Reportable * IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.A. No. 650 of 2008 & CM No. 9226/2008 % Reserved on : October 23, 2008 Pronounced on : January 27, 2009 [ENTITY] . . . Appellant through : Mr. [ENTITY], Advocate VERSUS [ENTITY] & Ors. . . . Respondents through : Mr. [ENTITY], Advocate for the respondent No.1. Mr. [ENTITY] with Mr. [ENTITY], Advocates for the respondent Nos. 2 to 4. CORAM :- THE HONBLE MR. JUSTICE [ENTITY] THE HONBLE MR. JUSTICE [ENTITY] 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? [ENTITY], J.
1. The appellant, who is the cousin sister of the respondent Nos. 2 to 4, is claiming 1/3rd share in the compensation given for a part of the land in village Bawana, Delhi which was acquired by the [ENTITY] (respondent No.1) vide Award No. 9/99/2000. Said land was bearing Khasra Nos. 15/1 (4-[SECTION]) and 4/21/3 (1-4) situate in the revenue estate of village Bawana, Delhi. This land was in the name of the three brothers, namely, Shri [ENTITY], Shri [ENTITY] and Shri [ENTITY], who were also jointly declared as bhumidars of the aforementioned land under the [ACT] (hereinafter referred to as the [ACT]). All these brothers have since died. The appellant is the daughter of late Shri [ENTITY], who died in the year 1952, i.e. before the promulgation of [ACT] (hereinafter referred to as the [ACT]). Respondents No. 2 to 4 are the sons of late Shri [ENTITY] and late Shri [ENTITY].
2. For claiming 1/3rd share, the appellant made application to the Land Acquisition Collector (LAC), who sent a reference under [SECTION] and [SECTION] of the [ACT] (for short, the Act) in respect of 1/3rd share of late Shri [ENTITY] in view of the dispute created by the respondent Nos. 2 to 4 contending that after the death of Shri [ENTITY] in the year 1952, his share also devolved upon the male persons in the family and could not go to the daughter (appellant herein). As there was no dispute about the remaining 2/3rd share of the compensation payable to respondent Nos. 2 to 4, LAC disbursed that portion of the share to the respondent Nos. 2 to 4.
3. Vide judgment dated 21.4.2008, the learned ADJ has held that the appellant would not be entitled to any compensation as there was no law under which the daughter could inherit share in the property of her father after fathers death and under the provisions of the [ACT], said share of late Shri [ENTITY] devolved upon respondent Nos. 2 to 4, who are male members in the family; albeit the nephew, and in fact mutated in their names as well in the revenue records on 11.7.1995.
4. The learned ADJ noted that certain facts were not in dispute and for proper appreciation of the matter, it would be necessary to reproduce those facts, which are as under :-
(i) Shri [ENTITY], Shri [ENTITY] and Shri [ENTITY], all sons of Shri [ENTITY] were in possession and cultivating the land comprised in khasra Nos. 15/1 min (4-[SECTION]), 4/21/3 min. (1-4) of village Bawana since prior to 1954.
(ii) Shri [ENTITY] died on [SECTION].08.1982 (the appellant has placed on record death certificate of Shri [ENTITY], which is Ex.IP4/C).
(iii) After the death of Shri [ENTITY] in the year 1952, the above-
said land was continued to be cultivated by his brothers/co- sharers Shri [ENTITY] and Shri [ENTITY] only.
(iv) Appellant was 12 years of age at the time of her fathers death and she got married in the year 1953. After her marriage, she has normally been residing at her matrimonial home in Sonepat, Haryana.
(v) Appellant never cultivated the above-said land.
(vi) Although Shri [ENTITY] died in 1952, but in the revenue record, he was continued to be shown to be in possession of the said land.
