MOOT COURT COMPETITION 2022

Before

BEFORE THE CIVIL COURT OF ___

JURISDICTION UNDER SECTION 9 OF THE CODE OF CIVIL

PROCEDURE 1908

IN THE MATTER BETWEEN

P …………………………………………………..……..…………..PLAINTIFF

V.S

Q,M,F&G. ………………………………………………… ……..DEFENDANT

MEMORIAL ON THE BEHALF OF THE PETITIONER

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 TABLE OF CONTENTS

TABLE OFABBREVIATIONS ……………………………………………………….3

TABLE OF AUTHORITIES .........................................................................................4
STATEMENT OF JURISDICTION ………………………………………………….6
STATEMENT OF FACTS .............................................................................................7
ISSUE RAISED ..............................................................................................................8
SUMMARY OF ARGUMENTS....................................................................................9
WRITTEN PLEADINGS...............................................................................................11
PRAYER .........................................................................................................................26

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 TABLE OF ABBREVIATIONS

ABBREVIATION EXPLANATION
& And
AIR All India Report
Anr. Another
Art. Article
BHC Bombay High Court
Cons. Constitution
HC High Court
HMA Hindu Marriage Act
Hon’ble Honorable
IPC Indian Penal Code
Guj Gujarat
OHC Orissa High Court
Ors. Others
S. Section
SCC Supreme Court Case
SCR Supreme Court Report
THC Tripura High Court
U/s Under Section
UOI Union of India
V. Versus

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 TABLE OF AUTHORITIES

CASES

[A] CASES

1. G. Narasimulu&Ors. v. P. BasavaSankaram&Ors., AIR 1925 Mad. 249.

2. State Bank of India v. Ghamandi Ram (dead) through Gurbax Rai, (1969) 2 SCC 33
3. Shashikalabai (Smt) v. the State of Maharashtra & Anr., (1998) 5 SCC 332.
4. Surjit LalChhabda v. Commissioner of Income Tax, (1976) 3 SCC 142.
5. Controller of Estate Duty, Madras v. AlladiKuppuswamy, (1977) 3 SCC 385.
6. Abhilasha v. Parkash & others, 2002
7. Vijaykumar Jagdishrai Chawla vs. Reeta Vijaykumar Chawla, No.A-2320/2007
8. Smt. Sushila Bai vs Bisauharam, 4 May ,1962
9. Mangammal v. T.B. Raju, (2018) 15 SCC 662.
10. Smt. Hemalatha v/s Sri.Venkatesh and Ors, WRIT PETITION NO.39982 OF 2018
(GM-CPC)
11. Prakash vs. Phulavati, SLP (C) NOS.21814 OF 2008
12. Laxmi &Co. V. Anand R Deshpande, 12,19772.

ONLINE DATABASES

1. SCC blogs

2. West law

3. Sci.gov.in

4. Judis.in

5. Manupatra

CONSTITUTIONS &STATUTES

iv
1. Constitution of India, (1950)

2. Hindu Joint Family Act, 1956

BOOKS

v
1.D. D. Basu, Constitution of India

2. Y.P Bhagat LLM, Partition of Joint Family Property

3. Aileen D. Ross, The Hindu Family

STATEMENT OF JURISDICTION

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The complainant have approached the family court, that has inherent jurisdiction to
undertake, entertain and lose this plaint by virtue of Section 9 of The Civil Procedure Code of
1908.

It states that,

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits
of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.

STATEMENT OF FACTS

BACKGROUND

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 Plaintiff P'herein is that the son of "X person of a Hindu Joint Family. Except for the
complainant, 'X' had each other son specifically 'Q' and 2 daughters namely, 'F' and 'G'. 'X'
died within the year 2001 jilting the said two daughters and two sons. Once his death, in the
year 2002 plaintiff filed the current suit for partition of joint family property and for separate
possession of the suit property, represented in Schedule B to E in the plaint during which his
two sisters, one brother and his mother were clothed as defendants. it had been stated that the
he at the side of his brother 'Q' and mother 'M' i.e. widow of 'X' were in joint possession of
the said properties as coparceners. That his 2 sisters i... 'F' and 'G' weren't the coparceners
within the said joint family as they were born before the enactment of Hindu Succession Act,
1956 (hereinafter noted because the 'Act). it had been conjointly pleaded that they were
married daughters and at the time of their wedding they'd received gold and cash and had,
hence, relinquished their share.

