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FACULTY OF LAW
JAI NARAIN VYAS UNIVERSITY, JODHPUR

A MOOT COURT MEMORIAL SUBMITTED IN PARTIAL

FULFILLMENT OF THE REQIREMENT FOR THE
EXAMINATION OF NINTH SEMESTER OF BA. LL.B. (FIVE
YEAR LAW COURSE)

SUBJECT: 5.9.1
LAW OF PROPERTY

SUBMITTED BY SUBMITTED TO

RAVI SINGH SANKHLA PROF.AKSHYA SHUKLA

MA’AM
 BBA LLB IXth semester
Roll No. 17BAL51058

BEFORE THE HON’BLE DISTRICT COURT

BIKANER, RAJASTHAN

B ……………………….………………….….…..……………….…….. PLAINTIFF
V.
HEIRS OF A ……………….……………….…………….……………… DEFENDANT

ON SUBMISSION TO THE HON’BLE DISTRICT COURT OF BIKANER

ON BEHALF OF DEFENDANT
 TABLE OF CONTENTS

S.no Content Page no.

1. TABLE OF ABBREVIATIONS 4
2. STATEMENT OF JURISDICTION 5
3. STATEMENT OF FACTS 6
4. ISSUES RAISED 7
5. ARGUMENTS 8 to 12
ISSUE 1 8-10

ISSUE 2 11

ISSUE 3 12
5. PRAYERS 13
 TABLE OF ABBREVIATIONS

• V ___________________________________________________________verses
• i.e.__________________________________________________________that is
• IPC_______________________________________________ Indian penal code
• S__________________________________________________________Section
• Vol________________________________________________________Volume
• Sc__________________________________________________ Supreme Court
• CRPC______________________________________ Criminal Procedural Code
 STATEMENT OF JURISDICTION
This Court under section 9 of Civil Procedural Code have proper jurisdiction to entertain the
current matter which is related to dispute of property.

Which was provided in the section 9 of Civil Procedure Code i.e.

Section 9 of the Code of Civil procedure deals with the jurisdiction of civil courts in India. It declares
that the court shall have jurisdiction to try all lawsuits of civil nature accepting suits of which their
cognisance is either expressly or impliedly barred.
Conditions
A Civil court has jurisdiction to decide a suit if two requirements are fulfilled:
1 The suit must be of a civil nature.
2 The cognisance of such a suit should not have been expressly or impliedly barred.

- defendant maintains to file this reply in the proper jurisdiction for the civil suit brought by the
claimant.
 STATEMENT OF FACTS
• ‘A’ is owner of a house having four rooms.

• ‘A’ sold two rooms of his house to buyer ‘B’.

• The sale deed specifies that the remaining two rooms will be enjoyed by ‘A’ and after him
by his son and then after ‘A’s son’s son and so on till the line of lineal descendent continue.
After there remains no one in lineal linage the two rooms will be taken by ‘B’ as owner.

• ‘A’ died and after some time his son also died too without any child.

• ‘B’ now claims for the possession and ownership of the two rooms which are occupied by
the heirs of ‘A’

• Heirs of ‘A’ refuse to transfer possession to ‘B’ and believes to be legal owners.

• ‘B’ moves to court and files suit to claim for possession and ownership of disputed rooms.
 ISSUES RAISED

1. WHETHER ‘B’ HAS LEGAL RIGHT TO POSSESS AND OWN THE DISPUTED
TWO ROOMS?
2. WHETHER THE HEIRS OF ‘A’ ARE LEGALLY ENTITLED FOR THE
POSSESSION AND OWNERSHIP OF THE DISPUTED TWO ROOMS?
3. WHETHER THE CONSIDERATION IN THE SALE WAS LEGAL?
 ARGUMENTS ON BEHALF OF DEFENDANT

I. WHETHER ‘B’ HAS LEGAL RIGHT TO POSSESS AND OWN THE DISPUTED
TWO ROOMS?

1) Council for defendant undisputedly accepts that the claimant is in ownership and
possession of two rooms but strongly reject his claim on disputed other two rooms on
various grounds.
2) The claimant claims by the reference of the clause added by the ‘A’ into sale deed while
selling two rooms, to which the defendant argue that the clause is void as per section 13, 14
and 16 of the Transfer of Property act, 1882.

3) In the present case “A” for the disputed two rooms had created a life interest in favor of his
son who was then unmarried having no issues. Interest was created in favor of his son for
life and after him his son’s son and so on till the line of lineal descendant in the line. And
as per Section 13 of the Transfer of the Property ACT, 1882 only absolute interest can
be created in favor of an unborn person.
4) 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 transfer, subject to a prior 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 of the property.
5) Section 13’s 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) 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) So ‘A’ created an interest on his son, which is a prior interest for the ‘A’ 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 ‘A’s grandson instead talking about the
whole generation and then to ‘B’.
8) So, in the present case “A” had created a life interest in favor of ‘B’ as well to his unborn
descendants, which is in violation of section 13 and not fulfilling the very essence of the
concept of transfer to the unborn person.

