Mahamana Malaviya National Moot Court Competition 2015

Team Code- R
D

MAHAMANA MALAVIYA NATIONAL MOOT COURT COMPETITION 2015

IN THE SUPREME COURT

TILAK MARG
NEW DELHI 110201
INDIA

CASE CONCERNING THE POSSESION OF SUIT SCHEDULE PROPERTY

Shekhar Sharma
APPELLANT
V.
1. Manish Sisodia died par LRs
2. V.M.Lalitha
3. M.S.Srikanth
4. Shashikanth
RESPONDENT
ON SUBMISSION TO THE SUPREME COURT OF INDIA

MEMORIAL for the RESPONDENT

Memorial for the Respondent

1. Manish Sisodia
2. V.M Lalitha
3. M.S Srikanth
4. Shashikanth

Mahamana Malaviya National Moot Court Competition 2015

TABLE OF CONTENTS

PAGE.NO
1. INDEX OF AUTHORITIES.. 1
2. STATEMENT OF JURISDICTION...3
3. STATEMENT OF FACTS..4
4. ISSUES INVOLVED..7
5. SUMMARY OF ARGUMENTS.....8
6. BODY OF ARGUMENTS..10
7. PRAYERS23

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1
INDEX OF AUTHORITIES

ACTS
1. THE TRANSFER OF PROPERTY ACT, 1882.
2. HINDU MINORITY AND GAURDIANSHIP ACT, 1956.
3. THE REGISTRATION ACT, 1908.
4. INDIAN EVIDENCE ACT, 1872.
5. HINDU SUCCESSION ACT, 1956.
6. THE LIMITATTION ACT, 1963.

CASES
1. Baljinder Singh v Rattan Singh, [2008] INSC 1307.
2. Visvanathan v Ramanujam, ILR 2011 MHC 1991
3. Sunder Das & Ors v. Gajananrao & Ors, 1996 INSC 1605
4. Duraiswami Reddi v. Angappa Reddi, 1945 1 M.L.J. 425
5. S.Arunachalam Asari v. Sivan Perumal Asari And Anr, AIR 1970 Mad 226
6. Abdullah v Bhichuk, AIR 1934 AP 68
7. Gosto Behari v Rajabala, AIR 1956 CAL 449
8. Gopal Das v. Shri Thakurji, Air 1943 PC 83
9. Krishna Kumar v. Kayastha Pathshala, AIR 1966 All 570.
10. Komalsingh Kuwarsing v. Krishnabai, (1946) 48 Bom LR 83: (1946) Bom 146.
11. Bhagat Ram v. Suresh, AIR 2004 SC 436.
12. Parvathy v. Muruga Gounder, (2002) 2 MLJ 415
13. V.Chandrasekaran & Anr v. Administrative Officer & Ors, (2012)12 SCC 133
14. Narayana v. Rama, (1912-13) 38 Mad. 396
15. Ramaswamy Gounder v. Ananthapadmanabha Iyer, (1971) 1 Mad LJ 392
16. Kandasami Pillai v. Rangasami Naina, (1912) 23 M.L.J. 301
17. Annamalai Gounder v. Chinnathambi Gounder, 1997 (1) MLJ 385

BOOKS REFERRED

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1.
2.
3.
4.
5.
6.

Sir Dinshaw Fardunji Mulla, The Registration Act (12th ed.2012).

Dr.Avtar Singh, Textbook on the Transfer of Property Act (3rd ed.2012).
Paras Diwan, Law of Adoption Minority Guardianship & Custody (5th ed. 2012).
Ratanlal & Dhirajlal, The Law of Evidence (23rd ed.2011).
G.C.V Subba Rao, Law of Transfer of Property (7th ed.2012).
A.K.Tripathi, Supreme Court on Law of Evidence (1st ed. 2007).

ONLINE SOURCES
1.
2.
3.
4.

Manupatra Online Resource, http://www.manupatrafast.in/

SCC Online , http://www.scconline.com/
Westlaw, login.westlawindia.com/
India Kanoon, http://indiankanoon.org/

3
STATEMENT OF JURISDICTION

CASE CONCERNING THE POSSESSION OF SUIT SCHEDULE PROPERTY

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Shekhar Sharma

. Appellant

V.

