Respondent Memo-BR

URN:
Sri.G.VENKATSWAMY MEMORIAL MOOT

COURT COMPETITION, 2016
BEFORE
THE HONBLE MOOT COURT
SURESH AGARWAL..APPELANT
VS
GEETHA AGARWAL...RESPONDENT
MEMORIAL FOR THE RESPONDENT
Sri.G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016
ON SUBMISSION
OF MEMORIAL ON BEHALF OF RESPONDENT
(GEETA AGARWAL)
Here after RESPONDENT
TABLE OF CONTENT
WRITTEN SUBMISSION ON BEHALF OF RESPONDENT |
LIST OF ABBREVIATIONS .Page 4

INDEX OF AUTHORITIES.
o JUDICIAL PRECEDENT.....Page 6
o BOOKS Page 9
STATEMENTS OF
FACTS.............Page 11
STATEMENTS OF JURISDICTION..
..Page 13
STATEMENT OF
ISSUES....Page 14
SUMMARY OF
ARGUMENTS....Page 15
ARGUMENTS ADVANCED.Page 17
PRAYER FOR RELIEF..
Page 36
WRITTEN SUBMISSION ON BEHALF OF RESPONDENT |
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.
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
CITATION
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
[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
[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
The Constitution of India, 1950.

Indian Succession Act,1956
Hindu Law
Constitutional aspects of 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
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.
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 favor of Ramya
and executing 15 acres of farm land by will favor 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.
The fact that Sailesh kept his earnings for himself, after studying with the
expenses of the joint family property, made other family members unhappy.
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, GeethaAgarwal 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.
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
THE COUNSEL ON THE BEHALF OF APPELLANT HAS THE HONOUR TO

SUBMIT THIS MEMORIAL TO THE HONOURABLE CITY CIVIL 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?
(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 favour of Ramya Agarwal is valid?
(4) Whether the WILL made in favour of Ramesh Agarwal is vaild?
(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,
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, section 29A of the Hindu Succession (Amendment) Act, 2005 gives
equal rights to daughter in coparcener property.
Secondly, section 6 of the Hindu Succession (Amendment) Act, 2005 lays

down the devolution of interest in coparcener property.
Thus, Geetha Agarwal is a coparcener.
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, the constitutional provisions eradicate the gender bias. This is
evident as per Article 14, Article 15(2), Article 15(3), Article 16.
Secondly, if a woman has a right to be a coparcener, she also has a right to
be a kartha.
Thirdly, the Hindu Succession (Amendment) Act, 2005 entitles women to
acquire a share in the coparcener peoperty.
Thus, she is legally entitled to be the Karta of the HUF after the enactment
of Hindu Succession (Amendment) Act, 2005
Firstly, property was alienated in the form of gift from the property of HUF.
Secondly, the purpose of alienation isnt laid down.
Thirdly, there is an absence of a justifying cause.
Fourthly, consent of the other coparceners is absent.
Fifthly, there is an absence of a legal necessity.
Thus, the made in favour of Ramya Agarwal is invalid.
(4)Whether the Will made in favour of Ramesh Agarwal is valid?
Firstly, property was alienated in the form of gift from the property of HUF.
Secondly, the purpose of alienation isnt laid down.
Thirdly, there is an absence of a justifying cause.
Fourthly, consent of the other coparceners is absent.
Fifthly, there is an absence of a legal necessity.
Thus, the Will made in favour of Ramesh Agarwal is invalid.
Firstly, consent of the other coparceners is absent.
Secondly, Kartha is accountable to the family members and to the

coparceners.
Thus, the sale of 30 acres of farm agricultural land for Rs.50 crores to
renovate film studio is invalid.
Agarwal is valid?
Firstly, Ramya agarwal being a minor, the purpose of mortgage is
questionable.
Secondly, sufficient funds to perform marriage already exists.
Thus, the mortgage of shares of S.R.NBFC to State Bank of Hyderabad,
Agarwal is invalid.
Family?
Yes, the income of Sailesh Agarwal is be included in Hindu Undivided
Family because,
Firstly, he studied with the hindu undivided familys money.
Secondly, until when an undivided interest, Sailesh Agarwals income is to
be included.
(8) To what relief?
A sum of rupees 75 crore is to be awarded.
ARGUMENTS
(1)
Assuming the existence of HUF, whether Geetha Agarwal is a

coparcener?
Yes,Geetha Agarwal is a coparcener as :-
# The Hindu Succession Act, 1956 (amendment act 2005)