His 2 sisters, being litigator Nos. 1 and 2 respectively, contested the suit by filing their joint
written statement during which they denied the contents of the plaint and claimed that they
were conjointly entitled to share within the joint family properties, being daughters of 'X' and
for the explanation that he had died once coming back into force the Act of 1950. Throughout
the pendency of this suit, section vi of the Act was amended in 2005. once the same
amendments defendant Nos. 1 and 2 with the permission of the Court filed Associate in
Nursing amended written statement during which it had been specifically averred bat rights
of the litigator Nos. 1 and 2 got crystallized within the year 2005 and that they are entitled to
et share in the partition of the suit property. Defendant No. 3 (brother of Plaintiff) and
defendant No. 4 (mother of Plaintiff) failed to file any written statement.

ISSUE RAISED

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1. Whether the daughters of 'X' namely 'F' and 'G' have a right to claim a share in
his undivided property as a coparcener?

2. Whether the stridhan could be considered as a division of Joint Hindu family

property?

3. Whether the daughters could become party to the partition before the
amendment act, 2005?

SUMMARY OF ARGUMENTS

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 1. Whether the daughters of 'X' namely 'F' and 'G' have a right to claim a share
in his undivided property as a coparcener?

It is humbly contended before this Hon’ble Supreme Court that F&G both the sisters are
married and got gold and money in their marriages. Both F&G are married in a prosporous
family and their in laws families are in better condition in respect of financial condition.
Although both of them claimed their share in the property but the aforesaid coparceners are
P,Q and M yet they claimed share in the property.

2. Whether the stridhan could be considered as a division of Joint Hindu family

property?

It is humbly contended before this Hon’ble Supreme Court thatThe Kerela high court held
that Smt. Hemalatha v/s Sri.Venkatesh and Ors 1. holding that in a suit for partition, the
properties which had been given as dowry or otherwise at the time of marriage of the
daughter plaintiff, claiming a right of partition under Section 6 of the Hindu Succession Act,
would be amenable for partition and the same would have to be included in a suit for
partition.

3. Whether the daughters could become party to the partition before the
amendment act, 2005 ?

It is humbly submitted that before this Hon’ble Supreme Court that the Hindu Undivided
Family means a family of people descended from a common ancestor and are also related to
each other by birth or marriage. Daughters could only be part of this HUF till their marriage.
Upon marriage, the daughter would cease to be a member of the HUF of the father and would
no longer be entitled to the right of maintenance or a share in HUF property, if the property
were partitioned. As only a coparcener was entitled to become the Karta of the HUF,
daughters were not entitled to become a Karta of the HUF and manage its affairs

WRITTEN PLEADINGS

ISSUE 1
1
Smt. Hemalatha v/s Sri.Venkatesh and Ors, WRIT PETITION NO.39982 OF 2018 (GM-CPC)

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 Whether the daughters of 'X' namely 'F' and 'G' have a right to claim a share in his
undivided property as a coparcener?

It is humbly submitted that before this Hon’ble Supreme Court, in a joint Hindu family every
son by birth becomes a coparcener, and because of birth, the son “P” became entitled to be a
coparcenerinthejoint Hindufamily property and is entitledto partition with or without
reference to the death of the Karta of a joint Hindu family.

A Hindu joint family consists of male members descended lineally from a common male
ancestor, together with their mothers, wives or widows, and unmarried daughters bound
together by the fundamental principle of a Sapindaship. The concept that the Hindu joint
family consists of unmarried daughters itself eliminates married daughter from the
coparcenary. The same has been upheld by the court in G. Narasimulu&Ors. v. P.
BasavaSankaram&Ors.2and State Bank of India v. Ghamandi Ram (dead) through Gurbax
Rai3, where it was stated that “A joint family may consist of a single male member, widows
of deceased male members, unmarried daughters. This body is purely a creature of law and
cannot be created by an act of parties. This judgment of the court has made it clear that
married daughters are eliminated from the Hindu joint family. Another judgment that
supports the contentions is, In the light of the decision in Shashikalabai (Smt) v. the State of
Maharashtra & Anr.,4, the past transactions cannot be reopened. Thus, the daughter, whose
coparcener father, was alive on the date of incorporation of provisions of section 6, will be
treated asa coparcener. Any other interpretation would cause unjust consequences. Hence,
“F” and “G” are not entitled to any right in the property as “X” has passed away before the
implementation of this Act.

