48
Iyer v. Chandravadana (1913) 25 M.L.J. 349 : I.L.R. 37
Mad. 565
Hemanta Kumar v. Monorama Debi A.I.R. 1935 A.I.R. 1935 Cal. 488.
Cal. 488.

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STATUTES

 The Constitution of India, 1950.

 Constitutional aspects of Hindu Law
 Indian Succession Act,1956
 Hindu Law
 Family Law

JOURNALS REFERRED:-

 All India Reporters

 Supreme Court Cases
 Indian Law Reporters

BOOKS REFFERED

 PARAS DIWAN –Hindu Law

 Proff.G.C.V SUBBA RAO – Family Law
 D.PATHAK’S – Hindu Law and Constitutional Aspects 4th Edition
 ASIA LAW HOUSE -Hindu Code
 PARAS DIWAN-Modern Hindu Law
 UNIVERSAL PUBLICATIONS-The Hindu Succesion Act,1956
 PARAS DIWAN – Family Law
 DURGA DAS BASU – Indian constitution.
 MAMTA RAO- Indian constitution.
 J.N PANDEY – 52nd Edition Indian Constitution.
 V.K SHUKLA- Indian constitution

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ONLINE DATABASE REFFERED

 www.westlaw.com
 www.manupatra.com
 www.indiankanoon.com

 www.scconline.com

Memorial Submitted on the behalf of Appellant 6|Page

 STATEMENT OF FACTS

 Arun, governed by Mitakshara School died in 1934, leaving surviving him

his widow Sumitra. Arut owned an agricultural land and two shops as his
self acquired property. He also had some ancestral property inherited on
partition.
 In 1965 Sumitra adopted Nivesh who died in March 1991 leaving behind a
minor son, Manoj and wife Radhika.

 Sumitra died in 2015 und during her lifetime in December 2011 made a will
under which she bequeathed her entire property, the agricultural land, shops
and the ancestral property and also the property she inherited from her father
in 1935 in favor of her brother's son, Tejas.

 Manoj challenged the will of Sumitra through his mother Radhika.

 Tejas contention in the court that to the extend of property inherited by

Sumitra through her father that he would have been entitled even if she
would have not made the will as the property would come to him is
reversionary.

 District court held that :-

 Sumitra is entitled to make will of her husband property as after his

death she was sole surviving successor.
 Adopted son. Nivesh and decedents are not entitled as adoption was
made after the death of Arun by his widow Sumitra in 1955.
 Tejas contention of reversionary is applicable.
 Sumitra's will bequeathing property inherited by her father is valid but
out of the property bequeathed her adopted son's widow. Radhika and
his minor son Tejas are entitled for maintenance.

 Manoj appealed in High court of Rajasthan, which upheld the judgment of

District court but held that the contention of Tejas regarding reversionary is
not enable.
 Manoj appealed in the Supreme Court.

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 STATEMENT OF JURISDICTION

THE COUNSEL ON THE BEHALF OF APPELLANT HAS APPROACHED

THE HONORABLE SUPREME COURT OF INDIA UNDER ARTICLE 133
OF THE CONSTITUTION OF INDIA.

Article 133 in The Constitution Of India

133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High
Court in the territory of India if the High Court certifies under Article 134A

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court

(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause ( 1 ) may urge
as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has
been wrongly decided

(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the
Supreme Court from the judgment, decree or final order of one Judge of a High Court.

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 ISSUES RAISED

ISSUE 1

 Does the surviving widow is entitled to make a will of property left by her
husband after his death?

ISSUE 2

 Does the adopted son and in his absence his male descendant have the right
to take entire ancestral property as surviving coparcener?

ISSUE 3

 Can the widow make a will over the property inherited by her father entirely
bequeathing to brothers son, Tejas neglecting his own adopted son's widow
Radhika and grandson, Manoj?

Memorial Submitted on the behalf of Appellant 9|Page

 SUMMARY OF ARGUMENTS

 Does the surviving widow is entitled to make a will of property left by

her husband after his death?

It is humbly submitted before the hon’ble Supreme court that the surviving
widow was not entitled to make a will of the property left by her husband
after his death. According to Hindu law texts as interpreted by courts, on
adoption by a Hindu widow, the adopted son acquires all the rights of an
aurasa son and those rights relate back to the date of the death of the
adoptive father. If a son is adopted by a female Hindu whose husband is
dead, the adopted son by the hindu female particularly the Hindu widow
would be deemed to be the son of the late husband also. Thus he will be the
preferential heir of the deceased husband. Hence, the estate held by a widow
was a defeasible estate.

