2021-2022
Sub: Family Law (Hindu Law)
Moot Memorial
Submitted To: Dr. Chetana Sharma
Submitted by:Aksha Belim (20BAL20064)
Acknowledgement
I am highly indebted to Dr. Chetana Sharma
for providing me necessary guidance and
inspirational support throughout this work ,
without which this work would not have been in
present shape .
I am also thankful to some of my seniors for
providing their full support and I also extend my
thanks to my parents who have helped me in
completing the given assignment.
BEFORE THE HON’BLE HIGH COURT OF JUDICATURE
RAJASTHAN STATE
Miscellaneous Petition U/A 226 of the Constitution of Republic of India.
K & ORS. …………………………………………….………………….……..APPELLANT
V.
G. ………………..……….……………………..…………….………………RESPONDENT
ON SUBMISSION TO THE HON’BLE HIGH COURT OF JUDICATURE
MEMORIAL ON BEHALF OF RESPONDENT
TABLE OF CONTENTS
1) TABLE OF ABBREVIATIONS
2) STATEMENT OF FACTS
3) ISSUES RAISED
4) ARGUMENTS ON BEHALF OF RESPONDENT
i) ISSUE 1
ii)ISSUE 2
iii)ISSUE 3
iv)ISSUE 4
5) PRAYERS
TABLE OF ABBREVIATIONS
V verses
i.e That is
IPC Indian penal code
s section
vol volume
SC Supreme court
STATEMENT OF FACTS
Marriage of Mrs. ‘G’ and Mr. ‘B’ was solemnized as per Hindu rituals on
24.03.2010 at Jaipur (Rajasthan) .Husband ‘B’ is resident of Jaipur and
‘G’ is resident of Uttar Pradesh.
‘B’ trade in share market which fetch him huge dividends. 'B' trade in
properties as well and earned huge income. He even purchased four
properties in his name.
Initially both husband and wife lives at B’s parents’ house but after
some time both ‘A’ and ‘B’ started living in their separate house. 'B'
despite having decent income, doesn’t give a single penny to his wife or
at home for meeting out the day to day expenses of matrimonial home.
'G' had to take regular financial help from her parents to meet out the
requirements of Matrimonial home including the food requirements of
the couple.
B' started visiting another woman namely 'W’ and developed
relationship with her. 'G` came to know about this relationship and
opposed the same. Upon being opposed, 'B left the matrimonial home
and started residing with the 'W'. ‘B' married with the said woman in a
temple.
'G' waited for 'B' to return to matrimonial home for more than 2 years
but he didn’t return and deserted her during the said period and
thereafter.
G filed application u/s 18 of the Hindu Adoption and Maintenance Act,
1956. During pendency of suit, out of 4 properties, B gifted his two
properties to his cousin and remaining two properties were sold by him
to a bona fide purchaser ‘K’. All four transactions took place on same
day.
G upon coming to know about selling and gifting of property during
pendency of suit, issued public notice in local newspapers having
sufficient circulation in the area and made public at large aware about
her right to receive maintenance from properties of her husband.
Cousin of 'B', upon witnessing the newspaper publication, sold the
properties to yet another close and near relative of 'B' known as ‘A’,
who happens to be resident of same area.
The purchasers of properties, i.e. ‘A’ & ‘K’ were impleaded as
defendants in the matter.
'W' was not impleaded upon her application through which she claimed
her right on property in the capacity of wife of 'B'. Court held that 'W'
was not a legally wedded wife as the marriage of 'B' & 'G' was still
surviving.
Court after hearing all the parties, the proceedings U/s 18 was initiated
by ‘G’ were decreed and a charge of bearing the burden of
maintenance amount and its arrears was created on all the four
properties.
ISSUES RAISED
1) Whether ‘A’ is entitled to have a property sold to him by cousin of ‘B’ and
whether the charge for the purpose of bearing burden of maintenance,
created upon the property registered in the name of ‘A’ was valid?
