Hon’ble Ram Surat Ram (Maurya),J.-
1.The writ petition has been filed against the orders of Consolidation Officer dated 01.04.2013,
Settlement Officer Consolation dated 14.03.2014 and Deputy Director of Consolidation dated
09.06.2014, passed in title proceeding under U.P. Consolidation of Holdings Act, 1953
(hereinafter referred to as the Act) and for direction to the consolidation authorities to effect the
partition of the share of the petitioner in the land in dispute as well as declaring the sale deed
dated 14.11.2005, executed by Uttam Singh (respondent-4) in favour of Veer Singh (respondent7), as void.
2. The dispute relates to basic consolidation year khatas 51, 100, 132, 175 and 300 of village
Tarauli and khata 192 of village Nawabpura, pargana Hasanpur, district Amroha. These khatas
consisted plots 2 (area 0.413 hectare), 24 (area 0.312 hectare), 73 (area 0.304 hectare), 77 (area
0.372 hectare), 82 (area 0.304 hectare), 130 (area 0.146 hectare), 168 (area 1.181 hectare), 212
(area 0.125 hectare), 217(area0.032hectare), 229(area0.024hectare), 319(area1.206hectare),
334(area 0.263 hectare), 421 (area 1.157 hectare) and 425 (area 1.154 hectare) (total 14 plots
area 6.993 hectare). In basic consolidation records, name of Veer Singh (respondent-7) was
recorded over the land in dispute, along with other co-sharers. The petitioner did not dispute
shares of other co-sharers, during consolidation operation.
3. Archna (the petitioner) filed an objection under Section 9 (2) of the Act, on 08.12.2008, for
deleting the name of Veer Singh from the land in dispute and recording her name along with
Uttam Singh, Bhanu Pratap Singh and Shashi Bhushan Singh (respondents-4 to 6), claiming
herself to be a co-parcener of 1/4 share in the land in dispute. The petitioner stated that the land
in dispute was ancestral property, coming from the time of her grand father, Hardeo Singh. After
the death ofHardeo Singh, it was inherited by his sons, Khajan Singh and Uttam Singh and their
sons, whoformed Joint Hindu Family governed by Mitakshara Hindu Law, of which Uttam
Singh was ‘Karta’, who acted as such up to 1989. Hindu Succession Act, 1956 was amended by
Hindu Succession (Amendment) Act, 2005, w.e.f. 20.12.2004. By virtue of Section 6 of Hindu
Succession Act, 1956 (as amended), the petitioner has become co-parcener along with her father
and brothers (respondents-4 to 6). Under the law, Joint Hindu Family Property is a trust for the
benefits of the members, living and to be born. However, Khajan Singh and Uttam Singh
executed sale deeds dated 14.11.2005 in favour of Veer Singh and on its basis name of Veer
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Singh was mutated in the revenue record by order dated 19.12.2005. Uttam Singh had no right to
execute the sale deed dated 14.11.2005 and it is void. Name of Veer Singh was recorded over
the land in dispute on the basis of a void sale deed as such it was liable to be deleted. The case
was contested by Veer Singh, who has stated that Khajan Singh and Uttam Singh were
“bhumidhar with transferable right” of land indispute, who executed sale deeds dated 14.11.2005
in favour of Veer Singh and others and on its basis names of Veer Singh and others were
mutated in the revenue record by order dated 19.12.2005. The land in dispute was agricultural
land and the provisions of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950
(hereinafter referred to as U.P. Act No. 1 of 1951) are applicable over it. The provisions of
Hindu Succession Act, 1956 are not applicable to it. During life time of Uttam Singh, the
petitioner has no right in the land in dispute and her objection was not maintainable.
4. The Consolidation Officer heard the preliminary objection, raised by respondent-7, regarding
maintainability of the objection of the petitioner, who after hearing the parties, by order
dated01.04.2013 held that the provisions of Civil Procedure Code, 1908 were not applicable to
the proceeding under the Act. Except the land for which declaration under Section 143 of U.P.
