RAYAT COLLEGE OF LAW, RAILMAJRA

SUBJECT – PROPERTY LAW

PROJECT WORK
MOOT MEMORIAL.

SUBMITTED TO: SUBMITTED

BY:

Mr. SUKHWINDER SINGH NIVEDITA

SHARMA.

ASSISTANT PROFESSOR LL.B. II YEAR (IV

SEM).
SUBJECT TEACHER-PROPERTY LAW
221403.
 THE HON’BLE SUPREME COURT, INDIA

BEFORE SUBMISSION TO THE HONOURABLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE HONOURABLE SUPREME COURT OF INDIA

PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA SEEKING

DECLARATION AND/OR ANY OTHER JUST AND EQUITABLE RELIEFS

IN THE MATTER OF

MR. ARJUN GANGULY.………..……………………. PETITIONER

Vs.

MR. GAUTAM GANGULY………………………… RESPONDENT

WRITTEN SUBMISSIONS ON THE BEHALF OF PETITIONER

 TABLE OF CONTENTS

Table of Contents

LIST OF ABBREVIATIONS....................................................................................................1
INDEX OF AUTHORITIES......................................................................................................2
I. BOOKS...........................................................................................................................2

II. LINKS REFERRED....................................................................................................3

III. CASES.........................................................................................................................4

IV. STATUTES.................................................................................................................7

STATEMENT OF JURISDICTION..........................................................................................8
STATEMENT OF FACTS........................................................................................................9
ISSUES RAISED.....................................................................................................................10
SUMMARY OF ARGUMENTS.............................................................................................11
WRITTEN SUBMISSIONS....................................................................................................13
PRAYER..................................................................................................................................22
 LIST OF ABBREVIATIONS

Abbreviation Full Form

¶ Paragraph
& And
Add. Additional
AIR All India Reporter
Anr. Another
Cr.P.C. Code of Criminal Procedure
CriLJ Criminal Law Journal
ed. Edition
Exh. Exhibit
Hon’ble Honourable
i.e. That is
IPC Indian Penal Code
Mohd. Mohammed
M.P. Madhya Pradesh
MPLJ M.P. Law Journal
NOC Notes on Cases
Ors. Others
r/w Read with
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
Sr. Senior
AP Andhra Pradesh
u/s Under Section
v. Versus

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 INDEX OF AUTHORITIES

I. BOOKS

 THE TRANSFER OF PROPERTY ACT-

1. MULLA,THE COMMENTARY ON THE TRANSFER OF PROPERTY

ACT(LEXIS NEXIS BUTTERWORTHS, TENTH EDITION, 2006)
2. R.K. SINHA,THE TEXTBOOK ON TRANSFER OF PROPERTY ACT,1882

 THE CONSTITUTION OF INDIA-

1. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA,

WADHWA, INDIA, 2007, 8TH EDITION, VOLUME I AND II
2. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (LEXIS NEXIS EIGHT
EDITION, 2018)
3. H.M. SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL
PUBLICATIONS, INDIA, 2004, 4TH EDITION, VOLUME I,II AND III.

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 II. CASES

 CASES MENTIONED

1. MOOL RAJ V. JAMMA DEVI........................................... AIR 1950 SC 169:1950 SCR

453.

2. KOLLI RAJESH CHOWDARY V. STATE OF AP AND OTHERS……2019 (3) ALD 229.

3. PINNAMA RAJU RANGA RAJU V. THE STATE OF AP……...W.P. NO. 15003 OF

2014.

