BEFORE THE HONORABLE SUPREME COURT OF INDIA

CIVIL CASE (CIVIL) NO. 1798-1799/2014

Inthematterof

Mrs. M S Bhavani and Ors -------------------------- Appellant

V/s

Mr. M S Raghunandan-------------------------------Respondent

MEMORIAL SUBMITTED BY COUNSEL ON BEHALF OF THE RESPONDENT

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WrittenSubmissionOnBehalfofRespondent .
 NAME: ANIKET MADHUKAR RASAL
ROLL NO.: 84
LL.B. III
SINHGAD LAW COLLEGE

TABLEOFCONTENT

Sr No. Particulars PageNo.

1) ListofAbbreviations 3

2) IndexofAuthorities 5

3) Statues Referred 6

4) StatementofJurisdiction 7

5) Statement of Facts 8

6) StatementofIssues 9

7) SummaryofArguments 10

8) ArgumentsAdvanced 11

9) Prayer Clause 14

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WrittenSubmissionOnBehalfofRespondent .
 LISTOFABBRIVIATIONS

IBC Insolvency and BankruptcyCode,2016

AIR AllIndiaReporter

Hon’ble Honorable

Sec Section

SC SupremeCourt

u/s UnderSection

SCC SupremeCourtCases

IPC Indianpenalcode

CrLJ Criminallawjournal

U.P UttarPradesh

Art Article

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WrittenSubmissionOnBehalfofRespondent .
Pat Patna

MP MadhyaPradesh

AP AndhraPradesh

Raj Rajasthan

SC Scheduledcaste

ST Scheduledtribes

SCR Supremecourtruling

Ori Orrisa

Mad Madras

P&H PunjabandHaryana

Gau Gauhati

Ka Karnataka

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WrittenSubmissionOnBehalfofRespondent .
 INDEXOFAUTHORITIES

CASELAWS:

Sr.No. CASE LAWS

1) Shyamal Kanti Guha LRS Ors v. Meena Baje(2008) 1 SCC 115

2) Jothy v. Shekhar(1964) 6 SCR 913

3) Rajendra Prakash v. SmtBabita Gupta AtianPratibha2000 (40) AIR196.

4) Hammand. v. Trebame(1938)3 AIR ER 308

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WrittenSubmissionOnBehalfofRespondent .
 STATUTES&REFRENCES:

STATUTES:

1) The Constitution of India, 1950

2) Indian Succession Act, 1925
3) The Transfer of Property Act, 1882
4) Indian Contract Act

REFRENCES

1) www.aironline.in

2) www.legalserviceindia.com

3)www.indiankanoon.org

4)www.latestlaws.com

5)www.casemine.com

6)www.manupatrafast.com

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WrittenSubmissionOnBehalfofRespondent .
 STATEMENTOFJURISDICTION

Article 32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.

Article 139A allows the transfer of certain cases from a High Court or multiple High Courts to
the Supreme Court. Since both High Courts and the Supreme Court have concurrent
jurisdiction on some cases including those involving fundamental rights.

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WrittenSubmissionOnBehalfofRespondent .
 STATEMENT OF FACTS

 Late M.Srinivasa Murthy, having purchased the site from Bangalore Development
Authority in the year 1974. Thereafter, borrowed loan from a Co- operative Society and
constructed a residential house. The parents lived in the house and it was his intention that
his only son would succeed to the property.

 The said intention was stated in the registered WILL dated 07.06.1995.
 The WILL executed On dated 18.05.1995 which was notarized.
 The WILL dated 07.06.1995 is a holograph WILL wherein he has made his intentions clear
and he has mentioned about his wife, son, daughter, the son-in-law and their son. The
contents of the WILL is referred to the effect that he celebrated the marriage of his
daughter in the year 1983 but unfortunately ended in dissolution and about the son
Sameera born out of that marriage.
 The intention of his as expressed is that the wife shall be the sole legal heir of the property
and her will have every right and authority to sell the property to any other third person
other than her own children or mortgage or lease the house or totally to bequeath it to
anybody who takes care of her in her last days. It is contended that such situation has not
arisen, as she is being taken care of by Sri.Raghunandan. The daughter Dr.Bhavani and her
husband are staying in Australia so they are not taking care. The decision has been left to
Smt.Nirmala Murthy and none has the right to question her and make unjust claims..

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WrittenSubmissionOnBehalfofRespondent .
 STATEMENT OF ISSUES

ISSUE01:Whether Appeal is maintainable or not?

ISSUE02:Whether Sale Deed dated 25.02.2004 is valid or not?

ISSUE03:Whether the respondent no 2 Murthy is mere Licensee or not?

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WrittenSubmissionOnBehalfofRespondent .
 SUMMARY OF ARGUMENTS

