TEAM CODE: F - P

LAW SCHOOL, BANARAS HINDU UNIVERSITY

MAHAMANA MALAVIYA
NATIONAL MOOT COURT COMPETITION

(28th FEBRUARY 1st MARCH 2015)

BEFORE THE HONBLE SUPREME COURT OF INDIA

U/A 136 OF CONSTITUTION OF INDIA
SLP. No. 1/2015

SHEKHAR SHARMA

(Appellant/Defendant)

VS

1. MANISH SISODIA died as per LRs

2. V.M LALITHA
3. M.S SRIKANTH
4. SHASHIKANTH

(Respondent/Plaintiff)

TABLE OF CONTENTS
MEMORIAL FOR THE PETITIONER

LIST OF ABBREVIATIONS...........................................

INDEX OF AUTHORITIES.............................................
STATEMENT OF JURISDICTION................................
STATEMENT OF FACTS................................................
ISSUES INVOLVED..........................................................
SUMMARY OF ARGUMENTS.......................................
ARGUMENTS ADVANCED............................................
PRAYER.............................................................................

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5
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LIST OF ABBREVIATIONS

SLP : Special Leave Petition

Dept : Department

MEMORIAL FOR THE PETITIONER

Addl : Additional
R.R : Ranga Reddy
Dist : District
U/A : Under Article
Art : Article
Sec : Section
No : Number
I.e : That is
Eg : Example
Ref : Reference
Aprx : Approximate/ Approximity

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INDEX OF AUTHORITIES

Cases Cited
(INDIAN)1. BALWANT SINGH vs JAGDISH SINGH and ORS. (8july2010)
2. RAM SUMIRAN vs DDC [1985 (1) SCC 431]

MEMORIAL FOR THE PETITIONER

3. MITHAILAL DALSANGANGA SINGHR vs ANNABAI DEVRAM KINI [2003 (7)

SCC 691)]
4. UTTAR GUJRAT VIJ COMPANY vs GHELABHAI VARVABHAI RAVAL (13
DECEMBER 2013)
5. RAMLAL,MOTILAL AND CHHOTELAL vs REWA COALFIELDS LTD. [1962
AIR 361,2 SCR (3) 762]
6. KRISHNA vs CHATTAPAN [ 1890 JLR 13 MAD 269]

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Books Referred
1. Transfer Of Property Act- AVTAR SINGH
2. Blacks Dictionary- 8th EDITION
3. Code of Civil Procedure
4. The Hindu Succession Act
5. The Constitution of India
6. Dr. Sir Hari Singh Gour, The Transfer Of Property Act (11th Ed. 2008)
7. Mr. Malik, Goyle's A Commentary On The Transfer Of Property Act ( 2nd Ed.)
8. Mulla, The Transfer Of Property Act 1882 (10th Ed. 2010)
9. R.K.Sinha, The Transfer Of Property Act (11th Ed. 2010)
10. Vera P. Sarthi, G.C.V Subba Rao's Law Of Transfer Of Property (Easments, Trusts
And Wills) (Reprint Ed. 2005)

MEMORIAL FOR THE PETITIONER

Websites accessed
1. www.indlaw.com
2. www.manupatra.com
1.
2.

Legislations referred
The Transfer Of Property Act,1882
Indian Registration Act, 1908.

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STATEMENT OF JURISDICTION

The petitioner has the honour of submitting the Special Leave Petition before the
Hon'ble Supreme Court of India under Article 136 of Indian Constitution. This sincere
submission of the Counsels is further substantiated in the written submissions.

All of which is most respectfully submitted,

Counsels for Petitioner

MEMORIAL FOR THE PETITIONER

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STATEMENTS OF FACTS
1. That one (now dead) Shri Vijay Kalyan along with his sons and daughters as
coparceners was in ownership of large plots of land, one of which was Suit Schedule
Property bearing no. 86, situated at Chandanagar Village, Serilingampally
Municipality, R.R. District in Andhra Pradesh.
2. That one Veer Kalyan s/o Vikram Kalyan s/o Vijay Kalyan, filed Suit O.S No.
5060/1987 with the IV Asst. Judge, City civil Court, Hyderabad for partition of the
said Joint properties. Prior to any decree passed by the court Vijay Kalyan died on 25
January 1989.
3. A preliminary decree was passed by the court on 4 September 1992 by fixing the
shares of the plaintiffs and defendants in the suit. Before the final decree was arrived
the 59 plots were divided as per the previous decree into 6 plots vide a Family
Settlement Deed dated 20 October 1994.

