IN THE HIGH COURT OF ALLAHABAD

CIVIL APPEAL NO. / OF

IN THE MATTER OF;

ANJALI (APPELLANT)

VS

ROSHAN SINGH & OTHER (RESPONDENT)

ON SUBMISSION TO THE HONOURABLE HIGH COURT OF ALLAHABAD

In Partial fulfillment of the LL.B counsel of VthSemester

MOST RESPECTFULLY SUBMITTED THROUGH:

COUNSEL FOR THE PETITIONER

SACHIN

Vth Semester, Section H, LC 1

Roll No. 19310806660

1
 TABLE OF CONTENTS

List of Abbreviations 3

Index of Authorities 4-5

Statement of Jurisdiction 6

Statement of Facts 7

Statement of Issues 8

Summary of Arguments 9

Arguments Advanced 10-20

Prayer 21

2
 LIST OF ABBREVIATIONS

& AND
Amen. Amendment
Art. Article
Cop. Coparcenary
Ed. Edition
HSA,1956 Hindu Succession Act,1956
Ibid Ibidem
J.F.P Joint Family Property
J.H.F Joint Hindu Family
Jud. Judgment
Para. Paragraph
Pg. Page
SC Supreme Court
Sec. Section
U.P Uttar Pradesh
v/s Versus
w.e.f With Effect From

3
 INDEX OF AUTHORITIES

STATUTE

• Constitution Of India,1950
• Hindu Succession Act,1956
• Hindu Succession (Amen.) Act,2005
• U.P Zamindari Abolition & Land Reform Act,1951

JUDICIAL DECISION

• Privy Council Judgment

• Hanuman Prasad Pandey v/s Mussumat Babooe,1857 399 (pc)
• Katama Natchiar v/s Rajah of Shivagunga (1863) 9 MIA 543

SUPREME COURT DECISION

• Arshnoor Singh v/s Harpal Kaur (2019)

• Uttam v/s Saubhag Singh (2016) 4 SCC 68
• Yudhister v/s Ashok Kumar (1987) 1 SCC 204
• Comm. Of Wealth tax ,Kanpur v/s Chander Sen & ors. (1986) 161 ITR 370 SC
• Valliammai Achi v/s Nagappa chettiar AIR 1967 SC 1153
• Vijay A. Mittal & ors. v/s Kulwant Rai (D) thr. LRS& ors. (2019) 3 SCC 520
• Sunil kumar v/s Ram prakash (1988) 2 SCC 77
• Rani & Anr. v/s Santa Bala Deb Nath & ors. (1970) 3 SCC 722

HIGH COURT

• Smt. Mukesh & ors. v/s Sri Bharat Singh (2008) 149 DLT 114
• Pushpalatha v/s S.V Padma AIR 2010 Kar. 124

BOOKS

• Sir D.F Mulla , Principles, of Hindu Law (22ND ED.)

• Mayne’s Hindu Law (12 TH ED.)
• S.V Gupte –Hindu Law (vol.1 3RD ED. 91981)
• N.R Raghvachariar’s Hindu Law – Principle’s & Precedent (8 TH ED. (1987)

WEBSITE

4
• Indian kanoon.org

5
 STATEMENT OF JURISDICTION

The petitioner humbly submits to the jurisdiction of this honourable High Court under article

226 of the Indian constitution,1950. The present petition sets forth the fact, contentions and

Argument in the present case

ARTICLE 226 – Power of High court 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
direction, orders or writs, including Writs in the nature of Habeas corpus, Mandamus,
Prohibitions, Quo-warranto & Certiorari, or any of them, for the enforcement of any of
the rights conferred by part 3 and for any other purpose

6
 STATEMENT OF FACT

1. Disputed land which is 700 hec. is situated in the state of Uttar Pradesh;

2. After the death of ‘ Ram Singh’ (Grandfather of the petitioners) property was inherited
among his two sons; Roshan Singh (Father of the petitioner) , Malik Singh & further
their sons as well;

3. They all formed J.H.F and was governed by Mitakshara law of Hindu coparcenary;

4. Roshan Singh acted as Karta till 1989, and in 2005 i.e. 16/nov/2005 executed a sale deed
in the name of one ‘Kundan Singh’.

