TEAM - 9

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD,

UTTAR PRADESH (CIVIL WRIT JURISDICTION)

IN THE MATTER OF:

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

VERSUS

DEPUTY DIRECTOR OF CONSOLIDATION………….....………RESPONDENT 1

KUNDAN SINGH…………………………………..……….…………RESPONDENT 2
SETTLEMENT OFFICER (CONSOLIDATION)…….………...….RESPONDENT 3
CONSOLIDATION OFFICER………….………….…………..……RESPONDENT 4
ROSHAN SINGH……….……………………………………...….….RESPONDENT 5

COUNSEL APPEARING ON MEMORANDUM ON

THE BEHALF OF RESPONDENT THE BEHALF OF RESPONDENT

Submitted By: -

Akash Verma (188263)

Examination Roll No. – 181850

Geetanjali Khurana (188211)

Examination Roll No. -- 182024

-WRITTEN SUBMISSION FOR THE RESPONDENT
 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS………………………………………...…………….3
TABLE OF AUTHORITIES………………………….…...………………………….4
STATEMENT OF FACTS............…………………….………………………….…..6
STATEMENT OF JURISDICTION………………...…………………………….…7
STATEMENT OF ISSUES…………………………………………………………...8
SUMMARY OF ARGUMENTS…………………………...………………………....9
ARGUMENTS ADVANCED………………………………...………...…………….11
PRAYER…………………………………...……………………………..……..…....32

-WRITTEN SUBMISSION FOR THE RESPONDENT

 TABLE OF ABBREVATIONS

ABBREVATIONS FULL FORMS

AIR ALL INDIA REPORTER

SC SUPREME COURT

HC HIGH COURT

& AND

Ors. OTHERS

U.P. UTTAR PRADESH

S. SECTION

HSA HINDU SUCCESSION ACT

U.P.Z.A. & L.R. THE U.P. ZAMINDARI ABOLITION

AND LAND REFORMS ACT
HON’BLE HONOURABLE

V. & Vs VERSUS

Ed. EDITION

SCC SUPREME COURT CASES

-WRITTEN SUBMISSION FOR THE RESPONDENT

 TABLE OF AUTHORITIES

CASES

1. Syed Yakoob v. KS Radhakrishnan, 1964 AIR 477, 1964 SCR (5) 64

2. Surya Dev Rai v. Ram Chander Rai and Ors, LAWS(SC)-2003-8-89
3. Maqsoodan v. State of UP, AIR 1983 SC 126
4. State of MP v. Desh Raj, (2004) 13 SCC 199
5. Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815
6. Archna vs Dy. Director of Consolidation 64999 of 2014 decided on 27 March, 2015
7. Jaswant ETC v. Smt. Basanti Devi, Order No. of 86 1968 decided on 02-04-1970
8. Vithalrao Ydhaorao Uttarwar And … v. The State of Maharashtra, AIR977 Bom 99
9. Atma Ram v. State of Punjab, 1959 AIR 519, 1959 SCR Supl. (1) 748
10. Smt. Prema Devi vs Joint Director of Consolidation, AIR 1970 All 238
11. Jagannath Bakshi Singh v. State of Uttar Pradesh, 1962 AIR 1563 1963 SCR (1) 220
12. W.B. v. Kesoram Industries Ltd., AIR 2005 SC 1646
13. Amar Singh Vs. Baldev Singh, AIR, 1960 P&H 686 (F.B.)
14. India Cement Ltd. and Ors. v. State of Tamil Nadu and Ors. [1990] 1 SCC 12
15. State of U.P. Vs. Raja Brahma Shah, AIR 1967 SC 661
16. S.P. Watel Vs. State of U.P., AIR 1973 SC 1293
17. Ram Awalamb Vs. Jata Shankar, AIR 1969 All 526
18. Dulli V.s Imarti Devi, 196G All LJ (Rev).29)
19. Parshanti v. Dy. Director of Consolidation, AIR 1999 SC 1567
20. Rajiv Sarin v. State of Uttarakhand, AIR 2011 SC 3081
21. Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, AIR 1984 SC 667
22. Gopi Chand v. Bhawani Devi, AIR 1964 Punj 272
23. Sooraj v. SDO Rehli, AIR 1995 SC 872
24. Tukaram Genba Jadhav and ORS v. Laxman Genba Jadhav and ANR. 1994 96 BOM
LR 227
25. Smt. Anjali Kaul & Anr. v. Narendra Krishna Zutshi & Others, F.A.F.O. No. 369 of
2012
26. Uma Shanker v. Dy. Director of Consolidation, 1973 All WR (HC) 214, AIR 1973 All
407
27. Ramji Dixit v. Bhiruganath, 1964 All LJ 197= (AIR 1965 All 1 (FB))

-WRITTEN SUBMISSION FOR THE RESPONDENT

 STATUTES

1. THE CONSTITUTION OF INDIA

2. THE HINDU SUCCESSION ACT, 1956
3. THE U.P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1950

TEXT-BOOKS

1. 174TH LAW COMMISSION REPORT

2. MULLA HINDU LAW 23RD EDITION
3. M.P. JAIN CONSTITUTIONAL LAW
4. R.R. MAURYA UTTARPRADESH LAND LAWS
5. LAW COMMISSION OF INDIA CONSULTATION PAPER ON REFORMS OF
FAMILY LAW

WEBSITES

1. https://indiankanoon.org/
2. https://casemine.com/
3. www.legitquest.com

-WRITTEN SUBMISSION FOR THE RESPONDENT

 STATEMENT OF FACTS

1. Petitioner (Anjali), the married daughter of the Coparcener (Roshan Singh; R5) states that
the land in dispute (7000 hectares) is situated in Uttar Pradesh & is an ancestral property.