MEMORIAL FOR THE PETITIONER

4. Via this settlement the Suit Schedule Property Bearing No. 86, came under the
ownership of Vikram Kalyan s/o Lt. Vijay Kalyan.
5. This property was then sold by Vikram Kalyan to Shekhar Sharma vide Registered
sale deed dated 31 May 1995, for Rs. 66,600/- . Shekhar Sharma has been in absolute
and continuous ownership and possession of the same and had been paying property
and other taxes over it.
6. That on 20 June 1997 one Manish Sisodia filed a Suit of Declaration against Shekhar
Sharma in the Court of I Addl. Sub. Judge, Ranga Reddy District; stating that Lt.
Vijay Kalyan (the original owner) has sold the property to him vide Registered sale
deed dated 12 April 1983.
7. Manish Sisodia contended that he had mortgaged the property for educational loan
from Andhra Bank. He could not take any construction activity due to financial
restrains. He further submitted that he is the prior owner of the suit schedule property
from the original owner, hence the subsequent sale deed of Shekhar Sharma is void.
8. On the other hand, vide a written statement Mr. Shekhar Sharma contended that the
suit schedule property is a joint hindu property hence cannot be sold without the
consent of other coparceners, hence the sale deed of manish Sisodia is void ab initio.
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9. Shekhar Sharma had also applied for permission to construct a house on the
purchased plot from the Municipality which sanctioned the proceedings on 30 July
1996 and for the same he took loan of RS 2,00,00/- from Vyasa Bank Housing
Finanace Ltd., Hyderabad.
10. When the I Addl. Sen. Civil Judge, R.R District, Hyderabad, on 30 June 2005 passed
the decree in favour of Manish Sisodia, Shekhar Sharma preferred an appeal on 23
August 2005, with the Court of III Addl. District Judge (FTC), R.R District, which
also was dismissed and the previous decree was rendered as it is.
11. Unable to bear the loss of his whole life earnings and hearing the dismissal of his
case, Mr. Sharma suffered a major heart attack and took a year to recover.
12. After recovery he filed an appeal against the previous judgement with the Hon'ble
High Court along with the appeal to condone the delay of 231 days caused in filing
the previous appeal.
13. The high Court vide the impugned order dated 21 August 2014, dismissed the appeal
to condone the delay hence dismissing the case of the petitioner without hearing it on
merits.
14. Shekhar Sharma against this decree of High Court filed an SLP 1 of 2015

MEMORIAL FOR THE PETITIONER

MAJOR CONTENTIONS FROM THE PETITIONER:

Life threatening heart attack as a substantial reason for delay in filing appeal in High
Court.
Property purchased on 31 May 1995 and since then continuous, absolute and known
ownership and possession and construction over the same.
Registered Sale Deed between Vijay Kalyan and Manish Sisodia void-ab-initio due to
absence of consent of all coparceners.
Payment of all taxes on property.
Encumbrance Certificate with NIL encumbrances at the time of purchase.

MEMORIAL FOR THE PETITIONER

ISSUES INVOLVED

I.

Whether Honble High Courts decision of not condoning the delay is in sync
with reasonable, fair and natural justice?

II.

Whether the sale deed between Lt. Mr. Vijay Kalyan and Mr. Manish Sisodia
void-ab-initio due to absence of consent by all the coparceners of the said suit
schedule property?

III.

Whether the plaintiff/defendant a bonafied purchaser of the suit schedule

property and shall be a beneficiary of the same?

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SUMMARY OF ARGUEMENTS

MEMORIAL FOR THE PETITIONER

I.

Whether the Honble High Courts decision of not condoning the delay in sync
with reasonable, fair and natural justice?

