GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

BEFORE THE HONORABLE HIGH COURT OF JUDICATURE

In The Matter Of:

JAMNA DAS - - - - - - APPELLANT

V.

RAM AUTAR PANDE - - - - - - RESPONDENT

COUNSEL FOR THE RESPONDENT: MEGHA SHAWANI

Programme: B.B.A. LL.B.(Hons)
Semester: 1ST

Enrolment Number: 160060403015

-MEMORANDUM FOR THE RESPONDENT-

Marks awarded out of 10 -----------------------------------------

Signature of Faculty ------------------------------------------

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TABLE OF CONTENTS

S. Particulars Page No.

No.
1 INDEX OF ABBREVIATIONS 3
2 INDEX OF AUTHORITIES 4–5
3 STATEMENT OF JURISDICTION 6
4 STATEMENT OF FACTS 7–8
5 ISSUES RAISED 9
6 SUMMARY OF ARGUMENTS 10
7 PLEADINGS AND AUTHORITIES 11
8 PRAYER 12

INDEX OF ABBREVIATIONS

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& And
AIR All India Reporter
Anr. Another
CrPC Criminal Procedure Code
DMC Divorce and Matrimonial Cases
Edn./Ed. Edition
Ltd. Limited
No. Number
HC High Court
SC Supreme Court
SCC Supreme Court Cases
Pg. Page
Re. Reference
Ors. Others
V. Versus
Vol. Volume
Para Paragraph

INDEX OF AUTHORITIES

CASES REFERRED:

SUPREME COURT CASES –

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1. Hari Shankar Lal vs Shambhunath Prasad And Others on 4 May, 1961

2. Mata Din Kasodhan v. Kazim Husain (1891) I.L.R. 13 All. 432.

STATUTES AND OTHER AUTHORITIES – Transfer of property act,

JOURNALS REFERRED -

1. All India Reporters.

2. Indian Law Reporter.

3. Supreme Court Cases.

BOOKS & ARTICLES REFERRED -

LEGAL DICTIONARIES -

1. Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005).

2. Garner B.A., Black’s Law Dictionary, (9th ed., 2009).

3. Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Phrases, (4th ed.),
Sweet and Maxwell, Vol. 4.

4. Mish F.C., Merriam-Webster's Collegiate Dictionary, (11th ed. 2003).

5. Oxford Advanced Learners Dictionary, (7th ed., 2008).

DATABASE REFERRED -

1. http://www.manupatra.com

2. http://www.westlaw.org

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3. http://www.indiankanoon.com

4. http://www.lexisnexis.com

5. http://www.judis.nic.in

STATEMENT OF JURISDICTION

 The plaintiff Lala Jamna Das claimed the sum of Rs. 30,009 together with interest. It
appears that on the 2nd of June, 1913, one Musammat Lakhpati Kunwar made a mortgage in

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favour of Jamna Das. The mortgage consisted of zamiadari property and also mortgagee
rights in other property. On the 21th of November, 1396, Musammat Lakhpati sold the
entire mortgaged property, that is to say, the zamindari and the mortgagee rights, to the
defendant Pandit Ram Autar Pande for the sum of Rs. 41,100 leaving Ra. 40,000 with the
vendee for payment of the money due to Janma Das. On the 9th of February, 1900, Janma
Das sued for sale of the mortgaged property.

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STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon`ble Court the facts of the present case are
summarized as follows:

1. This appeal arises out of a suit in which the plaintiff Lala Jamna Das claimed the sum
of Rs. 30,009 together with interest.
2. It appears that on the 2nd of June, 1913, one Musammat Lakhpati Kunwar made a
mortgage in favour of Jamna Das.
3. The mortgage consisted of zamiadari property and also mortgagee rights in other
property.
4. On the 21th of November, 1396, Musammat Lakhpati sold the entire mortgaged
property, that is to say, the zamindari and the mortgagee rights, to the defendant
Pandit Ram Autar Pande for the sum of Rs. 41,100 leaving Ra. 40,000 with the
vendee for payment of the money due to Janma Das. On the 9th of February, 1900,
Janma Das sued for sale of the mortgaged property.
5. After a considerable amount of litigation he got a decree, but only for the sale of the
zamindari the mortgagee rights were excluded. The sale of the zamindari property
being insufficient to satisfy the decree, the plaintiff, on the 7th of January, 1907,
applied for a decree under section. 90 of the Transfer of Property Act, and after some
further litigation obtained a decree against the judgement-debtors other than the
present defendant.
6. It is alleged that a balance of Rs. 33,009 still remained due.
7. He now brings the present suit alleging that Pandit Ram Autar Pande was a trustee for
him because Rs. 40,000 out of Rs. 44,000 was left in his hands for payment of the
plaintiff's debt.
8. There is no doubt that it was due to certain rulings of tins High Court that mortgagee
rights were excluded from the original decree which Jamna Das obtained on foot of
his mortgage, ever since the case of Ram Shankar Lal v. Ganeah Prasad (1907) I.L.R.
29 All. 385 was decided a mortgagee of mortgagee rights that is, a sub-mortgagee) is

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entitled to pursue his remedy and realize his debt out of the mortgage security, even
though that security be mortgagee rights.

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ISSUES RAISED

The following questions are presented before this Hon’ble court for adjudication in the
instant matter:

ISSUE NO. 1 – Is there a contract between Jamuna Das and Pandit Ram Autar Pande?
ISSUE NO. 2 – Would Jamuna Das recover his mortgage money?

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SUMMARY OF ARGUMENTS

ISSUE NO. 1 – Is there a contract between Jamuna Das and Pandit Ram Autar Pande?
 No, there is no contract between Jamuna Das and Pandit Autar Pande according
to 90th section of THE TRANSFER OF PROPERTY ACT.
 This is under the rule of privity of contracts.
 TRUST, is a well established to the rule of privity of contract this means that is
Musamat Lakhpati makes a promise to Ram autar for the benefit of Jamuna Das
 Jamuna Das can enforce this promise to Ram Autar as constituted himself trustee
of Musammat Lakhpati’s promise for Jamuna Das but this rule a subject to certain
restrictions.
 Mussamat Lakhpati is a promise can be held to be a trustee for a third party only
if he has an intention to create a trust and this intention must be to benefit the
particular third party and not third parties generally.

ISSUE NO. 2 – Would Jamuna Das recover his mortgage money?

 No, it was held by the privy council that since there was no contract between
Jamuna Das and Ram Autar, Jamuna Das could not enforce to recover the amount
from Ram Autar.

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PLEADINGS AND AUTHORITIES

ISSUE NO. 1: Is there a contract between Jamuna Das and Ram Autar Pande ?
 No,there is no contract between Jamuna Das and Ram Autar Pande according to
the TRANSFER OF PROPERTY ACTS.
 According to privity of contracts, no third party can enter between the contract of
existing two people.
 As the contract was between Jamuna Das and Musammat Lakhpati Ram Autar
cannot be held liable in any circumstances.
 Even court held the same judgement , Ram Autar Pande is not liable to pay any
compensation.

ISSUE NO. 2: Would Jamuna Das recover his mortgage money?

 No, according to privity of contract, no third party can enter in an already existing
contract.
 Ram Autar Pande would not be held liable to pay any compensation.
 In order to get his mortgage money, he will have to ask Musammat Lakhpati for it
no matter what the agreement was about.

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PRAYER FOR RELIEF

It is, therefore most respectfully prayed that this Hon’ble Court maybe pleased to:

1. Dismiss the writ petition submitted to the Hon’ble court by the counsel of petitioner in
the matter of Jamna Das v. Ram Autar Pande of 1916.

On behalf of
MR. RAM AUTAR PANDE
(RESPONDENT)

Counsel for the Respondent

MEGHA SHAWANI

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