The decision in Prakash v. Phulavati adopted the correct interpretation of the 2005
Amendment. Married daughters are not considered as part of the father's joint family. They
were recognised as Class I heirs that, by itself, did not make them part of their father's joint
Hindu family. Relying upon Surjit Lal Chhabda v. Commissioner of Income Tax, (1976) 3
SCC 1425. A married daughter ceases to be a member of the father's family and
becomes a member of her husband's family.

2
G. Narasimulu & Ors. v. P. Basava Sankaram & Ors., AIR 1925 Mad. 249.
3
State Bank of India v. Ghamandi Ram (dead) through Gurbax Rai, (1969) 2 SCC 33
4
Shashikalabai (Smt) v. the State of Maharashtra & Anr., (1998) 5 SCC 332.
5
Surjit Lal Chhabda v. Commissioner of Income Tax, (1976) 3 SCC 142.

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 The second reason for not including “F” and “G” in the partition is that the amendment Act
of 2005 doesn’t have a retrospective effect but has a retroactive effect due to which a married
daughter can only be entitled to partition if her father is alive on the date to the
implementation of this amendment. A Hindu coparcenary is said to have seven
essential characteristics, which include that the interest of a deceased member survives on his
death and merges in the coparcenary property as observed in Controller of Estate Duty,
Madras v. AlladiKuppuswamy.6 As a result, if the father or any other coparcener has died
before the Amendment Act, 2005, the interest of the father or another coparcener would have
already merged in the surviving coparcenary. Consequently, there will no coparcener alive,
from whom the daughter will succeed. Thus, the daughter can succeed only in the interest of
living coparcener as on the date of enforcement of the Amendment Act. This judgement
supports the contentions that a Daughter would only inherit from the coparcenary property if
the father would have died after the implementation of the 2005 amendment.

The third reason why “F” and “G” are not entitled to share in the propertyis that both the
sisters are married in a prosperous family and the financial background of their in-laws is
much more strong than “P’s”. Although both of them claimed their share in the property but
the aforesaid coparceners are P,Q and M yet they claimed share in the property. Hence, they
are excluded from this partition as according tot the above contentions the Hindu Succession
Act doesn’t apply.

1. Section 21 of the Hindu Adoption & Maintenance Act, 1956-

“states the rights of the dependants in which dependants are Father, Mother, Widow, Son,
Grandson, Great grandson, Great granddaughter, Widowed daughter, any widow of son or
grandson, the illegitimate son, the illegitimate daughter, not including married daughter
which means after marriage, the daughter is the responsibility of her husband and should be
maintained by her husband first”.

Acc. To Section 125 of CrPC provides that who can seek maintenance (1) if any person
having sufficient means to neglect or refuses to maintain—(c) his legitimate or illegitimate
child (not being a married daughter) who has attained majority, where such child is, by
reason of any physical or mental abnormality or injury unable to maintain herself.

In the Case of Abhilasha v. Parkash & others7it was held by Hon’ble Supreme Court that
the unmarried daughter was entitled to get maintenance until she becomes a major, or she is
6
Controller of Estate Duty, Madras v. Alladi Kuppuswamy, (1977) 3 SCC 385.
7
Abhilasha v. Parkash & others, 2002

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 unable to maintain herself. Going strictly by Section 125(1)(c) of the CrPC, the ASJ refused
to consider her plea for maintenance from her father until her marriage.

2. Vijaykumar Jagdishrai Chawla vs. Reeta Vijaykumar Chawla 8 it was held that by
referring to Section 20 of Hindu Adoption & Maintenance Act,1956 that the unmarried
daughter is entitled to receive maintenance from her father and the mother is competent to
pursue relief of maintenance for the daughters even if the daughters are staying with her
and if she was taking responsibility of their maintenance.
3. Smt. Sushila Bai vs Bisauharam9 it was held that if a minor daughter is unable to
maintain herself till the age of her majority and after attainment of she does not able
to maintain herself, then her inability to maintain herself does not cease automatically
and such inability to maintain herself makes her entitle for maintenance from her
parents even after the attainment of her age of majority.
4. Therefore, both the sisters are not entitled to get the property as they are married.