2. After the death of her grandfather, the land was inherited by his two sons, Malik Singh and
R5 and their sons as well. All of them at that time formed the Hindu Joint Family governed
by Mitakshara law of Hindu coparcenary of which R5 was the ‘Karta’.

3. R5 executed a sale deed dated 16/11/2005, of some portions of disputed land in favour of
one Kundan Singh (R2) and his name was mutated on revenue record along with other co-
sharers.

4. All the members of the Joint Hindu Family consented to the sale deed executed in favour
of R2 except the daughter of the Karta i.e., the Petitioner. She filed an objection dated
4/4/2013 under S.9(2) of the UPCH Act,1953 for the direction to effect a partition of her ¼ th
share in the property and to delete the name of R2 from revenue record, instead add her name
along with other co sharers.

5. According to the Petitioner, the name in revenue record was mutated on the basis of a void
sale deed (dated 16/11/2005), as such the name was liable to be deleted.

6. The Consolidation officer (R4) held that the Civil Procedure Code, 1908 is not applicable
except for the land for which a declaration has been made under S.143 of the UPZALR
Act,1950, and the provisions of H.S.A, 1956 are not applicable to the agricultural land. The
petitioner being a married daughter is not an heir under S.171 of the UPZALR Act,1950.
Hence, the objection filed by the Petitioner was not maintainable and upon such findings, the
objection of the petitioner was dismissed and the land was divided amongst the on record
recorded holders of the land.

7. The Petitioner filed an appeal from the aforesaid order. Settlement Officer Consolidation
(R3) affirmed the findings of Consolidation Officer and dismissed the appeal by order dated
15/3/2014.

8. The Petitioner filed a revision against the aforesaid order, Deputy Director of
Consolidation (R1), by order dated 15/6/2014 dismissed the revision.

9. Hence, this writ petition has been filed in the Hon’ble Court challenging the order dated
15/6/2014 by the Deputy Director of Consolidation (R1).

-WRITTEN SUBMISSION FOR THE RESPONDENT

 STATEMENT OF JURISDICTION

THE HON‟BLE HIGH COURT OF JUDICATURE AT ALLAHABAD EXERCISES

JURISDICTION TO HEAR AND ADJUDICATE OVER THE MATTER UNDER
ARTICLE 226(1)1 OF THE CONSTITUTION OF INDIA, 1950.

THE RESPONDENTS HUMBLY SUBMITS TO JURISDICTION OF THE HON‟BLE

COURT WHICH HAS BEEN INVOKED BY THE PETITIONER. HOWEVER, THE
RESPONDENT RESERVES THE RIGHT TO CHALLENGE THE SAME. THE
PROVISION UNDER WHICH THE PETITIONER HAS APPROACHED THE
HONORABLE COURT IS READ HEREIN UNDER AS:

1
(1) Notwithstanding anything in article 32 every High Court shall have power, 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, prohibition, 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.

-WRITTEN SUBMISSION FOR THE RESPONDENT

 STATEMENT OF ISSUES

ISSUE 1: Whether the Writ Petition is Maintainable or not?

ISSUE 2: Who possesses the right to make law over the subject “land and land tenure”?

ISSUE 3: Is there overlapping between subjects mentioned in Entry-18 of the List-II-

State List and Entry-5 of List-III-Concurrent List? In case of overlapping, which law
will prevail?

(i) Whether the U.P. Act No. 1 is constitutionally valid or not?

ISSUE 4: Whether Hindu Succession (Amendment) Act, 2005 was enacted under
Article 253 of the Constitution and has an overriding effect?

(i) Whether Hindu Succession (Amendment) Act, 2005 was enacted in exercise of
powers under Article 253?
(ii) Whether the U.P. Act No. 1 of 1951 or Hindu Succession Act, 1956 (as amended in
2005) is applicable to agricultural land?

-WRITTEN SUBMISSION FOR THE RESPONDENT

 SUMMARY OF ARGUMENTS

ISSUE 1: Whether the Writ Petition is Maintainable or not?

It is humbly contended before the Hon’ble Court that the instant writ petition filed by the
Anjali [Hereinafter referred to as “the Petitioner”] as against the Respondents is not
maintainable before the High Court of Allahabad, as the Hon’ble Court does not have the
requisite jurisdiction to entertain the petition and no substantive question of law arises in the
present case.

ISSUE 2: Who possesses the right to make law over the subject “land and land tenure”?

It is humbly submitted to this Hon’ble Court that Entry-7 of List III –Concurrent Legislative
List of Government of India Act, 1935 used phrase “save as regards agricultural land”, from
which, it is clear that rights in or over land, and land tenures were within the exclusive
domain of State Legislature under Government of India Act, 1935. In Constitution, Entry-5 of
List III–Concurrent List, uses the phrase “all matters in respect of which parties in judicial
proceedings were immediately before the commencement of this Constitution subject to their
personal law”. From which, it has been again clarified that rights in or over land, and land
tenures were within exclusive domain of State Legislature under Entry-18 of List- II-State
List. Thus, State Legislature alone has jurisdiction to make law in respect of rights in or over
land, and land tenures, under which U.P. Act No. 1 of 19512 was enacted. The words “right
in” is a comprehensive phrase and includes right of inheritance and devolution of interest.

2
Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950

-WRITTEN SUBMISSION FOR THE RESPONDENT

ISSUE 3: Is there overlapping between subjects mentioned in Entry-18 of the List-II-
State List and Entry-5 of List-III-Concurrent List? In case of overlapping, which law
will prevail?

