DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH

MEMORIAL ON THE BEHALF OF PETITIONER

PROPERTY LAW
MOOT MEMORANDIUM

DEPARTMENT OF LAWS,
PANJAB UNIVERSITY, CHANDIGARH

SUBMITTED TO: SUBMITTED BY:

DR. SUREKHA TANEJA ANUKRITI BISHT
DEPARTMENT OF LAWS LLB 2ndYear (4th Sem)
PANJAB UNIVERSITY Roll No. 35/22
CHANDIGARH Section F

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DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH
MEMORIAL ON THE BEHALF OF PETITIONER

BEFORE THE HON’BLE HIGH COURT

SC NO. 35 OF 2013

RAM
(Petitioner)

V.

SOHAN
(Respondent)

MEMORIAL ON BEHALF OF THE PETITIONER

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 DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH
MEMORIAL ON THE BEHALF OF PETITIONER

TABLE OF CONTENTS

SUBJECTS PAGE NO.

1. Table Of Contents 3
2. List Of Abbreviations 4
3. Index Of Authorities 5
4. Statement Of Jurisdiction 6
5. Statement Of Facts 7
6. Issues Raised 8
7. Summary Of Arguments 9
8. Argument Advanced 10-11
9. Prayer 12

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DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH
MEMORIAL ON THE BEHALF OF PETITIONER

LIST OF ABBREVIATION

Art. Article

Const. Constitution

COI Constitution Of India

Hon’ble Honorable

SCC Supreme Court Cases

V. versus

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 DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH
MEMORIAL ON THE BEHALF OF PETITIONER

INDEX OF AUTHORITIES

PRECEDENTS –

1. Lacchhman Singh v. Ranjit Singh (AIR 1965 SC 1328)

2. Lal Chand v. Radha Kishan (AIR 1977 SC 1856)

BOOKS –

1. Bare act of Transfer of Property Act

WEBSITES –

1. Manupatrafast.com
2. Main.sci.gov.in

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 DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH
MEMORIAL ON THE BEHALF OF PETITIONER

STATEMENT OF JURISDICTION

1. The counsel to petitioner has approached the Hon’ble Court under Article 226
of the Indian Constitution.
2. That this Hon’ble Court has the territorial jurisdiction to entertain and try the
present petition as at the time of filing the present petition the petitioner is
residing within the jurisdiction of the Hon’ble Court.

Art. 226. Power of High Courts to issue certain writs1

(1) Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to
any person or authority, including in appropriate cases, any Government, within
those territories directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for
the enforcement of any of the rights conferred by Part III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of
action, wholly or in part, arises for the exercise of such power, notwithstanding
that the seat of such Government or authority or the residence of such person is not
within those territories
(3) Where any party against whom an interim order, whether by way of injunction
or stay or in any other manner, is made on, or in any proceedings relating to, a
petition under clause (1), without
(a) furnishing to such party copies of such petition and all documents in support of
the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the
High Court for the vacation of such order and furnishes a copy of such application
to the party in whose favour such order has been made or the counsel of such
party, the High Court shall dispose of the application within a period of two weeks
from the date on which it is received or from the date on which the copy of such
application is so furnished, whichever is later, or where the High Court is closed
on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case may be, the expiry
of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation
of the power conferred on the Supreme Court by clause (2) of Article 32.
1
Constitution of India

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 DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH
MEMORIAL ON THE BEHALF OF PETITIONER

STATEMENT OF FACTS

1. That the plaintiff, Ram, instituted a suit to enforce a mortgage bond executed
by the defendant, Mohan, in favor of the plaintiff for a sum of Rs. 13 lakhs.
2. The mortgage bond document was registered on 14/08/2013.
3. Initially, an amount of Rs. 4,00,000 was paid by the plaintiff to the defendant
on 14/08/2013. The remaining balance was paid on 19/09/2013.
4. On 17/08/2013, Mohan sold some of the properties that had been mortgaged to
Ram, to another party named Sohan. Mohan received consideration for this
sale.
5. The sale deed between Mohan and Sohan was executed on 14/08/2013 but was
presented for registration on 19/08/2013. It was later registered in the month of
October.
6. That Sohan contends that although the sale deed was executed on 14/08/2013,
the mortgage was not effectively completed until the full consideration money
was paid by Ram to Mohan. Sohan argues that since the entire consideration
money was not paid by Ram until the execution of the sale deed, the sale deed
should take priority over the mortgage bond upon which Ram based his claim.
7. The subordinate judge ruled in favor of the plaintiff, Ram.
8. That Sohan, dissatisfied with the subordinate judge's decision, preferred an
appeal against the order.

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 DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH
MEMORIAL ON THE BEHALF OF PETITIONER

ISSUE RAISED

1. WHETHER THE TIMING OF THE PAYMENT OF THE

CONSIDERATION MONEY BY THE PLAINTIFF TO THE
MORTGAGOR (MOHAN) HAS ANY BEARING ON THE
RESPECTIVE RIGHTS OF THE PARTIES INVOLVED?

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 DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH
MEMORIAL ON THE BEHALF OF PETITIONER

SUMMARY OF ARGUMENTS

1. WHETHER THE TIMING OF THE PAYMENT OF THE

CONSIDERATION MONEY BY THE PLAINTIFF TO THE
MORTGAGOR (MOHAN) HAS ANY BEARING ON THE
RESPECTIVE RIGHTS OF THE PARTIES INVOLVED?

