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CHETTINAD SCHOOL OF LAW INTRA-COLLEGE MOOT COURT

FAMILY LAW ASSIGNMENT, 2023
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BEFORE THE HONORABLE SUPREME COURT OF INDIA

CIVIL APPEAL NO. DIARY NO.32601 OF 2018

In the matter of

VINEETA SHARMA………………….. (APPELLANT)

V.

RAKESH SHARMA & Ors…………………… (RESPONDENT)

WITH

SPECIAL LEAVE PETITION (C) NO.684 OF 2016

SPECIAL LEAVE PETITION (C) NO.35994 OF 2015

SPECIAL LEAVE PETITION (C) NO.38542 OF 2016

SPECIAL LEAVE PETITION (C) NO.6403 OF 2019

SPECIAL LEAVE PETITION (C) NO.14353 OF 2019

SPECIAL LEAVE PETITION (C) NO.24901 OF 2019

SPECIAL LEAVE PETITION (C) NOS.17661767 OF 2020

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MEMORIAL ON BEHALF OF THE RESPONDENT
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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………………………………….………3

INDEX OF AUTHORITIES ………………………………………………………………..…4

STATEMENT OF JURISDICTION…………………………………………………………...5

STATEMENT OF FACTS ……………………………………………………………………6,7

STATEMENT OF ISSUES ……………………………………………………………………8

SUMMARY OF ARGUMENTS………………………………………………………………9

ARGUMENTS ADVANCED ………………………………………………………………10-

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1. WHETHER DAUGHTERS HAVE AN EQUAL RIGHT IN THE JOINT FAMILY

PROPERTY THE SAME AS THE SON OF THAT FAMILY AFTER THE
AMENDMENT OF THE HINDU SUCCESSION ACT,1956?

2. WHETHER THE PROPERTY WAS SETTLED BY WAY OF ORAL PARTITION

DATED 21ST JULY 2001?

3. WHETHER THE SUIT IS MAINTAINABLE IN VIEW OF SECTION 23 OF THE

HINDU SUCCESSION ACT?

PRAYER………………………………………………………………………………………13

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LIST OF ABBREVIATIONS
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Sec Section
HC High Court
SC Supreme Court
Art Article
SCC Supreme Court Cases
Del Delhi
AIR All India Report
HUF Hindu Undivided Family
JHF Joint Hindu Family

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INDEX OF AUTHORITIES
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BOOKS
Family Law I, Prof. Kusum, Lexis Nexis (4th Edition)
Cases and Materials on Family Law, Kusum, Lexis Nexis (4th Edition)
Family Law in India, Prof. G.C.V. Subba Rao, Narender Gogia & Company (10th Edition)
Family Law, B.M.Gandhi, Eastern Book Company (Volume 2)
Family Law, Dr Paras Diwan
Lectures on Family Laws (Hindu, Muslim & Personal Laws), Dr Rega Surya Rao (2nd Edition)

STATUTES
Indian Contract Act, 1872 (Bare Act)
Indian Constitution, 1947 (Bare Act)
Hindu Succession Act, 1956 (Bare Act)
Hindu Women’s Right to Property Act, 1937

WEBSITES:
1. http://www.findlaw.com
2. http://www.judis.nic.in
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com

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STATEMENT OF JURISDICTION
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THE COUNSEL ON BEHALF OF THE DEFENCE HAS HUMBLY SUBMITTED THE

MEMORANDUM OF DEFENCE TO THE HON’BLE SUPREME COURT OF INDIA UNDER
ARTICLE 32 OF THE INDIAN CONSTITUTION, 1960.

ARTICLE 32 IN THE CONSTITUTION OF INDIA 1949

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

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STATEMENTS OF FACTS
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1. Vineeta Sharma, the plaintiff has filed this suit against the defendants for the partition of
built-up premises A-53, south extension, part-II, New Delhi. Here defendants 1 and 2
refer to the brothers of the plaintiff and defendant 3 was the mother of the plaintiff.

2. The plaintiff, in this case, is claiming her rightful share in a property known as the suit
premises. The premises were originally purchased and developed by her father. The
plaintiff’s father acquired the suit premises from his own earnings, savings and loans and
had constructed the same in March 1966. He lived there with his family and also let out
some of it to tenants. The plaintiff and her three brothers became the property's legal heirs
after the father's death. However, Dr Shailendra Sharma, one of the brothers, also passed
away later. The plaintiff argues that she is entitled to a 1/4th share in the suit premises
because her father and brother died without leaving a will. She claims that she and
defendants 1 and 2 made an oral agreement on July 21, 2001, stating that the property
would be divided and that she would receive the entire barasati floor with the roof as her
one-fourth share if the division was not possible. She claims that some of her movable
assets are still on the property, and she stays in the suit premises whenever she visits her
father's house.

