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    Respondent Memorial GD Goenka

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    Suditi Tandon
    1. The appellant claims a 7/24 share in joint family properties, arguing that if partition occurred before her husband's death, she would get 1/4 share and her husband's 1/4 share would devolve to 6 heirs as 1/24 each. 2. The respondent argues that under the Hindu Succession Act, the appellant is entitled to only a 1/6 share as there are 6 legal heirs entitled to equal shares of the deceased's interest in the coparcenary properties. 3. Determining the deceased's share in the coparcenary properties requires interpreting Explanation 1 of Section 6 of the Hindu Succession Act, which provides a formula for calculating a coparcener's share.

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    Respondent Memorial GD Goenka

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    Suditi Tandon
    89 views13 pages
    1. The appellant claims a 7/24 share in joint family properties, arguing that if partition occurred before her husband's death, she would get 1/4 share and her husband's 1/4 share would devolve to 6 heirs as 1/24 each. 2. The respondent argues that under the Hindu Succession Act, the appellant is entitled to only a 1/6 share as there are 6 legal heirs entitled to equal shares of the deceased's interest in the coparcenary properties. 3. Determining the deceased's share in the coparcenary properties requires interpreting Explanation 1 of Section 6 of the Hindu Succession Act, which provides a formula for calculating a coparcener's share.

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    1. The appellant claims a 7/24 share in joint family properties, arguing that if partition occurred before her husband's death, she would get 1/4 share and her husband's 1/4 share would devolve to 6 heirs as 1/24 each. 2. The respondent argues that under the Hindu Succession Act, the appellant is entitled to only a 1/6 share as there are 6 legal heirs entitled to equal shares of the deceased's interest in the coparcenary properties. 3. Determining the deceased's share in the coparcenary properties requires interpreting Explanation 1 of Section 6 of the Hindu Succession Act, which provides a formula for calculating a coparcener's share.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    89 views13 pages

    Respondent Memorial GD Goenka

    Uploaded by

    Suditi Tandon
    1. The appellant claims a 7/24 share in joint family properties, arguing that if partition occurred before her husband's death, she would get 1/4 share and her husband's 1/4 share would devolve to 6 heirs as 1/24 each. 2. The respondent argues that under the Hindu Succession Act, the appellant is entitled to only a 1/6 share as there are 6 legal heirs entitled to equal shares of the deceased's interest in the coparcenary properties. 3. Determining the deceased's share in the coparcenary properties requires interpreting Explanation 1 of Section 6 of the Hindu Succession Act, which provides a formula for calculating a coparcener's share.

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    of 13

    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    BEFORE THE HON’BLE SUPREME COURT OF INDIA

    In The Matter Of:

    Prakash Singh - - - - APPELLANT

    V.

    Union of India - - - - RESPONDENT

    COUNSEL FOR THE RESPONDENT: SUDITI TANDON


    Programme: B.A LL.B.(Hons)
    Semester: 6th

    Admission Number: 16170254

    Marks awarded out of 10 -----------------------------------------

    Signature of Faculty ------------------------------------------

    1 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    TABLE OF CONTENTS

    S. Particulars Page No.


    No.
    1 INDEX OF ABBREVIATIONS 4
    2 INDEX OF AUTHORITIES 5-6
    3 STATEMENT OF JURISDICTION 7
    4 STATEMENT OF FACTS 8
    5 ISSUES RAISED 9
    6 SUMMARY OF ARGUMENTS 10
    7 PRAYER FOR RELIEF 14

    2 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    INDEX OF ABBREVIATIONS

    & And
    No. Number
    HC High Court
    SC Supreme Court
    SCC Supreme Court Cases
    V. Versus

    INDEX OF AUTHORITIES

    3 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    CASES REFERRED:

    SUPREME COURT CASES –

    1. Vineet Narain & Ors. v. Union of India & Anr. [(1998) 1 SCC 226]
    2.

    STATUTES AND OTHER AUTHORITIES –

    1. The Indian Penal Code


    2. Law Commission of India 152nd Report
    3. National Police Commission Report
    4. The Police Act, 1988

    JOURNALS REFERRED-

    1. All India Reporters.

    2. Indian Law Reporter.

    3. Supreme Court Cases.

    LEGAL DICTIONARIES -

    1. Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005).

    2. Garner B.A., Black’s Law Dictionary, (9th ed., 2009).

    3. Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Phrases, (4th ed.),
    Sweet and Maxwell, Vol. 4.

    4 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    4. Mish F.C., Merriam-Webster's Collegiate Dictionary, (11th ed. 2003).

