BEFORE THE HON’BLE HIGH COURT OF ALLAHABAD

CIVIL WRIT PETITION NO. ___/2022

UNDER ARTICLE 226 R/W 227 OF THE COSTITUTION OF INDIA, 1950

-- IN THE MATTER OF –

ANJALI…………………………….………………………………..…………..PETITIONER
V.

STATE OF U.P. THROUGH CHIEF SECRETARY…………...…….….....RESPONDENT 1

DEPUTY DIRECTOR OF CONSOLIDATION……………………………RESPONDENT 2
SETTLEMENT OFFICER………...………………………………………...RESPONDENT 3
CONSOLIDATION OFFICER……………………………………….……..RESPONDENT 4
KUNDAN SINGH…...……………………………………………………...RESPONDENT 5
ROSHAN SINGH…………………………………………...………………RESPONDENT 6

BEFORE SUBMISSION TO

THE HON’BLE HIGH COURT OF ALLAHABAD

MEMORANDUM ON BEHALF OF RESPONDENTS

COUNSEL FOR RESPONDENTS

NAME: AKHAND PRATAP SINGH
SECTION-G
SEMESTER-V
CLASS ROLL NO. – 216569
EXAM ROLL NO. – 19310806095

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ……………………………………………………………………3

INDEX OF AUTHORITIES.......................................................................................................... 4

STATEMENT OF JURISCDICTION............................................................................................ 6

STATEMENT OF FACTS............................................................................................................. 7

ARGUMENTS PRESENTED....................................................................................................... 9

SUMMARY OF ARGUMENTS...................................................................................................10

ARGUMENTS ADVANCED........................................................................................................12

1. 1.1 What are the different legislative fields of the parliament and the state legislature? Who has the
rightsto make laws with respect to rights in land and land tenures?.................................12-15

1.2 Whether there is any overlapping between subjects in entry-18 of list- 2 state list and entry-5 of
list3concurrent list? In case of overlapping, which law will prevail?....................................15

2. What are the nature of rights conferred under the UP Zamidari and Land Reforms Act, 1950?
How will the rights be determined in case a joint Hindu family holds Bhumidhari rights in a
holding?…........................................................................................................................ 15-18

3. Whether the Hindu succession (Amendment) act, 2005 will apply to the disputed land or

not?……..…………………………………………………………………………………...18-20

PRAYER FOR RELIEF...............................................................................................................21

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LIST OF ABBREVIATIONS

ABBREVIATIONS DEFINITIONS
AIR All India Reporter
FB Full Bench
DB Divisionl Bench
Const. Constitution
& And
Doesn’t Does not
Hon’ble Honourable
i.e. That is
Ed. Edition
Ors. Others
No. Number
v. Versus
Vol. Volume
UOI Union of India
UP Uttar Pradesh
Dy. Deputy
W.B. West Bengal
Add. Additional
Sd/- Signed on letters
SC Supreme Court
U.P. Act Uttar Pradesh Zamindari Abolition And Land reforms
Act 1951.

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INDEX OF AUTHORITIES

CONSTITUTION REFERRED

Constitution of India, 1950

STATUTES

Sr. No Name
1. Hindu Succession Act ,1956
2. UP Zamindari Abolition and Land Reforms Act, 1951
3. Government of India Act,1935

CASE-LAWS

Sr. No Case – Law Page No.

1. Archna v. Deputy Director of Consolidation and others, 2015 SCC 15,19,17
Online All 262 : (2015) 111 ALR 63 : (2015) 127 RD 801
2. Dulli v. Imarti Devi 1960 All LJ (Rev).29 17
3. Jahan Singh v. State of UP & others, decided on 18 May 2017 20
4. Mahendra Singh v. Attar Singh, AIR 1967 All 488 19
5. Madhuri Devi & Ans. V. Board of Revenue UP and another 18
decided on 4 August 2011
6. Parshanti v. Dy. Director of Consolidation, AIR 1999 SC 1567 20
7. Ram Awalamb Vs. Jata Shankar, AIR 1969 All 526 (FB) 16
8. Ram Kumar v. Add. District Judge, Barabanki, decided on 23 19
August, 2012
9. Rajiv Sarin v. State of Uttarakhand, AIR 2011 SC 3081 15
10. S.P. Watel vs. State of U.P. , AIR 1973 SC 1293 16
11. State of U.P. Vs. Raja Brahma Shah, AIR 1967 SC 661 16
12. State of W.B. v. Kesoram Industries Ltd, AIR 2005 SC 1646 13
*Cases are in alphabetical order