3. However, the plaintiff asserts that defendants no. 1 and 2 have been avoiding fulfilling
their obligation to give her the legitimate share. So she sent them a notice on October 17,
2001, demanding the partition of the suit premises. In response, defendants no. 1 and 2
claimed that the suit premises were the property of the HUF and that their father had
made a will in their favour, although they could not produce the will. The plaintiff argues
that the suit premises will not be treated as Hindu Undivided Family property and denies
the existence of any will.

4. The plaintiff values the suit premises at Rs. 40 lakhs and asserts that she is currently in
possession of the property. She believes that she only needs to pay court fees of Rs. 19.50

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 for the relief of partition. In Nutshell, the plaintiff is seeking her rightful share in the suit
premises, claiming that her father and brother died intestate and that there was an oral
agreement regarding the division of the property. She alleges that defendants no. 1 and 2
have been withholding her share and asserts that the suit premises were never considered
HUF property.

5. Defendants No. 1 and 2 have contested the lawsuit and presented separate written
statements with similar arguments. They claim that the plaintiff, being a married
daughter, has limited rights in the suit premises and therefore cannot seek its partition.
They dispute the plaintiff's claim of being in possession of any part of the property and
argue that the lawsuit is improperly valued and should be dismissed.

6. According to defendants no. 1 and 2, after their father's death, their mother (defendant no.
3) has been residing with defendant no. 2. They further assert that whenever the plaintiff
visits her mother, she returns to her marital home on the same day, implying that she does
not have a significant connection to the suit premises. They deny any meeting taking
place on July 21, 2001, and refute the plaintiff's allegation that they agreed to the
partition of her one-fourth share.

7. Defendants No. 1 and 2 also claim that they were informed about the existence of a will
by Sh. B.D. Sharma, their father's elder brother, in the presence of the plaintiff. However,
Sh. B.D. Sharma passed away before providing them with the will, making it unavailable
to them. They argue that this will could potentially impact the distribution of the
property.

8. Additionally, defendant no. 1 asserts that he significantly contributed to the acquisition

and development of the suit premises by paying Rs. 11,000 to his father to repay loans
taken for the construction of the property. This further supports their argument against the
partition of the property. In summary, defendants no. 1 and 2 dispute the plaintiff's rights
in the suit premises due to her marital status and deny her possession of any part of the
property. They challenge the valuation of the lawsuit and claim that a will exists but is
currently unavailable. Defendant No. 1 also highlights his financial contributions towards
the property's acquisition and development.

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STATEMENT OF ISSUES

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1. WHETHER DAUGHTERS HAVE AN EQUAL RIGHT IN THE JOINT FAMILY

PROPERTY THE SAME AS THE SON OF THAT FAMILY AFTER THE
AMENDMENT OF THE HINDU SUCCESSION ACT,1956?

2. WHETHER THE PROPERTY WAS SETTLED BY WAY OF ORAL PARTITION

DATED 21ST JULY 2001?

3. WHETHER THE SUIT IS MAINTAINABLE IN VIEW OF SECTION 23 OF THE

HINDU SUCCESSION ACT?

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SUMMARY OF ARGUMENTS

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1. WHETHER DAUGHTERS HAVE AN EQUAL RIGHT IN THE JOINT FAMILY

PROPERTY THE SAME AS THE SON OF THAT FAMILY AFTER THE
AMENDMENT OF THE HINDU SUCCESSION ACT,1956?
YES. It is humbly submitted before the Hon’ble Court that the daughters have an equal right in
the joint family property the same as the son of that family only after the amendment of the
Hindu succession act,1956.

2. WHETHER THE PROPERTY WAS SETTLED BY WAY OF ORAL PARTITION

DATED 21ST JULY 2001?
NO. It is humbly submitted before the Hon’ble court that the property was not settled by way of
oral partition dated 21st July 2001. The oral partition does not satisfy any of the essentials of it.
There was a presence of an unregistered will.

3. WHETHER THE SUIT IS MAINTAINABLE IN VIEW OF SECTION 23 OF THE

HINDU SUCCESSION ACT?
YES. It is humbly submitted before the court that the present suit is maintainable under section
23 of the Hindu Succession Act of 1956.

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ARGUMENTS ADVANCED
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1. WHETHER DAUGHTERS HAVE AN EQUAL RIGHT IN THE JOINT FAMILY

PROPERTY THE SAME AS THE SON OF THAT FAMILY AFTER THE
AMENDMENT OF THE HINDU SUCCESSION ACT,1956?
YES. It is humbly submitted before the Hon’ble Court that the daughters have an equal right in
the joint family property the same as the son of that family after the amendment of the Hindu
succession act,1956.
Prior to the amendment, Hindu women faced numerous challenges in claiming their rightful
share of joint family property. The patriarchal nature of the system often disadvantaged women,
as their interests were subordinated to those of male coparceners. Daughters, in particular, were
denied an equal share in ancestral property, leading to instances of economic dependence and
vulnerability. Recognizing the need for gender equality in matters of property rights, the Indian
government took a progressive step by amending the Hindu Succession Act in 2005.
The amendment aimed to rectify the historical injustices suffered by Hindu women and bring
about a more equitable distribution of joint family property. The amendment abolished the
concept of the coparcenary and recognized daughters as coparceners in their own right. It granted
them equal rights as sons to inherit ancestral property. Daughters, including married daughters,
became coparceners by birth, ensuring their equal entitlement to joint family property.
Furthermore, the scope of the law was expanded to include all forms of ancestral and self-
acquired property, giving women broader access to family assets.
One of the most crucial changes introduced by the amendment was granting daughters equal
inheritance rights in ancestral property. Previously, daughters were often excluded from
coparcenary rights, resulting in unequal distribution of family assets. After the amendment,
daughters became coparceners by birth and gained an equal share in ancestral property. This
change not only promoted gender equality but also recognized the inherent right of daughters to