The fourth reason why “F” and “G” are not entitled to share in the propertyis that,The logic
of Prakash v. Phulavati has been upheld in Mangammal v. T.B. Raju.10 It was held that
there should be a living daughter of a living coparcener to inherit the property on the date of
enforcement of the amended provisions of the 2005 Act. In this case another reason why ‘F’
and ‘G’ cannot inherit the property is that their father ‘X’ was not a living coparcener at the
time of the enforcement of the 2005 amendment.

The 174th Report of the Law Commission of India proposedin the report that nothing in
theamended section 6 shall apply to a partition that has been effected before the
commencement of the Amendment Act.

The fifth reason why “F” and “G” are not entitled to the undivided Hindu family is that the
joint family property given as dowry, gift, or otherwise during the marriage of the daughter-
plaintiff, who claimed a right of partition with her siblings under Section 6 of the Hindu
Succession Act, would have to be included in the partition. The Karnataka high court made
this observation in a recent judgment while upholding the decision of a City Civil Court in
Bengaluru. “ I am of the considered opinion that a beneficiary of Section 6 of the Hindu
8
Vijaykumar Jagdishrai Chawla vs. Reeta Vijaykumar Chawla,No.A-2320/2007
9
Smt. Sushila Bai vs Bisauharam, 4 May ,1962
10
Mangammal v. T.B. Raju, (2018) 15 SCC 662.

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Succession Act cannot claim a benefit by way of partition as regard to joint family properties
without reference to the properties already received by her at the time of marriage as
dowry/gift or otherwise. The said properties at an undisputed point of time forming part of
the joint family property and the plaintiff having received it, they would also have to be made
part of the partition,” Justice Suraj Govindaraj observed in his order while rejecting
Hemalatha’s petition. And on the basis of the plaint filed by ‘P’, ‘F’ and ‘G’ has been already
given there share of property during the marriage as gifts.

Hence, relying on the above mentioned facts and precedents ‘F’ and ‘G’ the daughter of ‘X’,
do not have a right to claim a share in ‘Xs’ undivided property as a coparcener

ISSUE 2

Whether the stridhan could be considered a division of Joint Hindu family property?

The word “Streedhan” has been derived from the words ‘Stri’ meaning a woman and the
word ‘dhana’ which means property. Therefore on combining these two words, we get
‘property of woman’ and her ‘Streedhan’. This is a concept, which came down all the
centuries from the Hindu Smritis but has today, engulfed all forms of marriages in all visible
castes and regions.

The following was Streedhan in the hands of a woman whether she is a maiden, married
woman or widow.

1. Gifts made to a woman before the nuptial fire.

2. Gifts made to a woman at the bridal procession

3. Gifts made in token of love by father-in-law, mother-in-law

4. Gifts made by father, mother and brother

This cannot be said to be a complete list so gifts made after marriage by a woman’s
husband’s relations or parent’s relations and gifts from sons and relations got added to the list
as so did many more as can be seen here. The question as to if a particular kind of property
acquired by a woman was Streedhan or not also depended upon the source from which the
property was acquired, the marital status of the woman at the time of acquisition whether she
acquired it during her maidenhood, subsistence of marriage or widowhood.  Gifts and
bequests from a woman’s relations during maidenhood, subsistence of marriage or
widowhood is all to be construed as her Streedhan.

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Gifts and bequests from strangers during maidenhood, subsistence of marriage or widowhood
is also Streedhan. In effecting Partition if as an absolute gift or interest in a share is given to a
woman whether during her maidenhood, marriage or widowhood the same amounts to her
Streedhan. Property inherited by a woman becomes her Streedhan or property acquired by a
woman by mechanical arts or by her own exertions during maidenhood, the subsistence of
marriage and during widowhood is Streedhan.

Joint family property given as dowry, gift or otherwise during the wedding of the daughter-
plaintiff, who claimed a right of partition with her siblings under Section 6 of the Hindu
Succession Act, would have to be included in the partition.

The Karnataka HC has made this observation while upholding the decision of a city civil
court in Bengaluru.

