This article is written by Lavanya Gupta. It covers the landmark case of Nirmala vs. Govt. of NCT of Delhi (2010), wherein two varying rules of succession, under the Hindu Succession Act, 1956 and the Delhi Land Reforms Act, 1954, were evaluated. This analysis has delved into the facts of the case, arguments put forth by both parties and the observations made by the court, along with the relevant legal precedents and provisions.

Introduction

Nirmala & ors vs. Govt. of NCT of Delhi (2010) is a landmark decision in the area of succession law, particularly in instances wherein different rules of succession may be available under different laws, such as the Hindu Succession Act, 1956 (hereinafter referred to as the HSA) and Delhi Land Reforms Act, 1954 (hereinafter referred to as the DLR Act).Further, considering the promotion of gender justice in the HSA, through the Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as the 2005 Amendment Act), equal succession rights in other cases, such as bhumidari rights, may become possible through a refined interpretation of the HSA and its relations with other laws, such as the DLR Act. 

Background of the case

Delhi Land Reforms Act, 1954 

The Delhi Land Reforms Act, 1954, was an important law whose objective was to modify Delhi’s land ownership and tenancy structure. It sought to abolish the zamindari system and provide for equal distribution of land amongst the farmers and tenants. Some of the primary provisions of this Act include removal of intermediaries, giving ownership rights to the farmers (bhumidari) and integration of lands to boost efficiency in agriculture.

The primary focus of this Act was to improve agricultural productivity, improve the socio-economic conditions of farmers, and bring in a fairer land revenue system in Delhi. It was a vital move towards streamlining agriculture and encouraging equality.

Hindu Succession Act, 1956

The Hindu Succession Act was originally enacted in 1956 to amend and codify the law relating to intestate succession amongst Hindus, which also includes Buddhists, Jains and Sikhs. It is a comprehensive Act that deals with various aspects of succession and inheritance amongst Hindus, a term widely defined under the Act. Apart from intestate succession, it also talks about testamentary succession. Specific provisions deal with devolution of interest in the case of coparcenary property, general rules of succession for both Hindu males and females, as well as classes of heirs or other general provisions relating to succession. 

Hindu Succession (Amendment) Act, 2005 

The HSA was amended in 2005 through the Hindu Succession (Amendment) Act, 2005. It was enacted as a result of the findings of the 174th Report of the Law Commission. 

The main difference brought about by this was giving daughters coparcenary rights equal to those of sons. They are now permitted to seek partition, inherit property and become coparceners by birth, which was not seen earlier. The provision that prohibited married daughters from having the same rights as sons was also deleted. Daughters now possess the same rights and liabilities as that of sons, in terms of property.

This landmark amendment strived for gender equality by eradicating the biases found in laws of inheritance and succession. It brought about fairness in the inheritance system of the Hindu community. 

Facts of the case 

The petitioners, in this case, were the widow and the minor daughters of the late Shri Inder Singh, owner of the land under dispute in the present case. He died intestate (dying without a will) on 15.12.2006. He possessed bhumidari rights with respect to certain agricultural land measuring 41 bighas and 14 biswas, situated in the village of Tazpur Kalan in Delhi. He had a 1/6th share in two groups of land, the first of which totalled 6 bighas and 4 biswas and the second further included multiple lands of differing measurements. This land is referred to as the disputed agricultural land. 

Prior to his marriage with petitioner no. 1 (Nirmala) in 1997, Mr. Singh had been married to another lady who died in 1995 and had three children with her- two sons and a daughter. The latter are respondents no. 3, 4 and 5 in the present case.

After the death of Mr. Singh, petitioner no. 1 filed an application with the concerned Tehsildar on 5.02.2007 to mutate the aforementioned disputed land to the petitioners. The same was, however, denied in view of Section 50 of the DLR Act. She then took her case before the village Panchayat, where a unanimous decision was made, with the consent of respondents 3-5, to allot 1/3rd of the disputed land to the petitioners. Accordingly, they were bestowed with the possession of the land. However, the respondents continued to interfere with their possession and created obstacles by not allowing them to work in the fields. The petitioner approached the concerned S.D.M. and Deputy Commissioner in 2007, but her application was not heeded, which led to the filing of the present writ petition. 

Issues raised 

1. Whether Section 50 of the DLR Act was repealed by the 2005 Amendment Act, considering the removal of immunity with respect to succession for agricultural lands provided to the DLR Act, as a consequence of the omission of Section 4(2) of the HSA? 
2. Whether the female petitioners have a right to succeed in the disputed agricultural land?