4. AASOKAN V. LAKSHMIKUTTY & ORS………………………. (2007) 13 SCC 210.

III. STATUTES

1. MAINTAINENCE AND WELFARE OF PARENTS AND SENIOR CITIZENS

ACT, 2007
2. THE REGISTRATION ACT, 1908
3. THE TRANSFER OF PROPERTY ACT, 1882
4. CONSTITUTION OF INDIA, 1949

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4
 STATEMENT OF JURISDICTION

The Honourable Supreme Court of India has the jurisdiction to entertain and dispose of the
present case by virtue of Article 136 of the Constitution of India. The Petitioner approached
before the Supreme Court through Special Leave Petition .i.e.,

Article 136 provides special leave to appeal by the Supreme Court-

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

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 STATEMENT OF FACTS

 BACKGROUND
1. Sri Shri Gautam Ganguly, aged 62, a retired government employee drawing about Rs.
10,000/- per month as pension. His first wife died in 2010. He lives with Mr. Arjun
Ganguly (Son) and Mrs. Saara (daughter-in-law). In January 2011, When Mr. Gautam
expressed his wish to have live in relationship with Ms. Neelima (aged 45), they both
were rudely shocked to listen to his wish. But later, they relented and requested their
father that half share in the property in Hooghly Estates, (value was estimated to be
Rs.10, 00,000/-) should be transferred to them.
 TRANSFER OF PROPERTY
2. Shri Gautam Ganguly transferred half share in the property to his son in May, 2011
through a Registered Gift Deed to maintain peace in the family. However, the son and
daughter-in-law started insulting to Ms. Neelima and also does unbearable ill-treatment
for more than one year, thereafter Gautam and Neelima shifted their residence to other
premises.
 LEGAL ACTIONS THEREOF
3. Subsequently in 2013, Mr. Gautam Ganguly lodged a complaint to the Sub-Collector,
City of Kolkata, seeking an order to revoke the Gift Deed executed in favour of his son
under Sec. 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
 ACTIONS TAKEN BY TRIBUNAL & COURT
4. In the Tribunal, the Sub-Collector passed an order that ‘elderly parents can take back
property gifted to a son, if he ill-treats them’. This order permits the Complainant the
father to withdraw the gift deed from his son, since his son is not providing basic needs of
parents. In the Appellate Tribunal, the District Court at Chiplun reversed the order of the
Tribunal on ‘accepting the argument of son that an accepted gift through registered deed
cannot be revoked’ under the provisions of Transfer of Property Act, 1882 read with the
Registration Act, 1908.
5. Thereafter, Mr. Gautam Ganguly got relief from Calcutta High Court when the High Court
restored the order of the Tribunal. As a last resort, Mr. Arjun Ganguly (son of Mr.
Gautam Ganguly) preferred a Special Leave Petition before the Supreme Court.

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 ISSUES RAISED

The following issues have arisen for determination before the Hon’ble Court in the
instant matter:
A.
WHETHER THE GIFT DEED IS REVOCABLE OR NOT?

B.
WHETHER SECTION 23 MAINTAINANCE OF WELFARE OF PARENTS AND
WELFARE AND SENIOR CITIZENS ACT, 2007 IS
MAINTAINABLE OR NOT?

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 SUMMARY OF ARGUMENTS

A. WHETHER THE GIFT DEED IS REVOCABLE OR NOT?

It is humbly submitted by the petitioner that the Hon’ble Supreme Court Has the power to
grant Special Leave under Article 1361 of the Constitution of India and the petition filed that
the Registered Gift-Deed cannot be revoked. The Calcutta High Court held that the
revocation of registered gift deed is valid, However, the council brings to the notice of
Hon’ble Supreme Court that where condition has not been expressly laid down in the gift
deed. It might be treated simply as the wish or desire of the donor, and is not a condition
upon the breach of which gift could be made revocable by donor.

B. WHETHER SECTION 23 MAINTAINANCE OF WELFARE OF PARENTS

AND SENIOR CITIZENS ACT, 2007 IS MAINTAINABLE OR NOT?

