MOOT COURT EXERCISE

BEFORE THE HON’BLE

HIGH COURT OF ALLAHABAD

ORIGINAL WRIT JURISDICTION

W.P.(Civil)__________ Of 2020

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

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

v.

DEPUTY DIRECTOR OF CONSOLIDATION & ORS…………………RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONER

NAME- BHARATHIMOHAN M.
ROLL NO.- 182468

MEMORIAL ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS
LIST OF ABBREVIATIONS…………………………………………………………..1

INDEX OF AUTHORITIES……………………………………………………………2

STATEMENT OF JURISDICTION……………………………………………………3

STATEMENT OF FACTS……………………………………………………………..4

STATEMENT OF ISSUES…………………………………………………………….5

SUMMARY OF ARGUMENTS……………………………………………………….6

ARGUMENTS ADVANCED………………………………………………………7- 12

PRAYER……………………………………………………………………………….13

MEMORIAL ON BEHALF OF THE PETITIONER

 LIST OF ABBREVIATIONS

Abbreviation Full Form

AIR All India Reports

ADJ Additional District Judge

ALL Allahabad

HSA Hindu Succession Act

LJ Law Journal

MANU Manupatra

NCT National Capital Territory

Ors Others

SC Supreme Court

UP Uttar Pradesh

Uttar Pradesh Zamindari Abolition and

UPZALR
Land reforms

¶ Paragraph

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MEMORIAL ON BEHALF OF THE PETITIONER
 INDEX OF AUTHORITIES
CASES
1. Sm. Laxmi Debi v. Surendra Kumar Panda and Others, MANU/PH/0269/1960
2. Sant Ram Dass v. Gurdav Singh, MANU/SC/0736/1998
3. Babu Ram v. Santokh Singh (deceased) through his LRs and others,
MANU/SC/0396/2019
4. Nirmala & others vs. Government of NCT of Delhi
5. Shakuntala Devi vs Madan Jha, MANU/SCOR/09283/2020
6. I.T.C. Ltd. v. Agricultural Produce Market Committee, AIR 2002 SC 852, 894
7. Deep Chand v. State of U.P, AIR 1959 SC 648 : 1959 Supp (2) SCR 8
8. Hindu Women’s Rights to Property to Property Act, 1973, & the Hindu Women’s Right
to Property (amendment) Act 1938, in Re

BOOKS
1. M.P. Jain, Indian Constitution Law, 8th Edition, 2018, LexisNexis Butterworth Wadhwa
Nagpur
2. Sir Dinshaw Fardunji Mulla, Mulla Hindu Law, 23rd Edition, LexisNexis

LEGISLATIONS
1. Constitution of India, 1950
2. Hindu Succession (Amendment) Act, 2005
3. Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1951

LEGAL DATABASE
1. Indian Kanoon
2. Manupatra

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MEMORIAL ON BEHALF OF THE PETITIONER
 STATEMENT OF JURISDICTION
The jurisdiction of this Hon’ble High Court is invoked under Article 226 of the Constitution of
India.

Article 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

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MEMORIAL ON BEHALF OF THE PETITIONER
 STATEMENT OF FACTS
1. The land (7000 hectares) in dispute is situated in Uttar Pradesh and has been in the family
since the time of petitioner’s grandfather, Ram Singh. After the death of Ram Singh, the
property was inherited by his sons Roshan Singh and Malik Singh and their sons and
Roshan Singh acted as the Karta up to 1989. On 16/11/2005 Roshan Singh executed the
sale deed in favour of one ‘Kundan Singh’ and his name was mutated in the revenue record
with the other co-sharers by an order dated 20/12/2005.

2. The married daughter of Roshan Singh, Anjali filed an objection under section 9(2) of the
UP Consolidation of Holdings Act,1953 dated 04/04/2013 stating this was an ancestral
property and as a coparcener she also had right in the property and asked for a partition of
her ¼ share in the property and to delete the name of ‘Kundan Singh’ from revenue record
and add her name instead, along with other co-sharers. She pleaded for her share in the
disputed agricultural land on the basis of Hindu Succession (Amendment)Act, 2005
contending that section 4(2) was deleted and section 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. She further alleges that Roshan Singh had no right to execute the sale deed and
therefore it is void

3. Kundan Singh contented that the disputed land is an agricultural land and would be
governed by the U.P. 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
daughter is not maintainable. Further, he contended that Roshan Singh, the father of the
petitioner is still alive ,so no question of inheritance of his bhumidhari 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. The consolidation officer passed an order in favour of Kundan Singh.