Manish Sisodia died par LRs

V.M. Lalitha
M.S. Srikanth
Shashikanth

. Respondent

Mr. Shekhar Sharma and Mr. Manish Sisodia & Ors submit the following dispute to this court
by Special Leave Petition under Article 136 of The Indian Constitution and the Jurisdiction of
this court thus extends to all matters referred to by the parties.

IN THE SUPREME COURT

TILAK MARG
NEW DELHI- 11201
STATEMENT OF FACTS

1. That the late Shri Vijay Kalyan along with his sons and daughters as coparceners was in
ownership and possession of large plots of land, one of which was the Suit Schedule
Property bearing No. 86 in Survey Nos. 38, 39, 40 and 41 admeasuring 222 sq. yards or
185.5 Sq. meters., situated at Chandanagar Village, Serilingampally Municipality, R.R.
District in Andhra Pradesh.

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2. That Veer Kalyan S/o Vikram Kalyan, during the life time of his grandfather, Vijay
Kalyan, filed a Suit O.S No. 5060/1987 on the file of VI Asst. Judge, City Civil Court,
Hyderabad for partition in the year 1987. The Suit was filed against Vijay Kalyan.
3. That on 25th January 1989, Vijay Kalyan died and on his death his wife and two daughters
became his legal representatives. Partition was made on property including suit schedule
property.
4. That on 4th September 1992, Preliminary Decree was passed by the court. The Decree
revealed the shares of the plaintiffs and the defendants in the said suit. Correspondingly,
parties 1st to 3rd were entitled to 1/4th share each in the schedule property and parties 4 th to
6th were entitled to 1/12th share each. Veer Kalyan was entitled to 1/4th share of his fathers
share i.e. 1/16th of the total share.
5. That the court passed a preliminary decree on 4 th September 1992, however the Final
Decree for partition of the land was delayed in consideration of the location of 59 plots,
which were situated in different villages, and had to be measured in metes and bounds
including survey of all lands.
6. That on 20th October 1994, hence by mutual consent had drawn a Family Settlement
Deed discerning the Final Decree was pending. It was agreed to allocate and duly
demarcated the 59 Plots of various dimensions forming part of S. No. 38, 39, 40 and 41
of Chandranagar Village Layout. The land was demarcated, indicating boundaries of each
part of the land.
7. That on account of six members amongst whom the aforesaid plots were to be ramified,
the plot was agreed to be given keeping in view the share of each party and the said 59
plots were mutually divided amongst themselves according to the share of Preliminary
Decree dated 4th September 1992. Plot No. 86 came in share of Vikram Kalyan.
8. That on 31st May 1995, Vikram Kalyan S/o Late. Vijay Kalyan sold the Suit Schedule
Property to Shekhar Sharma vide Registered Sale Deed bearing No. 6820 of 1995 dated
at Hyderabad for a consideration of Rs.66,000/-. Shekhar Sharma was in continuous
possession from the date of sale. He had been paying property tax and various other taxes
on the said plot of land.

