1367 - P

IN THE
LEARNED DISTRICT COURT
OF
JODHPUR

APPEAL NO. XXX/2017

(Suit filed under Section 6, 9, 15,16 and 19 of the Code of Civil Procedure,1908 and Order

VII, Rule 1 and Order VIII, Rule 6A & 6C of the Code of Civil Procedure,1908 read with

Section 18 of The Rajasthan Civil Courts Ordinance, 1950)

IN THE MATTER OF

JIM..........................PLAINTIFF

V.

HELEN......................DEFENDANT

-MEMORIAL ON BEHALF OF THE PLAINTIFF-

TABLE OF CONTENT

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Table of Contents.......................................................................................................................ii

Index of Authorities..................................................................................................................iii

Statement of Jurisdiction...........................................................................................................iv

Statement of Facts......................................................................................................................v

Issues of Consideration.............................................................................................................vi

I. Whether Jim is entitled to possession of the property?..................................................vi

Summary of Arguments...........................................................................................................vii

I. Jim is entitled to the possession of the property............................................................vii

Arguments Advanced.................................................................................................................1

I. Jim is entitled to the possession of the property..............................................................1

A. The Plaintiff is entitled to the specific performance of the contract by virtue of the

principle of estoppel embodied under Section 43 of the Act.............................................1

B. The doctrine of spes successionis is not applicable in the present case................4

Prayer for Relief.........................................................................................................................6

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 INDEX OF AUTHORITIES

Cases

Kartar Singh v. Harbans Kaur, (1994) 4 SCC 730.....................................................................2

L.I.C. v. Anuradha, AIR 2004 SC 2070.....................................................................................3

Maha Deo v. Har Baksh Dube, AIR 1928 Oudh 13...................................................................3

Samir Kumar Haldar v. Nirmal Chandra, 79 CWN 391............................................................4

Saradamoyi v. Atul Chandra, AIR 1923 Cal 165.......................................................................2

Shyam Narain v. Mangal Prasad, AIR 1935 All 244..................................................................4

Thompson v. Thompson (1956) All E.R. 603............................................................................4

Statutes

Section 108, Indian Evidence Act, 1872....................................................................................2

Section 33, Indian Succession Act, 1925...................................................................................3

Section 43, Transfer of Property Act, 1882................................................................................1

Section 6, Transfer of Property Act, 1882..................................................................................4

Treatises

Poonam P. Saxena, Property Law 189 (LexisNexis, 2011 Edn.)...............................................2

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 STATEMENT OF JURISDICTION

The Respondent humbly submits to the jurisdiction of the Learned District Court of Udaipur

under Section 6, 9, 15,16 and 19 of the Code of Civil Procedure,1908 and Order VII, Rule 1

and Order VIII, Rule 6A & 6C of the Code of Civil Procedure,1908 read with Section 18 of

The Rajasthan Civil Courts Ordinance, 1950.

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 STATEMENT OF FACTS

I. Harry, a sailor by profession married Helen in 2008 in India. Harry and Helen

bought a house at Jodhpur and started their life at the new home.
II. In 2009, Harry got an offer from his shipping company for a trip from Russia to

Istanbul. He accepted the offer and was going on a ship named Paradise from

Russia to Istanbul.
III. Paradise disappeared on the high seas and no information could be gathered about

Harry. In 2015, Harrys widow Helen, thinking Harry to be dead, executed a sale

deed of his house in favour of Jim for a consideration of 50 lakhs.

IV. Helen however failed to deliver the possession of the property to Jim. Jim waited

for one year for the possession of the property.

V. Now Jim files a suit in a court of law requiring Helen to deliver the possession of

the property to him.

Hence, the present matter.