2) What was the status of property received in gift by cousin of ‘B’?
3) whether ‘K’ is entitled to have the property sold to him by ‘B’ and whether
the charge for the purpose of bearing burden of maintenance, created
upon the property registered in the name of ‘A’ was valid?
4) what is the right of ‘W’ in this matter, if any and whether the defence of ‘B’
on the basis of his alleged marriage with ‘W’ worth granting relief to him?
ARGUMENTS ON BEHALF OF RESONDENT
[ISSUE 1.] WHETHER ‘A’ IS ENTITLED TO HAVE A PROPERTY SOLD TO HIM BY
COUSIN OF ‘B’ AND WHETHER THE CHARGE FOR THE PURPOSE OF BEARING
BURDEN OF MAINTENANCE, CREATED UPON THE PROPERTY REGISTERED IN
THE NAME OF ‘A’ WAS VALID?
Whether ‘A’ is entitled to have property sold to him by Cousin of ‘B’?
The two properties transferred to the cousin of ‘B’ by the ‘B’ were transferred
as a gift. Further cousin of ‘B’ sold the same properties to a new bona-fide
owner, namely, ‘A’. Now it is be note that transaction of buying & selling of
said two properties by cousin was done after the issuing of notice in
newspaper by ‘G’.
On the first instance, two properties was gifted to cousin by ‘B’ and two
other sold to ‘K’ as soon as maintenance proceedings started in the court and
that also on the same day. The all transactions on same date and gifting of
two properties to the cousin clearly indicates “B’s” mala-fide intentions to
save his property from going as a maintenance to his wife, as claimed by wife
in her maintenance suit.
Section 6 (dd) of Transfer of Property Act 1882 says that, “A right to future
maintenance, in whatsoever manner arising, secured or determined, cannot
be transferred.” Hence the transfer of properties to Cousin of ‘B’ is also void
Ab-Intio. So all the future transactions are also void.
Further, when ‘A’ purchased the property, the notice was already circulated
through newspaper clearly stating about the ongoing suit and G’s claim to
the said properties. It is to be note that A is resident of area where notice
through newspaper has sufficient circulation. Hence, buyer A must be aware
of the dispute with said properties. It is also to be note that A is also a close
relative of B. This all facts clearly proves ‘A’ intentionally purchased said
properties and to tried be a bona-fide owner to prevent them from going to G
as a maintenance.
The fact is that both two properties owned by Cousin was gifted to him,
hence he has not purchased them, so he also not a bona-fide owner. Also
court has all rights to take back gratuitous properties and order to transfer it
to the eligible owner. So the first transaction is also questionable hence
making second transaction void.
So, by above facts and arguments ‘A’ is not entitled to the properties sold to
him by Cousin of ‘B’.
Whether the charge for the purpose of bearing burden of maintenance,
created upon the property registered in the name of ‘A’ was valid?
Section 28 of Hindu adoption and Maintenance act, clearly, mentions that,
“Right to receive maintenance may be enforced against the transferee if the
transferee has notice of the right or if the transfer if gratuitous”. Hence by
this it is clear that maintenance can be claimed from the properties
transferred to Cousin of B. Hence further transactions of selling the property
is not a reasonable cause to get leave from burden of maintenance.
The burden of maintenance on the properties sold to ‘A’ was valid because
the properties were purchased in spite of having disputes on them. Further
the properties were gratuitous to ‘Cousin of B’ from whom ‘A’ purchased.
Hence all the transactions are not valid and the property of ‘B’ is liable for
maintenance of his wife ‘G’. So the properties registered in the name of ‘ A’
are liable for bearing the burden of maintenance.
[ISSUE 2.] WHAT WAS THE STATUS OF PROPERTY RECEIVED IN GIFT BY
COUSIN OF ‘B’?
