URN:

Sri. G.VENKATSWAMY MEMORIAL MOOT

COURT COMPETITION, 2016

BEFORE
THE HONBLE MOOT COURT

SURESH AGARWAL..APPELLANT / PETITIONER

VS

GEETHA AGARWAL...RESPONDENT

MEMORIAL FOR THE APPELLANT

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

ON SUBMISSION
OF MEMORIAL ON BEHALF OF APPELLANT
(SURESH AGARWAL)
Here after APPELLANT

WRITTEN SUBMISSION ON BEHALF OF APPELLANT 2

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

TABLE OF CONTENT

LIST OF ABBREVIATIONS.Page 4
INDEX OF AUTHORITIES.
o JUDICIAL PRECEDENT.....Page 6
o BOOKSPage 9
STATEMENTS OF
FACTS.............Page 11
STATEMENTS OF JURISDICTION..
..Page 13
STATEMENT OF
ISSUES....Page14
SUMMARY OF
ARGUMENTS....Page 15
ARGUMENTS ADVANCED.Page 17
PRAYER FOR RELIEF..
Page 31

WRITTEN SUBMISSION ON BEHALF OF APPELLANT 3

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

LIST OF ABBREVIATIONS
ABBREVIATION

EXPANSION

&

ABR
AIR
AIR
All.
Anr.
AP
Art.
Bom.
Edn. / Ed.
Guj.
HC
Hon`ble
HONBLE
I.L.R
Id.

And
Paragraph
All India Reports- Bombay High Court Reports
ALL INDIA REPORTE.
All India Reporter
Allahabad
Another
Andhra Pradesh
ARTICLE.
Bombay
Edition
Gujarat
High Court
Honorable
HONORABLE.
Indian Law Reporter
Ibid

Ker.
L.J.
Ltd.
Mad.
MP
Mr.
No.
No.
Ors.
Ors.
Pat.
Pg.
Pvt.
Re.
SC

Kerela
Law Journal
Limited
Madras
Madhya Pradesh
Mister
NUMBER.
Number
OTHERS.
Others
Patna
Page
Private
Reference
SUPREME COURT.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

SC
SCC
SCR
Sd/
UOI
UP
v./vs.
Vol.

Supreme Court
SUPREME COURT CASES.
Supreme Court Reporter
Signed
Union Of India
Uttar Pradesh
VERSUS.
Volume

INDEX OF AUTHORITIES

CASE

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

CIT v Seth Govindram Sugar Mills

[1965] 57 ITR 510 (SC)

Sushila Devi Rampuria v ITO

1960] 38 ITR 316 (Cal.)
Smt. Champa Kumari Singhi v Addl. Member,
Board of Revenue
Seth Govindram Sugar Mills

1962] 46 ITR 81 (Cal.)

1966 AIR 24, 1965 SCR

Guramma v. Mallapa
1964 AIR 510, 1964 SCR
(4) 497
Devulapalli Kameswara Sastri vs. Polavarapu
Veeracharlu
Rani v. Shanta

(1911) ILR 34 Mad 422

1971 AIR 1028, 1971 SCR
(2) 603

Krishandas vs. Nathuram

49 All 149 (PC),

Palaniappa vs. Deivasikamony

A.I.R. 1917 P.C. 33. (22nd

March 1917.)

[i] (1812) 2 SD 42 (52)

[ii](1928) 30 BOMLR 1331
[iii](1907)34 IA 107
[iv](1920)43 Mad 824
[v]1964 AIR 510, 1964 SCR (4) 497
[vi](1924) 26 BOMLR 500

