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RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

IIT KHARAGPUR

BEFORE THE DISTRICT COURT OF DELHI

UDIT NATH & PRADEEP NATH………………………………PETITIONER

VERSUS

ELISA……………………………………………………………………DEFENDANT

CIVIL–ORIGINAL JURISDICTION UNDER SECTION 16 OF THE CIVIL

PROCEDURE CODE 1908

AS SUBmITTED TO THE DISTRICT JUDGE & OTHER COmPANION

JUDGES OF THE HONOURABLE DISTRICT COURT OF DELHI

WRITTEN SUBmISSIONS ON BEHALF OF PETITIONER

DIPANKAR JANA

23IP63011
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1. TABLE OF CONTENTS………………………………………………………...2

2. INDEX OF AUTHORITIES……………………………………………………..3

3. STATEMENT OF JURISDICTION……………………………………………4

4. STATEMENT OF FACTS………………………………………………………..5

5. ISSUES PRESENTED……………………………………………………………6

6. SUMMARY OF ARGUMENTS………………………………………………….7

7. ARGUMENTS ADVANCED………………………………………………………8

8. PRAYER FOR RELIEF…………………………………………………………..14

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INDEX OF AUTHORITIES

LIST OF CASES---

1. R. Vishwanathan v. Syed Abdul WajidAIR1963 SC-1

2. Sankaran Govindim v. Lakshmi Bharathi AIB. 1964 Ker 244

3. Chettiarv. Chettiar, AIR 1964 Mad 398

4. Chaudhary v. Ajudhia, AIR 2003 NOC 126 (HP)

5. Heir OfNirubeu-Chimanbhai Patel vs State·Of Gujarat C/SCA/14382/2019

6. Roshan Lal and Another v. Dalipa reported in AIR 1985 HP 8

BOOKS AND ARTICLES---

1. MULLA HINDU LAW, LEXIS NEXIS LAW PUBLISHING AND CO, WADHA,(24 TH
EDITION, 2019)

2. PARAS DAWAN, THE LAW OF INTERSTATE AND TESTAMENTARY

SUCCESSION, THIRD EDITION, UNIVERSAL LAW PUBLICATIONS & CO,2006

STATUES REFERRED--

3. THE INDIAN SUCCESSION ACT, 1925

4. THE HINDU SUCCESSION ACT,1956

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STATEMENT OF JURISDICTION

This Honorable Court possesses jurisdiction over this matter as it pertains to

the title dispute over the property left by Susmita Nath upon her demise,
falling within the territorial jurisdiction of this Court under section 16 of the
code of civil procedure,1908 .

Section 16- Suits to be instituted where subject-matter situate.—Subject to the

pecuniary or other

limitations prescribed by any law, suits—

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge

upon immovable

property,

(d) or the determination of any other right to or interest in immovable

property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or

attachment,shall be instituted in the Court within the local limits of whose
jurisdiction the property is situate:

Provided that a suit to obtain relief respecting, or compensation for wrong to,
immovable propertyheld by or on behalf of the defendant may, where the
relief sought can be entirely obtained through hispersonal obedience, be
instituted either in the Court within the local limits of whose jurisdiction
theproperty is situate, or in the Court within the local limits of whose
jurisdiction the defendant actually andvoluntarily resides, or carries on
business, or personally works for gain.

Explanation.—In this section “property” means property situate in india.

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STATEMENT OF FACTS

1. Ranjan Nath, a wealthy businessman, resided in Kolkata with his wife

Susmita Nath and their two sons, Pradeep Nath and Udit Nath.

2. Susmita Nath, a lecturer in the Department of History at Jadavpur

University, developed a professional relationship with John Marchell, a
visiting professor from Australia.

3. Susmita Nath and John Marchell collaborated on academic research,

notably publishing a seminal work on the role of anthropology in
understanding the origins and evolution of human civilization.

4. Subsequently, Susmita Nath and John Marchell were awarded the

prestigious Miller Ford Scholarship from Cambridge University to research
the impact of globalization on indigenous communities and their cultural
practices in the Andaman Islands.

5. Despite objections from her husband, Susmita Nath chose to pursue the
scholarship opportunity with John Marchell, ultimately leading to her divorce
from Ranjan Nath by mutual consent.

6. In 2005, Susmita Nath and John Marchell were married in England, and
they had a daughter named Elisa.

7. Tragically, five years later, John Marchell passed away, leaving Susmita
Nath as the nominee of his property, including a bungalow in New Town
Colony, Kolkata.

8. Following John's demise, Susmita returned to India with her daughter Elisa
and began residing in the New Town property.