4. The petitioner here then filed an appeal from the aforesaid order to the Settlement Officer
Consolidation, who affirmed the findings of Consolidation Officer and dismissed the
appeal by order dated 15/03/2014, the petitioner then filed a revision against the aforesaid
order to the Deputy Director of Consolidation, which was dismissed by order dated
15/6/2014. Hence, this writ petition has been filed by the petitioner against the order dated
15/06/2014.
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MEMORIAL ON BEHALF OF THE PETITIONER
 STATEMENT OF ISSUES
1. WHETHER THE PROVISIONS OF THE HINDU SUCCESSION (AMENDMENT)
ACT, 2005, WILL APPLY TO THE LAND IN DISPUTE?

2. WHETHER THERE IS REPUGNANCY BETWEEN LAW MADE BY THE CENTER

(ACT OF 2005 ) & THE STATE (UP ACT, 1950)

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MEMORIAL ON BEHALF OF THE PETITIONER
 SUMMERY OF ARGUMENTS
I. Whether ‘Agricultural Land’ is out of the ambit of Hindu Succession (amendment)
Act, 2005?
It is humbly submitted here that the provisions of the Hindu Succession (Amendment)
Act, 2005 is applicable to the disputed agricultural land. And both the Centre and State
has the power to make laws regarding succession to agricultural land because of the
following reasons:
• As against the entries of the Government of India Act, 1935, when adapting the
constitution of India considerable changes had been made on the subjects, transfer,
alienation and succession. After such significant drift succession to agricultural land
came well within the concurrent list.
• The whole object and intent of removing section 4(2) of The Hindu Succession Act,
1956 by The Hindu Succession (Amendment) Act, 2005 is to offer absolute rights to
women, regardless of the nature of the property a woman holds. Besides through the
amended section 6, a daughter of a coparcener of the agricultural land shall become
coparcener in the same manner and with the same rights and liabilities in respect of the
said coparcenary agricultural property as the son.
• succession regardless of the nature of the land. Thus, the effect of the removal of section
4(2) and change in section 6 naturally includes agricultural land within its ambit and
the central legislature is competent to enact law of
II. Whether there is any repugnancy between the law made by the Center (Act of 2005)
& the state (UPZALR Act, 1950)?
• It is humbly submitted that the repugnancy between specific provisions of UPZALR
Act and the HSA, 1956 is over the subject matter, succession. Once after the removal
of Section 4(2), by virtue of clause (b) of Section 4(1), the provisions of UPZALR Act
regarding succession, ceased to apply to Hindus in so far as it was inconsistent with any
of the provisions of the HSA.
• The Subject “right in or over land, and land tenure…; transfer and alienation of
agricultural land” mentioned in Entry 18 of the state list does not include the Right of
Inheritance because the presence of the words ‘transfer’ and ‘alienation’ does not
amount to devolution.
• Since there is an overlap between the provisions of Centre and State Law, by virtue of
article 254 of the Constitution, the state law will give way to the Central law.
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MEMORIAL ON BEHALF OF THE PETITIONER
 ARGUMENTS ADVANCED
1. Whether the provisions of Hindu Succession (Amendment) Act, 2005 will apply to
the land in dispute?
¶1 It is humbly submitted that the provisions of the Hindu Succession Amendment Act,
2005 will have an overriding effect over the provisions of the UP Act and hence the HSA
will apply to the land in dispute.

1.1. The change in entries after the enactment of the Constitution:

¶2 Before getting into the changes in HSA, one has to look into the history of relevant entries
on this subject matter. The relevant entries in the Government of India Act, 1935
(hereinafter referred to as 1935 Act) underwent significant changes when the
Constitution of India was adopted.

¶3 It is humbly submitted here that the change made in the wording of the entries in the state
list as well as concurrent list is proof enough that the parliament wanted the succession
of agricultural lands to be included in the Concurrent list.

¶4 In Schedule 7 of 1935 Act, entry 7 of the Concurrent list-“…. Succession, save as regards
agricultural land” and entry 21 of the State list- “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…”
After the enactment of the Constitution of 1950, the words “ save as regard was dropped
from the entry 7 of the concurrent list and the word “devolution” was dropped from the
entry 21.

Now, the entries stand as:

Entry 5 of the concurrent list- Intestacy and Succession
Entry 18 of the state list- 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.

¶5 Previously in the matter of Federal Court held that the Central Act (regarding that case
the Hindu Women's Rights to Property Act of 1937, and the Hindu Women's Rights to
Property (Amendment) Act of 19381) do not operate to regulate succession to agricultural

1
AIR 1941 PC 72 (K)
7
MEMORIAL ON BEHALF OF THE PETITIONER
 land in the Governors' Provinces; and do operate to regulate devolution by survivorship
of property to other than agricultural lands.

¶6 Then after the commencement of the constitution, in the case of Sm. Laxmi Debi v.
Surendra Kumar Panda and Others, the decision of Federal Court, in view of the changed
position in law, was negated by the High Court of Orrisa on the reason that the Federal
Court decision was based upon the law of legislative competency as it then stood, by the
1935 Act. the Court also observed that it was clear that the Parliament had omitted the
phrase "save as regards agricultural land" from item No. 5 of the Concurrent List in order
to have a uniform personal law for Hindus throughout India, and accordingly, it
necessitated the enlargement of Entry No. 5.

