SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION , 2022 --TABLE OF CONTENTS

TEAM CODE: B2

ROLL NO: 51

SDSM LAW COLLEGE PALGHAR

BEFORE SUBMISSION TO THE HONOURABLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE HONOURABLE SUPREME COURT OF INDIA

PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA SEEKING

DECLARATION AND/OR ANY OTHER JUST AND EQUITABLE RELIEFS

IN THE MATTER OF

MR. MIHIR GOKHALE.………..…………………….PETITIONER

Vs.

MR. SHRI SHRIKANT GOKHALE………………………… RESPONDENT

WRITTEN SUBMISSIONS ON THE BEHALF OF PETITIONER

MEMORANDUM ON BEHALF OF PETITIONER

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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

II. LINKS REFERRED....................................................................................................3

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

MEMORANDUM ON BEHALF OF PETITIONER

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SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 --LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

Abbreviation Full Form

¶ Paragraph
& And
Add. Additional
AIR All India Reporter
Anr. Another
Cr.P.C. Code of Criminal Procedure
CriLJ Criminal Law Journal
ed. Edition
Exh. Exhibit
Hon’ble Honourable
i.e. That is
IPC Indian Penal Code
Mohd. Mohammed
M.P. Madhya Pradesh
MPLJ M.P. Law Journal
NOC Notes on Cases
Ors. Others
r/w Read with
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
Sr. Senior
U.P. Uttar Pradesh
u/s Under Section
v. Versus

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SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 --INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

I. BOOKS

 THE TRANSFER OF PROPERTY ACT-

1. MULLA,THE COMMENTARY ON THE TRANSFER OF PROPERTY

ACT(LEXIS NEXIS BUTTERWORTHS, TENTH EDITION, 2006)
2. R.K. SINHA,THE TEXTBOOK ON TRANSFER OF PROPERTY ACT,1882

 THE CONSTITUTION OF INDIA-

1. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA,

WADHWA, INDIA, 2007, 8TH EDITION, VOLUME I AND II
2. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (LEXIS NEXIS EIGHT
EDITION, 2018)
3. H.M. SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL
PUBLICATIONS, INDIA, 2004, 4TH EDITION, VOLUME I,II AND III.

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SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 --INDEX OF AUTHORITIES

II. CASES

 INDIAN CASES

1. CCE V NATIONAL TOBACCO CO OF INDIA LTD………................. AIR 1972 SC 2563

2. LAXMI & CO. V ANAND R DESHPANDE............................................AIR 1973, SC 171
3. ANTULAY V RS NAIK .............................................................................(MAD)-2016-1-55
4. SANWAT SINGH V. THE STATE OF RAJASTHAN ........................542 and 1570 of 1995
5. PRITAM SINGH V. STATE....................................................... AIR 2002 NOC 333 (BOM)
6. PRITISH NATVAR SANGHVI V. NATVAR KESHAVLAL SANGHVI AND ANR.
7. RATANAGIRI V VYANKATRAV1AND RAMSARUP V. BELA........AIR 1961, SC 715
8. MOOL RAJ V. JAMMA DEVI........................................... AIR 1950 SC 169:1950 SCR 453
9. K. BALAKRISHNAN V. K. KAMALAM AND OTHERS..................... AIR 2004 Cal 726
10. SECRETARY OF STATE V. ARATHOON............................................ (1872) 8 Bom HC 1
11. SOHAN LAL VS. MULTAN CHAND.................................................................... 11 IA 44
12. S.PALANI AND OTHERS V. S.BHARATHI DASAN (DECEASED) AND OTHERS

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SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 --INDEX OF AUTHORITIES

III. STATUTES

1. MAINTAINENCE AND WELFARE OF PARENTS AND SENIOR CITIZENS

ACT, 2007
2. THE REGISTRATION ACT, 1908
3. THE TRANSFER OF PROPERTY ACT, 1882
4. CONSTITUTION OF INDIA, 1949

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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.,

Article 136 provides special leave to appeal by the Supreme Court-

(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.

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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.

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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

A. WHETHER THE GIFT DEED IS REVOCABLE OR NOT?

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.

B. WHETHER SECTION 23 MAINTAINANCE OF WELFARE OF PARENTS

AND AND SENIOR CITIZENS ACT, 2007 IS MAINTAINABLE OR NOT?

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

A. WHETHER THE GIFT DEED IS REVOCABLE OR NOT?

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.

Definition (S16) of the Indian Contract Act

Undue Influence is defined under Section 16 of the Indian Contract Act.

