IN THE HON’BLE HIGH COURT OF RAJASTHAN

(UNDER S.96 r/w Order 41 OF THE CIVIL PROCEDURE CODE, 1908)

Civil Appeal No. ____OF 2009

In the matter of:

Nandlal Misra and Other Appellants/Plaintiffs

v.
Shyam Lal Misra Respondent/Defendant

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT

On submission
January 2010

COUNSEL FOR APPELLANT

 Nandlal Misra and Other v. Shyam Lal Misra

TABLE OF CONTENTS
CONTENTS PAGE

LIST OF ABBREVIATIONS iii

INDEX OF AUTHORITIES:
A. LIST OF BOOKS REFERRED iv

B. LIST OF LEGISLATIONS REFERRED v

C. LIST OF JOURNALS REFERRED v

D. LIST OF WEBSITES REFERRED v

E. LIST OF REPORTS REFERRED v

F. LIST OF ARTICLES REFERRED v

G. LIST OF LEXICONS REFERRED V

LIST OF CASES REFERRED vi

STATEMENT OF JURISDICTION ix

STATEMENT OF FACTS x

STATEMENT OF ISSUES xi

SUMMARY OF ARGUMENTS xii

ARGUMENTS ADVANCED -1-

PRAYER -6-

ii WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT

 Nandlal Misra and Other v. Shyam Lal Misra

LIST OF ABBREVATIONS

AIR -- ALL INDIA REPORTER

ART -- ARTICLE

Bom -- BOMBAY

Edn -- EDITION

HMA -- HINDU MARRIAGE ACT

HON’BLE -- HONOURABLE

i.e. -- THAT IS

MhLJ -- MAHARASTRA LAW JOURNAL

P&H -- PUNJAB & HARYANA

r/w -- READ WITH

SEC -- SECTION

SECS -- SECTIONS

SC -- SUPREME COURT

SCC -- SUPREME COURT CASES

SCR -- SUPREME COURT REPORTER

SUPP -- SUPPLEMENTARY

u/sec. -- Under Section

v. -- VERSUS

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 Nandlal Misra and Other v. Shyam Lal Misra

INDEX OF AUTHORITIES
A. LIST OF BOOKS REFERRED:
 B M Gandhi, Hindu Law, Eastern Book Company, 3rd Edition (2008)
 Colebrook, Digest of Hindu Law, Vol II.
 Custody and Guardianship of Minor, Kali Publication, 1995.
 G.C.V.Subba Rao, Prof., Family Law in India, S.Gogia & Company, 9th Edition (2006)
 G.C.V.Subba Rao, Prof., Hindu Law, S.Gogia & Company, 9th Edition (2008)
 Gopalchandra Sarkar, Hindu Law of Adoption, General Books, 7th Edition (2009)
 Gyan Prakash, The Hindu code, Allahabad Law Agency; 2nd Edition (1958)
 J.D. Mayne, Hindu Law, Mayne Press, 2nd Edition, (1984)
 Kusum, Family Law Lectures (Family Law 1), Eastern Book Company, 2nd Edition, (2008)
 Mamta Rao, Law Relating To Women And Children , Eastern Book Company, 12 th Edition,
(2001)
 Paras Diwan and Peeyushi Diwan, Family Law, Allahabad Law Agency, 7th Edition, (2005)
 Poonam Pradhan Saxena, Family Law Lectures (Family Law II) , Eastern Book Company,
2nd Edition, (2007)
 R.K. Agarwal, Hindu Law, Central Law Agency, 19th Edition, (2007)
 Ramesh Chandra Nagpal, Modern Hindu Law, Eastern Book Company, 2nd Edition, (2008)
 Ramesh Chandra Nagpal, Modern Hindu Law, Eastern Book Company,2nd Edition (2008)
 Rameshwar Dial and Adarsh B. Dial, A commentary on the Hindu succession act, 1956
(Act XXX of 1956), Anand Law House, 3rd Edition (1979)
 Ranganath Misra, Mayne's Treatise on Hindu Law and Usage, Bharat Law House, 15th
Edition (2003)
 S.Gopalaratnam and R.Srinivasan, N.R. Raghavachariar’s Hindu Law- Principles and
Precedents, Madras Law Journal Publications, 12th Edition (2001)
 S.K. Mitra, Hindu Law, Orient Publishing Company, 2 nd Edition (2006)
 SA Desai, Mulla Hindu Law (2 Vols), LexisNexis Butterworths, 19th Edition, (2007)
 Sri V Hari Hara Rao & Smt. Jaya V H Rao, Commentary on The Hindu Succession Act ,
Warangal Law House, 2nd Edition (2009)
 Werner Menski, Hindu Law: Beyond Tradition and Modernity, 12th Edition (2008)