 Does the adopted son and in his absence his male descendant have the
right to take entire ancestral property as surviving coparcener?

It is humbly submitted before the hon’ble Supreme Court of India that the
adopted son and in his absence his male descendants have the right to take
the entire ancestral property as surviving coparcener. The adopted son
absorbed in the adoptive family to which the widow belonged would be the
son of the deceased husband also. Thus, he will be the preferential heir of
the deceased husband. Under the Shastric law if a child is adopted by a
widow, he is treated as a natural born child and consequently he could divest
other members of the family of rights vested in them prior to his adoption.

 Can the widow make a will over the property inherited by her father
entirely bequeathing to brother’s son, Tejas neglecting his own adopted
son's widow Radhika and grandson, Manoj?

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 It is humbly submitted before the hon’ble Supreme court of India that
though the widow is entitled to make a WILL over the property inherited by
her father bequeathing to her brother’s son, Tejas But she cannot neglect his
own adopted son’s widow and grandson, Manoj because it is her
responsibility to maintain them as per the provisions of the Hindu Adoption
and maintenance act 1956.

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 ARGUMENTS

 Does the surviving widow is entitled to make a will of property left by

her husband after his death?

It is humbly submitted before the hon’ble court that the surviving widow
was not entitled to make a will of the property left by her husband after his
death. The very first question that arise before the hon’ble court is that
“Whether the adoptive son will be the son of the deceased husband of the
widow or not?” If look at the provision of section 12 of the Hindu Adoption
and Maintenance Act 1956, it clearly states that “ An adopted child shall be
deemed to be the child of his or her adoptive father or mother for all
purposes with effect from the date of the adoption and from such date all the
ties of the child in the family of his or her birth shall be deemed to be
severed and replaced by those created by the adoption in the adoptive
family.” According to Hindu law texts as interpreted by courts, In the case
Sawan Ram v. Kalawanti, AIR 1967 SC 1761, The court held that if a son is
adopted by a female Hindu, who is married and whose husband is dead or
had completely and finally renounced the world, the adopted son by the
Hindu female particularly the Hindu widow would be deemed to be the son
of the late husband also. Similarly in the case Baba Nanjappa v.
Arunkumar AIR 1988, Kant139, the court after taking notice of relevant
authorities on the subject found, that if adoption, after the act came into
force, is found valid, the question that the adopted son was not born to his
father would not be relevant for entitling the adopted son to claim a share in
the family property as a coparcener. Hence it is well established fact that the
adopted son was the son of the deceased father also. In the case Rameshwar
Paul (Son) versus Shivaji Paul, Kushavartabai Paul (mother) and Others
case, the Bombay High Court took a decision that curtailed the power of a
mother to sell/transfer property of a minor son. If the property inherited by
son from his father is not ancestral, the mother has no right to sell it. She as
a de facto guardian has no right to alienate the property of her minor son.

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 A wife has no right to share in the ancestral property. As a result, a widow
has absolutely no rightover her husband’s ancestral property.

In the case, Natvarlal V. Dadubhai, the hon’ble court observed that;

“A hindu widow has lager rights than those of a life-estate holder in as much
as in case of justifying necessity she can convey to another an absolute title
to the properties vested in her. On the other hand, where there is no necessity
for alienation, the interest which she herself holds and which she can convey
to others, is not indefeasible life estate but an estate liable to be defeated on
the happening of certain events which in Hindu law cause extinction of
widow’s estate. Re-marriage by the widow is one such event which
completely her of any interest in her husband’s property. Adoption of a son
to her husband is another circumstance which puts an end to her estate as
heir to her husband, the effect of adoption being to bring in a son who has
prior claims to succession under the Hindu Law.

It is humbly submitted that the widow is not entitled to make a will on the
property left by her husband after his death because she ceases her complete
right on her husband’s property on the day she adopted a child. Adoption of
a son put an end to het estate as heir in her husband’s property as observed
in various judgments of the courts and in the provisions of the Hindu law.
The adopted child acts as the natural child of the father and his adoption
would be treated from the date of his father’s death. The adopted child will
act as the heir of the father’s property.

Now Since that property was of the adopted child, Nivesh and after his death
it goes to his minor child which Means Sumitra was just the Guardian of that
property. And if we look at the provisions of THE HINDU MINORITY &
GUARDIANSHIP ACT 1956

1. Natural guardians of a Hindu Minor. The natural guardians of a Hindu

minor, in respect of the minor' s person as well as in respect of the minor'
s property (excluding his or her undivided interest in joint family
property), are-
2. Powers of natural guardian.