The counsel submits before the Hon’ble court, that the gift deed cannot be revoked by the
petitioner. As per The Maintenance of Welfare of Parents and Senior Citizens Act, 2007. The
counsel submits that the judgement of tribunal and the Calcutta High Court is not justiciable.
It is humbly submitted before the Honorable Supreme Court that the gift deed cannot be
revoked. The gift deed according to the facts of the present case can not be revoked under
Sec. 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

1. Article 136 - The six special leave to appeal in the Supreme Court.
(1) Notwithstanding anything infrastructure, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, , sentence or order in any cause or matter passed or
made by any court or tribunal in territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence, or order passed or made by
any court out tribunal constituted by her under any war relative to the Armed forces.

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 WRITTEN SUBMISSIONS

A. WHETHER THE GIFT DEED IS REVOCABLE OR NOT?

It is humbly submitted by the petitioner that the Hon’ble Supreme Court Has the power to
grant Special Leave under Article 1361 of the Constitution of India and the petition filed that
the Registered Gift-Deed cannot be revoked. The Calcutta High Court held that the
revocation of registered gift deed is valid, However, the council brings to the notice of
Hon’ble Supreme Court that where condition has not been expressly laid down in the gift
deed. It might be treated simply as the wish or desire of the donor, and is not a condition
upon the breach of which gift could be made revocable by donor.

SECTION 126 When gift may be suspended or revoked.

1. It states that - The donor and donee may agree that on the happening of any specified
event which does not depend on the will of the donor a it shall be suspended or revoked; but
a gift which the parties agree shall be revocable wholly or in part at the mere well of the
donor is void wholly or in part, as the case may be.

A gift also be revoked in any of the cases (save want or failure of consideration) in which, if
it were a contract, it might be rescinded.

Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affect the rights of transferees for
consideration without notice.

As per the bare wording of the above-mentioned section, it is put forward that like other
transfers, gift two can be made subject to certain conditions. Donors may make a gift subject
to a condition of its being suspended or revoked. The condition revoking the gift must be
expressed, which should not be merely in the form of a wish or desire. In other words, the

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condition on the non-fulfilment of which the donor may revoke the gift must be expressly
laid down in the deed.

Mool Raj v. Jamma Devi1 – In this case, a gift of certain properties was executed in the luma
of the past and future services rendered by donee to donor. However, failure of the Donee to
render services to donor or to maintain donor in future was not specified to be a condition for
revocation of the gift-deed. The Himachal Pradesh High Court held that since the condition
of revocation of gift upon donee’s failure to render services to donor was not laid down in the
deed, it was unconditional gift and therefore cannot be revoked by the donor. Where a
condition has not been expressly laid down in the gift-deed, it might be treated simply as the
wish or desire of the donor and is not a condition upon the breach of which gift could be
made revocable by the donor.

As there was no prerequisite condition expressly mentioned in the Gift-Deed, the reason of
revocation being quarrels within family members cannot be a ground for revocation.

Kolli Rajesh Chowdary v. State of AP and Others 2– In this case, it was held that where the
toner has delivered possession of the gift property to the Dhoni and now wants to cancel the
same on the ground that the Donnie got the same registered in his name by deceiving the
donor. The cancelation cannot be permitted has per rule. Cancelation requires mutual consent
of both parties and their participation. It cannot be cancelled unilaterally by one party alone at
its cancelation takes place. It will not be valid.

It is clearly stated in the above-mentioned case’s judgement that the cancellation of the gift-
deed requires mutual consent, even if the donee is alleged to have deceived the donor.
Therefore, it is presented before the Hon’ble Court that this Registered Gift-Deed cannot be
revoked.

2. IS THERE ANY UNDUE INFLUENCE? Revocation by Recession of Contract- Under

Section 126 a gift is revoked also on any of the grounds on which it might be rescinded has it
been a contract. Section 19 of the Indian Contract Act provides “that where consent to an
agreement is caused by cohesion, undue influence, fraud or misrepresentation. The
agreement is a contract voidable at the option of the party whose consent was so obtained.”
Thus, where the gift is not made voluntarily because of any of the factors mentioned above,
the gift may be revoked by the donor.