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9. That Shekhar Sharma, while persuading his intention to build a house on the Suit
Schedule Property (Plot No. 86), for his residence procured a loan of Rs.2, 00,000/- by
Vysya Bank Housing Finance Ltd., which was duly sanctioned to him.
10. That Manish Sisodia filed a suit for declaration against Shekhar Sharma, affirming that
on 12th May 1983, late Vijay Kalyan allegedly sold the Suit Schedule Property vide
Registered Sale Deed dated 12th May 1983 for a total consideration on Rs. 11,100/11. Professedly, Manish Sisodia mortgaged the Suit Schedule Property to obtain an
educational loan from Andhra Bank, Koti Branch for his son Shashikanth, to send him for
higher education in Unites States of America. He filed the Certified Copy of the
Registered Sale Deed in the court as the original was in the above mentioned bank. Due
to impelling financial conditions of Manish Sisodia, he was unable to undertake any
construction activity in Plot No. 86 and kept it vacant.
12. That on 23rd August 2005, Sekhar Sharma filed an appeal on A.S. No. 119 of 2005 in the
Court of III Additional District Judge, (FTC), Ranga Reddy District against the Judgment
and Decree passed in O.S. No. 420 of 1997 on the file of I Addl. Senior Civil Judge, R.R.
District LB Nagar dated 30th June 2005.
13. That Shekhar Sharma was not able to bear the loss of his life time savings, consequently
he suffered a major heart attack on hearing the news of dismissal of his case and took
almost about a year to recover.
14. Thenceforth recovering, Shekhar Sharma filed S.A. (SR) No. 28412 of 2012 before the
Honble High Court of Judicature at Hyderabad for the State of Telangana and the State
of Andhra Pradesh challenging the Judgment dated 15th July 2011 in A.S. No. 119 of
2005 of the Court of III Additional District Judge, (FTC), Ranga Reddy District.
15. That Shekhar Sharma filed S.A.M.P. No. 1777 of 2012, being the Condonation of the
delay of 231 day in filing S.A. (SR) No. 28412 of 2012.
16. That Shekhar Sharma filed a Special Leave Petition 1 of 2015 challenging the impugned
order.
The following facts have been examined and validated by the Lower Division Court.
17. That the Registered Sale Deed dated 12 th May 1983 was attested by Vikram Kalyan and
Mahadev. The court surmised that Vikram Kalyans signatures were present on the
Registered Sale Deed.
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18. That Vikram Kalyan died on 25th January1989 the proceeding of the court.
19. That the Encumbrance Certificate dated 1st Jan 1982 to 27th June 1995 comprised the
names of Vijay Kalyan and Manish Sisodia. Encumbrance certificate dated 19 th February
1996 to 9th July 1997 comprised the names of Vikram Kalyan and Manish Sisodia.
20. That a Commissioner was appointed to note down the physical features of the plot.
21. That on 19th June 2000 Shekhar Sharma filed an application in I.A. No. 471/ 00 seeking
permission for completion of the construction and also given an undertaking by filing a
memo that in the event of losing the suit he shall not claim or demand the costs and he
will demolish the construction without claiming equities.

7
ISSUES INVOLVED

1. Whether the sale deed between Manish Sisodia and Vijay Kalyan was valid?
2. Which of the two registered sale deed will prevail?
3. Whether Manish Sisodia was able to prove the execution of the registered sale deed?
4. Whether Shekhar Sharma is a Bona Fide Purchaser?
5. Whether the sale deed executed by Vikram Kalyan is valid?
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SUMMARY OF ARGUMENTS

1. THAT THE SALE DEED EXECUTED BY VIJAY KALYAN IS VALID

It is humbly submitted before the court that the nature of the particular Suit Schedule Property
Plot. No. 86 is an absolute property of Late Vijay Kalyan as Vijay Kalyan portrayed himself as
the true owner of the property. Even if the property was ancestral, according to the limitation bar
of Article 109 of the Limitation Act 1963, the period for challenging a property alienated by the
Karta has well exhausted. Thus the sale deed executed by Vijay Kalyan in favor of Manish
Sisodia on 12th May 1983 is a valid sale deed.

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2. THAT OUT OF THE TWO SALE DEEDS, FIRST ONE WILL PREVAIL
The respondent humbly contends that in cases of double registration of a same piece of land, the
one who gets his land registered before the other avails a better title of the land, he own the
preferred title of the land. The sale deed dated 12 th May 1983 is obviously prior than the sale
deed dated 31st May 1995. Therefore, on the lines of the principle of he who is earlier in time is
stronger in law Manish Sisodia holds a better title of the Suit Schedule Property according to
the Transfer of Property Act, 48.
3. THAT MANISH SISODIA WAS ABLE TO PROVE EXECUTION OF THE
REGISTERED SALE DEED
It is humbly submitted that proof of execution of a registered sale deed is not required as, the
process of registration is a proof of execution in itself as it is signed by the respective parties and
the registrar. The appellant contends that the execution of the registered sale deed dated 12 th May
1983 is not proved by the Respondent. Thus, it is submitted to the Honble Court that execution
of a registered sale deed need not be proved.
4. THAT SALE DEED EXECUTED BY VIKRAM KALYAN IS NOT VALID
It is humbly submitted by the Respondents that the sale deed dated 31 st May 1995 was not
properly executed by Vikram Kalyan and hence it is invalid. Firstly, Vikram Kalyan does not
have the correct title of ownership and the same cannot be passed onto Shekhar Sharma. In
Ex.B1 the flow of title to Shekhar Sharma had been missing. Secondly, it was held by the Lower
Division Court that Vikram Kalyan ha signed both the registered sale deed, the first an attestor
and second as a vendor. Therefore, it can be inferred that as an attestor is assumed to have
knowledge about the contents of the document, Vikram Kalyan knowingly sold the property to
Shekhar Sharma. Thirdly, the consent of minor was not taken at the time of the second registered
sale deed.
5. THAT SHEKHAR SHARMA IS NOT A BONA FIDE PURCHASER
It is humbly submitted by the Respondent, that Shekhar Sharma cannot take the benefit of being
the Bona Fide Purchaser as Shekhar Sharma fails to fulfill the prerequisites of being a Bona Fide
Purchaser. Also, Shekhar Sharma was not vigilant enough to enquire before buying the property
and lastly, because he failed to comply with the liabilities of a buyer. Thus, Shekhar Sharma
cannot be called a Bona Fide Purchaser.
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BODY OF ARGUMENTS