With due respect to the Hon'ble High Court, the counsel on behalf of the petitioner, via
this argument enquires into the reasonability and rationality of the impugned order passed
by it, of not condoning the delay in filing the appeal against the orders of the lower court.
This issue seeks to ask whether the principles of law are made only for mechanical
approach or rather are a tool to advance justice and exercise discretions which provides
more opportunity to any party to be heard and arrive at a decision based on merits.
The aforesaid statement of argument dives into the matter of liberal and wider
construction of principles of limitation and seeks to invoke the maxim Audi Alteram
Partem.
II.

Whether the sale deed between Lt. Mr. Vijay Kalyan and Mr. Manish Sisodia
void-ab-initio due to absence of consent by all the coparceners of the said suit
schedule property?

The stated argument portrays before the Hon'ble bench the invalidity of a Registered Sale
Deed signed between the defendant and the late Mr. Vijay Kalyan owing to its
inconsistency with the rules of sale of a Joint Hindu Property. The counsel invariably
questions the legality and maintainability of a sale deed which is not consented by all the
coparceners of the suit schedule property, which is a Joint property and gives no single
owner the full rights to sell it, without reasonable reasons.
By invoking the legal principles, this issue seeks to render the sale deed between the
aforementioned partied void-ab-initio and establish the legality of title of the property in
petitioners own favour.

III.

Whether the plaintiff/defendant a bonafied purchaser of the suit schedule

property and shall be a beneficiary of the same?

The present argument seeks to establish the fact that Mr. Shekhar Sharma (petitioner) is a
bonafied purchaser and thus shall be entitled to its benefits i.e. shall not be made to suffer
out of no fault of his own. This again, requires the Hon'ble Court to consider the
principles of natural justice which gives If there is right there is remedy then also gives
No innocent shall be punished.
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ARGUMENTS ADVANCED

MEMORIAL FOR THE PETITIONER

I.

Whether the Honble High Courts decision of not condoning the delay in sync
with reasonable, fair and natural justice?

The counsel on behalf of the Petitioner, with due respect to both the Honble High Court
and the Apex Court would like to put before the Honble Supreme Court that while
rejecting the appeal filed in by the petitioner, merely on the basis of delay in filing, the
respected High Court has unwillingly and unintentionally crumpled the pillars of Natural
Justice and reasonable and fair judgement.
The main issue upon which now the petitioner stands before the Hon'ble bench is the
same as aforesaid, whereby it wishes to condone the delay caused in filing the appeal
before the respected Hon'ble high court; the reason of delay being completely beyond the
powers of the petitioner.
The counsel humbly requests the bench to pour its attention over the facts which clearly
marks the inability of the petitioner to approach the High Court for preferring an appeal
against the orders of the respected lower court, and the reasonable reason for such
inability.
As the facts say, Unable to bear the loss of his whole life time savings Mr. Shekhar
Sharma on hearing the news of dismissal of his case suffered a major heart attack
and took almost a year to recover.
The counsel with due politeness submits before the Hon'ble court that such a reason
which endangers the life of a person and affects his and all his related ones, shattering the
normal prudence expected by an adult in normal conditions, is it not satisfactory to justify
the delay in appeal.
It is worth to put here that Hon'ble High Court due to some unfortunate reason, has
overridden this aspect and dismissed the Petition of delay thus dismissing the appeal
without considering the merits and purely on the grounds of delay. The Hon'ble High
Court should take a liberal view and should condone delay irrespective of the above facts
and in all these judgements the delay has been condoned by the court.1

1.

BALWANT SINGH vs JAGDISH SINGH and ORS. (8july2010)

RAM SUMIRAN vs DDC [1985 (1) SCC 431]
MITHAILAL DALSANGANGA SINGH vs ANNABAI DEVRAM KINI [2003 (7) SCC 691)]

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The counsel humbly submits that the Law of limitation is generous and that no party should
be saddled with liability without offering as opportunity to submit his case only on such
grounds of technicalities.2Somewhere owing to the mechanical approach by the Hon'ble
MEMORIAL FOR THE PETITIONER

