All legal heirs have equal shares rights on the property

Urban land and Rural Land, will be the same, will making property partition is done Please see below sec 171

AS per UPZALR (The U.P. Zamindari Abolition and Land Reforms Act, 1950)

Section 171

[171. General order of succession. - (1) Subject to the provisions of Section 169, when a bhumidhar or asami, being a male dies, his interest in his holding shall devolve upon his heirs being the relatives specified in sub-section (2) in accordance with the following principles, namely :-

(i) the heirs specified in any one clause of sub-section (2) shall take simultaneously in equal shares;

(ii) the "heirs specified in any preceding clause of sub-section (2) shall take to the exclusion of all heirs specified in succeeding clauses, that is to say, those in clause (a) shall be preferred to those in clause (b), those in clause (b) shall be preferred to those in clause (c), and so on, in succession;

(iii) if there are more widows than one, of the bhumidhar or asami, or of any predeceased male lineal descendant, who would have been an heir, if alive, all such widows together shall take one share.

(iv) the widow or widowed mother or the father's widowed mother or the widow of any predeceased male lineal descendant who would have been an heir, if alive, shall inherit only if she has not remarried.]

[(2) the following relatives of the male bhumidhar or asami are heirs subject to the provisions of sub-section (1), namely :-

(a) [widow, unmarried daughter] and the male lineal descendant per stirps:

Provided that the widow and the son of a predeceased son how low-so-ever per stirps shall inherit the share which would have devolved upon the predeceased son had he been alive;

(b) mother and father;

(c) [***];

(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, being the daughter of the same father as the deceased;

(k) sister's son;

(l) half sister's son, the sister having been the daughter of the same father as the deceased;

(m) brother's son's son;

(n) mother's mother's son;

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

Urban property cannot be sold as agricultural land

2) you can get interim reliefs within one month or so

First of fall after the amendment in the Hindu succession act in 2005 the agriculture.property is now also in preview of hindu succession act. Section 4(2) which was kept agriculture land out of preview of HSA was repealed for the purpose to provide women equal rights in agriculture land too.

Now to your answer

No urban property cannot be sold as agriculture land.

Secrion 37 specific relief act and in procedure defined under Order 39 Rule 1 & 2 of C.P.C. a temporary injunction may be granted by stating the reason till.the court hear the application for partition.if court is satisfied of the reason it may ex-parte grant relief and protect.the sisters here .

There is no provision of notice period in injunction.

1. If the land is registered as urban land then it can not be sold as agricultural land. So refer to the the Mutation Certificate which must be bearing the proper land type.

2.Mere injunction will not do.You will have to file suit for partition along with prayer for injunction as well. Injunction is to stop brothers selling the land and partition is for seeking declaration of share and then separate possession.

3.So ask the advocate to file suit for both partition and injunction.

1. Even urban property can be agricultural land if it has been recorded as agricultural land in revenue records.

2. The succession to even agricultural land is governed by Section 8 of Hindu Succession Act, hence the daughters can file a suit for partition to cull out their separate share in the land and also seek injunction to restrain their brothers from selling the land during the pendency of the civil suit.

3. Injunction ex parte can be granted even on the first hearing.

Ad interim exparte injunction will be granted immediately after that notice/summons will be served on opposite party. Better to file injunction without serving notice. If you serve notice they may file caveat which may make it difficult to get ad interim injunction.

Dear Sir,

The option left for you is to approach Civil Court seeking interim injunction restraining the sons from alienating the above said property. Usually Civil Courts on filing property civil suits grant such injunctions ex-parte that is even prior to appears of defendants. You may try for it which is best of option.

Your questions are answered as below:

(a) Can an urban property be sold as agricultural land?

Ans: Yes, if such agricultural land not converted into non-agricultural land.

(b) If we file an injunction then approximately in what duration it will be granted? Is there any minimum notice period served by the court. (The daughters have already served a legal notice twice.)

Ans: There is no time limit to dispose a Civil Court but normally the Trial Court may dispose the Civil Suit between 12 to 18 months.

A. no this can not be done.

B. There is no time limit, it will take 5-7 years minimum, thought the court till final disposal may pass an interim order to maintain status quo.

Regards

1. IRRESPECTIVE of URBAN area (aka ZONE), there are always some pockets of land under classification as AGRICULTURE LAND in such Urban Zone. Such lands have to be converted to NA, for construction purposes.

2. Injunction proceedings or orders, are always dependent on the Court procedures and timings. HOWEVER, an urgent application can be moved for interim injunction and then carry on from there.

Keep Smiling .... Hemant Agarwal

All these law as cited by you relates to the ancestral property and not to the self acquired property.

The daughters have share in the self acquired property irrespective of the year of death

1. In case he dies before 2005, daughters cannot seek the status of coparcenars.

2. Yes, for daughters to claim coparcenary rights, it will have to be seen as to when did succession opened. Succession for coparcenary properties opens on the death of the father. Thus, daughters can claim coparcenary status in all such case where the father died on or after 9th Sept 2005.

In UP the provisions of UPZALR is applicable in respect of agricultural land

The judgment of SC is in respect of ancestral property wherein SC has held that both father and daughter have to be alive on coming to force of Hindu succession amendment act 2005

It is not applicable to agricultural land in UP

Declaration of land as residential by urban land ceiling act is evidence that land is not agricultural and for applicability of Hindu succession act

2) the purpose for which land is used would be the clinching factor

3) whether any agricultural activites are being carried on the said land

No urban land can't be sold as agricultural land. Go for injunction and file temporary and interim/and interim reliefs in same. You will get interim relief immediately.

(a) Can an urban property be sold as agricultural land?

Urban property cannot be considered as agricultural property, hence as advised by local lawyer, you may file a suit for partition along with an application for injunction restraining the defendants from alienating or encumbering

the property till disposal of suit.

(b) If we file an injunction then approximately in what duration it will be granted? Is there any minimum notice period served by the court. (The daughters have already served a legal notice twice.)

Legal notice is different to that of the notice sent by court

You may get an exparte ad-interim injunction immediately on the same day of filing the suit, it depends on the arguments presented by your lawyer in your support.

Section 6 of the Hindu Succession Act, before and after amendment, reads as follows:

(before amendment - 1956 Act ):-

"Section 6:- Devolution of interest in coparcenary property:-

When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:-

Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1--For the purposes of this Section, the interest of a Hindu Mitakshara coparcener shall be 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.

Explanation 2--Nothing contained in the proviso to this Section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."

(after amendment) (in 2005):-

"Section 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 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 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, not withstanding 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 coparcerner shall be 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.

As far as Section 8 of the Hindu Succession Act, 1956 is concerned, there is no amendment in the Act 2005. Section 8 reads as follows:

"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 cognated of the deceased."

Therefore your question has an answer either under the provisions of section 6 or section 8 of the HSA.

As far as succession is concerned then what will be the nature of land: "agricultural" or "residential"?

Isn't a declaration of "residential" by Urban Ceiling sufficent for applicability of Hindu Succession Act ot there must be something else too?

How to know/where to find/ what documents which can clarify that the land is residential and not in purview of UPZALR?

The aggrieved person can file a suit for partition based on the provisions of section 8 of HSA for this urban land and in the event of the same being disputed by the opposite party on the support of revenue department's records to prove that this was an agricultural land, the same can be argued that the present status is that it comes under the urban limit hence the agricultural character of the land extinguished.