It is humbly submitted to this Hon’ble Court that subject “rights in or over land, and land
tenures” is mentioned in Entry-18 of List-II-State List which includes right of inheritance and
there is no overlapping of the subjects between Entry-18 of List-II-State List and Entry-5 of
List- III-Concurrent List. Under Article 246(3) of the Constitution, State Legislature alone
has jurisdiction to make law in respect of rights in or over land, and land tenures including
right of inheritance. Subject “succession” mentioned in Entry-5 of List III- Concurrent List
has a limited application as provided under Section 14 of Hindu Succession Act, 1956. Even
if it is treated that subject “succession” is falling under Entry-5 of List-III-Concurrent List,
assent of President of India has been obtained in respect of U.P. Act No. 1 of 1951 as such in
case of repugnancy also, U.P. Act No. 1 of 1951 will prevail over Hindu Succession Act,
1956 under Article 254(2) of the Constitution.

ISSUE 4: Whether Hindu Succession (Amendment) Act, 2005 was enacted under
Article 253 of the Constitution and has an overriding effect?

It is humbly submitted before this Hon’ble court that; 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 Organisation. As such Article 253 of the
Constitution has no application. The agricultural land is in exclusive domain of State
Legislature and Parliament has no power to enact any law in this respect. Section 4(2) was
only by way of clarification. On its basis, it cannot be said that after its deletion, Hindu
Succession Act, 1956 suo moto applies to agricultural land. Under Section 6, (as amended)
daughters are given right under Hindu Mitakshara Coparcenary Property alone.

-WRITTEN SUBMISSION FOR THE RESPONDENT

 ARGUMENTS ADVANCED

ISSUE 1: Whether the Writ Petition is Maintainable or not?

It is humbly contended before the Hon’ble Court that the instant writ petition filed by the
Anjali [Hereinafter referred to as “the Petitioner”] as against the Respondents is not
maintainable before the High Court of Allahabad, as the Hon’ble Court does not have the
requisite jurisdiction to entertain the petition [1.1] and NO SUBSTANTIVE QUESTION OF
LAW ARISES IN THE PRESENT CASE [1.2].

1.1) THE HON’BLE HIGH COURT OF ALLAHABAD LACKS JURISDICTION

It is submitted that the grounds for the issue of certiorari have been succinctly laid down
by the Supreme Court3 held that the writ of certiorari is issued, inter alia on the following
grounds:
a) when the body concerned proceeds to act without, or in excess of, jurisdiction, or
b) fails to exercise its jurisdiction, or
c) there is an error of law apparent on the face of the record in the impugned decision of
the body; or
d) the findings of fact reached by the inferior tribunal are based on no evidence; or
e) it proceeds to act in violation of the principles of natural justice; or
f) it proceeds to act under a law which is itself invalid, ultra vires or unconstitutional, or
g) it proceeds to act in contravention of the fundamental rights.

Supreme Court held that the writ of certiorari can be issued only when the Subordinate
Court has passed some orders without jurisdiction or in excess of its jurisdiction or acting
in fragrant disregard of the law or acting in violation of the principles of natural justice,
thereby occasioning failure of justice.4
In the present writ petition, none of the abovementioned grounds are fulfilled in order to
issue a writ of certiorari calling for records of the case. The writ petition has been filed
only with the oblique motive.

3
Syed Yakoob v. KS Radhakrishnan, 1964 AIR 477, 1964 SCR (5) 64
4
Surya Dev Rai v. Ram Chander Rai and Ors, LAWS(SC)-2003-8-89

-WRITTEN SUBMISSION FOR THE RESPONDENT

1.2) NO SUBSTANTIVE QUESTION OF LAW ARISES IN THE PRESENT CASE
It is contended by the respondents that no substantial question of law is involved in the
present case and the interference are based on pure question of fact which is entitled to be
dismissed.5
This court had laid down the test which says if the general principles to be applied in
determining the question of those principles the question would not be a substantial
question of law.
It might involve questions of law but not „substantial‟ questions of law. The present case
does not involve such „substantial‟ question of law.6

“The very conferment of the discretionary power defies any attempt at exhaustive
definition of power. The power is permitted to be invoked not in a routine fashion but in
very exceptional circumstances as when a question of law of general public importance
arises or a decision sought to be impugned before the High Court shocks the conscience.
This overriding and exceptional power has been vested in the High Court to be exercised
sparingly and only in the furtherance of cause of justice in the High Court in exceptional
cases only when special circumstances are shown to exist”.7

5
Maqsoodan v. State of UP, AIR 1983 SC 126
6
State of MP v. Desh Raj, (2004) 13 SCC 199
7
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815

-WRITTEN SUBMISSION FOR THE RESPONDENT

ISSUE 2: Who possesses the right to make law over the subject “land and land tenure”?

It is submitted that: -

2.1 Part XI, Chapter-I of the Constitution deals with legislative relations -- Distribution of
Legislative Powers. By Article 245 the territorial operation of legislative power of the
Parliament and the State Legislatures is delimited, and Article 246 distributes legislative
power subject-wise between the Parliament and the State Legislatures. Articles 247, 249,
250, 252 and 253 enact some of the exceptions to the rule contained in Article 246.
Relevant articles are quoted below: -
Article 246 - Subject-matter of laws made by Parliament and by the Legislatures of
States. –
1. Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to
make laws with respect to any of the matters enumerated in List I in the Seventh
Schedule (in this Constitution referred to as the "Union List").
2. Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the
Legislature of any State also, have power to make laws with respect to any of the
matters enumerated in List III in the Seventh Schedule (in this Constitution referred to
as the "Concurrent List").
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").
4. Parliament has power to make laws with respect to any matter for any part of the
territory of India not included in a State notwithstanding that such matter is a matter
enumerated in the State List.