1. THAT THE SALE DEED EXECUTED BY VIJAY KALYAN IS VALID

The vendor of the plaintiff (Vijay Kalyan) represented to Manish Sisodia that he is the absolute
owner of the property and verifying all the facts in respect of the property, the plaintiff purchased
the property.1 Accordingly, sale deed executed between Vijay Kalyan and Manish Sisodia dated
12th May 1983 is valid. Shekhar Sharma oppose the motion by stating that the property is an
ancestral and subsequently that consent of coparceners is required before selling any ancestral
property.

1 Factsheet, Annexure 1, 7

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1.1THAT THE SUIT SCHEDULE PROPERTY WAS NOT AN ANCESTRAL RATHER IT
IS AN ABSOLUTE PROPERTY.
1.1.1

Broadly speaking property inherited from any ancestor or ancestress may be called
ancestral property. Inherited property may be classified under the following heads:a. Property inherited from father, fathers father or fathers fathers father.
b. Property inherited from maternal grandfather.
c. Property inherited from any other relation.2

1.1.2Title to a property that is free of any encumbrances or deficiencies is known as absolute

property. Absolute title gives unequivocal right of ownership to the owner, and cannot be
disputed or challenged by anyone else. This is opposed to titles with liens, attachments or
judgments against them, it is also known as a perfect title.3
1.1.3Manish Sisodia contends that at the time of buying the Suit Schedule Property Vijay Kalyan
represented himself as the absolute and outright owner of the property. Therefore, there was no
room for doubt to Manish Sisodia that he was not the true owner of the property. Manish Sisodia
made all possible enquiries and even the mediator i.e., PW2 never told him that the property was
not an absolute property of Vijay Kalyan. On the other hand, no recitals in Ex.B1 that the
schedule property is the ancestral property inherited by the vendors. However, it is clear from
Ex.B.1 that it is absolute property of the vendors.4
1.2THAT CONSENT OF COPARCENARS CANNOT BE CHALLENGED AFTER
EXHAUTION OF THE LIMITATION PERIOD
1.2.1

Shekhar Sharma argues that since the property was an ancestral property, it cannot be

sold without the consent of the coparceners. Whereas, Manish Sisodia contends that consent of
other coparceners was not required by Vijay Kalyan for selling his property because he was the
absolute owner of the property and the property was his absolute property.
2Dr. ParasDiwan, Mordern Hindu Law, 293, (22nd Edition 2013).
3Id.
4 Factsheet, Annexure 1, 14

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1.2.2

Even if the property was an ancestral, consent of coparceners would not be required

according to Art 109 of Limitation Act art 109 says that even if consent of coparceners has not
been taken the coparcenrs only have right to challenge such alienation in 12 years and not after
that- By Hindu governed by Mitakshara Law to set aside his father's alienation or ancestral
property, for twelve years, when the Aileen takes possession of the property.
1.2.3

In Baljinder Singh vs Rattan Singh, the Honble Trial Court recorded a finding that the suit

land was ancestral in the hands of Shiv Dev Singh and that alienation of ancestral property
effected by father of a Hindu governed by Mitakshara law could be challenged in terms of
Article 109 of the Limitation Act, 1963 (in short the `Limitation Act') within 12 years from the
date when alienee takes possession of the property alienated.5
1.2.4In Visvanathan v. Ramanujam it was submitted that, in a Hindu Joint Family, if the father
happened to alienate the ancestral property the alienation of the father could have been
questioned within the stipulated period of 12 years. Having allowed to expire prescribed period it
cannot be questioned in the later stage, as Article 109 of the Limitation Act operates as bar.
Article 109 of the Limitation Act contemplates that by a Hindu governed by Mithakshara law to
set aside his father's alienation of ancestral property the period of limitation is 12 years. The
period of limitation is reckoning from the date when the alienee takes possession of the property.6
1.2.5Article 109 in the Schedule to the Limitation Act. 1963 provides for a period of limitation of
twelve years for a