“I'm of the considered opinion that a beneficiary of Section 6 of the Hindu Succession Act
can't claim a benefit by way of partition as regard to joint family properties without reference
to properties already received by her at the time of wedding as dowry/gift or otherwise. The
said properties at an undisputed point of time forming part of the joint family property and
the plaintiff having received it, they would also have to be made part of the partition”,Justice
Suraj Govindaraj observed.

The Kerela high court held thatSmt. Hemalatha v/s Sri.Venkatesh and Ors 11. holding that in
a suit for partition, the properties which had been given as dowry or otherwise at the time of
marriage of the daughter plaintiff, claiming a right of partition under Section 6 of the Hindu
Succession Act, would be amenable for partition and the same would have to be included in a
suit for partition.

The single judge bench of Justice Suraj Govindaraj has opined that a beneficiary of Section 6
of the Hindu Succession Act cannot claim a benefit by way of partition as regard to joint
family properties without reference to the properties already received by her at the time of
marriage as dowry/gift or otherwise.

Hence, the gifts given to “F” and “G” by their father at the time of their marriage were there
share of the property and now, they are not entitled to take any further share from the Hindu
undivided family property.

11
Smt. Hemalatha v/s Sri.Venkatesh and Ors, WRIT PETITION NO.39982 OF 2018 (GM-CPC)

xv
 ISSUE 3

Whether the daughters could become parties to the partition before the amendment act,
2005?

5. It is humbly submitted that before this Hon’ble Supreme Court that the Hindu
Undivided Family means a family of people descended from a common ancestor and
are also related to each other by birth or marriage. Daughters could only be part of
this HUF till their marriage. Upon marriage, the daughter would cease to be a member
of the HUF of the father and would no longer be entitled to the right of maintenance
or a share in HUF property, if the property were partitioned. As only a coparcener was
entitled to become the Karta of the HUF, daughters were not entitled to become a
Karta of the HUF and manage its affairs.
6. A HUF or a Hindu Undivided Family means a family of people descended from a
common ancestor and are also related to each other by birth or marriage. Daughters
could only be part of this HUF till their marriage. As both the daughters are born
before 2005, HINDU SUCCESSION ACT 2005 does not apply on them and they are
not entitled to get share in the property.
7. In the case of Prakash &Ors. vs. Phulavati&Ors., daughters’ rights to their parents’
property were first addressed. The Supreme Court ruled in this case that, regardless of
the daughters’ birthdates, “the rights of coparceners under the Amendment Act, 2005
apply to the surviving daughters of living coparceners as on 9th September 2005.”
8. Therefore, if a coparcener’s father passes away prior to September 9, 2005, the
coparcener’s living daughter will not be entitled to the paternal property and will not
be able to inherit it.
9. Daughters are entitled to get a share in the property only after the amendment of the
HINDU SUCCESSION ACT ,2005, and both the daughters are born before 2005,
and also their father As it is mentioned that both the daughters are married in a very
rich and wealthy family. A lot of amount was spend on their marriage. At their
marriage they get a good amount of gold, silver, other gifts and money ,so now they
are not entitled to get share in the property. died before 2005 , the daughters are not
entitled to get any share in the property
10. Section 6(1)(b) and (c) deal with the effects of inclusion of daughter as a
coparcener. Having regard to the plain language and future perfect tense "shall have

xvi
 the same rights," . This sentence indicates that an action will have been completed
(finished or perfected) at some point in the future. This tense is formed with "will"
plus "have" plus the past participle of the verb
11. the only conclusion is that the daughters who are included in the coparcenary will
have the same rights after coming into force of the Amendment Act.
12. the daughter who is declared as coparcener from 9.9.2005 would have the right in a
coparcenary property only from 9.9.2005.

Hence, the daughters could not become party to the partition before the amendment act, 2005,
the amendment of section 6 in the Hindu succession act 1956 gave the rights to daughters in
coparcenary rights, but both “F” and “G” were born and “X” died before the implementation of
2005 amendment.

PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

ANDAUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HON‟BLE COURT.

1. To Allow, Separate possession in the hindu joint family property or not.

xvii
 2. To Reject, f&g both the sisters were entitled to share in the property or not.

3. To Allow, the petition is maintainable or not

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS HON‟BLE
COURT MAYDEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.

PLACE Sd/-

DATE (Counsel for the Appellant)

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