5. Regarding Anjali ( the petitioner before H.C )

5.1 Consent, while executing allegedly void sale deed, was not obtain on the ground:-

5.1.1 She is neither a part of J.H.F non a coparcener

6. Legal Development So far:-

6.1 Anjali filed an objection before consolidation officer for her share in the disputed
property which she claims is ¼ to declare ‘sale deed’ executed on 16/nov/2005 void

6.2 settlement officers rejected the objection on the following ground

• She is not a coparcener,
• During the lifetime of his father named Roshan Singh, she can claim her
share (order dated 15/march/2014)

7. Appeal was filed against the abovementioned order to:-

Settlement officers consolidation, but was dismissed/via/order dated 15/march/2014.

8. Now, Writ petition before this honorable H.C of Allahabad.

STATEMENT OF ISSUES

1. Whether the provision of H.S.A, 1956 are applicable in case of agricultural land also
or local law like zamindari abolition and land reform Act , U.P, 1951 will apply
?

2. What is the nature of property; coparcenary or self-acquired? If coparcenary, whether

Anjali is a coparcener?

7
3. Whether sale deed executed on 16/nov/2005 is legally valid or void?

4. Can a coparcener claim his/her share during the lifetime of his/her father?

8
 SUMMARY ARGUMENTS

1. Whether the provision of H.S.A, 1956 are applicable in case of agricultural land also
or local law like zamindari abolition and land reform Act , U.P, 1951will apply

* Smt. Mukesh & others vs. Sri Bhagat Singh (2008) 149 DLT 114 Says-
Since section 4(2) of H.S.A, 1956 which gives overriding effect to local laws in case
of agricultural lands HSA, has been deleted, in this situation HSA will apply & local
laws will not have any force.

2. What is the nature of property; coparcenary or self-acquired? If coparcenary, whether

Anjali is a coparcener?

Major feature of Cop. Provision is that it is held together by male family members, which
is quite evident from the fact that it is held together. Hence it is Cop. Property.
Secondly, after (2005) A men in HSA, daughter is also a coparcener. Hence Anjali is also
a Cop. In the property.

3. Whether sale deed executed on 16/nov/2005 is legally valid or void?

Roshan Singh ceased to be ‘Karta’ in the year 1989;

So he did not have any authority to execute a sale deed of Cop. Property;
Secondly, even if he would have been acting as a ‘Karta’ of J.H.F, even then he was under an
objection to take the consent of Anjali, because she was a Cop. on the data when sale
deed was executed. So, deed was executed without any legal authority & hence void.

4. Can a coparcener claim his/her share during the lifetime of his/her father?

As earlier stated, each Cop. gets an inherent right in the Cop. property by birth. So being
the case, it is upto his/her choice whether he/she wants partition.
It is only in case of self-acquired property that an heir gets right in the property after
death of property holder.
It is not applicable in the case of Cop. provision.
ADVANCE ARGUMENT

1. Whether the provision of HSA ,1956 are applicable in case of agricultural land?
or local laws like U.P zamindari abolition & land reforms Act,1951 will apply?

• LEGISLATIVE DOMAIN OF THE CENTREAND THE

9
 STATE UNDER THE CONSTITUTION1 .

• Article 246 of the constitution clearly demarcates the area of legislative

power b/w center & state. 7 TH schedule2 r/w Art.246 Provides that.
1. Centre will have exclusive power to make laws on 1ST list of 7TH schedule.
2. State on the 2ND list &
3. Finally on third list both the center as well as state would have power.
1. Entry 18,of the 7 TH schedule provides3;-
“Land ,that is to say , right in or over land, land tenures including the relation of
landlord and tenant, and the collection of rent; transfer and alienation of
agricultural land; land improvement and agricultural loans; colonization”
It is the above-extracted entry, which enabled the legislature of the state of U.P
to pass the law called; U.P zamindari Abolition & Land Reforms Act, 1951 (herein
after called as act no.1 of 1951).
2. But, there is another entry, called entry 5,List iii of the 7 TH schedule4 , which is
“Marriage Divorce; infants and minor 6; adoption ; will intestacy and succession
;joint family and partition.
• It is using the above entry i.e entry 5, parliament enacted the law called;- Hindu
Succession Act,1956 (hereinafter called as HSA,1956).
3. Now, point to be noted is in the light of Art. 2545 ; if there is any any clash
b/w central & state law, it is the central law which will prevail.

