A MOOT COURT MEMORIAL submitted

in partial fulfilment of the requirement for

EXAMINATION of the NINETH
SEMESTER of B.B.A LL.B (FIVE YEAR INTEGRATED
COURSE).

SUBJECT – 5.9.1
LAW OF PROPERTY

SUBMITTED BY – Trapti Pareek

SUBMITTED TO – PROF. AKSHAY SHUKLA
MA’AM

B.B.A LL.B 9TH SEMESTER

TO DEPARTMENT OF LAW
FACULTY OF LAW
JAI NARAIN VYAS UNIVERSITY JODHPUR
342001
 BEFORE THE HON’BLE DISTRICT COURT
AJMER, RAJASTHAN

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

 WHETHER ‘B’ HAS LEGAL RIGHT TO POSSESS AND OWN THE

DISPUTED TWO ROOMS?

1) . 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.

2) 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

3) In the 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) So as decided in the above case, ‘B’ is also not entitled for any property.
  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.

 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 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.
3) 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.