¶7 In the case of Sant Ram Dass v. Gurdav Singh2 Justice D. K. Mahajan, J. held that
"succession to agricultural land” was covered by Item 5 of List III of the VII Schedule of
the Constitution of India and the Hindu Succession Act regulated succession in respect
of all properties of Hindus including in respect of agricultural land. Having regard to the
change in the language and content of entries of the Constitution as contrasted from Entry
of 1935 Act, it was held by the Court that the Hindu Succession Act, though applicable
to regulate succession in respect of agricultural lands, was not ultra vires.

¶8 It is humbly submitted that it is evident from the Judgement of the Supreme Court in
Vaijanath and others v. Guramma and anr.3 on the point of scope of the word “Property”
that the word "property" are wide enough cover agricultural land also. It categorically
held that restricted interpretation was given to the then Central Act, entirely because of
the legislative entries in the Government of India Act, 1935, which excludes the
legislative competence of the Central Legislature over agricultural land.

¶9 In the case of Babu Ram v. Santokh Singh (deceased) through his LRs and others4, the
Supreme court of India observed that the changes indicated above as against what was
earlier available in Entry 21 of List II and Entry 7 of List III make the position very clear.
The present Entry 5 of List III shows “succession” in its fullest sense to be a topic in the
Concurrent List. The concept of succession will take within its fold testamentary as well
as intestate succession. The idea is, therefore, clear that when it comes to “transfer,

2
MANU/PH/0269/1960
3
MANU/SC/0736/1998
4
MANU/SC/0396/2019
8
MEMORIAL ON BEHALF OF THE PETITIONER
 alienation of agricultural land” which are transfers inter vivos, the competence under
Entry 18 of List II is with the State legislatures but when it comes to “intestacy and
succession” which are essentially transfers by operation of law as per law applicable to
the person upon whose death the succession is to open, both the Union as well as State
legislatures are competent to deal with the topic. Consequently, going by the principles
of Article 254 of the Constitution of India the matter will have to be dealt with. The court
distinguished between transfer and succession of land. It explained that succession takes
place by the operation of law while transfer occurs through an instrument. States are
competent to legislate on transfer of agricultural land while Centre and states share
jurisdiction on succession of any kind of land. Thus, the Supreme Court of India upheld
that HSA 2005 applies to agricultural land as well. The Supreme court also declared that
the various decisions of the High Court, some of which were referred in that, which had
held contrary to what they have concluded, to the extent whether the subject, Succession,
includes agricultural land, stand overruled.

1.2. Deletion of section 4(2) of the HSA, extends the provisions of HSA to agricultural
land
¶10 It is humbly submitted here that with the deletion of section 4(2) now extends the
provisions of the Hindu Succession Act to the agricultural lands because now the
overriding effect of section 4(1) of the HSA will also apply to the agricultural land.

¶11 Prior to the amendment of 2005, section 4 of the HSA, 1956 stood as:

4. Overriding effect of Act.--Save as otherwise expressly provided in this Act,--

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that
law in force immediately before the commencement of this Act, shall cease to have effect
with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease
to apply to Hindus in so far as it is inconsistent with any of the provisions contained in
this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act
shall be deemed to affect the provisions of any law for the time being in force providing
for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings
or for the devolution of tenancy rights in respect of such holdings.

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MEMORIAL ON BEHALF OF THE PETITIONER
¶12 In the case of Nirmala & others vs. Government of NCT of Delhi, the Delhi High Court
held that the Section 4(2) as it existed prior to its omission in 2005 declared that nothing
contained in the HSA would be deemed to affect the provisions of any law for the time
being in force providing for the prevention of fragmentation of agricultural holdings or
for the fixation of ceilings or for the devolution of tenancy rights in respect of such
holdings. Now, the omission of sub-section (2) of Section 4 of the HSA by virtue of the
Amendment Act of 2005 has removed the specific exclusion of the DLR Act from the
overriding effect of the HSA which hitherto existed because of the said sub-section (2).
The result is obvious. The protection or shield from obliteration which sub-section (2)
provided having been removed, the provisions of the HAS would have overriding effect
even in respect of the provisions of the DLR Act. The omission of sub-section (2) of
Section 4, by virtue of the amendment of 2005 is very much a conscious act of
Parliament. The intention is clear. Parliament did not want this protection given to the
DLR Act and other similar laws to continue. The result is that the DLR Act gets relegated
to a position of subservience to the HSA to the extent of inconsistency in the provisions
of the two acts. Plainly, the Delhi High Court declared that removal of section 4(2) from
HSA, 1956 allows the HSA to override any other law in force before its commencement,
in so far as it is inconsistent with HSA.

