Code: 20200401111

UNITEDWORLD SCHOOL OF LAW,

KARNAVATI UNIVERSITY

FAMILY LAW-II MOOT COURT ASSIGNMENT

Before

THE HON’BLE HIGH COURT OF BOMBAY

Under

ARTICLE 225 OF THE CONSTITUTION OF INDIA

IN THE MATTER UNDER

SHALINI SUMANT
RAUT & ORS. APPELLANT

Versus

MILIND SUMANT RAUT

AND ANR RESPONDENT

SUBMISSION ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS .............................................................................................................................. 3

INDEX OF AUTHORITIES ................................................................................................................................ 4
STATEMENT OF JURISDICTION ................................................................................................................... 6

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6
STATEMENT OF FACTS ................................................................................................................................... 7

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7
STATEMENT OF ISSUES .................................................................................................................................. 8...........................
SUMMARY OF ARGUMENTS .......................................................................................................................... 9

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ARGUMENTS ADVANCED
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10

........................................................................................................................................................ 11
Prayer
..............................................................................................................................................................................
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Submission on behalf of the Respondent

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LIST OF ABBREVIATIONS

Hon’ble Honourable

Ors Others

V. Versus

EDN. Edition

AIR All India Reporter

SC Supreme Court

HSA Hindu Succession Act

NO. Number

HUF Hindu Undivided Family

Para Paragraph

Submission on behalf of the Respondent

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INDEX OF AUTHORITIES

ACTS AND STATUTES

1. THE CONSTITUTION OF INDIA, 1949.
2. HINDU SUCEESION ACT,1956.

BOOKS REFERRED
1. VN Shukla, Constitution of India, 13 EDN. EBC Explorer 2017.
th

2. Mulla, Hindu law,24th EDN, Lexis Nexis.

WEBSITES REFERRED

1. www.manupatra.com
2. www.scconline.com
3. www.indiankanoon.com
4. https://egazette.nic.in/WriteReadData/2005/E_45_2012_114.pdf

Submission on behalf of the Respondent

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TABLE OF CASES CITED

S.No Name of Case Pages

1 Commissioner of wealth –tax Vs Chander Sen AIR1986 SC1753 10

2 Commissioner of Income-tax, Madras Vs. P. L. Karuppan Chettiar 11

114 ITR 523
3 Commissioner of Income-tax, U. P. Vs. Ram Rakshpal, Ashok Kumar 12
(1968) 67 ITR 164

4 Shrivallabhdas Modani Vs. Commissioner of Income tax M. P.-I, 138 12

ITR 673 :(1983 Tax LR 559)

Submission on behalf of the Respondent

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STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THE HON’BLE HIGH COURT OF

INDIA UNDER ART. 2251 OF THE CONSTITUTION OF INDIA.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS.

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Jurisdiction of existing High Courts Subject to the provisions of this Constitution and to the provisions of any law of the
appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of,
and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the
administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court
and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement
of this Constitution: Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts
with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was
subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such
jurisdiction
Submission on behalf of the Respondent
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STATEMENT OF FACTS

1. In this case, the plaintiffs and the defendants approached the Court seeking for a declaration
that they both were co-owners of the suit properties for ascertaining of the share claimed by
them, for partitioning of suit properties as per such shares, and for the possession of such
partitioned share.

2. The parties claimed through one Rajaram Balkrishna Raut (Rajaram), who died intestate on
the 23rd of November, 1991, leaving behind 8 children ( 5 sons and 3 daughters), and
several grandchildren various ancestral properties. The children and the grand children who
are the children of the pre-deceased or the deceased children of Rajaram were the parties to
the suit. The great grand-children of Rajaram were not sought to be made parties, though the
suit properties were claimed to be ancestral properties of Rajaram.

3. In the present case, the son and the grandson of plaintiff No. 4 had sought to be made party-
defendants to the suit. They claimed that they are coparceners in the coparcenary property of
the joint family, and claimed to be entitled to their share therein separately and individually
from plaintiff No. 4 who, according to them, was unable to manage his affairs and claim his
share.

4. According to the son and the grandson of Plaintiff no. 4, the parties to the suit had taken
advantage of the old age of their father/grand-father who resided, alone, which may have
adversely affected his share and consequently their shares. They had claimed their right by
virtue of their birth in the suit properties which were claimed to be coparcenary properties.

5. The plaintiffs as well as the defendants contended that during the lifetime of plaintiff No. 4,
his son and grandson would not have any share in the suit properties and, therefore, have no
locus to be joined as party-defendants. The parties to the suit had also disposed of two of the
properties in the suit. Hence the defendants applied for deletion of two immovable
properties. They claimed that the suit had become in fructuous with regard to those
properties and there is no relationship between the parties with regard to those properties.