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

[vii] (1911) ILR 34 Mad 422

[viii]Misra Ranganath J. Hindu Law and Usage (15th edn.,2003), p.805
[ix] 1927 P.C. 37
[x]1917 P.C. 68.
[xi]http://www.scribd.com/doc/68527077/Alienation-Under-Hindu-Law.
[xii] Supra Note 10
[xiii]964 AIR 1385, 1964 SCR (6) 321.
[xiv] J. Hindu Law and Usage (15th edn.,2003), p.805.
[xv] Ibid.
[xvi](1935) 37 BOMLR 427.
[xvii]1979, All. 65.
[xviii]1978 A.P. 37.
[xix]http://www.lawyersclubindia.com/articles/Concept-of-Karta-in-Joint-HinduFamily-4678.asp#.Ux4svz-SySo.
[xx](1927) 29 BOMLR 856
[xxi]http://www.scribd.com/doc/68527077/Alienation-Under-Hindu-Law.
[xxii] 1856 6 MIA 393
[xxiii](1918) 20 BOMLR 724.
[xxiv] Supra note. 6, p.825.
[xxv] Dr. Paras Divan, Modern Hindu Law, 22ndEdn. 2013, p.331
[xxvi](1936) 38 BOMLR 1238

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

[xxvii]AIR 1965 My. 15

[xxviii]AIR 1950 Boom. 271
[xxix]AIR 1968 Boom. 8
[xxx] 1988 S.C. 576
[xxxi] AIR 1971 SC 776, (1970) 3 SCC 350, 1971 III UJ 132 SC
[xxxii]AIR 1952 Mad 435
[xxxiii] Supra Note 17.
[xxxiv](1954)Bom. 386 (F.B.)
[xxxv] (1972) I.T.R. 452
[xxxvi] 1917 P.C. 41
[xxxvii](1885) ILR 11 Cal 396
[xxxviii]1953 AIR 487, 1954 SCR 177

STATUTES

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

The Constitution of India, 1950.

Constitutional aspects of Hindu Law
Indian Succession Act,1956
Hindu Law
Family Law

JOURNALS REFERRED: All India Reporters

Supreme Court Cases
Indian Law Reporters

BOOKS REFFERED
PARAS DIWAN Hindu Law
Proff.G.C.V SUBBA RAO Family Law
D.PATHAKS Hindu Law and Constitutional Aspects 4th Edition
ASIA LAW HOUSE -Hindu Code
PARAS DIWAN-Modern Hindu Law
UNIVERSAL PUBLICATIONS-The Hindu Succesion Act,1956
PARAS DIWAN Family Law
DURGA DAS BASU Indian constitution.
MAMTA RAO- Indian constitution.
J.N PANDEY 52nd Edition Indian Constitution.
V.K SHUKLA- Indian constitution

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

ONLINE DATABASE REFFERED

www.westlaw.com
www.manupatra.com
www.indiankanoon.com

www.scconline.com

STATEMENT OF FACTS
Mr. Kantilal Agarwal, who was a successful businessman had acquired
different immovable and moveable properties in and around Hyderabad.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

He passed away in the year 1985, leaving behind his children Shyam
Agarwal, Sunil Agarwal and Susheela Agarwal.
After which, Mr.Shyam Agarwal became the Karta of the family. He passed
away in the year 1995 due to ill health.
Thereafter, Mr. Sunil Agarwal became the head of HUF. Whose children
include, Somesh Agarwal, Suresh Agarwal, Sailesh Agarwal and Geetha
Agarwal, grandchildren, Ramesh Agarwal and Ramya Agarwal (predecased
son Somesh Agarwals children), Kiran Agarwal. Keerthi Agarwal, Kalyan
Agarwal, Arjun Agarwal.
Sunil Agarwal ran,
(1)Non-Banking Finance Company by name SR Agarwal NBFC Jubilee
Hills, Hyderabad
(2) SR Agarwal Film Studio extending to acres 200, at Madhapur,
Hyderabad.
(3) A Farm House of 100 acres at Gandipet, Hyderabad.
Later, Sunil Agarwal alienated 15.00 acres by way of gift in favour of
Ramya and executed 15 acres of farm land by will favour of Ramesh
Agarwal.
Sailesh Agarwal married Sanjana, a Neurologist, who set up a nursing home
which had flourishing practice, studied medicine and obtained MD in
Cardiology at the expenses of joint family property.
After Sunil Agarwals death in 2005, Suresh Agarwal being elder among
coparceners became the "Karta" of Joint Hindu Family.
Later, he sold 30 acres of farm agricultural land for 50 Crores to one Mr.Anil
Kapoor to renovate film studio at Madhapur. He also mortgaged shares of
S.R. Agarwal NBFC for Rs.5 Crores to the State Bank of Hyderabad,
Baghlingampally Branch, Hyderabad to perform the marriage of Ramya
Agarwal aged 16 years.
Aggrieved by the acts of Suresh Agarwal, Geetha Agarwal filed a Suit before
District Court. The district court dismissed the suit.
Aggrieved by this judgement of the District Court, Mrs. Geetha Agarwal
preferred an Appeal before the Hon'ble High Court. The High Court held
that she could be Karta of Joint Hindu Family as per Hindu Succession
(Amendment) Act, 2005.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