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BOOKS REFERRED

Sr. Name of the Books

No
1. Jain, M.P., Indian Constitutional Law Vol- 1, 2, - 8thEdition - New Delhi: Lexis Nexis,
2018
2. Dr. Poonam Pradhan Saxena, Family Law II,(Lexis Nexis,Delhi IVth 2019)
3.
Mulla's Hindu Law 13th Ed.
4. Case Material, Faculty of Law, University of Delhi (2020)
5. Law Commission 174th Report, May, 2000

WEBSITES

Sr. No Name of the Website

1. www.casemine.com

2. www.indiankanoon.org
3. www.scconline.com
4. www.lexisnexis.com
5. www.barandbench.com
6. www.manupatra.com

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STATEMENT OF JURISDICTION

The Honourable High Court of Allahabad is vested with jurisdiction, to hear the present matter under
Article 226 of the Constitution of India. The memorandum for respondents in the matter at hand sets
forth the facts, contentions and arguments present in the case.

Article 226 of the Constitution of India, 1950:

(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

TO INITIATE THE PRESENT PROCEEDINGS IN THE HON’BLE HIGH COURT. THE

RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THE HON’BLE HIGH COURT IN THE PRESENT MATTER WHICH

HAS BEEN INVOKED BY THE PETITIONER.

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STATEMENT OF FACTS
The land in dispute is situated in Uttar Pradesh and it is 7000 hectares in area as stated by Anjali,
the married daughter of the Coparcener, that this is an ancestral property coming from the time of
her grandfather, Ram Singh. After the death of her grandfather, the land was inherited by his two
sons, Malik Singh and Roshan Singh (her father) and their sons as well. All of them at that time
formed the Hindu Joint Family governed by Mitakshara law of Hindu coparcenary of which Roshan
Singh was the “Karta” and acted in such capacity till 1989.
Relevant Events

Sr.no Basis of the Particulars of the event

events
1. Land Respondent 6 executed a sale deed dated 16/11/2005, of some portions
Transferred of disputed land in favour of Respondent 5 and his name is mutated in
revenue records along with other co- sharers.
2. Agreement of All the members of the Joint Hindu Family agreed to the sale deed
sale deed executed in favour of “Respondent 5” except the daughter of the
Karta. Moreover the consent of the daughter has not been even
obtained due to the reason that she is neither a part of Joint Hindu
Family nor a Coparcener to this context.
3. Filed She filed an objection dated 4/4/2013 under sec. 9(2) of the UP
Objection on consolidation of Holdings Act1953 for the direction to effect a
04/04/2013 partition of her ¼th share in the property and to delete the name of
Respondent 5 from revenue record, and add her name along with other
co sharers.
4. Contested by She does not contest the shares of other co sharers but she is pleading
Anjali for her share in the disputed Agricultural Land on the basis of the
Hindu Succession (Amendment) Act, 2005 as sec 4(2) was deleted
and sec 6 (1) (c), created same liability on the daughter as of a son as
such the provisions of HSA, 1956 will apply to agricultural lands
also.
5. Mutation In The sale deed was executed on 16/11/2005 in favour of Respondent 5
revenue and on its basis, his name is mutated in the revenue records by an
records order dated 20/12/2005.
6. Further Respondent 6 had no right to execute the sale deed dated 16/11/2005
contested and the same is void. As the name in revenue record was mutated on
the basis of void sale deed, therefore, the name was liable to be
deleted.
7. Contested by That the disputed land is an agricultural land and would be governed
Kundan Singh by the UP Zamindari Abolition and Land Reforms Act, 1950 and the
provisions of Hindu Succession Act, 1956 are not applicable to it. The
petitioner had no right in the disputed land during the lifetime of her
father, Roshan Singh and the petition of the petitioner is not
maintainable.