¶13 Similarly in the case of Shakuntala Devi vs Madan Jha5 it was observed that by virtue of
clause (a) of sub-section (1) of section 4 of the HSA, any text, rule or interpretation of
Hindu Law or any custom or usage as part of that law in force ceased to have effect upon
the commencement of the HSA in respect of any matter for which provision was made
in the HSA. In other words, in respect of matters provided in the HSA, Hindu law
including any custom or usage as part of that law stood abrogated. Similarly, by virtue
of clause (b) of Section 4(1) of the HSA, any other law in force immediately before the
commencement of the HSA, ceased to apply to Hindus in so far as it was inconsistent
with any of the provisions of the HSA.

¶14 It is humbly submitted that the removal of Section 4(b) of the HSA gives the act an
overriding effect on any other laws in force immediately before the commencement of
this act. It clearly provides that such laws shall cease to apply to Hindus in so far as they
are inconsistent with the provision of this act. Even the preamble of the act states that

5
MANU/SCOR/09283/2020
10
MEMORIAL ON BEHALF OF THE PETITIONER
 this is an act to amend and codify the law relating to intestate succession among Hindus.
Therefore, it is clear that the legislators wanted this act to govern all the matters related
to intestate succession among Hindus, hence the provisions of the UP Act governing
succession among Hindus shall cease to apply to them to the extent that they are
inconsistent with the provisions of this act.

¶15 Also, with the deletion of section 4(2) the special exclusion of the UP Act from the
overriding effect of HSA has been removed and thus, the provisions of HSA will be
applicable to the land in dispute.

2. Whether there is any repugnancy between law made by the Center (Act of 2005) &
the State (UP Act, 1950)?
¶16 The main object of the enactment of the UPZALR Act 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. Keeping this in mind, one can
easily construe it in a way that the UP Act is an instrument to transfer and alienate the
agricultural land and to it the provisions touching upon the Succession, though the state
is competent to do so, is merely an incidental one.

¶17 It is submitted here that the central law i.e. the Hindu Succession Act and the state law
i.e. the UP Act, in any case, are repugnant with regard to the provisions of succession,
though the power to legislate on succession is with both the Centre and the State, incase
of a central law, the central law will prevail.

¶18 According to Art. 254(1), if any provision of a State law is repugnant to a provision in a
law made by Parliament which it is competent to enact, or to any existing law with respect
to one of the matters in the Concurrent List, then the Parliamentary or the existing law
prevails over the State law, and it does not matter whether the Parliamentary law has been
enacted before or after the State law. To the extent of repugnancy, the State law is void.6

¶19 In the case of I.T.C. Ltd. v. Agricultural Produce Market Committee 7 the Supreme Court
found that when there is direct collision between an Act enacted by Parliament and a

6
M.P. Jain
7
AIR 2002 SC 852, 894
11
MEMORIAL ON BEHALF OF THE PETITIONER
 State Act then they cannot co-exist then the Central legislation would prevail over the
State Law. When both statutes cover the same field and they produce conflicting legal
results in a given set of facts, repugnancy arises between them.

¶20 The Supreme Court found in Deep Chand v. State of U.P,8 that both the Acts differed
from each other in many important details but operate on the subject-matter in the same
field, then the state law would have to give way to the Central Act.

¶21 It is humbly submitted that the Presidential Assent for UP Act under Article 254(2), is
subject to the competence of Parliament. The HSA and the Amendment Act of 2005 have
been enacted by Parliament and we already submitted in the 1st issue that how the effect
of omission of Section 4(2) of the HSA is abrogating the provisions of the UP Act to the
extent of inconsistency with the provisions of the HSA. Hence it is submitted that the
immunity granted under the Article 31B is not a blanket immunity and is subject to the
power of any competent legislature to repeal or amend the protected Act.

¶22 Hence, it is humbly submitted here that in any case, the provisions regarding succession
in the Hindu Succession Act and the UP Act are repugnant to each other, the provision
of UP Act must give way to the Central Law (HSA).

8
AIR 1959 SC 648 : 1959 Supp (2) SCR 8
12
MEMORIAL ON BEHALF OF THE PETITIONER
 PRAYER
It is hereinafter most humbly requested before this Hon’ble Court, that in the light of the
issues raised arguments advanced, authorities cited and pleadings made, this Hon’ble Court
may graciously be pleased to:
a) Declare the sale deed void
b) Mutate the name of the Petitioner in the revenue record with the other co-sharers instead
of Kundan Singh

AND/OR

Pass any other order as it may deem fit, in the interest of Justice, Equity and Good
Conscience.

S/d-………………………….
(Counsel for the Petitioner)

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MEMORIAL ON BEHALF OF THE PETITIONER