Act No. 1 of 1951 has been made, provisions of Hindu Succession Act, 1956 will not apply to the
agricultural land. Uttam Singh, father of the petitioner was still alive as such no question of
inheritance of his bhumidhari holding arose. Otherwise also, the petitioner, being a married
daughter was not an heir under Section 171 of U.P. Act No. 1 of 1951, as Uttam Singh was
having two sons. The objection of the petitioner was not maintainable. On these findings,
objection of the petitioner was dismissed and land in dispute was divided amongst the recorded
tenure holders. The petitioner filed an appeal (registered as Appeal No. 20/312) from the
aforesaid order. Settlement Officer Consolidation, by order dated 14.03.2014 affirmed the
findings of Consolidation Officer and dismissed the appeal. The petitioner filed a revision
(registered as Revision No. 544) against the aforesaid orders. Deputy Director of Consolidation,
by order dated 09.06.2014 dismissed the revision. Hence this writ petition has been filed.
5. The counsel for the petitioner submitted that the land in dispute was ancestral property, coming
from the time of her grand fatherHardeo Singh. After death of Hardeo Singh, it was inherited by
his sons Khajan Singh and Uttam Singh, who along with their sons, formed a Joint Hindu Family
governed by Mitakshara Hindu Law. Uttam Singh acted as ‘Karta’ of Joint Hindu Family up to
1989. Hindu Succession Act, 1956 was amended by Hindu Succession (Amendment) Act, 2005,
w.e.f. 20.12.2004. By virtue of Section 6 of Hindu Succession Act, 1956 (as amended), the
petitioner has become a co-parcener along with her father and brothers (respondents-4 to 6),
before execution of the sale deed dated 14.11.2005. By Amending Act, 2005, Section 4 (2) was
deleted and Section 6 (1)
(c) created same liability on the daughter as of the son w.e.f. 20.12.2004, as such, the
provisions of Hindu Succession Act, 1956 will apply to agricultural land also. “Succession” is a
subject falling in Entry-5 of List-III-Concurrent List of Seventh Schedule of the Constitution.
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Parliament as well as State Legislature both derive their power to make law relating to
“succession” from Entry -5 ofList-III-Concurrent List of Seventh Schedule of the Constitution.
Parliament has power to make law under Article 246 (2) in respect of subjects mentioned in
List-III-Concurrent List. In case of inconsistency between law made by State Legislature i.e.
Section 171 of U.P. Act No. 1 of 1951 and law made by Parliament i.e. Hindu Succession Act,
1956 (as amended), the provisions of Hindu Succession Act, 1956 (as amended) will prevail
under Article 254. Union of India participated in World Conference on Human Rights in
Vienna, on 25.06.1993, and made a declaration to eradicate all form of discrimination against
women up to the year 2000. In pursuance of above declaration, Law Commission of India
made a detailed survey for awarding property right to women and reform under Hindu Law.
During survey, it was noticed that 70% of total population of women in the country were
actively involved in agricultural work, as against it, involvement of men was found 40% of
total population. On the basis of aforesaid survey, Law Commission recommended to delete
Section 4 (2) of Hindu Succession Act, 1956, so that the provisions of Hindu Succession Act,
1956 will apply to agricultural land also as actual contribution of the women in cultivation of
agricultural land was found more than the men, as such it was thought proper to give equal
right of inheritance to women in agricultural land also. In any case, Hindu Succession
(Amendment) Act, 2005 was enacted to fulfill the declaration made before United Nations
Organization as well as Article 51 (c) as such it will have overriding effect under Article 253 of
the Constitution, which enables the Parliament to make law in respect to subjects of List-IIState List. Section 171 of U.P. Act No. 1 of 1951 makes a gender discrimination between
descendants of a tenure holder, in respect of inheritance and is void under Article 13 as it
abridges the right of equality of daughter in respect of inheritance in agricultural land and
contravenes Articles 14 and 15 of Constitution of India. Under the law, Joint Hindu Family
Property is a trust for the benefits of the members, living and to be born. Uttam Singh had no
right to execute the sale deed dated 14.11.2005 in favour of Veer Singh of Joint Hindu Family
property as such it is void. Name of Veer Singh was recorded over the land in dispute, on the
basis of void sale deed dated 14.11.2005, and was liable to be deleted. The petitioner was a coparcener of the disputed land as such her objection was maintainable under the Act. Orders of
consolidation authorities are illegal and liable to be set aside. He also relied upon various case
laws, which will be quoted at the relevant place.