High Court, the principle of Audi Alteram Partem had been overlooked and this invariably
has hampered the natural justice.
For the kind reference of the Honble bench the counsel quotes the case of Ramlal, Motilal
And Chhotelal vs Rewa Coalfields Ltd.3The highlighted set of lines, as they go, say Section
5 of the Limitation Act lays down that an appeal may be admitted after the period of
limitation if the appellant shows sufficient cause for not preferring the appeal within
such period. Held, that it would be irrelevant to invoke general considerations such as
diligence of the appellant in constructing the words of Sec 5. The expression Within
such period doesnt mean during such period and the failure of the appellant to
account for his non-diligence during the whole period of limitation does not disqualify
him from praying for Condonation of delay.
The Counsel would like to draw the attention of the bench towards the fact that though there
was a substantial delay in filing of appeal in the High Court, i.e. delay of 231 days, yet the
reason behind the same was too reasonable to be dismissed. Heart Attack and its recovery is
not only tedious to physical aspect of a person, but drains him and his near ones quite
mentally and economically as well. During such circumstances which involve life of a
person, how can normal prudency expect him to take care of mechanical aspects of legal
proceedings?
The Limitation Act in Section 5 provides for extension of time in certain cases. Inter alia, it
lays down, that any appeal may be admitted after the period of limitation prescribed thereof
when the appellant satisfies the court that he had sufficient cause for not preferring the appeal
within such period.4 As is said, Law is for the welfare of society and its principles shall be
constructed for the betterment of weaker party. Indeed the delay of 231 days is substantial
enough to invoke the principles of law, yet it must be kept in mind that they should be
exercised to advance justice. Overstepping the principles of natural justice and ignoring the
life threats of a person is what goes against the aforesaid statement. Sec. 5 gives the court a
discretion which in respect of jurisdiction is to be exercised in the way which judicial power
and discretion ought to be exercised upon principles which are well understood; the words
sufficient cause receiving a liberal construction so as to advance substantial justice when no
negligence nor inaction nor want of bona fide is imputable to the appellant.5

2.
3.
4.
5.

II.

UTTAR GUJRAT VIJ COMPANY vs GHELABHAI VARVABHAI RAVAL (13 DECEMBER 2013)
(1962 AIR 361,2 SCR (3) 762)
RAMLAL,MOTILAL AND CHHOTELAL vs REWA COALFIELDS LTD.
KRISHNA vs CHATTAPAN; MADRAS HIGH COURT 1890 JLR 13 MAD 269
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Whether the sale deed between Lt. Mr. Vijay Kalyan and Mr. Manish Sisodia
void-ab-initio due to absence of consent by all the coparceners of the said suit
schedule property?

MEMORIAL FOR THE PETITIONER

The counsel on behalf of the petitioners, after pleading the condoning of delay would like
to put before the Hon'ble bench the substantial facts and findings of the present case,
which make up the major issues, and which unfortunately were not even considered for
deciding, by the Hon'ble High Court due to non-acceptance of appeal of delay.
The petitioner is here to get the legal sanction of his right of ownership over the Suit
Schedule Property, bearing number 86, which was sold to him by (Now dead) Mr. Vikram
Kalyan, vide a Registered Sales Deed (6820/1995) on 31 May 1995 at Hyderabad, for a
consideration of Rs. 66,600/- (Sixty Six Thousand Six Hundred Only).
The same property is alleged to be under the ownership of Mr. Manish Sisodia (now
dead), vide another registered sale deed dated 12th April 1983.
The counsel from the petitioners side would like to put before the Hon'ble bench that the
title which the opposite counsel seeks to be declared, is a title which never passed Mr.
Sisodia. It is humbly requested to the Hon'ble bench to direct its attention to the facts
sheet which clearly state that the property in question was Joint Hindu Property. The
Karta of the same was Mr. Vijay Kalyan and the coparceners were his three sons, two
daughters and the wife.
The law states that where such property is to be sold the Karta have to have the consent of
all the coparceners, in absence of which the sale cannot be advanced. In the present case
the same has happened, where Mr. Vijay Kalyan has sold its property bearing no. 86 to
Mr. Manish Sisodia, but the sale deed stands void ab initio due to absence of consent of
all the coparceners.
Though the facts are not directly showcasing this aspect of the present case, yet there are
few stark instances, which with taut scrutiny cannot be missed by a prudent person.
The major one being the evidences showcased in lower courts in form of certificate of
original sale deed. The Counsel on behalf of petitioners would request the Hon'ble bench
to put all its attention to the fact stating, that the registered sale deed shown as evidence
was having the signs of only Mr. Vijay Kalyan as vender and Mr. Manish Sisodia as
vendee but not that of any of the coparceners. Only Mr. Vikram Kalyan has shown his
sign but that too as an attester.
This certificate is enough proof that MR. Vijay Kalyan sold the suit schedule property
without the consent of his all coparceners, which makes this transaction void ab initio.
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The Act gives the Karta the power to sell the estate without the permission or consent of
the coparceners, only and only when there is some legal necessity to do so or there is
some profit to the estate. In the present case, amidst all the facts and functions, none of
the two exceptional cases arose. This thus, leaves Mr. Vijay Kalyan with no defence for

