IN THE HON’BLE HIGH COURT OF ALLAHABAD, UTTAR PRADESH

(CIVIL WRIT JURISDICTION)

W.P. (C) NO. /2022

IN THE MATTER OF:

Anjali Singh …. PETITIONER

VERSUS

Deputy Director of Consolidation …. RESPONDENT NO. 1

Kundan Singh …. RESPONDENT NO. 2

Roshan Singh …. RESPONDENT NO. 3

MEMORIAL ON BEHALF OF THE RESPONDENT

SUBMITTED BY:
COUNCIL FOR THE RESPONDENT
NAME: NIRMAL DIXIT
SECTION-B
EXAM ROLL NO.: 20310806237
ROLL NO.: 226752
 TABLE OF CONTENTS

S.NO Particular Page No.

1. List of abbreviations 3

2. List of References and Cases 4-6

i. Statues and rules referred

ii. Websites referred
iii. Books referred
iv. Lists of cases referred

3. Statement of jurisdiction 7-8

4. Statement of facts 9

5. Statement of issues 10

6. Summary of arguments 11

7. Arguments advanced 12-18

8. Prayer 19
 LIST OF ABBREVATION

Particulars Full Form

UP Uttar Pradesh

HJF Hindu Joint Family

u/s Under Section

HSA,2005 Hindu Succession Act

HSaA,2005 Hindu Succession (amendment) Act

Sec Section

CPC,1908 Civil Procedure Code,1908

UPZALR,ACT Land Reforms Act , 1950

Dd Deputy Director
 LIST OF REFERENCES AND CASES

STATUTES

 Constitutional Law of India, 1949

 Hindu Succession Act, 1956

 Hindu Succession (Amendment) Act 2005

 The U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951)

 U.P. Consolidation of Holdings Act, 1953, (U.P. Act No. 5 of 1954)

 Code of Civil Procedure, 1908

BOOKS:

 M.P Jain, Indian Constitution Law, 7th Ed, LexisNexis Publication.

 Mulla Hindu Law, 18th Edition: Satyajit A Desai

 Modern Hindu Law: Paras Diwan

 Lexis Nexis Family Law Lextures: Ponssm Pradhan Saxena (2017)

WEBSITES:

 http://www.manupatra.co.in/AdvancedLegalSearch.aspx

 http://www.scconline.com

 http://www.blog>ipleaders.in

 http://www.indiankanoon.org

 http://www.livelaw.in
 CASE LAWS

 Archna v. Deputy Director of Consolidation, 2015

 State of W.B. v. Kesoram Industries Ltd. AIR 2005 SC

 Rajiv Sarin V. State of Uttarakhand AIR 2011

 Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, AIR 1984

 Ramji dixit v. bhirunat

 Daryo Singh v. badri and others

 Captain Singh v. state of uttarakhand

 Khilash and another v. smt anandi devi.

 State of Gujarat v Shivarjsinh Harishchandrasinh, 2018 GLH (2) 29

 State of U.P. Vs. Raja Brahma Shah, AIR 1967 SC 661

 S.P. Patel Vs. State of U.P., AIR 1973 SC 1293

 Ram Awalamb Vs. Jata Shankar, AIR 1969 All 526 (FB)
 STATEMENT OF JURISDICTION

The respondent humbly submits before the Hon’ble High Court of Allahabad, the
memorandum for the respondent in an appeal filed by petitioner under Art. 226 of the
constitution of India, 1950. However, the Respondent seeks permission of this Hon’ble Court
to contend the maintainability of this Writ Petition.

As per Article 226 of the Constitution.

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 exercises 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
favor 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.
 STATEMENT OF FACTS

1. There is a disputed land of 7000 hectares in Uttar Pradesh, which is contested by Anjali the
married daughter of the family that it was disposed of without her consent.

2. The contested property was an ancestral property belonged to the grandfather of the
daughter and upon the death of grandfather devolved upon his two sons Malik & Roshan
Singh and their sons as it is stated.