So the HSA,19566 would have prevailed over Act,no.1 of 1951 , but sec 4(2) of the
HSA,1956 says;-
“For the removal of doubt it is hereby declared that nothing contained in this
act shall be deemed to affect the provision of any law for the time being in
force providing for the prevention of fragmentation of agri holding or for the
fixation of ceiling or for the devolution of tenancy rights in respect of such
holding”
4. So, it is only due to sec 4 (2),above mentioned , act ,no.1 of 1951 survived
,otherwise in the light of Art.254,state law which is in conflict with central law i.e
HSA ,1956 ,would have become redundant;

➢ MAJOR SHIFT IN 2005

1
The constitution of India, 1950

2
ibid
3
ibid
4
ibid
5
The constitution of India, 1950
6
Sec.4 (2) of Hindu succession Act,1956(prior, 9-9-2005)

10
 5. In 2005,HSA,1956 was amended and thereby sec. 4 (2) of HSA,1956 was deleted7.
So, now no local law is to get an overriding effect and same has been held in
various decision of various courts:
Case-; It was held in ;
Smt.Mukesh & others vs. Shri Bharat Singh8
Justice Pradeep Nandrajog of the Delhi High Court held;- “para7. Due to Sub-Sec 4
of the HSA, 1956 the rule of succession stipulated under the HSA,1956 was
subjected to any law for the time being in force relating to agri holding. Thus ,if
succession to an agricultural holding was stipulated in any local law applicable an
agri. holding, provision thereof would apply relating to devolution of interest in a
holding.
The effect of deletion of Sub-sec 2 to sec 4 of the HSA,1956 due to the
promulgation of the Hindu Succession (Amen.) Act,2005 is that with effect
from the date when the amending act was promulgated succession would be
as per the HSA,1956.”
6. Same view has been held to be the right one in Karnataka High court in Pushpalatha vs.
S.V Padma9. Regarding the applicability of HSA,1956 after deletion of sec 4 (2) of HSA,
1956 in2005.

7. Recently Supreme court of India, speaking through its division bench (J U.U Lalit & J
Indu Malhotra )in;-

7
Sec 2 of the act, 39 of 2005 (w.e.f 9-9-2005)

8
(2008) 149 DLT 114
9
AIR 2010 kar. 124

11
 Arshoor singh vs. Harpal kaur& ors 10
• It is easily noticeable from the facts of the abovementioned case para 2/2.1 that the
provision of HSA,1956 would be applicable to agricultural land also & no local law
as such had any kind of application is being claimed!
8. So, it has clearly been established via, constitutional provision, judgment of the
Highlight, Supreme court Jud. That local law like the Act, no.1 of 1951 has no
application to the present case & HSA, 1956 would apply in full force.

2. What is the nature of the property in dispute; Whether Cop. or Self- acquired?
Whether Anjali is a Cop. in the property?

1. Cop. property has so many peculiar features. All features are not the subject
matter of our present case. It need no authority to established that there is
common ownership in the Cop. property. Only point has it been changed or
when does the nature of property more particular from Cop. to self-acquired
does changes?
2. If a Cop. property is there which was held together by male members, and
then it goes into succession i.e property is divided as per sec.811
2.1 SC, J. R.F Nariman held in Uttam v/s saubhag singh12 that: “para 18 (vi)
On a conjoint reading of sec. 4,8 & 19 of the Act, after
J.F.P has been distributed in accordance with sec. 8 on principle of intestacy,
the J.F.P cease to be J.F.P in the hands of the various person who have
succeeded to it as they hold the property as tenant in common & not as joint
tenants”
2.2 Same view was held by SC in Yudhister v/s Ashok kumar13

10
Indian kanoon.org. (accessed on 1st nov 2020)
11
Hindu succession Act, 1956
12
(2016) 4 SCC 68
13
(1987) 1 SCC 204

12
 “para 11: This position has been affected by sec.8 of the HSA,1956 & therefore,
After the Act , When the son inherited the property in the situation
contemplated by sec. 8, he does not take it as Karta of his own undivided family
but takes it in his individual capacity”
2.3 Same view had been laid in : Comm. Of Wealth tax ,Kanpurv/s Chander
sen & ors14.