Further, aggrieved by the judgement of the Hon'ble High Court, the

respondents preferred this Appeal before the Hon'ble Moot Court.

Kantilal
Agarwal
died
in1985
Susheela

Sunil and
Rama

Shyam
died 1995

Somesh
(died)

died
1998

died 2005

Sailesh and
sanjana

Suresh

Ramesh

Kiran

Ramya

keerthi

Kalyan

STATEMENT OF JURISDICTION

Geetha

Arjun

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

THE COUNSEL ON THE BEHALF OF APPELLANT HAS THE HONOR TO

SUBMIT THIS MEMORIAL TO THE HONORABLE MOOT COURT:THE CIVIL COURT HAS THE JURISDICTION TO ENTERTAIN THIS CASE
UNDER ARTICLE 133 OF INDIAN CONSTITUTION.

Article 133 in The Constitution Of India 1949

133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High
Court in the territory of India if the High Court certifies under Article 134A (a) that the case involves a substantial
question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be
decided by the Supreme Court
(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause ( 1 ) may urge
as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has
been wrongly decided
(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the
Supreme Court from the judgment, decree or final order of one Judge of a High Court

ISSUES RAISED
(1) Assuming the existence of HUF, whether Geetha Agarwal is a coparcener?

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

(2) If so, whether she is legally entitled to be the Karta of the HUF after the
enactment of Hindu Succession (Amendment) Act, 2005

(3) Whether the gift made in favor of Ramya Agarwal is valid?

(4) Whether the WILL made in favor of Ramesh Agarwal is valid?

(5) Whether the sale of 30 acres of farm agricultural land for Rs.50 crores to
renovate film studio is valid?

(6) Whether mortgage of shares of S.R.NBFC to State Bank of Hyderabad,

Baghlingampally Branch, Hyderabad to perform the marriage of Ramya
Agarwal is valid?

(7) Whether the income of Sailesh Agarwal be included in Hindu Undivided

Family?

(8) To what relief?

SUMMARY OF ARGUMENTS
(1) Assuming the existence of HUF, whether Geetha Agarwal is a coparcener?
Firstly,Mrs.Geeta Agarwal is not entitled to be a Coparcener as she is married.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

(2) If so, whether she is legally entitled to be the Karta of the HUF after the
enactment of Hindu Succession (Amendment) Act, 2005
Firstly, Mrs Geetha Agarwal is not a coparcener, which is essential to be a Karta.
Secondly, since Geetha Agarwal is married, it averts her to manage the affairs at
her maternal place.
Thus, Geetha Agarwal is legally not entitled to be the Karta of the HUF after the
enactment of the Hindu Succession (Amendment) Act, 2005.

(3) Whether the gift made in favour of Ramya Agarwal is valid?

Yes, the gift made in favor of Ramya Agarwal is valid because,
Firstly, Sunil Agarwal being the Kartha of the family has the right to alienation of
property, which has been appropriately utilized by him.
Secondly, Ramya Agarwals parents died, further justifying the alienation.

(4) Whether the Will made in favour of Ramesh Agarwal is valid?

Firstly, Kartha has the power to alienate property.
Secondly, Ramesh Agarwals parents died, further justifying the alienation.
Thus, justifying the alienation in the form of Will.

(5) Whether the sale of 30 acres of farm agricultural land for Rs.50 crores to
renovate film studio is valid?
Firstly, the purpose of the sale is to benefit the Hindu Undivided Family indirectly.
Secondly, the sale is falling within the preview of karthas rights and power.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

Thus, the sale of 30 acres of farm agricultural land for Rs.50 crores to renovate
film studio is valid.