1) The suit property was the selfacquired property of one M. Srinivasa Murthy
(hereinafter ‘testator’) who had purchased it from the Bangalore Development
Authority in 1974. He had a daughter namely M.S. Bhavani (Appellant No. 1
herein) and a son namely M.S. Raghu Nandan (Respondent No. 1 herein).
Appellant No. 1 initially got married in 1983 and a son named Sameera was
born to her. However, her marriage ended in a divorce and she then married one
Suresh Babu (Appellant No. 2 herein) in 1994. At such time, her son was about
10 years old.
2) In 2002, M. Srinivasa Murthy died, leaving behind his last Will dated
07.06.1995, written in his own handwriting (holograph) and registered before
the Sub Registrar, Rajajinagar, Bangalore. Under this Will, he had bequeathed
the suit property in favour of his wife, Nirmala Murthy (Respondent No. 2
herein) In exercise of the rights vested in her by the Will dated 07.06.1995,
Respondent No. 2 Nirmala Murthy executed a sale deed on 25.02.2004 in favour
of the Appellants herein (her daughter and soninlaw) for the sale of the suit
property for a consideration of Rs. 16,42,000/ (hereinafter ‘the sale deed’). It has
been stated that such amount was paid in cash by the Appellants at the time of
the execution of the sale deed. 2.4 Respondent No. 1 herein filed O.S. No.
6341/2006 against his mother Nirmala Murthy (Respondent No. 2), and his
sister and brotherinlaw (the Appellants herein), seeking a declaration inter alia
that his mother and sister were not entitled to execute any sale deed in favour of
his brotherinlaw, as he had a share in the suit property and the Will dated
07.06.1995 only gave his mother, Nirmala Murthy, a life interest in respect of
such property.
3) Later, O.S. No. 1845/2008 came to be filed by the Appellants against Nirmala
Murthy seeking her ejectment from the suit property on the ground that she was
a mere licensee, who had only been permitted to stay in the property after the
sale in 2004, as the Appellants were residing in Australia. It was stated that the
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WrittenSubmissionOnBehalfofRespondent .
 Appellants did not wish to continue the said licence in her favour, as she had
joined hands with Respondent No. 1 to file O.S. No. 6341/2006 against them.
2.6 Vide common judgment dated 09.09.2011, the III rd Additional City Civil
Judge, Bangalore City partly decreed the suit for declaration, O.S. No.
6341/2006, noting that though the Will dated 07.06.1995 vested absolute rights
with Nirmala Murthy in respect of the disposition of the suit property, the sale to
the Appellants was vitiated by fraud inasmuch as Nirmala Murthy never
intended to sell the property to the Appellants. It was further found that the
Appellants had gotten the sale deed executed by misrepresentation by obtaining
Nirmala Murthy’s signatures on the pretext that they were required on her visa
applications for travel to Australia. In light of this, it was held that the sale deed
did not bind Respondent No. 1, being a fraudulent document against the
intention of the testator. Based on such finding, ejectment suit O.S. No.
1845/2008 was also dismissed.
4) Per contra, learned Counsel Mr. S.N. Bhat appearing for Respondent No. 1,
emphasized on reading the Will dated 07.06.1995 holistically, pointing to an
underlying dominant intention of only giving a life interest in the suit property to
Nirmala Murthy, and not to bequeath it absolutely to her. In this regard, he
adverted to clauses allegedly indicating an intention to settle the properties on
the two children and conferring rights on them in respect thereof, particularly by
disposing of the property and providing them with a share in the sale proceeds.
To support his contention that such latter parts of the Will dated 07.06.1995
granting a share in the property to Respondent No. 1 should be given effect, he
relied on the decisions in Ramachandra Shenoy v. Mrs. Hilda Brite, AIR 1964
SC 1323 and Kaivelikkal Ambunhi (dead) by LRs. v. H. Ganesh Bhandary,
(1995) 5 SCC 444, which hold that in the event of a conflict between two
clauses of a Will, the latter one shall prevail. As regards the sale deed dated
25.02.2004, learned Counsel alluded to the observations by the Trial Court and
the High Court regarding the suspicious circumstances in which such deed was
executed. Based on this, he argued that no title had passed to the Appellants by
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WrittenSubmissionOnBehalfofRespondent .
 virtue of such deed, especially in the absence of a sale consideration.
5) It is my moral duty to provide her a share in my immovable property, i.e. House
No. 377, 5th Main Road, 3rd Block, 3rd Stage, Basaveshwar Nagar. After my
death, my wife Smt. Nirmala shall be sole legal and rightful heir over my
immovable and movable property and she will have every right and authority to
sell, mortgage and lease my house or totally bequeath it to anybody who take
care of her in her last days, and old age also.
6) The decision of my wife Smt. Nirmala is supreme in this matter and none of my
children, i.e., Bhavani and Raghunanda have any right to question my wife, put
unjust claim, obstruct or put any obstacle for the manner my deals with my
property
7) It is my desire that the house should be sold and sale amount be divided among
my daughter and my son as per the decision of my wife. My wife shall endev
(sic) to sell the house (sic) during her lifetime
8) In case my wife is unable to sell the house during her lifetime, my daughter shall
be the seller of the house and she should (sic) the house mutually with my son
Raghunanda.” (emphasis supplied) A reading of the above portion of the Will
dated 07.06.1995, clearly indicates that the testator sought to provide for the
manner in which his wife Nirmala Murthy would have a right to the suit
property and how she would deal with the same. In addition to this, he also
sought to provide for the manner in which the property may be dealt with by his
daughter and son, in the event that his wife did not sell the property during
her lifetime. Notably, this second part is not attracted at all in the present case,
as Nirmala Murthy sold the suit property during her lifetime

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WrittenSubmissionOnBehalfofRespondent .
 PRAYER

13
Wherefore, in light of the issues raised, arguments advanced and authorities
cited,maythis Hon’ble Court bepleased to:

1)Dismiss the Petition filed by the Petitioner.

AND

2) Uphold the Validity of Notification issued.

AND/OR pass any other order that it deems fit in the interest of JUSTICE, EQUITY AND GOOD
CONSCIENCE. And for this the Respondents as in duty bound shall humbly pray.

Place: S/d:

Date: Counselfor Respondent

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