THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 11.09.2009

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WP (C) 2887/2008

SMT HAR NARAINI DEVI AND ANOTHER ...

Petitioners

- Versus -

UNION OF INDIA AND OTHERS

...

Respondents

Advocates who appeared in this case:-

For the Petitioners

: Mrs Santosh Singh with Mr Rakesh Mudgal

For the Respondent Nos.1&2

: Mr Gaurav Duggal

For the Respondent Nos.3 & 4: Mr Anand Yadav

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED

HON’BLE MR 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

1.

Through this writ petition, the petitioners seek that clause (a) of Section 50

of the Delhi Land Reforms Act, 1954 (hereinafter referred to as the „said Act‟), be

declared unconstitutional, allegedly being ultravires Articles 14, 15 and 21 of the

Constitution of India.

2.

The petitioners herein are the widow and daughter of Late Shri Ishwar Singh

(died in 1985) s/o Late Shri Mukhtiar Singh (died on 6.6.97). Late Shri Ishwar

Singh also had two sons, who are Respondent Nos. 3 and 4.

2009:DHC:3803-DB

3.

Late Shri Mukhtiar Singh was the bhumidhar in respect of certain lands

which were governed by the said Act. As per the provisions of Section 50 of the

said Act, on his death, his bhumidhari interest in the said holdings devolved upon

his grandsons, Respondent Nos. 3 and 4. Section 50 of the said 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:

(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;

2009:DHC:3803-DB

(o)

Father‟s father‟s son‟s son;

(p)

Daughter‟s son.”

(Underlining added)

4.

The main grievance of the petitioners is with respect to the line of succession

provided in Section 50. Clause (a) thereof requires that whenever a male

bhumidhar or asami dies, the interest shall first devolve upon the male lineal

descendants in the male line of descent, howsoever low, thus, excluding the female

descendants. Given the fact that the chances of there being no male lineal

descendants at all are extremely low, the interest in all likelihood will not devolve

upon the female descendants in any case. The widow of the deceased (Petitioner

No. 1) is mentioned in Clause (h) and the granddaughter (Petitioner No. 2) is

ignored completely. It is on the ground of discrimination on the basis of sex, that

the petitioners are challenging the said provision.

5.

The respondents, through their learned counsel, have raised a preliminary

objection with regard to the maintainability of the present petition, on the ground

that the said Act had been placed in the Ninth Schedule of the Constitution of India

(in Entry 61), by virtue of the Constitution (Seventeenth Amendment) Act,1964,

with effect from 20.06.1964. Article 31B of the Constitution provides that no Act

that has been placed in the Ninth Schedul