(6) Whether mortgage of shares of S.R.NBFC to State Bank of Hyderabad,

Baghlingampally Branch, Hyderabad to perform the marriage of Ramya
Agarwal is valid?
Firstly, performing marriages is a legal necessity.
Secondly, the burden to accomplish this task lies on the HUF.
Thirdly, it is the duty of the Karta to ensure the welfare of the family members.
Thus, the mortgage of shares of S.R.NBFC to State Bank of Hyderabad,
Baghlingampally Branch, Hyderabad to perform the marriage of Ramya Agarwal is
valid.
(7) Whether the income of Sailesh Agarwal be included in Hindu Undivided
Family?
Firstly, education is a legal necessity.
Secondly, Sailesh Agarwal has the right to education.
Thirdly, the burden to bear the education expenses lies on the HUF.
Fourthly, it is up to Sailesh Agarwal to decide whether his personal income is to be
included in the HUF or not. Hence, the income of Sailesh Agarwal neednt be
included in Hindu Undivided Family
(8) To what relief?
To quash all contentions made by Geeta Agarwal.
ARGUMENTS

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

(1)

Assuming the existence of HUF, whether Geetha Agarwal is

a coparcener?

NO, Geeta Agarwal is not entitled to be a Coparcener of the HUF as she is

married and
A Hindu joint family comprises all persons lineally descended through males from
a common ancestor including their wives and unmarried daughters. Whereas a
Hindu Mitakshara Coparcenary is a body narrower than a Hindu joint family and
consists only of males of upto 4 generations who acquire an interest in the
Coparcenary property or the joint family property by birth with a unity of
possession. The person having interest in the coparcenary property is known as a
coparcener.

Coparcenary property consists of the ancestral property and not the separate
property of a coparcener. Ancestral property is the property inherited by a Hindu
from his father, fathers father or fathers, fathers father whereas the property
inherited from any other relation or the self-acquired property of the person is his
separate property.No Daughters are included in the HUF.

Supreme Court sets 2005 cut-off on women right to ancestral property

The court said the father would have had to be alive on September 9, 2005, if the
daughter were to become a co-sharer with her male siblings.
http://indianexpress.com/article/india/india-news-india/supreme-court-sets-2005cut-off-on-women-right-to-ancestral-property/#sthash.0K0vNb5I.dpuf

Hence it is clear from the above statement that a MARRIED DAUGHTER

cannot be included in the HUF.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

(2)

If so, whether she is legally entitled to be the Karta of the

HUF after the enactment of Hindu Succession (Amendment)
Act, 2005

No, Mrs Geetha is legally not entitled to be the karta of the HUF after the
enactment of Hindu Succession (Amendment) Act, 2005.
The term "Hindu Undivided Family" has not been defined under the Incometax Act, 1961. The expression is however defined under the "Hindu Law" as
a family, which consists of all persons lineally descendant from a common
ancestor and includes their wives and unmarried daughters. However,
coparcener is a narrow term and it means a person who acquires by birth an
interest in Joint Family properties such as sons, grandsons and great
grandsons of the holder of the Joint Family property. Female members do
not enjoy right to enforce partition though they are entitled for maintenance
out of the family property and the share in the properties on the partition if
made.
A female member cannot be a coparcener of HUF and hence, cannot become
Karta of HUF. However, when HUF consists of mother and a minor son,
minor can act as Karta through his natural guardian i.e. mother in absence of
father.
The following passage from Mayne's "Hindu Law and Usage" (9th Ed., s. 271)
deals with coparceners "The question in each case will be, who are the persons who have taken an interest
in the property by birth. The answer will be, that they are the persons who offer the
funeral cakes to the owner of the property, that is to say, the three generations next
to the owner in unbroken male descent."
Thus, it has been a long-established custom that only males can offer funeral
cakes to their ancestors and accordingly, they were only entitled to be the
coparceners and females were never allowed to be the coparceners. Further, the
females were not allowed to manage a family, as the Hindu society over the years

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

was dominated by males. As a custom, the family is required to be fed and

managed by the males. As a result of this the females were not allowed to manage
the family and they only had a right to maintenance.

The Supreme Court in the case of CIT v Seth Govindram Sugar Mills [1965] 57
ITR 510 (SC) [1]has held that a widow cannot be Karta of the HUF, though she
can be a manager of HUF for the purposes of Income-tax assessment. This
decision was delivered after considering the decision of Nagpur High Court in the
case odf Seth Laxmi Narayan Raghunathdas (supra).
A similar view was held by the Calcutta High Court in the following cases (i)
(ii)

Sushila Devi Rampuria v ITO [1960] 38 ITR 316 (Cal.)[2]

Smt. Champa Kumari Singhi v Addl. Member, Board of Revenue [1962]
46 ITR 81 (Cal.)[3]
The Supreme Court in the case of Seth Govindram Sugar Mills (supra) had
rejected the proposition of female member being Karta of HUF only on a
single ground that she did not have the legal qualification of
"coparcenership" for becoming Karta because as per the well-established
principles of Hindu Law only a coparcener can become the Karta of HUF.
Thus, as per the law it stands today a female member cannot become Karta
of HUF.

However, a proposed amendment to the Hindu Succession Act seeks to admit

females into the coparcenary. Examining the effect of this amendment on the
status of females in HUF, there can be three types of female members in HUF i)

Daughter-in-law (including widows)

ii)

Unmarried daughter

iii)

Married daughter

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

[1] CIT v Seth Govindram Sugar Mills [1965] 57 ITR 510 (SC)
[2] Sushila Devi Rampuria v ITO [1960] 38 ITR 316 (Cal.)
[3] Smt. Champa Kumari Singhi v Addl. Member, Board of Revenue [1962] 46 ITR 81 (Cal.)

The proposed amendment seeks to admit only daughters in the coparcenary.

Thus, the entry into HUF is still governed by birth. Daughter-in-laws does
not get a right to become coparcener. Thus, the status of daughter-in-laws
does not change at all and their rights will remain the same as they before
the amendment. The Supreme Court ruling in Seth Govindram Sugar Mills
[4](supra) will still hold good wherein it was held that a widow can never be
Karta of her deceased husband's HUF.
As far as daughter is concerned, post-amendment, she becomes member of the
HUF on birth, and for all practical purposes, is to be regarded as a coparcener in
her own right in the same manner as the son and shall have the same rights under
the coparcenery property as she would have had, if she had been a son; inclusive of
the right to claim by survivorship. She shall be subject to the same rights and
disabilities in respect thereof as a son. As per the tenets of Hindu Law, on death of
Karta the HUF is not disrupted and does not become non-existent. The eldest
coparcener of the family steps into the shoes of the deceased Karta. Thus, after the
amendment, upon the death of the father, the unmarried major daughter, if she is
the eldest surviving coparcener, will become the Karta of her father's HUF even if
her mother is alive, as her mother would never be treated as a coparcener. This
situation is anomalous as the eldest surviving member of HUF would be the widow
(mother) and she would be the best person who can look after the interests of all
the other surviving members of her husband's HUF. This could not be the intention
of the law to give the right to a daughter to manage the affairs of her father's family
upon her father's death, even if her mother is still alive.
Thus, it appears that even under the amended law, though a female can be a
coparcener of HUF, she cannot be a Karta of HUF

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

[4] 1966 AIR 24, 1965 SCR

(3) Whether the gift made in favour of Ramya Agarwal is valid?

Yes, the gift made in favour of Ramya Agarwal is valid.

Power of the Karta to Gift Property

It is a commonly known fact that a karta may have a superior managerial authority
but he cannot gift away family property unless there is a legal compulsion involved
or for religious purposes etc.
Movable Property as gifts
The father or the Karta has the authority to gift ancestral joint family property to
sons, daughters etc. as a matter of affection wherein the gift is in furtherance of
indispensible acts of duty, and family, relief from distress and so forth. Such gifts
do have limitation like a gift cannot entail the whole property to be given to one
particular member as it cannot be then upheld as gift of affection.
Immoveable Property as gifts
The karta does posses the capacity to gift an individual, owing to few restrictions,
for pious purposes. It was laid down in Guramma v. Mallapa[5] that a father can
gift his daughter a portion of an immoveable property if it conforms to the
reasonability criteria, looking at the properties which are owned by the family.
Though, it is not acceptable for a husband to gift any such property to his spouse
under the clause of Pious Purposes.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

[5]1964 AIR 510, 1964 SCR (4) 497

KARTAS POWER OF ALIENATION

Although no individual coparcener, including Karta has any power to dispose of
the joint family property without the consent of all other, it is a recognized concept
by the dharamshatra that in certain circumstance, any member of family has power
to alienate the joint family property.
Vijnaneshwara recognized three exceptional cases in which alienation of the joint
family property could be made by the Karta:
Legal Necessity (this includes Vijnaneshwaras Apatkale as well as a part of
Kutumbarthe, i.e., for the sake of members family.)
Benefit of estate (this includes the other part of Kutumbarthe, i.e., for the sake of
family property.)
Acts of indispensable duty (this includes the entire head of Dharamarthe.)
However, the Karta may alienate the joint family property irrespective of legal
necessity or benefit of the estate with the consent of all adult coparceners in
existence at the time of such alienation. Here again, there is a difference in the law
prevailing in different states as to the position in case the alienation is consented to
only by some of the coparceners and not by all. As per the law in Bombay and
Madras, the shares of the consenting coparceners would be bound. However, in
West Bengal and Uttar Pradesh, a coparcener cannot alienate even his own interest
without the consent of all other coparceners and hence such alienation without the
consent of all coparceners would not even bind the shares of the consenting
members.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

LEGAL NECESSITY
Broadly speaking, legal necessity will include all those things which are deemed
necessary for the members of the family. The term Apatkale under Vijnaneshwara
may indicate that joint family property can be alienated only in time of distress
such as famine, epidemic, etc. and not otherwise, however, it has been recognized
under the modern law that necessity may extend beyond that. In Devulapalli
Kameswara Sastri vs. Polavarapu Veeracharlu[6], it was held that necessity should
not be understood in the sense of what is absolutely indispensable but what
according to the notions of the joint Hindu family would be regarded as proper and
reasonable. Thus, Legal Necessity doesnt mean actual compulsion; it means
pressure upon estate which may in law may be regarded as serious and sufficient.
If it is shown that familys need was for a particular thing and if property was
alienated for the satisfaction of that particular need, then it is enough proof that
there was a legal necessity. The following have been held to be family necessities.
Maintenance of all the members of the Joint Hindu family, expenses for medical
care for the members.
Payment of government revenue and government taxes and duties like income tax.
Payment of debts incurred for family necessity or family business or decretal debts
Performance of necessary ceremonies, sradhs and upanyana.
Marriage expenses of male coparceners, and of the daughters of coparceners.
Payment of debts incurred for family business or other necessary purpose.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

Costs incurred for the defense of the head of the joint family or any other member
involved in a serious criminal charge.

[6] (1911) ILR 34 Mad 422

Power of Alienation:
The most important case with respect to Kartas power of
alienation is Rani v. Shanta[7]. Alienation can be done for three
purposes:

Legal Necessity: The term legal necessity has not been expressly defined
in any law or judgment. It is supposed to include all those things which are
deemed necessary for the members of the family. Necessity is to be
understood, not in the sense of what is absolutely indispensible, but what
would be regarded as proper and reasonable. If it is shown that familys need
was for a particular thing, and if property was alienated for the satisfaction
of that particular need, then it is enough proof that there was a legal
necessity. They include,

(1)

Food, shelter and clothing.

(2)

Marriage (second marriages are not considered a legal necessity).

(3)

Medical care.

(4)

Defence of person accused of a crime (exception to this rule is

murder of a family member).

(5)

Payments of debts, taxes etc.

(6)

Performance of ceremonies (like marriage, grihapravesham).

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

(7)

Rent etc.