It is humbly contented to this Hon’ble court that the execution and registration of
the mortgage bond on 14/08/2013 signify Mohan's intent to secure his debt to
Ram, establishing a legally binding contract between the parties. This contractual
obligation was established before Sohan's involvement, emphasizing Ram's
priority. The principle of “First in time, First in right” is a fundamental principle
in Property Law recognized by the Supreme Court of India favoring the
mortgagee’s right when established before subsequent interests. The doctrine of
equitable mortgage applies, recognizing that the creation of a mortgage is
solidified once the intention is evident, and the document is executed and
registered. The partial payment made on the same day as the mortgage
registration further strengthens this argument. The decision of the subordinate
judge, who ruled in favor of Ram, adds weight to the petitioner's argument.
Therefore, based on the doctrine of equitable mortgage, the principle of priority,
and legal precedents, it is concluded that Ram's claim to enforce the mortgage
bond against Sohan's subsequent purchase is legally sound and should be upheld.

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 DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH
MEMORIAL ON THE BEHALF OF PETITIONER

ARGUMENTS ADVANCED

1. WHETHER THE TIMING OF THE PAYMENT OF THE

CONSIDERATION MONEY BY THE PLAINTIFF TO THE
MORTGAGOR (MOHAN) HAS ANY BEARING ON THE
RESPECTIVE RIGHTS OF THE PARTIES INVOLVED?

 The petitioner contends that the mortgage bond was executed on 14/08/2013
regardless of the timing of full payment. The document signs Mohan’s
intention to secure his debt to Ram against the mortgaged properties.
 That the mortgage bond was not only executed but also registered on the
same day, 14/08/2013. Once the mortgage is registered, it becomes effective
and binds the parties involved. Registration provides legal validity to the
mortgage and puts third parties, like Sohan, on notice of Ram's interest in
the property.
 That after the execution of the mortgage bond by Mohan in favor of Ram, a
legally binding contract was established between the two parties. This
contract stipulated the terms and conditions of the mortgage, including the
obligation of Mohan to provide the specified property as security for the
loan, which was established before Sohan’s involvement.
 While the sale deed may have been executed on 14/08/2013, its registration
occurred later, in October.
 That the mortgage interest of Ram takes priority over Sohan’s purchase
because it was established and registered before Sohan acquired the
property. The principle of “first in time, first in right” is to be applied. The
doctrine of Priority is provided under Section 48 of the Transfer of property
Act, 1882.
 The Sec 48. Priority of rights created by transfer.—
“Where a person purports to create by transfer at different times rights in or
over the same immoveable property, and such rights cannot all exist or be
exercised to their full extent together, each later created right shall, in the
absence of a special contract or reservation binding the earlier transferees,
be subject to the rights previously created.”
 The doctrine of priority is based on the principle of the legal maxim 'Qui
prior est tempore, portior est jure,' which means 'he who is prior in time is
better in law.’

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 DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH
MEMORIAL ON THE BEHALF OF PETITIONER
 In case, Lacchhman Singh v. Ranjit Singh 2, the case involved a dispute over
the priority of mortgagee’s right versus the rights of a subsequent purchaser
of the mortgaged property. The court emphasized that the timing of payment
of considered money in a mortgage transaction is crucial in determining the
priority of interests. If the mortgage money is paid before the creation of any
subsequent interest in the property, the mortgagee's rights generally take
priority.
 In case, Lal Chand v. Radha Kishan 3, the Supreme Court examined the
rights of a third-party purchaser in relation to a prior mortgage over the same
property. The court emphasized that the principle of "first in time, first in
right" is a fundamental principle in property law. The mortgagee's rights
under the prior mortgage were superior to the rights of the subsequent
purchaser. The subsequent purchaser was bound by the mortgage over the
property, as the mortgage was created prior to the sale.
 That it is also essential to consider the intent of the parties involved.
Mohan's execution of the mortgage bond indicates his intention to secure the
debt owed to Ram. Any subsequent sale of the mortgaged property does not
negate this intent.
 Even though the full consideration amount was not paid until after the sale
deed was executed, partial payment was made on the same day as the
mortgage registration. This partial payment further solidifies the creation of
the mortgage, the doctrine of equitable mortgage applies. This doctrine
recognizes that a mortgage is created once the intention to create a mortgage
is evident, and the document is executed and registered. The doctrine is
recognized under Section 58(f).
 The decision of the subordinate judge, who ruled in favor of Ram, should be
given weight, as they likely considered the relevant legal principles and
evidence presented.
 It is humbly contended that the legal principles such as priority, equitable
mortgage, and the timing of registration and partial payment supports Ram's
claim to enforce the mortgage bond against Sohan's subsequent purchase.

2
AIR 1965 SC 1328
3
AIR 1977 SC 1856

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 DEPARTMENT OF LAWS, PANJAN UNIVERSITY, CHANDIGARH
MEMORIAL ON THE BEHALF OF PETITIONER

PRAYER

In the light of the facts of the case, arguments advanced and the authorities cited, it
is most humbly prayed that this Hon’ble High Court may be pleased,

 That the mortgage interest of the plaintiff, Ram, shall take precedence over
any rights claimed by the defendant, Sohan, in relation to the property
subject to the mortgage.
OR
 Pass any order or directions that the Hon’ble Court deems fit in the light of
interest of Justice, Equity and Good Conscience.

Place:
S/d____________

Date: 16th April 2024 Counsel for Petitioner

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