Transfer of Property without free consent

Jai Narain Vyas University, Jodhpur
S.M.K Faculty of Law (Five Years’ Integrated Law Course)
Academic Year 2017-18
Moot Problem on “Transfer of Property without Free consent”.
Submitted To: Submitted By:
Ms. Akshaya Shukla Sandeep K Bohra
B.B.A LL.B. 10TH
Semester
Roll No.: 15
Date of Submission:
May 2018

In the District Court of Jodhpur, Rajasthan
Case No. XX/2018
In the Matter between:
B……………………………………………………………………….(Plaintiff)
Vs.
A…………………………………………………………………………(Defendant)
(In the Case relating to Specific Relief Act, 1963 and Transfer of Property Act,
1882)

Table of Contents
Statement of Jurisdiction.................................................................................................................4
Statement of Facts ...........................................................................................................................5
Issues Presented ..............................................................................................................................6
1. Whether the Suit brought by the Plaintiff against the Defendant is maintainable or not?6
2. Whether the Plaintiff has the right to Recover the Possession of his property under
Specific Relief Act, 1963 or not?................................................................................................6
3. Whether the Plaintiff can invoke the Interim Order under Section. 37 of Specific Relief
Act against the Defendant or not? ..............................................................................................6
Summary of Arguments..................................................................................................................7
Argument Advanced .......................................................................................................................9
1. Whether the Suit brought by the Plaintiff against the Defendant is maintainable or not?9
Specific Relief Act, 1963 or not?..............................................................................................10
3. Whether the Plaintiff can invoke the Interim Order under Section. 37 of Specific Relief
Act against the Defendant or not? ............................................................................................12
Prayer.............................................................................................................................................13

Statement of Jurisdiction
The Plaintiff humbly submits to the jurisdiction of the Hon’ble District Court of
Jodhpur Metro Complex, Rajasthan, under Section 6 of the Specific Relief Act,
1963. The memorandum for Plaintiff in the matter of B Vs. A set forth the Facts,
Contentions and Arguments present in the case.

Statement of Facts
A forced B to sell his land to him under threat to kill the son of B. B,
accordingly, sold his land to A. Subsequently A sued under Specific Relief Act,
1963 for getting the possession and enforcement of sale.

Issues Presented
1. Whether the Suit brought by the Plaintiff against the Defendant is
maintainable or not?
2. Whether the Plaintiff has the right to Recover the Possession of his
property under Specific Relief Act, 1963 or not?
3. Whether the Plaintiff can invoke the Interim Order under Section. 37 of
Specific Relief Act against the Defendant or not?

Summary of Arguments
1. Whether the Suit brought by the Plaintiff against the Defendant is maintainable or
not?
B has the actual possession of the land until he sold it to A under coercion. When a
person deprives another person of his actual possession is known as Dispossession. And
when one dispossesses another without his consent, then the situation attracts Section 6 of
the Specific Relief Act, 1963. Here, in the case, A coerced B to sell his land to A under the
threat to kill the Son of B. Hence, A dispossessed B from his land without his free consent.
This brings the Suit under the Scope of Section 6 of Specific Relief Act. And thus it is
maintainable.
Specific Relief Act, 1963 or not?
In Section 5, action for recovery of the possession of specific immovable property always based
on Title. Whereas, Section 6 dealt with action for recovery of the possession of specific
immovable property based on legal Possession which may exist with or without actual
possession and with or without a rightful origin. So, the rightful possession should be claim
within the prescribed time.
The basic objective of the Section 6 of the act is to discourage people like defendant from
taking the law into their own hands, however good their title is to prevent persons ousting

anyone from possession except by process of law. On the contrary, Agreement by Coercion
cannot be deemed a due process of law.
This section does not apply where the defendant has dispossessed another peacefully otherwise
not. However, the act of dispossession and not the continuance of possession, if without
consent, attract S.6 of the Specific Relief Act, 1963.
3. Whether the Plaintiff can invoke the Interim Order under Section. 37 of Specific
Relief Act against the Defendant or not?
The application of Plaintiff in Section 37 would be successful because it covers the following
cases:
1. That the property in dispute is wrongfully sold in execution of decree and in danger of
being wasted.
2. That the defendant dispossesses the plaintiff in relation to property in dispute.
The above factors are relevant in invoking for interim order for the sake of rights of plaintiff
vested in his property. And if such interim order is not granted, the plaintiff may suffer
hardships and the wrongdoer continue to enjoy the property till the decision of the
proceedings.