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Court Proceedings

Sr.no Chronology of Significance of the events

the events
1. Consolidation It was held that the Civil Procedure Code, 1908 is not applicable
Officer except the land for which declaration has been made under sec 143 of
(Respondent- the UP Act, and the provisions of Hindu Succession Act, 1956 are not
4) applicable to the agricultural land. Roshan Singh, the father of the
petitioner is still alive, so no question of inheritance of his Bhumidari
holdings arose otherwise also, the petitioner being a married daughter
is not an heir under sec 171 of the UP Act, as Roshan Singh was
having two sons, hence the objection filed by the petitioner was not
maintainable and upon such findings, the objection of the petitioner
was dismissed and the land was divided amongst the on record
recorded holders of the land.
2. Appeal to Upheld the findings of Consolidation Officer and dismissed the
Settlement appeal by order dated 15/3/2014.
Officer
Consolidation
(Respondent-
3)
3. Revision Dismissed the revision by order dated 15/6/2014 .
against the
aforesaid
order filed
before Deputy
Director of
Consolidation
(Respondent-
2)
4. High Court of Writ petition has been filed before this Hon’ble court challenging the
Judicature order dated 15/6/2014 by the Dy. Director of Consolidation..
Allahabad

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ARGUMENTS PRESENTED

ISSUE NO.1.1 WHAT ARE THE DIFFERENT LEGISLATIVE FIELD OF THE

PARLIAMENT AND THE STATE LEGISLATURE? WHO HAS THE RIGHTS TO MAKE
LAWS WITH RESPECT TO RIGHTS IN LAND AND LAND TENURES?
ISSUE NO.1.2 WHETHER THERE IS ANY OVERLAPPING BETWEEN SUBJECTS IN
ENTRY-18 OF LIST-II-STATE LIST AND ENTRY-5 OF LIST-III-CONCURRENT LIST?
IN CASE OF OVERLAPPING, WHICH LAW WILLPREVAIL?

ISSUE NO 2. WHAT ARE THE NATURE OF RIGHTS CONFERRED UNDER THE UP

ZAMIDARI AND LAND REFORMS ACT, 1950? HOW WILL THE RIGHTS BE
DETERMINED IN CASE A JOINT HINDU FAMILY HOLDS BHUMIDHARI RIGHTS
IN A HOLDING?

ISSUE NO 3.WHETHER THE HINDU SUCCESSION (AMENDMENT) ACT, 2005 WILL APPLY
TO THE DISPUTED LAND OR NOT?

SUMMARY OF ARGUMENTS

ISSUE-1.1: WHAT ARE THE DIFFERENT LEGISLATIVE FIELD OF THE

PARLIAMENT AND THE STATE LEGISLATURE? WHO HAS THE RIGHTS TO
MAKE LAWS WITH RESPECT TO RIGHTS IN LAND AND LAND TENURES?

It is humbly submitted that the various entries are the fields of the legislative power and the words
and expressions used under them should be given a widest possible interpretation. The words "right
in or over the land and land tenure" under Entry-18 of List-II-State list have to begiven widest-
possible interpretation and include "right of inheritance" also. Therefore, it is humbly submitted
that the State Legislature the alone has jurisdiction to make laws in respect of rights in or over land,
and land tenures, under which U.P. Act No. 1 of 1951was enacted.

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ISSUE NO.1.2: WHETHER THERE IS ANY OVERLAPPING BETWEEN SUBJECTS IN

ENTRY-18 OF LIST-II-STATE LIST AND ENTRY-5 OF LIST-III-CONCURRENT LIST?
IN CASE OF OVERLAPPING, WHICH LAW WILLPREVAIL?

It is humbly stated that as contented 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 ListIIIConcurrent
List.

ISSUE NO.2: WHAT IS THE NATURE OF RIGHTS CONFERRED UNDER THE UP

ZAMIDARI AND LAND REFORMS ACT, 1950? HOW WILL THE RIGHTS BE
DETERMINED IN CASE A JOINT HINDU FAMILY HOLDS BHUMIDHARI RIGHTS
IN A HOLDING?

It is humbly submitted that UP Zamidari and Land Reforms Act, 1950 was enacted for abolition
of Zamindari system.The object of the act is that soil must go to the actual tiller has been applied
in cases of inheritance and devolution of interest also. It is further submitted that whenever
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. Therefore, the notions of Hindu Law cannotbe invoked
to determine their rights. Their rights can only be determined under the UP Act, under which
widow and daughter are given right of inheritance but on their remarriage/marriage, they are
divested under Section 172 of the Act.

ISSUE NO.3: WHETHER THE HINDU SUCCESSION (AMENDMENT) ACT, 2005 WILL APPLY
TO THE DISPUTED LAND OR NOT?

