IN THE HIGH COURT OF ALLAHABAD, AT

ALLAHABAD CIVIL WRIT PETITION

IN THE MATTER OF:

Anjali ... APPELLANT

Versus

Deputy Director of Consolidation and others ...RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

Submitted to: Dr.kshitij kumar Singh

Submitted by: Nikhil kataria
Class roll. No.. - 182354

Exam roll no. - 180415

SECTION : C

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 TABLE OF CONTENTS

S. HEADI Pg.
No. NG No.
1. TABLE OF CONTENTS 2.
2. LIST OF ABBREVIATIONS 3.
3. INDEX OF AUTHOTITIES 4.
4. STATEMENT OF JURISDICTION 5.
5. STATEMENT OF FACTS 6.
6. ARGUMENTS PRESENTED 7.
7. SUMMARY OF ARGUMENTS 8.
8. ARGUMENTS ADVANCED 9.-
14.
9. PRAYER 15.

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 LIST OF ABBREVIATIONS

HSA Hindu Succession Act

AIR All India Reporter

Anr. Another

SC Supreme Court

SCC Supreme Court

Cases
Ors. Others

Sec. Section

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 INDEX OF AUTHORITIES

STATUTES

1. THE CONSTITUTION OF INDIA, 1950.

2. THE GOVT. OF INDIA ACT, 1935.
3. HINDU SUCCESSION ACT, 1956.
4. HINDU SUCCESSION ACT, 2005.
5. UP ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1951.

JUDICIAL PRECEDENTS

1. Archana V. Dy Director of Consolidation (WRIT No. - 64999 of 2014 Decided on 27

March 2015).
2. Baburam V. Santokh Singh AIR 2019 SC 1506 : 2019 (2) RCR(Civil) 608 : 2019 (4)
Scale 726.
3. Ram Awalamb v. Jata Shankar, AIR 1969 All 526
4. Dulli v. Imarti Devi, 196G All LJ (Rev).29).
5. Parshanti v. Dy. Director of Consolidation, AIR 1999 SC 1567
6. State of U.P. v. Raja Brahma Shah, AIR 1967 SC 661
7. Rajiv Sarin v. State of Uttarakhand, AIR 2011 SC 3081

BOOKS
1. MULLA Hindu Law, 23rd Edition.
2. Indian Constitutional Law, MP Jain, 7th Edition.

DYNAMIC LINKS

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1. www.manupatra.com
2. www.indiankanoon.org
3. www.scconline.com
4. www.lexsite.com
5. www.livelaw.com

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 STATEMENT OF JURISDICTION

The Honourable High court of Allahabad has jurisdiction to hear the present petition under its
jurisdiction under Article 226 of the Indian Constitution. The article of the constitution is
reproduced hereinafter.

226. Power of High Courts to issue certain writs

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

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 STATEMENT OF FACTS

1. The disputed land (7000 hectares) is situated in Uttar Pradesh and is stated by the petitioner
Anjali, the married daughter of coparcener, that it is an ancestral property coming from the
time of her grandfather, Ram Singh.

2. 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.

3. All of them at that time formed the Hindu Joint Family governed by Mitakshara law of Hindu
Coparcenery of which Roshan Singh was the Karta and acted in such capacity till 1989.

4. Roshan Singh executed a sale deed dated 16 November 2005,of some portions of disputed
land in favour of one Kundan Singh and his name is mutated on revenue record along with co-
sharers.

5. All the members of the joint Hindu Family consented to the sale deed executed in favour of
Kundan Singh except the daughter of Karta. Moreover, the consent of the daughter has not
been even obtained due to the reason that she is neither the part of Joint Hindu Family nor a
coparcener to this context.

6. She filed an objection dated 4th april, 2013 u/s 9(2) of the UP consolidation of Holdings Act,
1953 for the direction to effect a partition of her ¼ th share in the property and to delete the
name of Kundan Singh from revenue record, instead add her name along with other co-
sharers.

7. She is pleading for her share in the disputed agricultural land on the basis of the Hindu
Succession (Amendment) Act, 2005 as section 4(2) was deleted and sec6(1)(c), created same
liability on the daughter as of son as such the provisions of HSA, 1956 will apply to
agricultural land also.

8. However, the sale deed was executed on 16th November, 2005 in favour of Kundan singh and
his name is mutated in the revenue records by an order dated 20 th December, 2005 but as per
the aggrieved daughter, Roshan Singh had no right to execute the sale deed dated 16 th
November, 2005 and the deed is void and the name was liable to be deleated.