Article 254 - Inconsistency between laws made by Parliament and laws made by the
Legislatures of States. –
1. If any provision of a law made by the Legislature of a State is repugnant to any
provision of a law made by Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of clause (2), the law made by
Parliament, whether passed before or after the law made by the Legislature of such
State, or, as the case may be, the existing law,

-WRITTEN SUBMISSION FOR THE RESPONDENT

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

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

2.2) Prior to the enforcement of the Constitution, field of legislature of Federal

Government and the State Government were governed under the Government of India
Act, 1935 (hereinafter referred to as the "1935 Act").
Seventh Schedule, List 2 Provincial List contained subjects for the provincial
legislature and List 3 Concurrent Legislative List contained subjects for both federal
and provincial legislatures. The relevant entries, under the. "1935 Act" are extracted
as under:
Entry-21 Provincial Legislative 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; land improvement and
agricultural loans; colonization; Court of wards; encumbered and attached estates;
treasure trove.
Entry-7 Concurrent Legislative List: Wills, intestacy and succession, save as
regards agricultural land."

2.3) Entries relevant for answering the question, under the Constitution read as
under: -
Seventh Schedule
List II - State List
"18. Land, that is to say, right 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."

-WRITTEN SUBMISSION FOR THE RESPONDENT

 List III - Concurrent List.
"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."

2.4) Entry-7 of List III --Concurrent Legislative List of Government of India Act, 1935
used phrase "save as regards agricultural land", from which, it is clear that rights in or
over land, and land tenures were within exclusive domain of State Legislature under
Government of India Act, 1935. In Constitution, Entry-5 of List III --Concurrent
List, uses phrase "all matters in respect of which parties in judicial proceedings were
immediately before the commencement of this Constitution subject to their personal
law". From which, it has been again clarified that rights in or over land, and land
tenures was within exclusive domain of State Legislature under Entry-18 of List-II-
State List. Thus, State Legislature alone has jurisdiction to make law in respect of
rights in or over land, and land tenures, under which U.P. Act No. 1 of 1951 was
enacted. The words "right in" is a comprehensive phrase and includes right of
inheritance and devolution of interest.8

2.5) It is necessary to advert to entry No. 18 in List II and entries Nos. 5 and 6 in List III of
the Vll-Schedule. For facility of reference, those entries are reproduced below:

List II--Entry No. 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 improvement and agricultural loans; colonization.
List III--Entry No. 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.
Entry No. 6... Transfer of property other than agricultural land; registration of deeds
and documents.

8
Archna vs Dy. Director of Consolidation 64999 of 2014 decided on 27 March, 2015

-WRITTEN SUBMISSION FOR THE RESPONDENT

 The question of the applicability of the Hindu Succession Act to agricultural lands in
the matter of succession and I compared the language of entry No. 18 of List II of the
Constitution of India with its counter-part in the Government of India Act, 1935,
namely, entry No. 21. I pointed out that there were material differences in the
language of these two entries because devolution had been taken out from the said
entry and put in the concurrent entry No. 5 of List III which enabled the Central
Parliament to legislate regarding succession. But that is not so in the case of
agricultural land. Entry No. 6 of List III, when read, points out that the Central
Parliament has no jurisdiction to legislate over agricultural lands beyond the power it
has under entry No. 5 of List III, that is, regarding devolution.9

2.6) Under the Constitution the supportive Legislative entries for all these are in List II of
Seventh Schedule at Item 14 regarding agriculture, Item 18 regarding land and in List
III at Item 42 regarding acquisition and requisitioning of property. Those entries read
with Article 245 of the Constitution permit the State Legislature to enact laws
regarding land and rights in or over land as well transfer and alienation of agriculture
land. Further it enables the State to make laws regarding the acquisition and
requisitioning of immovable property like land.10
2.7) It will be noticed that the Entry read along with Art. 246(3) of the Constitution, has
vested exclusive power in the State to make laws with respect to " rights in or over
land tenures including the relation of landlord and tenant........ The provisions of the
Act set out above, deal with the landlord's rights in land in relation to his tenant, so as
to modify the landlord's rights in land, and correspondingly, to expand the tenant's
rights therein. Each of the expressions " rights in or over land " and " land tenures ", is
comprehensive enough to take in measures of reforms of land tenures, limiting the
extent of land in cultivating possession of the land-owner, and thus, releasing larger
areas of land to be made available for cultivation by tenants.11

9
Jaswant ETC v. Smt. Basanti Devi, Order No. of 86 1968 decided on 02-04-1970
10
Vithalrao Ydhaorao Uttarwar And … v. The State of Maharashtra, AIR977 Bom 99
11
Atma Ram v. State of Punjab, 1959 AIR 519, 1959 SCR Supl. (1) 748

-WRITTEN SUBMISSION FOR THE RESPONDENT

2.8) In List 2, Entry No. 18 is as follows: -- "Land, that is to say, right 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." This entry which is in the exclusive jurisdiction of the State Legislature
is in the widest term. All laws relating to land and land tenures are therefore, within
the exclusive jurisdiction of the State Legislature. Even personal law can become
applicable to land tenures if so, provided in the State Law, but it cannot override State
legislation.12

2.9) Entry 18 deals with four main topics: land, transfer and alienation of agriculture land,
land improvement and agricultural loans and colonization. The words ‘rights in’ or
‘over land’ confer very wide power on the State Legislature.13

12
Smt. Prema Devi vs Joint Director of Consolidation, AIR 1970 All 238
13
Jagannath Bakshi Singh v. State of Uttar Pradesh, 1962 AIR 1563 1963 SCR (1) 220

-WRITTEN SUBMISSION FOR THE RESPONDENT

ISSUE 3: Is there overlapping between subjects mentioned in Entry-18 of the List-II-
State List and Entry-5 of List-III-Concurrent List? In case of overlapping, which law
will prevail?

