IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

Appeal from Order No. 225 of 2021

Maj. (Retd.) Nidhi Singh . ......…......Appellant.

Through: Shri C.S. Rawat and Shri Yogesh

Chandra Tiwari, learned counsel for the

appellant.

-Versus-

Sri Animesh Singh

and others. ……...Respondents.

Through: Shri Sanpreet Singh Ajmani, learned

counsel for the respondents.

Dates of Hearing: 17.12.2021, 29.06.2022 & 01.07.2022

Date of Judgment : 24.09.2022

Shri Sanjaya Kumar Mishra, J.

1. Appellant – plaintiff, a retired Army Personnel, has taken

exception to the order 13.09.2021 passed by learned Civil Judge

(Senior Division), Haldwani, District Nainital, in Original Suit

No. 08 of 2021, thereby dismissing her application for interim

injunction under Order XXXIX Rule 1 and 2 read with Section 151

of the Code of Civil Procedure, 1908 (hereinafter referred to as

“the Code” for brevity). Appellant-plaintiff, respondents -

defendant nos. 1 and 3 are brother and sisters and they are the

only surviving legal heirs of late Shri Hukum Singh. Shri Hukum

Singh purchased a property from its previous owner Shri Ram

Nath Satthi bearing Khata No. 00693, plot no. 691 GMe

measuring 0.1080 hectares, plot no. 692 A measuring 0.3490

hectares, plot no. 693 G measuring 0.1580 hectares, total 0.6150

hectares on execution of a registered deed of sale dated

11.01.1984. He was delivered possession thereof in the year 2009.

Father of the appellant – plaintiff gifted a piece of land to the

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plaintiff – appellant measuring 3850 sq. ft. through a registered

gift deed with respect to plot no. 0.691 GMe. It was a self-

acquired property of father of the appellant – plaintiff. On

05.01.2017, father of the appellant – plaintiff, Shri Hukum Singh

died intestate leaving behind plaintiff – appellant and defendant

– respondent nos. 1 and 3. However, the case of the appellant -

plaintiff is that after the death of her father, defendant –

respondent no. 1 by manipulating the records mutated his name

exclusively with revenue records on 12.09.2017. Thereafter, he

transferred the land in favour of his wife through gift deeds

dated 03.11.2018 and 29.12.2018. When the aforesaid fact came to

the knowledge of the plaintiff – appellant, she filed complaints

before District Magistrate, Commissioner, Kumaon Mandal,

Nainital and also before other appropriate forums.

By virtue of notification dated 05.03.2014, the Government

of Uttarakhand had declared the area where the property is

situated within the local limits of Haldwani – Kathgodam

Municipality. It is further case of the plaintiff – appellant that by

virtue of inclusion of the area within the local limits of Nagar

Nigam, the provisions of the Uttarakhand Zamindari Abolition

and Land Reforms Act, 1950 (hereinafter referred to as “the

UZALR, Act” for brevity) shall not be applicable, on such land

especially with relation to succession. It is further case of the

plaintiff – appellant that Hindu Succession Act, 1956, amended

in the year 2005, will be applicable in the matter and the plaintiff

– appellant has right over the property.

Learned counsel for the plaintiff – appellant would further

submit that respondent no. 2, who happens to be the wife of

respondent no. 1, has entered into a contract with another person,

who has started raising construction over the said property for

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commercial use. It is also stated that respondent no. 2 entered

into a contract with another person, in which contractor has

agreed to build flats over the property, in question, for the

purpose of selling them to different prospective buyers. Thus, on

such pleadings, the plaintiff – appellant has prayed for the

following reliefs:

“A. That a decree of declaration may kindly be passed in

favour of the plaintiff and against the defendant no. 1 and 2 by

declaring gift deeds executed by the defendant no. 1 in favour of

defendant no. 2 dated 03.11.2018 which is registered in Bhai No.

1, Zild No. 1661, pages 193 to 208, Karmank 8179, and gift deed

dated 29.12.2018 which is registered in Bhai No. 1, Zild No.

1697, pages 191 to 208, Karmank 9135, are void up to the extent

of plaintiff share.

B. That a decree of declaration may kindly be passed in favour

of the plaintiff and against the defendant no. 1 and 2 by declaring

to the plaintiff as co-owner up to 1/3 share in the property

detailed in para no. 2 of the plaint along with the defendants.

C. That a decree of permanent prohibitory injunction may

kindly be passed in favour of the plaintiff and against the

defendant no. 1 and 2 by restraining to the defendant no. 1 and 2

from alienating, changing the nature of suit property and

creating third party interest in the property detailed in para no. 2

of the plaint.”

2. In addition to the filing of suit for the aforesaid reliefs, the

plaintiff – appellant had also filed an application for temporary

injunction. It is stated, at the bar, that in the first instance while

issuing notice, learned Civil Judge (Senior Division), Haldwani

had granted an order directing the parties to maintain status quo

but later on, o n the final hearing of the application, he has

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dismissed the application for temporary injunction. The

defendants – respondents no. 1 and 2 have filed their written

statement, inter alia, contending that the appellant – plaintiff is

not entitled to have any share in the property of her father late

Shri Hukum Singh, as succession of the property shall be guided

by the provisions of Section 171 of the UZALR Act and as per

such provisions, it is stated by learned counsel for the defendants

– respondents no. 1 and 2 that inheritance of the property by a

married daughter of the Hindu male, who died intestate, leaving

behind a son is not permissible.

3. It is also the case of the defendants – respondents no. 1 and

2 that late Shri Hukum Singh has already gifted a portion of the

property purchased by him in favour of the plaintiff – appellant,

therefore, she is not entitled for any other property by way of

inheritance, which is situated in Haldwani.

4. Learned counsel for the defendants – respondents no. 1 and

2 would further submit that there was a family settlement

between the parties. It is stated that the plaintiff – appellant had

filed an affidavit before the SHO, Police Station Kathgodam to the

effect that appellant - plaintiff will not claim any right over the

property, in question. It is also stated by learned counsel for the

defendants – respondents no. 1 and 2 that the appellant – plaintiff

has not come to the Court with clean hands and she has

suppressed the material facts. Therefore, relief for grant of

temporary injunction should not be allowed.

5. It is apparent from the records that the learned Civil Judge

(Senior Division), Haldwani while deciding the application has

come to the conclusion that the land, in question, does not come

within the municipal limits of Haldwani – Kathgodam Nagar

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Nigam, therefore, provisions of the UZALR Act will be

applicable.

6. However, it is contended by the learned counsel for the

plaintiff - appellant that the property comes within the

jurisdiction of Haldwani - Kathgodam Municipality, as the

developer has taken permission from the Municipal Authorities

for raising constructions.

7. While considering the application for grant of temporary

injunction under Order XXXIX Rule 1 and 2 read with Section 151

of the Code, the Court has to consider following three principles:

i. Whether there is a prima facie case in favour of

the plaintiff?

ii. Whether balance of convenience lies in favour

of the plaintiff for issuing order of temporary injunction?

iii. Whether plaintiff shall suffer irreparable loss

which cannot be compensated by way of any amount of

costs or monetary award, if injunction is not granted?”

8. It is also a trite law that in order to effectively decide the

issue of title of the suit property, the Court shall preserve the

nature and character of the property, so that it will not create any

hindrance in proper adjudication of the suit. In such cases, the

Court should direct to maintain the status quo ante.

