Case Study: Archana v. Dy Director of Consolidation, Amroha & amp; Ors.

By Reema Gidwani 7 Minutes Read

Citation: Civil Misc. WP No. 64999 of 2014

Date of Judgement: 27th March, 2015

Bench: J. Ram Surat Ram (Maurya)

Facts:

  • In 1989, Hardeo Singh, grandfather of Archna the petitioner left behind the ancestral property which was then inherited by his sons and their sons.
  • The inheritors of ancestral property, Uttam Singh and Khajan Singh and their sons, converted the property into the Joint Hindu Family property of which Uttam Singh was ‘Karta’ who acted as such up to 1989.
  • Khajan Singh and Uttam Singh executed sale-deeds dated 14.11.2005 in favor of Veer Singh and on its basis name of Veer Singh was mutated in the revenue record by order dated 19.12.2005.
  • In 2013, Archna filed the petition against the sale deed executed by Uttam Singh on the basis of amendment of sec 2(5) Hindu Succession act 2005, which states that the petitioner has become a co-parcener along with her father and brothers.
  • The land in dispute was agricultural land and the provisions of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as U.P. Act No. 1 of 1951) are applicable over it.

Judgment:

  • The petitioner was a co-parcener of the disputed land as such her objection was maintainable under the Act. Orders of consolidation authorities are illegal and liable to be set aside.
  • Sec 171 of U.P. Act No. 1 of 1951 makes gender discrimination between descendants of a tenure holder, in respect of inheritance and is void under Article 13 of Constitution of India as it abridges the right of equality of daughter in respect of inheritance in agricultural land and contravenes Articles 14 and 15 of Constitution of India. Under the law, Joint Hindu Family Property is a trust for the benefits of the members, living and to be born.
  • Therefore sale deed dated 14-11-2005 in favor of Veer Singh was void.

Key Law Points:

1. Who possesses the right to make law over the subject “land and land tenure”?

State Legislature.

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 1951 was enacted. The words “right in” is a comprehensive phrase and includes right of inheritance and devolution of interest.

2. Is there overlapping between subjects mentioned in Entry-18 of List-II-State List and Entry-5 of List-III-Con-current List? If there is overlapping which law will prevail?

No, however, if there will be any overlapping U.P. Act No. 1 of 1951 will prevail over Hindu Succession Act, 1956 under Article 254(2) of the Constitution.

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 Ill- 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. Whether Hindu Succession (Amendment) Act, 2005 was enacted in exercise of powers under Article 253 of the Constitution and has an overriding effect?

Yes.

Union of India participated in World Conference on Human Rights in Vienna, on 25.6.1993, and made a declaration to eradicate all forms of discrimination against women up to the year 2000. In pursuance of the above declaration, the Law Commission of India made a detailed survey for awarding property right to women and reform under Hindu Law. , Law Commission recommended deleting Sec 4(2) of Hindu Succession Act, 1956, so that the provisions of Hindu Succession Act, 1956 will apply to agricultural land also as an actual contribution of the women in the cultivation of agricultural land was found more than the men as such it was thought proper to give equal right of inheritance to women for agricultural land also. In any case, Hindu Succession (Amendment) Act, 2005 was enacted to fulfill the declaration made before United Nations Organization as well as Art 51(c) as such it will have an overriding effect under Art 253 of the Constitution.

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