3. They formed HJF as Roshan Singh father of the daughter as the Karta which he acted in
that capacity till 1989. Roshan executed a sale deed on 16/11/2015 in favor of Kundan Singh
of the above said property but without taking consent of the daughter Anjali.

4. The argument put forward by the father that she is neither a part of the HJF as she being
married and nor a coparcener.

5. To contest her claim on the land, she filled for proceedings on 4/04/2013 by stressing o
that under HSA and HSA (amendment), 2005 she is eligible for her share u/s 6(1)(c).

6. She contested that the deed executed has no validity and the deed is void.

7. Kundan Singh against whom the deed was executed said that this land is governed by
UPZALR Act and not HSA.

8. The consolidation officer of the revenue department also rejected the claim by the daughter
that this land is governed by UPZALR Act and not the HSA Act.

9. Daughter also filed an appeal against the order of consolidation officer to the Dy. Director
of consolidation but her claim and the appeal again got rejected.

10. Now the writ has been filled by the daughter against the decision of the revenue
department officers.
 Statement of Issues

Issue 1-Whether the Contested Property (Agricultural land) be governed by The U.P
Zamindari Abolition and Land Reforms Act, 1950 Or Hindu Succession Act, 1956?

 Authority of State Legislature and the Parliament to make law in respect of rights in
or over land and land tenure.
 Is there overlapping between subjects mentioned in Entry-18 of List-II-State List and
Entry-5 of List-III-Concurrent List? In case of overlapping, which law will prevail?
 Whether Hindu Succession (Amendment) Act, 2005 was enacted under Article 253 of
the Constitution and has an overriding effect?

Issue 2- Whether petitioner is entitled for share under UP act

 whether married daughter is heir under section 171 of the UP ACT?

 The father of petitioner still alive, whether the question of inheritance of his
bhumidari arise?
 SUMMARY OF ARGUMENTS

1. Whether the contested property (agricultural land) be governed by UP Zamindari

Abolition and Land Reforms Act, 1950 or Hindu Succession Act?

After the amendment of 2005, sec 4 of HSA was removed as that dealt with the devolution of
agricultural holdings to the married and unmarried daughters. But there seem to be a
problem/confusion on some occasion as in the absence of state law dealing with agricultural
land; will the HSA be automatically applied? Agricultural land is explicitly under the state
list, and the central law HSA will not be automatically applied if there exist a state law. No
Suo moto application of the law will take in the matter of agricultural land. Inheritance and
succession are matters specified in list 3(entry 5, while land is a state subject. This confusion
was cleared by Allahabad HC in “Archna v Deputy Director of Consolidation” & “State
of Gujarat v Shivarjsinh Harishchandrasinh”.

2.whether the petitioner is entitled of share under UP ACT.

the petitioner is married daughter of the respondent and 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. (GOLAK NATH V STATE OF PUNJAB).
 ARGUMENTS ADVANCED

ISSUE-1

 Whether the contested property (agricultural land) be governed by UP Zamindari

Abolition and Land Reforms Act, 1950 or Hindu Succession Act?

The contested property in the above mentioned case is the agricultural (land) property of HJF.
According to the constitution, in which the different types of lists are mentioned agricultural
land explicitly comes under State list (entry 18) . So, all the matters relating to disposing of
the affairs of the land would exclusively fall within the purview of the State government and
no Central law can be applied automatically or by any special procedure Inheritance and
succession are subjects specified in list 3 (entry5) , while land is a state subject. Normally if
there is confusion over a particular item that whether center can make law or state, it is that
center that prevails but normally subjected to Article 256 that the center should be competent
to legislate on it. However, post amendment in the HSA, deletion of provision exempting
application of the act to agricultural holding which is sec 4(2) of the HSA, 1956 explains that
HSA will not apply to agricultural land holdings, fixation of ceilings and devolution of
tenancy rights of such holdings and to such property and to any interest in such property the
act will not get applied. It was only when an express provision did not exist with respect to
agricultural property then only provisions of HSA will apply otherwise not.

List 2(entry 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.

List 3(entry 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.