6. I have considered the arguments of the counsel for the parties and examined the
record.Admittedly, the land in dispute was agricultural holdings of the category
“bhumidharwith transferable right”on20.12.2004i.e.date of enforcement of Hindu Succession
(Amendment)Act, 2005, under Section 6 whereof, the petitioner is deriving her right in it. The
consolidation authorities have held that provisions of Hindu Succession Act, 1956 (as amended
in 2005) are not applicable to the agricultural holdings as such the petitioner has no right over
the land in dispute during life time of her father and her objection was not maintainable. The
question arises as to whether U.P. Act No. 1 of 1951 or Hindu Succession Act, 1956 (as
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amended in 2005) is to be applied for deciding right of the petitioner? In the light of the
arguments of the parties, following questions arise for determination:-
(i)Authority of State Legislature and the Parliament to make law in respect of rights in or over
land and land tenure.
(ii)Is there overlapping between subjects mentioned in Entry-18 of List-II-State List and Entry5 of List-III-Concurrent List ? In case of overlapping, which law will prevail?
(iii) Whether Hindu Succession (Amendment) Act, 2005 was enacted under Article 253 of the
Constitution and has an overriding effect?
Point-I-Authority of State Legislature and the Parliament to make law in respect of right in or
over the land and land tenure.
1. Part XI, Chapter-I of the Constitution deals with legislative relations — Distribution of
Legislative Powers. By Article 245 the territorial operation of legislative power of the Parliament
and the State Legislatures is delimited, and Article 246 distributes legislative power subject-wise
between the Parliament and the State Legislatures. Articles 247, 249, 250, 252 and 253 enact
some of the exceptions to the rule contained in Article 246. (Refer Article 246, 254 of the
Constitution of India)
9. Before coming into force of Constitution of India, field of legislation of Federal Government
and State Government were governed by the provisions of Government of India Act, 1935.
Seventh Schedule, List-II-Provincial Legislative List contained subjects for Provincial Legislature
and List-III-Concurrent Legislative List contained subjects for both Federal and Provincial
Legislature. Relevant entries are quoted below:- Seventh Schedule- List II — Provincial
Legislative List
21. Land, that is to say, rights in or over land, land tenures, including the relation of landlord
and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land;
land improvement and agricultural loans; colonization; Court of Wards; encumbered and
attached estates; treasure trove.
Seventh Schedule – List III — Concurrent Legislative List
7. Wills, intestacy and succession, save as regards agricultural land.
10. These entries have been slightly modified in the Constitution. Relevant entries of
Constitution of India are quoted below:-
Seventh Schedule -List II — State List
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18. Land, that is to say, rights in or over land, land tenures including the relation of landlord
and tenant, and the collection of rents; transfer and alienation of agricultural land; land
improvement and agricultural loans; colonization.
Seventh Schedule- List III — Concurrent List
5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint
family and partition; all matters in respect of which parties in judicial proceedings were
immediately before the commencement of this Constitution subject to their personal law.
11. Entry-7 of List III –Concurrent Legislative List of Government of India Act, 1935 used
phrase “save as regards agricultural land”, from which, it is clear that rights in or over land, and
land tenures was within exclusive domain of State Legislature under Government of India Act,
1935. In Constitution, Entry-5 of List III –Concurrent List, uses phrase “all matters in respect
of whichparties in judicial proceedings were immediately before the commencement of this
Constitution subject to their personal law”. From which, it has been again clarified that rights in
or over land, and land tenures was within exclusive domain of State Legislature under Entry-18
of List-II-State List. Thus State Legislature alone has jurisdiction to make law in respect of
rights in or over land, and land tenures, under which U.P. Act No. 1 of 1951 was enacted. The
words “right in” is a comprehensive phrase and includes right of inheritance and devolution of
interest.
12. Supreme Court in State of W.B. v. Kesoram Industries Ltd., AIR 2005 SC 1646 has held
that the legislative field between Parliament and the legislature of any State is divided by
Article 246 of the Constitution. Parliament has exclusive power to make laws with respect to
any of the matters enumerated in List I in the Seventh Schedule, called the “Union List”.
