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Planning Commission : Organisation : KC Pant Speeches

Theme paper on enhacement of property rights including and land rights of women

Dr. N.C. Saxena
Former Secretary, Planning Commision

ISSUE NO.1: Economic empowerment of the women by ensuring greater legal access to property rights including land rights to them.

Notes:

1.1 The Ministry of Rural Areas and Employment (Land Reforms Division) hereby intends to draw the attention of the State Govts. towards the need of taking appropriate legal and administrative steps to end the gender inequalities in providing legal rights to women on property especially on landed property, which is the most important productive asset in the rural India and, hence, access to arable land may be considered as an important instrument for economic empowerment as well as increasing the social status of the rural women belonging to agricultural families including the families of landless agricultural labour.

1.2 With the aforesaid objectives this Ministry examined the Revenue Laws of various State Govts. on land and other natural resources along with the concerned provisions of the Constitution and found that there is a need to address this issue jointly by Government of India as well as the State Governments.

1.3 The Constitution of India guarantees the fundamental rights to all citizens for equal treatment under law (Article 14) and non-discrimination on the grounds of sex (Article 15). This necessitates re-examination of all existing laws which provide rights to the women on property especially on land which is the major concern of the Land Reforms Division of this Ministry.

1.4 The land rights as well as access to land to the women can accrue primarily through three avenues:-

  1. Inheritance of ancestral landed property;
  2. Government allotment of ceiling surplus land, Bhoodan land or Govt. waste land to the women; and
  3. Gaining contractual access to land through tenancy, license and also to common property resources, minor forest produce etc.

1.5 There seems to be a need to locate gender inequalities in the existing succession legislations for Hindu women as well as customary laws to provide inheritance to property for women of other religious communities, and some specific policy decisions are required to be adopted.

1.6 This Ministry made some examination of the Hindu Succession Act, 1956, Indian Succession Act, 1925, Customary Laws of Succession amongst other religious groups to locate gender bias in general. The Ministry has also made a rough examination of some of the State laws only to illustrate some of the basic flaws in the State land laws. The detailed examination of each State law pertaining to land is required to be taken up by the respective States in greater detail.

1.7 The Approach Paper to the draft Ninth Plan clearly states that preference will be given to women in the distribution of ceiling surplus land and legal provisions made for protecting their rights on land as a part of the overall anti-poverty effort. The National Perspective Plan for Women had recognised the need to highlight such concerns and laid down a series of action points, which included the framing of appropriate legislation.

1.8 The National Commission for women, which was set up in 1992 to review the Constitutional and legal safeguards for women and recommend remedial measures, has repeatedly stressed the need to eliminate gender-bias from our laws. Further, India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993. This is the only legally binding international instrument dealing with the rights of women, though member countries retain their right to assert their unique cultures and practices.

 Suggestion: It is, therefore, proposed that Government may evolve general consensus on the overhaul approach and modality to be adopted in this fiftieth year of Independence to enhance greater legal access to property

including landed property to women for their improvement of economic and social status and general empowerment.

ISSUE NO.2: Examination of Land Laws including Tenancy Laws of various States and Suggestions for necessary amendments to end gender inequalities.

2.1. The revenue laws constitute a considerable body of statutes, belonging to three categories. In the first category one could include the laws relating to inheritance, mutation and correction of records of rights. The second would include laws relating to survey and creation of record of rights which would also include fresh rights arising out of usage or rights not recorded being included in the body of records. Thereby it amounts to recognition of fresh rights. The third category would include ceiling laws for instance whereby the rights of those holding above the ceiling limits are abridged and rights are created amongst the landless as per the provision of distribution of ceiling land in the surplus land so acquired.

2.2 All the above three categories of land related legislations need to protect the gender rights to land. However, the these acts and rules do not contain provisions whereby the right of women to land can be asserted or safeguarded. Each enactment and rule of which there are more than 300 in this country need to be examined separately before we are able to establish that what provisions provide for enforcement or protection of the land rights of women. Therefore, the opinion being given in these paragraphs by and large is lacking in details. The instant opinion is based on a sample study of some of the enactments and rules.

GENDER BIAS IN THE TENANCY LAWS.

