BEFORE THE HONBLE HIGH COURT OF KERALA

CASE CONCERNING
Family Law

Vijayakuamri and another (Appellant)

V
K Devabalan and another (Respondent)
MEMORANDUM ON BEHALF OF THE APPELLANT
Vijayakumari and another
AADESH RAMTEKE
ROLL NO. 02
SECTION-B
SEM II

TABLE OF CONTENT

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8.

Statement of jurisdiction ___________________________3

Table of cases ____________________________________4
Index of authority _________________________________5
Statement of facts ________________________________6
Issues raised _____________________________________7
Contension ______________________________________8
Written pleading __________________________________9
Prayer _________________________________________11

STATEMENT OF JURISDICTION

T he pe t i ti on e rs a pp ro a ch th e H o no ra bl e H i gh C ou rt o f K e ra l a u nd er
A r t ic l e 2 26 o f th e Constitution of India, 1950.

TABLE OF CASES
1. Smt. Yamunabai Anantrao Adhav v. Anantrao Shivaram Adhav.
2. Kamala Devi v. Bachulal Gupta.

3. Gurumma Bhratar v. Mallappa Chembasappa.

STATUE

Hindu Marriage Act 1955.

Section 2(3) of The Hindu Marriage Act 1955

STATEMENT OF FACTS
1. Plaintiffs, first defendant and Santhakumar are the children of fourth defendant.
Plaint schedule property was obtained by Adichan Nadar, father of the fourth
defendant, under partition deed of the year 1079. The property obtained by

Adichan Nadar devolved on the fourth defendant and he was in possession of the
same as Manager of the joint family. Plaintiffs obtained right over the properties
of the joint family by their birth. On 13-3-1975 fourth defendant representing
himself as the sole owner of the property, executed a gift deed in respect of the
plaint schedule property in favour of defendants 1 and 2. According to the
plaintiffs, properties are co-parcenary properties and hence fourth defendant is not
competent to execute any document. Consequently first defendant did not get
possession of the property.
2. Defendants 1 and 2 in the written statement contended that gift deed was valid.
According to them, plaintiffs and defendants are all Christians and not Hindus.
After the death of Adichan Nadar fourth defendant inherited his properties as his
only son. He was in possession of the properties as the absolute owner and not as
Manager of a joint family. Plaintiffs did not get any right over the plaint schedule
property by their birth. It was also contended that parties are not Hindus governed
by the Hindu Mitakshara Law. It was contended that gift given to a daughter at the
time of her marriage is really in lieu of share of the daughter and as such it was
quite valid under the Christian Succession Act.
3. Trial court after briefly examining held that the fourth defendant are not hindus
and that the plaint schedule property is the joint family property. It was also held
that the gift deed dated 13-3-1975 is valid. Court also held that plaint schedule
property cannot be taken as self acquisition of the defendants and that it is joint
family property registered in the name of the fourth defendant for the benefit of
the joint family. The court did not accept the argument of the counsel for the
defendants that plaint schedule property is not joint family property and that it
belongs to fourth defendant. After upholding that the gift deed was valid trial court
dismissed the suit.

ISSUES RAISED
1.

Whether fourth defendant was competent to execute gift deed dated 13-3-1975 in

favour of defendants 1 and 2 and whether such a document is valid in law.

2. Whether the marriage between fourth defendant and Mary Augustine will be
considered a valid marriage under the act.

CONTENSION
1.

Whether fourth defendant was competent to execute gift deed dated 13-3-1975 in
favour of defendants 1 and 2 and whether such a document is valid in law.

The gift deed will be considered as valid because gift given to a daughter at the time
of her marriage is really in lieu of share of the daughter and as such it was quite valid
2.

under the Christian Succession Act

Whether the marriage between fourth defendant and Mary Augustine will be
considered a valid marriage under the act.
We may examine as to whether marriage between the fourth defendant and Mariya
Augustine is valid one under the Hindu Marriage Act. Section 5 of the Hindu
Marriage Act provides conditions for a Hindu marriage, which reads as follows:
Conditions for a Hindu marriage:A marriage may be solemnised between any two Hindus, if the following conditions
are fulfilled, namely:(i)
neither party has a spouse living at the time of the marriage:
(ii)
at the time of the marriage, neither party(a) is incapable of giving a valid consent to it in consequence of unsoundness
of mind; or
(b) though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and the
procreation of children: or
(c) has been subject to recurrent attacks of insanity or epilepsy:
(iii)

the bridegroom has completed the age of twenty one years and the bride, the

(iv)

age of eighteen years at the time of the marriage.

the parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the

(v)

two:
the parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two.