Subject to the said power of Parliament, the legislature of any State has power to make laws
with respect to any of the matters enumerated in List III, called the “Concurrent List”. Subject
to the abovesaid two, the legislature of any State has exclusive power to make laws with
respect to any of the matters enumerated in List II, called the “State List”. Under Article 248
the exclusive power of Parliament to make laws extends to any matter not enumerated in the
Concurrent List or State List. This is, what is called the residuary power, vested in Parliament.
The principles summarised, as are relevant for this case, are quoted below:-
(1)The various entries in the three lists are not “powers” of legislation but “fields” of
legislation. The Constitution effects a complete separation of the taxing power of the Union
and of the States under Article246.
(2) In spite of the fields of legislation having been demarcated, the question of repugnancy
between law made by Parliament and a law made by the State Legislature may arise only in
cases when both the legislation occupy the same field with respect to one of the matters
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enumerated in the Concurrent List and a direct conflict is seen. If there is a repugnancy due to
overlapping found between List II on the one hand and List I and List III on the other, the State
law will be ultra vires and shall have to give way to the Union Law.
(3) The entries in the lists being merely topics or fields of legislation, they must receive a
liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense.
The words and expressions employed in drafting the entries must be given the widest-possible
interpretation. The allocation of the subjects to the lists is not by way of scientific or logical
definition but by way of a mere simplex enumeratio of broad categories. A power to legislate
as to the principal matter specifically mentioned in the entry shall also include within its
expanse the legislation touching incidental and ancillary matters.
(4) Where the legislative competence of the legislature of any State is questioned on the
ground that it encroaches upon the legislative competence of Parliament to enact a law, the
question one has to ask is whether the legislation relates to any of the entries in List I or III. If it
does, no further question need be asked and Parliament’s legislative competence must be
upheld. Where there are three lists containing a large number of entries, there is bound to be
some overlapping among them. In such a situation the doctrine of pith and substance has to be
applied to determine as to which entry does a given piece of legislation relate. Once it is so
determined, any incidental trenching on the field reserved to the other legislature is of no
consequence. The court has to look at the substance of the matter. The doctrine of pith and
substance is sometimes expressed in terms of ascertaining the true character of legislation. The
name given by the legislature to the legislation is immaterial. Regard must be had to the
enactment as a whole, to its main objects and to the scope and effect of its provisions.
Incidental and superficial encroachments are to be disregarded.
(5) The doctrine of occupied field applies only when there is a clash between the Union and the
State Lists within an area common to both. There the doctrine of pith and substance is to be
applied and if the impugned legislation substantially falls within the power expressly conferred
upon the legislature which enacted it, an incidental encroaching in the field assigned to another
legislature is to be ignored. While reading the three lists, List I has priority over Lists III and II
and List III has priority over List II. However, still, the predominance of the Union List would
not prevent the State Legislature from dealing with any matter within List II though it may
incidentally affect any item in List I.
13. In view of the aforesaid principles the words “right in or over the land and land tenure”
have to be given widest-possible interpretation and include “right of inheritance” also.
Arguments of the counsel for the petitioner that the word “succession”, under Entry-5 of List
III − Concurrent List covers subject inheritance of “rights in or over land and land tenure” also,
is not liable to be accepted. Entry-5 of List III — Concurrent List, uses phrase “all matters in
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respect of which parties in judicial proceedings were immediately before the commencement of
this Constitution subject to their personal law”. Thus applicability of personal law of succession
is limited in respect of which judicial proceeding were pending immediately before the
commencement of this Constitution. There is nothing on record to show that right of the parties
over the land in dispute was subject to personal law or any judicial proceeding was pending on
26.01.1950, in respect of it. It covers the matter of Section 14 of Hindu Succession Act, 1956
as held by Punjab and Haryana High Court in Amar Singh Vs. Baldev Singh, AIR, 1960 P&H
686 (F.B.) that Section 14 of Hindu Succession Act, 1956, which enlarged the widow’s interest
in agricultural land is within the domain of Entry-5 of List III – Concurrent List. Contrary view
taken by Orissa High Court in Laxmi Devi Vs. Surendra KumarPanda, AIR, 1957 Orissa 1
(D.B.) and Karnataka High Court in Basavant Gondi Vs. Smt. Channabasawwa, AIR, 1971
Kant. 151 (D.B.) is not liable to be accepted.