(vii) AS a result of the fact that Shri [ENTITY] was continued to be shown in the revenue record to be in possession of the said land even after his death, he was also declared bhumidar along with his brothers Shri [ENTITY] and Shri [ENTITY] on commencement of the [ACT], on the basis of possession entries in the khasra girdawaries for the year 1953-
(viii) After the death of Shri [ENTITY] and Shri [ENTITY], the names of respondent Nos. 2 to 4 were recorded in the revenue record as their legal heirs, successors and legal representatives with respect to the above-said land, as described at (i) above.
(ix) Notification under [SECTION] of the Act for acquisition of the land of revenue estate of village Bawana including above said land was issued on 6.7.1998 and physical possession of the above said land was taken over by the Government on 21.8.1998.
(x) The possession of the above said was taken over from respondent Nos. 2 to 4 on 21.8.1998.
(xi) The controversy as to the entitlement of the appellant arose on the acquisition of land, as, for the first time, after the acquisition, she claims to be entitled to Shri [ENTITY] 1/3rd share in the compensation.
5. A perusal of the judgment of the learned ADJ reveals that the appellant had claimed 1/3rd share in the compensation on the ground that she being the only child/daughter and, thus, only Class-I LR of late Shri [ENTITY], as per the [ACT], she was entitled to entire share of compensation which belonged to late Shri [ENTITY].
This plea was not accepted on the ground that [ACT] came into effect only in the year 1956, whereas Shri [ENTITY] died before that, i.e. on 1952. The learned trial court also opined that even if [ACT] were to apply with retrospective effect, the appellant would not have inherited the said land, inasmuch as, on the death of Shri [ENTITY] in the year 1952, the said land had yet not been acquired by the Government and, therefore, the matter of succession with respect to the land could not have been governed by the [ACT] in view of the judgments of this Court in [PRECEDENT] and [PRECEDENT]. The learned trial court also stated that even the [ACT] came into force with effect from 20.7.1954, i.e. after the death of Shri [ENTITY] and, thus, could not govern the succession. It is further opined by the learned trial court that even if this Act were to be held applicable, the appellant could not stand to gain in any manner. It is because of this reason that [SECTION] of the [ACT], which provides general order of succession from males, stipulates that unmarried daughter shall inherit the interest of a male only in the absence of a lineal descendant. [SECTION] further provides that if a female, who is unmarried daughter, inherits the interest after the commencement of the [ACT] and marries, then the interest in the land shall devolve upon the nearest surviving heirs of the last bhumidar, in terms of [SECTION]. Therefore, even if the appellant had inherited her fathers interest in the said land by virtue of [SECTION], the same would have been reverted back to respondent Nos. 2 to 4 after her marriage in the year 1953.
The judgment of the learned trial court further reveals that the learned trial court also discussed the argument of the respondent Nos. 2 to 4, namely, as per customary law, daughters were not entitled to any share in the fathers property and only male descendants of the deceased Hindu were entitled to succeed that share. After discussing the evidence on record as well as legal position, the learned trial court accepted the aforesaid contention of the respondent Nos. 2 to 4 holding that even as per customary law, the appellant was/is not entitled to inherit her fathers share in the said land and this share could go only to respondent Nos. 2 to 4.
6. There is yet another reason given by the learned ADJ in concluding that only respondent Nos. 2 to 4 were entitled to compensation, namely, they were in continuous cultivatory possession of the land and the appellant had never cultivated the same as she was only a minor at the time of Shri [ENTITY] death and within one year she got married. Therefore, even as per the provisions of [SECTION] of the [ACT], it is the brothers of late Shri [ENTITY], and for that matter respondent Nos. 2 to 4, who became entitled to be declared as bhumidars of the land in question by virtue of their continuous possession of that land since 1952 till the acquisition of land.
7. To sum up, the learned trial court has decided the reference against the appellant holding the respondent Nos. 2 to 4 to be entitled to the entire compensation on the following grounds :-
(a) [ACT] is not applicable in this case as appellants father died in the year 1952 and, therefore, the appellant could not seek benefit thereof on the basis that she was the only Class-I heir of late Shri [ENTITY]. Even if it was applicable, the provisions thereof could not advance her case as the matter of succession with respect to this land could not have been governed by the [ACT].