6. It is contended by the plaintiffs as well as the defendants including plaintiff No.4 that during
the lifetime of plaintiff No.4, his son and grandson would not have any share in the suit
properties and, therefore, have no locus to be joined as party defendants.

Submission on behalf of the Respondent

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STATEMENT OF ISSUES

1) Whether or not a son or a grandson of a coparcener claiming an interest in the

joint family properties/coparcenary properties would be entitled to claim such
interest by virtue of his birth?

(i) Whether or not the plaintiff should be entitled on coparcenary property ?

(ii) Whether or not the plaintiff no.4 should be made party to the suit?

Submission on behalf of the Respondent

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SUMMARY OF ARGUMENTS

1) Whether or not a son or a grandson of a coparcener claiming an interest in the

joint family properties/coparcenary properties would be entitled to claim such
interest by virtue of his birth?

(i) Whether or not the plaintiff should be entitled on coparcenary property ?

It is most humbly submitted by the Respondent that the claim which plaintiff no.4 is
asking for is just to manipulate the court and is wasting the time of this Hon’ble Court.

(ii) Whether or not the plaintiff no.4 should be made party to the suit?

It is most humbly submitted by the Respondent that the Plaintiff No.4 has no loucs
standi to file this application in this Hon’ble High Court of Bombay.

Submission on behalf of the Respondent

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ARGUMENTS ADVANCED

1) Whether or not a son or a grandson of a coparcener claiming an interest in the

joint family properties/coparcenary properties would be entitled to claim such
interest by virtue of his birth?

(i) Whether or not the plaintiff should be entitled on coparcenary property ?

It is most humbly submitted by the Respondent that the claim which plaintiff no.4 is asking for
is just to manipulate the court and is wasting the time of this Hon’ble Court.

It is most humbly submitted that as per Hindu Succession act no such right is being given to the
plaintiff no.4 as he is demanding.
According to Section 8 of the Hindu Succession Act, 1956 after the death of a male Hindu, who
dies intestate (without leaving a Will behind him), his property shall devolve to his immediate
heirs that is class I heir and which doesn’t include the son’s son’s which was also used by the
Hon’ble Supreme court in case of Commissioner of wealth –tax Vs Chander Sen 2 in para 16A
of the judgment that, therefore, the son's son who is not mentioned as an heir under Class I could
not get any right in the property of his grand-father and the property devolved upon the son under
the HSA and did not constitute HUF property consisting of his own branch including his sons. .
In this case, Rajaram expired on 23.11.1991 leaving behind 8 heirs being his 5 sons and 3
daughters. Some of them have expired leaving behind their widow and sons and daughters. These
are the parties to the suit. Rajaram died intestate. Rajaram’s succession opened on 23.11.1991.
His interest in his ancestral property which was Mitakshara coparcenary property, therefore,
devolved upon his sons and daughters by intestate succession under Section 8 of the Hindu
Succession Act and not by survivorship. All his sons and daughters would share equally per
capita as tenants in common. Upon their death their children would take their share. Under that
succession so long as the sons and daughters of Rajaram are alive, the grandsons or the great-
grandsons of Rajaram would not succeed at all to any interest in the coparcenary property that
Rajaram had. In the case of Commissioner of Wealth-tax, Kanpur v. Chander Sen, the Supreme
Court held that the heirs in Class I do not include the grandson being the son of a son living.
Hence it is held that when the son as a Class I heir inherits the property, he does so in his
individual capacity. The son takes individually in his individual capacity and not as Karta of his
own family.
The Supreme Court in the judgment in the case of Chander Sen (supra) held in para 11 that the
heirs in Class I do not include the grandson being the son of a son living. Hence it is held in para
12 of the judgment that when the son as a Class I heir inherits the property, he does so in his
individual capacity. Under Section 4 of the HSA that provision would override the old uncodified
Hindu Law as being inconsistent with such succession under Section 8 of the HSA. The son
taking individually would take per capita and not per stripes and as tenant-in-common and not as
joint tenant under Section 19 of the HSA. He would be entitled to will away that property by a
testamentary disposition under Section 30 of the HSA. It is held in para 14 of the judgment that
when a son gets his share in a HUF (which is by partition only) to which Section 8 is applied,
which includes the son but not 25 CHS 492/12 the grandson, the son takes individually in his

2
AIR1986 SC1753
Submission on behalf of the Respondent
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individual capacity and not as Karta of his own family. Therefore that property would not
continue joint and would not taken to be joint property. The son who so inherits, inherits it as his
own separate property and his son would not have any right as a coparcener therein.