Hindu governed by Mitakshara law who files a suit to set aside his

father's alienation of ancestral property and twelve years period begins from the date when
alienee takes possession of the property.7
1.2.6Thus, the claim made by Shekhar Sharma that the consent of coparceners is required to sell
off the property is partly true as such an alienation cannot be challenged after 12 years as
according to the Limitation Act, property alienated by Karta cannot be challenged after
exhaustion of period of limitation.
5 Baljinder Singh v. Rattan Singh, 2008 INSC 1307
6Visvanathan v. Ramanujam ILR, 2011 MHC 1991
7Sunder Das & Ors v. Gajananrao & Ors 1996 INSC 1605

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2. THAT OUT OF THE TWO SALE DEEDS, FIRST ONE WILL PREVAIL
In the present case, both the parties have registered sale deeds. In case where one of the sale
deeds is not registered, the one which is registered first prevails over the other. Registration of a
document proves its legality. Out of the two sale deeds dated 12th May 1983 and 30th May 1995,
the sale deed which was registered earlier will prevail over the other.
2.1

THAT MANISH SISODIA AVAILS THE BENEFIT OF PRIORITY OF RIGHTS

2.1.1

Priority of rights created by transfer- Where a person purports to create by transfer at

different times rights in or over the same immoveable property, and such rights cannot all exist or
be exercised to their full extent together, each later created right shall, in the absence of a special

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contract or reservation binding the earlier transferees, be subject to the rights previously
created.8
2.1.2When there are two or more competing equitable interests, the equitable maxim qui prior
esttempore potiorest jure which stands for he who is earlier in time is stronger in law, applies.
This means that the first in time prevails over the others. 48 of the Transfer of Property Act
embodies this principle in legislation. The Section is founded upon the important principle that
no man can convey a title than what he has.9
2.1.3Madras High Court in Duraiswami Reddi v. Angappa Reddi10 held that the prior transferee
would be entitled to enforce his rights though his document is registered later and even if the
subsequent transferee entered into transactions bona fide without knowledge of the first
transaction. It was held that this result was implicit and was a direct consequence of the
combined operation of 47 of the Registration Act and 48 of the Transfer of Property Act. It is
also observed that the right of priority of the first transferee would be postpones only if the later
transferee establishes any informative circumstances like fraud, estoppels or gross negligence.
2.1.4Where there is competition between two documents (relating to the same property) both of
which are registered, the question of priority as between them is to be determined with reference
to the provisions of 48 and 50 has no application. 11If the properties are different, the section
has no application.12If the plea that a document is ante-dated is rejected on a question of fact that
the document which is complete and registered would take effect from the date of execution is a
simple statutory prescription.13
8 Transfer Of Property Act,1882, 48
9 Mr. KarandeepMakkar, Doctrine Of Priority In Property Law,Manupatra.
10Duraiswami Reddi v. Angappa Reddi 1945 1 M.L.J. 425
11 Abdullah v Bhichuk AIR 1934 AP 68
12 Gosto Behari v Rajabala AIR 1956 CAL 449
13 Sir Dinshaw Fardunji Mulla, The Registration Act, 277, (12th ed.2012)

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2.1.5In S. Arunachalam Asari v. Sivan Perumal Asari And Anr, Sri D. Ramaswami Iyengar,
learned counsel for the appellant, invited the courts attention to some of the decisions arising
under 47 of the Registration Act. In all those cases, it was held that the prior transferee will be
entitled to enforce their right of priority even if the subsequent transferee had no knowledge of
the prior transaction in view of 47 of the Registration Act read with 48 of the Transfer of
Property Act, Section 48 of the Transfer of Property Act embodies the well-established rule of
priority founded on law and justice that if a person purports to create by transfer at different
times, rights over the same immoveable property and such rights cannot all co-exist or be
exercised to their full extent together, each later created transfer shall be subject to rights
previously created.14
2.1.6In the present case there are two registered sale deeds, one is dated 12th April 1983 which
was executed by Vijay Kalyan in favor of Manish Sisodia and the other one is dated 31st May
1995. Shekhar Sharma contends that his sale deed is valid while according to Sec 48 of Transfer
of Property Act, 1882 when there are two registered sale deed the first in time would prevail. On
the above grounds, the sale deed which was executed by Vijay Kalyan in favor of Manish Sisodia
will be valid can be said in consonance with the judgment given in the aforementioned cases.

