Vaibhav Pandiya (Director) 13 October 2016

Upzalr or hsa?

Dear learned lawyers,

Please spare a bit of your valuable time for the given case and advice accordingly.

Facts:

1. There was Mr. X, who died intestate in 1986. He has a self-aquired property, a land, which he has bought with his self-earned capital.

2. To Mr. X, there are 7 children, three sons, A,B,C and four daughters D,E,F,G.

3. In the life-time of Mr. X, this land has been taken over in the URBAN CEILING ACT, in this refrence Mr. X has appealed to exempt this land in this ceiling act citing it as an "agricultural" land. However, the appeal was rejected by the magistrate terming it as an Urban Land.

4. In 1986, after the death of Mr. X, the sons A, B and C have got their names mutated in the land, there were no name of daughters. When asked, the sons told that it is an agricultural land and succession is governed by UPZALR Act and not by Section 8 of Hindu Succession Act.

5. Since the Local development Authority has not taken possession of the land, so in the year 2007, the land has been given back under Ceiling Repealing Act (with scrap off some area).

6. Now the sons wanted to sell the land but could not do so, by what reasons, are not apparent to us.

7. In the year 2012, a legal notice has been served to the brothers A,B,C by the sisters D,E,F,G demanding their equal right, i.e. 1/7th in the said property, under Section 8 of Hindu Succession Act 1956. To this no answer was formaly given by the brothers, however they have filed a Caveat in the Local District Court.

8. Between 2012 and 2015, the brothers have called a number of family members meeting for mutual compromise, every time deciding a particular share, less than 1/7th; though each time the sisters agreed to such fluctuating fractions; nevertheless each time after some weeks the brothers deviate from their said words citing that the land is agricultural, governed by UPZALR act and there is no right of daughters in it.

9. In December 2015, a legal notice is again served to the brothers, but again unanswered by them.

10. In the record of Local development Authoruty, the land has been recored as Urban.

11. Though lots of attempts were made for the original copy of sale deed and the basis of mutation, but they are not easily available in the records.

QUESTIONS:

1. Nature of Land: The brothers are citing it as an agricultural land so making it a subject of UPZALR Act and not HSA; if it is an agricultural land then how

(a) It has been taken over in Urban Ceiling Act?

(b) Why the appeal made by the owner for the same has been rejected then?

So my question is how to confirm the use of land in a concrete manner and know which succession rule will be applicable, HSA or UPZALR?

2. If it is an urban land, the the brothers sell the property alone, without the consent of sisters?

3. As now the brothers are making speedy process for the sale of land, what can be the immediate possible remedial process that can be adopted by the sisters?

4. If it is an urban land then how in mutation there were no names of sisters? How to obtain the documents where were the basis for mutation and the original sale deed?

Thanks.

Reply Follow

3 Replies

Ms.Usha Kapoor (CEO) 14 October 2016

The property was self acquired by your dead father who died intestate. Now you are sayingeven the mutation PAPERS ALSO HAVE BEEN LOST.All the 3brothers are bound to give each of the4 sisters 1/7 th share in the property becuase after 2005 amendment of HSA even if the property is agricultural it is no bar for a woman to acquire agricultural land. So whether proprty is agriculturaor non gricultural or urban duaghters have equal share in your father's property. If they dispute your rights your sale of property is illegal without the consent of your sisters. Hence partition the property and give them their share of 1/7 of each daughter. It doesn't matter if it is UPZALR?Regarding agricultural property also daughters rights ae equally protected now after HSA Amendment in 2005.If you appreciate this answer please click the thank you button on this forum.

Ms.Usha Kapoor (CEO) 14 October 2016

By the way you forgot to mention about your mother. If she is alive she AND ALL 7 CHILDREN would GET 1/8 TH SHARE EACH as class 1 legal heirs.

Vaibhav Pandiya (Director) 14 October 2016

Thanks a lot Ms. Usha Kapoor for your valuable time and advice, but here I have some concerns:

(a) In my knowledge the amendment of Hindu Succession Act in 2005 is in Section 6, which deals with the succession to co-parcener property instead of self-acquired intestate property which has been governed by Section 8 of Hindu Succession Act and moreover to avail the benefnits of amendment in HSA (Section 6), the father must be alive till or after 9th September 2005.

Anyway, I think that this is self-acquired property and so is not the subject of Section 6 of HSA, but succession will be made by Section 8 of HSA.

(b) As far as agricultural land is concerned, so as far as I researched till now, it is the subject of state (some subjects are in concurrent list of State and Union like will, intestate, succession), and where the two laws conflict, the state law prevails in agricultural succession, as laid in Section 4(2) of Hindu Sucession Act and also given in mnay verdicts by High Court. In the state of U.P., the devolutio of tenancy in agriultural lands is governed by Section 171 of UPZARL Act.

Ans out of the 7 children, one is my mother who is still alive.

Thanks.