9. Now, coming to the first consideration, thus, to decide

whether there is any prima facie case in favour of the appellant -

plaintiff or not, this Court is of the opinion that the observations

made by the learned Civil Judge (Senior Division), Haldwani are

erroneous, as it is demonstrated from the records that the land, in

question, is within the local limits of Nagar Nigam of Haldwani-

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Kathgodam and now, the question that remains to be decided at

this stage is whether property shall be devolved upon all the

three legal heirs viz. son and daughters of late Shri Hukum Singh

or only upon respondent no. 1 being the son of late Shri Hukum

Singh, who shall inherit the property in its entirety as per Section

171 of the UZALR Act. Section 171 of the UZALR provides for

general order of succession. Sub-Section (2) is relevant for the

purpose of this case, which was amended vide Uttarakhand Act

No. 14 of 2021 w.e.f. 01.05.2021. Earlier, it was substituted by

Uttarakhand Act No. 25 of 2005 dated 28.10.2005. Thus, in

between 28.10.2005 and 01.05.2021, the Act at sub Section (2) of

Section (7) reads as follows:

“(2) The following relatives of the male bhumidhar or asami

are heirs subject to the provisions of sub-section (1),

namely:-

(a) widow and the male lineal descendant per strips:

Provided that the widow and the son of a pre-

deceased son how low-so-ever per strips shall inherit

the share which would have devolved upon the

predeceased son had he been alive;

(b) mother and father;

(c) unmarried daughter;

(d) married daughter;

(e) brother and unmarried sister being respectively the

son and the daughter of the same father as the

deceased; and son of a predeceased brother, the

predeceased brother having been the son of the same

father as the deceased;

(f) son's daughter;

(g) father's mother and father's father;

(h) daughter's son;

(i) married sister;

(j) half sister, having been the daughter of the same

father as the deceased;

(k) sister's son;

(l) half sister's son, the half sister having been the

daughter of the same father as the deceased;

(m) brother's son's son;

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(n) mother's mother's son;

(o) father's father's son's son."

10. Thus, it is clear that from the aforesaid provision that when

widow and male lineal descendant survives by the deceased male

Hindu having property right over landed property, then they

shall inherit per strips over other legal heirs but it is further

provided that the widow and the son of a pre-deceased son shall

also be entitled to property. The next, in line of heir, is mother

and father followed by unmarried daughter and followed by

married daughter. It is not disputed, at this stage, that the

plaintiff – appellant is a married daughter. The question arises

whether she is entitled to inherit the property of her father or not.

11. The Hindu Succession Act, 1956 was amended in the year

2005 vide the Hindu Succession (Amendment Act) No. 39 of 2005

with effect from 09.09.2005. After the amendments, it reads as

follows:

“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 sub-section

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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 pre- deceased

daughter, as they would have got had they been alive at

the time of partition, shall be allotted to the surviving

child of such pre-deceased son or of such pre- deceased

daughter; and

(c) the share of the pre-deceased child of a pre- deceased

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 sub- section, the

interest of a Hindu Mitakshara coparcener shall be

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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 sub- section 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.

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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.”

12. Section 8 of the Hindu Succession Act, 1956 reads as under:

“Section 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 the two classes,

then upon the agnates of the deceased; and

d. lastly, if there is no agnate, then upon the cognates of

the deceased.

13. Thus, under Section 6, as amended, a daughter irrespective

of her marital status, would be a coparcener in the Hindu

Coparcenery and is entitled to have a share equal to that of a son

in the ancestral / coparcener property. Section 8 of the Hindu

Succession Act, 1956 recognizes a daughter with respect to any

self acquired property or a separate property of a male Hindu

died intestate, she is included irrespective of her marital status in

Class I heir. Thus, both sections 6 and 8, with respect to

coparcenery property and separate property of Hindu male

dying intestate, a daughter is entitled to succeed having a share

equal to a son.

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14. Thus, it is clear from the plain reading of Section 171 of the

UZALR Act and Section 6 and 8 of the Hindu Succession Act,

2005 that there is a conflict between the two. Whereas the UZALR

Act excludes married daughter and unmarried daughter from

inheriting the property in the presence of male lineal descendant

i.e. son, the Hindu Succession (Amendment) Act 2005 recognizes

the right of daughter whether married and unmarried to be equal

to that of son. Thus, if the Hindu Succession Act is made

applicable to the case, then property shall also be inherited by the

appellant - plaintiff whereas if the UZALR Act is made applicable

then plaintiff – appellant shall not be entitled to have any share in

the property, as she is not preferred heir over the son.

15. Section 129 of the UZALR Act describes the classes of

tenure holders. The Act recognizes following tenure holders: (i)

Bhumidhar with transferable rights (ii) Bhumidhar with non

transferable rights (iii) Asami and (iv) Government lessee.

16. Section 130 of the UZALR Act provides for bhumidhar with

transferable rights. The said Section has been amended several

times. There was an amendment by virtue of Uttarakhand

Amendment No. 10 of 2016 dated 06.04.2016 by which clause (d)

is added. Clause (e) is added vide Act No. 04 of 2014 and Clauses

(f) and (g) are added vide Act No. 10 of 2016. However, for better

appreciation the said provisions, the entire Section is quoted

below:

“130. Bhumidhar with transferable rights - Every

person belonging to any of the following classes, not being

a person referred to in Section 131, shall be called a

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bhumidhar with transferable rights and shall have all the

rights and be subject to all the liabilities conferred or

imposed upon such bhumidhars by or under this Act,

namely-

(a) every person who was a bhumidhar immediately

before the date of commencement of the Uttar Pradesh Land

Laws (Amendment) Act, 1977;

(b) every person who, immediately before the said

date, was sirdar referred to in Clause (a) or Clause (c) of

Section 131, as it stood immediately before the said date;

(c) every person who in any other manner acquires

on or after the said date the rights of such a bhumidhar

under or in accordance with the provisions of this Act.

(d) refugees who came to India before the year, 1971

from the eastern Pakistan, (existing Bangladesh) and who were alloted land under the Rehabilitation scheme of the

Government of India, prior from 1980 on lease by the district rehabilitation office, Bareilly under the Government Grant Act, 1895 for agriculture within the territorial

jurisdiction of temporary District Nainital (existing

District Udham Singh Nagar) within the Rehabilitation

scheme of the Government of India and who is such

original lease or their legal heirs and with consent of

original lease or possession in land without any consent by

following procedure:-

(1) Such original lease or their legal heirs who have

deposited the premium as above to be calculated at

part of circle rate as prevailing on 09-11 -2000 shall

be declared the Bhumidhari transferable rights

without fee.

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(2) Such original lease or their legal heirs who have

not deposited the premium till date as able to be

calculated at part of circle rate as prevailing on 09-

11-2000 shall be declared transferable Bhumidhari

rights after deposition of aforesaid premium.

(3) Such persons in possession of land who have

come into possession of the land with the consent of

the original lease or his legal heirs and who have not

deposited any premium till date, if they deposit

premium calculated at part of the circle rate as

prevailing on 01- 09-2005 shall be granted

Bhumidhari transferable rights after deposition of

aforesaid premium.

(4) Such persons who are in possession of the land

without the consent of the original lease or their legal

heirs shall be granted Bhumidhari transferable rights

if they deposit a premium part of the circle rate as

prevailing on 01-09-2010.

(5) That the aforesaid premium can be deposited in

two six months installment.