3. But no changes in following 2 situation

1) Partition &
2) Related to pre 1956 era,
If sole surviving member of J.H.F
We will deal with each one how this situation have no effect on the nature
of property .
Regarding pre-1950 era.
3.1 SC in Arshnoor Singh v/s Harpal kaur& ors.15 “para 7.3 Whenever a male
ancestor inherits under mitakshara Law, any property from any of his
paternal ancestor upto three degree above him, then his male legal heirs
upto three degrees below him, would get on equal rigid as cop. In that
property”
3.2 Secondly , on the same point Mulla on his commentary16 that,
“A son , a grandson whose father is deed, & a great grandson . Whose father
are both deed , Succeed simultaneously as single heir to the separate or self-
acquired property of the deceased with right of survivorship”
4. As far as partition ‘s impact on the nature of property is concerned ,it has
been summarised in : Valliamma Achi v/s Nagappachettier 17 that “para 10.
It is the well settled that the share which a co-share obtains on partition of
ancestral property is an ancestral property is ancestral property as regards his
male issues. They take an interest in it by

14
(1986) 161 ITR 370 SC
15
Indiankanoon.org (accessed on 01/nov/2020)
16
Sir D.F Mulla, principles of Hindu Law (22nd ed.) page no.129
17
AIR 1967 SC 1153

13
 birth whether they are in existence at time of partition or are born subsequently “
From all the above authorities which we have quoted above, one thing is
quite clear that if property is not divided as per sec.8 HSA,1956 property
would still be Cop. property : Even partition would not alter the situation
• In the present case , it has been specifically provided within the facts itself that
property after death of Ram Singh (the grandfather of the petitioner ) was taken
inherited by Roshan Singh (father of the petitioner) & Malik Singh & their sons
as well
5. So, point which arises. That if is explicitly mentioned pro. Was held together
which is the primary feature of the cop. Property thereafter has not gone under
the process under succession. Hence from the authorities quoted above it is quite
evident, that the property is Cop. Property.
6. Whether Archana is a Cop. in the disputed land ?
Once it has been est. that the property is Cop. property , then it will not
require much efforts to show whether Anjali is a Cop. in this property .
• An Amen. was Made by parliament 200517 & daughter was made a Cop.:
• Now, sec.6 of the Act18says:-
“6. Devolution of interest in Cop. property
1. On & from the commencement of HS (Amen.) Act,2005 in JHF governed by the
Mitakshara law, the daughter of a coparcener shall-
(a) By birth become a Cop. in her own right in the same manner as the son;
(b) Have the same right in the Cop. property as she would have had if she had
been a son.
So, from sec.6 ,it is quite evident that the property of Cop. property &
Anjali , is a Cop. in that property. Now, further issues
which are left to be decided, we will have detailed arguments on that.

3. Whether the sale deed executed on 16/nov/2005 is legally valid or void?

17
Sec 3 of act, 2005
18
Sec. 6 of HAS, 1956 (after 2005 amen.)

14
 1. Though Roshan Singh acted in the capacity of Karta till the year 1989 (has
been provided in the facts itself ) On that count also he did not have any
authority to execute the sale deed in dispute. Even if we presume him to be
Karta of his branch of family for sake of arguments, even then he did not had
authority to execute the sale deed under dispute.
The legal position of karta has been summarized thus:19
“The position of a karta is suigeneris; the relation between him and the other
members of the family is not that and agent , or of partners . It is more like that of
a trustee and cestuique trust. But the fiduciary relationship does not involve all the
duties which are imposed upon trustee”