It is humbly submitted that the Hindu Succession Act, 1956 will only applies to Joint Hindu
Mitakshara property but not to the agricultural land i.e. the disputed land. Succession in case of
agricultural land is governed by state laws (if any), not by the principles of Hindu Law or any
personal laws. The province i.e. Uttar Pradesh, which is governed by the provisions of the UP
Zamindari Abolition and Land Reforms Act and succession is also governed by the provisions of
the said act, therefore the principles of Hindu Law or any other personal laws will not be applied
on that rights and whenever there is a conflict between the special law and the general law, the
provisions of the special act will prevail.

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ARGUMENTS ADVANCED

ISSUE NO.1.1: WHAT ARE THE DIFFERENT LEGISLATIVE FIELD OF THE

PARLIAMENT AND THE STATE LEGISLATURE? WHO HAS THE RIGHTS TO
MAKE LAWS WITH RESPECT TO RIGHTS IN LAND AND LAND TENURES?

• It is humbly submitted that Part XI, Chapter-I of the Constitution 1 which deals with
legislative relations - Distribution of Legislative Powers. Under 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.

• It is humbly submitted that 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. List-II-Provincial Legislative List of the Seventh
Schedule 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.
• These entries have been slightly modified in the Constitution. Relevant entries of
Constitution of India are quoted below:Seventh
Schedule -List II -- State List

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.

1
The Constitution of India, 1950
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• It is humbly submitted that 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 which parties 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.

• Supreme Court in State of W.B. v. Kesoram Industries Ltd2 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 above said 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". 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.

(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 enumerated in the Concurrent List and a direct
conflict is seen.

(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. 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 a given piece of legislation relates.

2
AIR 2005 SC 1646
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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.

• It is humbly submitted that 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. Entry-5 of List III -Concurrent List, uses phrase "all matters in
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 was 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. Similar kind of
observation has been stated by this Hon’ble court on t3he facts similar to this present case
in the matter of Archna v. Deputy Director of Consolidation and others3.

ISSUE NO. 1.2: WHETHER THERE IS ANY OVERLAPPING BETWEEN SUBJECTS IN

ENTRY-18 OF LIST-II-STATE LIST AND ENTRY-5 OF LIST-III-CONCURRENT LIST?

IN CASE OF OVERLAPPING, WHICH LAW WILL PREVAIL?

• It is humbly stated that as contented 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

3
SCC Online All 262 : (2015) 111 ALR 63 : (2015) 127 RD 801
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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
Succession Act, 1956.Even if it is treated that subject "succession" is falling under Entry-5
of List-III-Concurrent List, assent of 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 Article254 (2) of the

Constitution. The Hon’ble Supreme Court held in the matter of Rajiv Sarin v. State of
Uttarakhand,4 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 appraised 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. Similar kind of observation has

been stated by this Hon‟ble court on the facts similar to this present case in the matter of
Archna v. Deputy Director of Consolidation and others5.

ISSUE NO.2: WHAT ARE THE NATURE OF RIGHTS CONFERRED UNDER THE UP
ZAMIDARI AND LAND REFORMS ACT, 1950? HOW WILL THE RIGHTS BE
DETERMINED IN CASE A JOINT HINDU FAMILY HOLDS BHUMIDHARI RIGHTS
IN A HOLDING?

• It is humbly submitted that 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, for acquisition of their rights, title and interest
and to reform the law relating to land tenure 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

4
AIR 2011 SC 3081
5
Supra, Footnote No. 3
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(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 widow and daughter are given 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 of1951 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.

• It is humbly submitted that 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. v. Raja Brahma Shah,6 and S.P. Watel v. State of
U.P.7

• It is humbly submitted that a Full Bench of this Court in Ram Awalamb v. Jata
Shankar,8[vide Para 29] held that:-

(a) The scheme of the Act seems to be to make one law for persons of all castes and creeds and 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) They are new rights conferred under the Act,and

6
AIR 1967 SC 661
7
AIR 1973 SC 1293
8
AIR 1969 All 526 (FB)
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(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
special Act.

(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 cobhumidhars can apply only when there is failure of heirs as
mentioned in Sections 171to 174, (see Dulli v. Imarti Devi,9).

(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 are negatived by the provisions of the Act10.

• It is humbly submitted that this Hon‟ble court has held in the matter of Archna v.
Deputy Director of Consolidation and ors11 that:-
(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.

9
1960 All LJ (Rev).29
10
Mulla's Hindu Law 13th Ed. Para 221
11
Supra, Footnote No. 3

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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.