29A- Equal rights to daughter in coparcenary property. Notwithstanding
anything contained in section 6 of this Act
(i) in a joint Hindu family governed by Mitakshara Law, the daughter of a
coparcener shall by birth, become a coparcener in her own right in the same
manner as the son and have the same rights in the coparcenary property as she
would have had if she had been a son, inclusive of the right to claim by
survivorship; and shall be subject to the same liabilities and disabilities in respect
thereto as the son;
(ii) at a partition in such a joint Hindu family the coparcenary property shall be so
divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a pre-deceased son or a pre-deceased daughter
would have got at the partition if he or she had been alive at the time of the
partition shall be allotted to the surviving child of such pre-deceased son or of such
pre-deceased daughter: Provided further that the share allotable to the pre-deceased
child of a pre-deceased son or of a pre-deceased daughter, if such child had been
alive at the time of the partition, shall be allotted to the child of such pre-deceased
child of the pre-deceased son or of the pre-deceased daughter as the case may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the
provisions of clause (i) shall be held by her with the incidents of coparcenary
ownership and shall be regarded, notwithstanding anything contained in this Act or
any other law for the time being in force, as property capable of being disposed of
by her by will or other testamentary disposition;
(iv) Nothing in clause (ii) shall apply to a daughter married prior to or to a partition
which had been effected before the commencement of the Hindu Succession
(Andhra Pradesh Amendment) Act, 1986.
The Hindu Succession Amendment Act, 2005 gave women equal rights of
inheritance, making them coparceners. The karta usually is the eldest
coparcener. The logical extension of the law implies that women can also
assume the position of a karta, says lawyer Mala Goel, who was part of the
Delhi High Court case representing the oldest surviving female child of a
Delhi business family against a younger male cousin.
Hence it is clear from the above stated Sec 29A that a woman can be a
Coparcener and has equal rights like a Son in the Property.
Section 6 - Devolution of interest in coparcenary property.
(1) On and from the commencement of the Hindu Succession (Amendment) Act,
2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a
coparcener shall,
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she
had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as
that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener: Provided that nothing contained in this
sub-section shall affect or invalidate any disposition or alienation including any
partition or testamentary disposition of property which had taken place before the
20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and
shall be regarded, notwithstanding anything contained in this Act or any other law
for the time being in force in, as property capable of being disposed of by her by
testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession
(Amendment) Act, 2005*, his interest in the property of a Joint Hindu family
governed by the Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship, and the
coparcenary property shall be deemed to have been divided as if a partition had
taken place and,
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would
have got had they been alive at the time of partition, shall be allotted to the
surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased
daughter, as such child would have got had he or she been alive at the time of the
partition, shall be allotted to the child of such pre-deceased child of the predeceased son or a pre-deceased daughter, as the case may be.
Explanation. For the purposes of this sub-section, the interest of a Hindu
Mitakshara coparcener shall be deemed to be the share in the property that would
have been allotted to him if a partition of the property had taken place immediately
before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*,
no court shall recognise any right to proceed against a son, grandson or greatgrandson for the recovery of any debt due from his father, grandfather or greatgrandfather solely on the ground of the pious obligation under the Hindu law, of
such son, grandson or great-grandson to discharge any such debt: Provided that in
the case of any debt contracted before the commencement of the Hindu Succession
(Amendment) Act, 2005*, nothing contained in this sub-section shall affect
(a) the right of any creditor to proceed against the son, grandson or great-grandson,
as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any
such right or alienation shall be enforceable under the rule of pious obligation in
the same manner and to the same extent as it would have been enforceable as if the
Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. For the purposes of clause (a), the expression son, grandson or
great-grandson shall be deemed to refer to the son, grandson or great-grandson,
as the case may be, who was born or adopted prior to the commencement of the
Hindu Succession (Amendment) Act, 2005*.
(5) Nothing contained in this section shall apply to a partition, which has been
effected before the 20th day of December, 2004. Explanation. For the purposes
of this section partition means any partition made by execution of a deed of
partition duly registered under the Registration Act, 1908 (16 of 1908) or partition
effected by a decree of a court.] Statement of Objects and Reasons [The Hindu