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inherit and manage family assets. The amended Hindu Succession Act broadened the definition
of joint family property to include all types of ancestral and self-acquired property.
The amendment of the Hindu Succession Act empowered Hindu women by providing them with
a legal framework to assert their rights and claim their share of joint family property. This
recognition of their rights increased their financial independence and autonomy. Women now
have the power to make decisions regarding the use and disposition of their inherited property,
ensuring their economic well-being and stability.

2. WHETHER THE PROPERTY WAS SETTLED BY WAY OF ORAL PARTITION

DATED 21ST JULY 2001?

NO. It is humbly submitted before the Hon’ble court that the property was not settled by way of
oral partition dated 21st July 2001. There are a few essentials for proving oral partition between
the parties to the suit. They are:
1. Reliable Witness Testimonies- Seek witnesses who were present during the oral partition
and can provide credible testimonies.
2. Look for consistent conduct and behaviour by family members that align with the terms
of the alleged oral partition. This can include occupying and using specific portions of the
property according to the purported division.
3. While an oral partition lacks formal documentation, there may be supporting documents
that indirectly prove its existence.
4. Any admissions or statements made by family members acknowledging the oral partition
can be crucial evidence.
In order to prove the presence of oral partition, all of the above essentials need to be fulfilled.
But here in the present scenario, it was not fulfilled. Hence it is evident that there was no oral
partition between the parties.
But there was an existence of a will by Sh. B.D. Sharma, their father's elder brother. The will
was made by the appellant’s father on the said immovable property with an eye witness
(Sharma) but the will was not currently available/ present and the only witness to the will also
died.

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It also clarified that an unregistered oral partition, without any contemporaneous public
document, cannot be accepted as the statutorily recognised mode of partition. However, in
exceptional cases where the plea of oral partition is supported by public documents and partition
is finally evinced in the same manner as if it had been affected by a decree of a court, it may be
accepted,” The High Court held that the oral partition and unregistered partition deeds are
excluded from the definition of 'partition' used in the Explanation to amended Section 6(5).

3. WHETHER THE SUIT IS MAINTAINABLE IN VIEW OF SECTION 23 OF THE

HINDU SUCCESSION ACT?
YES. It is humbly submitted before the Hon’ble Court that the present suit is maintainable under
section 23 of the Hindu Succession Act of 1956. Section 23 of the Hindu Succession Act, 1956,
states that any person who has an interest in the estate of a deceased Hindu can file certain suits.
These suits include suits for partition, possession, recovery of possession, injunction, declaration
of title, and setting aside alienation. The section allows co-owners, co-parceners, or individuals
with legal rights to the property to seek remedies through the court. It provides a legal
framework for resolving disputes and asserting rights related to the deceased Hindu's estate,
ensuring that rightful heirs or claimants can pursue appropriate legal actions to protect their
interests. Here are some of the suits which are maintainable under section 23 of the Hindu
Succession Act of 1956.
1. Suit for Partition: A suit for partition can be filed by any co-owner or co-parcener of the
deceased Hindu's estate. This suit seeks to divide the property among the rightful heirs or
co-owners in accordance with their share.
2. Suit for Possession: A suit for possession can be filed by any person who has a legal right
to possess a specific portion or property within the deceased Hindu's estate. This suit is
typically filed against a person wrongfully occupying or withholding possession of the
property.
3. Suit for Setting Aside Alienation: If there is a suspicion of fraudulent or illegal transfer of
the deceased Hindu's property, a suit can be filed to set aside the alienation. This suit
aims to cancel any unauthorized transfer or disposition of the estate.

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These were a few of the example suits which are maintainable under the Hindu Succession Act
of 1956. The court has jurisdiction to try this matter of issue.

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PRAYER
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THEREFORE, IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED,

REASONS GIVEN AND AUTHORITIES CITED, IT IS HUMBLY PRAYED BEFORE THE
HON’BLE COURT TO ADJUDGE AND DECLARE:

1. That, the respondent is not liable for committing the offence of gender-based
discrimination under Article 14 of the Indian Constitution.
2. That the respondent has high priority over the said premises because he has helped the
appellant’s father to repay the loan by paying him Rs.11,000.
3. That, there was no oral partition between the parties to the suit.
4. That, a will was executed by the appellant’s father.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted

SD/-

COUNSEL FOR THE RESPONDENT

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