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3rd Moot Court Memorial 2022
3rd Moot Court Memorial 2022
TEAM CODE: B2
ROLL NO: 51
IN THE MATTER OF
Vs.
i
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION , 2022 --TABLE OF CONTENTS
TABLE OF CONTENTS
Table of Contents
LIST OF ABBREVIATIONS....................................................................................................1
INDEX OF AUTHORITIES......................................................................................................2
I. BOOKS...........................................................................................................................2
III. CASES.........................................................................................................................4
IV. STATUTES.................................................................................................................7
STATEMENT OF JURISDICTION..........................................................................................8
STATEMENT OF FACTS........................................................................................................9
ISSUES RAISED.....................................................................................................................10
SUMMARY OF ARGUMENTS.............................................................................................11
WRITTEN SUBMISSIONS....................................................................................................13
PRAYER..................................................................................................................................22
ii
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 --LIST OF ABBREVIATIONS
LIST OF ABBREVIATIONS
1
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 --INDEX OF AUTHORITIES
INDEX OF AUTHORITIES
I. BOOKS
2
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 --INDEX OF AUTHORITIES
II. CASES
INDIAN CASES
3
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 --INDEX OF AUTHORITIES
III. STATUTES
4
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 --STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
The Honourable Supreme Court of India has the jurisdiction to entertain and dispose of the
present case by virtue of Article 136 of the Constitution of India. The Petitioner approached
before the Supreme Court through Special Leave Petition .i.e.,
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.
5
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 --STATEMENT OF FACTS
STATEMENT OF FACTS
BACKGROUND
1. Sri Shri Shrikant Gokhale, aged 62, a retired government employee drawing about Rs.
10,000/- per month as pension. His first wife died in 2010. He lives with Mr Mihir
Gokhale (Son) and Mrs. Ruchi (daughter-in-law).In January 2011, When Mr. Shrikant
expressed his wish to have live in relationship with Ms. Sayli (aged 45), they both were
rudely shocked to listen to his wish. But later, they relented and requested their father that
half share in the property in Guhagar Estates House, (value was estimated to be Rs.10,
00,000/-) should be transferred to them.
TRANSFER OF PROPERTY
2. Shri Shrikant Gokhale transferred half share in the property to his son in May, 2011
through a Registered Gift Deed to maintain peace in the family. However, the son and
daughter-in-law started insulting to Ms. Sayli and also does unbearable ill-treatment for
more than one year, thereafter Gautam and Sayli shifted their residence to other premises.
LEGAL ACTIONS THEREOF
3. Subsequently in 2013, Mr. Shri Shrikant Gokhale lodged a complaint to the Guhagar
Court seeking an order to revoke the Gift Deed executed in favour of his son under Sec.
23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
ACTIONS TAKEN BY TRIBUNAL & COURT
4. In the Tribunal, the Guhagar Court passed an order that ‘elderly parents can take back
property gifted to a son, if he ill-treats them’. This order permits the Complainant that
Father to withdraw the gift deed from his son, since his son is not providing basic needs
of both parents. In the Appellate Tribunal, the District Court at Chiplun reversed the order
of the Tribunal on ‘accepting the argument of son that an accepted gift through registered
deed cannot be revoked’ under the provisions of Transfer of Property Act, 1882 read with
the Registration Act, 1908.
5. Thereafter, Mr. Shrikant Gokhale got relief from Bombay High Court when the High
Court restored the order of the Tribunal. As a last resort, Mr. Mihir Gokhale (son of Mr.
Shrikant) preferred a Special Leave Petition before the Supreme Court.
6
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 --ISSUES RAISED
ISSUES RAISED
The following issues have arisen for determination before the Hon’ble Court in the
instant matter:
A.
WHETHER THE GIFT DEED IS REVOCABLE OR NOT?
B.
WHETHER SECTION 23 MAINTAINANCE OF WELFARE OF PARENTS AND
WELFARE AND SENIOR CITIZENS ACT, 2007 IS
MAINTAINABLE OR NOT?
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SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 -SUMMARY OF ARGUMENTS
SUMMARY OF ARGUMENTS
It is humbly submitted before the Honorable Supreme Court that the gift deed cannot be
revoked. The ground for revocation of gift deed cannot be undue influence . Here the
petitioner Mr. Gautum relied on his son Mr. Mihir Gokhale that the peace and harmony
among the family members will be maintained and there will be no further fights after the
transfer of property. However the fight between the members continued.
The counsel submits before the Hon’ble court, that the gift deed cannot be revoked by the
petitioner. As per The Maintenance of Welfare of Parents and Senior Citizens Act, 2007. The
counsel submits that the judgement of tribunal and the Bombay High Court is justiciable. It is
humbly submitted before the Honorable Supreme Court that the gift deed cannot be revoked.
The gift deed according to the facts of the present case can be revoked under Sec. 126 of the
Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
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SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 -WRITTEN SUBMISSIONS
WRITTEN SUBMISSIONS
It is humbly submitted before the Honorable Supreme Court that the gift deed cannot be
revoked. The ground for revocation of gift deed cannot be undue influence . Here the
petitioner Mr. Shrikant relied on his son Mr. Mihir Gokhale that the peace and harmony
among the family members will be maintained and there will be no further fights after the
transfer of property. However the fight between the members continued.
9
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 -WRITTEN SUBMISSIONS
The dominant position is not defined in the Indian Contract Act but Section
16(2) provides certain conditions when a person is in a position to dominate
the will of another. Cases, where a person is in a position to dominate the
will of others, are as follows:
b) Fiduciary relation is the relation which is made upon the belief and trust
between the parties. One party must believe the other. For example,
Advocate and client, teacher and student, Doctor and patient.
An advocate asks his client to give him extra money to fight the
case from his side.
2. Mental or bodily distress means the mental capacity of a person is
affected. It can be either permanently or temporarily affected. The
reason behind such health condition can be age, illness, mental or
bodily distress.
Section 16(2) of the Indian Contract Act states that Undue Influence can
arise wherever the donee stands in a fiduciary relationship to the donor or
holds a real or apparent authority. In this type of influence, there is a real
authority like a police officer or an employer who uses his dominance for his
enrichment. Apparent authority is pretending as a real authority without its
existence.
10
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 -WRITTEN SUBMISSIONS
The donor and done may agree that on the happening of any specified event which does
not depend on the will of the donor a it shall be suspended or revoked; but a gift which
the parties agree shall be revocable wholly or in part at the mere well of the donor is void
wholly or in part, as the case may be.
Illustrations
(a) a gives a field to B, reserving to himself, with B's assent, the right to
take back the field in case B and his descendants dies before A, B dies
without descendants in A's lifetime. A may take back the field.
(b) A gives a lakh of rupees to B, reserving to himself, with B's assent, the
right to take back at pleasure Rs. 10, 000 out of the lakh. The gift holds
good as to Rs. 90, 000, but is void as to Rs.10, 000, which continue to
belong to A.
11
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 -WRITTEN SUBMISSIONS
It is humbly submitted before the Honorable Supreme Court that the gift deed cannot be
revoked. The gift deed according to the facts of the present case can be revoked under Sec.
126 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
12
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 -WRITTEN SUBMISSIONS
13
SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 -PRAYER
PRAYER
Wherefore, In light of the facts presented, issues raised, arguments advanced and authorities
cited the Counsel on behalf of petitioner humbly pray before this Hon’ble Court that it may
be pleased –
And for this act of kindness, the Petitioner shall duty bound forever pray.
COUNSELS FOR
PETITIONER
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