Succession (Amendment) Act, 2005] Section 6 of the Act deals with devolution of
interest of a male Hindu in coparcenary property and recognises the rule of
devolution by survivorship among the members of the coparcenary. The retention
of the Mitakshara coparcenary property without including the females in it means
that the females cannot inherit in ancestral property as their male counterparts do.
The law by excluding the daughter from participating in the coparcenary
ownership not only contributes to her discrimination on the ground of gender but
also has led to oppression and negation of her fundamental right of equality
guaranteed by the Constitution having regard to the need to render social justice to
women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra
have made necessary changes in the law giving equal right to daughters in Hindu
Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala
Joint Hindu Family System (Abolition) Act, 1975. It is proposed to remove the
discrimination as contained in section 6 of the Hindu Succession Act, 1956 by
giving equal rights to daughters in the Hindu Mitakshara coparcenary property as
the sons have. State Amendment Sections 6A to 6C Karnataka: After section 6 the
following sections shall be inserted, namely: "6A. Equal rights to daugher in coparcenary property. Notwithstanding anything contained in section 6 of this Act
(a) in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a co-parcener in her own right in the same manner
as the son and have the same rights in the co-parcenary property as she would have
had if she had been a son inclusive of the right to claim by survivorship and shall
be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such a joint Hindu family the co-parcenary property shall be so
divided as to allot to a daughter the same share as is allotable to a son: Provided
that the share which a predeceased son or a predeceased daughter would have got
at the partition if he or she had been alive at the time of the partition, shall be
allotted to the surviving child of such predeceased son or of such predeceased
daughter: Provided further that the share allotable to the predeceased child of a
predeceased son or of a predeceased daughter, if such child had been alive at the
time of the partition, shall be allotted to the child of such predeceased child of the
predeceased son or of such predeceased daughter, as the case may be;
(c) any property to which a female Hindu becomes entitled by virtue of the
provisions of clause (a) shall be held by her with the incidents of co-parcenary
ownership and shall be regarded, notwithstanding anything contained in this Act or
any other law for the time being in force, as property capable of being disposed of
by her by will or other testamentary disposition;
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition
which had been effected before the commencement of Hindu Succession
(Karnataka Amendment) Act, 1990.
The Hindu Succession Amendment Act, (2005). This act made the daughter a
coparcener by birth. It also omitted Section 23 of Act which dis entitled a female
heir to ask for partition in respect of a dwelling house, wholly occupied by a joint
family, until the male heirs choose to divide their respective shares therein. Thus
this amendment removed the discrimination against females.
# Hindu Succession Amendment Act, (2005) and females as coparceners :The most significant amendment made by the Hindu Succession Amendment Act,
(2005) was to make the daughter a coparcener by birth in her own right. The term
Mitakshara Coparcener now includes daughters in it. A daughter now has the same
rights in the Coparcenary property as that of a son and is subject to the same
liabilities as that of a son in respect of the said Coparcenary property. For example
if the coparcenary property is subject to some debts then on partition the female as
a coparcener would also be liable to pay the debts over her share of the property
and thus is subject to the same sets of liabilities as that of a son in respect of the
said property. Also any property which a daughter obtains under the amended
section will be held by her with the incidents of Coparcenary property and she can
dispose it off by the testamentary disposition. This act also abolishes survivorship
and the only modes of devolution now followed are testamentary or intestate
succession. Further in case of notional partition the daughter is allotted the same
share as is allotted to a son. This act also removes the obligation of a son, grandson
or great grandson to pay the debts of his father, grandfather or great grandfather
solely on the ground of his pious obligation thus bringing equality amongst sons
and daughters.
#Indian Constitution
The framers of the Indian Constitution took note of the adverse and discriminatory
position of women in society and took special care to ensure that the State took
positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the
Constitution of India, thus not only inhibit discrimination against women but in
appropriate circumstances provide a free hand to the State to provide protective
discrimination in favour of women. These provisions are part of the Fundamental
Rights guaranteed by the Constitution. Part IV of the Constitution contains the
Directive Principles which are no less fundamental in the governance of the State
and inter-alia also provide that the State shall endeavour to ensure equality between
man and woman Notwithstanding these constitutional mandates/directives given
more than fifty years ago, a woman is still neglected in her own natal family as
well as in the family she marries into because of blatant disregard and unjustified
violation of these provisions by some of the personal land.
Article 14 -Equality before law The State shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth
Article 15(2) & (3) Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or
any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State
funds or dedicated to the use of the general public(3) Nothing in this article shall prevent the State from making any
special provision for women and children
Article 16- Equality of opportunity.
(2)
If so, whether she is legally entitled to be the Karta of the HUF after
the enactment of Hindu Succession (Amendment) Act, 2005
Only a coparcener can be a Karta.

