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ARGUMENTS ADVANCED 1. The respondent Chhabubai Balwantrao Shinde cannot claim absolute ownership of the entire property in dispute, as provided under-section 14(1) of the Hindu Succession Act, 1956. It is very humbly submitted before this Honble Court that U/S 14 (1) of the Hindu Succession Act, any property acquired by a Hindu female, except that which is covered by sub-section (2), before the Act came into force will become her absolute property, and any property acquired by a Hindu female, except that which is covered by subsection (2), after the commencement of the Act, will be her absolute property. S.14 has been given retrospective effect. It converts existing womans estates into absolute estates. In Deendayal v. Raja Ram1, the Apex court has laid down 2 conditions to be fulfilled before this Section is applied. They are: (a) ownership of the property must vest in her and (b) she must be in possession of the estate when the Act came into force. Moreover it is well settled that if a Hindu female has no title to the property she will not become its absolute owner, even though she is in its possession. In Mannalal v.Raj Kumar 2, the SC held that both the expressions, property and ;possession are to be given widest possible interpretation. This Honble SC said: The word possessed in S.14 is used in broad sense and in the context means the state of owning or having in
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AIR 1970 SC 1019 AIR 1962 SC 1493

MEMORANDUM OF THE APPELLANT

2 ones hand or power.3 It was pointed out by the Supreme Court in the case of Eramma v. Veerupana4: "The property possessed by a female Hindu, as contemplated in the section is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to Section 14 (1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however, restricted the nature of her interest may be. The words 'as full owner thereof and not as a limited owner' as given in the last portion of subsection (1) of Section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, Section 14 (1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called 'limited estate' or 'widow's estate' in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. The property possessed by a female Hindu, as contemplated in the Section, is clearly the property to which she has acquired some kind of title whether before or after the commencement of the Act. S.14
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Gummalappura v. Setra, AIR 1959 SC 577 AIR 1966 SC 1879

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3 does not in any way confer a title on the female Hindu where she did not, in fact, possess any. Thus S.14 cannot be interpretated so as to validate the illegal possession of a female Hindu. In the present case, it is clear as a day light that the respondent Chhabubai did not possess any title to the property, the possession of which she had. Hence she cannot claim absolute ownership of the entire property as provided u/s. 14(1) of the Hindu Succession Act, 1956.

2. In the absence of any pleadings and evidence to the effect that Balwantrao Shinde had given the property to Chhabubai in lieu of maintenance, recording a finding by High Court that the property in possession was in lieu of maintenance which could be enlarged into full ownership is wrong. It is very earnestly submitted that in the absence of any pleadings and evidence to the effect that the Balwantrao Shinde had given the property to Chhabubai in lieu of maintenance, the High Court has erred in recording a finding that the property in possession of Chhabubai was in lieu of maintenance which could be enlarged into full ownership rights on her. In the matter of Messrs. Trojan and Co. v. RM. N.N. Nagappa Chettiar5 in which it has been held by the Apex Court that "the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint the Court was not
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1953 SCR 780

MEMORANDUM OF THE APPELLANT

4 entitled to grant the relief not asked for." In the present case Chhabubai did not either raise the plea nor lead any evidence to prove that the properties were given to her by way of maintenance by Balwantrao Shinde. It is also not disputed that properties in the hands of Balwantrao Shinde were ancestral in nature. Thus the absence of any pleadings to the effect that Balwantrao Shinde had given the properties to Chhabubai by way of maintenance and in the absence of any evidence to that effect, the finding that the properties were given in lieu of maintenance to Chhabubai which right could be enlarged into full ownership right could not be recorded. The High Court was clearly fell in error in recording a finding to the effect that Chhabubai had become absolute owner of the properties left by Balwantrao Shinde. Even in case, the respondent makes such a plea in this Honble court, the burden of proof as to whether Balwantrao Shinde had given the property to Chhabubai in lieu of maintenance is on the respondent 6. However in the present case, as the respondents have not made any such plea earlier they cannot adduce new additional evidence in that regard to fill up the lacunae. In State of U.P. v. Manbodhan Lal Srivastava7, the Apex Court has held that, additional evidence at the stage of appeal should not be permitted in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage. Further, in the matter of State of Gujarat & Anr. v. Mahendrakumar Parshottambhai Desai8, it has been held by the Apex Court that additional evidence cannot be permitted to fill up
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S.101 & S.103 of the Indian Evidence Act, 1872 1957 AIR 912 8 Appeal (civil) 7898-7900 of 2002

MEMORANDUM OF THE APPELLANT

5 the lacunae. Adding to this, the factor that the properties were ancestral hands of Balwantrao Shinde shows plaintiff No. 1 had a right by birth. The entire property therefore could not have been given to Chhabubai by way of maintenance neither can it be given to her in this present case. Hence in this present case, Chhabubai is not entitled to the entire property in the view that it is provided to her in lieu of maintenance because she has not pleaded or provided evidence with regard to the same; even if the respondents would want to putforth such a plea the burden of proof lies on them; however, in the absence of such a plea so far, the respondents cannot adduce new additional evidence hereafter to fill in the lacunae.

3.The appellants are certainly entitled to a share in the property in dispute. It is very submitted to this honble highest Court of this land that the appellants, who are the children of the deceased owner of the property in dispute, are certainly entitled to a share in the property as per the provisions of the Hindu Succession Act, 19569. The Act has diverged radically from the compact series of Pre-Act Law. This departure is seen in the enumeration of Class I heirs and the mode of distribution adopted by it among such heirs. The Class I heirs include Son, Daughter, Widow & Mother. In the distribution of the property among Class I heirs the following principles should be borne in mind: (a) The widow takes a share, (b) Sons & daughters take one
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S.9 & S.10 of the Act

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6 share each. The Appellants, being the children of the deceased owner of the property in dispute, get shares in the property certainly. Hence, the appellants are entitled with share in the property in dispute.

PRAYER Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is most humbly prayed that the Honble Apex Court may be pleased to 1) Allow this appeal, 2) To set aside the orders passed by the High Court of Bombay and 3) To pass such other necessary orders deemed fit and proper in the circumstances of the case and in the interest of justice.

Dated at New Delhi on this the __ day of March, 2011 Counsel for the Appellant

MEMORANDUM OF THE APPELLANT

MEMORANDUM OF THE APPELLANT

MEMORANDUM OF THE APPELLANT