9) Further moving ahead, Council for the defendant wants to take notice of section 14 of
Transfer of Property act 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.”
10) By reading section 14 it can be clearly understood that the current transfer of two rooms is
in violation of section 14. According it the transfer had to taken place latest during the life
time of prior interest and conception of beneficiary otherwise the transfer fails. Vesting of
interest cannot be postponed beyond the life of the last prior interest holder and minority of
the ultimate beneficiary
11) 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
A’s lineal descendent and then to B. Therefore, this transfer would be void.
12) 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 A’s
son died he had no child. Hence transfer failed at very moment.
13) The defendant also wants to focus on Section 16 of Transfer of Property act which
explains that where by 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) In the present case, the transfer in favor of A’s son was valid but the interest failed in the
favor of A’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 after or upon failure of such prior
interest will also fail, hence transfer in favor of ‘B’ also failed.

15) The 1934 case of Girjish Dutt v. Data Din from High Court of Oudh also establish the
claim of defendant over the disputed property.
In this case the brief facts were that Mt. Sugga made a gift deed in favor of Mt
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. Mt. Ram Kali died issueless.
The court finds 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 gift over to the daughters was
void because the transfer in their favor related merely to a limited interest…..”.
 “19. …..by analyzing the section 16 court find that the Data Din would not be
getting any property as it seems to be fully covered by the words of section 16 “upon
failure of such prior interest” . The court already held that the interest created for the
benefit of the daughters fails by reasons of section 13, T.P. Act and it is also clear that the
interest created in favour of Data Din is an interest created in the same transaction.
16) So as decided in the above case, ‘B’ is also not entitled for any property.

II. WHETHER THE HEIRS OF ‘A’ ARE LEGALLY ENTITLED FOR THE
POSSESSION AND OWNERSHIP OF THE DISPUTED TWO ROOMS?

1) With taking the reference from the detailed arguments submitted in issue I counsel for
defendant strongly claim the legal rights of Heirs of ‘A’ over the ownership and possession
of disputed property of Two rooms.
2) With the effect of section 13, 14, 16 and 10 of the act the disputed property will revert back
to the heirs of ‘A’ and heirs are entitled for the absolute rights over it.
3) Defendants also derives support from the case of Ram Newaz v. Nankoo, AIR 1926 All
283. ‘A’ executed a sale deed of his land except for the 2 bighas of land, in favour of B.
With respect to remaining 2 Bighas of his land, he mentioned in the document that:
Remaining 2 Bighas of his land should remain in his (A’s) 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.
 And if none of his lineal descendants is alive then the B would become the owner of
the property. A died a little later of the execution of the deed and his son died childless.
So, according to deed B took possession of the property. A’s heir filed a suit to recover
the possession of the property on the ground that the deed was void. Here A had
created a life estate in his favor as well as his unborn descendants. According to
Section 13, only absolute interest can be created in favor of an unborn person. Also,
terms of the document show that the property was made inalienable for an unlimited
number of generations.
The hon’ble court held that, the condition of the document was repugnant to law. A’s
heirs had the title over the property.

III.WHETHER THE CONSIDERATION IN THE SALE WAS LEGAL?

1) The defendants want to take defense of the section 10 of the Transfer of Property act which
restrain from any condition of alienation. Section 10 stipulates that any clause imposed on
the transferee which would amount to an absolute restraint on the right of the transferee to
dispose of his interest in the property shall be void.
2) Here in the present case it is said in the sale deed that the Two Rooms will be with ‘A’ and
after him by his son and then after ‘A’s son’s son and so on till the line of lineal descendent
continue. After there remains no one in lineal linage the two rooms will be taken by ‘B’ as
owner. So if any time any lineal descendant want to sell any or two rooms, then ‘B’ may
 bring suits and stay the descendant to carry that transaction on the ground that ‘B’ 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 ‘A’ was to restrain any of his
descendants to sell or enjoy the absolute rights of the property. Hence defendant found it
void under section 10 of the said act.

4) Also the clause of sale deed does not fulfill the main essential of contract act, that is, price.
Although B pay price for the two rooms, but there is no payment for the disputed two
rooms by the B. In contract nothing can go free there should be something in return for the
thing sold. Further B has no blood relations with A, and this was a sale deed, not any other
deed like gift deed where payment can be ignored. Hence Defendant strongly argues that
this sale also not form valid contract to be executed.

PRAYERS
Petitioner humbly request the Honorable court –

1. To establish Heirs of ‘A’ as rightful owner of the disputed property.

2. To order correction into the sale deed.

3. To order ‘B’ to bear the cost acquired by the heirs of ‘A’ during litigation.

4. And pass any order that it may fit in the ends of justice, equity and good conscious.