    5. Oxford Advanced Learners Dictionary, (7th ed., 2008).


    DATABASE REFERRED -

    1. http://www.manupatra.com

    2. http://www.westlaw.org

    3. http://www.indiankanoon.com

    4. http://www.lexisnexis.com

    5. http://www.judis.nic.in

    5 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    STATEMENT OF JURISDICTION

    Appeal by Special Leave from the Judgment and Order dated the 19th
    March, 1975 of the Bombay High Court in First Appeal No. 524 of
    1966 from original decree. Hence Supreme court has civil appellate
    jurisdiction.

    6 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    STATEMENT OF FACTS

    Khandappa Sangappa Magdum died on June 27, 1960 leaving


    behind, his widow Hirabai, two sons Gurupad and Shivapad and three
    daughters. On November, 6, 1952 Hirabai filed special civil suit No.
    26/53 for partition and separate possession of a 7/24 share in two
    houses, a land, two shops and movables on the basis that these
    properties belonged to the joint family consisting of her husband,
    and their two sons. The case of the plaintiff was that if a partition
    were to take place during Khandappa's life time between himself and
    his two sons the plaintiff would have got a 1/4th share each on the
    death of Khandappa, Her further case was that Khandappa's 1/4th
    share could devolve upon his death on six sharers, entitling her to
    1/24th share besides. Court found that the suit properties belonged to
    the joint family and that there was no prior partition.

    7 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    ISSUES RAISED

    ISSUE : Is the plaintiff entitled to 7/24th share?

    ISSUE : Does the suit properties belonged to the joint family?

    8 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    SUMMARY OF ARGUMENTS

    Arguments on behalf of the Respondents :

    Khandappa died on June 27, 1960 leaving him surviving his wife Hirabai
    who is the plaintiff, two sons Gurupad and Shivapad, and three daughters.
    On November 6 , 1962 Hirabai filed special civil suit No. 26 of 1963 in the
    court of the Joint Civil Judge, Senior Division, Sangli for partition and
    separate possession of a 7/24th share in two houses, a land, two shops
    avoid movables on the basis that these properties belonged to the joint
    family consisting of her husband, herself and their two sons. If a
    partition were to take place during Khandappa's lifetime between himself
    and his two sons, the plaintiff would have got 1/4th share in the joint
    family properties, the other three getting 1/4th share each. Khandappa's
    1/4th share would devolve upon his death on six sharers, the plaintiff and
    her five children, each having a 1/24th share therein. Adding 1/4th and
    1/24th, the plaintiff claims a 7/24th share in the joint family properties.

    The interpretation of Explanation 1 to section 6 of the Hindu Succession


    Act, (30 of 1956). That section reads thus "6. When a male Hindu dies after
    the commencement of this Act, having at the time of his death an interest
    in a Mitakshara coparcenary property, his interest in the property shall
    devolve by survivorship upon the surviving members of the coparcenary and
    not in accordance with this Act :
    Provided that, if the deceased had left him surviving a female relative
    specified in class I of the Schedule or a male relative specified in that
    class who claims through such a female relative, the interest of the
    deceased in the Mitakshara coparcenary property shall devolve by
    testamentary or intestate succession, as- the case may be, under this Act
    and not by survivorship.
    Explanation I.-For the purposes of this section, the interest of a Hindu
    Mitakshara coparcener shall be deemed to be the share in the property that

    9 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    would have been allotted to him if a partition of the property had taken
    place immediately before his death, irrespective of whether he was entitled
    to claim partition or not.
    The Hindu Succession Act came into force on June 17, 1956, Khandappa having
    died after the commencement of that Act, to wit in 1960, and since he had
    at the time of his death an interest in Mitakshara coparcenary property,
    the pre- conditions of section 6 are satisfied and that section is squarely
    attracted. By the application of the normal rule prescribed by that
    section, Khandappa's interest in the coparcenary property would devolve by
    survivorship upon the surviving members of the coparcenary and not in
    accordance with the provisions of the Act. But, since the widow and
    daughter are amongst the female relatives specified in class I of the
    Schedule to the Act and Khandappa died leaving behind a widow and
    daughters, the proviso to section 6 comes into play and the normal rule is
    excluded. Khandappa's interest in the coparcenary property would therefore
    devolve, according to the proviso, by intestate succession under the Act
    and not by survivorshop. Testamentary successive is out of question as the
    deceased had not made a testamentary disposition though under the
    explanation to section 30 of the Act, the interest of a male Hindu in
    Mitakshara coparcenary property is capable of being disposed of by a will
    or other testamentary disposition. There is thus no dispute that the normal
    rule provided for by section 6 does not apply, that the proviso to that
    section is attracted and that the decision of the appeal must turn on the
    meaning to be given to Explanation 1 of section 6.
    The deceased Khandappa died leaving behind him two sons, three daughters
    and a widow. The son, daughter and a widow are mentioned as heirs in class
    I of the Schedule and therefore, by reason of the provisions of section
    8(a) read with the 1st clause of section 9, they take simultaneously and to
    the exclusion of other heirs. As between them the two sons, the three
    daughters and the widow will take equally, each having one share in the
    deceased's property under section 10 read with Rules 1 and 2 of that
    section. Thus, whatever be the share of the deceased in the coparcenary
    property, since there are six sharers in that property each having an equal
    share, the plaintiff's share therein will be 1/6th.
    The next step, equally important though not equally easy to work out, is to
    find out the share which the deceased had in the coparcenary property
    because after all, the plaintiff has a 1/6th interest in that share.
    Explanation 1 which contains the formula for determining the share of the