Yes, Ms.Geeta Agarwal is legally entitled to be the Karta of HUF as:
With reference to A. Kunjipokkarukutty v. A Ravunni[1], it was noted that the in
the absence of the father in the family, it is the doyen i.e. the most senior member
of the family who is concluded to be the Karta. This conclusion is based upon
seniority and the opinion of the other members does not hold much significance. It
must be noted that a person cannot become the karta until and unless the previous
karta is no longer alive notwithstanding few exceptions[2].
It was held in Commissioner of Income Tax v. Lakshmi Narang[3] that a female
member can be allowed to be the karta under some situations.
# Making her the Karta would make her position more respectable:
Despite the Constitution guaranteeing equality to women, there are still many
discriminatory aspects in the Hindu law in the sphere of property rights. In our
society maltreatment of a woman in her husband's family, e.g. for failing to
respond to a demand of dowry, often results in her death. But the tragedy is that
there is discriminatory treatment given to her even by the members of her own
natal family. Thus, if she is made the Karta of the family, then all the members of
the family will respect her because of her position and women abuse will be
controlled. This will enhance her self-confidence and social worth and give her
greater bargaining power for herself and her children, in both parental and marital
families.
[1] AIR 1973 Ker 192

[2] Sidappa v. Linappa, 42 Mys HCR 669
[3] (1948) ILR Nag 775.
# After The Hindu Succession Amendment Act, 2005 women are recognized as
coparceners:
In the Hindu system, ancestral property has traditionally been held by a joint Hindu
family consisting of male coparceners. Coparcenary as seen and discussed earlier
in the present work is a narrower body of persons within a joint family and consists
of father, son, son's son and son's son's son. A coparcenary can also be of a
grandfather and a grandson, or of brothers,or an uncle and nephew and so on. Thus
ancestral property continues to be governed by a wholly partrilineal regime,
wherein property descends only through the male line as only the male members of
a joint Hindu family have an interest by birth in the joint or coparcenary property.
Since a woman could not be a coparcener, she was not entitled to a share in the
ancestral property by birth. A son's share in the property in case the father dies
intestate would be in addition to the share he has on birth. But after the amendment
daughters have from birth coparcenary rights. So they can be kartas as they are
now recognized as coparcenors.
# A woman coparcener can also be the karta of an HUF:Till 2005, daughters were not coparceners of their fathers family (unlike sons,
who became coparceners on birth), but were only members of the family on birth,
and ceased to be members of their fathers family on their marriag
A Hindu Undivided Family (HUF) is a concept based on traditions and customs.
This concept has, however, undergone changes by amendments in law. By an
amendment in 2005 to the Hindu Succession Act, 1956, the entire concept of
HUFs, as was then prevalent, underwent a fundamental change.
Till 2005, daughters were not coparceners of their fathers family (unlike sons,
who became coparceners on birth), but were only members of the family on birth,
and ceased to be members of their fathers family on their marriage. A coparcener
is a member of an HUF who has the right to claim a partition of the family. Only
male members were regarded as coparceners till 2005. The 2005 amendment gave
equal rights to daughters as to sons,providing that daughters become coparceners
of their fathers families on birth in the same manner as sons, and have the same
rights as sons in the family properties.
Various issues arose on account of this amendment. Would it apply to daughters
born before the date of amendment, or only those born after the amendment?
Would the amendment apply to a daughter who had got married before the
amendment, and therefore ceased to be a member of her fathers family? Would it
apply to a daughter whose father had passed away before the amendment? Would
the legal heirs of a daughter who has passed away before the amendment be
entitled to the daughters share of the family assets? Can a daughter become a karta
(manager, normally the eldest coparcener) of the family after the amendment?
What if the eldest son had already become the karta before the amendment? The
answers to some of these questions seem to be now becoming clear, due to

