IN THE HONBLE SUPREME COURT

OF
INDIA

Appellants: Mohammad Raza and Ors.

Vs.
Respondent: Mt. Abbas Bandi Bibi

COUNSEL FOR THE PETITIONER- HIMANSHU KUNJAM

ROLL NO. - 60

ON SUBMISSION TO THE SUPREME COURT OF INDIA

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

MEMORIAL FOR THE PETITIONER
Mohammad Raza and Ors.

TABLE OF CONTENTS

ABBREVIATIONS.................................................................................................................3
INDEX OF AUTHORITIES....................................................................................................4

Cases

Books

Website

Statues

STATEMENT OF JURISDICTION..........................................................................................5
STATEMENT OF FACTS.....................................................................................................6
QUESTIONS PRESENTED...................................................................................................7
SUMMARY OF PLEADINGS.................................................................................................8

PLEADINGS..........................................................................................9

SECTION 33B VIOLATES THE FUNDAMETAL RIGHTS OF THE CITIZEN OF

INDIA....10

THE PROVISION OF THE SECTION 33B AGAINST THE BASIC STRUCTURE

DOCTRINE.11

AMOUNT OF COMPENSATION DECIDED BY COURTS IS NOT JUSTIFIED12

PRAYER FOR RELIEF.12

-MEMORIAL ON BEHALF OF THE PETITIONER-

ABBREVIATIONS

AC

Appeal Cases

Anr.

Another

Ed.

Edition

i.e.

id est (that is)

ibid

ibiden

id

idem

Ltd.

Limited

Ors

Others

SC

Supreme Court

SCC

Supreme Court Cases

v.

Versus

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INDEX OF AUTHORITIES
I. LIST OF CASES

Raghunath Prasad Singh v. Deputy Commissioner, Partabgarh A.I.R. 1929 P. C. 283

Vaijhcla Rajsanji v. Shekh Masludin [1887] 11 Bom. 551 :
basangowada Virupaxagowada vs Iragowdatti kallangowda I.L.R 47 Bom.587

II. Books

Basu D.D., Introduction to the Constitution of India, 20th ed., LexisNexis Butterworths
Wadhwa, Nagpur, 2008.

Dr. justice A.r Lakshmanan Transfer of property act 1882.

III. Websites

www.manupatra.com

IV. Statues

Oudh Laws Act, 1876.

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STATEMENT

OF JURISDICTION

The petitioner has approached the Honble Supreme Court of India to file the Writ Petition
provided under Article 132 of the Indian constitution act 1946.

STATEMENT OF FACTS

1. In 1868 one Sughra Bibi brought a suit against her cousin Afisal Husain, claiming a halfshare in certain immovable properties in Oudh which had been entered in his name at the

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post-mutiny settlement. The litigation ended in a compromise upon which a decree was
passed in the suit on, 19th September 1870.
2. Afzal Husain thereafter duly married Sughra Bibi and died in 1872 childless, his first wife
Fatima Begum having predeceased him in 1871. Sughra Bibi took possession of her share in
the properties, but had mortgaged it all before her death, which occurred on 26th July 1914.
Her transferees remained in un-disturbed possession for nearly 12 years after her death. On
26th March 1926, the suit out of which this appeal has arisen was instituted by the
respondent in the Court of the Subordinate Judge of Fyzabad for the recovery of two-thirds
of Sughra Bibi's share from the appellants, in whose possession the properties had come
under the alienations as referred.
3. By a compromise deed made between intending husband and wife (Shia Muhammadans)
certain Immovable property was given to the wife as malik mustaqil (i.e. as permanent
proprietor), and it was provided (inter alia) that she " shall not have power to transfer this
property to a stranger ; but the ownership thereof as family property shall devolve on her
legal heirs, from generation to generation.
4. The wife however sold or mortgaged all the property to the defendants (strangers to the
family). On her death. the plaintiff, claiming as her heir, sued to recover the property from
the defendants.

ISSUES RAISED
1. Whether the plaintiff had right over that immovable property ?

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A. Whether the women has the capacity to sell the immovable property to the stranger ?

SUMMARY OF ARGUMENTS

1. Section 10 of Transfer of property act 1882, deals with absolute restraining a transferee

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Disposing property is void but in partial not void . whether the restraint in particular case is
absolute

intention of transferee required the intention of the transferor content and

documents.

PLEADINGS

1. the plaintiff had right to recover the immovable property from the defendant.
contention of appellant in regard to

that the ladies wore to be 'malik mustaqil," i.e.,

permanent proprietors, and were to be entered as such in the public records; that their

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proprietorship was to take effect from the execution of the document that the true effect of
the document was to constitute the ladies full owners of the two moieties of the property, and
that the attempt to restrict their power of alienation should be regarded as repugnant special
reliance being placed that the restriction was not absolute but partial it forbids only alienation
to strangers, leaving her free to make any transfer she pleases within the ambit of the family.
the judgment of the Board delivered by the late Sir Binod Mitter in Raghunath Prasad Singh
v. Deputy Commissioner, Partabgarh A.I.R. Lordships are of opinion that the words in the
will "that the estate shall vest in Partab" and that lie shall be the testator's " heir and successor
" are clear dispositive words creating an absolute estate of inheritance in Partab, and they arc
further of opinion that the various clauses referred to above which were to come into
operation after he had so inherited, must be regarded as an attempt to impose repugnant
conditions upon the estate so created and are, therefore, void. The question therefore is
whether such a partial restriction on alienation is so inconsistent with an otherwise absolute
estate that it must be regarded as repugnant and must be void.
Section -10 transfer of property act 1882, Restraints on the power of alienation in
dispositions in favour of married woman, who are not Hindu, Mohammedans or Buddhists,
will be valid. relates to transfer of the property with condition restraining the alienation the
provision of the section declares that such condition is void is made to apply to every
transfer of property interest in immovable property.
In high court of Bombay basangowada Virupaxagowada vs Iragowdatti kallangowda I.L.R
47 Bom.587 , Held that a compromise arrived between the parties when one of them was to
have restricted life interest in certain land and when the other was to take the rest of the lands
and the reversion in the former lands, did not involve the transfer of property by one person
to another attract the rule . if a property is transferred subject to a condition or limitation
restraining the transferees right of parting with or disposing his interest in the property
absolutely, then such a condition is void. This general rule is referred to as the rule against
inalienability.
In Rosher v. Roshe, a person A died leaving behind his wife W and a son S. He left his entire
property to S, under his Will. The will provided that S had to first offer the property for sale
and also had to sell her at L 3000 while the market price was L 15000. The court held that

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these restrictions amounted to an absolute restraint on Ss and his heirs power of alienation
and were therefore void.

PRAYER FOR RELIEF

Wherefore in the lights of the facts stated, authorities cited, arguments advanced, the appellants
humbly requests the Honble Supreme Court to adjudge and declare that:1. plaintiff had right to recover the immovable property from the defendant.

Or, pass any order, decree as the Court may deem fit in the lights of Justice, Equity & Good
Conscience.
All of which is most humbly prayed.

COUNSEL ON BEHALF OF APPELLANTS

Himanshu kunjam

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2016, 4th APRIL

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