14. The object of enactment of U.P. Act No. 1 of 1951 as declared by its long title is to provide
for abolition of Zamindari system involving intermediaries between the tiller of the soil and the
State, foracquisitionoftheirrights,titleandinterestandtoreformthelawrelatingtolandtenure
consequent upon such abolition and acquisition. In order to secure the purpose of land reform,
various provisions have been made to ensure that soil must go to the actual tiller. Section 9 and
Section 123 confer absolute right to the actual occupier of the land of abadi etc. while tenurial
right of(i)bhumidhar with transferable right,(ii)bhumidhar with non-transferable right(iii)asami
and (iv) government lessee have been conferred under other provisions. The object that soil
must go to the actual tiller has been applied in cases of inheritance and devolution of interest
also. Under some contingency the widow and daughter are given the right of inheritance but on
their remarriage/ marriage, they are divested under Section 172 of the Act. From the time
immemorial, society in our country is patriarchal society, where daughter/ woman has to go to
the house of her husband on marriage, where she forms a new family. Law makers were
conscious with the situation of marriage of daughter/woman and patriarchal system of the
society. It was kept in mind while enacting Section 171 and Section 172 of U.P. Act No. 1 of
1951 that after marriage it would not be practicable for a woman to cultivate land at two places
as such after marriage/remarriage, women are divested. U.P. Act No. 1 of 1951 is preserved
under Ninth Schedule of the Constitution at Serial No. 11 and is protected under Article 31-A
of the Constitution as such its validity cannot be challenged on the ground of Article 13 of the
Constitution. Constitutional validity of this Act has been upheld time to time by Constitutional
Benches of Supreme Court, in State of U.P. Vs. Raja Brahma Shah, AIR 1967 SC 661 and S.P.
Watel Vs. State of U.P., AIR 1973 SC1293.
15. A Full Bench of this Court in Ram Awalamb Vs. Jata Shankar, AIR 1969 All 526 (FB)
held that [vide para 29] In our opinion the contention of the learned counsel cannot be accepted
for the following reasons:-
(a) The scheme of the Act seems to be to make one law for persons of all castes and creeds and
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for that reason there is no mention of Hindu joint family anywhere in the Act except in Chapter
III (Assessment and Compensation) where for purposes of calculation of compensation only
father and his male lineal descendants are to be treated as one unit while the other members of
the family are to be treated as separate units.
(b) The notions of Hindu law, or for that matter any personal law, could not be applied to
bhumidhari rights,because:
(i) these are new rights conferred under the Act,and
(ii) the special provisions of the Act relation to status of a bhumidhar, transfer by him of his
interests in bhumidhar land, and devolution of his interests after; his death are governed by the
provisions of this specialAct.
( c) It can be safely inferred from Section 175 of the Act that where there are more than one
bhumidhar in any holding all the co-bhumidhars shall be tenants in common and not joint
tenants. That provision of law is applicable to the members of a joint Hindu family having
interest in bhumidhari rights. The interest of each person in bhumidhari land passes according
to the order of succession given in Sections 171 to 174 of the Act and not by survivorship. The
principle of survivorship amongst co-widows and co-bhumidhars can apply only when there is
failure of heirs as mentioned in Sections 171 to 174, (see Dulli V.s Imarti Devi, 196G All LJ
(Rev).29).
(d) The notions of Hindu law will not apply to bhumidhari land because both the main
incidents of a joint family property, to wit(i) devolution by survivorship, and (ii) male issue of
a coparcener acquiring an interest by birth (vide Mulla’s Hindu Law 13th Ed. Para 221) are
negatived by the provisions of theAct.
[vide Para -44] Our conclusions can, therefore, be briefly summarized as follows :-
(1) Where members of a joint Hindu Family hold bhumidhari rights in any holding, they hold
the same as tenants in common and not as joint tenants. The notions of Hindu Law cannot be
invoked to determine that status.
(2) Where in certain class of tenancies, such as permanent tenure holders, the interest of a
tenant was both heritable and transferable in a limited sense and such a tenancy could, prior to
the enforcement of the Act, be described as joint family property or coparcenary property, the
position changed after Act I of 1951 came into force. Thereafter the interest of each bhumidhar
being heritable only according to the order of succession provided in the Act and transferable
without any restriction other than mentioned in the Act itself, must be deemed to be a separate
unit.
