ROLL NO-4310121082

IN THE HON’BLE HIGH COURT OF ORISSA

BHARAT SAHU …...….APPELLANT

VERSUS

RIDHIMA DEHURI ……...RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

LIST OF ABBREVIATION------------------------------------------------------------------------03
INDEX OF AUTHORITIES------------------------------------------------------------------------04
STATEMENT OF JURISDICTION---------------------------------------------------------------05
STATEMENT OF FACTS--------------------------------------------------------------------------06
STATEMENT OF ISSUES-------------------------------------------------------------------------07
SUMMARY OF ARGUMENTS-------------------------------------------------------------------08
ARGUMENTS ADVANCED------------------------------------------------------------------09-16
PRAYER---------------------------------------------------------------------------------------------- 17

MEMORANDUM ON BEHALF OF THE RESPONDENT

 LIST OF ABBREVIATION

SL. NO. ABBREVIATION FULL FORM

1 & And
2 AC Appeal Cases
3 HC High Court
4 Hon’ble Honorable
5 No. Number
6 Ors. Others
7 v. Versus

MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-3

 INDEX OF AUTHORITIES

CASES
SL. NO. CASE NAME CITATION

1. GIRJESH DUTT V. DUTTADIN 1934 OUDH 35

2. RAM NAWAZ AND ANR. VS. AIR 1926, ALL INDIA 283

NANKOO,

BOOKS AND COMMENTARIES

THE TRANSFER OF PROPERTY ACR BY R.K. SINHA

STATUTES
THE TRANSFER OF PROPERTY ACT, 1882
HINDU SUCCESSION ACT, 1956
THE LIMITATION ACT, 1963

MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-4

 STATEMENT OF JURISDICTION

The counsel representing the Appellant humbly submits that this memorandum is in

furtherance of the Civil Miscellaneous Appeal Filed By The Appellant before the Hon’ble

High Court of Orissa under Section 96 of Code of Civil Procedure, 1908.

Section-96, Appeal from original decree

(1) Save where otherwise expressly provided in the body of this Code or by any other law for

the time being in force, an appeal shall lie from every decree passed by any Court exercising

original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature

cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the

original suit does not exceed 2 [ten thousand rupees.]]

MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-5

 STATEMENT OF FACTS

1. Mr. Amit Dehuri is the owner of a 4BHK house at Ranihat, Cuttack.

2. Mrs. Ridhima Dehuri, is the wife of Mr. Amit Dehuri, having a son Mr. Tanmay

3. Mr. Dehuri sell his house to Mr. Bharat Sahu on 01.03.2001

4. The seller Mr. Amit Dehuri has a superadded condition that, from the date of sale two

Bedrooms of the said house are to be enjoyed by Mr. Bharat and the other two

Bedrooms are to be enjoyed by Mr. Amit and after his death, by his son Tanmay and

so on till the Line of lineal descendent of Tanmay will continue.

5. After there remains no one in lineal Linage the two bedrooms will be taken over by

Mr. Bharat for enjoyment.

6. On 05/04/2022 Mr. Amit and his unmarried son Tanmay died in a car accident.

7. After all the funeral rituals are over, on 18/04/2022, Mr. Bharat claimed the

possession of the remaining two bedrooms as the absolute owner of the house from

Mrs. Ridhima Dehuri.

8. Mrs. Dehuri refused to transfer the Possession as she believed to be the legal owner of

it.

9. With a heated argument between them Mr. Bharat removed Mrs. Ridhima forcefully

form the house.

10. After the said incident, Mrs. Ridhima filed a Civil suit against Mr. Bharat in the

District Court of Cuttack for delivery of possession of the two bedrooms citing the

illegal removal of her from the said house and got the decree In her favour.

MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-6

 STATEMENT OF ISSUES

ISSUE 1

WHETHER THE APPEAL IS MAINTAINABLE IN THE HIGH COURT?

ISSUE 2

WHETHER THE CONSIDERATION IN THE SALE WAS LEGAL?