Article 256: The executive power of every State shall be so exercised as to ensure compliance with the laws
made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall
extent to the giving of such directions to a State as may appear to the

Government of India to be necessary for that purpose.

Sec 4(2) of the HSA is reproduced hereunder: Overriding effect of 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.

By deletion of sec 4 confusion got created as the legislature has not provided any express
provision that states or confirms the application of HSA, to agricultural property and above
any state law that also deals with the same.

These laws, which provide for fragmentation of agricultural landholdings, fixation of ceilings
and devolution of tenancy rights, apply to the inhabitants of the state uniformly irrespective
of the religion. For example, the whole of agricultural holdings (unless expressly provided)
would be subjected to uniform law and the religion of the landowner will be of no
consequence. The deletion of sec 4(2) post amendment of 2005, and an implied presumption
that HSA, will apply to all kinds of agricultural property would now mean that diversity
would exist state wise with respect to law governing agricultural property. This amounts to
confusion.

The Allahabad High Court was confronted with this very issue bringing some clarity and said
that deletion of the provision has not made any difference as it only clarified the position and
did not make any provision to the settled legal provision. In “Archna v Deputy Director of
consolidation” was held thus combined reading of the preamble, sec 4 and sec 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.
Sec4 (2) was only by way of clarification. On its basis, it cannot be said that after its deletion,
HSA, 1956 Suo moto applies to agricultural land. Under sec 6, (as amended) daughters are
given right under Hindu Mitakshara Coparcenary Property alone.

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 IV 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.
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 Sec 172 of the Act. It
was kept in mind while enacting Sec 171 and Sec 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, and S.P.
Watel vs. State of U.P

Similar was the case in “State of Gujarat v Shivarjsinh Harishchandrasinh” the

amendment in HSA, cannot be automatically extended to agricultural holding or agricultural
land ceilings act, 1960 which is special legislation in which major daughter is not treated as a
independent unit. Here the original computation of surplus land was on that day, on the basis
of male a member that is head of the family along with two sons the land was divided into 3
units and surplus land was calculated. Two major daughters who were in the family were not
counted as independent units or even members of the family for the purpose of computation
of independent units of land holdings. This order was challenged in 2002 and decision was
decided in 2013. Post amendment of 2005, the daughters wanted to be included as
independent unit and to be recognized as a coparcener in HJF and amendment has removed
the sec 4(2) which meant that act is applicable to agricultural holding as well. It was held that
there is no automatic application of HSA to agricultural holding and dismissed the
application of the daughters.

Sec 171 of UP act of 1951: clearly lays down that in case a male tenure holder dies then his son or his male
descendants will come to inherit his rights in the holding of land. His own daughter and son’s daughter and the
descendants of daughters have been excluded for this purpose. Sec 172 of UP act: Succession in the case of a
woman holding an interest inherited as a widow, mother, daughter, etc. - [(1) When a bhumidhar, [* * *] or
asami who has after the date of vesting, inherited an interest in any holding-

(a) as a widow, widow of a male lineal descendant, in the male line of descent, mother or father's mother dies,
marries, abandons or surrenders such holding or part thereof; or

(b) as a daughter, son's daughter, sister or half-sister being the daughter of the same father as the deceased
[marries] dies, abandons or surrenders such holding or part thereof, the holding or the part shall devolve upon
the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the
last male bhumidhar,] or asami.
 Is there Overlapping between subjects mentioned in entry-18 of list-II State List
and Entry-5 of List List-III-Concurrent list? In case of Overlapping, which law will
prevail?

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 tenure including right of inheritance. Subject
“Succession” mentioned in Entry-5 of List-III Concurrent List has 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.

 Whether Hindu Succession (Amendment) Act,2005 was enacted in Exercise of

powers under Article 253 of the Constitution and has an overriding effect?

