1

––MOOT COURT EXERCISE

BEFORE THE HON’BLE

HIGH COURT OF ALLAHABAD

ORIGINAL WRIT JURISDICTION

W.P.(Civil) Of 2022

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

ANJALI ........................................................................................................... PETITIONER

v.

DEPUTY DIRECTOR OF CONSOLIDATION & ORS ........................... RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONER

NAME- ADITI SHIVADHATRI

SECTION -D
CLASS ROLL NO- 216069
EXAM ROLL NO- 20310806265
LAW CENTRE 1

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS
LIST OF ABBREVIATIONS .......................................................................................... 3

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

STATEMENT OF JURISDICTION................................................................................5

STATEMENT OF FACTS ............................................................................................. 6

STATEMENT OF ISSUES ............................................................................................ 7

SUMMARY OF ARGUMENTS.....................................................................................8-9

ARGUMENTS ADVANCED ........................................................................................ 10

PRAYER ........................................................................................................................ 16

MEMORIAL ON BEHALF OF THE PETITIONER

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LIST OF ABBREVIATIONS
Abbreviation Full Form

AIR All India Reports

ALL Allahabad

COI Constitution of India

HSA Hindu Succession Act

HUF HINDU UNDIVIDED FAMILY

MANU Manupatra

NCT National Capital Territory

Ors Others

SC Supreme Court

UP Uttar Pradesh

UPZALR Uttar Pradesh Zamindari Abolition and

Land reforms

MEMORIAL ON BEHALF OF THE PETITIONER

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INDEX OF AUTHORITIES
CASES
1. Sm. Laxmi Debi v. Surendra Kumar Panda and Others, MANU/OR/0001/1957
2. Sant Ram Dass v. Gurdav Singh, MANU/PH/0269/1960

3. Vaijanath and others vs. Guramma and anr, MANU/SC/0736/1998

4. Babu Ram v. Santokh Singh (deceased) through his LRs and others, MANU/SC/0396/2019
5. Nirmala & others vs. Government of NCT of Delhi, 170 (2010) DLT 577 (DB)
6. Shakuntala Devi vs Madan Jha, MANU/SCOR/09283/2020
7.I.T.C. Ltd. v. Agricultural Produce Market Committee, AIR 2002 SC 852, 894
8.Deep Chand v. State of U.P, AIR 1959 SC 648: 1959 Supp (2) SCR 8
9. Kehar Singh (D) through legal representatives vs Nachittar Kaur[CIVIL APPEAL NO.
3264 OF 2011]
10. POPATRAO VYANKATRAO PATEL VS STATE OF MAHARASHTRA (2020)

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

LEGISLATIONS
1. Constitution of India, 1950
2. Hindu Succession (Amendment) Act, 2005
3. Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1951
4 Hindu Women’s Rights to Property Act, 1937
5.Limitation Act,1963.

LEGAL DATABASE
1. Indian Kanoon
2. Manupatra

MEMORIAL ON BEHALF OF THE PETITIONER

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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

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.

MEMORIAL ON BEHALF OF THE PETITIONER

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STATEMENT OF FACTS
• 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.

• 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

• 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.

• 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.

MEMORIAL ON BEHALF OF THE PETITIONER

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STATEMENT OF ISSUES

1. HOW THIS WRIT IS MAINTAINABLE ?

2. WHETHER THE PROVISIONS OF THE HINDU SUCCESSION

(AMENDMENT)ACT, 2005, ALSO APPLY TO THE LAND IN DISPUTE?

3. WHETHER THERE IS REPUGNANCY BETWEEN LAW MADE BY THE

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

4. SCOPE OF SECTION 6[1] OF HSA,1956?

5. IS A MARRIED DAUGHTER COPARCENER IN HUF PROPERTY?

MEMORIAL FOR THE PETITIONER

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SUMMERY OF ARGUMENTS

1. How is the present writ petition U/A 226 of COI maintainable ?

a. Involves a disputed question of law “In

: an appropriate case, in spite of availability of
the alternative remedy, the High Court may still exercise its writ jurisdiction in at least
three contingencies: (i) where the writ petition seeks enforcement of any of the
fundamental rights; (ii) where there is failure of principles of natural justice; or (iii)
where the orders or proceedings are wholly without jurisdiction or the vires of an Act is
challenged.”

b. Involves a disputed question of fact :The Apex Court in POPATRAO VYANKATRAO

1
PATEL VS STATE OF MAHARASHTRA (2020) has observed even a disputed question
1

of fact can also be dealt with U/a 226 of COI ,however,only in exceptional
circumstances.

2. Whether ‘Agricultural Land’ is out of the ambit of Hindu Succession

(amendment)Act, 2005?
It is 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 ofthe
following reasons:
a. It is to be noted here that succession to agricultural land is a subject under
concurrent list,thus ,both state and union government has power to make laws
on this subject .
b. 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.
c. 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 the matter.
3. Whether there is any repugnancy between the law made by the Centre (Act of
2005) & the state (UPZALR Act, 1950)?

a. It is humbly submitted that the repugnancy between specific provisions of UPZALR

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Act and the HSA, 1956 is over the subject matter, succession. Once after the
removal ofSection 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 anyof the provisions of the HSA.
b. 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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ARGUMENTS ADVANCED

I. Whether the provisions of Hindu Succession (Amendment) Act, 2005 also

apply to the land in dispute?