decisions by courts.
In a recent decision, a daughter claimed a share in her fathers family, where her
father had passed away in 1988, on the basis of the 2005 amendment. The Supreme
Court held that she was not entitled to a share since her father had passed away
prior to the amendment coming into effect. The Supreme Court clarified that it was
not necessary that the daughter had to be born after the amendment, to claim the
benefit of the amendment. It also held that the rights under the amendment applied
to a living daughter of a living coparcener as on 9 September 2005. According to
the court, the rights which had already crystallised by operation of law prior to 20
December 2004 did not get disturbed by the amendment. This was evident from the
clause in the amendment providing that partitions that have taken place before 20
December 2004 would remain unaffected by the amendment.
Therefore, it is now clear that the date of birth of the daughter, or the date of her
marriage (whether before or after the amendment) are immaterial. What is relevant
is that both the daughter and the father had to be alive on the date of the
amendment for the daughter to get the benefit, irrespective of whether she was
married or not on that date. If the father had passed away earlier, she was not a
daughter as envisaged by the amendment. Similarly, if the daughter had passed
away prior to the amendment, she was not a daughter on the date of the
amendment, and, therefore, her legal heirs would not get the benefit of the
amendment.
The issue as to whether a daughter can become the karta of an HUF has recently
been decided by the Delhi High Court. In this case, the granddaughter, whose
father passed away in 1983, claimed to be the karta of her grandfathers HUF after
the death of her paternal uncle. Her cousin, who was the eldest grandson, but
younger to her, was functioning as the karta, which she claimed was incorrect. The
court held in her favour, on the ground that since she was now a coparcener, as the
eldest coparcener, she was entitled to become the karta of the HUF.
Hence it is clear from the above made arguments that a woman has equal right to
be a Karta.

No,It is Invalid as:
It is a well-settled law that the gift by a coparcener in Mitakshara family of his
undivided interest is wholly invalid. A coparcener cannot make a gift of his
undivided interest in the family property either to a stranger or to a relative except
for purposes warranted under special texts. In Radhakant Lal vs. Nazma Begum[4],
gifts of a part of joint family estate made by a Hindu in favor of two of his
concubines in the daughter of one of them was held to be invalid as against his
sons and grandsons even in respect of his own interest[5].
Coparceners Right to Challenge Alienation
The burden of proof is on the alienee to prove that it was for a valid purpose. It has
been laid down that in case the alienation is made by the father for the payment of
his debts, then the burden of proof is on the alienation to prove that he had taken
sufficient care to determine that it was for the payment of debt. The sons can rebut
this assumption only by proving that the debt was Avyavharik i.e. immoral, in such
a case the burden of proof that the debt was tainted is on the son.
[4](1918) 20 BOMLR 724.