(b) Likewise, [ACT] was also not applicable, which was enacted in the year 1954, i.e. after the death of Shri [ENTITY].
Even if it was applicable and the appellant had inherited the share of her father, by virtue of [SECTION] of the said Act, on her marriage in the year 1953, it would have reverted to respondent Nos. 2 to 4 in terms of [SECTION]
(c) As per customary law prevailing in the year 1952, it is only respondent Nos. 2 to 4, being male lineal descendants, who were entitled to inherit the share of late Shri [ENTITY].
(d) Since respondent Nos. 2 to 4 remained in possession of the land and cultivated the same to the exclusion of the appellant, who admittedly never cultivated this land, it is the respondent Nos. 2 to 4 who became entitled to be declared as bhumidars under the [ACT] and, therefore, as bhumidars, they were the persons who could get the compensation in respect of the entire land.
8. Interestingly, learned counsel for the appellant has not disputed the aforesaid position in law and/or the findings of the learned ADJ. He has taken an altogether different contention. His submission is that [ACT] was brought in the year 1950 and any custom, having force of law/pre-constitution law, would be void if found inconsistent with any of the fundamental rights guaranteed to the citizens under the [ACT]. His submission was that as the customary law which prevailed in pre-constitution era would be discriminatory qua female Hindu as she was not treated on equal footing as far as succession of the property is concerned, such law would not withstand the test of [SECTION] of the [ACT] and, therefore, was void. It was also submitted that even after his death in the year 1952, name of Shri [ENTITY] continued in the revenue records upto the year 1995 as a co-bhumidar when the names of respondent Nos. 2 to 4 were mutated in the revenue records, that too on the basis of a false death certificate. He referred to the following judgments in respect of his proposition based on [SECTION] & [SECTION] of the [ACT] :-
(i) [PRECEDENT] & Anr. v. [ENTITY] AIR 2003 SC 2902 (ii) Giani Ram & Ors. v. Ramji Lal & Ors., AIR 1969 SC 1[SECTION]4 (iii) [PRECEDENT] & Ors. v. Labh Singh & Anr., AIR 1965 SC [SECTION]4 (iv) [PRECEDENT] In Re, Smt. [PRECEDENT], AIR 1992 Bombay 2[SECTION]
9. Learned counsel for the respondent countered the aforesaid submissions by contending that the custom which was prevailing in the year 1952 as per which daughters were not entitled to inherit the fathers property does not make any distinction between females belonging to different castes. Females by themselves become one class and none of the females inherit their fathers share in agricultural land. This custom came into existence to prevent further fragmentation of land holdings. Hence, the contention that the custom became "bad in law" on the coming into force of the [ACT] is without any force. Even the sisters of [ENTITY] did not get any share in the agricultural land on the demise of their father [ENTITY]. It is further submitted that Shri [ENTITY] died on [SECTION].08.1982. The respondents 2 to 4 thereafter came into cultivatory possession of the deceaseds share, as owners. Their possession was hostile and adverse to one and all. They always claimed themselves to be the owner. They became owners by adverse possession after 12 years thereof. For this reason also, it does not lie in the mouth of the appellant now to say that the custom was bad in law or that she is entitled to share in compensation.
10. There is no quarrel with the proposition that if any pre-constitution law or any custom having force of law is found inconsistent with any of the fundamental rights guaranteed by the [ACT] or, for that matter, if such law is found contrary to any provisions of the [ACT], that law would be void in the light of [SECTION] of the [ACT].