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9. Hence this case is contested by the respondent Kundan Singh that the disputed land is an
agricultural land and would be governed by the UP Zamindari Abolition and land reforms Act,
1950 and the provisions of HSA are not applicable to it. That the petitioner had no right in the
disputed land during the lifetime of her father Roshan Singh and the petition of the daughter is
not maintainable.

10. The Consolidation Officer after hearing the preliminary objections raised by Kundan Singh
held that Code of Civil Procedure,1908 is not applicable and the provisions of Hindu
Succession Act,1956 are not applicable to the agricultural land.

11. Furthermore, Roshan Singh, the father of the Petitioner is still alive so no question of
inheritance arose, also the petitioner being a married daughter is not an heir under sec 171 of
UP Act. Hence the objection filed by the petitioner is not maintainable and the same was
dismissed.

12. The petitioner filed an appeal from the aforesaid order and the same was dismissed by order
dated 15/03/2014.The petitioner filed a revision against the aforesaid order, Deputy Director
of Consolidation by order dated 15/06/2014 dismissed the revision.

13. Hence, this writ petition has been filed in the High Court Of Allahabad challenging the order
dated 15/06/2014 by the Deputy Director of Consolidation.

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 ARGUMENTS PRESENTED

1. WHICH OF THE FOLLOWING STATUTORY PROVISIONS WILL PREVAIL

AS A MATTER OF CONFLICT, WHETHER IT'S HINDU SUCCESSION ACT,
2005 OR U.P. ZAMINDARI ABOLITON AND LAND REFORMS ACT 1951?
AUTHORITY OF STATE LEGISLATURE AND PARLIAMENT TO MAKE
LAW IN RESPECT OF RIGHTS IN OR OVER LAND AND LAND TENURE?

2. WHETHER THE PETITIONER HAS ANY EXISTING RIGHTS IN THE LAND

IN DISPUTE OR NOT?

3. IS THERE ANY OVERLAPPING BETWEEN THE SUBJECTS MENTIONED IN

ENTRY 18 OF LIST II AND ENTRY 5 OF LIST III? IN CASE OF
OVERLAPPING WHICH LAW WILL PREVAIL?

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 SUMMARY OF ARGUMENTS

ISSUE-I

WHICH OF THE FOLLOWING STATUTORY PROVISIONS WILL PREVAIL

AS A MATTER OF CONFLICT, WHETHER IT'S HINDU SUCCESSION ACT,
2005 OR U.P. ZAMINDARI ABOLITON AND LAND REFORMS ACT
1951.AUTHORITY OF STATE LEGISLATURE AND PARLIAMENT TO MAKE
LAW IN RESPECT OF RIGHTS IN OR OVER LAND AND LAND TENURE.

As a matter of conflict the laws made by the parliament has an over-riding effect over the
laws made by the state legislature generally. But in the present case depending upon the
merits of the case and various precedents, the laws made by UP Zamindari Abolition And
Land Reforms Act, 1951 will prevail over the Hindu Succession Act, 2005. The state can
make laws in matters related to rights in or over land and land tenure.

ISSUE II

WHETHER THE PETITIONER HAS ANY RIGHTS IN LAND IN DISPUTE OR

NOT?

It is most humbly submitted that the petitioner does not have any coparcenary rights in
the land in dispute since the land in dispute is governed by the laws made by state
legislature. Section 171. of the UP Act 1951 has an over-riding effect over the Section
6(1) of The Hindu Succession Act, 2005.

ISSUE III

IS THERE ANY OVERLAPPING B/W THE SUBJECTS MENTIONED IN

ENTRY-18 OF LIST-II-STATE LIST AND ENTRY-5 OF LIST-III-
CONSURRENT LIST? IN CASE OF OVERLAPPING, WHICH OF THEM WILL
PREVAIL?

It is most humbly submitted that there is no overlapping of the subjects between entry-18
of list II and entry-5 of list III.

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 ARGUMENTS ADVANCED
ISSUE-I

WHICH OF THE FOLLOWING STATUTORY PROVISIONS WILL PREVAIL

AS A MATTER OF CONFLICT, WHETHER IT'S HINDU SUCCESSION ACT,
2005 OR U.P. ZAMINDARI ABOLITON AND LAND REFORMS ACT
1951.AUTHORITY OF STATE LEGISLATURE AND PARLIAMENT TO MAKE
LAW IN RESPECT OF RIGHTS IN OR OVER LAND AND LAND TENURE.