Indispensable Duties: This term implies the performance of those acts

which are religious, pious or charitable. Examples of indispensable duties
are marriages, grihapravesham etc. In this case there is a requirement to
differentiate between alienation made for indispensable duties and gifts for
charitable purposes. The difference lies in the fact that in the former case
while discharging indispensable duties, the Karta has unlimited powers in
the sense that he can alienate the entire property for that purpose. But in the
case of gifts for charitable purposes, only a small portion can be alienated.

[7] 1971 AIR 1028, 1971 SCR (2) 603

PARTIAL NECESSITY
In Krishandas vs. Nathuram[8], Privy council held that where the necessity is
only partial, i.e., where the money required to meet the necessity is less than the
amount raised by alienation, in such a case, the sale will be valid only where the
purchaser acts in good faith and after due inquiry and is able to show that the sale
itself is justified by legal necessity.
In the instant case, alienation was for Rs. 3500, and the alienee was able to prove
the legal necessity for Rs.3000, the alienation was held valid.
However, where the manager decides to raise money by a mortgage of family
property, he can borrow the precise amount required for necessity; mortgage will
stand good only to the extent of the necessity proved.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

[8] 49 All 149 (PC),

(4) Whether the WILL made in favour of Ramesh Agarwal is vaild?

Yes Karta has the power to alienate the property
As Ramesh Agarwal s Father expired, it was given for sole
survivorship for him.
Firstly, Kartha has the power to alienate property.
alienation is the capacity for a piece of property or aproperty right to be sold or
otherwise transferred from one party to another. Although property is generally
deemed to be alienable, it may be subject to restraints on alienation
Secondly, Ramesh Agarwals parents died, further justifying the alienation.
Thus, justifying the alienation in the form of Will.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

1. Mulla, Principles of Hind law, vol.1 20th ed. (ed. S.A.Desai), LexisNexis Butterworths New Delhi, 2008
2. Mulla, Principles of Hind law, vol.2 20th ed. (ed. S.A.Desai), LexisNexis Butterworths New Delhi, 2008
3. Sanjiva Row, Sanjiva Rows The Indian Succession Act, 7th ed. 2000, Butterworths India, New Delhi
4. Oxford Dictionary, 13th edn, Oxford printing house, 2008
5. Collin Dictionary, Collin Harpers Publication, 2009
6. K J Aiyars Judicial Dictionary , 13th edn (ed P M Bakshi), Butterworths India, New Delhi, 2001
[1] Manisha Singh, National Law University, Jodhpur
[2] AIR 1971 SC 1028

(5) Whether the sale of 30 acres of farm agricultural land for Rs.50
crores to renovate film studio is valid?
Yes, the sale of 30 acres of farm agricultural land for Rs. 50 crores to renovate
the film studio is valid.

Benefit of Estate: Karta, as a prudent manager, can do all those things

which are in furtherance of the familys advancement, to prevent probable
losses.
The purpose of selling the farm agricultural land to renovate the film studio is for
the benefit of the family. Mr Suresh Agarwals act of selling the land being a karta
is well justified, it falling under the functions and powers of karta.
BENEFIT OF ESTATE

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

An alienation of joint family property can be effected for the benefit to estate also.
There is also a lack of unanimity as to the interpretation of the words, as for the
benefit of the estate.
The courts have not given a set definition of this concept, undoubtedly so that it
can be suitably modified and expanded to include every act which might benefit
the family.
In the modern law the first exposition of the expression for the benefit of the
estate was found in the case of Palaniappa vs. Deivasikamony[9]. In this case the
judges observed No indication is to be found in any of them(ancient texts) as to
what is, in this connection, the precise nature of things to be included under the
descriptions benefit to the estate The preservation however of the estate from
extinction, the defense against hostile litigation affecting it, the protection of it or
portions from injury or deterioration by inundations, there and such like things
would obviously be benefits

[9] A.I.R. 1917 P.C. 33. (22nd March 1917.)

The Privy Council has elaborately illustrated as to what are the incidents of benefit
to estate in Palaniappa v. Devsikmony[10], it laid down that the preservation,
however, of the estate from extinction, the defense against the hostile litigation
affecting it, the protection of it or its portion from injury or deterioration by
inundation, these and such like things would obviously be the benefits. In broad
sense legal necessity includes benefit to estate.