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 ISSUES OF CONSIDERATION

I. WHETHER JIM IS ENTITLED TO POSSESSION OF THE PROPERTY?

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 SUMMARY OF ARGUMENTS

I. JIM IS ENTITLED TO THE POSSESSION OF THE PROPERTY.

In the present matter, the Defendant made an erroneous representation to the Plaintiff of her

title to the property. The Plaintiff executed a sale deed with the Defendant on the basis of that

representation. However, one year after the execution of the sale deed, the Defendant actually

acquired a title to the property. Hence, by virtue of the rule of estoppel embodied under

Section 43 of the Transfer of Property Act [the Act], the Defendant is under an obligation to

perform the contract and deliver the possession of the property to the Plaintiff. Further, the

rule of spes successionis is not applicable in the present matter.

ARGUMENTS ADVANCED
___________________________________________________________________________

I. JIM IS ENTITLED TO THE POSSESSION OF THE PROPERTY.

___________________________________________________________________________
In the present case, the Defendant executed a sale deed for the sale of a house in favour of the

plaintiff for a consideration of Rupees 50 lacs. The Defendant failed to deliver the possession

of the property to the plaintiff. The Plaintiff is entitled to specific performance of the

agreement of sale by virtue of the rule of estoppel embodied under Section 43 of the Act [A].

Further, the doctrine of spes successionis is not applicable in the present case [B].

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 A. The Plaintiff is entitled to the specific performance of the contract by virtue of the

principle of estoppel embodied under Section 43 of the Act.

Section 431 says that where a person erroneously represents that he/she is authorised to

transfer certain immovable property and agrees to transfer such property for a consideration,

then upon the option of the transferee, such a transfer shall operate on the interests that the

transferor may actually acquire in the property.

For the application of section 43, two essentials that have to be satisfied in a case are:

(i) Firstly, that there is an erroneous representation made by the transferor to the

transferee that she is authorized to transfer certain immovable property and that in

exercise of this authority she agrees to transfer the property for a consideration;
(ii) Subsequently, when the transferor acquired an interest in the transferred property,

at the option of the transferee, he is entitled to get restitution of interest in the

property got by the transferor, provided the transferor acquires such interest in the

property during the subsistence during which the contract of transfer must

subsist.2

In the present matter, both the conditions are satisfied as the Defendant made an erroneous

representation of her title of the property to the Plaintiff and agreed to sell it for a

consideration [a] and subsequently, the Defendant actually acquired the property [b].

Therefore, the Plaintiff is entitled to get restitution of interest in the property.

1 Section 43, Transfer of Property Act, 1882.

2 Kartar Singh v. Harbans Kaur, (1994) 4 SCC 730.

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 (a) At the time of the execution of the sale deed, the Defendant made an erroneous

representation of her title and agreed to sell the property for a consideration.

Whether a representation is erroneous or not is a question of fact. 3 A case where a transferor

does not have a title to the property but he genuinely believes that he has the competency to

transfer the property and makes an agreement in furtherance of this misconception, it

amounts to an erroneous representation.4

In the present case, the Defendant Helen, thinking her husband to be dead, genuinely

believed that she had acquired the title to his house and property.5 However, a person can

only be presumed to be dead if it is proved that he has not been heard of for seven years by

those who would naturally have heard of him if he had been alive. 6 In the present case, it has

been recorded that at the time of the execution of the sale deed, the Defendants husband had

not been heard of for the past six years (2009 to 2015). 7

Thus, the Defendants assumption that her husband was dead was bad in law as it had only

been six years since his death. Hence, she made an erroneous representation to the transferee

of her title to the property who subsequently acted upon that representation.

3 Saradamoyi v. Atul Chandra, AIR 1923 Cal 165.

4 Poonam P. Saxena, Property Law 189 (LexisNexis, 2011 Edn.)

5 Moot Proposition, 3.

6 Section 108, Indian Evidence Act, 1872.

7 Moot Proposition, 2.

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 (b) Now that the Defendant has acquired a title in the property, the Plaintiff is entitled to

get restitution of his interest in the property.

Since the ship has been lost on the high seas and one year after the execution of the sale deed,

it has been seven years since the Defendants husband was last heard of. 8 Thus, by virtue of

Section 1089, it can be presumed that the Defendants husband is dead. 10 As the Defendant

does not have any kids, she has become the owner of all the property of her husband

assuming he died intestate.11 Thus, she had to perform her obligations under the contract and

deliver the possession of the property.