1
a. In Nirmala v. Government of NCT (2010) the Delhi High Court declared that
removal of section 4(2) from HSA 1956 allows HSA to override any other law
in force before the section’s removal, in so far as that law is inconsistent with
HSA. It also mentioned that the removal of section 4(2) is very much a
conscious act of Parliament, which clearly did not want the unequal treatment of
women pronounced in the Delhi Land Reforms Act, 1954 and other similar laws
to continue.
Thus,section 6 does not exclude the agricultural land and i t is submitted
herein 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.
II. The change in entries after the enactment of the Constitution:

a. 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.

b. 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

1. 170(2010) DLT577(DB)

MEMORIAL FOR THE PETITIONER

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including the relation of landlord and tenant, and the collection of rents; transfer and
alienation of agricultural land; land improvement and agricultural loans;
colonization.

c. T hen after the commencement of the constitution, in the case of Sm. Laxmi

Debi v. Surendra Kumar Panda and Others2, the decision of Federal Court, in view
of the changed position in law, was negated by the High Court of Orissa 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.

d. In the case of Sant Ram Dass v. Gurdav Singh3 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.

e. I t is humbly submitted that it is evident from the Judgment of the Supreme

Court in Vaijanath and others v. Guramma and anr4 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.

f. In the case of Babu Ram v. Santokh Singh (deceased) through his LRs and
others5, 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

2. MANU/OR/0001/1957
3.MANU/PH/0269/1960
4.MANU/SC/0736/1998
5.MANU/SC/0396/2019

MEMORIAL FOR THE PETITIONER

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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.

g. The idea is, therefore, clear that when it comes to transfer, “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 matterwill 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.

III. Deletion of section 4(2) of the HSA, extends the provisions of HSA to agricultural
land

a. 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.

b. Similarly in the case of Shakuntala Devi vs Madan Jh66 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

6.MANU/SCOR/09283/2020.

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apply to Hindus in so far as it was inconsistent with any of the provisions of the
HSA.

c. 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
IV. Whether there is any repugnancy between law made by the Centre (Act of
2005) &the State (UP Act, 1950)?

a. 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.

b. 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, in case
of a central law, the central law will prevail.

c. 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 afterthe State law. To the extent of repugnancy, the State law is void.

d. In the case of I.T.C. Ltd. v. Agricultural Produce Market Committee7 the Supreme Court
found that when there is direct collision between an Act enacted by Parliament and a 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.

e. The Supreme Court found in Deep Chand v. State of U. P8 , that both the Acts differed
8.AIR 2002 SC 852, 894
9.AIR 1959 SC648

MEMORIAL FOR THE PETITIONER

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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.

f. 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 1 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.

g.H ence, 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).

V. DISPUTED QUESTION OF FACT :

1 . Who can sell the HUF property ?

Supreme court in catena of judgments held that only karta is legally entitled to sell
Hindu Undivided family property with the consent of other coparceners.
However, Time and again it been observed that an ancestral property cannot be sold
by the sole decision of one or part owners, since four generations have their claim over
such a property.

10
Kehar Singh (D) through legal representatives vs Nachittar Kaur Punjab and
Haryana High Court underlined Circumstances under which a father can sell a family
property-

 the Karta can make a gift of a portion of the family property for pious purposes
 for payment an antecedent debt, provided that the debt was not incurred for any
immoral or illegal purposes

10.SC [CIVIL APPEAL NO.3264 OF 2011]

MEMORIAL FOR THE PETITIONER

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 in case of legal necessity –The payment of taxes and debts, with respect to the same
property, as well as expenses incurred for the maintenance of the coparcener and other
members of the family

However, in the present case the Father of the petitioner sold the property without the
consent of the petitioner merely on the grounds that she is not a part of HUF after her
marriage and completely negating the mandate of section 6[1] of HSA which grants
married daughter status of a coparcener.

2. Can a married daughter claim share in HUF property even when the
father is alive ?

It is submitted that being the Coparcener in HUF property ,daughter too can demand
her share in HUF even when the father is alive . Thus ,the petitioner was well within
her legal rights to claim possession of her property.

3. Is.the present writ petition barred by limitation ?

It is submitted that U/a 109 of limitation act reads “By a person totally and absolutely
excluded from a joint family property to enforce a right to share therein.”
There is a limitation period of of 12 years from the day the alinee starts to reside in
the possession .Though ,it is admitted that there has been a delay of 5 years from
the day of limitation but same be condoned on the ground that the petitioner was
not informed about the said sale deed either by her Father or Kundan Singh , and it
was only in 2014 that petitioner got knowledge of the said mutation, i.e.,after 9
years from the date of mutation .Thus ,the delay be condoned .

MEMORIAL FOR THE PETITIONER

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PRAYER:

In the premises mentioned above, it is most respectfully prayed that this Hon’ble
Court may graciously be Pleased to:-
(a)declare the sale as void
(b)mutate the name of the petitioner alongwith other co -sharers instead of Kundan
Singh
(c)Pass any such order (s) as this Hon’ble Court may deem fit and proper in facts
and circumstances of case and for justice.

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)

MEMORIAL FOR THE PETITIONER