Explanation: All such persons who fall within the

category of legal heirs/successors under the

provisions of Uttar Pardesh Zamindari Abolition

and Land Reforms Act, 1950 (as adopted in

Uttarakhand) as contained in Section 171 to 175

shall be deemed as legal heirs.

(e) To the as per prescribe procedure by the Government

such land of category 4 within the area of the State of

Uttarakhand, where the persons were occupied as

unauthorised from the date of 30.06.1983 or before the date

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and presently are occupied in that land also as per

procedure prescribed by the Government.

(f) Such persons whom allotted the land of category three

within the state and in which the eligible and legal lessee is

also a holder of such land in present time the state

Government shall declare transferable right holders as per

prescribed procedure in such restrictions as imposed by the

state government by order.

(g) The lessee and unauthorized occupants of Nagar

Panchyat area Lal Kanua, district Nainital shall be declared

the land holders of transferable rights according to

procedure prescribed by the Government.”

17. Thus, a bhumidhar having transferable right has been

described as every person belonging to any of the classes

enumerated thereunder, not being a person referred to in Section

131, which is not applicable to this case, who was a bhumidhar

having transferable rights, immediately before the

commencement of the U.P. Land Laws (Amendment) Act, 1977;

every person, who immediately before the said date, was sirdar

referred to clause (a) or Clause (c) of Section 131 as it stood

immediately before the said date or any person, who in any other

manner, acquires on or after the said date the rights of such a

bhumidhar under or in accordance with the provisions of the Act.

18. Thus, it is apparent that a bhumidhar having transferable

rights is a special class of person, whose right over the property

has been recognized by the UZALR Act. But the condition that

has to be satisfied is that he must have acquired the property

rights as a bhumidhar in accordance with the provisions of the

UZALR Act.

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19. It is not disputed at this stage that the property was not

vested with late Shri Hukum Singh rather he purchased it from

another person. Such other person was a bhumidhar. Therefore,

this Court is of the opinion that the property that has been

purchased by a person from another person, who was a

bhumidhar having transferable right, will simply be an owner of

the property and order of succession, as enshrined in Section 171

of the UZALR Act, will not be applicable to him. He will be

guided by general law of inheritance, as enshrined under the

Hindu Succession (Amendment) Act, 2005.

20. The Division Bench of Orissa High Court in Writ Petition

(C) No. 28966 of 2011 (Urbashi Sahoo Vs. State of Orissa and

another), vide judgment dated 11.08.2021, in which the

undersigned was a member, has dwelt upon the discrimination

that is meted out to married daughters. We ta ke into

consideration the concurring judgment authored by Ms. Savitri

Ratho, J in the aforesaid case. We consider it appropriate to quote

the entire observations made by Justice Savitri Ratho while

concurring with views of the undersigned.

“15. It would be apposite to refer to the Convention on the

Elimination of All Forms of Discrimination against

Women (in short “CEDAW”), adopted in 1979 by the UN

General Assembly, which is often described as an

international bill of rights for women (emphasis supplied).

Consisting of a preamble and 30 articles, it defines what

constitutes discrimination against women and sets up an

agenda for national action to end such discrimination.

(emphasis supplied)

The Convention defines discrimination against

women as: "...any distinction, exclusion or

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restriction made on the basis of sex which has the

effect or purpose of impairing or nullifying the

recognition, enjoyment or exercise by women,

irrespective of their marital status, on a basis of

equality of men and women, of human rights and

fundamental freedoms in the political, economic,

social, cultural, civil or any other field."

The Preamble of CEDAW reiterates that

discrimination against women violates the principles of

equality of rights and respect for human dignity; is an

obstacle to the participation on equal terms with men in the

political, social, economic and cultural life of their country;

hampers the growth of the personality from society and

family and makes it more difficult for the full development

of potentialities of women in the service of their countries

and of humanity. By accepting the Convention, States

commit themselves to undertake a series of measures to end

discrimination against women in all forms, including:

to incorporate the principle of equality of men and women

in their legal system, abolish all discriminatory laws and

adopt appropriate ones prohibiting discrimination against

women;

to establish tribunals and other public institutions to

ensure the effective protection of women against

discrimination; and

to ensure elimination of all acts of discrimination against

women by persons, organizations or enterprises.

The Government of India was an active participant

to CEDAW , ratified it on 19-6-1993 and acceded to

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CEDAW on 8-8-1993 with reservation on Articles 5(e),

16(1), 16(2) and 29.

The principle of “gender equality” is enshrined in the

Indian Constitution and in its Preamble and Fundamental

Rights. It also finds mention in the Fundamental duties as

well as directive Principles. Our Constitution grants

equality to women, ensures their equality before the law,

and prohibits discrimination against any citizen on the

basis of religion, race, caste, sex or place of birth. So it is

expected that the Government should make endeavour to

eliminate obstacles, prohibit all gender-based

discriminations which is also mandated by Articles 14 and

15 of the Constitution of India. It should also take all steps

possible to modify law and its policies in order to do away

with gender-based discrimination in the existing laws and

regulations. Unfortunately, everyday, we come across

instances of discrimination on the basis of gender in all

fields including legislation. This is only one such instance.

Almost half a century back, Justice V.R Krishna Iyer in the

case of C. B. Muthamma vs Union Of India & Ors

reported in 1979 SCC (4) 260, where the petitioner a lady

I.F.S officer had challenged two draconian provisions in the

service rules; one - which required a woman member of the

service to obtain permission in writing of the Government

before marriage and the woman member may be required to

resign any time after marriage if the Government is

satisfied that her family and domestic commitments will

hamper her duties as a member of the service and the

second – that no married woman shall be entitled as of right

to be appointed to the service. She had also stated that she

was not being given promotion and had been superseded by

male officers because of discrimination against women in

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the service. The petition was ultimately dismissed as

during pendency of the writ petition, the petitioner was

promoted, one of the offensive provisions was deleted and

another was in the process of being deleted; and the

government had agreed to review the seniority of the

petitioner. But not before Justice V Krishna Iyer in his

inimitable style and without mincing any words had

observed as follows:

“… 6. At the first blush this rule is in defiance of

Article 16 , iIf a married man has a right, a married

woman, other things being equal, stands on no worse

footing. This misogynous posture is a hangover of

the masculine culture of manacling the weaker sex

forgetting how our struggle for national freedom was

also a battle against woman's thraldom. Freedom is

indivisible, so is Justice. That our founding faith

enshrined in Articles 14 and 16 should have been

tragically ignored vis-a-vis half of India's humanity,

viz., our women, is a sad reflection on the distance

between Constitution in the book and Law in Action.

And if the Executive as the surrogate of Parliament,

makes rules in the teeth of Part III, especially when

high political office, even diplomatic assignment has

been filled by women, the inference of die-hard

allergy to gender parity is inevitable. 7. We do not

mean to universalise or dogmatise that men and

women are equal in all occupations and all situations

and do not exclude the need to pragmatise where the

requirements of particular employment, the

sensitivities of sex or the peculiarities of societal

sectors or the handicaps of either sex may compel

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selectivity. But save where the differentiation is

demonstrable, the rule of equality must govern…”.

In the case of Anuj Garg v. Hotel Association of

India, (2008) 3 SCC 1, the provisions of section 30 of the

Punjab Excise Act 1914, prohibiting employment of males

below the age of 25 years and women on the premises where

liquor is sold, were under challenge . Some of the

observations of the Hon’ble Apex Court are very pertinent .

They are extracted below:

“… 7. The Act is a pre-constitutional legislation.