In the case of Mahadeo v. Har Baksh Dube12, the wife of one Waris Ali, assuming him to be

dead, had executed a mortgage deed of his property in 1924 i.e. after his absence for five

years from the village. The mortgage deed was challenged in 1926 by the local zamindar. The

High Court held that it cannot be concluded that Waris Ali was dead when the mortgage deed

was executed in 1924. However, now in 1926 i.e. seven years after Waris Ali was last heard

of, it can be assumed that he is dead and accordingly his wifes mortgage deed becomes good

under Section 43 of the Act.

Similarly, at the time the suit for the specific performance of the contract has been filed, the

Defendant has acquired a good title to the property as her husband had not been heard of for

the past seven years. Hence, the contract for sale of property that she made with the Plaintiff

in 2015 holds good and she should be directed for specific performance of the contract.

8 Moot Proposition, 2 & 3.

9 Indian Evidence Act, 1872.

10 L.I.C. v. Anuradha, AIR 2004 SC 2070.

11 Section 33, Indian Succession Act, 1925.

12 Maha Deo v. Har Baksh Dube, AIR 1928 Oudh 13

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 B. The doctrine of spes successionis is not applicable in the present case.

The doctrine of spes successionis is embodied under Section 6(a) of the Act.13 Section 6(a)

provides that the chance of an heir-apparent succeeding to an estate, the chance of a relation

obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature,

cannot be transferred. What is forbidden by clause (a) is a mere chance of an heir succeeding

to an estate or a mere possibility of a like nature.

When the transfer is a transfer by an heir-apparent on his chance to succeed to an estate, the

transfer will be hit by section 6(a). But where the transfer is not of the right of expectancy but

of the property itself, it cannot be said to be a transfer of a mere chance to succeed to an

estate.14

In the present case, the transfer under the sale deed was not of the right to expectancy but of

the property itself. There was an erroneous representation of the title of the property by the

defendant at the time of execution of the sale deed. Hence, the doctrine of spes successionis is

not applicable in the present case.

Alternatively, it is my humble submission that the Defendant acquired a title to the property

at the time of the execution of sale deed only. It has to be noted that the law does not

specifically provide for the case where a man is unheard of for a period less than seven years,

does not mean that the court has no power to presume death in such circumstances. The

special circumstances of a case may allow such a presumption. In cases where the person in

question embarked on a vessel, which was not heard of and which was long overdue, the

Court has assumed the death of the person before seven years.15
13 Section 6, Transfer of Property Act, 1882.

14 Shyam Narain v. Mangal Prasad, AIR 1935 All 244 as cited in Samir Kumar Haldar v.
Nirmal Chandra, 79 CWN 391.

15 Thompson v. Thompson (1956) All E.R. 603.

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In the present case, the Defendants husband embarked on a voyage and has not been heard of

for the past six years.16 Thus, under these circumstances, the court can reasonably assume the

death of the Defendants husband after a period of six years only. Accordingly, the Defendant

acquired a title in the property at the time of execution of sale deed and thus she entered into

a valid contract.

As the Plaintiff has fulfilled his obligations under the contract and has also delivered the

consideration, the Defendant should be directed to fulfil her obligations under the contract

and accordingly deliver the possession of the property to the Plaintiff.

16 Moot Proposition 2.

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 PRAYER FOR RELIEF

Wherefore in light of the facts stated, issues raised, arguments advanced and authorities cited,

it is most humbly and respectfully prayed before this Learned Court that it may be pleased to:

To direct the defendant for specific performance of the contract.

And pass any such order which the Honourable Court may deem fit in the eyes of equity,

justice and good conscience.

All of which is most humbly and respectfully, submitted.

Date:24th March, 2017 Counsel for the Plaintiff

Place: Jodhpur Counsel Code: 1367

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