9. In 2010, Susmita Nath passed away intestate, survived by her daughter

Elisa and her sons Pradeep Nath and Udit Nath. 10. After Susmita's demise,
Elisa obtained possession and ownership of the New Town property left by
her father. 11. Subsequently, Pradeep Nath and Udit Nath, the sons of
Susmita Nath, filed a title suit in the Court of competent jurisdiction, claiming
title over the property left by their mother in Delhi.
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ISSUES RAISED

THE PETITIONERS VERY RESPECTFULLY PUT FORTH TO THE HON’BLE DISTRICT

COURT THE FOLLOWING QUERIES:

ISSUE 1

WHETHER THE CHILDREN OF THE FIRST MARRIAGE HAVE A CLAIM

OVER PROPERTY LEFT BY THE MOTHER, SUSMITA ?
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SUMMARY OF ARGUMENTS

It is humbly submitted before the Hon'ble District court that the

petitioners have a share in the property left by their mother in Delhi. This

is contented by the following arguments. firstly, an foreigner can buy an

immovable property in India, Secondly, that the position of nominee is

care taker of the property till the succession takes place. Thirdly,
according to the Private International law that the Indian Succession

Act,1925 applies in this case by which property devolves to Susmita.

Fourthly, it is submitted that it what Susmita got is separate property of

her and lastly since Susmita died intestate, by applying Hindu

Succession Act 1956, it will devolve to the petitioners.

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ARGUMENTS ADVANCED

I. WHETHER THE CHILDREN OF THE FIRST MARRIAGE

HAVE A CLAIM OVER PROPERTY LEFT BY THE MOTHER,
SUSMITA?

1. It is humbly contended before the honourable court that the petitioners

Pradeep Nath and Udit Nath are entitled to get a share over the property left
by their mother, Susmita ,in Delhi. For this, it is contended that the
immovable property in Delhi, left by the respondent's father, John, dying
intestate, will be governed by the Indian Succession Act of 1925. Private
International Law also confirms the above position. And the petitioners will
get the property from mother Susmita through the operation of The Hindu
Succession Act, of 1956.

1.1 Whether a Foreign National Acquiring a Property India?

According to Ministry of External Affairs guidelines regarding the acquisition

and transfer of immovable property in India, it says that a foreign national
who is a .person resident in India can purchase immovable property in India.
But the person concerned would have to obtain the approvals and fulfil the
requirements, if any, prescribed by other authorities, such as the concerned
State Government, etc However, a foreign national resident in fudia who is a
citizen of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal and
Bhutan would require prior approval of Reserve Bank. Such requests are
considered by Reserve Bank in consultation with the Government of India.

In this instant case, the respondent's father, John, acquired the property in
Delhi. while he was a Research Fellow researching in the Department of
History of Jadavpur University, For that period, he was a resident of India.

1.https://www.mea.gov.in/images/pdf/acquisition-and-transfer-of-
immovable-property-in-india.pdf

2.The law of interstate and testamentary Succession,Paras Dawan,third

edition, universal law publishing and co.,2006

1.2 Whether the nomination affects the succession?

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According to the law, a nominee of immovable property is merely a trustee

entitled to receive the money proceeds due to a deceased person on behalf
of their legal heirs. Only until the court determines· who is entitled to the
property under the succession laws will the nominee be in charge of it.

In this instant case, the respondent's father, John, made his wife,Susmita the
nominee of the Delhi property. After that, John died intestate. Hence the
wife, Susmita, will remain as a caretaker till the succession law takes effect.
In his case, Private International says that the Indian Succession Act, of 1925
will apply.

1.3 Application of private international law and consequent application of

indian succession act ,1925

This instant case falls under the realms of private international law . The
indian private international is based on English private international law.
Cotinental Europe follows single system of law that is the law of nationality
of deceased .

Section 4 and Section 5 of part II of the indian succession act 1925 , will be
applicable in this case .

“ Section 4 Application of part – This part shall not apply if the

deceased was a hindu , Muhammadan ,Buddhist , Sikh or Jain .”

“ Section 5 Law regulating succession to a deceased

persons immovable and movable property , respectively –
1) Succession to the immovable property in india , of a person deceased shall
be regulated by the law of india , wherever such person may have had his
domicile at the time of his death.”
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In this case of R Viswanathan vs Syed Abdul Wajid , the supreme

court observed that the succession to immovable is governed by the lex situs
of the immovable property . Similarly in the case of Sankaran Govindan vs
Lakshmi Bharathi , the court held that succession to immovable in England is
governed by lex situs and therefore, English law of succession is applied. The
court also pointed out that whether a particular property is movable or
immovable , it is to be determined by the lex situs .

Section 32 , Devolution of such property – The property of an intestate

devolves upon the wife or husband or upon those who are of the kindred of
the deceased , in the order and according to the rules here in after contained
in this chapter .”

Applying the above provision of law , john died intestate and his property in
delhi devolves upon his wife or upon those who are kindred of the deceased.

Section 33 where intestate has left a widow and lineal descendants or

widow and kindred only ,or widow and no kindred – where the intestate has
left a widow , -

A)If he has also left any lineal decendants ,one third of his property shall
belong to his widow , and the remaining two thirds shall go to his lineal
descendants , according to the rules herein after contained;

B)Save as provided by section 33A if he has left no lineal descendants, but

has left persons who are of kindred to him , one half of his property shall
belong to his widow , and the other half shall go to those who are kindred to
him , in order and according to the rules herein after

C)If he has left none who are of kindred to him , the whole of his property
shall belong to his widow

Applying the above provision of law , section 33 clause (a) clearly says that if
the intestate has left a widow and lineal descendents, one third of his
property shall belong to his widow , and the remaining two thirds will go to
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his lineal descendants . In this instant case , the respondennts father john
died intestate , his widow Susmita will get one third of the share in delhi
property ,and john’s daughter Elisha will get two-thirds of delhi property.