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 Nandlal Misra and Other v. Shyam Lal Misra

B. LIST OF LEGISLATIONS REFERRED:

 THE INDIAN CONSTITUTION
 THE LAW RELATING TO COMPUTERS AND THE INTERNET,Rahul Matthan
 THE LAWS OF TRADEMARKS COPYRIGHTS AND DESIGNS

C. LIST OF JOURNALS REFERRED:

 ALL INDIA REPORTER (AIR)
 SUPREME COURT CASES (SCC)
 MADRAS LAW JOURNAL (MLJ)
 MADRAS LAW JOURNAL DIGEST (1990-2008)
 HARYANA LAW REPORTER (HLR)

D. LIST OF WEBSITES REFERRED:

 www.manupatra.com
 www. scconline.com
 www.judis.nic.in

E. LIST OF REPORTS REFERRED:

o Report of the Law Commission, No.207, “Amendment of s.15 of the Hindu Succession Act, 1956”.
o Report of the Law Commission, No.174, “Property Rights of Women: Proposed Reforms under the
Hindu Law”
o Report of the Law Commission, No.66, “Married women’s property Act”
o Report of the Law Commission, No.98, “Section 24 and 26 of Hindu succession Act”
o Report of the Law Commission, No.208, “Section 6 of the Hindu Succession Act”

F. LIST OF ARTICLES REFERRED:

 G.S.Tewari, Codification of Hindu Law, Central India Law Quarterly, Vol X: I, (1997)

G. LIST OF LEXICONS REFERRED:

o P. Ramanatha Aiyar, Concise Law Dictionary, Wadhwa Nagpur, 3rd Edn(2006)
o Wharton, Concise Law Dictionary, Universal Law Publishing Co, 15th Edn(2009)

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 Nandlal Misra and Other v. Shyam Lal Misra

o Black’s Law Dictionary

CASES CITED

S.NO. CASE LAW CITATION PAGE

NO.
1. Ado Rai v. Huro Rai. AIR 1958 Andh Pra 693 1

2. Ashima v. Kalli (1884) 10 Cal 675 4

3. Ashutosh v. Vysraju (1972) 38 CLT 857 4

4. Banarsi v. Marchhia AIR 1967 AP 340 2

5. Bansidhar Panda v. Aparti Charan Panda & Ors. 2000 (II) OLR 166 1

6. Deoki Nandan v. Madanlal. (1957) 2 Andh WR 358 1

7. Devi Prasad v. Triveni Prasad 1970 SC 1286 2

8. Dhanishtha Kalita v. Ramakanta AIR 2003 Gan 932 2

9. Dhanraj v. Suraj Bai AIR 1975 SC 1103 2

10. Dharamwati Bai v. Shiv Singh AIR 1991 MP 18 2

11. Durgapada Jana v. Nemaicharan Jana (1986) 2 HLR 86 (Cal)

12. Emma v. Gudiseva AIR 1976 AP 337 2

13. Goswami Shree Vallabhalalji v. Goswami Shree AIR 1959 Mah 200 1
Mahalaxmi Bahuji Maharaj and Anr
14. Gowli v. Commissioner of Gift Tax AIR 1970 SC 1722 4