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 (1) The natural guardian of a Hindu minor has power, subject to the
provisions of this section, to do all acts which are necessary or reasonable
and proper for the benefit of the minor or for the realization, protection or
benefit of the minor' s estate; but the guardian can in no case bind the minor
by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the
court,-
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any
part of the immovable property of the minor, or
(b) lease any part of such property for a term exceeding five years or for a
term extending more than one year beyond the date on which the minor will
attain majority.
(3) Any disposal of immovable property by a natural guardian, in
contravention of sub- section (1) or sub- section (2) is voidable at the
instance of the minor or any person claiming under him.
The provisions clearly says that the guardian cannot dispose off the property
of the minor which means that Sumitra is not entitled to make a will on the
property inherited by her husband after his death.

 Does the adopted son and in his absence his male descendant have the
right to take entire ancestral property as surviving coparcener?

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 It is humbly submitted before the hon’ble supreme court that the adopted son
and in his absence his male descendant have the right to take entire ancestral
property as surviving coparcener because on adoption by a Hindu widow,
the adopted son acquires all the rights of an aurasa son and those rights
relate back to the date of the death of the adoptive father. Hence the estate
held by a widow was a defeasible estate. In the case R. Ashok and Anr. V.
R.Bhagavathi Ammal and ors.(1993), the hon’ble court answered the
question whether the widow has the right to adopt a son and if she the right
to adopt a son the what will be the effect on to the rights ( adopted son) in
the family property in a way that as a result of the adoption made by the
widow the adoptee acquires the right to share of his deceased father.
Adoption is a mode of affiliation which confers a right of inheritance under
Hindu law. Under that law a widow in the absence of any preferential heir
succeeded to the estate of her deceased husband but she took only an estate
known as widow's estate. After her death the Property devolved on the
nearest [1962] 2 S.C.R. 813.

Again it is to be remembered that an adopted son is the continuator of his

adoptive father's line exactly as an aurasa son, and that an adoption, so far as
the continuity of the line is concerned, has a retrospective effect. It is on this
principle that when a widow succeeds to her husband's estate as heir and
then makes an adoption, the adopted son is held entitled, as preferential heir,
to divest her of the estate. It is on the same principle that when a son dies
unmarried and his mother succeeds to his estate as his heir, and then makes
an adoption to h er husband, that adopted son is held entitled to divest her of
the estate. In the case Vide Vellanki Venkata v. Venkatarama and Verabhai
v. Bhai Hirabai, the hon’ble court observed that

On the death of a Hindu, the person who is then his nearest heir becomes
entitled at once to the property left by him. The right of succession vests in
him immediately on the death of the owner of the property. It cannot under
any circumstances remain in abeyance in expectation of the birth of a
preferential heir where such heir was not conceived at the time of the
owner's death.

Let’s refer to section 12 of the Hindu Succession act, which says:

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 Vide Vellanki Venkata v. Venkatarama
Verabhai v. Bhai Hirabai
R. Ashok and Anr. V. R.Bhagavathi Ammal and ors.(1993)
“An adopted child shall be deemed to be the child of his or her adoptive
father or mother for all purposes with effect from the date of adoption and
from such date all the ties of the child in the family of his or her birth shall

Memorial Submitted on the behalf of Appellant 16 | P a g e

 be deemed to be severed and replaced by those created by the adoption in
the adoptive family.”

"Under the terms of the above section, an adopted child is deemed to be the
child of his or her adoptive father or mother for all purposes with effect from
the date of the adoption. Relying on the words "for all purposes", it is argued
that the adopted child has the same rights and privileges in the family of the
adopter as the legitimate child.”

Under the law as it stood before the Act came into operation, the ground on
which an adopted son was held entitled to take in defeasance of the rights
acquired prior to his adoption was that, in the eye of law, his adoption
related back, by a legal fiction, to the date of death of his adoptive father.
1967 AIR 1761,1967 SCR (3) 687.
A question naturally arises what is the adoptive family of a child who is
adopted by a widow, or by a married woman whose husband has completely
and finally renounced the world or has been declared to be of unsound mind
even though alive. In It is well-recognized that, after a female is married, she
belongs to the family of her husband. The child adopted by her must also,
therefore, belong to the same family. On adoption by a widow, therefore, the
adopted son is to be deemed to be a member of the family of the deceased
husband of the widow. Further still, he loses all his rights in the family of his
birth and those rights are replaced by the rights created by the adoption in
the adoptive family. The right, which the child had, to succeed to property
by virtue of being the son of his natural father, in the family of his birth, is,
thus, clearly to be replaced by similar rights in the adoptive family and,
consequently, he would certainly obtain those rights in the capacity of a
member of that family as an adopted son of the deceased husband of the
widow, or the married female, taking him in adoption. This provision
in section 12 of the Act, thus, itself makes it clear that, on adoption by a
Hindu female who has 'been married, the adopted son will, in effect, be the
adopted son of her husband also. Sawan Ram & others v. Kalawanti &
others.
1967 AIR 1761,1967 SCR (3) 687
Sawan Ram & others v. Kalawanti & others

Hence it is humbly submitted that the adopted son and in his absence his
male descendant have the right to take entire ancestral property as surviving

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 coparcener because after adoption Nivesh became the next heir of his
adoptive father Arun.