(6) Whether mortgage of shares of S.R.NBFC to State Bank of

Hyderabad, Baghlingampally Branch, Hyderabad to perform the
marriage of Ramya Agarwal is valid ?
The powers of the Karta are almost absolute. There are 9 powers in all and are as
follows:

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

Powers of Management: It is an absolute power. The Karta cannot deny

maintenance and occupation of property to any member altogether. It is the
kartas duty to manage the family affairs.

Right to Income: All incomes of the joint family property should be

brought to the Karta and it is for the Karta to allot funds to members and to
look after their needs and requirements.

Right to Representation: The Karta represents the family in all matters

legal, social and religious. His acts are binding on the family.

Power of compromise: The Karta has the power to compromise in all

disputes relating to the family property or management. His acts are binding
on the members of the family; but in case of a minor, it has to be approved
by the court under O.32, Rule 7, CPC. The compromise made by the Karta
can be challenged in court by any of the coparceners only on the ground of
malafide.

[10] 1917 P.C. 68

Power to refer a dispute to Arbitration: The Karta has the power to refer
any dispute with respect to family property or management to an arbitration
council and the decision is binding on the family.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

Power of Acknowledgement: The Karta can acknowledge any debt due to

the family or pay interest on a debt or make part or full payment of principal
etc. But the Karta has no power to acknowledge a time-barred debt.

Power to Contract Debts: The Karta has implied authority to contract debts
and pledge the credit and property of the family. His decision is binding on
the members of the joint family.

Loan on Promissory Note: When the Karta takes a loan for family
purposes and executes a promissory note, then the other members may be
sued as well even if they are not parties to the note. But the members are
liable to the extent of their shares whereas the Karta is personally liable on
the note.

Power to enter into Contracts: The Karta has the power to enter into
contracts which are binding on the family.

(7) Whether the income of Sailesh Agarwal be included in Hindu

Undivided Family?
No, the income of Sailesh Agarwal need not be included in the Hinu Undivided
Family.
Coparcenary property is the property inherited from paternal ancestor;
Property inherited by a person from his father,or fathers father or fathers fathers
fathers or property his own son, sons sons or sons sons sons acquires an

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

interest by birth as coparcenary rights. It is, therefore, coparcenary property. An

accretion to this property, such as purchases made with income of the coparcenary
property is also coparcenary property.
Coparcenary property includes
(a) ancestral property.
(b) acquisition made by coparceners with the help of ancestral property.
(c) joint acquisition of the coparceners and there is no proof of intention on the
part of the coparceners that such property should not be treated as joint property
and
(d) separate property of the coparceners thrown into the common stock.
Though Sailesh Agarwal studied at the expenses of the joint hindu family property,
being educated is a basic right of an individual. And this can be attained even
through the hindu undivided familys expenses. Thus, sailesh agarwal need to
include his personal savings and income into the hindu undivided family (on the
grounds that he attained his education in this means.)

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

PRAYER FOR RELIEF

Wherefore, in the light of the authorities cited, issue raised and arguments
advanced, it is most humbly pleaded before the Honble court that it may adjudge
and declare:
To legally entitle Mrs.Geeta Agarwal neither to be a Co-parcener and nor a
Karta in the Hindu Undivided Family
To declare valid
(a)The Gift and Will made by Sunil Agarwal made in favour of Ramya,Ramesh
Agarawal respectively
(b) Sale of 30 acres of farm agricultural land for Rs.50 crores to renovate film
studio
(c)Mortgage of shares of S.R.NBFC to State Bank of Hyderabad, Baghlingampally
Branch, Hyderabad to perform the marriage of Ramya Agarwal
(d) Need not include the income of income of Sailesh Agarwal in Hindu Undivided
Family
To issue any other further order as the court may deem fit in interest of justice,
equity good conscience and fair play.

Sri. G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

PLACE: HYDERABAD
DATE:
19 march 2016

SD/COUNSELS FOR THE

APPELLANT