[5] Supra note. 6, p.825.
Power of Alienation -Neither the karta or any other co-parcener has the right to
alienate the joint property of the family but in exceptional situations wherein the
alienation becomes binding upon all the members of the family. The
Dharmashastra recognizes this power of the karta to alienate the property but under
some specific situations only. They have been stated below:
Apatkale
(Necessity in legal terms)
Kutumbarthe (Estates benefit)

Dharmamarthe (Obligations of religious nature)
Necessity in legal terms

The term legal necessity does not hold any precise definition due to the varied no.
of cases that are seen and it being extremely difficult to explain it in exact terms.
Still, under interpretation it can be stated that the legal necessity of a family is with
regard to the necessities of a family and the alienation being in requirement of that
need.
Estates benefit
This is also a broad criterion for the alienation to take place. In it, the benefits
which the estate gains through any such specified alienation by the Karta is to be
considered as valid. Such beneficial contracts of property alienation are
encouraged and the karta does hold the right to go forward under his prudent
discretion.
Broadly speaking, benefit of estate means anything, which is done for the benefit
of the joint family property. There are two views as to it. One view is that only
construction, which is of defensive character, can be a benefit of estate. This view
seems to be no longer valid. The other view is that anything done which is of
positive benefit, will amount to benefit of estate. The test is that anything which a
prudent person can do in respect of his own property. It was re-iterated through
various case laws[6] that if the property owned by the specific joint family is sold
by the karta due to a valid legal necessity and also that the price in return was also
reasonable, just the fact that a portion of the price was not considered to have been
not applied for the purpose of necessity, cannot render the whole mechanism
invalid.
Considering a limitation in the matter, through this paper, it has been analyzed that
even though the Karta holds supreme managerial and alienation powers in the
family but if he gets into a contract where it is apparent that the family cannot
complete its obligations in monetary terms, the liability cannot be shifted to
ancestral property sale.[7] Nevertheless, if there is an acquisition made by the
Karta on behalf of the joint family even through the loss of a portion of an
ancestral property, it is binding upon the minor members of the family too and they
cannot impeach this contract for which the benefit has been enjoyed, upon
attaining majority.[8]
Also, it is a cardinal rule that the actions of the karta have to be justified with the
clause of necessity or benefit to the family for these members to be bound by the
actions of the Karta. Such alienation cannot be considered to be for the purpose of
a legal necessity if the legal remedy to recover the debt has become timebarred. He can alienate the property with his own discretion due to some
necessity or through the normal process of having a totality in family assent
towards such alienation.
Thus, it can be safely concluded through the research that Karta can only have one
specified limitation which is that:
A karta must act with prudence; prudence implies caution as well as foresight
and excludes hasty, reckless and arbitrary conduct and such alienation on part of
the karta without the family purpose or necessity clause, is void[9]
For this question of prudence, the considerations sufficiency is an important
condition for such judgment.
As analyzed though precedents, it cannot be stated that whenever a karta requires
monetary sums in order to pay the pre-emption requirements and for the prices of
new property, it is always without any requirement in legal contrivance and thus,
outside the ambit of the father in the family. Also, it cannot be stated that the karta
is supposed to borrow amounts for such fresh acquisition by pre-emption. These
matters have to be dealt according to the special existing circumstances each time.
[9] Also, during times when the money borrowed by the Karta is for his individual
purposes, he is not allowed to mortgage or use the family property in any manner
to fulfill his own liabilities.
In kanna Gounder v arjuna gounder,[10] the court held that the prohibition against
making the gifts by coparcener of his undivided interest in the coparcenery
property continues even after the enactment of Hindu succession Act . where a
coparcener made a gift from joint family property without obtaining the consent of
other coparceners, the gift becomes invalid.
In palliyatmariyomma v palliyatkidave[11] gift of the property by karnavathi in
favour of her children was held to be legal. The court held that the tarvad property
managed by the senior most family member acting as karnavathi shall not be
treated as her self acquired property. As such transfer by way of gift is not valid or
invalid
[6] AIR 1941 ALL 174: 1941 ALJ 129: 1941 AWR (HC) 70
[7] AIR 1939 All 486: 1939 ALJ 604
[8] AIR 1956 Oudh 302 (DB)
[9] Lexis Nexis Pg 620
[10] Subramanium v. Krishnaswami, AIR 1972 Mad 377: 85 Mad LW 211.
[11] Kanna Gounder v Arjuna gounder AIR 2003 Mad. 157
[12] Palliyatmariyomma v Palliyatkidave AIR 2005 Ker. 170
(4) Whether the WILL made in favour of Ramesh Agarwal is vaild?