11. In [PRECEDENT] (supra), the Supreme Court is concerned with the validity of provisions of [SECTION] of the [ACT], a pre-constitution law. As per that, the village offices were inheritable, i.e. they were required to be given on the basis of descent. As per that provision, in choosing the persons to fill the new offices, the Collector was to select the persons whom he could consider the best qualified from among the families of the last holders of the offices. The Supreme Court held such a provision to be violative of the fundamental right under [SECTION] of the [ACT] as such a provision was discriminatory on the ground of descent only and, thus, contravened [SECTION] of the [ACT]. While holding so, the Apex Court described the legal position as under :-
"9. [SECTION] enshrines the fundamental right of equality before the law or the equal protection of the laws within the territory of India. It is available to all, irrespective of whether the person claiming it is a citizen or not. [SECTION] prohibits discrimination on some special grounds-religion, race, caste, sex, place of birth or any of them. It is available to citizens only, but is not restricted to any employment or office under the State. [SECTION], [SECTION], guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State; and clause (2) prohibits discrimination on certain grounds in respect of any such employment or appointment. It would thus appear that [SECTION] guarantees the general right of equality; [SECTION] and [SECTION] are instances of the same right in favour of citizens in some special circumstances. [SECTION] is more general that [SECTION], the latter being confined to matters relating to employment or appointment to any office under the State. It is also worthy of note that [SECTION] does not mention 'descent' as one of the prohibited grounds of discrimination, whereas [SECTION] does. We do not see any reason why the full ambit of the fundamental right guaranteed by [SECTION] in the matter of employment or appointment to any office under the State should be cut down by a reference to the provisions in [SECTION] of the [ACT] which relate to Services or to provisions in the earlier [ACT] Acts relating to the same subject
xx xx xx
13. There can be no doubt that [SECTION] of the Act does embody a principle of discrimination on the ground of descent only. It says that in choosing the persons to fill the new offices, the Collector shall select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished. This, in our opinion, is discrimination on the ground of descent only and is in contravention of [SECTION] of the [ACT]."
12. Likewise, in [PRECEDENT] (supra), the [ACT] Bench of the Apex Court treated preemption on the ground of vicinage by custom as law under [SECTION] of the [ACT] and law in force in [SECTION] of the [ACT]. It further held that such a custom having force of law was void as it offended fundamental rights and particularly right under [SECTION] of the [ACT] inasmuch as it imposed unreasonable restriction on the right to acquire, hold and to dispose of the property.
13. Likewise, in [PRECEDENT] (supra), the Apex Court was concerned with the constitutionality of [SECTION] of the [ACT], again a pre-constitutional law. This section places restriction on a person having a nephew or niece or any nearer relative as regards his power to bequeath his property for relatives or charitable use. [SECTION] places such a restriction only on Indian Christians. The Supreme Court held that this provision was not based on any intelligible differentia and was discriminatory in nature and, therefore, unconstitutional being violative of [SECTION] as well as [SECTION] & [SECTION] of the [ACT].
[SECTION]. In the light of the aforesaid position in law, the question which falls for determination in the present case is as to whether the custom which was applicable till the enactment of [ACT] and thereafter [ACT] would be violative of [SECTION] of the [ACT]. Learned counsel for the appellant, while contending that it would be so, relied upon the order of reference passed by a Single Judge of the Bombay High Court in In Re: Smt. [PRECEDENT] (supra). Perusal of that order indicates that the learned Single Judge has noted an earlier Division Bench judgment of the Bombay High Court in the case of [PRECEDENT]. The Division Bench in that case was concerned with the validity of the provisions of [ACT]. The said Act provided for the prevention of bigamous marriages amongst Hindus. Challenge to the provisions of the said Act was laid on the ground that it discriminated against the Hindus in preference to the Christians and Parsi citizens of the State insofar as it subjected the Hindus alone to the specially severe provisions as to punishment and procedure. The Division Bench negatived the challenge.