ISSUE NO.3: WHETHER THE HINDU SUCCESSION (AMENDMENT) ACT, 2005 WILL APPLY TO
THE DISPUTED LAND OR NOT?

It is humbly submitted that Hindu Succession (Amendment) Act, 2005 is an act which amended
the Hindu Succession Act, 1956 which provided the rights to which were till then unknown
in relation to women‟s property. It was 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. The 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" 9.Thus aim and object,
as given by Parliament for enactment of Amending Act, 2005, was 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. 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. 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.

Whether applies to agricultural land or not?

It is humbly submitted that the Hindu Succession Act, 1956 will only applies to Joint Hindu Mitakshara
property but not to the agricultural land i.e. the disputed land. This Hon’ble court has held in the matter
of Archna v. Deputy Director of Consolidation and others,10 that:
The 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 suo moto applies to agricultural
land. Under Section 6, (as amended) daughters are given right under Hindu Mitakshara Coparcenary
Property alone.
• It is humbly submitted that only the State Legislature has the power to legislate on the subject

9
May, 2000
10
Supra, Footnote No. 3
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i.e. transfer, alienation and devolution of interest in agricultural land, and succession in case
of agricultural land is governed by state laws (if any), not by the principles of Hindu Law or
any personal laws. The similar observation has been given by this Hon’ble court in the matter
of Ram Kumar v. Add. District Judge, Barabanki,11 that:

Uttar Pradesh Zamidari Abolition and Land Reforms Act, 1950 is a special enactment and in the
matter of succession the personal laws will not be applied. It is also to be remembered that the
agricultural land vests in the State Government. The provisions of the act will prevail over the
personal law and will have a binding effect.

• It is humbly submitted that the Division Bench of this Hon’ble court in the matter of Mahendra
Singh v. Attar Singh,12 that Bhumidhari rights were special rights and Bhumidhar can transfer his
interest unrestricted by considerations of legal necessity. The notice of Hindu Law or Muslim Law
was not to be imported in the rights created by the UP Zamidari Abolition and Land Reform Act.

• It is humbly submitted that tenancy in this province i.e. Uttar Pradesh, which is governed by the
provisions of the UP Zamidari Abolition and Land Reform Act and succession is also governed by
the provisions of the said act, therefore the principles of Hindu Law or any other personal laws will
not be applied on that rights13.

11
decided on 23 August, 2012
12
AIR 1967 All 488
13
Madhuri Devi & Ans. V. Board of Revenue UP and another decided on 4 August 2011
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It is humbly submitted that when there is a conflict between the special law and the general law, the
provisions of the special act will prevail. The similar kind of observation has been given by this
Hon’ble court in the matter of Jahan Singh v. State of UP and others14, which is as follows:

It is well known rule of interpretation that on construction, the entire Act must be looked into as a
whole. The Court cannot add words to a Statute or read words into it which are not there. When the
purpose and object or the reason and spirit pervading through the Statute is clear, the Court must
adopt a purposive approach in interpreting such a Statute. It is equally well settled that when there is
a conflict between the Special Statute dealing with a special kind of property and a General Statute,
the rights of the parties with regard to the special kind of property must be governed by the former
i.e. the provisions of the Special Act as such must prevail on the sole recognized maxim generalia
specialibus non derogant.

It is also stated in Parshanti v. Dy. Director of Consolidation15, 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 the Hindu
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. It is humbly stated that after the deletion of Section 4(2) from Hindu
Succession Act, 1956 by the amendment of Hindu Succession (Amendment) Act, 2005, it
cannot be said that the act suo moto applies to the agricultural land.

14
Decided on 18 May 2017
15
AIR 1999 SC 1567

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PRAYER

Wherefore, in light of the facts stated, issues raised, authorities cited and arguments advanced , it
is most humbly and respectfully requested that the Hon’ble High Court of Allahabad may be
pleased to ;

I. Uphold all the decisions of subordinate proceedings, taken by Respondent 2 ,3 and 4 respectively.
II. Recognise the sale deed to be valid in favour of Respondent 5.

III. Dismiss the present writ petition filed by the petitioner before this Hon’ble court.

And/Or to pass any other order(s) that it deems fit in the light of Justice, Equity and Good Conscience.

And for this, the Respondents are in duty bound, shall humbly pray.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED

PLACE: SD/-

DATE: COUNSEL FOR THE RESPONDENTS

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