2.3 Tenancy rights in agricultural land were specifically exempted from the Hindu Succession Act of 1956. As a result, there is today a major disjunction in several states between state land enactments affecting the devolution of certain categories of agricultural land and the personal laws affecting the devolution of all other property, on at least two counts. First, in a number of states the succession rules relating to land held under tenancy have a different order of devolution than the personal laws specify. For example, in the tenurial laws of Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Delhi and Uttar Pradesh (all located in northwest India), the specified rules of devolution show a strong preference for agnatic succession, with a priority for agnatic males. In all these states the tenancy develops in the first instance on male lineal descendants in the male line of descent. The widow inherits only in the absence of these male heirs. In addition, in the first four states mentioned, daughters and sisters are totally excluded as heirs. In Delhi and Uttar Pradesh, daughters and sisters are recognised but come very low in the order of heirs. Moreover, in all these six states, a woman (in any capacity) can hold only a limited interest in the land, in that after her death the holding goes not to her heirs but to the heirs of the last male landowner. She also loses the land if she remarries or abandons the land (that is, fails to cultivate it for a specified period , usually a year or two).

2.4 States where the tenurial laws explicitly mention that the devolution of tenanted land will be according to personal law are very few, and include Rajasthan and Madhya Pradesh where the personal law applies for all communities(Annexure-I). Also in the Telangana region of Andhra Pradesh, the commentary following Section 40 of the relevant Act clarifies that for Hindu tenants the Hindu Succession Act will apply. In practice, however, even in Rajasthan daughters have been recognised as heirs only in some judgements, while in others male heirs alone have received recognition. In addition, there are states which do not specify the order of devolution in their laws dealing with tenancy land, such as Gujarat, the Bombay region of Maharashtra, West Bengal, Karnataka, Kerala, the Andhra region of Andhra Pradesh and Tamil Nadu. In these states we can presume that the personal laws automatically apply. Then there are states such as Bihar and Orissa for which the tenancy acts specify that occupancy rights shall devolve in the same manner as other immovable property, "subject to any custom to the contrary". This leaves open the possibility of admitting gender – inegalitarian customs if established, especially for the tribal communities in these regions.

2.5 Coming to the tenancy laws the Bihar Tenancy Act, 1885 does not contain even one provision whereby the land rights of the women as provided under the Hindu Succession Act or under the Indian Succesion Act or under other personal laws could be enforced or safeguarded. Likewise, in matters of recording as well the names and the share of the women in column four of the Khatiyan is not recorded. The Survey Manual and the Bihar Maintenance of Records Act are remarkably silent over this issue. Therefore, the initial contention that the revenue laws negate the effect of principal laws holds good and needs to be corrected by including recording and protecting devises for women's land rights.

Gender bias in the land laws of some States.

UTTAR PRADESH

2.6 The State has special legal provisions dealing with the devolution of holdings. Under this comes the U.P. Zamindari Abolition and Land Reforms Act 1950.

Section 171 holds, "General order of succession,- subject to the provisions of Section 169, when a bhumidhar or asami being a male dies, his interest in his holding shall devolve in accordance with the order of succession given below:- (a) the male lineal descendants in the male line of descent in equal share per strites, (b) widow and widow’s mother and widow of a predeceased male lineal descendants in the male line descent etc." This provision has strong gender-bias as daughters have no right of inheritance when sons are alive.

2.7 This has a special provision for the succession to a man’s holding. Under this provision the male lineal descendants in the male line of descent inherit in equal shares. The widow comes only after them, along with the widowed mother and widow of a predeceased male lineal descendant in the male line of descent. The necessary condition of these three widows to inherit is that they should not have remarried. The daughters, married and unmarried, come even after the father, though between the daughters, the unmarried ones get a preference. In addition, the widow, mother or a daughter inheriting the holding in that capacity does not get an absolute right as on her death the devolution of the property will not be to her heirs, but to the heir of the last male bhumidar. Even when a woman inherits, not as an heir, the property, on her death, goes according to the provisions of the Act under which the son, grandson and the great grandson, and the widow of a son or a grandson inherit first. The daughter does not even come after them but after the husband who is the heir after the male descendants and the widows of male descendants.

It is suggested that these laws are to be amended to the effect; in a joint Hindu Family the daughter of a coparcener shall by birth become a co-parcener in her own right in the same manner as a son and have the same rights in the coparcenery right had she been a son inclusive of the right to claim by survivorship; and shall be subjected to the same liabilities in respect thereto as the son etc.

2.8 Several Sections of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 are gender-biased. Provisions of this Act did not define women as tenure holders, they are excluded from tenure holding. Section 17 holds, "tenure holder means a person who is the holder of a holding does not include – (a) a woman whose husband is a tenure holder.