Argument Advanced
1. Whether the Suit brought by the Plaintiff against the Defendant is maintainable or
not?
Plaintiff i.e., B has the actual possession of the land until he sold it to A under coercion. When
a person deprives another person of his actual possession is known as Dispossession. And
when one dispossesses another without his consent, then the situation attracts Section 6 of the
Specific Relief Act, 1963.1
Here, in the case, A coerced B to sell his land to A under the threat
to kill the Son of B. Hence, A dispossessed B from his land without his free consent. This
brings the Suit under the Scope of Section 6 of Specific Relief Act. And thus it is maintainable.
Also, Section 6 of the act the plaintiff need not to prove a better title against the occupier and
so the occupier also not allowed to show his title by ownership, contract, prescription or
inheritance. So, mere existence of juridical possession by the plaintiff is enough to construct the
merit of the Case against the occupier.2
By analyzing aforementioned contentions, the maintainability of this case according to Section
6 of the Act should be considered as Valid and read accordingly.
1
Sona Mia Vs. Prokash Chandra (AIR 1940 Cal 464)
2
Page No. 836-Singh, Avatar, Contract and Specific Relief, 10th
Ed. 2013, Eastern Book Company.

Specific Relief Act, 1963 or not?
In Specific Relief Act, 1963, the recovery of possession of immovable property has been
mentioned under Section 5 and Section 6 of the Act. In Section 5, action for recovery of the
possession of specific immovable property always based on Title. Whereas, Section 6 dealt
with action for recovery of the possession of specific immovable property based on legal
Possession which may exist with or without actual possession and with or without a rightful
origin. So, the rightful possession should be claim within the prescribed time.
Section 6 of the Specific Relief Act, 1963 reads--
Suit by person dispossessed of immovable property.—
(1) If any person is dispossessed without his consent of immovable property otherwise than in
due course of law, he or any person claiming through him may, by suit, recover possession
thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought—
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section,
nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property
and to recover possession thereof.

Section 6 make clear that to succeed in the claim, Plaintiff has to prove following essentials---
a) That he was in juridical possession of the immovable property in dispute3
.
b) That he had been dispossessed without his consent and otherwise than in due course of
law4
.
c) That the dispossession took place within six months from the date of the suit5
Also, In Somnath Burman Vs. Dr. S.P. Raju and anr6
, Supreme Court stated that the Court
does not try the question of title, but will determine only two questions:
i) Whether the plaintiff was formerly in possession;
ii) Whether he was disposed in the above manner within six months immediately
preceding the date of institution of the suit.
The basic objective of the Section 6 of the act is to discourage people like defendant from
taking the law into their own hands, however good their title is7
to prevent persons ousting
anyone from possession except by process of law. On the contrary, Agreement by Coercion
cannot be deemed a due process of law.
This section does not apply where the defendant has dispossessed another peacefully otherwise
not.8
However, the act of dispossession and not the continuance of possession, if without
consent, attract S.6 of the Specific Relief Act, 1963.
3
B. Arvind Kumar v. Govt of India (2007)5 SCC 745.
4
Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and anr (AIR 2004 SC 175)
5
Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and ors. (AIR 1968 SC 1165)
6
[1970]2 SCR 869
7
Mc Batra Vs. Lakshmi Insurance co. AIR 1956 All 706.
8
Anant Bahadur singh Vs. Ashtabuj Bux singh AIR 1960 All 227.

And in Transfer of Property Act, 1882 the intention of the parties must be considered in “Real
Test”. Real Test is that the parties of the sale deed must intend to transfer the ownership and
possession of the property. There are two basic qualification of seller:
i. Personal or Proprietary Capacity over the property, and
ii. ii. Willingness to sell the property.9
Thus by discussing with aforementioned contentions and provisions, it is clear as crystal that by
the virtue of Specific Relief Act, 1963 the transfer was not a due process of law and only a
transaction of coercion and the sold property can be recoverable as it was transferred without
free consent. And as the plaintiff was the previous owner of the property, it is enough to prove
his claim possession over the property.
3. Whether the Plaintiff can invoke the Interim Order under Section. 37 of Specific
Relief Act against the Defendant or not?
The application of Plaintiff in Section 37 would be successful because it covers the following cases:
1. That the property in dispute is wrongfully sold in execution of decree and in danger of being
wasted.
2. That the defendant dispossesses the plaintiff in relation to property in dispute.10
The above factors are relevant in invoking for interim order for the sake of rights of plaintiff vested in
his property. And if such interim order is not granted, the plaintiff may suffer hardships and the
wrongdoer continue to enjoy the property till the decision of the proceedings.11
Hence, it is necessary for the Court to grant Interim Order as the remedy to the Plaintiff, so that he
cannot face adversities while the decree of the Court has not passed.
9
Page 319, Tripathi G.P., The Transfer of Property Act 18th
Edition, 2014, Central Law Publications.
10
Volition Investment Pvt. Ltd. Vs. Mrs. Madhuri Jitendra Mashroo AIR 2003 Bom360
11
Ramesh Devchand Pala Vs. Mahendra Kumar AIR 1998 Guj 120, 123.

Prayer
In light of the issues raised, arguments advanced and authorities cited, the counsel for the Plaintiff
humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:
1. That to pass such order for the recovery of possession of property in dispute.
2. That to pass an interim order granting possession to the plaintiff whiles the proceedings in
progress.
And pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good
conscience.
And for this act of kindness, the counsel for the appellant shall duty bound forever pray.
(Counsel on Behalf of Plaintiff)

Transfer of Property without free consent

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