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(3) Each member of a joint Hindu family must be considered to be a separate unit for the
exercise of the right of transfer and also for the purposes of devolution of bhumidhar interest of
the deceased member.
(4) The right of transfer of each member of the joint Hindu family of his interest in bhumidhari
land is controlled only by Section 152 of the Act and by no other restriction. The provisions of
Hindu law relating to restriction on transfer of coparcenary land, e.g., existence of legal
necessity, do not apply.
In Parshanti v. Dy. Director of Consolidation, AIR 1999 SC 1567, it has been held that a Hindu
widow, who after the death of her husband remarries another person, cannot lay a claim to the
property of her son through the first marriage in agricultural land in the general law under
theHindu Succession Act, 1956 as the provisions of Section 171(b) of the U.P. Act No. 1 of
1951,being a special Act, are applicable.
Point-II-Is there overlapping between subjects mentioned in Entry-18 of List-II-State List
andEntry-5 of List-III-Concurrent List ? In case of overlapping, which law will prevail?
16. As held above, subject “rights in or over land, and land tenures” is mentioned in Entry-18
of List-II-State List which includes right of inheritance and there is no overlapping of the
subjects between Entry-18 of List-II-State List and Entry-5 of List-III-Concurrent List. Under
Article 246 (3) of the Constitution, State Legislature alone has jurisdiction to make law in
respect of rights in or over land, and land tenures including right of inheritance. Subject
“succession” mentioned in Entry-5 of List III-Concurrent List has a limited application as
provided under Section 14 of Hindu SuccessionAct,1956. Even if it is treated that subject
“succession” is falling under Entry-5of List-III-Concurrent List, assent of the President of India
has been obtained in respect of U.P. Act No. 1 of 1951 as such in case of repugnancy also, U.P.
Act No. 1 of 1951 will prevail over Hindu Succession Act, 1956 under Article 254 (2) of the
Constitution. Supreme Court in Rajiv Sarin v. State of Uttarakhand, AIR 2011 SC 3081 has
held that the assent of the President under Article 254(2) of the Constitution is not a matter of
idle formality. The President has, at least, to be apprised of the reason why his assent is sought
if, there is any special reason for doing so. If the assent is sought and given in general terms so
as to be effective for all purposes, different considerations may legitimately arise. But if, as in
the instant case, the assent of the President is sought to the law for a specific purpose, the
efficacy of the assent would be limited to that purpose and cannot be extended beyond it.”
Point-III-Whether Hindu Succession (Amendment) Act, 2005 was enacted in exercise of
powers under Article 253 of the Constitution and has an overriding effect?
17. The counsel for the petitioner argued that Union of India participated in World Conference
on Human Rights in Vienna, on 25.06.1993, and made a declaration to eradicate all form of
discrimination against women up to the year 2000. In pursuance of above declaration, Law
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Commission of India made a detailed survey for awarding property right to women and reform
under Hindu Law. During the survey, it was noticed that 70% of total population of women in
the country are actively doing agricultural work, as against it, involvement of men was found
40% of total population. On the basis of aforesaid survey, Law Commission recommended to
delete Section 4 (2) of Hindu Succession Act, 1956, so that the provisions of Hindu Succession
Act, 1956 will apply to agricultural land also as actual contribution of the women in cultivation
of agricultural land was found more than the men as such it was thought proper to give equal
right of inheritance to women for agricultural land also. In any case, Hindu Succession
(Amendment) Act, 2005 was enacted to fulfill the declaration made before the United Nations
Organization as well as Article 51 (c) as such it will have an overriding effect under Article 253
of theConstitution.