DELHI

2.9 The Delhi Land Reform Act 1954 follows practically the same pattern as the U.P. Act. Sections 48, 50, 51, 52 and 53 hold gender-bias. Section 48(1) of Delhi Land Reforms Act, 1954 holds, "a Bhumidhar may by will bequeath his holding or any part thereof except as provided in sub-section (2). (2) No Bhumidhar entitled to any holding or part in the right of a widow, mother, step-mother, father’s father, father’s mother, unmarried daughter, or unmarried sister may bequeath by will such holding or part."

2.10 Section 50 holds, "Subject to the provisions of section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of succession given below: (a) male lineal descendants in the male line of descent: Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive: Provided further that the son or sons of a predeceased on howsoever inherit the share which would have developed upon the deceased if he had been then alive; (b) widow; (c) father; (d) mother being a widow." In succession to the male, the widow is pushed below all the male descendants. Like the U.P. Act, when she does inherit as an heir, on her death the property goes to the heir of the last male bhumidar. When she holds the property not as an heir but in her own right, the Act lays down the list of the heirs with the first preference being the male descendants followed by the husband.

Suggested that these laws are to be amended to the effect; in a joint Hindu Family the daughter of a coparcener shall by birth become a co-parcener in her own right in the same manner as a son and have the same rights in the coparcenery right had she been a son inclusive of the right to claim by survivorship; and shall be subjected to the same liabilities in respect thereto as the son etc.

THE PUNJAB

2.11 Section 59 of The Punjab Tenancy Act, 1887 amended up to 1969 states quite categorically that women cannot claim succession to tenancy if a male heir is alive. The widow’s right is recognised only after all male heirs.

2.12 Section 30 of the Pepsu Tenancy Agricultural Land Act, 1956 holds, "if any tenant or sub-tenant dies before exercising his right to acquire proprietary rights in respect of any land under this Chapter such right shall on his death devolve upon his lineal male descendants in the male line of descent. According to Section 8 of the same Act the security of tenure to hold land for minimum time of three years shall not apply to the tenant of a person who is a widow, minor and an unmarried woman, daughter’s daughter.

2.13 The provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 holds the definition of a person, "land-lord, occupancy tenant" defined in masculine pronoun.

2.14 The Section 3(4) of the Punjab Land Reforms Act, 1972 defines the ‘family’ in relation to a person means the person, the wife or husband, as the case may be of such person or his or her minor children other than a married minor daughter. These provisions obviously create gender-bias. Even exclusively, the minor married daughter has been excluded from family, consequently she has been debarred of the right to property.

2.15 The Punjab Tenancy Act states quite categorically that women cannot claim succession to tenancy if a male heir is alive. The widow’s right is recognised only after all male heirs. After the widow the Act recognises the right of the widowed mother. As in the Andhra Act,they not only lose the right on remarriage, but also have restrictions about transfer of the right of tenancy. Like the Jammu and Kashmir Act the widows have the right to sub lease but for a term less than the one provided under the Jammu and Kashmir Act. The latter permits 2 years for a sub lease, while the Punjab Act allows it for a period of one year only. The Act also lays down clearly that the right of occupancy will be governed by the Act and not by the personal law of the parties.

Suggested that new enactment is to be made to replace these old Acts of the State of Punjab to provide equal rights to the women.

HARYANA

2.16 The same Punjab Tenancy Act, 1887, Pepsu Tenancy Agricultural Land Act, 1956, the Punjab Occupancy Act, 1952 are applicable in the State. There exists, therefore, male lineal descendants in the male line of descent.

HIMACHAL PRADESH

2.17 The Section 45 of the Himachal Pradesh Tenancy and Land Reform Act, 1972 gives male lineal descendants in the male line of descent. It holds, "When a tenant in any land dies, the right shall devolve – (a) on his male lineal descendants, if any, in the male line of descent; and (b) failing such descendants, on his widow……"

RAJASTHAN

2.18 The Rajasthan Tenancy Act, 1955:- (a) It has been observed that throughout the Rajasthan Tenancy Act, 1955, the pronoun ‘he’ or its derivatives such as his/him have been used. The pronoun ‘she’ or ‘her’ has always been omitted. As for example, Section 5 (26A) of the Act defines ‘landless person’ as "he who shall be an agriculturist by profession". This has an element of gender-bias, despite the provision of Section 14(1) of Rajasthan general Clauses Act, 1955, which gives a scope of interpretation, ‘he’ may be read as ‘she’.

We would like to suggest that in all appropriate places the word ‘she’ and ‘her’ is to be incorporated in the Act, for empowering women through property rights.

(b) Section 46(1) holds, "the restrictions imposed by Section 45 on letting by a holder of Khudkasht and on sub-letting by a tenant shall not apply to (a) a minor, or (b) a lunatic, or (c) an idiot, or (d) a woman (other than married). This is discriminatory and woman has been placed at par with minor, lunatic and idiot.