Law involved in Nirmala & Ors vs. Government of NCT of Delhi (2010)

Section 50 of the Delhi Land Reforms Act, 1954

Section 50 of the DLR Act provides for the general order of succession from males. When a bhumidari or asami, being a male, dies, his interest in the landholding shall devolve in the order specified under this Section. As per Section 50(a), the succession shall first devolve to the male lineal descendants in the male line of descent. It is followed by two provisos-

• No member of this class shall inherit if any male descendant between him and the deceased is alive;
• The son or sons of a predeceased shall inherit the share which would have devolved upon the deceased if he had been then alive.

Clauses (b) to (p) further delineate the order of succession under this Section.

(b) Widow;

(c) Father;

(d) Mother, being a widow;

(e) Stepmother, 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.

Hindu Succession Act, 1956

Section 4 of Hindu Succession Act

Section 4 delves into the overriding effect of the Act.

As per Section 4(1)(a), save as otherwise provided under the HSA, any rule or text of Hindu law or its interpretation, as well as any custom or usage as part of Hindu law in force immediately before this Act, shall cease to apply with respect to any subject matter that is dealt with any provision made under this Act. Clause (b) further declares that any other law in force immediately before the commencement of the HSA shall not apply to Hindus to the extent it is inconsistent with any of the provisions of this Act.

Further, as per sub-section (2), the Act shall not have an overriding effect on the provisions of any other law relating to the prevention of the fragmentation of landholdings or fixation of ceiling or devolution of tenancy rights in respect of any such holdings. 

[Sub-section (2) has now been omitted by way of the Hindu Succession (Amendment) Act, 2005.]

Section 6 of Hindu Succession Act

Section 6 deals with the devolution of interest in coparcenary property.

As per Section 6(1), in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall become a coparcener in the property from birth in a way akin to the son. She shall also attract the same coparcenary rights and liabilities, as that of a son. The scope of the term “coparcener” shall include the daughter of a coparcener. However, it must be noted that any property disposed of or alienated before 20.12.2004 shall not be affected by this sub-section.

Sub-section (2) states that a female Hindu shall hold any property acquired by her under sub-section (1), with a coparcener’s rights. Further, she would be entitled to dispose of the same by way of a will. 

Under sub-section (3), if a male Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family, which falls under the scope of Mitakshara law, shall devolve by testamentary or intestate succession and not by survivorship. Further, the coparcenary property shall be deemed to be divided in a manner akin to a partition:

• The daughter shall be allotted the same share as the son. 
• The share that a pre-deceased son or daughter would have received if they had been alive at that time shall go to the existing child of such pre-deceased son or daughter.
• The share which a pre-deceased son or daughter’s pre-deceased child would have received if he/she had been alive at that time shall go to the existing child of such pre-deceased child.

Under sub-section (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, merely on the ground of fulfilling the former’s obligation under Hindu law, to clear of such debt. However, in case of debts taken prior to the commencement of the 2005 Amendment Act, creditors may still seek repayment of the same from the son, grandson or great-grandson. Additionally, any transfer or sale of property undertaken to pay off such debt and the enforcement of the same shall still be valid and applicable in the same manner as it would have if the 2005 Amendment Act had not been enacted.

Sub-section (5) clarifies that nothing in this Section shall impact any partition that occurred before 20.12.2004.

Section 8 of Hindu Succession Act

Section 8 lays down the general rules of succession in the case of males. The property of a male Hindu dying intestate,

• Shall first devolve upon the heirs mentioned under class I of the Schedule.
• In case there are no class I heirs, it shall devolve upon the class II heirs. 
• When there exist no heirs from any of these classes, it shall devolve upon the agnates (relatives through male lineage)
• In case there are no agnates, it shall devolve upon the cognates (relatives through female lineage).

Section 9 of Hindu Succession Act

Section 9 further specifies the order of succession among class I and class II heirs mentioned under the Schedule. It states that the class I heirs shall receive the property simultaneously and with the exclusion of all other heirs. Amongst class II heirs, those in the first entry shall be preferred to those in the second entry, who shall further be preferred to those in the third entry and so on. 

Article 31B of the Constitution of India

As per Article 31B, no Act mentioned in the 9th Schedule can be the subject matter of any challenge on the ground that it takes away or is inconsistent with any of the rights conferred by Part III of the Constitution. This protection comes into play irrespective of any court or tribunal’s judgement, order or decree. However, the competent authority holds the power to repeal or amend these laws. However, after the landmark decision of Minerva Mills vs. Union of India (1980), this is now a mere dead letter as any law, even if included in the ninth schedule to the Constitution, will be amenable to judicial review on the ground of violation of the basic structure of the Constitution.

Arguments of the parties

Petitioners 

The petitioners contended that as a result of the omission of Section 4(2) of the HSA, the rule of succession in the DLR Act has been overruled, and after 09.09.2005, only the rule of succession as provided under the amended HSA will be applicable to Hindus in respect of all land, including agricultural. 