It is most humbly submitted that the when there is a conflict between a state specific statutory
provision and a provision made by central legislature, the merits of the case are checked.
The same issue has already been decided in The Hon'ble High Court Of Allahbad1.

The Hon'ble court observed as follows:-

The land in dispute was agricultural holdings of the category "bhumidhar with transferable
right" on 20.12.2004 i.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 amended in
2005) is to be applied for deciding right of the petitioner? In the light of the arguments of the
parties.

Inconsistency between laws made by Parliament and laws made by the Legislatures of
States.--

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision
of a law made by Parliament which Parliament is competent to enact, or to any provision of
an existing law with respect to one of the matters enumerated in the Concurrent List, then,
subject to the provisions of clause (2), the law made by Parliament, whether passed before or
after the law made by the Legislature of such State, or, as the case may be, the existing law,

1
Archana V. Dy Director of Consolidation (WRIT No. - 64999 of 2014 Decided on 27 March 2015).

9
shall prevail and the law made by the Legislature of the State shall, to the extent of the
repugnancy, be void.

Where a law made by the Legislature of a State with respect to one of the matters enumerated
in the Concurrent List contains any provision repugnant to the provisions of an earlier law
made by Parliament or an existing law with respect to that matter, then, the law so made by
the Legislature of such State shall, if it has been reserved for the consideration of the
President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any
law with respect to the same matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State.2

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.

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.

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.

2
CONSTITUTION OF INDIA, 1950.

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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
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.

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 (iv) government lessee have been conferred under other
provisions.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 SC 1293.

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 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

1
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 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 the Act.

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.

(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.

1
(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.

Thus, in the present case also, the respondent most humbly submits that the laws made by
state legislature, under, UP Zamindari Abolition and Land Reforms Act, 1951 will prevail.

ISSUE II

WHETHER THE PETITIONER HAS ANY RIGHTS IN LAND IN DISPUTE OR

NOT?

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 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 SC 1293.3,4,5

As stated above, the counsil for respondent most humbly submits that the petitioner does not
have any rights in the said land in dispute since the day she got married because she cannot
cultivate 2 different agricultural lands at a given time and the land in dispute is an agricultural
land.

3
Archana V. Dy Director Of Consolidation
4
State of U.P. Vs. Raja Brahma Shah, AIR 1967 SC 661
5
S.P. Watel Vs. State of U.P., AIR 1973 SC 1293

1
 ISSUE III

IS THERE ANY OVERLAPPING B/W THE SUBJECTS MENTIONED IN ENTRY-18

OF LIST-II-STATE LIST AND ENTRY-5 OF LIST-III-CONSURRENT LIST? IN
CASE OF OVERLAPPING, WHICH OF THEM WILL PREVAIL?

The 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 Ill-
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 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."

Where a law made by the Legislature of a State with respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to the provisions of an earlier law made by
Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of
such State shall, if it has been reserved for the consideration of the President and has received his
assent, prevail in that State : Provided that nothing in this clause shall prevent Parliament from
enacting at any time any law with respect to the same matter including a law adding to, amending,
varying or repealing the law so made by the Legislature of the State."

Entry-7 of List III --Concurrent Legislative List of Government of India Act, 1935used 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 Ill-Concurrent List,uses phrase "all matters in respect of which parties in judicial

1
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 ofrights 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.

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Archana V. Dy Director Of Consolidation

1
 PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced, it is
most humbly prayed before this Hon’ble High Court of Allahabad that it may be pleased to declare
that:

1) The provisions of the Hindu Succession Act,1956 are not applicable in the present case .
2) UP Zamindari Abolition and Land Reforms Act,1950 is not repugnant under Article 254 of the
Constitution of India.
3) The Hindu Succession Act.1956 is not enacted under Article 253 of the Constitution of India and therefore
does not have an overriding effect.

And to pass any other order 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 RESPECTFULLY SUBMITTED

VERIFICATION

Verified at Delhi on this _______ of October 2020 that the contents of the accompanying writ
petition are true and correct to the best of my knowledge and belief and nothing has been concealed
therefrom.

Place: signed
Date: Respondant

MEMORIAL ON BEHALF OF RESPONDENT

1
 SUBMITTED BY :-

NIKHIL KATARIA

CLASS ROLL -

182354

EXAM ROLL No.

-180415

SECTION : C