After the death of Rajaram when the family continued joint but with diminution of the share of
Rajaram and upon the death of Sumant, another son of Rajaram on 22.01.2008, the interest of
Sumant in the coparcenary also devolved by succession, he having left a widow and a daughter as
his female relatives (heirs). The daughter of Rajaram, Sunanda having died in 2001, the share in
the coparcenary would not augment or diminish, she not having been a coparcener until her
death; she is only an heir of the deceased Rajaram who would have succeeded to his Rajaram’
interest in his ancestral properties.
The applicants, therefore, do have a share in the HUF properties, being the ancestral properties of
Rajaram left after the interest of Rajaram and Sumant.
In case of Additional Commissioner of Income-tax, Madras Vs. P. L. Karuppan Chettiar 3it
was case of partition effected between a father, his wife, their sons and daughter-in-law. The
father was separated. The son constituted HUF with his wife and his subsequently born son.
When the father died leaving behind his widow and the divided son who was Karta of his HUF as
his legal heirs under Section 8 of the HSA, those 2 persons succeeded him to the partitioned
properties of the father/husband. They could divide the properties amongst themselves. Since the
father had left behind a female relative (heir) being his widow, the properties succeeded to the
widow and the son as per the provisions of Section of the HSA as per Section 8 thereof, Hence
the Supreme Court considered in para 16 of the judgment in the case Chander Sen(supra) upon
considering the case of Madras High Court that when a Hindu male died, his sons and grandsons
would have inherited in such property. Under Section 8 his sons' son would get excluded and the
son alone would inherit the property to the exclusion of the grandson. No interest would accrue to
the grandson in the property left by his grand- father. (This would be because Section 6 would
come into play. There would be a notional partition. The property would succeed to the son and
would not 27 CHS 492/12 survive to him. The succession is to the son as the Class I heir. The
grandson is excluded from Class I).

(i) Whether or not the plaintiff no.4 should be made party to the suit?

It is most humbly submitted by the Respondent that the Plaintiff No.4 has no loucs standi to
file this application in this Hon’ble High Court of Bombay.

The entire of the properties would not succeed to his heirs. The other coparceners
would continue their coparcenary interest in the remaining ancestral joint family properties.
They would be entitled to ask for partition of the coparcenary properties to the extent of the
interest which continued joint. In a large family such as this the interest of the father would be
equal to that of his sons, sons' sons and sons' sons' sons in the coparcenary property. Hence the
entire property cannot devolve by succession. Only that limited interest would devolve by
succession. The other coparceners, including the applicants would be entitled to demand
partition of the ancestral joint family properties less the interest of Rajaram and other such
deceased coparceners.

3
114 ITR 523
Submission on behalf of the Respondent
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In the case of The case of Commissioner of Income-tax, U. P. Vs. Ram Rakshpal, Ashok
Kumar 4 a son and a father of HUF which was partitioned. The assets inherited by his son from
his father from whom he had separated by partition was held not capable of being the income of
the HUF of the son. This was because partition took away the character of coparcenary property.
The father left behind his widow, married daughter, his son and his son's son. The estate left by
him devolved by succession as per Section 6 of the HSA under Section 8 thereof. There were,
therefore, 3 26 CHS 492/12 shares; for his widow, his married daughter and the son. There was
no share for his sons' son Ashok Kumar.

In another case of Shrivallabhdas Modani Vs. Commissioner of Income tax 5, of Madhya

Pradesh 28 CHS 492/12 High Court was the case where no coparcenary was subsisting between
a Hindu and his sons at the time of the death of the father. It was held that such property, which
was not ancestral property, received by the son on his father's death could not be blended with
other property, in that case the property allowed to the son on partition. Accordingly that
property devolved by succession under Section 8 of the HSA. It was held by the Supreme Court
in case Chander Sen (supra) of para 16A of the judgment that, therefore, the son's son who is
not mentioned as an heir under Class I could not get any right in the property of his grand-father
and the property devolved upon the son under the HSA and did not constitute HUF property
consisting of his own branch including his sons.

From the above mentioned case the Hon’ble court can take a note that plaintiff no. 4 has no
entitle to coparcenary property, so to make plaintiff no. 4 as party to suit is of waste of time of
this Hon’ble Court and irrational .

4
(1968) 67 ITR 164
5
M. P.-I, 138 ITR 673 :
(1983 Tax LR 559)
Submission on behalf of the Respondent
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PRAYER

In the light of the facts stated, issues raised, arguments advanced and authorities cited, may this
Hon’ble Court be pleased to:

(i) Dismiss the Civil Suit.

(ii) In the alternative declare and adjudge that the plaintiff no. 4 has no loucs standi
to file this suit in this Hon’ble Court.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

All of which is most respectfully submitted by

Counsel for the Respondent
20200401111

Submission on behalf of the Respondent