They relied on the case of Ram Mehar vs. Mst. Dakhan (1973) and contended that it was only because of section 4(2) that the rule of succession to agricultural land was to be as per the DLR Act. However, now that the same has been omitted, succession to the disputed land must be in accordance with the provisions of the amended HSA and not the DLR Act.

The petitioners distinguished the facts of the present case from that of Smt. Mukesh & Ors. vs. Bharat Singh & Ors. (2008) and contended that since Mr. Inder Singh had died in 2006, that is, after the 2005 amendment had come into force, the protection given to Section 50 of the DLR Act would no longer hold good, and the amended HSA would be applicable instead.

Further, it was argued that by the effect of the substitution of Section 6 of the HSA by the 2005 Amendment Act, the petitioners had become coparceners of the disputed land, along with the sons of late Mr. Inder Singh and thus, have acquired equal rights to the property, as that of the respondents. 

The petitioners further argued that the immunity to Acts included in the 9th Schedule of the Constitution is subject to the power of the competent legislature to repeal or amend it. The Parliament, being the competent legislature, had amended the HSA and consequently omitted Section 4(2), thereby implicitly repealing the DLR Act. Being a State law that is inconsistent with the provisions of a Union law, it would be liable to be set aside.

Therefore, it was primarily contended that by virtue of the changes in the HSA made by the 2005 Amendment Act, Section 50 of the DLR Act, which is a State law, was in conflict with the Union laws, particularly Sections 6, 8 and 9 of the HSA, and hence, must be declared void. 

Through this writ petition, the petitioners sought a direction from the High Court to strike down Section 50 of the DLR Act as violative of Articles 14 (equality before law), 16 (equality of opportunity in matters of public employment) and 19 (protection of certain rights regarding freedom of speech, etc.), as well as being implicitly repealed by virtue of the 2005 Amendment Act. Further, they prayed for a direction to respondents 1 and 2, to mutate the disputed agricultural land in favour of the petitioners and respondents 3, 4 and 5. 

Respondent  

The respondents relied on Ram Mehar vs. Mst. Dakhan (1973) and Smt. Har Naraini Devi and Anr. vs. Union of India (2008) as well. They contended that as per the latter, the DLR Act was provided immunity by Article 31B of the Constitution. It was argued that the DLR Act was a special enactment for agricultural land and would prevail despite the omission of Section 4(2). It was further stated that the 2005 Amendment Act did not implicitly repeal the DLR Act and would continue to enjoy protection by being included under the 9th Schedule.

They also relied upon the 7th Schedule and the demarcation of subjects under the three lists. Entry 5 of the concurrent list provides for succession, and entry 6 provides for transfer of property, except agricultural land. On the other hand, entry 18 of the state list provides for land, including agricultural land. This, it was argued, clearly demonstrates the legislative intention to delineate agricultural land as a State matter. 

Judgement in Nirmala & Ors vs. Government of NCT of Delhi (2010)

The Division Bench held that post the Hindu Succession (Amendment) Act, 2005 the Hindu Succession Act, 1956 would prevail over Section 50 of the Delhi Land Reforms Act, 1954. The HSA will be preferred in case of any conflict. The rules of succession under the HSA, and not the DLR Act, would apply. As a result, since the process of inheritance began in 2006 when Inder Singh passed away, the female petitioners were entitled to inherit the disputed agricultural land, as per the HSA.

Respondents 1 and 2 were ordered to update the records to depict the disputed agricultural land in favour of the petitioners and respondents 3, 4 and 5.

The writ petition was permitted to this extent, and the parties were directed to bear their respective costs.

Rationale behind the judgement

Firstly, the court asserted that Section 50 of the DLR Act was repealed due to the omission of Section 4(2) from the HSA. Consequently, in terms of succession, the amended HSA was now the law that would be followed. 

Taking Section 4(1) of the HSA into consideration, Section 50 of the DLR Act would cease to be operative on account of it being inconsistent with the scheme of the HSA. In Ram Mehar vs. Mst. Dakhan (1973), it was only on account of the protection afforded by Section 4(2) that the rule of succession under the DLR Act was given precedence over the HSA. This would not have happened if Section 4(2) had not existed at the time. The omission of Section 4(2) by the 2005 amendment removed this protection given to the DLR Act from the otherwise overriding application of the HSA prescribed by Section 4(1). This was not an implied repeal but more of a removal of protection from repeal that existed prior to the amendment. The legislative intent to remove this protection is clearly highlighted, and the provisions of the HSA would have precedence over the provisions of the DLR Act to the extent of inconsistency in the two laws.