WRITTEN PLEADING
1. The apex court in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivaram Adhav1
and another pointed out that Section 5 of the Hindu Marriage Act specifically says
that marriage can be solemnised only two Hindus. Admittedly in this case
Adichanadar is a Christian. Therefore, the finding of the learned single judge that
the marriage is valid cannot be sustained. We hold that the marriage in question is
1 AIR 1988 S.C. 644.

not a valid one under the Hindu Marriage Act. We arc therefore inclined to set aside
the judgment of the learned single judge that the marriage between the fourth
2.

defendant with Mariya Augustine is valid.

The next question to be considered is whether children born in that marriage could
form members of the joint family as per the Hindu Law and whether the children
have to be treated by the religion of the father or mother. N.R. Raghavachary's
Hindu Law states as follows:

Illegitimacy is no bar to the applicability of the Hindu Law, but in that case either both the
parents must be Hindus, or at least the mother must be a Hindu and the child brought up
as a Hindu, though the father is a Christian. If the mother is a non-Hindu, for instance, a
Christian, or a Mohammedan, Hindu Law has no application to the illegitimate child, the
reason being that the religion of such children is to be fixed by the religion to which the
mother belongs.
In view of the above mentioned legal proposition we are of the view children born out of
that marriage are Christians. Therefore concept of co-parcenery joint family is not
applicable. In view of the above legal position, on the death of Adicha Nadar fourth
defendant had become absolute owner of the plaint schedule property. Consequently he is
competent to execute the gift deed dated 13-3-1975 in favour of defendants 1 and 2. We
hold such a gift is valid. We also hold that the decision of the trial court that the property
is a joint family property cannot be sustained. We also endorse the view that even if it is
joint family property fourth defendant was competent to gift portion of the joint family
property to the first defendant who is his daughter, at the lime of marriage. We are not
prepared to say that fourth defendant exceeded his limits by executing the gift deed. The
apex court in Kamala Devi v. Bachulal Gupta 2 and Gurumma Bhratar v.Mallappa
Chembasappa3 held that the manager of a Hindu family can make a gift of a reasonable
portion of the joint family property to a daughter. The apex court held that the lather or
his representative can make a valid gift by way of reasonable provision for the
maintenance of the daughter, regard being had to the financial and other relevant
circumstances of the family. The court held that it is not possible to lay down a hard and
fast rule, prescribing the quantitative limits of such a gift as that would depend on the
2 AIR 1957 S.C. 434.
3 AIR 1964 SC 510.

facts of each case and it can only be decided by courts, regard being had to the overall
picture of the extent of the family estate, the number of daughters to be provided for and
other paramount charges and other similar circumstances.

3.

We find on facts that as per the witness 1 acre and 25 cents of land was gifted by
the fourth defendant to the first defendant at the time of her marriage. It is seen
from the statement of the witness that first defendant was also given gold
ornaments worth Rs. 8,000/- at the time of her marriage. Santhakumari, the
youngest sister of the first defendant was given 1 acre and 21 cents of land as per
another witness gift deed at the time of her marriage which took place nearly three
months after the marriage of the first defendant. There is no case for the plaintiffs
that fourth defendant has exceeded the permissible limits in executing gift deed in
favour of another daughter Santhakumari. In the above mentioned facts we find that
the gift deed executed by the fourth defendant is valid. Above being the position,
we are of the view, learned single judge was not justified in setting aside the
judgment and decree of the trial court.

PRAYER
In light of the facts cited, arguments advanced and authorities cited, the Appellant humbly
submit that the Honourable Court be pleased to adjudge and declare that:

The appeal be allowed

The judgment of the Trial court be reversed

And pass any other order the court may deem fit in the interests of equity, justice and good
conscience.
Counsel on the behalf of appellant
Aadesh Ramteke