Although it is saved in terms of Article 372 of the

Constitution, challenge to its validity on the touchstone of

Articles 14, 15 and 19 of the Constitution of India, is

permissible in law. While embarking on the questions

raised, it may be pertinent to know that a statute although

could have been held to be a valid piece of legislation

keeping in view the societal condition of those times, but

with the changes occurring therein both in the domestic as

also international arena, such a law can also be declared

invalid.”….

“21. When the original Act was enacted, the concept

of equality between two sexes was unknown. The makers of

the Constitution intended to apply equality amongst men

and women in all spheres of life. In framing Articles 14 and

15 of the Constitution, the constitutional goal in that behalf

was sought to be achieved. Although the same would not

mean that under no circumstance, classification, inter alia,

on the ground of sex would be wholly impermissible but it

is trite that when the validity of a legislation is tested on

the anvil of equality clauses contained in Articles 14 and

15, the burden therefoer would be on the State. While

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considering validity of a legislation of this nature, the

Court was to take notice of the other provisions of the

Constitution including those contained in Part IV-A of the

Constitution.”

“25………. Right to be considered for employment

subject to just exceptions is recognized by Article 16 of the

Constitution. Right of employment itself may not be a

fundamental right but in terms of both Articles 14 and 16

of the Constitution of India, each person similarly situated

has a fundamental right to be considered therefor. When a

discrimination is sought to be made on the purported

ground of classification, such classification must be

founded on a rational criteria. The criteria which in absence

of any constitutional provision and, it will bear repetition

to state, having regard to the societal conditions as they

prevailed in early 20th century, may not be a rational

criteria in the 21st century. In the early 20th century, the

hospitality sector was not open to women in general. In the

last 60 years, women in India have gained entry in all

spheres of public life.

They have also been representing people at grass root

democracy. They are now employed as drivers of heavy

transport vehicles, conductors of service carriage, pilots et.

al. Women can be seen to be occupying Class IV posts to

the post of a Chief Executive Officer of a Multinational

Company. They are now widely accepted both in police as

also army services.”

………………………………………………

In the case of A. Satyanarayana v. S.

Purushotham, (2008) 5 SCC 416, the Hon’ble Supreme

Court has observed as under:

21

“34. A statutory rule, it is trite law, must be made in

consonance with constitutional scheme. A rule must not be

arbitrary. It must be reasonable, be it substantive or a

subordinate legislation. The Legislature, it is presumed,

would be a reasonable one.

Indisputably, the subordinate legislation may reflect

the experience of the rulemaker, but the same must be

capable of being taken to a logical conclusion.”….

The Hon’ble Supreme Court recently, in the case of

Secretary, Ministry of Defence v. Babita Puniya reported

in 2020 SCC OnLine SC 200 while dealing with

appointment of women in short service commissions in the

Army has observed as follows: -

“67. The policy decision of the Union Government is

a recognition of the right of women officers to equality of

opportunity. One facet of that right is the principle of non

discrimination on the ground of sex which is embodied in

Article 15(1) of the Constitution. The second facet of the

right is equality of opportunity for all citizens in matters of

public employment under Article 16 (1)……”

E. Stereotypes and women in the Armed Forces

53. Seventy years after the birth of a post-colonial

independent state, there is still a need for change in

attitudes and mindsets to recognize the commitment to the

values of the Constitution…..”

16. But Odisha is not the only state whose Rules reek of

gender discrimination such discrimination against a

married daughter in the matter of compassionate

appointment . In many other states of our country, similar

22

discrimination is writ large in the Rules framed for

compassionate appointment, for which different High

Courts have examined the provisions and there are a catena

of decisions pronounced by various High courts which have

decried such discrimination and have held that any

action/clause of the policy/ Rules/ Regulation which deprive

a married daughter from being considered for

compassionate appointment runs contrary to Articles 14,

15, 16 and also Article - 39(a) of the Constitution.

17. While in some cases the offensive clause/provision have

been struck down, in others it has been read down to save

the provision from being declared unconstitutional, so that

a married daughter is included within the definition of

Family of family member members and/or held entitled to

be considered for compassionate appointment and/or

directed to be given appointment.

Some High Courts have ruled that if the daughter

was unmarried and dependent on the deceased Government

servant at the time of his/her death and the only child, she

has a right to be considered for appointment. A few High

Court have held that keeping in view the object of the

scheme/rules, irrespective of the number of dependent

children of the deceased employee at the time of his death, a

married daughter has the right to be considered for

employment.

In the case of Udham Singh Nagar Dist rict

Cooperative Bank Ltd. & another Vs Anjula Singh

and Others: Special Appeal No.187 of 2017 reported in

AIR 2019 Utr 69, the following questions had been

referred to the Full Bench of the Uttarakhand high Court:

23

“(i) Whether any of the members, referred to in the

definition of a "family" in Rule 2(c) of the Uttar Pradesh

Recruitment of Dependants of Government Servants

Dying in Harness Rules, 1974 (for short "the 1974 Rules")

and in the note below Regulation 104 of the U.P. Co-

operative Committee Employees Service Regulations, 1975

(for short "the 1975 Regulations") would be entitled for

compassionate appointment even if they were not

dependent on the Government servant at the time of his

death?

(ii) Whether non-inclusion of a "married daughter" in the

definition of "family", under Rule 2(c) of the 1974 Rules,

and in the note below Regulation 104 of the 1975

Regulations, is discriminatory, and is in violation of

Articles 14, 15 and 16 in Part III of the Constitution of

India?”

After referring to a number of decisions, the reference was

answered as follows:

“…66. We answer the reference holding that: i.

Question No.1 should be answered in the affirmative. It is

only a dependent member of the family, of the Government

servant who died in harness, who is entitled to be

considered for appointment, on compassionate grounds,

both under the 1974 Rules and the 1975 Regulations.

ii. Question No.2 should also be answered in the

affirmative. Non- inclusion of "a married daughter" in the

definition of a "family", under Rule 2(c) of the 1974 Rules

and the note below Regulation 104 of the 1975 Regulations,

thereby denying her the opportunity of being considered for

compassionate appointment, even though she was

24

dependent on the Government servant at the time of his

death, is discriminatory and is in violation of Articles 14,

15 and 16 in Part III of the Constitution of India.

iii. We, however, read down the definition of "family", in

Rule 2(c) of the 1974 Rules and the note below Regulation

104 of the 1975 Regulations, to save it from being held

unconstitutional. As a result a "married daughter" shall

also be held to fall within the inclusive definition of the

"family" of the deceased Government servant, for the

purpose of being provided compassionate appointment

under the 1974 Rules and the 1975 Regulations.”

A Full Bench of the Madhya Pradesh High Court in

the case of Meenakshi Dubey vs. M.P. Poorva Kshetra

Vidyut Vitran Co. Ltd. and others reported in AIR

2020 MP 60 : SCC Online MP 383 had been called upon

to decide the following issue:

"Whether in the matter of compassionate

appointment covered by Policy framed by the State

Government wherein, certain class of dependent which

includes unmarried daughter a widowed daughter and a

divorced daughter and in case of a deceased Govt. servant

who only has daughter, such married daughter who was

wholly dependent on Govt. servant subject to she giving

her undertaking of bearing responsibility of other

dependents of the deceased Govt. servant, Clause 2.2 and

2.4 can be said to be violative of Article 14, 15, 25 and 51A

(e) of the Constitution."