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3. THAT MANISH SISODIA WAS ABLE TO PROVE EXECUTION OF THE
REGISTERED SALE DEED
It is oppugn by Shekhar Sharma in the appeal to the Addl. Senior Civil Judge that, the plaintiff
failed to prove the execution of the registered sale deed and the initial burden to prove the
documents is on the plaintiff heavily, but the trial court failed to appreciate the documents and

14 S. Arunachalam Asari v. Sivan Perumal Asari And Anr, AIR 1970 Mad 226

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the evidence adduced by the defendant and the plaintiff has not examined the attestor of the sale
deed of Ex.A-1-cc of sale deed.15
3.1Manish Sisodia has a registered sale deed and corresponding to the provisions of Sec 67 and
Sec 68 of Indian Evidence Act 1872, execution of a registered sale deed need not be proved as
the document is registered and Manish Sisodia in order to prove his altruism examines the
Mediator as PW2.
3.2

In Gopal Das v. Shri Thakurji, It was held that the evidence of due registration was

itself some evidence of execution, against the party so making the admission.16 Execution means
signing, sealing and delivering of a document. The term may be defined as formal completion of
a deed, Justice Rankin observed: The ordinary meaning of executant is fairly clear the
ordinary meaning of executing a document is signing a document as a consenting party thereto
The man whose name has been put to the document as evidencing his assent therto is the
executant for the purpose of this section. .17
3.3Section 68, Indian Evidence Act, 1872 Proof of execution of document required by law to be

attested.If a document is required by law to be attested, it shall not be used as evidence until
one attesting witness at least has been called for the purpose of proving its execution, if there be
an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any
document, not being a Will, which has been registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it
purports to have been executed is specifically denied.
3.4

According to Sec 17(b) of The Registration Act, other non-testamentary instruments which

purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right,

15 Factsheet, Annexure 2, 4.
16 Gopal Das v. Shri Thakurji AIR 1943 PC 83
17 Ratanlal & Dhirajlal, The Law of Evidence, 957 (23rd ed.2011)

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title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in
immovable property. Thus the Sale Deed was required to be registered.

3.5

The proviso was added by Act XXXI of 1926. It simplifies the difficulty of calling

attesting witnesses where the document to be proved is a registered one and is not a will and its
execution is not specifically denied by the person executing it. 18 If the attestation is not specially
denied it is not necessary to call any attesting witness.
3.6The certificate of the registrar is Prima Facie evidence of execution and also conclusive when
there is no evidence to throw any doubt 19. It is not necessary to call any attesting witness, unless
it is expressly contended that the attesting witness has not witnessed the execution of the
document.20
3.7It has been held, that registration of document does not dispense with need of proving
execution and attestation of document required by law to be proved in manner provided in Sec
68, Evidence Act. On account of registration of document, presumption as to correctness or
regularity of attestation cannot be drawn.21 It was held that registration of the document does not
dispense with the need of proving the execution and attestation of a document which is required
to be proved as per Sec 6822
3.8In the case of a document other than the will, it shall not be necessary to call an attesting
witness in proof of its execution if it has been registered under the provisions of the Registration
Act unless its execution by the person by whom it purports to have been executed is specific all.

18 Ratanlal & Dhirajlal, The Law of Evidence, 969 (23rd ed.2011)

19 Krishna Kumar v. Kayastha Pathshala, AIR 1966 All 570.
20 Komalsingh Kuwarsing v. Krishnabai, 1946 48 Bom LR 83
21 Bhagat Ram v. Suresh, AIR 2004 SC 436.
22 Id.