Further, it was also held that while the case of Smt. Har Naraini Devi and Anr. vs. Union of India (2008) held that the challenge to Section 50 of the DLR Act is protected by the immunity offered by Article 31B due to the DLR Act being placed under the 9th Schedule, the challenge in that case was based on a violation of fundamental rights. In the present case, the challenge is also based on the amendment of a statute. The immunity granted under Article 31B is subject to the power of a competent legislature to repeal or amend the provisions. The Parliament, being a competent legislature, has done the same, and the immunity under Article 31B is, thus, not universal. For this reason, the respondent’s argument that Section 50 cannot be challenged, as per Article 31B, was rejected.

Therefore, the court held that after the commencement of the 2005 Amendment Act, the rule of succession laid under the HSA would have an overriding effect over the DLR Act, and the same would be given due precedence in case of a conflict. 

Relevant judgements referred to in the case

Ram Mehar vs. Mst. Dakhan (1973)

The aim of this case was to determine whether the HSA or the DLR Act would apply to that matter. The key to the answer to this involved deciding whether the HSA overrides the DLR Act in an implicit or explicit manner.

The Division Bench observed that according to the language used in Section 4(1)(b) of the HSA, any Act that existed before the commencement of this Act, would cease to apply to Hindus, if it is in contradiction to the HSA. Since the DLR Act is not in line with the HSA, it would mean that it would be overruled by the HSA. However, an exception is found under Section 4(2), which states that the HSA does not impact laws that prevent agricultural holdings from being fragmented, fix ceilings on or oversee the devolution of tenancy rights in such holdings. 

Therefore, the Division Bench held that since the DLR Act prevents agricultural holdings from being fragmented, fixing ceilings on or overseeing the devolution of tenancy rights in such holdings, it would not be overruled by the HSA. It is protected by section 4(2) of the HSA and is not repealed under section 4(1)(b). This means that the rule of succession governing bhumidars in Delhi would be Section 50 of the DLR Act and not the provisions of the HSA. 

Smt. Mukesh & Ors. vs. Bharat Singh & Ors. (2008)

It was observed in this case that by virtue of Section 4(2) if there exists a local law governing the inheritance of agricultural lands, it would be preferred over the HSA. The 2005 Amendment Act deleted this provision, making the HSA the main law for inheritance, including agricultural holdings. The amendment also brought about gender equality by giving daughters the right to inherit coparcenary property in the same manner as a son. However, it was to be noted that this amendment is not retrospective. Inheritance that took place prior to this amendment would continue to follow the older laws.

Smt. Har Naraini Devi and Another vs. Union of India and Others (2008)

In this case, the same bench as that in the present matter was of the view that the DLR Act, having been placed under the 9th Schedule of the Constitution, was protected by Article 31B and, thus, not liable to challenge on the ground of the violation of fundamental rights under Part III of the Constitution.

Conclusion 

This judgement passed by the Delhi High Court is essential in navigating the complicated succession laws, especially in cases of intestate succession. By specifying the scope of both the HSA and DLR Act, it was firmly established that after the 2005 amendments to the HSA, the rule of succession, as provided under it, will supersede the DLR Act. This may have a persuasive effect on other state laws regulating succession as well. By giving precedence to the HSA, a more uniform succession jurisprudence and consistent approach by the judiciary can be observed when navigating different rules of succession under different laws. 

The HSA is a Union law drafted for the whole country, where exceptions may be formed to keep in mind specific subject matters, such as agricultural land, in this case. However, with the deletion of Section 4(2), a legislative intention to remove the protection provided to such laws can be seen and has been upheld by the court. 

This will allow for a more gender-equal succession jurisprudence, especially when seen in light of the 2005 amendments, with daughters being given coparcenary rights equal to that of sons. Thus, other laws that may have been enacted prior to the HSA, such as the DLR Act, which does not prescribe equal bhumidari or other succession rights to female descendants, if inconsistent with the HSA, will cease to have effect. The rights of females to succeed in agricultural property in this case is a right step in the direction of a more just family law regime.

Frequently Asked Questions (FAQs)

What is coparcenary property? 

According to the Hindu Succession Act, 1956 the ancestral property of a Hindu undivided family (HUF), is known as coparcenary property. The rights over this property are vested in the coparceners (joint heirs).

What is the difference between a coparcener and any other member of a Hindu undivided family (HUF)?

The primary difference between a coparcener and any other member of a HUF, is that the former can claim partition, while the latter cannot. All coparceners are members of a HUF, but all members of a HUF are not coparceners. 

References

• https://blog.ipleaders.in/the-hindu-succession-act-1956/ 
• https://blog.ipleaders.in/critical-analysis-hindu-succession-amendment-act-2005/ 
• SCCOnline- Delhi Land Reforms Act 1954 a special law; Succession provided in Hindu Succession Act 1956 will not prevail over it.