15. The learned Single Judge of the Bombay High Court in In Re: [PRECEDENT] (supra) was of the opinion that the aforesaid Division Bench judgment did not lay down law correctly and required consideration by a larger Bench of at least three Judges. The learned Single Judge, in that case, was presented with a petition filed by Smt. [ENTITY], widow of [ENTITY] for being appointed as a guardian of two minors under the [ACT]. The two minors were the son and daughter. As per the provisions of Personal Sunni Muslim Law, the son was entitled to double the share than the daughter on inheritance. According to the learned Single Judge, such a provision was violative of [SECTION] of the [ACT]. The learned Single Judge also noted provisions of [SECTION] of the [ACT] and opined that the Court had jurisdiction to determine the constitutional validity of the said provision. In this context, the aforesaid Division Bench judgment in [PRECEDENT] (supra) was taken note of and it was opined that the same required consideration by a larger Bench of at least three Judges. The learned Single Judge observed that no law, whether made by a legislature or Judge made, customary or otherwise, can be enforced by any Court in our country if it is inconsistent with or repugnant to guarantee of fundamental rights unless expressly saved under a specific provision of the [ACT] itself like [SECTION], [SECTION] and [SECTION] Personal Laws are law and laws in force under [SECTION] of the [ACT] and are enforceable in Courts subject to provisions of the [ACT] and not otherwise. Even customs and usages having the force of law are void if found inconsistent with any of the fundamental rights guaranteed by the [ACT]. It could not be the intention of founding fathers of our [ACT] to create any immunity in favour of personal laws. It is observed that the [ACT] is a living document and it is impossible to ignore patent discrimination resulting from some of the provisions of personal laws sought to be enforced in our Courts. Some of these provisions appear to be clearly unjust, for e.g. :-
(i) a Mohammedan male being entitled to marry four wives;
(ii) a Mohammedan husband being entitled to divorce his wife unilaterally by pronouncing of the word "Talaq" thrice;
(iii) gross inequality and inequality in matter of inheritance merely on the ground of sex;
(iv) provisions of old Hindu law depriving daughters of their right to inherit the property of their father if the deceased left a widow and a son behind him.
The learned Single Judge further observed that personal laws are not made by the legislature but are enforced by Courts. The question to be asked is as to whether the Court can be asked to enforce a provision of personal law which appears to be repugnant to the fundamental rights. Personal laws shall have to yield to fundamental rights and all laws, whether made by the legislature or otherwise, must necessarily conform to fundamental rights.
In the aforesaid circumstances, following order of reference was made :-
(a) Whether personal laws are subject to [SECTION] of the [ACT]?
(b) Whether the High Court has no jurisdiction to examine the question as to whether the impugned provision of personal law is in conformity with [ACT] or not and is bound to enforce it as it is, even if it appears to be repugnant to one or other of the fundamental rights guaranteed under [SECTION] of the [ACT]?
(c) Whether the provisions of Sunni Muslim Personal Law sought to be enforced in the Courts of Law to the effect that a son is entitled to double the share than that of a daughter on inheritance is violative of [SECTION] of the [ACT]?
[SECTION]. We may, however, point out that counsel have not been able to place the outcome of the said reference. Even with our own efforts to this effect, we have not been able to find out as to whether the Full Bench has answered the reference or it is still pending or what was the fate of this reference. It is possible that reference may not have been answered at all as a Single Judge was not competent to question the correctness of the Division Bench judgment and make a reference. Be that as it may, reliance upon the aforesaid order of reference may not be of much avail as it was only an order of reference and we have no decision on that reference before us.
17. However, in the present case it is not necessary to decide this issue at all. Reason is simple. The judgment of the learned ADJ needs to be affirmed for other reasons, about which there is hardly any challenge. In the facts of this case, where the appellant was not concerned with the land after her marriage, it is the respondents No. 2 to 4 who remained in cultivatory possession thereof and became bhumidars under the provisions of the [ACT]. Even the land stands mutated in their name. It is this Act which governs the field and on the basis of rights accrued to the persons in possession of the land under this Act that the compensation payable to them would be determined. There is no concept of ownership over the land in the scheme of the [ACT]. The compensation under the [ACT] is payable to the bhumidars declared as such under the [ACT] On that reckoning, it is the respondents who would be entitled to compensation to the exclusion of the appellant.
18. On this ground alone, therefore, this appeal is bound to fail. We, accordingly, dismiss this appeal, but leave the parties to bear their own costs.
([ENTITY]) JUDGE ([ENTITY]) JUDGE January 27, 2009 nsk