No the Will made in favour of Ramesh Agarwal is invalid as
When the manager of the joint hindu family alienates joint family property
Without any justifying cause and the other coparceners who were in existence at
the time of alienation do not consent and acquiesce to such alienation then the nonalienation coparceners are entitled to impeach the alienation and set it aside.
In South India(Madras,Bombay,Madhya Pradesh) every coparcener can alienate
property to the extent of his interest in the joint family property.If such coparceners
alienate in excess of his interest in the joint family property then other coparceners
can impugn the alienation so far as the excess in concerned.
If the karta alienates property with out any legal necessity or for the benefit of the
family then such alienation is impeachable by the sons but it may bind the sons
under the doctrine of pious obligation if such alienation is made for payment of
antecedent untained debts.
#Alienation without Necessity Void or Voidable
The question whether Alienation made by a father or other manager which is
neither for a legal necessity nor for the discharge of an antecedent debt is void or
voidable has given rise to conflicting judicial opinions.
The debate was put to rest by the Supreme Court in the case of R. Raghubanshi
Narain Singh vs. Ambica Prasad[13], where it was held that alienation made
without legal necessity is not void but merely voidable.
[13] AIR 1971 SC 776
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[14], 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[15]. 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.
Costs incurred for the defense of the head of the joint family or any other
member involved in a serious criminal charge.
[14] ILR 34 Mad 422

[15] Manupatra
PARTIAL NECESSITY
In Krishandas vs. Nathuram[16], 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.
Existing Coparceners Right to Challenge Alienation
It is a settled law that an improper Alienation can be challenged by all or anyone of
the coparceners existing at the time of alienation.
In Bombay and Madras, when an alienation is challenged by the coparcener, it will
be set aside only to the extent of their interest in the joint family property. As under
these schools coparcener has power of alienating his undivided interest by sale or
mortgage.In case of suits filed by the coparceners, Madras High Court has given
some vital rules:In the case of Permanayakam vs. Sivaramma[17], where it was
held that
1. If the alienation is made only for partial necessity, it may be set aside.
2. If alienation is only a device for distinguishing a gift, the other coparceners
dont lose interest in the property or survivorship rights.
Finally, it was laid down in the case of Sunil Kumar vs. Ram Prakash[18] that a
coparcener cannot ask for an injunction against alienation on the ground that it is
not for legal necessity.
16] (1926) L.R. 64 I.A. 79
[17] AIR 1952 Mad 435
[18]Supra Note 17.
No the sale of the farm agricultural land for Rs.50Crs to renovate film studio is
invalid:-
As Firstly the property being HUF property the Karta has to take the consent of
the family as it is undivided interest of all the coparceners equally according to Sec
6 of Hindu Succession Act (2005 Amended).
Secondly assuming the sale to be valid:
Karta is accountable to the family members and the coparceners as its the dutiy of
a karta to provide the details of the transactions made in the interest of the HUF.
Thirdly, Is there a legal necessity to sale agricultural land for renovation of the
Studio?
The Validity of the sale is questionable as every coparcener has a right to know
their interest in the HUF Property