2. It is beyond any doubt and requires any authority to say that the karta has
power to alienate the property. But it is not upto his whim on fancy that he
can alienate property. It is not unguided power and has been subjected to
certain conditions.
2.1 In Hunooman Prasad pandey v/s Mussmat Babooee monraj koonwere
privy council ruled20that; “That power of the manager for an infact
heir to charge an estate not his own is, under the Hindu Law , a limited
and qualified power . It can only be exercised rightly in case of need,
or for the benefit of the estate”
2.2 This is (abovementioned case of privy –council) is not the sole authority,
There are no. of Indian SC cases & writes authority to show that the power
of karta is qualified one ;
2.3 Supreme court ruled in; Vijay a. Mittal & ors. v/s Kulwant rai
(dead) through LRS & ors 21 that; “It settled law that the power of
a Karta to sell Cop. Property is subject to certain restriction vix
the sale should be for legal necessity or for the benefit of the
estate”
• Same view, as held in Vijay A. Mittal (Supra) has been endorsed in book written by
Sir D. Mulla on Hindu law also 2223 that the power is not the absolute one but
subjected to the abovementioned two conditions.
3. What remedies does a Cop. has in case of illegal alienation of property;-
No doubt, Karta for specific purpose can alienate property i.e
1) legal necessity &

19
Mayne’s Hindu Law (12 th ed. Para. 318)
20
(1854-1857) Moore’s Ind. App. 399 (PC)
21
(2019) 3 SCC 520
22
Mulla Hindu Law (22nd ed.) pg. 372
23
(1988) 3 SCC 722 (1970)
3 SCC 722

15
 2) benefit of the estate. But if this right is not exercised legally What remedy
does lie there to the other Cop. , because there share has also been
transferred; On this count in Sunil kumar v/s Ram Prakash 24 that

“Although the power of disposition of joint Hindu Family property has been
conceded to the manager of JHF for the reason a foresaid, the law raises no
presumption as to the validity of his transaction his acts could be questioned in the
court of law. declared void, if not justified”

4. This is how we can say that if deed which has been executed without any authority
then other Cop. has a right to challenge that alienation and that deed can be
cancelled be as void,

5. Burden of proof : on whom it lies if karta assert that it was within limited
parameters of law;

In; Rani & Anr. v/s Santa Bala Deb nath& ors. 25. SC held;_
“10. Legal necessity to support the slae must however be established by alienes The
ones of providing legal necessity may be discharged by the aliene by proof of actual
necessity or by proof the he made proper and bonafide enqueries about the existence
of the necessity and that he did all that was
reasonable to satisfy himself as to the existence of the necessity”(emphasis supplied) This is
how, it is established that, the power of the karta is not unqualified and it can
be exercised on the grounds abovementioned. Even after alienation it can be
challenged in the court of law .

6. Recently; Supreme Court in Arshnoor Singh v/s Harpal Kaur & ors 24

• From that the alleged sale deed executed in the year 1999, was not with in the power
of the karta

• And to be specific ; In para no. 11 SC cancelled the above mentioned sale deed in its
judgment dated 1/july/2019; by Justice Indu Malhotra. That being the case ; it is
beyond any doubt ,(but even at the cost of repetition I would says) that petitioner had
become Cop. before the execution of sale deed on 16/nov/2005. Actually, HSA,1956
was amended in 2005 25 and in the light of Art. 14 & 1526 , a daughter was also made
Cop. under sec.6 HSA,1956.

24
Indian Kanoon.org (accessed on 01/11/2020)
25
Sec. 2 of Act 39,2009 (w.e.f. 9/9/2005)
26
The Indian Constituion, 1950

16
 • So being the case, when daughter (Anjali)was a Cop. on 16/nov/2005 her consent
was necessary. Even Roshan Singh, who was in the possession of the property ,did
not even mentioned that the pro. Was alienated for
1) legal necessity or
2) benefit of the estate
• So being the case
1) property was alienated even with the above mentioned grounds;
2) consent, even for formality was not taken from Anjali so, sale deed was
executed without the authority and liable to be rejected & declared void!

4. Can Cop. claim his/her share in the Cop. property even during the life
time of his/her father?

1. Having showed through exhaustive arguments & authorities quoted their in

that the property of Cop. next aim is to ascertain What is the Right of a, Cop.
regarding Cop property.