3.1) The legislative field between Parliament and the legislature of any State is divided by
Article 246 of the Constitution. Parliament has exclusive power to make laws with
respect to any of the matters enumerated in List I in the Seventh Schedule, called the
"Union List". Subject to the said power of Parliament, the legislature of any State has
power to make laws with respect to any of the matters enumerated in List III, called
the "Concurrent List". Subject to the abovesaid two, the legislature of any State has
exclusive power to make laws with respect to any of the matters enumerated in List II,
called the "State List". Under Article 248 the exclusive power of Parliament to make
laws extends to any matter not enumerated in the Concurrent List or State List. This
is, what is called the residuary power, vested in Parliament. The principles
summarised, as are relevant for this case, are quoted below: -
(1) The various entries in the three lists are not "powers" of legislation but "fields" of
legislation. The Constitution effects a complete separation of the taxing power of the
Union and of the States under Article 246.
(2) In spite of the fields of legislation having been demarcated, the question of
repugnancy between law made by Parliament and a law made by the State Legislature
may arise only in cases when both the legislation occupy the same field with respect
to one of the matters enumerated in the Concurrent List and a direct conflict is seen. If
there is a repugnancy due to overlapping found between List II on the one hand and
List I and List III on the other, the State law will be ultra vires and shall have to give
way to the Union law.
(3) The entries in the lists being merely topics or fields of legislation, they must receive a
liberal construction inspired by a broad and generous spirit and not in a narrow
pedantic sense. The words and expressions employed in drafting the entries must be
given the widest-possible interpretation. The allocation of the subjects to the lists is
not by way of scientific or logical definition but by way of a mere simplex
enumeration of broad categories. A power to legislate as to the principal matter
specifically mentioned in the entry shall also include within its expanse the
legislations touching incidental and ancillary matters.

-WRITTEN SUBMISSION FOR THE RESPONDENT

 (4) Where the legislative competence of the legislature of any State is questioned on the
ground that it encroaches upon the legislative competence of Parliament to enact a
law, the question one has to ask is whether the legislation relates to any of the entries
in List I or III. If it does, no further question need be asked and Parliament's
legislative competence must be upheld. Where there are three lists containing a large
number of entries, there is bound to be some overlapping among them. In such a
situation the doctrine of pith and substance has to be applied to determine as to which
entry does a given piece of legislation relate. Once it is so determined, any incidental
trenching on the field reserved to the other legislature is of no consequence. The court
has to look at the substance of the matter. The doctrine of pith and substance is
sometimes expressed in terms of ascertaining the true character of legislation. The
name given by the legislature to the legislation is immaterial. Regard must be had to
the enactment as a whole, to its main objects and to the scope and effect of its
provisions. Incidental and superficial encroachments are to be disregarded.
(5) The doctrine of occupied field applies only when there is a clash between the Union
and the State Lists within an area common to both. There the doctrine of pith and
substance is to be applied and if the impugned legislation substantially falls within the
power expressly conferred upon the legislature which enacted it, an incidental
encroaching in the field assigned to another legislature is to be ignored. While reading
the three lists, List I have priority over Lists III and II and List III has priority over
List II. However, still, the predominance of the Union List would not prevent the
State Legislature from dealing with any matter within List II though it may
incidentally affect any item in List I.14

3.2) In view of the aforesaid principles the words "right in or over the land and land
tenure" have to be given widest-possible interpretation and include "right of
inheritance" also. Arguments of the counsel for the petitioner that the word
"succession", under Entry-5 of List III − Concurrent List covers subject inheritance of
"rights in or over land and land tenure" also, is not liable to be accepted. Entry-5 of
List III -- Concurrent List, uses phrase "all matters in respect of which parties in
judicial proceedings were immediately before the commencement of this Constitution
subject to their personal law". Thus, applicability of personal law of succession is

14
W.B. v. Kesoram Industries Ltd., AIR 2005 SC 1646

-WRITTEN SUBMISSION FOR THE RESPONDENT

 limited in respect of which judicial proceeding were pending immediately before the
commencement of this Constitution. There is nothing on record to show that right of
the parties over the land in dispute was subject to personal law or any judicial
proceeding was pending on 26.01.1950, in respect of it. It covers the matter of Section
14 of Hindu Succession Act, 1956 as held by Punjab and Haryana High Court15 that
Section 14 of Hindu Succession Act, 1956, which enlarged the widow's interest in
agricultural land is within the domain of Entry-5 of List III Concurrent List.

3.3) A bench of seven judges held that "entries in the three lists of the Seventh Schedule to
the Constitution, are legislative heads or fields of legislation. These demarcate the
area over which appropriate legislature can operate. It is well settled that widest
amplitude should be given to the language of these entries but some of these entries’
indifferent lists or in the same list may overlap and sometimes may also appear to be
in direct conflict with each other. Then, it is the duty of the court to find out its true
intent and purpose and to examine a particular legislation in its pith and substance to
determine whether it fits in one or the other of the Lists, The Lists are designed to
define and delimit the respective areas of respective competence of the Union and the
States. They neither impose any implied restriction on the legislative power conferred
by Article 246 of the Constitution, nor prescribe any duty to exercise that legislative
power in any particular manner. Hence, the language of the Entries should be given
widest scope to find out which of the meaning is fairly capable in the set-up of the
machinery of the government. Each general word should be held to extend to all
ancillary or subsidiary matters which can fairly and reasonably be comprehended in it.
In interpreting an Entry, it would not be reasonable to impart any limitation by
comparing or contrasting that Entry with any other one's in the same list.16

15
Amar Singh Vs. Baldev Singh, AIR, 1960 P&H 686 (F.B.)
16
India Cement Ltd. and Ors. v. State of Tamil Nadu and Ors. [1990] 1 SCC 12

-WRITTEN SUBMISSION FOR THE RESPONDENT

3.4) Whether the U.P. Act No. 1 is constitutionally valid or not?

The object of enactment of U.P. Act No. 1 of 1951 as declared by its long title is to
provide for abolition of Zamindari system involving intermediaries between the tiller
of the soil and the State, for acquisition of their rights, title and interest and to reform
the law relating to land tenure consequent upon such abolition and acquisition. In
order to secure the purpose of land reform, various provisions have been made to
ensure that soil must go to the actual tiller. Section 9 and Section 123 confer absolute
right to the actual occupier of the land of abadi etc. while tenurial right of
(1) bhumidhar with transferable right,
(2) bhumidhar with non-transferable right
(3) asami and
(4) government lessee has been conferred under other provisions.

The object that soil must go to the actual tiller has been applied in cases of inheritance
and devolution of interest also. Under some contingency widow and daughter are
given right of inheritance but on their remarriage/ marriage, they are divested under
Section 172 of the Act. From the time immemorial, society in our country is
patriarchal society, where daughter/ woman has to go to the house of her husband on
marriage, where she forms a new family. Law makers were conscious with the
situation of marriage of daughter/woman and patriarchal system of the society. It was
kept in mind while enacting Section 171 and Section 172 of U.P. Act No. 1 of 1951
that after marriage it would not be practicable for a woman to cultivate land at two
places as such after marriage/remarriage, women are divested.

U.P. Act No. 1 of 1951 is preserved under Ninth Schedule of the Constitution at Serial
No. 11 and is protected under Article 31-A of the Constitution as such its validity
cannot be challenged on the ground of Article 13 of the Constitution. Constitutional
validity of this Act has been upheld time to time by Constitutional Benches of
Supreme Court.1718

17
State of U.P. Vs. Raja Brahma Shah, AIR 1967 SC 661
18
S.P. Watel Vs. State of U.P., AIR 1973 SC 1293

-WRITTEN SUBMISSION FOR THE RESPONDENT

3.5) These conclusions are taken from the Full Bench of this Court19: -
1.) Where members of a joint Hindu Family hold bhumidhari rights in any holding,
they hold the same as tenants in common and not as joint tenants. The notions of
Hindu Law cannot be invoked to determine that status.
2.) Where in certain class of tenancies, such as permanent tenure holders, the interest
of a tenant was both heritable and transferable in a limited sense and such a
tenancy could, prior to the enforcement of the Act, be described as joint family
property or coparcenary property, the position changed after Act I of 1951 came
into force. Thereafter the interest of each bhumidhar being heritable only
according to the order of succession provided in the Act and transferable without
any restriction other than mentioned in the Act itself, must be deemed to be a
separate unit.
3.) Each member of a joint Hindu family must be considered to be a separate unit for
the exercise of the right of transfer and also for the purposes of devolution of
bhumidhar interest of the deceased member.
4.) The right of transfer of each member of the joint Hindu family of his interest in
bhumidhari land is controlled only by Section 152 of the Act and by no other
restriction. The provisions of Hindu law relating to restriction on transfer of
coparcenary land, e.g., existence of legal necessity, do not apply. (Mulla's Hindu
Law)

3.6) It can be safely inferred from Section 175 of the Act that where there are more than
one bhumidhar in any holding all the co-bhumidhars shall be tenants in common and
not joint tenants. That provision of law is applicable to the members of a joint Hindu
family having interest in bhumidhari rights. The interest of each person in bhumidhari
land passes according to the order of succession given in Sections 171 to 174 of the
Act and not by survivorship. The principle of survivorship amongst co-widows and
co-bhumidhars can apply only when there is failure of heirs as mentioned in Sections
171 to 174.20

19
Ram Awalamb Vs. Jata Shankar, AIR 1969 All 526
20
Dulli V.s Imarti Devi, 196G All LJ (Rev).29)

-WRITTEN SUBMISSION FOR THE RESPONDENT

3.7) A Hindu widow, who after the death of her husband remarries another person, cannot
lay a claim to the property of her son through the first marriage in agricultural land in
the general law under the Hindu Succession Act, 1956 as the provisions of Section
171(b) of the U.P. Act No. 1 of 1951,being a special Act, are applicable.21
3.8) As held above, subject "rights in or over land, and land tenures" is mentioned in
Entry-18 of List-II-State List which includes right of inheritance and there is no
overlapping of the subjects between Entry-18 of List-II-State List and Entry-5 of List-
III-Concurrent List. Under Article 246 (3) of the Constitution, State Legislature alone
has jurisdiction to make law in respect of rights in or over land, and land tenures
including right of inheritance. Subject "succession" mentioned in Entry-5 of List III-
Concurrent List has a limited application as provided under Section 14 of Hindu
Succession Act, 1956. Even if it is treated that subject "succession" is falling under
Entry-5 of List-III-Concurrent List, assent of President of India has been obtained in
respect of U.P. Act No. 1 of 1951 as such in case of repugnancy also, U.P. Act No. 1
of 1951 will prevail over Hindu Succession Act, 1956 under Article 254 (2) of the
Constitution.
3.9) Validation of President’s Assent: -
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.22
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.

21
Parshanti v. Dy. Director of Consolidation, AIR 1999 SC 1567
22
Rajiv Sarin v. State of Uttarakhand, AIR 2011 SC 3081

-WRITTEN SUBMISSION FOR THE RESPONDENT

ISSUE 4: Whether Hindu Succession (Amendment) Act, 2005 was enacted under
Article 253 of the Constitution and has an overriding effect?

4.1) 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. Article 253 of Constitution is quoted below: -

Article 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.

4.2) Whether Hindu Succession (Amendment) Act, 2005 was enacted in exercise of
powers under Article 253?
In order to appreciate aforesaid arguments, aims and object as given by Parliament for
enactment of Hindu Succession (Amendment) Act, 2005 is quoted below: -
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 Organisation. As such Article 253 of the

-WRITTEN SUBMISSION FOR THE RESPONDENT

 Constitution has no application. There can be no question that nations must march
with the international community and the municipal law must respect rules of
international law even as nations respect international opinion. The comity of nations
requires that rules of international law may be accommodated in the municipal law
even without express legislative sanction provided they do not run into conflict with
Acts of Parliament. But when they do run into such conflict, the sovereignty and the
integrity of the Republic and the supremacy of the constituted legislatures in making
the laws may not be subjected to external rules except to the extent legitimately
accepted by the constituted legislatures themselves. The doctrine of incorporation also
recognises the position that the rules of international law are incorporated into
national law and considered to be part of the national law, unless they are in conflict
with an Act of Parliament. Comity of nations or no, municipal law must prevail in
case of conflict. National courts cannot say yes if Parliament has said no to a principle
of international law. National courts will endorse international law but not if it
conflicts with national law. National courts being organs of the national State and not
organs of international law must perforce apply national law if international law
conflicts with it. But the courts are under an obligation within legitimate limits, to so
interpret the municipal statute as to avoid confrontation with the comity of nations or
the well-established principles of international law. But if conflict is inevitable, the
latter must yield.23

23
Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, AIR 1984 SC 667

-WRITTEN SUBMISSION FOR THE RESPONDENT

4.3) Whether the U.P. Act No. 1 of 1951 or Hindu Succession Act, 1956 (as amended in
2005) is applicable to agricultural land?

Section 4 - Overriding effect of Act

1) 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.
(Omitted)24

AGRICULTURE LAND: COMMENTARY ON OMITTED SUB-SECTION (2)

(1) There is considerable legislation by various states, aimed at prevention of
fragmentation of agricultural holdings and securing their consolidation and for the
purpose of fixing ceilings and devolution of holdings. The deleted sub-section was
not intended to override or disturb such legislation. Different states have their own
land policy, which is not uniform throughout the country, therefore the sub-
section left such state legislations undisturbed. It was as explained above, only
those matters that were mentioned in the sub-section that were saved from the
operation of the Act and not the right to succeed to agricultural lands. The Delhi
Land Reforms Act had been held as not being one for the prevention of
fragmentation of land holdings, and therefore not saved by the sub-section.25

24
Sub-section (2) omitted by Act of 2005(w.e.f. 9-9-2005)
25
Gopi Chand v. Bhawani Devi, AIR 1964 Punj 272

-WRITTEN SUBMISSION FOR THE RESPONDENT

 (2) The effect of the deleted sub-section was that where tenancy or land tenure
legislation made a special provision for devolution of rights to lands, those would
prevail and in that event the provisions of this Act would be inapplicable to such
devolution. If, however, the land tenure legislation made the personal law of the
parties applicable, the provisions of this Act were to apply. If, however state
legislation made a specific provision as to the mode of devolution and also
specified the shares, this Act would not apply. 26

(3) The Bombay high court relying on the judgement of the SC in accounts….
observed that the section 4(2) of the act of 1956 entailed that, except for
fragmentation of agriculture holdings or fixation of ceilings of devolution of
tenancy rights in respect of agriculture holdings, act 1956 applied to agriculture
lands as well. If, however there was a local law dealing with the specific provision
carved out in section 4(2) then the local law will prevail unaffected by the
provisions of the act 1956.27

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.

After amendment by Act 39 of 2005,

Section 6 read as: -
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;

26
Sooraj v. SDO Rehli, AIR 1995 SC 872
27
Tukaram Genba Jadhav and ORS v. Laxman Genba Jadhav and ANR. 1994 96 BOM LR 227

-WRITTEN SUBMISSION FOR THE RESPONDENT

 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.
2. Any property to which a female Hindu becomes entitled by virtue of sub-section (1)
shall be held by her with the incidents of coparcenary ownership and shall be
regarded, notwithstanding anything contained in this Act, or any other law for the
time being in force, as property capable of being disposed of her by testamentary
disposition.
3. Where a Hindu die after the commencement of the Hindu Succession (Amendment)
Act, 2005, his interest in the property of a Joint Hindu Family governed by the
Mitakshara law, shall devolve by testamentary or intestate succession, as the case
may be, under this Act and not by survivorship, and the coparcenary property shall be
deemed to have been divided as if a partition had taken place and: -
a) the daughter is allotted the same share as is allotted to a son;
b) the share of the pre-deceased son or a pre-deceased daughter, as they would
have got had they been alive at the time of partition, shall be allotted to the
surviving child of such pre-deceased son or of such pre-deceased daughter;
and
c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased
daughter, as such child would have got had he or she been alive at the time of
the partition, shall be allotted to the child of such pre-deceased child of the
pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation: -For the purposes of this sub-section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been
allotted to him if a partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim partition or not.
4. After the commencement of the Hindu Succession (Amendment) Act, 2005, no court
shall recognise any right to proceed against a son, grandson or great grandson for
the recovery of any debt due from his father, grandfather or great grandfather solely

-WRITTEN SUBMISSION FOR THE RESPONDENT

 on the ground of the pious obligation under the Hindu law, or such son, grandson or
great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the
Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall
effect: -
a) the right of any creditor to proceed against the son, grandson or great-
grandson, as the case may be; or
b) any alienation made in respect of or in satisfaction of, any such debt, and
any such right or alienation shall be enforceable under the rule of pious
obligation in the same manner and to the same extent as it would have
been enforceable as if the Hindu Succession (Amendment) Act, 2005 had
not been enacted.
Explanation: -For the purposes of clause (a), the expression "son", "grandson" or
"great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as
the case may be, who was born or adopted prior to the commencement of the Hindu
Succession (Amendment) Act, 2005.
5. Nothing contained in this section shall apply to a partition, which has been affected
before the 20th day of December, 2004.
Explanation: -For the purposes of this section "partition" means any partition made
by execution of a deed of partition duly registered under the Registration Act, 1908
(16 of 1908) or partition effected by a decree of a court.

Thus, combined reading of the Section 4 and Section 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. Section 4 (2) was only by way
of clarification. On its basis, it cannot be said that after its deletion, Hindu
Succession Act, 1956 suo moto applies to agricultural land. Under Section 6,
(as amended) daughters are given right under Hindu Mitakshara
Coparcenary Property alone.28

28
Archna v. Dy. Director of Consolidation, Decided on 27 March, 2015

-WRITTEN SUBMISSION FOR THE RESPONDENT

4.4) In the first place, we are of the opinion that the Hindu Succession Act, 1956, cannot
be made applicable to agricultural plots.
This Act was passed by the Central Legislature in 1956 and the only entry under
which the Central Legislature had the jurisdiction to pass the Act, was entry No. 5 in
the third list of the Seventh Schedule of the Constitution.
This entry is as follows: -- "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."
This entry obviously relates only to personal law and laws passed under this entry do
not apply to any particular property. They merely determine the personal law.
In List 2, Entry No. 18 is as follows: -- "Land, that is to say, right 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."
This entry which is in the exclusive jurisdiction of the State Legislature is in the
widest term. All laws relating to land and land tenures are therefore, within the
exclusive jurisdiction of the State Legislature. Even personal law can become
applicable to land tenures if so, provided in the State Law, but it cannot override State
legislation.
It is noteworthy that in List 3 wherever the entry relates to rights in land
'agricultural land' as follows: -- "Contracts, including partnership, agency,
contracts of carriage, and other special forms of contracts, but not including
contracts relating to agriculture land.”
“There is a general presumption that a Legislature does not intend to exceed its
jurisdiction. When a Legislature with limited and restricted powers makes use of a
word of such wide and general import as "property", the presumption must surely be
that it is using it with reference to that kind of property with respect to which it is
competent to legislate and to no other.................."
The Hindu Succession Act, 1956, was passed merely to alter the personal law of
succession applicable to Hindus. It had no reference to any kind of property in
particular and was not meant to govern rights in agricultural tenancies.29

29
Smt. Prema Devi vs Joint Director of Consolidation, AIR 1970 All 238

-WRITTEN SUBMISSION FOR THE RESPONDENT

4.5) It needs hardly be said that U.P.Z.A. & L.R. Act is a special Act where provisions of
Hindu Succession Act are not applicable in as much as rights of the parties are
governed by U.P.Z.A. & L.R. Act. The U.P.Z.A. & L.R. Act is a self-contained Code.
We have discussed above that personal law is not applicable to the immovable
property covered under U.P.Z.A. & L.R. Act. In view of the above, learned courts
below have rightly held that defendant No. 1 being the bhoomidhar of the land has a
right to sell his bhoomidhari property.30

4.6) Section 4(2) of the Hindu Succession Act, 1956, which provides:
“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 celling or for the devolution of tenancy rights in respect of such holdings”
The division bench held that Bhumidhari right are tenancy rights in respect of
agricultural holding and the provisions Hindu Succession Act of 1956 cannot affect
the provisions of U.P.Z.A. & L.R. Act in respect of devolution of tenancy rights of
Bhumidhari holdings. In that case the question was of intestate succession, ant! the
bench held that the provisions of sections 171 to 175 have an overriding effect and
nothing in the Hindu Succession Act can take away their effect.31

4.7) An agricultural tenant has no religion and no personal law except as expressly
provided in the Zamindari Abolition and Land Reforms Act. It applies to Hindus,
Muslim, Christians etc. regardless of their religion and, therefore, regardless of their
personal law except as regards succession in certain cases. It contains its own
provisions regarding inheritance and transfers; and when it has left certain matters to
be governed by the personal law it has done so by an express provision. Personal law
has never been applied proprio vigor to questions of inheritance and transfer of
tenancy rights as it has been applied to inheritance and transfer of proprietary rights.32

30
Smt. Anjali Kaul & Anr. v. Narendra Krishna Zutshi & Others, F.A.F.O. No. 369 of 2012
31
Uma Shanker v. Dy. Director of Consolidation, 1973 All WR (HC) 214, AIR 1973 All 407
32
Ramji Dixit v. Bhiruganath, 1964 All LJ 197= (AIR 1965 All 1 (FB))

-WRITTEN SUBMISSION FOR THE RESPONDENT

 PRAYER

Wherefore in the light of issues raised, arguments advanced, the respondent humbly prays
before the Hon’ble High Court to adjudge and declare that:

1. That the Writ Petition before this court is not maintainable.

2. That the provisions of Hindu Succession Act (Amended 2005), 1956 are not
applicable to the agricultural land.

3. That the sale deed dated 16.11.2005 in favour of Kundan Singh and on its basis name
of Kundan Singh was mutated in the revenue record by order dated 20.12.2005 is
valid.

And any other relief that the Hon’ble Court may be pleased to grant in the interest of
justice, equity and good conscience.
All of which is humbly submitted.

RESPECTFULLY SUBMITTED

COUNSEL(S) FOR THE RESPONDENT

-WRITTEN SUBMISSION FOR THE RESPONDENT