    10 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    deceased creates a fiction by providing that the interest of a Hindu


    Mistakshara coparcener shall be deemed to be the share in the property that
    would have been allotted to him if a partition of the property had taken
    place immediately before his death. One must, therefore, imagine a state of
    affairs in which a little prior to Khandappa's death, a partition of the
    coparcenary property was effected between him and other members of the
    coparcenary. Though the plaintiff, not being a coparcener, was not entitled
    to demand partition yet, if a partition were to take place between her
    husband and his two sons, she would be entitled to receive a share equal to
    that of a son. (see Mulla's Hindu Law, Fourteenth Edition, page 403, para
    315). In a partition between Khandappa and his two sons, there would be
    four sharers in the coparcenary property, the fourth being Khandappa's
    wife, the plaintiff. Khandappa would have therefore got a 1/4th share in
    the coparcenary property on the hypothesis of a partition between himself
    and, his sons Two things are thus clears : One, that in a partition of the
    coparcenary property Khandappa would have obtained a 1/4th share and two,
    that the share of the plaintiff in the 1/4th share is 1/6th, that is to
    say, 1/24th.
    In order to ascertain the share of heirs in the property of a deceased
    coparcener it is necessary in the very nature of things, and as the very
    first step, to ascertain the share, of the deceased in the coparcenary
    property. For, by doing that alone can one determine the extent of the
    claimant's share. Explanation 1 to section 6 resorts to the simple
    expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara
    coparcener "shall be deemed to be" the share in the property that would
    have been allotted to him if a partition of that property had taken place
    immediately before his death. To make the assumption at the initial stage
    for the limited purpose of ascertaining the share of the deceased and then
    to ignore it for calculating the quantum of the share of the heirs is truly
    to permit one's imagination to boggle. All the consequences which flow from
    a real partition have to be logically worked out, which means that the
    share of the heirs must be ascertained on the basis that they had separated
    from one another and had received a share in the partition which had taken
    place during the life time of the deceased.
    The interpretation which we are placing upon the provisions of section 6,
    its proviso and explanation I thereto will further the legislative intent
    in regard to the enlargement of the share of female heirs, qualitatively
    and quantitatively. The Hindu Law of Inheritance (Amendment) Act, 1929

    11 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    conferred heirship rights on the son's daughter, daughter's daughter and


    sister in all areas where the Mitakshara law prevailed. Section 3 of the
    Hindu Women's Rights to Property Act. 1937, speaking broadly, conferred
    upon the Hindu widow the right to a share in the joint family property as
    also a right to demand partition like any male member of the family. The
    Hindu Succession Act, 1956 provides by section 14(1) that any property
    possessed by a female Hindu, whether acquired before or after the
    commencement of the Act, shall be held by her as a full owner thereof and
    not as a limited owner.

    12 |MEMORANDUM FOR THE RESPONDENT


    GD GOENKA SCHOOL OF LAW, COURT ROOM EXERCISE

    PRAYER FOR RELIEF

    WHEREFORE, in the lights of the facts used, issues raised, arguments advanced and
    authorities cited, it is most humbly and respectfully prayed that this Hon'ble court may be
    pleased to adjudge and enable :
    The Hindu Woman to acquire an equal status with males in matters of property and assuming
    that two interpretations of Explanation I are reasonably possible, we must prefer that
    interpretation which will further the intention of the legislature and remedy the injustice from
    which the Hindu women have suffered over the years.

    Memorandum for
    Respondent
    Suditi Tandon

    13 |MEMORANDUM FOR THE RESPONDENT

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