2. In Cop. property, a Cop. accrues its right, whatever right he/she may have
from birth. As soon as he/she take birth, he accrues right in the property. Same
view has been sponsored by Sir D.V Mulla27 that–
“The essential features of ancestral property according to Mitakshara law is
that the sons, grandsons & greatgrandsons of the person who inherits it,
acquire an interest & the right attached to such property at the moment of their
birth”

3. The above view of learned author Sir D Mulla has been held to be the right
one in Sc judgments also; SC in Commissioner of wealth tax, Kanpur & ors.
v/s Chander sen& ors28. Which was again reiterated by SC in Yudhister v/s

27
Mulla on Hindu Law (22nd ed.) page no 327
28
(1986) 161 ITR 370 (SC)

17
 Ashok Kumar29 that;

“Under the Hindu Law, the moment a son is born ,he gets a share in father’s
property and become part of the Cop. His right accrues to him not on the death
of the father or inheritance from the father but with the very fact of his birth”
(emphasisadded)
So, one this is as transparent as glass that in case of Cop. property the Cop.
gets right by birth, But question remains unanswered What are these rights?

4. As has been observed by the Privy council in Katama Natchiar v/s Rajah of
Shivagunga 30 that ;

“there is community of interest & unity of possession between all the members of the
family , & upon the death of any one of them the others may well taken by
survivorship that in which they had during the deceased’s lifetime a common interest
and a common possession.

Likewise S.V Gupte Writes 31 Where author is dealing with Rights of a Cop. He says
thus;-
Until partition a Cop. is entitled to;
1) Joint possession & enjoyment of JFP

2) The right to take JFP by survivorship and

3) The right to demand the partition of JFP

6. Same view has been also held to be the right one of such instance is by N.R

29
(1987) 1 SCC 204
30
(1863) 9 MIA 543
31
Hindu Law [vol.13 ed. (1981) at p. 162]

18
 Raghavachariar held that 32; Rights
of a Cop. includes;-
1) Right by birth
2) Right of survivorship
3) Right to partition
4) Right to joint possession & enjoyment
5) Right to restrain unauthorized acts
6) Right of alienation
7) Right to accounts
8) Right to make self-acquisition

7. So, it is established in a very simplicity way that a Cop.(which Anjali heirs)

has a right in the Cop. provision by birth and what are those right it has also been
very explicitly provided in the preceding para.

8. Yes, One this is clear that if a person held pro.in his personal capacity under
HSA ,1956. Then legakl heirs do not have an inherent right by birth, right accrues
only after the owner’s death

Supreme Court in Uttam v/s Saubhag Singh35

“para 18(iv) On a conjoint Reading of Sec.4,8 & 19 of the Act i.e HSA,1956
after JHP has been distributed in accordance with sec8 on principles of
intestacy. The JFP cease to be JFP in the hands of the

various person who have succeeded to it as they hold the property,as tenant in common and not as joint
tenants”

➢ But point to be noted heirs, the property is Cop. property If provision would have
been the self-acquired provision than in the light of the ratio decidendia of Uttam
(supra), situation would have been different . but same is not the case here

32
N.R Ragavachariar’s Hindu Law- Principle & Precedent [8 th ed. (1987) at P 230] 35
(2014) 4 SCC 68

19
➢ So in the light of authorities quoted above Anjali has a right to demand partition even
during her father ‘s lifetime.

20
 PRAYER

WHEREFORE, in the light of issues raised, arguments advance ,

authorities cited and pleadings made, it is most humbly and respectfully
requested that This Hon’ble court may be pleased to adjust and declare
that;

1. It is not any local law, in the present case, will be applicable rather property’s
right would be governed of HSA,1956

2. The nature of the disputed land is Cop. provision & petitioner is a Cop. in it

3. That the sale deed executed on 16/nov/2005 is void

4. The petitioner has an inherent right being Cop., to claim partition during her
father’s lifetime.

And pass any other order as the court deem fit & proper

All of which is respectfully submitted and affirmed

SACHIN

COUNCEL FOR THE PETITIONER

21