18. The effect of Article 253 is that if a treaty, agreement or convention with a foreign State
deals with a subject within the competence of the State Legislature, the Parliament alone has,
notwithstanding Article 246(3), the power to make laws to implement the treaty, agreement or
convention or any decision made at any international conference, association or other body. In
Terms, the Article deals with legislative power: thereby power is conferred upon the Parliament
Which it may not otherwise possess. (Refer Article 253 of the Constitution of India)
19. The question arises as to whether Hindu Succession (Amendment) Act, 2005 was enacted
in exercise of powers under Article 253? In order to appreciate aforesaid arguments, aims and
object as given by Parliament for enactment of Hindu Succession (Amendment) Act, 2005 is
quoted below:-
Hindu Succession (Amendment ) Act 2005 [ No. 39 of 2005] [September 5, 2005] An Act
further to amend the Hindu Succession Act, 1956 Be it enacted by Parliament in the Fifty-sixth
Year of the Republic of India as follows:-
Prefatory Note-Statement of Objects and Reasons.- The Hindu Succession Act, 1956 has
amended and codified the law relating to intestate succession among Hindus. The Act brought
about changes in the law of succession among Hindus and gave rights which were till then
unknown in relation to women’s property. However, it does not interfere with the special rights
of those who are members of Hindus Mitakshara coparcenary except to provide rules for
devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and
comprehensive system of inheritance and applied, inter alia to persons governed by
Aliyasantana and Nambudri laws. The Act applies to every person who is a Hindu by religion
in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the
Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion;
or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a
testamentary disposition, this Act does not apply and the interest of the deceased is governed
by the Indian Succession Act,1925.
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2. Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary
property and recognizes the rule of devolution by survivorship among the members of the
coparcenary. The retention of the Mitakshara coparcenary property without including the
females in it means that the females cannot inherit in the ancestral property as their male
counterparts do. The law by excluding the daughter from participating in the coparcenary
ownership not only contributes to her discrimination on the ground of gender but also has led to
oppression and negation of her fundamental right of equality guaranteed by the Constitution.
Having regard to the need to render social justice to women, the State of Andhra Pradesh,
Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal
right to daughters in Hindu Mitaksharacoparcenary property. The Kerala Legislature has
enacted the Kerala Joint Hindu Family System ( Abolition)Act
. 1975.
3. It is proposed to remove the discrimination as contained in Section 6 of the Hindu
Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary
property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in
respect of a dwelling house wholly occupied by a joint family until the male heirs choose to
divide their respective shares therein. It is also proposed to omit the said section so as to
remove the disability on female heirs contained inthat section.
4.The above proposals are based on the recommendations of the Law Commission of India as
contained in its 174th Report on “Property Rights of Women: Proposed Reform under the
Hindu Law”.
5.The Bill seeks to achieve the above objects.
20. Thus aim and object, as given by Parliament for enactment of Amending Act, 2005, was to
removethediscriminationascontainedinSection6oftheHinduSuccessionAct,1956bygiving equal
rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. The aim
and object as suggested by Law Commission in 174th Report for applying the Act to
agricultural land also has not been adopted by Parliament as such it is not possible to hold that
Amending Act, 2005 was enacted to apply Hindu Succession Act, 1956 over agricultural land
also or it was enacted in pursuance of declaration made before United Nations Organization as
well as Article 51 (c). Thus it is clear that Amending Act, 2005 intended to provide the right to
Hindu daughters equal with the son in Mitakshara coparcenary property. It does not intend to
provide such right to the daughters/women of other religion living in the country. There is
nothing in the Act 2005 to prove that it was enacted in pursuance of declaration made before
United Nations Organisation. As such Article 253 of the Constitution has noapplication.
21. Supreme Court in Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, AIR 1984
SC 667, held that there can be no question that nations must march with the international
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community and the municipal law must respect rules of international law even as nations
respect international opinion. The comity of nations requires that rules of international law may
be accommodated in the municipal law even without express legislative sanction provided they
do not run into conflict with Acts of Parliament. But when they do run into such conflict, the
sovereignty and the integrity of the Republic and the supremacy of the constituted legislatures
in making the laws may not be subjected to external rules except to the extent legitimately
accepted by the constituted legislatures themselves. The doctrine of incorporation also
recognises the position that the rules of international law are incorporated into national law and
considered to be part of the national law, unless they are in conflict with an Act of Parliament.
Comity of nations or no, municipal law must prevail in case of conflict. National courts cannot
say yes if Parliament has said no to a principle of international law. National courts will
endorse international law but not if it conflicts with national law. National Courts being organs
of the national State and not organs of international law must perforce apply national law if
international law conflicts with it. But the courts are under an obligation within legitimate
limits, to so interpret the municipal statute as to avoid confrontation with the comity of nations
or the well established principles of international law. But if conflict is inevitable, the latter
must yield.