It held as follows:

“….17 We are not oblivious of the settled legal position

that compassionate appointment is an exception to general

25

rule. As per the policy of compassionate appointment, State

has already decided to consider claims of the married

daughters (Clause 2.4) for compassionate appointment but

such consideration was confined to such daughters who

have no brothers. After the death of government servant, it

is open to the spouse to decide and opt whether his/her son

or daughter is best suited for compassionate appointment

and take responsibilities towards family which were being

discharged by the deceased government servant earlier.”

18. xxx xxx xxx

19. xxx xxx xxx

20. “…… In view of catena of judgments referred

hereinabove, it can be safely concluded that Clause 2.2 to

the extent it deprives married woman from right of

consideration for compassionate appointment violates

equality clause and cannot be countenanced. By

introducing Clause 2.4, the Government partially

recognised the right of consideration of married daughter

but such consideration was confined to such daughters who

have no brothers. Clause 2.2, as noticed, gives option to the

living spouse of deceased government servant to nominate

son or unmarried daughter. There is no condition imposed

while considering a son relating to marital status.

Adjective/condition of "unmarried" is affixed for the

daughter. This condition is without there being any

justification and; therefore, arbitrary and discriminatory in

nature.

21. Looking from any angle, it is crystal clear that clause

2.2 which deprives the married daughter from right of

consideration cannot sustain judicial scrutiny. Thus, for

26

different reasons, we are inclined to hold that Indore Bench

has rightly interfered with Clause 2.2 of the said policy in

the case of Smt. Meenakshi (Supra).

22. In nutshell, broadly, we are in agreement with the

conclusion drawn by Indore Bench in Smt. Meenakshi

(Supra) and deem it proper to answer the reference as

under:

"Clause 2.2 of the policy dated 29.09.2014 is

violative of Articles 14, 15, 16 and 39(a) of the

Constitution of India to the extent it deprives the married

daughter from right of consideration for compassionate

appointment. We find no reason to declare Clause 2.4 of the

policy as ultra vires. To this extent, we overrule the

judgment of Indore Bench in the case of Meenakshi

(Supra)"

23. The issue is answered accordingly.”

A Division bench of the Himachal High Court in the

case of Mamata Devi vs State of HP : 2020 SCC

OnLine HP 2125 : 2021 Lab IC 1, has directed the State

to give compassionate employment to the petitioner who

was the married daughter if she otherwise fulfilled the

eligibility criteria, holding as follows:

“… 22. Moreover, in the instant case there is no

male member in the family, since the father of the

petitioner, who died in harness, left behind his widow and

two daughters only, the petitioner, being the elder

daughter. The aim and object of the policy for

compassionate appointment is to provide financial

assistance to the family of the deceased employee. In the

absence of any male child in the family, the State cannot

27

shut its eyes and act arbitrarily towards the family, which

may also be facing financial constraints after the death of

their sole bread earner.

23. As held above, the object of compassionate appointment

is not only social welfare, but also to support the family of

the deceased government servant, so, the State, being a

welfare State, should extend its hands to lift a family from

penury and not to turn its back to married daughters,

rather pushing them to penury. In case the State deprives

compassionate appointment to a married daughter, who,

after the death of the deceased employee, has to look after

surviving family members, only for the reason that she is

married, then the whole object of the policy is vitiated.

24. After incisive deliberations, it emerges that core

purpose of compassionate appointment is to save a family

from financial vacuum, created after the death of deceased

employee. This financial vacuum could be filled up by

providing compassionate appointment to the petitioner,

who is to look after the survivors of her deceased father and

she cannot be deprived compassionate appointment merely

on the ground that she is a married daughter, more

particularly when there is no male child in the family and

the petitioner is having ‘No Objection Certificates’ from her

mother and younger sister, the only members in the family.

25. In the instant case, in case the petitioner is not given

compassionate appointment, who has to take care of her

widowed mother and sister, if she is otherwise eligible and

she fulfils the apt criteria, the whole family will be pushed

to impoverishment, vitiating the real aim of the

compassionate employment policy….”

28

In a recent decision, the Madhya Pradesh High

Court in the case of State of M.P vs Jyoti Sharma: 2021

SCC online M.P., has found fault with the provision

making a married daughter eligible for compassionate

appointment only when she is an only child. Referring to

the CEDAW and the observations of the Hon’ble Supreme

Court in the case of Babita Puniya (supra), it has held as

follows:

“…By introducing Clause 2.4, the Government

partially recognised the right of consideration of married

daughter but such consideration was confined to such

daughters who have no brothers. Clause 2.2, as noticed,

gives option to the living spouse of deceased government

servant to nominate son or unmarried daughter. There is

no condition imposed while considering a son relating to

marital status. Adjective/condition of “unmarried” is

affixed for the daughter. This condition is without there

being any justification and; therefore, arbitrary and

discriminatory in nature.”….. ….“In view of catena of

judgments referred hereinabove, it can be safely concluded

that Clause 2.2 to the extent it deprives married woman

from right of consideration for compassionate appointment

violates equality clause and cannot be countenanced. By

introducing Clause 2.4, the Government partially

recognised the right of consideration of married daughter

but such consideration was confined to such daughters who

have no brothers. Clause 2.2, as noticed, gives option to the

living spouse of deceased government servant to nominate

son or unmarried daughter. There is no condition imposed

while considering a son relating to marital status.

Adjective/condition of “unmarried” is affixed for the

daughter. This condition is without there being any

29

justification and; therefore, arbitrary and discriminatory in

nature.”…..

The Madhya Pradesh High Court in the case of

Bhawna Chourasia vs. State of M.P reported in 2019

(2) MPLJ 707 has held as follows :

“… 15. This is a matter of common knowledge that

in present days there are sizable number of families having

single child. In many families, there are no male child. The

daughter takes care of parents even after her marriage. The

parents rely on their daughters heavily. Cases are not

unknown where sons have failed to discharge their

obligation of taking care of parents and it is taken care of

and obligation is sincerely discharged by married

daughters. Thus, it will be travesty of justice if married

daughters are deprived from right of consideration for

compassionate appointment."

The Chhatisgarh High Court in the case of Sarojini

Bhoi vs. State of Chattisgarh and others: WP(S)

No.296 of 2014 decided on 30.11.2015 has held that the

impugned policy of Government prohibiting consideration

of married daughter from compassionate appointment to be

violative of Article 14 of the Constitution the criteria to

grant compassionate appointment should be dependency

rather than marriage. A daughter even after marriage

remains daughter of her father and she could not be treated

as not belonging to her father's family. Institution of

marriage was basic civil right of man and woman and

marriage by itself was not a disqualification. Paragraphs

16, 28 and 29 of the judgment are extracted below:

30

“…16. Thus, marriage is an institution/sacred union

not only legally permissible but also basic civil right of the

man and woman and one of the most important inevitable

consequences of marriage is the reciprocal support and the

marriage is an institution has great legal significance and

right to marry is necessary concomitant of right to life

guaranteed under Article 21 of the Constitution of India as

right to life includes right to lead a healthy life.

……………………..

28. Thus, from the aforesaid analysis, it emanates that

institution of marriage is an important and basic civil right

of man and woman and marriage by itself is not a

disqualification and impugned policy of the State

Government barring and prohibiting the consideration of

the married daughter from seeking compassionate

appointment merely on the ground of marriage is plainly

arbitrary and violative of constitutional guarantee

envisaged in Article 14, 15 and 16(2) of the Constitution of

India being unconstitutional.