Agarwal is valid ?
The power of alienation of the karta of a joint family is governed by the rule laid
down by the privy council in Hanooman Persauds[19] case , so alienation would
be justified if there is legal necessity. Payment of government revenue, maintence
of coparceners,marriage expenses of coparceners and their children payment of

debts binding on the family are instances of legal necessity.
The marriage expenses of a daughtersdaughter would not ordinarily constitute a
legal necessity[20].
Performing the marriage of a member of the joint family is no doubt an act of
necessity.But if such member is a minor and the marriage is forbidden by the child
marriage restraint Act,1929, can it be said that it is a necessity, which can justify
the alienation of joint family property No, according to Andhra Pradesh Highcourt.
[21]
In Dev kishan vs Ram kishan[21].Alienation of property was made by karta for
celebrating a child marriage was in question,it was held chat debt incurred for
marriage of minor, a marriage performed in violation of Child Marriage Restraint
Act, 1929 was not lawful and was against public policy.
Alination on that ground cannot be regarded as lawful alienation binding upon the
minors and was void.Expenses incurred in connection with the marriage of a child
do not constitute legal necessity. Antecedent debt means antecedent in fact as
well as in time, that is to say , that debt much be truly independence of and not part
of the transaction impreached.A borrowing made on the occasion of the grant of a
mortgage is not an antecedent debt.
[19] 6 MIA 393
[20].P.mudaliar v Nataraja, AIR 1956 Mad.788.
[21]Narasimham s narasimham Air1973 AP 162.
[22] AIR 2002 Raj.370.
Sale and Mortgage

According to Bombay, Madras and Madhya Pradesh High Courts, a coparcener has
the power to sell mortgage or otherwise alienate his undivided interest without the
consent of other coparceners. In the rest of Mitakshara jurisdiction, such alienation
is not permitted and a coparcener has no power to alienate hid undivided interest
by sale or mortgage, without the consent of other coparceners.

Family?
Yes Income of Sailesh Agarwal has to be included in the HUF as it is specified and
clear from the facts that he studied with the help of the familys money.
Coparcenary property
(i)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
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 commom stock.
Hence until when an undivided interest - Sailesh Agarwal has to contribute to the
family.
(8) To what relief?
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:
Geeta Agarwal a Karta in the Hindu Undivided Family
To declare invalid
> The Gift and Will made by Sunil Agarwal made in favour of Ramya,Ramesh
Agarawal respectively?
> Sale of 30 acres of farm agricultural land for Rs.50 crores to renovate film
studio?
> Mortgage of shares of S.R.NBFC to State Bank of Hyderabad, Baghlingampally
Branch, Hyderabad to perform the marriage of Ramya Agarwal?
> Include 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.
PLACE: HYDERABAD
DATE:19 March 2016
23 February 2016
SD/COUNSELS FOR THE

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Sri.G.VENKATSWAMY MEMORIAL MOOT

MEMORIAL FOR THE RESPONDENT

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LIST OF ABBREVIATIONS .Page 4

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT |

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CIT v Seth Govindram Sugar Mills

[1965] 57 ITR 510 (SC)

Sushila Devi Rampuria v ITO

1962] 46 ITR 81 (Cal.)

(1911) ILR 34 Mad 422

Krishandas vs. Nathuram

49 All 149 (PC),

Palaniappa vs. Deivasikamony

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

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

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[viii]Misra Ranganath J. Hindu Law and Usage (15th edn.,2003), p.805

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[xxviii]AIR 1950 Boom. 271

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The Constitution of India, 1950.

JOURNALS REFERRED: All India Reporters

ONLINE DATABASE REFFERED

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THE COUNSEL ON THE BEHALF OF APPELLANT HAS THE HONOUR TO

Article 133 in The Constitution Of India 1949

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Secondly, section 6 of the Hindu Succession (Amendment) Act, 2005 lays

Sri.G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

Secondly, Kartha is accountable to the family members and to the

Assuming the existence of HUF, whether Geetha Agarwal is a

Yes,Geetha Agarwal is a coparcener as :-

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# The Hindu Succession Act, 1956 (amendment act 2005)

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effected by a decree of a court.] Statement of Objects and Reasons [The Hindu

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Sri.G.VENKATSWAMY MEMORIAL MOOT COURT COMPETITION -2016

Only a coparcener can be a Karta.

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[1] AIR 1973 Ker 192

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answers to some of these questions seem to be now becoming clear, due to

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

[4](1918) 20 BOMLR 724.

(Necessity in legal terms)

Kutumbarthe (Estates benefit)

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Necessity in legal terms

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