22. The argument of the counsel for the petitioner that by deleting Section 4 (2) of Hindu
Succession Act, 1956, the provisions of this Act have become applicable to agricultural land
also. Hindu Succession Act, 1956 was enacted to amend and codify the law relating to intestate
succession among Hindus.( Refer Sections 4 and 6 of the Hindu Succession Act, 1956).Thus
combined reading of the preamble, Section 4 and Section 6 of the Hindu Succession Act, 1956
it is clear that the Act was applied on Joint Hindu Mitakshara property only and not on
agricultural land. As held above, agricultural land is in exclusive domain of State Legislature
and Parliament has no power to enact any law in this respect. Section 4 (2) was only by way of
clarification. On its basis, it cannot be said that after its deletion, Hindu Succession Act, 1956
suomotoappliestoagriculturalland.UnderSection6, (as amended) daughters are given right under
Hindu Mitakshara Coparcenary Property alone.
23. The counsel for the petitioner relied upon the judgment of Supreme Court in Bajaya Vs.
Gopikabai, AIR 1978, S.C. 793, in which relying upon Section 151 of M.P. Land Revenue
Code, 1954, it has been held that under this Section itself personal law has been applied in the
matter of devolution of interest of a deceased tenure holder. Dipo Vs. Wassan Singh, AIR 1983
SC 846, in which it has been held that at the time of inheritance of ancestral property, if a
person did not have a son, son’s son or son’s son’s son, it was his absolute property. Madhu
Kishwar Vs. State of Bihar, AIR 1996 SC 1864, custom amongst tribal in State of Bihar,
governing the land relating to succession was held to have no effect in view of Section 4 of
Hindu Succession Act, 1956. In this case, there was no issue relating to overriding effect of
Hindu Succession Act, 1956 on land law of the State or legislative competence for enactment
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of land law. As such the case, is distinguishable. Ms. Savita Samvedi Vs. Union of India,
(1996) 2 SCC 380, in which it has been held that married daughter can also be given
compassionate appointment. Vishakha Vs. State of Rajsthan, AIR 1997 SC 3011, wherein
validity of law relating to prevention of sexual harassment of women at working place has been
upheld and has been held that working women have fundamental right under Article 14, 15 and
21 of the Constitution. Sheela Devi Vs. Lal Chand, (2006) 8 SCC 581, in which devolution of
coparcenary property after coming into force of Hindu Succession Act, 1956 was dealt
with.GanduriKoteshwarammaChakiriYanadi, (2011) 9 SCC 788, in which preliminary decree
passed prior to Amending Act, 2005 in the suit for partition of coparcenary property has been
modified according to the Amended Act, 2005. These cases have noapplication.
24. The counsel for the petitioner also relied upon the judgments of Delhi High Court in Smt.
Mukesh and others Vs. Sri Bharat Singh, (2008) 149 DLT 114 and Karnataka High Court in
Pushpalatha Vs. S.V. Padma, AIR 2010 Kar 124, in which provision of Hindu Succession Act,
1956 (as amended in 2005) has been applied in agricultural land also. For the reasons given
above, I respectfully disagree with the view taken in the above cases. The counsel for the
petitioner submitted that due to Section 4 (2) of Hindu Succession Act, 1956, this Court in
JataShankar Vs. Ram Awalamb, AIR 1969, All 526 (F.B.), Uma Shankar Vs. D.D.C. And
others, AIR 1979, All 407 (D.B.), Writ Petition No. 4226 of 1967, Mohd. Sohrab Khan Vs.
D.D.C. And others decided on 02.12.1969 and Writ Petition No. 6177 of 2009, Ram Kumar
Vs. A.D.J. And others decided on 23.8.2012, it has been held that the provisions of Hindu
Succession Act, 1956 has no application on agricultural land. Now Section 4 (2) has been
deleted. As held above Section 4(2) of Hindu Succession Act, 1956 was nothing to do with the
applicability of the Act. As such the argument of the counsel for the petitioner will not be
improved.
25. In view of the aforesaid discussions, there is no merit in the writ petition and it is dismissed.