MEMORIAL FOR THE PETITIONER

the sale of the estate and hence renders the sale deed signed by them without the consent
of coparceners void.

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III.

Whether the plaintiff/defendant a bonafied purchaser of the suit schedule

property and shall be a beneficiary of the same?

MEMORIAL FOR THE PETITIONER

The counsel on behalf of the petitioners would like to put before the Hon'ble Supreme
Court that the petitioner herein is a party in suit, but keeping all facts and circumstances
in mind, the petitioner in the present case surfaces as a bonafied purchaser of the Suit
Schedule Property, bearing No. 86. The Counsel would again request the Hon'ble to
bench to go on the facts and direct their precious attention to the piece of information
which says that petitioner, after he purchased the property from Mr. Vikram Kalyan, also
got an Encumbrance Certificate. This certificate in all possible manners was proving that
the bought property is free from all liabilities and disputes.
The petitioner purchased the property vide a Registered Sale deed, which itself is a proof
of the buyers maximum awareness. Any purchase of property vide a registered sale deed
is deemed to be legal and fine in all manners to a layman, and the same happened with
Mr. Shekhar Sharma. Showing more responsibility, Mr. Sharma even took an
encumbrance certificate for the same property which showed NIL encumbrances.
These deliveries of facts prove that Mr. Shekhar Sharma did all what is expected from an
aware purchaser a responsible prudent adult while engaging into property matters. The
default was on part of either the government officials or Mr. Manish Sisodia.
The encumbrance certificate didnt show any mortgage of the said suit schedule property
as the contention is raised by Mr. Sisodia, whereby he has stated to mortgage the property
and acquired loan over it for his sons education. The missing of the liabilities form the
certificate clearly marks the falsehood created by Mr. Sisodia in order to grab the title of
the property.
Also there was no public notice regarding sell of the land by Mr. Vijay Kalyan to Mr.
Manish Sisodia, in absence of which, no purchaser who has had acquired the land via a
registered sale deed and has obtained a liability free encumbrance certificate can be
expected to know that the land was already sold to someone else.
The bonafied purchase by MR. Sharma had been clearly established in the present
circumstances, and through the standing principles of natural justice, no innocent act
should be bought to action under law and no person shall be punished out of no fault of
his own.
The dispute has created the rights of Mr. Shekhar Sharma as well on the property and
thereby keeping in mind the reasonable care and prudence exercised by him and no means
to know the previous transaction over the property, he should be given the benefit of
being a bonafied purchaser.
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PRAYER

MEMORIAL FOR THE PETITIONER

Wherefore,

In the light of facts presented, arguments advanced, issues referred and authorities cited;
The counsel on behalf of the Petitioners humbly submits and prays that this Hon'ble Court
may be pleased to1. Pass the decree for Hon'ble High Court to condone the delay in filing the appeal and
hear the case on merits.
2. Declare the title of the said Suit Schedule Property in favour of the Petitioner.
3. Declare the Registered Sale Deed signed between Mr. Vijay Kalyan and Mr. Manish
Sisodia void.
4. Pass any such order which this Hon'ble Court deems fit and proper in the facts and
circumstances of the present case.

All of which is most respectfully submitted,

Counsel on behalf of the Petitioners.

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MEMORIAL FOR THE PETITIONER