29. As a fallout and consequence of aforesaid discussion,

writ petition is allowed and consequently Clause 3(1)(c) of

policy relating to compassionate appointment dated

10/06/2003 and Clause 5(c) of policy dated 14/06/2013

being violative and discriminatory to the extent of

excluding married daughter for consideration from

compassionate appointment are hereby declared void and

inoperative and consequently the impugned order

(Annexure-P/3) rejecting the petitioner's case for

compassionate appointment is quashed. The

respondents/State is directed to reconsider the claim of

petitioner for being appointed on compassionate ground

31

afresh in accordance with law keeping in view that her

father died on 06/01/2011 and her application was rejected

on 28/09/2011, preferably within a period of forty five days

from the receipt of certified copy of order. No order as to

cost(s).”

A Division Bench of the Chattisgarh High Court in

the case of Bailadila Berozgar Sangh vs. National

Mineral Corporation Ltd. has held as follows:

"....It is not disputed that the Corporation is an

instrumentality of the State and comes within the

definition of the State under Article 12 of the Constitution

and that the equality provisions in Articles 14 and 16 of the

Constitution apply to employment under the Corporation.

Therefore, a woman citizen cannot be made ineligible for

any employment under the Corporation on the ground of

sex only but could be excluded from a particular

employment under the Corporation if there are other

compelling grounds for doing so."

A larger Bench of the Calcutta High Court in the

case of State of W.B. and others vs. Purnima Das and

others (2018 Lab IC 1522) had been called upon to decide

the question:

"Whether the policy decision of the State

Government to exclude from the zone of compassionate

appointment a daughter of an employee, dying- in-harness

or suffering permanent incapacitation, who is married on

the date of death/permanent incapacitation of the employee

although she is solely dependent on the earnings of such

employee, is constitutionally valid ?" Clause 2 (2) provided

“For the purpose of appointment on compassionate ground

32

a dependent of a government employee shall mean

wife/husband/son/unmarried daughter of the employee who

is/was solely dependent on the government employee”

It interalia held that –

“.....We are inclined to hold that for the purpose of a

scheme for compassionate appointment every such member

of the family of the Government employee who is dependent

on the earnings of such employee for his/her survival must

be considered to belong to 'a class'. Exclusion of any

member of a family on the ground that he/she is not so

dependent would be justified, but certainly not on the

grounds of gender or marital status. If so permitted, a

married daughter would stand deprived of the benefit that a

married son would be entitled under the scheme. A married

son and a married daughter may appear to constitute

different classes but when a claim for compassionate

appointment is involved, they have to be treated equally

and at par if it is demonstrated that both depended on the

earnings of their deceased father/mother (Government

employee) for their survival. It is, therefore, difficult for us

to sustain the classification as reasonable."

It answered the reference in the following words:

"111. Our answer to the question formulated in

paragraph 6 supra is that complete exclusion of married

daughters like Purnima, Arpita and Kakali from the

purview of compassionate appointment, meaning thereby

that they are not covered by the definition of 'dependent'

and ineligible to even apply, is not constitutionally valid.

112. Consequently, the offending provision in the

notification dated April 2, 2008 (governing the cases of

33

Arpita and Kakali) and February 3, 2009 (governing the

case of Purnima) i.e. the adjective 'unmarried' before

'daughter', is struck down as violative of the Constitution.

It, however, goes without saying that after the need for

compassionate appointment is established in accordance

with the laid down formula (which in itself is quite

stringent), a daughter who is married on the date of death

of the concerned Government employee while in service

must succeed in her claim of being entirely dependent on

the earnings of her father/mother (Government employee)

on the date of his/her death and agree to look after the other

family members of the deceased, if the claim is to be

considered further."

The Karnataka High Court in (R. Jayamma

V.Karnataka Electricity Board reported in ILR 1992

Kar 3416 has held as follows:

"10. This discrimination, in refusing compassionate

appointment on the only ground that the woman is married

is violative of Constitutional Guarantees. It is out of

keeping with the trend of times when men and women

compete on equal terms in all areas. The Electricity Board

would do well to revise its guidelines and remove such

anachronisms."

The Madras High Court in R. Govindammal V.

The Principal Secretary, Social Welfare and

Nutritious Meal Programme Department & others

reported in 2015 (3) LW 756):

"14. Therefore, I am of the view that G.O.Ms. No.

560 dated 3- 8-1977 depriving compassionate appointment

to married daughters, while married sons are provided

34

compassionate appointment, is unconstitutional. In fact,

the State can make law providing certain benefits

exclusively for women and children as per Article 15(3) of

the Constitution. But the State cannot discriminate women

in the matter of compassionate appointment, on the ground

of marriage."

In Krishnaveni vs. Kadamparai Electricity

Generation Block, Coimbator District reported in

2013 (8) MLJ 684 in R. Govindammal, the Madras High

Court has inter alia observed that if marriage is not a bar in

the case of son, the same yardstick shall be applied in the

case of a daughter also.

The Bombay High Court in Sou. Swara Sachin

Kulkrni v. Superintending Engineer, Pune Irrigation

Project Circle, 2013 SCC OnLine Bom 1549 opined as

under:

"3..... Both are married. The wife of the deceased and

the mother of the daughters has nobody else to look to for

support, financially and otherwise in her old age. In such

circumstances, the stand of the State that married daughter

will not be eligible or cannot be considered for

compassionate appointment violates the mandate of Article

14, 15 and 16 of the Constitution of India. No

discrimination can be made in public employment on

gender basis. If the object sought can be achieved is

assisting the family in financial crisis by giving

employment to one of the dependents, then, undisputedly in

this case the daughter was dependent on the deceased and

his income till her marriage."

It was further held as under:

35

"3..... We do not see any rationale for this classification and

discrimination being made in matters of compassionate

appointment and particularly when the employment is

sought under the State."

A larger bench of the Tripura High court in the case

of Debashri Chakraborty vs. State of Tripura and

others 2020 (1) GLT 198, has taken note of various

judgments of the High Courts including the judgment of

Allahabad High Court in Vimla Shrivastava and others

vs. State of UP (supra) and judgment of Karnataka High

Court in Manjula Vs. State of Karnataka, 2005 (104)

FLR 271 and answered the question referred to it, as

follows:

“ii. Question No.2 should also be answered in the

affirmative. Noninclusion of "a married daughter" in the

definition of a "family", under Rule 2(c) of the 1974 Rules

and the note below Regulation 104 of the 1975 Regulations,

thereby denying her the opportunity of being considered for

compassionate appointment, even though she was

dependent on the Government servant at the time of his

death, is discriminatory and is in violation of Articles 14,

15 and 16 in Part III of the Constitution of India. iii. We,

however, read down the definition of "family", in Rule 2(c)

of the 1974 Rules and the note below Regulation 104 of the

1975 Regulations, to save it from being held

unconstitutional. As a result a "married daughter" shall

also be held to fall within the inclusive definition of the

"family" of the deceased Government servant, for the

purpose of being provided compassionate appointment

under the 1974 Rules and the 1975 Regulations."

(Emphasis supplied).

36

18. In the light of aforesaid decisions , constitutional

principles, exclusion of a married daughter from

consideration compassionate appointment while at the same

time including a married son as one of the dependents

eligible for compassionate appointment, is based solely on

gender discrimination and there is no other constitutionally

permissible basis . Exclusion of a married daughter is not

based on any rationale having reasonable nexus with the

object sought to be achieved. Such unreasonable exclusion

is therefore violative of Article 14 and 16 of the

Constitution of India which prohibits discrimination only

on the ground of sex.