1.4 Whether the property which Susmita got is her

separate property ?

It is humbly submitted, Susmita got one –third property via the indian
succession act of 1925,and since she is a hindu , after that, her property will
be governed by section 14 of the hindu succession Act 1956.

Section 14 – property of a female hindu to be her absolute property

1)Any Property possed by a Female hindu , whether acquired before or after

the commencement of this act ,shall be held by her as full owner thereof and
not as a limited owner.

Explanation : - In this sub –section , property includes both movable &

immovable acquired by a female hindu by inheritance or devise or at a
partition or in lieu arrears of maintenance or by her own skill or exertion or
by purchase or by prescription or in any other manner whatsoever and also
any such property held by her as stridhana immediately before the
commencement of this act .

Any property possessed by a hindu female , irrespective of how it was

acquired , becomes her absolute property after coming into force of the act
in the view of the operation of section 14(1). Applying the above precendent
in this case , even though the wife ,Susmita , got the property though the
operation of the indian succession act , it is considered an absolute property
through the operation of section 14 of the hindu succession act , 1956 . So it
is humbly submitted that the one third share in delhi property is a separate
and absolute property of Susmita.

3. AIR 1963 SC 1

4. AIR 1964 ker244

5. AIR 1974 SC 1964; Chettiar vs Chettiar , AIR 1964 Mad 398

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1.5 Whether children born from a divorced woman’s first

marriage can inherit property from the second husband of
the woman ?

If the parents are divorced , the children still have a legal right to their
property . The normal succession laws as per ones religion apply in such case.
so the child has a right has a right over the ancestral property and in the case
of self acquired property , if the father dies intestate , he has the first right
over it since he is a class I heir . Of course , if the property is self acquired ,
the father can give it to anyone he wants during his lifetime via a written ill.

In this instant case , susmita is a hindu female who died intestate in 2010.
Hence according to the hindu succession act of 1956, Section 15 which
provides for general rules of succession in the case of female hindus , will
come into operation .

Section 15- General rules of succession in the case of female

Hindus.―(1) The property of a female Hindu

dying intestate shall devolve according to the rules set out in sec on 16,―

(a) firstly, upon the sons and daughters (including the children of any pre-
deceased son or

daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-sec on (1),―

(a) any property inherited by a female Hindu from her father or mother shall
devolve, in the absence of any son or daughter of the deceased(including the
children of any pre-deceased son or daughter) not upon the other heirs
referred in sub-section (1) in the order specified therein, but upon the heirs
of the father; and (b) any property inherited by a female Hindu from her
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husband or from her father-in-law shall devolve, in the absence of any son or
daughter of the deceased (including the children of any pre-deceased son or
daughter) not upon the other heirs referred to in sub-section (1) in the order
specified therein, but upon the heirs of the husband.

Section 16- Order of succession and manner of distribution among

heirs of a female Hindu ―

The order of succession among the heirs referred to in section 15 shall be,
and the distribution of the intestate’s property among those heirs shall take
place according to the following rules, namely:―

Rule 1.―Among the heirs specified in sub-section (1) of section 15, those in
one entry shall be preferred to those in any succeeding entry, and those
included in the same entry shall take simultaneously.

Rule 2.―If any son or daughter of the intestate had pre-deceased the
intestate leaving his or her own children alive at the time of the intestate’s
death, the children of such son or daughter shall take between them the
share which such son or daughter would have taken if living at the intestate’s
death.

Rule 3.―The devolu on of the property of the intestate on the heirs referred
to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section
15 shall be in the same order and according to the same rules as would have
applied if the property had been the father’s or the mother’s or the
husband’s as the case may be, and such person had died intestate in respect
thereof immediately after the intestate’s.

6.Chaudhary Vs Ajudhia, AIR 2003 NOC 126 (HP)

7. The law of intestate and Testamentary Succession, Paras Diwan ,2006

8. THE HINDU SUCCESSION ACT ,1956

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PRAYER FOR RELIEF

Wherefore, in the light of the facts stated , issues raised, arguments

advanced, reasons given and authorities cited, counsel on behalf of the
petitioner humbly pray before this hon’ble court to kindly adjudge and
declare that:

As per section 15 of the Hindu Succession Act 1956,

declare Pradeep Nath and Udit Nath as lawful heirs to the
property left by Susmita Nath in New Town, Kolkata.

Thus, pass order that it deems fit in the interest of justice , equity and
conscience and for this, the petitioner as in duty bound, shall humbly
pray.

RESPECTFULLY SUBMITTED

COUNSEL FOR PETITIONER