Section 6 (dd) of Transfer of Property Act, 1882 says that, “A right to future
maintenance, in whatsoever manner arising, secured or determined, cannot
be transferred.” Hence the transfer and status of both properties is void and
illegal.
The properties received by the Cousin of ‘B’ were indeed a Gratuitous
property. Further as the properties are gratuitous, the transaction and status
is voidable ,i.e., the court may void the transaction of transfer of properties if
it seems unfit and court agrees that transactions were done by the first
owner to get any undue advantage.
[ISSUE 3.] WHETHER ‘K’, A BONAFIDE PURCHASER, IS ENTITLED TO HAVE THE
PROPERTY SOLD TO HIM BY ‘B’ AND WHETHER THE CHARGE CREATED UPON
THE PROPERTY REGISTERED IN THE NAME OF ‘K’, FOR THE PURPOSE OF
BEARING BURDEN OF MAINTENANCE, WAS VALID?
K’ being a bona fide purchaser is entitled to have the property sold to him by
‘B’ as he has bought that property against consideration. As per Section 28 of
The Hindu Adoptions And Maintenance Act, 1956 “where a dependent has a
right to receive maintenance out of an estate or any part thereof is
transferred, the right to receive maintenance may be enforced against the
transferee if the transferee has the notice of the right, or if the transfer if
gratuitous; but not against the transferee for consideration and without
notice of right. Here, in the present ‘K’ bona fidely bought the property sold
to him by ‘B’ against the consideration and without the knowledge of right of
‘G’ in the property.
Also, Section 39 which is “Transfer where the third person is entitled to
maintenance” of The Transfer of Property Act, 1882 says that where a third
person has a right to receive maintenance, or a provision for advancement or
marriage, from the profits of immoveable property, and such property is
transferred the right may be enforced against the Transferee, if he has notice
or if the transfer is gratuitous; but not against a transferee for consideration
and without notice of the right, nor against such property in his hand.
Therefore, ‘K’ is entitled to have the property sold to him by ‘B’ as he bona
fidely bought that property against the consideration and also without the
knowledge of right of ‘G’ in it.
Since, ‘K’ was entitled to the property, the charge created upon the property
for the purpose of bearing burden of maintenance was invalid, as per the
Section 28 and Section 39 of The Hindu Adoptions and Maintenance Act,1956
and The Transfer of Property Act, 1882 respectively.
[ISSUE 4.] : WHAT IS THE RIGHT OF ‘W’ IN THIS MATTER, IF ANY AND
WHETHER THE DEFENSE OF ‘B’ ON THE BASIS OF HIS ALLEGED MARRIAGE
WITH ‘W’ WORTH GRANTING RELIEF TO HIM?
‘W’ does not have any right in this matter relating to the property in the
capacity of wife of ‘B’ as ‘W’ was not a legally wedded wife as the marriage
of ‘B’ and ‘G’ was still surviving. Section 11 of The Hindu Marriage Act, 1955
tells about the Void marriages. It says ‘A marriage shall be null and void if it
contravenes the conditions for a Hindu Marriage.
One of the conditions for a valid Hindu Marriage says-
‘If either party has a spouse living at the time of marriage, such marriage is void
Ab Initio’. In the present case, the marriage of ‘G’ and ‘B’ was still surviving when
‘B’ married ‘W’. Therefore, ‘W’ not being a legally wedded wife of ‘B’ does not
have any right in the disputed property.
Moreover, the defence of ‘B’ on the basis of his alleged marriage with ‘W’
was not worth granting relief to him as their marriage was void Ab Initio and
this ground was not sufficient to deprive ‘G’ from the entitlement of
maintenance.
The respondent submits that ‘G’ is entitled to get the maintenance from the
property of ‘B’ and ‘W’ does not have any right in this matter.
PRAYERS
Respondent humbly request court –
1) To quash the appeal filed by the appellant.
2) To declare the order passed by learned family court fit and proper.
3) To pass any other order respected bench may feel appropriate.