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4. THAT SALE DEED EXECUTED BY VIKRAM KALYAN IS NOT VALID
As mentioned by the Addl. District Judge, Under the rule of nemo dat quod non habet, no one
can convey a better title than he had reveal that the plaint schedule property having sold by Vijay
Kalyan i.e., the vendor of the defendant (Shekhar Sharma) has no right to alienate the same in the
year 1995 and as such, the defendant sale deed is not valid and binding on the plaintiff.23
4.1THAT VIKRAM KALYAN DID NOT HAVE A BETTER TITLE TO TRANSFER THE
PROPERTY
4.1.1

Nemo dat quod non habet, literally meaning no one gives what he doesn't have", is a

legal rule, it states that the purchase of a possession from someone who has no ownership right to
it also denies the purchaser any ownership title.
4.1.2

In Eswaramurthy v. Muruga Gounder24, according to the learned Trial Judge, because

the settler had executed a lease deed, after the settlement deed the settle cannot be said to be the
owner of the property. Actually, the reverse is true. Having parted with all her rights under the
settlement deed, at least insofar as the one acre that is settled on Thayammal, the settler had no
right to create any lease or to transfer in favor of anyone. The person can give only what he has
Nemo dat quod non habet. It is also clear from the judgment that the Trial Court has come to the
conclusion merely on the basis of the entry in the record of tenancy rights and for the reasons
stated above that Kavundammal had executed a lease deed in 1960 after the settlement deed.
4.1.3The general rule of law is undoubted, that no one can transfer a better title than he himself
possesses; Nemo dat quod non habet. However, this Rule has certain exceptions and one of them
is, that the transfer must be in good faith for value, and there must be no misrepresentation or
fraud, which would render the transactions as void and also that the property is purchased after
taking reasonable care to ascertain that the transferee has the requisite power to transfer the said

23 Factsheet, Annexure 2, 16.

24 Parvathy v. Muruga Gounder, 2002, 2 MLJ 415

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land, and finally that, the parties have acted in good faith, as is required under Section 41 of the
Transfer of Property Act, 1882.25
18
4.1.4Section 21(1) of the Sale of Goods Act as, Subject to this Act, where goods are sold by a
person who is not their owner, and who does not sell them under the authority or with the
consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the
owner of the goods is by his conduct precluded from denying the sellers authority to sell.
4.1.5

Therefore, Vikram Kalyan does not have the title of ownership itself to be able to pass it

forward to Shekhar Sharma and thence, the sale deed between Shekhar Sharma and Vikram
Kalyan is invalid.
4.2

THAT ATTESTATION AMOUNTS TO KNOWLEDGE ON PART OF VIKRAM

KALYAN
4.2.1

It has been proved by the Honble Court on the application of Sec 73, Indian Evidence

Act, that Vikram Kalyans signature on Ex.B1 is similar to the signature of an attestor in Ex.A5
Hence it can be inferred that Vikram Kalyan had knowledge of the contents of the document.
4.2.2

According to 3 of Transfer Of Property Act 1882 ,attested ,in relation to an instrument

,means and shall be deemed always to have meant attested by two or more witnesses each of
whom has(1) Seen the executants sign or affix his mark to the instrument, or
(2) Has seen some other person sign the instrument in his presence and by the direction of
the executants, or
(3) Has received from the executant a personal acknowledgment of his signature or mark, or
of the signature of such other person, and

25 V.Chandrasekaran & Anr vs Administrative Officer & Ors, [2012] 10 S.C.R. 603

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(4) Each of whom has signed the instrument in the presence of the executants, but
(5) It shall not be necessary that more than one of such witnesses shall have been present at
the same time, and
(6) No particular form of attestation shall be necessary.26
4.2.3In Narayana v. Rama27, the learned Judge, after referring to the observation of the Privy
Council already quoted, stated, I may respectfully add that, in my pretty long experience as a
Judicial Officer, if the attestor of the document has an existing interest in the property dealt with
in the document, it has been always the case that this attestation has been taken in order to bind
him as to the correctness of the recitals therein.
4.2.4In Ramaswamy Gounder v. Ananthapadmanabha Iyer28, On the facts of the case it was not
necessary for the purpose of the case, for the court to rest its conclusion, on the basic of the
attestation of the concerned parties to the relevant document and the prima facie position and
presumption resulting therefrom. From the attendant and the surrounding circumstances. It is
impossible to state that when the concerned parties attested the documents, they were not aware
of the contents. All the circumstances of the case point to the conclusion that they attested the
document with full knowledge of the contents of the document.
4.2.5In Kandasami Pillai v. Rangasami Naina29, a presumption is raised, when an adult man of
full mental capacity attests a deed and when such a man has admittedly a tangible interest in the
property affected by the deed, that his attestation has been taken as a proof of his consent to and
knowledge of the correctness of the recitals in the deed and it lies upon the person, who contends