 Can the widow make a will over the property inherited by her father
entirely bequeathing to brothers son, Tejas neglecting his own adopted
son's widow Radhika and grandson, Manoj?

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 It is humbly submitted before the hon’ble court that the widow can make a
will over the property inherited by her father entirely to brother’s son,Tejas
as it is her self-acquired property and she can make a will over that property
as per the provisions of the Hindu Succession Act. But the widow has
certain responsibilities towards her future generations/heirs.

As per section 20 of the Hindu adoption and maintenance act, 1956 :-

A Hindu male or female is bound to maintain his or her

legitimate/illegitimate minor children and aged/infirm parents. Aged or
infirm parent (which includes childless stepmother) or unmarried daughter
have to be maintained if they are unable to maintain themselves. Section 23
sub-section (2) states that while determining the amount of maintenance to
be awarded to children or aged or infirm parents, the court shall consider the
following:
(a) position and status of the parties;
(b) reasonable wants of the claimants;
(c) if the claimant is living separately, whether the claimant is justified in
doing so;
(d) claimants income and value of property held by him, if any; etc.

Padmja Sharma v. Ratan Lal Sharma, (2000) 4 SCC 266.

In the case Kent v. Kent 49 M.L.J. 335 : A.I.R. 1926 Mad. 59 the court held
that even a grown-up child, if unable to maintain itself, is entitled to get
maintenance from the parents. The same was observed by the hon’ble court
in the case of Kanniah Naidu v. Rajammal (1941).
In Ahmad Shaikh v. Bai Fatma A.I.R. 1943 Bom. 48, the claim for
maintenance considered was that of a daughter aged 21 and the contention
was that the maintenance should be confined to minors.

Padmja Sharma v. Ratan Lal Sharma, (2000) 4 SCC 266

Kent v. Kent 49 M.L.J. 335 : A.I.R. 1926 Mad. 59
Kanniah Naidu v. Rajammal (1941).
Ahmad Shaikh v. Bai Fatma A.I.R. 1943 Bom. 48

Reference was made to the decision of this Court in Krishnaswami Iyer v.

Chandravadana (1913) 25 M.L.J. 349 : I.L.R. 37 Mad. 565, and the

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 decision of the Calcutta High Court to the similar effect in Hemanta Kumar
v. Monorama Debi A.I.R. 1935 Cal. 488.
Hence, it is humbly submitted before the hon’ble court that though the
widow has right to bequeath her property inherited from her father through
WILL to her brother’s son but at the same time she has a responsibility to
maintain his dead son’s wife and her grandson as per the provisions of the
Hindu Adoption maintenance Act 1956. Sumitra cannot leave her dead son’s
wife and her grandson at the mercy of the world. She is legally bound to
maintain them.

Krishnaswami Iyer v. Chandravadana (1913) 25 M.L.J. 349 : I.L.R. 37 Mad. 565

Hemanta Kumar v. Monorama Debi A.I.R. 1935 Cal. 488.

PRAYER FOR RELIEF

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 IN THE LIGHTS OF THE ISSUES RAISED, ARGUMENTS ADVANCED
AND AUTHORITIES CITED, THE COUNSEL ON THE BEHALF OF
APPELLANT HUMBLY PRAYS THAT THE HON’BLE SUPREME COURT
OF INDIA.

1. To declare that Sumitra is not entitled to make WILL of her husband’s

property as she do not have the right of alienation.

2. To declare that the adopted son and his decendants are entitled to take right
of the ancestral property as the surviving coparceners.

3. To declare that it is the responsibility of Sumitra to maintain her adopted

son’s widow and grandson.

AND/OR PASS ANY ORDER THAT THIS HON’BLR COURT MAY DEEM
FIT IN THE INTEREST OF EQUITY, JUSTICE AND GOOD CONSCIENCE.
AND FOR THIS ACT OF GOODNESS THE COUNSEL FOR APPELLANT
AS IN DUTY BOUND SHALL EVER PRAY.

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