ISSUE 3

WHETHER MR. BHARAT HAS LEGAL RIGHT TO POSSES AND OWN THE TWO

DISPUTED ROOMS?

ISSUE -4

WHETHER MRS. RIDHIMA IS LEGALLY ENTITLED FOR THE POSSESSION

AND OWNERSHIP OF THE DISPUTED TWO ROOMS?

MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-7

 SUMMARY OF ARGUMENTS

ISSUE 1:

THE APPEAL IS MAINTAINABLE IN THE HIGH COURT.

It is humbly submitted before this Hon’ble Court that the above appeal challenging the decree

of the District Court is maintainable in this Hon’ble High Court.

ISSUE 2

THE CONSIDERATION IN THE SALE WAS NOT LEGAL

It is humbly submitted before this Hon’ble Court that the consideration in the sale wasn’t

legal as per Sec-10 of Transfer of Property Act.

ISSUE 3

MR. BHARAT HAS NO LEGAL RIGHT TO POSSES AND OWN THE TWO

DISPUTED ROOMS?

It is humbly submitted before the Hon’ble Court that the appellant is not entitled to have the

legal right to Possess and own the two disputed rooms as superadded conditional clause

added by Mr. Amit Dehuri is void as per section 13,14 and 16 of TP Act, 1882.

ISSUE 4

MRS. RIDHIMA IS LEGALLY ENTITLED FOR THE POSSESSION AND

OWNERSHIP OF THE DISPUTED TWO ROOMS

It is humbly submitted before the Hon’ble Court that Mrs. Ridhima Dehuri is legally entitled

for the possession and ownership of the disputed two rooms.

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 ARGUMENTS ADVANCED

ISSUE 1:

THE APPEAL IS MAINTAINABLE IN THE HIGH COURT.

It is humbly submitted before this Hon’ble Court that the above appeal challenging

the decree of the District Court is maintainable in this Hon’ble High Court. That as per

section 96 of Code of Civil Procedure, 1908 the same petition for appeal is valid as per the

section and the said decree passed by the District Court can be challenged based on the said

provision for original appeal.

MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-9

ISSUE 2

THE CONSIDERATION IN THE SALE WAS NOT LEGAL

1. That the Respondent want to take defense of the section-10 of the Transfer of

Property Act, 1882 which restrain from any condition of alienation. Section-10

stipulates that any clause imposed on the transferee which would amount to an

absolute restrain on the rights of the transferee to dispose of his interest in the

property shall be void.

2. That as per the present case it is said in the sale deed that the two rooms will be with

Amit Dehuri and after him his son Tanmay and then after Tanmay’s Son and so on till

line of lineal descendant continue. After there remains no one in lineal linage the two

rooms will be taken by Bharat Sahu as owner. So if any lineal descendant want to sell

any or two rooms, then Bharat Sahu may bring suits and stay the descendant to carry

that transaction on the ground that Bharat Sahu is the final owner of the property and

one day he may get it.

3. By seeing this clause, prima facie it looks that intention of the Amit was to restrain

any of his descendants to sell or enjoy the absolute rights of the property. Hence the

respondent found it void under section-10 of the Transfer of Property Act 1882.

4. That also the clause of the sale deed not fulfill the main essential of Contract Act, that

is price. Although Bharat pay price for the two rooms, but there is no payment for the

disputed two rooms by the Bharat. In contract nothing can go free there should be

something in return for the thing sold. Further Bharat has no blood relations with

Amit Dehuri and this was sale deed, not any deed like gift deed where payment can be

ignored. Hence Respondent strongly argues that this sale also not form valid contract

to be executed.

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ISSUE 3

MR. BHARAT HAS NO LEGAL RIGHT TO POSSES AND OWN THE TWO

DISPUTED ROOMS

1. That it is humbly submitted by the Respondent that the appellant is in ownership and

possession of the two rooms but strongly rejects his claim on disputed other two room

on various ground.

2. The appellant claims by the reference of the clause added by the Amit into sale deed

while selling two rooms, to which the respondent argue that the clause is void as per

section-13, 14, and 16 of the Transfer of Property Act ,1882.