19. In the case of Charadhar Das (supra), which

had been filed by the parents of the deceased Government

Servant, this Court had directed the Government to

consider the case of their unemployed son in law for

compassionate as Rule 16 (1) authorised the appropriate

authority to relax the Rules to such extent as it may

consider necessary for dealing with a case in a just and

equitable manner. But as discussed earlier there is no pari

materia provision in the 2000 Rules.

In Smt Ketaki Manjari Sahu vs State of Orissa

1998 (II) OLR 452, this Court in similar facts referring to

Rule 16 of the 1990 Rules had directed the State

Government to consider the case of the married daughter on

compassionate ground and without making it a precedent.

Unfortunately as has happened in the present case, when it

is left to the discretions of the authorities, more often than

not, they do not exercise it to do render justice. In spite of

the tribunal directing the Government to consider the case

of the petitioner as a special case under Rule – 16 of the

37

1990 Rules in accordance with the decision in the case of

Chakradhar Das (supra), till date, the petitioner has not

been reinstated.

21. Thus, it is clear that not only Articles 14 and 15 of the

Constitution of India provide for equality, equal opportunity and

also equal protection of law to the women, but also in the

Convention On Elimination Of All Forms Of Discrimination

Against Women adopted by the United Nations General

Assembly in 1979, which is also ratified by the Indian Parliament,

their rights are protected. It speaks against any distinction,

exclusion or restriction made on the basis of sex, which has the

effect or purpose of impairing or nullifying the recognition,

enjoyment or exercise by women, irrespective of their marital

status, on the basis of equality of men and women, of human

rights and fundamental freedoms in the political, economic,

social, cultural, civil or any other field.

22. The principles of law enunciated by Justice Savitri Ratho in

the judgment referred to above, in clear terms, provide that

daughters are also equal to sons, that has been recognized by

Indian Parliament by making amendment to the Hindu

Succession Act, 1956, in 2005. It is also seen that the Indian

Government as well as Parliament has taken a progressive view

with regard to the rights of daughters. The Hindu Widow’s

Remarriage Act was promulgated in the year 1856, then Hindu

Law of Inheritance was passed in 1929 where three female heirs,

son’s daughter, daughter’s daughter and sister, were conferred a

right over the inherited property. In the Hindu Women’s Right to

Property Act, 1937, for the first time, the rights of the widowed

Hindu women were recognized by the Central Assembly by this

Act. Then, by the passing of the Hindu Succession (Amendment)

38

Act, 2005, the Parliament recogniged the absolute right of a

daughter over the self-acquired property of her father. However,

by virtue of the Hindu Succession (Amendment) Act, 2005, the

Hindu daughters are kept in the same pedestal as that of a son.

They were given rights of a coparcener equal to those of the sons.

Thus, the progressive law has been made by Parliament of India

recognizing the rights of the women, guided by the Hindu Law

of Succession.

23. The Learned counsel for the respondents no. 1 and 2 –

defendants would rely upon the reported judgment in the case of

Ramji Dixit and A nother Vs. Bhrigunath and O thers AIR 1965

(Allahabad) Page 01 wherein the Full Bench of the Allahabad

High Court has held that

bhumidhari rights apply to all persons

owning bhumidhari rights regardless of how they acquired them

or from whom they inherited them. As per views expressed by

Hon’ble Chief Justice Shri M. C. Desai, as His Lordship then was,

the Legislature has made no distinction between the nature of

bhumidhari rights inherited by a son from his father and the

nature of those inherited by a Hindu widow from her husband

and of those inherited by a Muslim widow from her husband.

Consequently, the Full Bench has held that the interest of a

bhumidhar inherited by a widow from the husband is as much

transferable as that inherited by a son from his father. A reading

of the judgment reveals that the Allahabad High Court has taken

a progressive view of the matter and has interpreted rights in

favour of a widow. Moreover, the fact of the said case is different

from the facts of this case, and it cannot be said at this stage that

property cannot be inherited by a daughter.

24. The second case law that has been relied upon by the

counsel for the respondents no. 1 and 2 – defendants is

39

Prabhandha Samiti, TJP Arya Kanya Inter College, Etawah V.

State of U.P. 1976 AIR Allahabad Page 488. In the case vires of

Section 16A (6), 16B and 16C of the U.P. Intermediate Education

Act was challenged. This case has nothing to do with the present

case, as the facts of that case are entirely different from those of

the present case. The case relied upon by the learned counsel for

the respondents no. 1 and 2 - defendants, appears to be incorrect.

25. We have carefully examined the nominal index of AIR 1976.

As per the party name (Mahendra Singh Vs. State of Uttar

Pradesh), supplied by learned counsel for the respondents no. 1

and 2 – defendants, there is only one case reported in AIR 1976, of

Mahindra Singh, at page 59. This matter relates to election of U.P.

Cooperative Societies Act, especially Section 29 (4) thereof,

regarding interpretation of election for the Committee of

Management, so the facts of this case are also on a different issue.

26. In the case of Vineeta Sharma Vs. Rakesh Sharma and

others (2020) 9 SCC 1, the Hon’ble Supreme Court, after taking

into consideration a plethora of judgments, has held that the

Amendment Act, 2005, is applicable to any daughter with effect

from the date of amendment i.e., 09.09.2005, irrespective of the

fact whether she was born before the said amendment or not.

Section 6 of the Hindu Succession Act confers status of

coparcener on daughter born before or after the amendment in

the same manner as son with the same rights and liabilities. The

rights under the substituted Section 6 can be claimed by the

daughter born prior to the amendment with effect from the date

of amendment. Thus, it is clear that the special law, which guides

succession among Hindus, provides for succession of a daughter

in the property of her father irrespective of her marital status.

40

27. This Court is inclined to hold UZALR to be a general law

relating to the abolition of zamindari and land reforms. As far as

inheritance of the property is concerned, it is applicable to all the

citizens of the then State of Uttar Pradesh and, therefore, it has to

be treated as a general law, whereas the Hindu Succession Act is

applicable only to the Hindus, and therefore, it is a special law. It

is a well settled principle that special law takes precedence over

the general law. Therefore, the special law of land shall entitle the

plaintiff appellant to inherit the property of her late father Shri

Hukum Singh.

28. Another aspect of this case raised by Shri Sanpreet Singh

Ajmani, learned counsel for the respondents no. 1 and 2 –

defendants, is that the Court cannot take a view that the

provisions of Section 171 of the UZALR is contrary to the

provisions of Section 6 of the Hindu Succession (Amendment)

Act, 2005, in view of the fact that UZALR has been included in

the Ninth Schedule of the Constitution of India. However, a

reference to the Ninth Schedule of the Constitution of India

reveals that though UZALR has been included therein, UZALR

(Amendment) Act of 2005, which is referred to above, has not

been included therein, and therefore, the constitutional validity of

such provision can be agitated in an appropriate writ application.

29. Since this Court is of the opinion that the order of

succession provided under Section 171 of the UZALR Act is

regressive in nature, the Court should not countenance it and

should take a progressive approach, sensitive towards

recognition of the rights of a female Hindu.

30. In that view of the matter, this Court is of the opinion that,

prima facie, the plaintiff appellant does have an interest over the

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property of her late father Hukum Singh. Accordingly, this issue

is decided in favour of the appellant.