When one party is in a position to dominate the will of others and actually
misuses the power, then it is a case of undue influence, and the contract
becomes voidable. When all the following three conditions are fulfilled then
only the situation is considered as an undue influence:

1. One person is in a position to dominate the will of others.

2. He misuses his position.
3. He obtains an unfair advantage.
The word undue means unnecessary, unwarranted, or more than required.
Influence means convincing the mind of a counterparty through changing his
mind or changing his will, but this influence must be undue i.e. it is not
required. Undue influence applies to a relationship which may be blood
relation or some other kind of relation i.e. fiduciary or relation based on
trust. It means the unfair use of one’s superior position to obtain the consent
of a person who is in a weak position. For example, A police officer bought a
property worth Rs.1lakh for Rs.5000 from Ram, an accused under his
custody. Later this contract can be cancelled and it can be held as void
because there is a mental pressure on a person.

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SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 -WRITTEN SUBMISSIONS

Ability to dominate the will of other

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:

1. There must be a relation between the parties:

a) Real or apparent authority/relation in which one party can be dominated
by the other party. For example, father and son, mother and daughter.

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.

Example of real or apparent authority:

 A Father exerts undue influence upon his son to do something on

the will of his father.  Otherwise, he will part his relation with a son.
 A factory owner exerts undue influence upon his employee to make
a certain agreement with him. If not he (employee) will be drawn
from his job.
Example of fiduciary relation: 

 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.

Real or Apparent authority

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.

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SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 -WRITTEN SUBMISSIONS

Section 126.   When gift may be suspended or revoked.

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.

A gift also be revoked in any of the cases (save want or failure of

consideration) in which, if it were a contract, it might be rescinded.

Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affect the rights of

transferees for consideration without notice.

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.

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SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 -WRITTEN SUBMISSIONS

Whether section 23 of MAINTAINANCE OF parents welfare and senior citizen is

maintainable or not?

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.

1. Maintenance of parents and senior citizens.—(1) A senior citizen including parent

who is unable to maintain himself from his own earning or out of the property owned by
him, shall be entitled to make an application under section 5 in case of—
(i) parent or grand-parent, against one or more of his children not being a minor;
(II)A childless senior citizen, against such of his relative referred to in clause (g) of
section 2.
(2) The obligation of the children or relative, as the case may be, to maintain a senior
citizen extends to the needs of such citizen so that senior citizen may lead a normal life.
(3) The obligation of the children to maintain his or her parent extends to the needs of
such parent either father or mother or both, as the case may be, so that such parent may
lead a normal life.
(4) Any person being a relative of a senior citizen and having sufficient means shall
maintain such senior citizen provided he is in possession of the property of such citizen or
he would inherit the property of such senior citizen:
Provided that where more than one relatives are entitled to inherit the property of a senior
citizen, the maintenance shall be payable by such relative in the proportion in which they would
inherit his property.
2. Application for maintenance.—(1) An application for maintenance under section
4, may be made—
(a) by a senior citizen or a parent, as the case may be; or
(B)if he is incapable, by any other person or organization authorized by him; or
The Tribunal may take cognizance suo motu

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SDSM LAW COLLEGE, PALGHAR MOOT COURT COMPETITION, 2022 -WRITTEN SUBMISSIONS

Conditions required for claiming maintenance

1. Father or mother must be unable to maintain himself or

herself: By giving a plain meaning to the language used in section
125(1)(d), it seems that there are only two circumstances under
which parents can claim maintenance, which are as follows:

 The parents must be unable to maintain themself

 The person against whom an order under Section 125 of Cr.P.C is
passed by the court must have sufficient means/resources to
maintain his/her parents and yet neglects or refuses to maintain
them.
The provision in section 125 is one of general application. The provision
provides the statutory recognition of the obligation that a son who has
sufficient means is bound to maintain a father or mother who is unable to
maintain himself or herself. The above mentioned provision is incorporated
under Code of Criminal Procedure for the first time recognising the right of
infirm parents who are unable to maintain themselves to be maintained by
their son or daughter who is possessed of sufficient means as also providing
a remedy to enforce that right.

Conditions to claim Maintenance

The condition prior to claiming maintenance by the above mentioned people

under this Act is that the persons must be unable to maintain themselves
from their own earnings.

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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 –

 To upheld the judgement of Bombay High Court:

a) That, the parent here is liable to maintain himself as he gets pension and is
also liable to take care of his partner as he is in living relationship so the
maintenance is not provided to them and the gift deed is not revoked.
b) That , the petitioner cannot revoke is registered gift deed of property; and
 Pass any other order or make directions as the Hon’ble Court may deem fit to meet
the interest of justice, equity and good conscience in the instant case.

And for this act of kindness, the Petitioner shall duty bound forever pray.

Respectfully Submitted on Behalf of the Petitioner;

COUNSELS FOR

PETITIONER

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