3. That in the present case Amit for the disputed two rooms had created a life interest in

favour of his son who was then unmarried having no issues. Interest was created in

favour of his son for life and after him his son’s son and so on till the line descendant

in the line and as per section-13 of the Transfer of Property 1882 only absolute

interest can be created in favour of the unborn person.

4. That section-13 is as follows: “Transfer for the Benefit of Unborn person”- Where,

on a transfer of property, an interest therein is created for the benefit of a person not

in existence at the date of the transfer, subject to a prior interest created by the same

transfer, the interest created for the benefit of such person shall not take effect, unless

it extends to the whole of the remaining interest of the transferor in the property.

Illustration A transfers property of which he is the owner to B in trust for A and his

intended wife successively for their lives, and, after the death of the survivor, for the

eldest son of the intended marriage for life, and after his death for A’s second son.

The interest so created for the benefit of the eldest son does not take effect, because it

does not extend to the whole of A’s remaining interest in the property.

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5. That section-13 illustration clearly states that the transfer would be done of whole

interest not partial, and as the son was unmarried and there were no issues it can’t be

stipulated during that time of how many issues son may have. If it comes two issues

that interest can’t be whole and property must revert back.

6. That in continuation to above point council wish to throw light on section 5 of the act

which mandate transfer of property inter vivos only , so overcome this predicament as

prior interest is created in living person on the date of transfer, which was created on

the son for instance in the present case. Further the prior interest transferred to a living

person is always a lifetime interest, which clearly means he can enjoy property but

can’t alienate it. So the one with prior interest is not a beneficiary with whole rights.

7. That so Amit created an interest on his son, which is a prior interest for the Amit son’s

son, which is not in existence or unborn. Here court can clearly observe that the

interest was not made absolute for grandson. So when the words was written in the

sale deed they becomes void because that is not providing absolute interest to the

Amit grandson instead talking about the whole generation and then to Bharat Sahu.

8. That so in the present case Amit had created a life interest in favor of Bharat as well

as for his unborn descendant, which is in violation of section-13 and not fulfilling the

very essence of the concept of transfer to the unborn person.

9. That further moving ahead the respondent wants to take notice of section-14 of

Transfer of Property Act 1882 which is Rule against Perpetuity and says that No

transfer of property can operate to create an interest which is to take effect after the

life-time of one or more persons living at the date of such transfer, and the minority of

some person who shall be in existence at the expiration of that period, and to whom, if

he attains full age, the interest created is to belong.

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10. That by reading section-4 it can be clearly understood that the current transfer of the

two rooms is in violation of the section 14.According to the transfer had taken place

latest during the life time of prior interest and conception of beneficiary otherwise the

transfer fails. Vesting of interest can’t be postponed beyond the life of the last prior

interest holder and minority of the ultimate beneficiary.

11. That also perpetuity is a disposition which makes a property incapable of transferred

for an indefinite period which is done in present case that the property was transfer to

indefinite Amit’s lineal descendant and then to Bharat. Therefore this transfer is void.

12. That the essential of section 14 is that the transfer can be created in favor of interest of

an unborn child but the unborn person must be in womb or born at the expiration of

the interest of the living persons and both the essential fails in the current case as

when Amit’s son died he had no child. Hence transfer failed at very moment.

13. That defendant also wants to focus on section 16 of Transfer of Property Act which

explains that whereby the reason of rules contained in section 13 and section 14, an

interest created for the benefit of a person fails, then any interest created in the same

transaction for subsequent transfers shall also fail.

14. That in the present case the transfer in favor of Amit’s son was valid but the interest

failed in the favor of Amit’s son’s unborn son as a limited interest was created in

favor of him. Also as per section 16 the subsequent transfer which is to take effect or

upon failure of such prior interest will fail, hence transfer in favor of Bharat also

failed.

15. That the 1934 case of Girjesh Dutt v. Duttadin from High Court of Oudh also

establish claim of respondent over the disputed property.