31. In the case of Dalpat Kumar Vs. Prahlad Singh, (1992) 1

SCC 719, the Hon’ble Supreme Court, while deciding an appeal

arising out of application for grant or refusal of injunction, has

held that the Court, while granting or refusing injunction, must

exercise sound judicial discretion to find the amount of

substantial mischief or injury which is likely to be caused to the

parties, if the injunction is refuse d, and compare it with that

which is likely to be caused to the other side if the injunction is

granted. If on weighing competing possibilities or probabilities of

likelihood of injury and if the court considers that pending suit,

status quo of the subject matter should be maintained, and an

injunction should be issued.

32. Thus, applying this principle to the present case, it is seen

that if injunction is refused, then the defendant shall proceed

with the construction of flats, which will be sold to different

persons and they shall take possession thereof and start living

therein, and thereby, it will cause substantial damage to the

appellant- plaintiff and it will be almost impossible to implead all

these persons, who would be allotted flats and any subsequent

owner thereof. The considerable effort and time that will be

required to be expanded in such cases would cause a lot of

hardships to the plaintiff.

33. It is also our experience that if the nature of the property is

allowed to be changed in a substantial way and thereby interest

of several other persons is inducted into it, then a long-drawn

process of litigation will ensue, which may lead to failure of

justice simply because of the delay that would be caused. On the

contrary, if the nature of the subject matter is maintained and

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status quo, as on today, is maintained, then the effective relief

could granted to the appellant – plaintiff, on ultimate analysis

after weighing the evidence lead by the parties, and it will not

cause any injury to the defendants. The only damage that can be

caused to the defendant is perhaps loss of the revenue, which can

always be compensated at the stage of the final disposal of the

suit.

34. However, on the contrary, if the construction is allowed to

continue, leading to creation of interest of some third parties,

then it will definitely be impossible for the Court to do effective

justice to the parties. Moreover, injunction can be granted against

a co-owner, if it is alleged that co-owner – dependent is changing

the nature of the property permanently. On the basis of the

principle of equity, this Court is of the opinion that balance of

convenience lies in favour the appellant – plaintiff by granting

injunction, then refusing to grant injunction.

35. The same principle applies to the question of irreparable

loss. The Court must be satisfied that non interference by the

Court would result in irreparable injury to the party seeking

relief, and that there is no other remedy available to the party

except one to grant injunction, and he needs protection from the

consequences of apprehended injury or dispossession.

Irreparable injury, as has been held by the Hon’ble Supreme

Court in the case of Dalpat Kumar (supra), does not mean that

there must be no physical possibility of repairing the injury, but

means only that there must be a material one, namely one that

cannot be adequately compensated by way of damages. In this

case, a daughter is asserting her right over the property left by

her father. Not only the pecuniary aspect is attached to it but also

an emotional quotient is attached to such application. A daughter

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will definitely feel good about inheriting the property of her

father, especially, when the Indian Parliament has made a

progressive legislation recognising the rights of a daughter.

Moreover, if the defendant is allowed to change the very basic

nature of the property and thereby create interest of a number of

other persons, who are not related to the appellant – plaintiff or

defendants, then no amount of damages can repair such injury.

36. In that view of the matter, this Court is of the opinion that

injury that will be caused to the plaintiff-appellant will be of the

genre of “irreparable injury”, and therefore, this Court comes to

the conclusion that all the ingredients in this case are fulfilled.

37. The learned counsel for the respondents – defendants has

submitted that the appellant – plaintiff has come to the Court by

suppressing certain facts like family settlement before the police,

which was settled after filing of a complaint by the appellant –

plaintiff.

38. In our considered opinion, the appellant – plaintiff has

already made certain pleadings in her application that she had

made several representations before several authorities but it

had

yielded no result, and therefore, she filed a suit for temporary

injunction. In that view of the matter, we are of the opinion that it

cannot be said that appellant-plaintiff has come to the Court by

suppressing material facts. In fact, appellant - plaintiff has

disputed the execution of any family settlement. Moreover, the

alleged relinquishment of her right has not been executed

through any registered document. Moreover, Annexures No. 2

and 3 to the Misc. Application filed by the respondents -

defendants are affidavits. It is a well settled principle of law that

an affidavit cannot take the place of family settlement. Family

settlement has to be made with respect to an earlier agreement

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between the co-sharers. Moreover, this affidavit appears to have

been filed before the SHO, Police Station –Kathgodam in a

criminal case. By execution of an affidavit, a right cannot be

extinguished, and nor can a right be created. Hence, this Court is

of the opinion that there is no serious suppression of fact which

should have any adverse effect on the case of the appellant.

39. It is stated by the learned counsel for the respondents –

defendants that, in the meantime, about 24 persons have been

allotted with the flats, and unless they are heard, an injunction

should not be passed. However, we have carefully perused the

application filed by the respondents – defendants on 01.12.2021.

The details of such persons or even the Bank, which has already

granted advance to the respondents – defendants, have not been

described, so it must not be within the knowledge of the

appellant – plaintiff about the description of persons, who might

claim some interest in the property in question. It is a well settled

principle of law that only for a non-joinder of party, the civil

proceedings should not be dismissed. In fact, there are several

judgments of various High Courts which state that in case the

defendant takes a plea of non- joinder of party and that, in their

absence, a case cannot be decided effectively, or that those

persons should be heard before passing of an order, then the law

requires that defendant to describe the persons who have an

interest over the property, so that plaintiff had an opportunity to

make them party to the civil proceedings. Dismissing an

application, on the question of non joinder of necessary party, is

resorted to only when the defendant reveals before the court by

filing proper documents or by making specific averments in the

written statement about names of the parties and their

description, who should be impleaded and be heard before any

order is passed.

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40. We do not find any such description of the parties by

respondents - defendants in the documents filed before us.

Defendant - respondent no. 1 has also filed his written statement

before learned Civil Judge (Senior Division), Haldwani. There

also the defendant – respondent no. 1 has not taken any such

specific plea that certain persons are to be heard before any order

is passed, and at this stage, the defendants cannot take a plea that

the bank, which is not named in the written statement, or any

persons who have been allegedly allotted with flats / apartments,

are necessary to be heard before the order of injunction is passed.

The written statement filed by the defendants – respondents is

singularly lacking in specific plea in this regard. This Court is of

the opinion that the contention raised by the learned counsel for

the respondents with regard to opportunity of hearing to the

parties who might have applied for allotment of the Apartments

does not hold any water. Hence, this Court is not inclined to give

much importance to such argument.

41. In that view of the matter, this Court is of the opinion that

appellant – plaintiff has prima facie case in her favour, which

requires careful consideration. A balance of convenience lies in

her favour for issuing injunction, then refusing the same. It is,

thirdly, held that the appellant – plaintiff shall suffer irreparable

injury, if injunction is not granted and such injury cannot be

compensated by any amount of costs or damages.

42. In that view of the matter, this Court is also of the view that

the nature and character of subject matter have to be preserved

for the effective adjudication of the issues to the suit. In that view

of the matter, the appeal is allowed. The order dated 13.09.2021

passed by Civil Judge, (Senior Division), Haldwani is set aside.

Respodents – defendants are hereby injuncted from raising

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further constructions over the suit property. There shall be no

order as to costs. Trial court records be sent back forthwith.

(Sanjaya Kumar Mishra, J.)

(Grant urgent certified copy of this judgment, as per Rules)

SKS