1. AIR 1950 SC 169: 1950 SCR 453.

2. AIR 2019 AP 40.

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The learnt respondent has pleaded that That allegedly, there was undue influence on him, due
to which he had to transfer the property as a registered gift-deed in the petitioner’s name. As
per the facts mentioned, the respondent was in no way in a submissive position. He was not
dependent on the petitioner as he himself was a pensioner. Moreover, he had proposed to live
with his partner in a live-in relationship, that too within a year of petitioner’s mother’s death.
It was already devastating for a son to see his father with some other woman after his
mothers’s death, that too within a short span of time. The petitioner and his wife did accept
their relationship, however, there were quarrels which are evident in every household.

Pinamma Raju Ranga Raju v. The State of AP 1- Heard in this case that the unilateral
cancelation of the registered gift deed is against law.

Aasokan v. Lakshmikutty & Ors.2 – The honorable Apex Court held in this case that once a
gift is complete, it cannot be rescinded for any reason whatsoever. The subsequent conduct of
a donee cannot be a ground for recession of a valid gift.

Therefore, it is requested before the Hon’ble Supreme Court that the points for revocation of
the Registered Gift-Deed, as presented by the respondents shouldn’t be considered.

Whether section 23 of MAINTAINANCE OF PARENTS WELFARE AND SENIOR

CITIZENS is maintainable or not?

It is humbly submitted before the Honorable Supreme Court that the gift deed cannot be
revoked. The gift deed according to the facts of the present case can not be revoked under
Sec. 126 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

1. Section -4 Maintenance of parents and senior citizens. — (1) A senior citizen

including parent who is unable to maintain himself from his own earning or out of the
property owned by him, shall be entitled to make an application under section 5 in case of
—
(i) parent or grand-parent, against one or more of his children not being a minor;
(ii) A childless senior citizen, against such of his relative referred to in clause (g) of
section 2.
(2) The obligation of the children or relative, as the case may be, to maintain a senior
citizen extends to the needs of such citizen so that senior citizen may lead a normal life.
1. W.P. No. 15003 of 2014.

11
2. (2007) 13 SCC 210.

(3) The obligation of the children to maintain his or her parent extends to the needs of
such parent either father or mother or both, as the case may be, so that such parent may
lead a normal life.
(4) Any person being a relative of a senior citizen and having sufficient means shall
maintain such senior citizen provided he is in possession of the property of such citizen or
he would inherit the property of such senior citizen:
Provided that where more than one relatives are entitled to inherit the property of a senior
citizen, the maintenance shall be payable by such relative in the proportion in which they would
inherit his property.

Conditions required for claiming maintenance

As per the bare wording of the Section mentioned above, it is quite clear the persons who are
unable to maintain themselves are have the right to claim benefits from this act. However, it is
evident from the facts of the case that the respondent is a pensioner of Rs. 10,000 per month.
Therefore, he is not dependent and hence, not in a submissive state in respect to the petitioners.

Thus, this case is not maintainable under this section of the respected act because of the
noteworthy means of self-maintenance.

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 PRAYER

Therefore, in light of the facts presented, issues raised, arguments advanced and authorities
cited the Counsel on behalf of petitioner humbly pray before this Hon’ble Court that it may
be pleased –

 To turn over the judgement of Calcutta High Court because,

a) That, the parent here is liable to maintain himself as he gets pension and is
also liable to take care of his partner as he is in living relationship so the
maintenance is not provided to them and the gift deed is not revoked.
b) That , the petitioner cannot revoke is registered gift deed of property; and
 Pass any other order or make directions as the Hon’ble Court may deem fit to meet
the interest of justice, equity and good conscience in the instant case.

And for this act of kindness, the Petitioner shall duty bound forever pray.

Respectfully Submitted on Behalf of the Petitioner;

COUNSELS FOR

PETITIONER

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