__________

1. Girjesh Dutt v. Duttadin, 1934 HC,Oudh

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 In this case the briefs facts were that Mr.Sugga made a gift deed in favor of Mrs Ram

Kali for life, then after her life to son or grandson of Ram Kali and if there is no son

and grandson alive at Ram Kali’s death then to her daughters for life.It further states

that if there were no sons, grandsons or daughters then to Data Din. Mrs Ram Kali

died issueless.

The Court found that, “18. …..the gifts over in favor of the sons or grandsons was

related to absolute interest and clearly valid u/s 13 but the gifts over to daughters was

void because the transfer in their favor related merely to a limited interest ……”

“19. ………. by analyzing the section 16 court found that the Dutta Din would not be

getting any property as it seems to be fully covered by the words of section 16 “upon

failure of prior interest”. The court already held that the interest created for the

benefits of the daughters fails by reasons of section 13 of Transfer of Property Act

and it is also clear that the interest created in favor of Data Din is an interest created

in the same transaction.

16. That due to this in the present case also Bharat Sahu is not entitled to the two disputed

rooms.

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ISSUE 4

MRS. RIDHIMA IS LEGALLY ENTITLED FOR THE POSSESSION AND

OWNERSHIP OF THE DISPUTED TWO ROOMS

1. That it is humbly submitted before the Hon’ble High Court that Mrs. Ridhima

Dehuri, the legal wife of late Amit Dehuri is entitled to possess the two rooms of the

house.

2. That with the help of all the other three above arguments submitted, counsel of

Opposite party strongly claim the legal rights of the widowed wife for the ownership

and possession of the 2 disputed rooms.

3. That with the effect of section 10, 13, 14 and 16 , the disputed property will revert

back to the heirs of the seller and the heirs is having the right to free enjoyment and

Absolute Interest over the property.

4. That the respondent also renders the support of a case law of Ram Nawaz And Anr.

vs. Nankoo, AIR 1926, all India 283.

The owner executed a sale deed of his land except the 2 bighas of land, in favour of

the buyer. With respect to remaining 2 bighas of his land, he mentioned in the

documents that:

Remaining 2 bighas of his land should remain with the owner possession for life and

after his death in the possession of his descendants. He further mentioned that neither

he nor his lineal descendants should have any right to alienate the property.

Hence, according to the sale deed took possession of the property. Owner’s heir filed

a suit to recover the possession of the property on the ground that the deed was void.

________________

2. Ram Nawaz And Anr. vs. Nankoo, AIR 1926, all India 283.

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 Here the owner had created a life estate in his favor as well his unborn descendants.

According to section 13, of T. P. Act, 1882, only absolute interest can be created in

his favour of an unborn person. Also, terms of the documents show that the property

was made inalienable for an unlimited number of generations.

That the court held that, the condition of the documents was repugnant to law. The

owner’s heirs had title over the property.

5. That in the present case further respondent argues that respondent has already

peacefully enjoyed the property for more than 20 years without any interruptions.

Thus as per section-25 of Limitation Act, 1963, Mrs. Ridhima has every right over

the property.

Sec. 25 of the Limitation Act , 1963, provides that:

Where the access and use of light or air to and for any building have been (i)

peaceably enjoyed, (ii) as an easement, (iii) and as so right, (iv) without interruption,

and (v) for 20 years (30 years in the case of property belonging to the Government),

then such right to such access and use of light or air becomes absolute and

indefeasible.

6. That it is also further submitted that due to failure of prior interest as per the

condition Mrs Ridhima Dehuri has very right to inherit the two rooms in accordance

to Law of succession.

MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-16

 PRAYER

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

Hon’ble Court may graciously be pleased to adjudge and declare:

That to uphold the decree passed by the Hon’ble District Court.

AND / OR

Any other just and equitable order as it deems fit in the interest of equity, justice and
good conscience.

All of which is most humbly and respectfully submitted.

PLACE – CUTTACK S/d_____________________________

DATE-
COUNSEL FOR THE RESPONDENT

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