26 Dr.Avtar Singh, Transfer Of Property Act, 1882, 16 (3rd ed.2012).

27 Narayana v. Rama (1912), 38 Mad. 396
28 Ramaswamy Gounder v. Ananthapadmanabha Iyer, (1971) 1 Mad LJ 392
29 Kandasami Pillai v. Rangasami Naina, (1912) 23 M.L.J. 301

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that such an attestor did not knew all the recitals in the deed and did not consent to the allegation
made by the deed, to prove the contrary.
4.2.6Hence, in the light of the above states precedents and considering the facts, it can be
consummated that Vikram Kalyan, while attesting the document, had the knowledge of the
contents of the document.
4.3

THAT MINORS CONSENT WAS NOT TAKEN BEFORE SELLING THE

PROPERTY TO SHEKHAR SHARMA

4.3.1

Manish Sisodia submits that though B. Sailaja daughter of Vikram Kalyan was minor, no

permission was obtained from the District Registrar for sale and the sale is void.
4.3.2 Powers of natural guardian.
(1) The natural guardian of a Hindu minor has power, subject to the provisions of this
section, to do all acts which are necessary or reasonable and proper for the benefit of the
minor or for the realization, protection or benefit of the minors estate; but the guardian
can in no case bind the minor by a personal covenant "8. Powers of natural guardian
(2) The natural guardian shall not, without the previous permission of the court
(a) The natural guardian shall not, without the previous permission of the court,"
(b) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of
the immovable property of the minor;
(c) Lease any part of such property for a term exceeding five years or for a term
extending more than one year beyond the date on which the minor will attain
majority.
4.3.3 Hence, Vikram Kalyan while selling the property should have taken consent of his minor
child.

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21
5. THAT SHEKHAR SHARMA IS NOT A BONA FIDE PURCHASER
The sale deed dated 31st May 1995 is invalid as, firstly Vikram did not have correct title to sell
the Suit Schedule Property and secondly, Shekhar Sharma cannot in any case get the title of a
Bona-Fide Purchaser.
5.1

THAT SHEKHAR SHARMA DOES NOT FULFIL THE PREQUISITES OF

BEING A BONA FIDE PURCHASER.

5.1.1

The following conditions have to be fulfilled by the transferee for availing the benefit

under 51:a) He must prove that he is a transferee of immovable property.

b) He has made improvements in the property believing in good faith that he is entitled to
the property.
c) He is evicted from the property by a person having a better title.30
5.1.2From the above mentioned condition, the following were not followed:-He did not make
improvements in the property believing in good faith that he is entitled to the property as he
should have made prior enquiry about the title of the property.

30 Dr. Avtar Singh, The Transfer of Property Act, 135, (3rd Edition, 2012)

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5.2

THAT SHEKHAR SHARMA FAILED TO ENQUIRE BEFORE PURCHASING

THE PROPERTY.
5.2.1

In Annamalai Gounder v. Chinnathambi Gounder and others, the Honble Court held,

reference to subsequent purchaser it is essential that he should make an inquiry as to title or

interest of the person in actual possession as on the date when sale transaction was made in his
favor. The actual possession of a person itself is deemed or constructive notice of the title if any,
of a person who is for the time being in actual possession thereof. A subsequent purchaser has to
make inquiry as to further interest, nature of possession and title under which the person was
continuing in possession on the date of purchaser of the property.31
5.2.2Therefore, it is for the plaintiff to establish that there was no wilful abstention of enquiry or
search of the facts, on her part about the vendor before the sale transaction was completed. As
pointed out above, it is not the case of the plaintiff in the plaint that such preliminary enquiry was
ever made and therefore the parameters prescribed under Section 3 of the Transfer of Property
Act are applied, it should be hold that the abstention on the part of the plaintiff in not making
such preliminary enquiry will itself amount to notice of the charge, as far as the plaintiff is
concerned.
5.2.3 Therefore, when a person is in possession of a property, the purchaser ought to have
made enquiries about the capacity of a person in possession and if no enquiry is made, then it
cannot be stated that he is a bonafide purchaser for value.

31 Annamalai Gounder v. Chinnathambi Gounder, 1997 (1) MLJ 385

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23
PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly
requested that this Honorable Court may be pleased to adjudge and declare:
1

That the sale deed executed between the appellant and his vendor be declared as null and
void and the sale deed of respondent and his vendor should be declared valid.

The respondent be declared as the true and ostensible owner of the suit property.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

COUNCIL FOR RESPONDENT

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Memorial for the Respondent