The effect of Article 253 is that if a treaty, agreement or convention with a foreign State deals
with a subject within the competence of the State Legislature, the Parliament alone has,
notwithstanding Article 246(3) , the power to make laws to implement the treaty, agreement
or convention or any decision made at any international conference, association or other
body. In terms, the Article deals with legislative power: thereby power is conferred upon the
Parliament which it may not otherwise possess.
1. Art. 253: Legislation for giving effect to international agreements. -- Notwithstanding anything in the
foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the
territory of India for implementing any treaty, agreement or convention with any other country or countries or
any decision made at any international conference, association or other body.

2. Art. 246(3): Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for
such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule
(in this Constitution referred to as the "State List").

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 or it was enacted in pursuance of declaration made before United
Nations Organization as well as Article 51 (c). Thus it is clear that Amending Act, 2005
intended to provide the right to Hindu daughters equal with the son in Mitakshara
coparcenary property. It does not intend to provide such right to the daughters/women of
other religion living in the country. There is nothing in the Act 2005 to prove that it was
enacted in pursuance of declaration made before United Nations Organization. As such
Article 253 of the Constitution has no application. Supreme Court in Gramophone Co. of
India Ltd. V. Birendra Bahadur Pandey, AIR 1984 SC 667, held, The Doctrine of
incorporation also recognizes the position that the rules of international law are incorporated
into national law and considered to be part of national law, unless they are in conflict with an
Act of Parliament. Comity of nations or no, municipal law must prevail is case of conflict.

Section 6: Devolution of interest in coparcenary property. — (1) On and from the commencement of the Hindu
Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of
a coparcener shall, —

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any
reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a
coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition of property which had taken place before the 20th
day of December, 2004.

Art. 51(c) : foster respect for international law and treaty obligations in the dealings of organized peoples with
one another; and encourage settlement of international disputes by arbitration PART

Issue 2.- whether married daughter is heir under section 171 of UP act

section 171 clearly laid down that widow, unmarried daughter and male lineal descendent
are heir thus it expressly excludes married daughter.

IN Ramji dixit v bhirunat court held that after the amendment of 1958, an unmarried
daughter is entitle to inherit the holding of her father but her interest was forfeited on
marriage.

In Daryo Singh v badri and others and Captain Singh v state of Uttarakhand
court held that when a daughter marries, the holding will devolve upon nearest
surviving heir of the last male humidor. thus married daughter is superseded by
relation.

 the father of the petitioner is still alive, whether the question of inheritance
of thebhumidari arise

section 171 (1) Subject to the provisions of Section 169, when a bhumidhar or asami,
being a male die, his interest in his holding shall devolve upon his heirs being the
relatives specified in sub-section (2) in accordance with the following principles,
namely: -

(i) the heirs specified in any one clause of sub-section (2) shall take simultaneously
in equal shares;

(ii) the "heirs specified in any preceding clause of sub-section (2) shall take to the
exclusion of all heirs specified in succeeding clauses, that is to say, those in
clause (a) shall be preferred to those in clause (b), those in clause
(b) shall be preferred to those in clause (c), and so on, in succession;

(iii) if there are more widows than one, of the bhumidhar or asami, or of any
predeceased male lineal descendant, who would have been an heir, if alive, all
 such widows together shall take one share.

(iv) the widow or widowed mother or the father's widowed mother or the widow of
any predeceased male lineal descendant who would have been an heir, if alive,
shall inherit only if she has not remarried.]

(2) the following relatives of the male Bhumidhar or asami are heir subject to the
provision of sub section (1), namely

a) widow, unmarried daughter and male lineal descendant per strips.

by referring to above provision the court in Kailash and another v smt anandi devi held
that the daughter could not succeed until father of the daughter is alive
 PRAYER

Therefore, in the light of facts stated, issues raised, arguments advanced and authorities cited,
it is most humbly submitted and respectfully prayed before this Hon’ble Court that it may be
pleased to hold, adjudged and declare that:

1. That in the above case the objection filed by the petitioner is not maintainable.

2. That the order dated 15/4/2014 of Deputy Director of Consolidation should not be set
aside.

And pass any other order as the court deems fit and proper in the interest of justice, equity
and good conscience.

Date: Counsel for Respondent

Place: