WP(C) No.6435/07 Page No.1 of 22
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 04.06.2010
+ WP (C) 6435/2007
NIRMALA & OTHERS … Petitioners
versus
GOVERNMENT OF NCT OF DELHI & OTHERS … Respondents
Advocates who appeared in this case:-
For the Petitioners : Mr Vinod Sehrawat
For the Respondent No.1 : Mr A.K. Gupta
For the Respondent Nos.3 & 4 : Mr Anshu Mahajan
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MS JUSTICE VEENA BIRBAL
1. Whether Reporters of local papers may be allowed to
see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
BADAR DURREZ AHMED, J
1. Through this writ petition, the petitioners are seeking a direction
for quashing / setting aside Section 50 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as „the DLR Act‟) as being violative of Articles 14, 16 and 19 of the Constitution of India, and also being impliedly repealed by the Hindu Succession (Amendment) Act, 2005.
The petitioners are also
seeking a direction to the respondents to mutate the disputed agricultural
land left by the deceased husband of petitioner No. 1, equally, in favour of
the petitioners and respondent Nos. 3, 4 and 5.WP(C) No.6435/07 Page No.2 of 22
2. The petitioners herein are the widow (petitioner no. 1) and two
minor daughters (petitioner Nos. 2 and 3) of Late Shri Inder Singh, the
owner of the disputed land, who died intestate on 15.12.2006.
Prior to his marriage with petitioner No.1 (Nirmala), Late Shri Inder Singh was married
to another lady called Nirmla (shown as Nihali Devi in the counteraffidavit), with whom he had two sons and a daughter.
He married petitioner no. 1 in 1997, after the death of his first wife in 1995. Respondent Nos. 3, 4 and 5 are the children of Late Shri Inder Singh and his first wife.
3. Late Shri Inder Singh had bhumidhari rights in respect of
agricultural land to the extent of 1/6th share in Khata No. 136/132 consisting
of Kh. No. 30/24 (4-16) and Kh. No. 31/13/1/2 (1-8) ad-measuring 6 Bighas
4 Biswas and 1/6th share in Khata No. 78/76 consisting of Kh. No. 35/1 (4-
16), 35/2 (4-16), 9/1 (3-14), 10 (4-15), 27 (0-3), 36/4/2 (3-10), 5/2 (4-4), 6
(4-16), 7/2 (2-12), 14/1/2 (1-4), 54/45 (0-18) and 51 (0-2) ad-measuring 35
Bighas 10 Biswas. The total agricultural land ad-measuring 41 Bighas 14
Biswas (hereinafter referred to as the disputed agricultural land) is situated
in the revenue estate of village Tazpur Kalan, Delhi.
4. After the death of Late Shri Inder Singh on 15.12.2006,
petitioner no. 1 moved an application before the concerned Tehsildar on 05.02.2007, to mutate the above-mentioned disputed agricultural land in favour of the petitioners, but he refused to do so in view of Section 50 of the DLR Act.
Being aggrieved by the decision of the Tehsildar, petitioner no. 1
called a meeting of the Panchayat of the village and in that meeting dated
12.02.2007, it was unanimously decided by the Panchayat as well as by
respondent Nos. 3-5, that the petitioners be allotted 1/3rd share in the
disputed agricultural land holdings owned by the deceased Shri Inder Singh.
In pursuance of this decision, the petitioners were given possession of their
share.
But even then, respondent Nos. 3-5 were creating hindrances and not
allowing the petitioners to work in their fields properly.
Petitioner no. 1 also
approached the concerned S.D.M and Deputy Commissioner of the area in
March 2007, but her application was not entertained.
Hence, the present writ petition was filed in August 2007.
5. Before we consider the issue at hand, it would be pertinent to set
out the legislative developments.
The DLR Act came into force on
20.07.1954. Its preamble states that it is “[a]n Act to provide for
modification of zamindari system so as to create an uniform body of
peasant proprietors without intermediaries, for the unification of the
Punjab and Agra systems of tenancy laws in force in the State of Delhi and
to make provision for other matters connected therewith”. Section 50 of the
Act provided that only male members of a family had the primary right of
succession to agricultural land; it excluded female members from
succeeding to such land holdings when male lineal descendants were
available. Section 50 of the DLR Act is reproduced hereunder:
“50. General order of succession from males. - Subject
to the provisions of section 48 and 52, when a Bhumidhar
or Asami being a male dies, his interest in his holding shall
devolve in accordance with the order of the succession
given below:WP(C) No.6435/07 Page No.4 of 22
(a) Male lineal descendants in the male line of the
descent :
Provided that no member of this class shall inherit
if any male descendant between him and the deceased is
alive:
Provided further that the son or sons of a
predeceased son howsoever low shall inherit the share
which would have devolved upon the deceased if he had
been then alive:
(b) Widow
(c) Father
(d) Mother, being a widow;
(e) Step mother, being a widow;
(f) Father‟s father
(g) Father‟s mother, being a widow;
(h) Widow of a male lineal descendant in the male
line of descent;
(i) Brother, being the son of same father as the
deceased;
(k) Unmarried sister;
(l) Brother‟s son, the brother having been a son of the
same father as the deceased;
(m) Father‟s father‟s son;
(n) Brother‟s son‟s son;
(o) Father‟s father‟s son‟s son;
(p) Daughter‟s son.”
6. Thus, clause (a) of Section 50 requires that whenever a male
bhumidhar or asami dies, the property shall first devolve upon the male lineal descendants in the male line of descent, howsoever low to the exclusion of female descendants. Given the fact that the chances of there being no male lineal descendants at all are extremely low, the property in all likelihood will not devolve upon the female descendants in any case.
7. The Hindu Succession Act, 1956 (hereinafter referred to as „the
HSA‟) was passed and came into force on 17.06.1956.
The preamble of the HSA emphasized that it was ‘[a]n Act to amend and codify the law relating
to intestate succession among Hindus’.
However, Section 50 of the DLR Act was protected by Section 4(2) of the HSA which made it clear that
nothing contained in the HSA would affect any provision of law for the time being in force which provided for the prevention of fragmentation of agricultural holdings or for the fixation of ceiling or for the devolution of tenancy rights in respect of such holdings. Section 4(2) of the HSA is
reproduced hereunder:
“4. Overriding effect of Act.
(1) xxxx xxxx xxxx xxxx xxxx
(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.”
8. In 1964, the DLR Act was placed in the Ninth Schedule of the
Constitution of India (Entry 61), by virtue of the Constitution (Seventeenth
Amendment) Act, 1964, with effect from 20th June 1964.
Article 31B of the
Constitution provides that no Act that has been placed in the Ninth Schedule
can be the subject matter of challenge on the ground that it is inconsistent
with or takes away or abridges any of the rights conferred by the provisions
of Part III of the Constitution.
Article 3IB reads as under:-
“Art. 31B. Validation of certain Acts and Regulations.-
Without prejudice to the generality of the provisions contained
in Article 31A, none of the Acts and Regulations specified in
the Ninth Schedule nor any of the provisions thereof shall be
deemed to be void, or ever to have become void, on the ground
that such Act, Regulation or provision is inconsistent with, or
takes away or abridges any of the rights conferred by, any
provisions of this Part, and notwithstanding any judgment, WP(C) No.6435/07 Page No.6 of 22
decree or order of any court or tribunal to the contrary, each of
the said Acts and Regulations shall, subject to the power of
any competent Legislature to repeal or amend it, continue in
force.”
(emphasis supplied)
9. In 2005, the HSA was amended by Parliament by passing the
Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as „the Amendment Act‟), which came into force on 09.09.2005. By virtue the Amendment Act, Section 4(2) of the HSA was omitted.
10. In the backdrop of this legislative history, the main questions that
arise for our consideration in this case is:-
“Whether Section 50 of the DLR Act has been repealed by
the Amendment Act inasmuch as by omitting Section 4(2)
of the HSA, 1956, it has removed the immunity that the
DLR Act had with respect to the laws of succession in
respect of agricultural land?
Also, if that be the case, do the petitioners, being female,
now have the right to succeed to the disputed agricultural
land ?”
11. The main contention of the counsel on behalf of the petitioners
was that due to the omission of Section 4(2) of the HSA, the rule of
succession as contained in Section 50 of the DLR Act has been eclipsed and thus, after 09.09.2005, only the rule of succession provided under the HSA(as amended) is applicable to Hindus in respect of all properties in India,including agricultural land. Also, because of the substitution of the old Section 6 of the HSA by the new one, the petitioners have become coparceners of disputed agricultural land along with the sons of Late Shri Inder Singh, and thus all the petitioners have acquired rights, equal to those of respondent Nos. 3-5, in the property in question.
12. The learned counsel for the petitioners submitted that due to the
omission of Section 4(2) and substitution of the old Section 6 of the HSA by
the new one, by virtue of the Amendment Act, the State law contained in
Section 50 of the DLR Act has become repugnant to the Union law
contained in Sections 6, 8 and 9 of the HSA and the said Section 50 of the
DLR Act is thus void.
13. The relevant sections of the HSA are reproduced hereunder:-
Old Section 6 before substitution by the Amendment Act:-
“6. Devolution of interest of coparcenary
property.-
When a male Hindu dies after the
commencement of this Act, having at the time of his death
an interest in Mitakshara coparcenary property, his interest
in the property shall devolve by survivorship upon the
surviving members of the coparcenary and not in
accordance with this Act:
PROVIDED that, if the deceased had left him
surviving a female relative specified in class I of the
Schedule or a male relative specified in that class who
claims through such female relative, the interest of the
deceased in the Mitakshara coparcenary property shall
devolve by testamentary or intestate succession, as the
case may be, under this Act and not by survivorship.
Explanation I:
For the purposes of this section,
the interest of 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.
Explanation 2:
Nothing contained in the
proviso to this section shall be construed as enabling a
person who has separated himself from the coparcenary
before the death of the deceased or any of his heirs to
claim on intestacy a share in the interest referred to
therein.”WP(C) No.6435/07 Page No.8 of 22
New Section 6 after the Amendment Act:
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 subsection 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 by her by testamentary
disposition.
(3) Where a Hindu dies 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 predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a predeceased 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 subsection, 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 on the
ground of the pious obligation under the Hindu law, of
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 subsection shall affect-
(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 effected 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.”
Sections 8 and 9:
“8. General rules of succession in the case of males. - The
property of a male Hindu dying intestate shall devolve
according to the provisions of this Chapter-
(a) firstly, upon the heirs, being the relatives specified
in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the
heirs, being the relatives specified in class II of the
Schedule;
(c) thirdly, if there is no heir of any of two classes, then
upon the agnates of the deceased; and
(d) lastly , if there is no agnate, then upon the cognates
of the deceased.
9. Order of succession among heirs in the Schedule. -
Among the heirs specified in the Schedule, those in class I shall
take simultaneously and to the exclusion of all other heirs;
those in the first entry in class II shall be preferred to those in
the second entry; those in the second entry shall be preferred to
those in the third entry; and so on in succession.”
14. The learned counsel for the petitioners placed reliance on three
judgments. The first case is that of Ram Mehar v. Mst. Dakhan: 1973 (9)
DLT 44. The main question for consideration before the Division Bench in
that case was as follows:
“5. The main question to be determined in this case
is solely a question of law. Either the rule of succession in WP(C) No.6435/07 Page No.11 of 22
the Delhi Land Reforms Act or the rule of succession in
the Hindu Succession Act governs the parties. If the Hindu
Succession Act applies, then the plaintiff and the
defendant have to succeed to their late father as co-heirs
each entitled to an equal share. If the Delhi Land Reforms
Act is to apply then the succession has to be according to
the provisions of Section 50 of that Act. According to that
Section an unmarried daughter succeeds to a Bhumidar
only if there is no superior heir. On the other hand, a
married daughter does not succeed at all. The defendant is
a married daughter and, therefore, she does not have any
right to succeed her father. The Delhi Land Reforms Act is
an earlier Act and the question whether it has been
expressly or impliedly overruled is to be determined by
reference to Section 4 of the Hindu Succession Act, 1956.”
15. The Division Bench in the said case observed:
“5. The language of Section 4(1)(b) shows that any
law in force immediately before the commencement of the
Act shall cease to apply to Hindus if it is inconsistent with
the provisions of the Act. The provisions of the Delhi
Land Reforms Act are inconsistent with the Hindu
Succession Act as has already been stated before. Thus,
if there was no sub-section (2) this question could have
had to be decided against the plaintiff. However, subsection (2) states that the Act will not affect the provisions
of any law which is in force if it provides 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. The question of
succession, therefore, depends wholly on whether the
Delhi Land Reforms Act is a law which prevents the
fragmentation of agricultural holdings or fixes ceilings on
agricultural holdings or provides for the devolution of
tenancy rights in respect of such holdings.”
(emphasis supplied)
16. The Division Bench in the case of Ram Mehar (supra)
contended that the DLR Act is a law which prevents the fragmentation of
agricultural holdings, etc. and held that:-
“19. In view of the conclusion that the Delhi Land
Reforms Act provides for the prevention of the
fragmentation of agricultural holdings and also, at the
material time fixed ceilings on agricultural holdings and
also dealt with the devolution of tenancy rights on such
holdings, it must be held that this law is saved by
section 4(2) of the Hindu Succession Act and is not
repealed by the provisions of the Hindu Succession Act.
This would mean that the rule of succession governing
Bhumidars is to be found in section 50 of the Delhi Land
Reforms Act and not in the Hindu Succession Act, 1956.”
(emphasis supplied)
17. The learned counsel for the petitioners, laying emphasis on the
above-mentioned decision, submitted that it was only because of Section
4(2) of the HSA that the rule of succession with regard to agricultural land
was to be as per Section 50 of the DLR Act and not in accordance with the
HSA. Hence, with the omission of Section 4(2) of the HSA by virtue of the
Amendment Act, the rule specified in Section 50 of the DLR Act is no
longer saved and has, in fact, been repealed with effect from 09.09.2005,
i.e., the date the Amendment Act came into force.
18. For persuasive values, the learned counsel for the petitioners
relied on a decision of a learned single Judge of this court in the case of
Smt. Mukesh & Ors. v. Bharat Singh & Ors.: 2008 (149) DLT 114. In that
case, it was held that:-
“7. Due to Sub-section (2) to Section 4 of the
Hindu Succession Act, 1956 the rule of succession
stipulated under the Hindu Succession Act, 1956 was
subject to any law for the time being in force relating to
agricultural holdings. Thus, if succession to an agricultural
holding was stipulated in any local law applicable to an
agricultural holding, provisions thereof would apply
relating to devolution of interest in a holding. The effect
of deletion of Sub-section (2) to Section 4 of the Hindu
Succession Act, 1956 due to the promulgation of the WP(C) No.6435/07 Page No.13 of 22
Hindu Succession (Amendment) Act, 2005 is that with
effect from the date when the Amending Act was
promulgated succession would be as per the Hindu
Succession Act, 1956.
8. Prima facie, the Amending Act of 2005 cannot
be read retrospectively as the Amending Act has not been
given a retrospective operation. Meaning thereby,
successions which had taken place prior to the
promulgation of the Amendment Act of 2005 cannot be
disturbed.
9. Section 3 of the Amending Act has substituted
the existing Section 6 of the Hindu Succession Act. One
gets a clue of the legislative intent when one looks at SubSection (3) of Section 6, as amended. It stipulates that
where a Hindu dies after the commencement of the Hindu
Succession (Amendment) Act, 2005 his interest in the
property of a joint family governed by Mitakshara Law
shall devolve by testamentary or intestate succession and
not by survivorship. A daughter is given a share equal to
that of a son.
10. In respect of the co-parcenery property the right
of a daughter to receive a share equal to that of a son
applies only if the death of male Hindu is after
commencement of the Amendment Act, 2005.”
(emphasis supplied)
19. In the above-mentioned case, the owner of the agricultural land
holdings had expired on 10.06.1993 and thus it was on that date that
succession to his property opened. As per the law then applicable,
succession was in favour of the sons. Since the Amendment Act could not
be read retrospectively, the appeal in the case of Mukesh v. Bharat Singh
(supra) was dismissed.
20. The learned counsel for the petitioners pointed out that the facts
of the present case are different from that of Ram Mehar (supra) and
Mukesh v. Bharat Singh (supra) inasmuch as the owner of the disputed
agricultural land in the present case, Late Shri Inder Singh, died on
15.12.2006 i.e. after the Amendment Act had already come into force and
after Section 4(2) had been omitted from the HSA. Thus, the protection to
Section 50 of the DLR Act given by Section 4(2) of the HSA as applicable
in the case of Ram Mehar (supra) did not exist any longer. Also, since, in
the present case, the owner of the disputed agricultural land died in the year
2006, the amended provisions of the HSA would apply, which, in the case
of Mukesh v. Bharat Singh (supra) were not applicable as the succession
had opened on 10.06.1993, prior to the said amendment.
21. The third decision referred to by the learned counsel for the
petitioners was that of the present Bench itself in the case of Smt. Har
Naraini Devi and Another v. Union of India and Others (W.P. (C)
2887/2008) decided on 11.09.2009. In that case, this court had agreed with
the contentions of the respondents that since the DLR Act had been placed
in the Ninth Schedule of the Constitution of India in 1964, it was covered by
the immunity provided in Article 31B, and was thus beyond the pale of
challenge on the ground of violation of any of the rights conferred in part III
of the Constitution.
22. The learned counsel for the petitioners argued that Article 31B
provided immunity to Acts placed in the Ninth Schedule of the Constitution
but such immunity was subject to the power of any competent legislature to
repeal or amend its provisions. While setting out the provisions of Article
31B earlier in this judgment, we had emphasized the words “subject to the WP(C) No.6435/07 Page No.15 of 22
power of any competent legislature to repeal or amend it”. Referring to
those words, it was contended by the learned counsel for the petitioners that
Parliament being a competent Legislature had amended the HSA in 2005
and had thus omitted Section 4(2) of the Act. It was this very section that
was saving Section 50 of the DLR Act and its deletion with effect from
09.09.2005 signified an implied repeal of Section 50 of the DLR Act (a
State law) and inasmuch as it became repugnant to the provisions of
Sections 6, 8 and 9 of the HSA (a Union law), the same was liable to be
quashed.
23. Apart from this, the learned counsel for the petitioners submitted
that the facts of the present case differed from that of Smt. Har Naraini
Devi’s case (supra) inasmuch as in that case the owner of the disputed
property died on 06.06.1997, that is, prior to the coming into force of the
Amendment Act in 2005, and, thus, before Section 4(2) of the HSA had
been omitted. In the present case, succession opened on 15.12.2006, after
Section 4(2) of HSA had been omitted with effect from 09.09.2005. Also,
in the case of Smt. Har Naraini Devi (supra), the only challenge against
Section 50 of the DLR Act was on the ground that it was violative of the
fundamental rights as given in the Constitution of India however in the
present case the challenge is also on the ground of it being repealed by a
subsequent statute.
24. In response to the above arguments, the learned counsel for the
respondent Nos. 3 to 5 also relied strongly on the decisions of Ram Mehar
(supra) and Smt. Har Naraini Devi (supra). It was contended by the
learned counsel for the said respondents that this court in the case of Smt.
Har Naraini Devi (supra) clearly held that “Section 50 (a) of the said Act
cannot be challenged because of Article 31B of the Constitution and
because it had been placed in the Ninth Schedule to the Constitution in
1964, that is, prior to 24.04.1973”.
25. It was submitted that the DLR act is a special enactment enacted
especially to deal with agricultural land and for the prevention of
fragmentation of agricultural holdings, for the fixation of ceilings and for
the devolution of tenancy rights in respect of such holdings and would,
therefore, prevail despite the Amendment Act omitting Section 4(2) of the
HSA. It was further submitted that the removal of Section 4(2) of the HSA
did not imply a repeal of Section 50 of the DLR Act and the immunity
provided by Article 31B to Acts placed in the Ninth Schedule of the
Constitution would continue.
26. Another contention of the learned counsel for the said
respondents was that in the Seventh Schedule of the Constitution of India
which prescribes the three lists of subjects on which the Union, State or
both legislatures can make laws respectively, Entry 5 of List III, which is
the Concurrent list, includes „succession‟ and Entry 6 includes „transfer of
property except agricultural land‟. On the other hand, List II, which is the
State List, at Entry 18, has „Land‟ including every form of land whether
agricultural or not. Thus it was submitted by the learned counsel for the WP(C) No.6435/07 Page No.17 of 22
respondents that this clearly shows the intention of the legislature to allow
only the State to enact laws regarding agricultural land.
27. Finally, the learned counsel for the said respondents also relied
on extracts of the decision in the case of Ram Mehar (supra) to support the
argument that the DLR Act is a special enactment dealing with agricultural
land and thus the rule of succession set out in Section 50 of the DLR Act
has to be considered as the rule of succession to tenancy rights. Thus,
according to the said learned counsel, this provision is saved from repeal by
the HSA.
28. It is in the light of these arguments, that the questions posed in
paragraph 10 above need to be answered. We may straightaway say that the
answers to the questions are that the rule of succession contained in Section
50 of the DLR Act has been repealed by virtue of the omission of Section
4(2) of HSA in 2005 and that, as a result, the rule of succession would be
the one prescribed under the HSA (as amended). Consequently, the
petitioners, being female, have the right to succeed to the disputed
agricultural land inasmuch as succession opened out, in this case, on
15.12.2006 on the death of Late Inder Singh.
29. Section 4(2) as it existed prior to its omission in 2005 declared
that nothing contained in the HSA would be deemed to affect the provisions
of any law for the time being in force providing for the prevention of
fragmentation of agricultural holdings or for the fixation of ceilings or for
the devolution of tenancy rights in respect of such holdings. This Court, in
the case of Ram Mehar (supra) found that the DLR Act was such a law and
because of Section 4(2), the rule of succession laid down in the DLR Act
would be unaffected by the provisions or rule of succession prescribed
under HSA. It was only because of Section 4(2) that this Court, in Ram
Mehar (supra) decided that the applicable rule of succession would be as
provided under the DLR Act. Had Section 4(2) not been there, Ram Mehar
(supra) would have been decided differently and the rule of succession
given in the HSA would have been applicable.
30. It is necessary to examine Section 4 of HSA which stipulates that
the HSA is to have an over-riding effect. Sub-section (1) specifically
provides as under:-
“4. Over-riding 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.”
31. 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 WP(C) No.6435/07 Page No.19 of 22
virtue of clause (b) of Section 4(1) of the HSA, any other law in force
immediately before the commencement of the HSA, ceased to apply to
Hindus in so far as it was inconsistent with any of the provisions of the
HSA. The laws in force, of course, included statute law such as the DLR
Act. Thus, by virtue of Section 4(1)(b), Section 50 of the DLR Act would
cease to operate and apply to Hindus to the extent it was inconsistent with
the HSA. In Ram Mehar (supra), this Court held that the said provisions of
the DLR Act were inconsistent with the HSA. Thus, if no reference was
made to sub-section (2) of Section 4 as it then existed, the HSA had
virtually abrogated the provisions of Section 50 of the DLR Act in its
application to Hindus to the extent of the inconsistency between the rule of
succession prescribed in the HSA and the rule of succession stipulated in
the said Section 50 of the DLR Act.
32. It is only because of sub-section (2) of Section 4 of the HSA that
the operation and effectiveness of the provisions of the DLR Act was saved
inasmuch as it was declared that nothing in the HSA shall be deemed to
affect the provisions of any law for the time being in force providing for (1)
the prevention of fragmentation of agricultural holdings or (2) for the
fixation of ceiling or (3) for the devolutions of tenancy rights in respect of
such holdings. Since the DLR Act was held to be such a law, its provisions,
which included Section 50, were unaffected by the enactment of the HSA.
It is apparent that while there was a general abrogation / repeal of laws –
personal, customary and statutory – to the extent they were inconsistent with
the provisions of the HSA, the provisions of certain laws like the DLR Act
were specifically saved or excluded from the general abrogation / repeal.
33. Now, the omission of sub-section (2) of Section 4 of the HSA by
virtue of the Amendment Act of 2005 has removed the specific exclusion of
the DLR Act from the overriding effect of the HSA which hitherto existed
because of the said sub-section (2). The result is obvious. The protection or
shield from obliteration which sub-section (2) provided having been
removed, the provisions of the HSA would have overriding effect even in
respect of the provisions of the DLR Act. It is, in fact, not so much a case
of implied repeal but one where the protection from repeal / abrogation
which hitherto existed has now been removed. The omission of sub-section
(2) of Section 4, by virtue of the amendment of 2005 is very much a
conscious act of Parliament. The intention is clear. Parliament did not want
this protection given to the DLR Act and other similar laws to continue.
The result is that the DLR Act gets relegated to a position of subservience to
the HSA to the extent of inconsistency in the provisions of the two acts.
34. We shall now deal with the contention of the learned counsel for
the respondent Nos. 3 to 5 that in view of the decision of this Court in Smt
Har Naraini Devi (supra), Section 50 of DLR Act cannot be the subject
matter of challenge because of Article 31B of the Constitution and because
the DLR Act had been placed in the Ninth Schedule to the Constitution in
1964. It is true that in Smt Har Naraini Devi (supra), we had concluded
that Section 50(a) of the DLR Act could not be challenged because of WP(C) No.6435/07 Page No.21 of 22
Article 31B but, we must not forget that in that case, the challenge was on
the ground of alleged violation of Articles 14, 15 and 21 of the Constitution.
Here, the challenge is also based on an amendment of the statute. We have
seen that the immunity granted under Article 31B is subject to the power of
any competent legislature to repeal or amend the protected Act (in this case
the DLR Act).
The HSA and the Amendment Act of 2005 have been
enacted by Parliament and there is no challenge to Parliament‟s
competency.
We have already indicated as to how the effect of omission of
sub-section (2) of Section 4 of the HSA is to abrogate the provisions of the DLR Act to the extent of inconsistency with the provisions of the HSA. Clearly, the immunity under Article 31B is not a blanket immunity and is subject to the power of any competent legislature to repeal or amend the protected Act.
This is exactly what Parliament has done. Thus, the
argument raised on behalf of the Respondent Nos. 3 to 5 is clearly untenable.
35. For the aforesaid reasons, we hold that the provisions of the HSA would, after the amendment of 2005, have over-riding effect over the provisions of Section 50 of the DLR Act and the latter provisions would have to yield to the provisions of the HSA, in case of any inconsistency.
The rule of succession provided in the HSA would apply as opposed to the rule prescribed under the DLR Act. The petitioners are, therefore, entitled to succeed to the disputed agricultural land in terms of the HSA. The respondent Nos. 1 & 2 are directed to mutate the disputed agricultural land, to the extent of Late Shri Inder Singh‟s share, in favour of the petitioners and respondent Nos. 3, 4 and 5 as per the HSA.
36. The writ petition is allowed to the aforesaid extent. The parties are left to bear their respective costs.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
JUNE 04, 2010
diya
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 04.06.2010
+ WP (C) 6435/2007
NIRMALA & OTHERS … Petitioners
versus
GOVERNMENT OF NCT OF DELHI & OTHERS … Respondents
Advocates who appeared in this case:-
For the Petitioners : Mr Vinod Sehrawat
For the Respondent No.1 : Mr A.K. Gupta
For the Respondent Nos.3 & 4 : Mr Anshu Mahajan
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MS JUSTICE VEENA BIRBAL
1. Whether Reporters of local papers may be allowed to
see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
BADAR DURREZ AHMED, J
1. Through this writ petition, the petitioners are seeking a direction
for quashing / setting aside Section 50 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as „the DLR Act‟) as being violative of Articles 14, 16 and 19 of the Constitution of India, and also being impliedly repealed by the Hindu Succession (Amendment) Act, 2005.
The petitioners are also
seeking a direction to the respondents to mutate the disputed agricultural
land left by the deceased husband of petitioner No. 1, equally, in favour of
the petitioners and respondent Nos. 3, 4 and 5.WP(C) No.6435/07 Page No.2 of 22
2. The petitioners herein are the widow (petitioner no. 1) and two
minor daughters (petitioner Nos. 2 and 3) of Late Shri Inder Singh, the
owner of the disputed land, who died intestate on 15.12.2006.
Prior to his marriage with petitioner No.1 (Nirmala), Late Shri Inder Singh was married
to another lady called Nirmla (shown as Nihali Devi in the counteraffidavit), with whom he had two sons and a daughter.
He married petitioner no. 1 in 1997, after the death of his first wife in 1995. Respondent Nos. 3, 4 and 5 are the children of Late Shri Inder Singh and his first wife.
3. Late Shri Inder Singh had bhumidhari rights in respect of
agricultural land to the extent of 1/6th share in Khata No. 136/132 consisting
of Kh. No. 30/24 (4-16) and Kh. No. 31/13/1/2 (1-8) ad-measuring 6 Bighas
4 Biswas and 1/6th share in Khata No. 78/76 consisting of Kh. No. 35/1 (4-
16), 35/2 (4-16), 9/1 (3-14), 10 (4-15), 27 (0-3), 36/4/2 (3-10), 5/2 (4-4), 6
(4-16), 7/2 (2-12), 14/1/2 (1-4), 54/45 (0-18) and 51 (0-2) ad-measuring 35
Bighas 10 Biswas. The total agricultural land ad-measuring 41 Bighas 14
Biswas (hereinafter referred to as the disputed agricultural land) is situated
in the revenue estate of village Tazpur Kalan, Delhi.
4. After the death of Late Shri Inder Singh on 15.12.2006,
petitioner no. 1 moved an application before the concerned Tehsildar on 05.02.2007, to mutate the above-mentioned disputed agricultural land in favour of the petitioners, but he refused to do so in view of Section 50 of the DLR Act.
Being aggrieved by the decision of the Tehsildar, petitioner no. 1
called a meeting of the Panchayat of the village and in that meeting dated
12.02.2007, it was unanimously decided by the Panchayat as well as by
respondent Nos. 3-5, that the petitioners be allotted 1/3rd share in the
disputed agricultural land holdings owned by the deceased Shri Inder Singh.
In pursuance of this decision, the petitioners were given possession of their
share.
But even then, respondent Nos. 3-5 were creating hindrances and not
allowing the petitioners to work in their fields properly.
Petitioner no. 1 also
approached the concerned S.D.M and Deputy Commissioner of the area in
March 2007, but her application was not entertained.
Hence, the present writ petition was filed in August 2007.
5. Before we consider the issue at hand, it would be pertinent to set
out the legislative developments.
The DLR Act came into force on
20.07.1954. Its preamble states that it is “[a]n Act to provide for
modification of zamindari system so as to create an uniform body of
peasant proprietors without intermediaries, for the unification of the
Punjab and Agra systems of tenancy laws in force in the State of Delhi and
to make provision for other matters connected therewith”. Section 50 of the
Act provided that only male members of a family had the primary right of
succession to agricultural land; it excluded female members from
succeeding to such land holdings when male lineal descendants were
available. Section 50 of the DLR Act is reproduced hereunder:
“50. General order of succession from males. - Subject
to the provisions of section 48 and 52, when a Bhumidhar
or Asami being a male dies, his interest in his holding shall
devolve in accordance with the order of the succession
given below:WP(C) No.6435/07 Page No.4 of 22
(a) Male lineal descendants in the male line of the
descent :
Provided that no member of this class shall inherit
if any male descendant between him and the deceased is
alive:
Provided further that the son or sons of a
predeceased son howsoever low shall inherit the share
which would have devolved upon the deceased if he had
been then alive:
(b) Widow
(c) Father
(d) Mother, being a widow;
(e) Step mother, being a widow;
(f) Father‟s father
(g) Father‟s mother, being a widow;
(h) Widow of a male lineal descendant in the male
line of descent;
(i) Brother, being the son of same father as the
deceased;
(k) Unmarried sister;
(l) Brother‟s son, the brother having been a son of the
same father as the deceased;
(m) Father‟s father‟s son;
(n) Brother‟s son‟s son;
(o) Father‟s father‟s son‟s son;
(p) Daughter‟s son.”
6. Thus, clause (a) of Section 50 requires that whenever a male
bhumidhar or asami dies, the property shall first devolve upon the male lineal descendants in the male line of descent, howsoever low to the exclusion of female descendants. Given the fact that the chances of there being no male lineal descendants at all are extremely low, the property in all likelihood will not devolve upon the female descendants in any case.
7. The Hindu Succession Act, 1956 (hereinafter referred to as „the
HSA‟) was passed and came into force on 17.06.1956.
The preamble of the HSA emphasized that it was ‘[a]n Act to amend and codify the law relating
to intestate succession among Hindus’.
However, Section 50 of the DLR Act was protected by Section 4(2) of the HSA which made it clear that
nothing contained in the HSA would affect any provision of law for the time being in force which provided for the prevention of fragmentation of agricultural holdings or for the fixation of ceiling or for the devolution of tenancy rights in respect of such holdings. Section 4(2) of the HSA is
reproduced hereunder:
“4. Overriding effect of Act.
(1) xxxx xxxx xxxx xxxx xxxx
(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.”
8. In 1964, the DLR Act was placed in the Ninth Schedule of the
Constitution of India (Entry 61), by virtue of the Constitution (Seventeenth
Amendment) Act, 1964, with effect from 20th June 1964.
Article 31B of the
Constitution provides that no Act that has been placed in the Ninth Schedule
can be the subject matter of challenge on the ground that it is inconsistent
with or takes away or abridges any of the rights conferred by the provisions
of Part III of the Constitution.
Article 3IB reads as under:-
“Art. 31B. Validation of certain Acts and Regulations.-
Without prejudice to the generality of the provisions contained
in Article 31A, none of the Acts and Regulations specified in
the Ninth Schedule nor any of the provisions thereof shall be
deemed to be void, or ever to have become void, on the ground
that such Act, Regulation or provision is inconsistent with, or
takes away or abridges any of the rights conferred by, any
provisions of this Part, and notwithstanding any judgment, WP(C) No.6435/07 Page No.6 of 22
decree or order of any court or tribunal to the contrary, each of
the said Acts and Regulations shall, subject to the power of
any competent Legislature to repeal or amend it, continue in
force.”
(emphasis supplied)
9. In 2005, the HSA was amended by Parliament by passing the
Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as „the Amendment Act‟), which came into force on 09.09.2005. By virtue the Amendment Act, Section 4(2) of the HSA was omitted.
10. In the backdrop of this legislative history, the main questions that
arise for our consideration in this case is:-
“Whether Section 50 of the DLR Act has been repealed by
the Amendment Act inasmuch as by omitting Section 4(2)
of the HSA, 1956, it has removed the immunity that the
DLR Act had with respect to the laws of succession in
respect of agricultural land?
Also, if that be the case, do the petitioners, being female,
now have the right to succeed to the disputed agricultural
land ?”
11. The main contention of the counsel on behalf of the petitioners
was that due to the omission of Section 4(2) of the HSA, the rule of
succession as contained in Section 50 of the DLR Act has been eclipsed and thus, after 09.09.2005, only the rule of succession provided under the HSA(as amended) is applicable to Hindus in respect of all properties in India,including agricultural land. Also, because of the substitution of the old Section 6 of the HSA by the new one, the petitioners have become coparceners of disputed agricultural land along with the sons of Late Shri Inder Singh, and thus all the petitioners have acquired rights, equal to those of respondent Nos. 3-5, in the property in question.
12. The learned counsel for the petitioners submitted that due to the
omission of Section 4(2) and substitution of the old Section 6 of the HSA by
the new one, by virtue of the Amendment Act, the State law contained in
Section 50 of the DLR Act has become repugnant to the Union law
contained in Sections 6, 8 and 9 of the HSA and the said Section 50 of the
DLR Act is thus void.
13. The relevant sections of the HSA are reproduced hereunder:-
Old Section 6 before substitution by the Amendment Act:-
“6. Devolution of interest of coparcenary
property.-
When a male Hindu dies after the
commencement of this Act, having at the time of his death
an interest in Mitakshara coparcenary property, his interest
in the property shall devolve by survivorship upon the
surviving members of the coparcenary and not in
accordance with this Act:
PROVIDED that, if the deceased had left him
surviving a female relative specified in class I of the
Schedule or a male relative specified in that class who
claims through such female relative, the interest of the
deceased in the Mitakshara coparcenary property shall
devolve by testamentary or intestate succession, as the
case may be, under this Act and not by survivorship.
Explanation I:
For the purposes of this section,
the interest of 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.
Explanation 2:
Nothing contained in the
proviso to this section shall be construed as enabling a
person who has separated himself from the coparcenary
before the death of the deceased or any of his heirs to
claim on intestacy a share in the interest referred to
therein.”WP(C) No.6435/07 Page No.8 of 22
New Section 6 after the Amendment Act:
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 subsection 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 by her by testamentary
disposition.
(3) Where a Hindu dies 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 predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a predeceased 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 subsection, 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 on the
ground of the pious obligation under the Hindu law, of
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 subsection shall affect-
(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 effected 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.”
Sections 8 and 9:
“8. General rules of succession in the case of males. - The
property of a male Hindu dying intestate shall devolve
according to the provisions of this Chapter-
(a) firstly, upon the heirs, being the relatives specified
in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the
heirs, being the relatives specified in class II of the
Schedule;
(c) thirdly, if there is no heir of any of two classes, then
upon the agnates of the deceased; and
(d) lastly , if there is no agnate, then upon the cognates
of the deceased.
9. Order of succession among heirs in the Schedule. -
Among the heirs specified in the Schedule, those in class I shall
take simultaneously and to the exclusion of all other heirs;
those in the first entry in class II shall be preferred to those in
the second entry; those in the second entry shall be preferred to
those in the third entry; and so on in succession.”
14. The learned counsel for the petitioners placed reliance on three
judgments. The first case is that of Ram Mehar v. Mst. Dakhan: 1973 (9)
DLT 44. The main question for consideration before the Division Bench in
that case was as follows:
“5. The main question to be determined in this case
is solely a question of law. Either the rule of succession in WP(C) No.6435/07 Page No.11 of 22
the Delhi Land Reforms Act or the rule of succession in
the Hindu Succession Act governs the parties. If the Hindu
Succession Act applies, then the plaintiff and the
defendant have to succeed to their late father as co-heirs
each entitled to an equal share. If the Delhi Land Reforms
Act is to apply then the succession has to be according to
the provisions of Section 50 of that Act. According to that
Section an unmarried daughter succeeds to a Bhumidar
only if there is no superior heir. On the other hand, a
married daughter does not succeed at all. The defendant is
a married daughter and, therefore, she does not have any
right to succeed her father. The Delhi Land Reforms Act is
an earlier Act and the question whether it has been
expressly or impliedly overruled is to be determined by
reference to Section 4 of the Hindu Succession Act, 1956.”
15. The Division Bench in the said case observed:
“5. The language of Section 4(1)(b) shows that any
law in force immediately before the commencement of the
Act shall cease to apply to Hindus if it is inconsistent with
the provisions of the Act. The provisions of the Delhi
Land Reforms Act are inconsistent with the Hindu
Succession Act as has already been stated before. Thus,
if there was no sub-section (2) this question could have
had to be decided against the plaintiff. However, subsection (2) states that the Act will not affect the provisions
of any law which is in force if it provides 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. The question of
succession, therefore, depends wholly on whether the
Delhi Land Reforms Act is a law which prevents the
fragmentation of agricultural holdings or fixes ceilings on
agricultural holdings or provides for the devolution of
tenancy rights in respect of such holdings.”
(emphasis supplied)
16. The Division Bench in the case of Ram Mehar (supra)
contended that the DLR Act is a law which prevents the fragmentation of
agricultural holdings, etc. and held that:-
“19. In view of the conclusion that the Delhi Land
Reforms Act provides for the prevention of the
fragmentation of agricultural holdings and also, at the
material time fixed ceilings on agricultural holdings and
also dealt with the devolution of tenancy rights on such
holdings, it must be held that this law is saved by
section 4(2) of the Hindu Succession Act and is not
repealed by the provisions of the Hindu Succession Act.
This would mean that the rule of succession governing
Bhumidars is to be found in section 50 of the Delhi Land
Reforms Act and not in the Hindu Succession Act, 1956.”
(emphasis supplied)
17. The learned counsel for the petitioners, laying emphasis on the
above-mentioned decision, submitted that it was only because of Section
4(2) of the HSA that the rule of succession with regard to agricultural land
was to be as per Section 50 of the DLR Act and not in accordance with the
HSA. Hence, with the omission of Section 4(2) of the HSA by virtue of the
Amendment Act, the rule specified in Section 50 of the DLR Act is no
longer saved and has, in fact, been repealed with effect from 09.09.2005,
i.e., the date the Amendment Act came into force.
18. For persuasive values, the learned counsel for the petitioners
relied on a decision of a learned single Judge of this court in the case of
Smt. Mukesh & Ors. v. Bharat Singh & Ors.: 2008 (149) DLT 114. In that
case, it was held that:-
“7. Due to Sub-section (2) to Section 4 of the
Hindu Succession Act, 1956 the rule of succession
stipulated under the Hindu Succession Act, 1956 was
subject to any law for the time being in force relating to
agricultural holdings. Thus, if succession to an agricultural
holding was stipulated in any local law applicable to an
agricultural holding, provisions thereof would apply
relating to devolution of interest in a holding. The effect
of deletion of Sub-section (2) to Section 4 of the Hindu
Succession Act, 1956 due to the promulgation of the WP(C) No.6435/07 Page No.13 of 22
Hindu Succession (Amendment) Act, 2005 is that with
effect from the date when the Amending Act was
promulgated succession would be as per the Hindu
Succession Act, 1956.
8. Prima facie, the Amending Act of 2005 cannot
be read retrospectively as the Amending Act has not been
given a retrospective operation. Meaning thereby,
successions which had taken place prior to the
promulgation of the Amendment Act of 2005 cannot be
disturbed.
9. Section 3 of the Amending Act has substituted
the existing Section 6 of the Hindu Succession Act. One
gets a clue of the legislative intent when one looks at SubSection (3) of Section 6, as amended. It stipulates that
where a Hindu dies after the commencement of the Hindu
Succession (Amendment) Act, 2005 his interest in the
property of a joint family governed by Mitakshara Law
shall devolve by testamentary or intestate succession and
not by survivorship. A daughter is given a share equal to
that of a son.
10. In respect of the co-parcenery property the right
of a daughter to receive a share equal to that of a son
applies only if the death of male Hindu is after
commencement of the Amendment Act, 2005.”
(emphasis supplied)
19. In the above-mentioned case, the owner of the agricultural land
holdings had expired on 10.06.1993 and thus it was on that date that
succession to his property opened. As per the law then applicable,
succession was in favour of the sons. Since the Amendment Act could not
be read retrospectively, the appeal in the case of Mukesh v. Bharat Singh
(supra) was dismissed.
20. The learned counsel for the petitioners pointed out that the facts
of the present case are different from that of Ram Mehar (supra) and
Mukesh v. Bharat Singh (supra) inasmuch as the owner of the disputed
agricultural land in the present case, Late Shri Inder Singh, died on
15.12.2006 i.e. after the Amendment Act had already come into force and
after Section 4(2) had been omitted from the HSA. Thus, the protection to
Section 50 of the DLR Act given by Section 4(2) of the HSA as applicable
in the case of Ram Mehar (supra) did not exist any longer. Also, since, in
the present case, the owner of the disputed agricultural land died in the year
2006, the amended provisions of the HSA would apply, which, in the case
of Mukesh v. Bharat Singh (supra) were not applicable as the succession
had opened on 10.06.1993, prior to the said amendment.
21. The third decision referred to by the learned counsel for the
petitioners was that of the present Bench itself in the case of Smt. Har
Naraini Devi and Another v. Union of India and Others (W.P. (C)
2887/2008) decided on 11.09.2009. In that case, this court had agreed with
the contentions of the respondents that since the DLR Act had been placed
in the Ninth Schedule of the Constitution of India in 1964, it was covered by
the immunity provided in Article 31B, and was thus beyond the pale of
challenge on the ground of violation of any of the rights conferred in part III
of the Constitution.
22. The learned counsel for the petitioners argued that Article 31B
provided immunity to Acts placed in the Ninth Schedule of the Constitution
but such immunity was subject to the power of any competent legislature to
repeal or amend its provisions. While setting out the provisions of Article
31B earlier in this judgment, we had emphasized the words “subject to the WP(C) No.6435/07 Page No.15 of 22
power of any competent legislature to repeal or amend it”. Referring to
those words, it was contended by the learned counsel for the petitioners that
Parliament being a competent Legislature had amended the HSA in 2005
and had thus omitted Section 4(2) of the Act. It was this very section that
was saving Section 50 of the DLR Act and its deletion with effect from
09.09.2005 signified an implied repeal of Section 50 of the DLR Act (a
State law) and inasmuch as it became repugnant to the provisions of
Sections 6, 8 and 9 of the HSA (a Union law), the same was liable to be
quashed.
23. Apart from this, the learned counsel for the petitioners submitted
that the facts of the present case differed from that of Smt. Har Naraini
Devi’s case (supra) inasmuch as in that case the owner of the disputed
property died on 06.06.1997, that is, prior to the coming into force of the
Amendment Act in 2005, and, thus, before Section 4(2) of the HSA had
been omitted. In the present case, succession opened on 15.12.2006, after
Section 4(2) of HSA had been omitted with effect from 09.09.2005. Also,
in the case of Smt. Har Naraini Devi (supra), the only challenge against
Section 50 of the DLR Act was on the ground that it was violative of the
fundamental rights as given in the Constitution of India however in the
present case the challenge is also on the ground of it being repealed by a
subsequent statute.
24. In response to the above arguments, the learned counsel for the
respondent Nos. 3 to 5 also relied strongly on the decisions of Ram Mehar
(supra) and Smt. Har Naraini Devi (supra). It was contended by the
learned counsel for the said respondents that this court in the case of Smt.
Har Naraini Devi (supra) clearly held that “Section 50 (a) of the said Act
cannot be challenged because of Article 31B of the Constitution and
because it had been placed in the Ninth Schedule to the Constitution in
1964, that is, prior to 24.04.1973”.
25. It was submitted that the DLR act is a special enactment enacted
especially to deal with agricultural land and for the prevention of
fragmentation of agricultural holdings, for the fixation of ceilings and for
the devolution of tenancy rights in respect of such holdings and would,
therefore, prevail despite the Amendment Act omitting Section 4(2) of the
HSA. It was further submitted that the removal of Section 4(2) of the HSA
did not imply a repeal of Section 50 of the DLR Act and the immunity
provided by Article 31B to Acts placed in the Ninth Schedule of the
Constitution would continue.
26. Another contention of the learned counsel for the said
respondents was that in the Seventh Schedule of the Constitution of India
which prescribes the three lists of subjects on which the Union, State or
both legislatures can make laws respectively, Entry 5 of List III, which is
the Concurrent list, includes „succession‟ and Entry 6 includes „transfer of
property except agricultural land‟. On the other hand, List II, which is the
State List, at Entry 18, has „Land‟ including every form of land whether
agricultural or not. Thus it was submitted by the learned counsel for the WP(C) No.6435/07 Page No.17 of 22
respondents that this clearly shows the intention of the legislature to allow
only the State to enact laws regarding agricultural land.
27. Finally, the learned counsel for the said respondents also relied
on extracts of the decision in the case of Ram Mehar (supra) to support the
argument that the DLR Act is a special enactment dealing with agricultural
land and thus the rule of succession set out in Section 50 of the DLR Act
has to be considered as the rule of succession to tenancy rights. Thus,
according to the said learned counsel, this provision is saved from repeal by
the HSA.
28. It is in the light of these arguments, that the questions posed in
paragraph 10 above need to be answered. We may straightaway say that the
answers to the questions are that the rule of succession contained in Section
50 of the DLR Act has been repealed by virtue of the omission of Section
4(2) of HSA in 2005 and that, as a result, the rule of succession would be
the one prescribed under the HSA (as amended). Consequently, the
petitioners, being female, have the right to succeed to the disputed
agricultural land inasmuch as succession opened out, in this case, on
15.12.2006 on the death of Late Inder Singh.
29. Section 4(2) as it existed prior to its omission in 2005 declared
that nothing contained in the HSA would be deemed to affect the provisions
of any law for the time being in force providing for the prevention of
fragmentation of agricultural holdings or for the fixation of ceilings or for
the devolution of tenancy rights in respect of such holdings. This Court, in
the case of Ram Mehar (supra) found that the DLR Act was such a law and
because of Section 4(2), the rule of succession laid down in the DLR Act
would be unaffected by the provisions or rule of succession prescribed
under HSA. It was only because of Section 4(2) that this Court, in Ram
Mehar (supra) decided that the applicable rule of succession would be as
provided under the DLR Act. Had Section 4(2) not been there, Ram Mehar
(supra) would have been decided differently and the rule of succession
given in the HSA would have been applicable.
30. It is necessary to examine Section 4 of HSA which stipulates that
the HSA is to have an over-riding effect. Sub-section (1) specifically
provides as under:-
“4. Over-riding 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.”
31. 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 WP(C) No.6435/07 Page No.19 of 22
virtue of clause (b) of Section 4(1) of the HSA, any other law in force
immediately before the commencement of the HSA, ceased to apply to
Hindus in so far as it was inconsistent with any of the provisions of the
HSA. The laws in force, of course, included statute law such as the DLR
Act. Thus, by virtue of Section 4(1)(b), Section 50 of the DLR Act would
cease to operate and apply to Hindus to the extent it was inconsistent with
the HSA. In Ram Mehar (supra), this Court held that the said provisions of
the DLR Act were inconsistent with the HSA. Thus, if no reference was
made to sub-section (2) of Section 4 as it then existed, the HSA had
virtually abrogated the provisions of Section 50 of the DLR Act in its
application to Hindus to the extent of the inconsistency between the rule of
succession prescribed in the HSA and the rule of succession stipulated in
the said Section 50 of the DLR Act.
32. It is only because of sub-section (2) of Section 4 of the HSA that
the operation and effectiveness of the provisions of the DLR Act was saved
inasmuch as it was declared that nothing in the HSA shall be deemed to
affect the provisions of any law for the time being in force providing for (1)
the prevention of fragmentation of agricultural holdings or (2) for the
fixation of ceiling or (3) for the devolutions of tenancy rights in respect of
such holdings. Since the DLR Act was held to be such a law, its provisions,
which included Section 50, were unaffected by the enactment of the HSA.
It is apparent that while there was a general abrogation / repeal of laws –
personal, customary and statutory – to the extent they were inconsistent with
the provisions of the HSA, the provisions of certain laws like the DLR Act
were specifically saved or excluded from the general abrogation / repeal.
33. Now, the omission of sub-section (2) of Section 4 of the HSA by
virtue of the Amendment Act of 2005 has removed the specific exclusion of
the DLR Act from the overriding effect of the HSA which hitherto existed
because of the said sub-section (2). The result is obvious. The protection or
shield from obliteration which sub-section (2) provided having been
removed, the provisions of the HSA would have overriding effect even in
respect of the provisions of the DLR Act. It is, in fact, not so much a case
of implied repeal but one where the protection from repeal / abrogation
which hitherto existed has now been removed. The omission of sub-section
(2) of Section 4, by virtue of the amendment of 2005 is very much a
conscious act of Parliament. The intention is clear. Parliament did not want
this protection given to the DLR Act and other similar laws to continue.
The result is that the DLR Act gets relegated to a position of subservience to
the HSA to the extent of inconsistency in the provisions of the two acts.
34. We shall now deal with the contention of the learned counsel for
the respondent Nos. 3 to 5 that in view of the decision of this Court in Smt
Har Naraini Devi (supra), Section 50 of DLR Act cannot be the subject
matter of challenge because of Article 31B of the Constitution and because
the DLR Act had been placed in the Ninth Schedule to the Constitution in
1964. It is true that in Smt Har Naraini Devi (supra), we had concluded
that Section 50(a) of the DLR Act could not be challenged because of WP(C) No.6435/07 Page No.21 of 22
Article 31B but, we must not forget that in that case, the challenge was on
the ground of alleged violation of Articles 14, 15 and 21 of the Constitution.
Here, the challenge is also based on an amendment of the statute. We have
seen that the immunity granted under Article 31B is subject to the power of
any competent legislature to repeal or amend the protected Act (in this case
the DLR Act).
The HSA and the Amendment Act of 2005 have been
enacted by Parliament and there is no challenge to Parliament‟s
competency.
We have already indicated as to how the effect of omission of
sub-section (2) of Section 4 of the HSA is to abrogate the provisions of the DLR Act to the extent of inconsistency with the provisions of the HSA. Clearly, the immunity under Article 31B is not a blanket immunity and is subject to the power of any competent legislature to repeal or amend the protected Act.
This is exactly what Parliament has done. Thus, the
argument raised on behalf of the Respondent Nos. 3 to 5 is clearly untenable.
35. For the aforesaid reasons, we hold that the provisions of the HSA would, after the amendment of 2005, have over-riding effect over the provisions of Section 50 of the DLR Act and the latter provisions would have to yield to the provisions of the HSA, in case of any inconsistency.
The rule of succession provided in the HSA would apply as opposed to the rule prescribed under the DLR Act. The petitioners are, therefore, entitled to succeed to the disputed agricultural land in terms of the HSA. The respondent Nos. 1 & 2 are directed to mutate the disputed agricultural land, to the extent of Late Shri Inder Singh‟s share, in favour of the petitioners and respondent Nos. 3, 4 and 5 as per the HSA.
36. The writ petition is allowed to the aforesaid extent. The parties are left to bear their respective costs.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
JUNE 04, 2010
diya