15. Gulwant Kaur v. Mohinder Singh AIR 1987 SC 2251 2

16. Hussain Uduman v. Venkatachala Mudaliar AIR 1975 Mad 8 2

17. Jai Singh v. Shakuntala (2002) 3 SCC 634 2

18. Jose v. Ramakrishnan Nair AIR 2004 Ker 16 2

19. Jupidi v. Supidi AIR 1994 AP 134 4

20. Kartar Singh v. Sujan Singh AIR 1974 SC 2161 2

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 Nandlal Misra and Other v. Shyam Lal Misra

21. Kotturuswami v. Veeravva Jagannathan Pillai AIR 1959 SC 577 2

22. Lakireddi v. Lakireddi AIR 1963 SC 1601 4

23. Lakshman Singh v. Kanwar (1962) 1 SCR 477 2

24. Lal Harihar v. Thakur Bajranga AIR 1937 PC 242 1

25. Lalla Ram v.Gohi Ram 1972 All 540 2

26. Madanlal v. Mah AIR 1992 SC 1254 4

27. Mahabir Pandey v. Sashi Bhushan AIR 1981 Cal 74 2

28. Mahadevappa v. Gauraman AIR 1973 Mys 142 2

29. Makesh Chand Sharma v. Raj Kumari Sharma 1996 SC 869 2

30. Mallesappa v. Mallappa AIR 1961 SC 1268 4

31. Mangatmal v. Punni Devi 1996 SC 172 2

32. Meenakshamma v. MC Nanjudappa AIR 1993 Kant 12 2

33. Meyappa v. Kannappa AIR 1976 Mad 154 2

34. Minakshi v. Rarriananda, (1888) ILR 11 Mad 49 1

(FB)
35. Moolchand v. Amritbhai (1976) MLJ 382 2

36. Moothia v. Uppen (1858) Mad SD 117 1

37. Narayam v. Chamaraju AIR 1968 SC 1276 4

38. Narayanan v. Radhakrishna AIR 1976 SC 1715 4

39. Neel Kanth v. Ramchandra AIR 1991 Bom 10 5

40. Nilima Mukherjee v. Kanta Bhushan Ghosh AIR 2001 SC 2725 2

41. Nirupama v. Baidyanath AIR 1985 Cal 406 4

42. Punithavalli v. Ramalingam AIR 1970 SC 1730 2

43. Pushpa v. CIT AIR 1977 SC 2230 5

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 Nandlal Misra and Other v. Shyam Lal Misra

44. Radha Rani v. Hanuman Prasad AIR 1966 SC 216 2

45. Ramachandra v. Gopal (1908) ILR 32 Bom 619) 1

46. Ranganayakamma v. Rajeshwaramma AIR 1964 AP 380 2

47. Rankanidhi Sahu v. Nandkishore Sahu AIR 1990 Ori 64 2

48. Shib Dai v. Ghani Lal AIR 1965 J&K 11 2

49. Shivasangangouda v. Kalkangouda and Anr. AIR 1960 Mysore 147 1

50. Sitabai v. Ramachandra, AIR 1970 SC 343 2

51. Subbulakshmi v. Ramalakshmi AIR 1964 Mad 76 2

52. Subrao v. Radha (AIR 1928 Bom 295) 1

53. V.K.Jaishankar, Mrs.Vijayalakshmi v. (2007) 1 LW 509 2

G.Nambrajan & Anr

54. Vidya v. Nand Rap (2001) 10 SCC 747 2

55. Walbai v. Heerabai (1910) ILR 34 Bom 491 1

56. Yamnava v. Laxman (1912) ILR 36 Bom 533 1

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 Nandlal Misra and Other v. Shyam Lal Misra

STATEMENT OF JURISDICTION

The appellants, Nandlal Misra and Gomatilal Misra, submit this dispute to the Hon’ble High Court of
Rajasthan, New Delhi, in the form of an Appeal under s.96 r/w. Order 41 of the Civil Procedure Code,1908.

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 Nandlal Misra and Other v. Shyam Lal Misra

STATEMENT OF FACTS
 Mr. Madan is the karta of a Joint Hindu Family. The family has 14 members in total three sons,
namely, Shyam, Nandlal, Gomatilal , their wives, Leela, Shyma, Vyoma respectively and their
children.
 They were living happily in the house, called as Mohanto Mahal, in Bikaner district of Rajasthan.
The house was an ancestral house of Mr. Madan’s wife, Mrs. Daulat Devi, who died in 2008
December leaving all her assets in the name of her husband only in her properly executed will,
except the house.
 The house was owned by Mr. Ladoodan ji, father of Mrs. Daulat Devi, who was the legal owner,
having all evidence of ownership of that house.
 He died in 1964, before that in 1963, he adopted Daulat’s elder son Shyam (who was 5 years old
at that time) by the means of rituals and before five panchas (headmen of the village) as his son
and declared him his legal heir. But till the death of Mrs. Daulat , Shyam and his family remained
with Mr. Madan and Daulat.
 Since Madan was the karta, he was managing all the property of the family including the house,
whose lifetime interest was given to Daulat by Ladoodan, in the capacity of a caretaker and
manager.
 Shyam, though was adopted by Ladoodan, but never accepted him as his father and called Madan
and Daulat, who were declared as his guardians (as he was minor at that time) as his father and
mother. Interestingly, in 1968, when Shyam was 10 years old, in the capacity of the legal guardian
Madan, sold the north part of the house to Mr. Kanjilal for Rs. 50,000/- only and deposited the
money in a Fixed Account for Shyam and Nandlal both.
 In 1970, Madan got signature of Shyam on a paper where it was written that he is transferring the
south and central part of the house to Madan, Shyam knowingly accepted this and signed the
paper. The paper was just a simple piece of paper bearing no legal importance.
 Later on after Mrs. Daulat’s death in 2008, Nandlal and Gomatilal demanded for partition. But
Shyam demanded that he is the owner of the house, as he is the legal owner of the house and
Ladoodan ji’s legal heir.
 Nandlal and Gomatilal went to District Court, where it was held that Shyam is the sole owner of the
house hence there can be no partition on their demand. The Appeal went to High Court of
Rajasthan.

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 Nandlal Misra and Other v. Shyam Lal Misra

ISSUES RAISED

1. THE DECISION OF THE DISTRICT COURT IS LIABLE TO BE SET ASIDE.

2. THE APPELLANTS ARE ENTITLED TO A SHARE IN THE SUIT PROPERTY.

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 Nandlal Misra and Other v. Shyam Lal Misra

SUMMARY OF ARGUMENTS

1. THE DECISION OF THE DISTRICT COURT IS LIABLE TO BE SET ASIDE.

The decision of the district court is liable to be set aside as the respondent is not the sole legal heir of
Ladoodanji. The respondent’s adoption by the latter is invalid on account of non-compliance with s.6 and
s.11 of the Hindu Adoptions and Maintenance Act, 1956. By virtue of s.14 of the Hindu Succession Act,
1956, the estate in the form of life interest enlarges into absolute property of Mrs.Daulat Devi.

2. THE APPELLANTS ARE ENTITLED TO A SHARE IN THE SUIT PROPERTY.

The property devolves upon Mrs.Daulat Devi under ss.15 and 16 of the Hindu Succession Act, 1956, the
appellants included. Further, the dwelling house is capable of partition, and has been added into the
hotchpot, or into the joint family property, by virtue of the “throwing into common stock” action by the
respondent.

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ARGUMENTS ADVANCED
1. THE DECISION OF THE DISTRICT COURT IS LIABLE TO BE SET ASIDE.
The District Court has been grossly erroneous in dismissing the suit filed by the appellants on the following
grounds:
 The respondent is not the legal heir of Ladoodanji as his adoption is invalid in law
 Mrs. Daulat Devi is the absolute owner of the suit property.
1.1 The Respondent is not the legal heir of Ladoodanji, as his adoption by Ladoodanji is invalid.
a) s.6 of the Hindu Adoptions and Maintenance Act, 1956 not complied with:
The essential ingredients of a valid adoption as per s.6 of the HAMA, 1956, are that the persons giving and
taking in adoption, and the person being taken in adoption are capable of the same, and that the adoption
is in compliance with the other requisites under this chapter. By virtue of practice, it is established that there
are certain prohibitions in respect of a person who may lawfully be taken in adoption. One of these
restrictions are that the adopted child must not be one, whose mother the adopting father could not have
legally married.1 In Bansidhar Panda v. Aparti Charan Panda and Ors .2 it was observed that daughter's son,
sister's son, mother's sister's son come under the "Viruddha Sambandha" and adoption of such child is
prohibited. It makes no difference that the adopter has himself been removed from his natural family by
adoption; for adoption does not remove the bar of consanguinity which would operate to prevent inter-
marriage within the prohibited degrees. 3
The adoption of Shyam is invalid. By birth, he is Daulat Devi’s son, and his adopter is Ladoodanji,
who is Daulat Devi’s father. The degree of relationship spoken of here, is clearly prohibited, as, by virtue of
the rule of Viruddha Sambandha, the resultant relationship from the adoption, between the adopting father
and the child’s mother, is illegal.
b) s.11 of the Hindu Adoptions and Maintenance Act, 1956 not complied with:
s.11 of the HAMA stipulates other conditions to be fulfilled for an adoption to be valid. The point bearing
relevance to the factual matrix of the given case is s.11(vi), which states that it is mandatory that the child
to be adopted must actually be given and taken in adoption, by the parents and the adopter, respectively.

1
“ Viruddha Sambandha”
2
2000 (II) OLR 166; Shivasangangouda v. Kalkangouda and Anr. AIR 1960 Mysore 147; Goswaml Shree
Vallabhalalji v. Goswami Shree Mahalaxmi Bahuji Maharaj and Anr AIR 1959 Mah 200; Minakshi v. Rarriananda,
(1888) ILR 11 Mad 49 (FB); Ramachandra v. Gopal (1908) ILR 32 Bom 619); Walbai v. Heerabai (1910) ILR 34
Bom 491; Yamnava v. Laxman (1912) ILR 36 Bom 533; Subrao v. Radha (1928) ILR 52 Bom 497; (AIR 1928 Bom
295);
3
Moothia v. Uppen (1858) Mad SD 117, Lal Harihar v. Thakur Bajranga (1937) 2 Mad U 711: AIR 1937 PC 242;
Ado Rai v. Huro Rai. AIR 1958 Andh Pra 693 ; Deoki Nandan v. Madanlal. (1957) 2 Andh WR 358
 Nandlal Misra and Other v. Shyam Lal Misra

The child must be asked for, in adoption, and must be handed over physically. 4 Without such
‘giving and taking’ the adoption is invalid.5 S.11(vi) is mandatory, and without exceptions. 6 The very act of
giving and taking of the child is in itself symbolic of transplanting the adopted child from the family. 7
Effectively, thus, as held in Sitabai v. Ramachandra,8 the ties of the child in the first family are to be
severed and new ties are to be forged with the new family. The child must, thus, be effectively delivered to
the new family, and this must be signified by way of some overt act. 9
While in the course of adopting Shyam, there have been a performance of Rituals before the
village elders, it stands clear that there has been no evidence of the actual giving and taking requirement.
Shyam continued to reside with Daulat and Madan, his real parents, and continued addressing them as
mother and father, respectively, post adoption. Nothing in the factual matrix proves the fact that Shyam was
given to Ladoodanji, as post adoption, there was no acknowledgement of the new relationship.
1.2. Mrs.Daulat Devi is the absolute owner of the suit property.
As per s.14 of the Hindu Succession Act, 1956, any property possessed by a female Hindu shall be
held by her as full owner thereof. By virtue of this provision, there is an enlargement of the estate of the
female, as long as she has been in lawful possession, thereof. Property in this context, includes movables
and immovables, acquired by inheritance, or devise, partition, in lieu of maintenance, by gift from any
person, or by her own skill, purchase or by prescription, or in any other manner whatsoever, and also any
stridhana.
The words female Hindu are interpreted to include daughters. 10 Thus, as held in the case of Jose
v. Ramakrishnan Nair,11 where the father puts the daughter in possession of any property, it would fall
within the purview of s.14. In Punithavalli v. Ramalingam,12 it was held that the estate taken by a female
Hindu u/s.14(1) is an absolute one, and is not defeasible. Its ambit cannot be cut down by any text or rule
of Hindu Law. In Kotturuswami v. Veeravva Jagannathan Pillai, 13 the term possession was held to mean
either the state of holding, or having in one’s hand or power. In Gulwant Kaur v. Mohinder Singh ,14 it was
4
Devi Prasad v. Triveni Prasad 1970 SC 1286; Kartar Singh v. Sujan Singh AIR 1974 SC 2161
5
Lalla Ram v.Gohi Ram 1972 All 540; Durgapada Jana v. Nemaicharan Jana (1986) 2 HLR 86 (Cal)
6
Lakshman Singh v. Kanwar (1962) 1 SCR 477
7
V.K.Jaishankar, Mrs.Vijayalakshmi v. G.Nambrajan and Anr (2007) 1 LW 509
8
AIR 1970SC 343
9
Dhanraj v. Suraj Bai AIR 1975 SC 1103; Jai Singh v. Shakuntala (2002) 3 SCC 634; Moolchand v. Amritbhai
(1976) MLJ 382; Nilima Mukherjee v. Kanta Bhushan Ghosh AIR 2001 SC 2725
10
Vidya v. Nand Rap (2001) 10 SCC 747; Dhanishtha Kalita v. Ramakanta AIR 2003 Gan 932
11
AIR 2004 Ker 16
12
AIR 1970 SC 1730
13
AIR 1959 SC 577; Radha Rani v. Hanuman Prasad AIR 1966 SC 216; Hussain Uduman v. Venkatachala Mudaliar
AIR 1975 Mad 8; Mahabir Pandey v. Sashi Bhushan AIR 1981 Cal 74
14
AIR 1987 SC 2251
 Nandlal Misra and Other v. Shyam Lal Misra

held that any property held by a woman in respect of s.14 of the HSA, would enlarge into an absolute
estate. In Mangatmal v. Punni Devi,15 where property was given to a female Hindu for residence by way of
a life estate, the Supreme Court held that as maintenance. There is no need for an explicit mention of the
fact that the life estate was given to maintain the female Hindu. 16
The property given to Mrs.Daulat Devi by her father, Ladoodanji, is a life interest in the ancestral
house, which is given to her as a place of residence for her and her family. This, as under s.14, is
essentially a transfer in aid of her maintenance, as residence is encompassed by maintenance. Thus, her
interest in the said property enlarges into absolute property.
2. THE APPELLANTS HAVE THE RIGHT TO A SHARE IN THE SUIT PROPERTY.
2.1. The property devolves upon the Heirs of Mrs.Daulat Devi by virtue of ss.15 and 16 of the Hindu
Succession Act, 1956.
As per s.15 of the HSA, the property of a female Hindu dying intestate shall devolve upon her sons
and daughters, and husband, if present, in preference to other heirs enlisted, such as the heirs of the
husband, the mother and the father of the female, the heirs of the father, and the heirs of the mother. S.15
propounds a definite and a uniform scheme of succession to the property of a female Hindu who dies
intestate, after the commencement of the act. There are also rules set out in s.16 of the Hindu Succession
Act which have to be read along with s.15 of the Act. 17 The heritable property of a female intestate devolves
upon her heirs enumerated in the five entries. 18 Sons of the intestate female are preferential heirs, and take
in equal shares.19
The inherited property of a female Hindu dying intestate automatically devolve upon her heirs,
whereby her sons, daughters if any, and husband, take in equal shares, as was held in Meyappa v.
Kannappa.20 At the time of death, if the woman is in possession of any property that comes under the
gamut of s.14 of the HSA, that property would devolve upon her heirs and they will be entitled to prosecute
a suit for partition.21 S.15 explicitly states that in the absence of class I heirs (son, daughters & husband)
the property of a female Hindu will go to her husband's heirs and only if these heirs are not there, will the
property devolve upon her mother and father. However, in the absence of the mother and father, the

15
1996 SC 172
16
Dharamwati Bai v. Shiv Singh AIR 1991 MP 18; Makesh Chand Sharma v. Raj Kumari Sharma 1996 SC 869
17
Report of the Law Commission, No.207, June, 2008, on Amendment of s.15 of the Hindu Succession Act, 1956.
18
Meenakshamma v. MC Nanjudappa AIR 1993 Kant 12
19
Rankanidhi Sahu v. Nandkishore Sahu AIR 1990 Ori 64
20
AIR 1976 Mad 154; Emma v. Gudiseva AIR 1976 AP 337; Mahadevappa v. Gauraman AIR 1973 Mys 142
21
Subbulakshmi v. Ramalakshmi AIR 1964 Mad 76; Banarsi v. Marchhia AIR 1967 AP 340; Ranganayakamma v.
Rajeshwaramma AIR 1964 AP 380; Shib Dai v. Ghani Lal AIR 1965 J&K 11
 Nandlal Misra and Other v. Shyam Lal Misra

property will again devolve upon the heirs of the father and only if there are no heirs of father will the
property devolve upon the heirs of the mother.
2.2. A Dwelling house can be subject to a partition.
Dwelling houses can be subject to partition, as was held in the case of Nirupama v. Baidyanath.22
In Ashima v. Kalli,23 it was held that as long as the intrinsic value of the property is not destroyed, the
partition maybe effected. However, even where the intrinsic value of the house is likely to be affected by
such partition, a money compensation can be granted where the house may be sold in order to effect the
partition required.
2.3. In Arguendo, even if Shyam’s adoption be valid, the property shall still devolve upon all the
coparceners in the family, on account of “throwing into common stock”
When a coparcener deals with his separate property in such a manner that he leaves no doubts
that he wants to treat it as part of the joint family property, such property becomes joint family property, by
virtue of what is called as throwing into common stock . In Mallesappa v. Mallappa,24 Justice
Gajendragadkar held that the conduct on which the plea of blending is based, must clearly and
unequivocally show the intention of the owner of the separate property to convert his property into an item
of joint family property.
To establish such intention, there must be a clear intention of waiver of separate property. 25 In
Narayam v. Chamaraju,26 Justice Ramaswami held that the important point to keep in mind is that the
separate property of a Hindu Coparcener ceases to be his separate property and acquires the
characteristics of joint family property, not by mere act of physically mixing with the joint family property, but
by his own volition and intention by waiving or surrendering his rights as separate property.
Such an intention can only by conduct, words, and acts, as was held in Gowli v. Commissioner of
Gift Tax.27 Per se, a female member of the joint family has no power to throw her separate property into
common stock, only coparceners have the power for the same. 28 Where a coparcener has a house and
allows others to live in it, it is a clear cut indication of the intention to blend the property in question. 29

22
AIR 1985 Cal 406
23
(1884) 10 Cal 675
24
AIR 1961 SC 1268; Lakireddi v. Lakireddi AIR 1963 SC 1601
25
Narayanan v. Radhakrishna AIR 1976 SC 1715; Madanlal v. Mah AIR 1992 SC 1254; Jupidi v. Supidi AIR 1994
AP 134
26
AIR 1968 SC 1276; Ashutosh v. Vysraju (1972) 38 CLT 857
27
AIR 1970 SC 1722
28
Pushpa v. CIT AIR 1977 SC 2230
29
Neel Kanth v. Ramchandra AIR 1991 Bom 10
 Nandlal Misra and Other v. Shyam Lal Misra

In the present case, it stands clear that the property has been a part of the hotchpot, or the
common stock, as the entire family of 14 people are residing within its premises. This indicates that there is
no “separate” character to the same.
 Nandlal Misra and Other v. Shyam Lal Misra

PRAYER FOR RELIEF

Wherefore in the light of issues raised, arguments advanced and authorities cited, it is humbly prayed before
this Hon’ble Court to:
 Allow the Civil Appeal
 Set-aside the District Court Judgment
 Grant that the Appellants have a share in the suit property
in light of equity, justice and good conscience for which the Counsel may forever pray.

Counsel for the Appellants