We would suggest to remove this discriminatory part from the Act.

(c) Women (except other than married) are not deemed to be Khudkasht. This limiting factor could be removed if the widow be deemed to be Khudkasht holder irrespective of the date when she got this right.

(d) Landless person who are women may be made entitled to the allotment of land.

(e) By the Land Reforms Act tenants have been allowed for the first time, the right to have written lease (patta) and to keep it with them as a document of their tenancy. Similarly, the land holder is now entitled (under Section 32 of the Act) to receive a counter part of the lease (patta) from the tenant.

It is suggested that the lease (patta) should be made specifically in the name of women too.

2.19 According to the definition of family in the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973, it consists of husband, wife, and their minor children but excluding married (or deserted) minor daughters, their adult sons whether married or not and still in the family. The sons, however, form a ‘separate unit’ for the purpose of determination of ceiling area. The separate unit has been explained as a ‘person’ which excludes daughters.

Therefore, it is suggested that like Karnataka and West Bengal, this Act should also include unmarried daughters within the definition of family for computing ceiling area.

2.20 There is an exception to the right of person to hold land within the ceiling limit under Section 4 of this Act. In case, ceiling applicable to any person or family under the provisions of the Act excludes the ceiling area with such persons or family entitled to hold according to the provisions of the repealed law, then such persons or family will not be entitled to the benefit of the excess area of land but will be subjected to retain the same as it is under the provisions of the repealed law.

2.21 Section 6 of Rajasthan Land Revenue (Allotment of Unculturable Wasteland for Development of Private Forests) Rules, 1986 provides for allotment of uncultivable wasteland to the applicants.

It is suggested that since women generally do not apply for such benefit, a provision may be made in Section 14 that a certain quantum of land to be distributed under this category may be earmarked for women cooperatives specifically.

2.22 It is observed that despite the provisions of equal wages for male and female in the Minimum Wages Act, 1948, the Govt. of Rajasthan is continuing minimum rates of wages for the whole of the State of Rajasthan except the canal area of the Ganganagar District different for adult male and adult female.

It is suggested that this anomaly may please be removed forthwith.

MADHYA PRADESH

2.23 Sections 164 and 192 of the M.P. Land Revenue Code 1959 also provides that subject to his personal law the interest of Bhumiswami shall, on his death, pass by inheritance, survivorship or bequest. Even the interest of an occupancy tenant in his holding shall on his death pass by inheritance or survivorship in accordance with his personal law. There does not occur discriminatory provisions directly.

It is suggested that feminine pronouns also be inserted at appropriate places.

BIHAR

2.24 The Bihar Tenancy Act, 1885 (Act No.8 of 1885) amended upto 1987:

Section 5.5 (2)(3) of the Act, while defining tenure-holder and raiyat, express, "a person who has acquired a right to hold land for the purpose of cultivating it." Other Sections of the Act also use the pronoun, ‘person’ or its derivatives such as ‘his’ and ‘him’. The pronoun ‘she’, ‘her’, etc. have not been used.

This use of masculine terms tends to gender-bias. At the time of interpretation of provisions of laws discrimination may arise in case of women.

Suggested that feminine pronouns may be inserted at the appropriate places.

2.25 No specification of the order of devolution; but the tenancy laws state that the devolution of occupancy rights shall be in the same manner as other immovable property.

Suggested that order of devolution may be spelt out by declaring women’s order as equal to the male members.

2.26 Sections 6 and 7 of Chota Nagpur Tenancy Act, 1908 (Bengal Act 6 of 1908) while defining "raiyat and raiyat’s rights for Khunt-Katti" hold that, "primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family." Throughout this Act, the pronoun person, ‘his’, ‘him’ etc. have been used and their feminine gender has been ignored.

This situation has helped generating a gender-bias in legal parlour so far as right to property is concerned.

Suggested that feminine provisions may be inserted in the Act at appropriate places.

2.27 Section 4(xiii) and (xv) of Santal Parganas Tenancy Act, 1949 while defining raiyat similarly uses the pronoun in masculine gender leaving enough scope for fomenting gender-bias towards the feminine gender regarding property matters.

2.28 In view of this, suggestion may be made to use the words ‘she’ and ‘her’ in all appropriate places of these Acts for empowering women by ensuring property rights.

2.29 The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.

Section 2EE of this Act defines the family as follows:

"family" means and includes a person, his or her spouse and minor children;

  1. In this clause the word person includes any company, institution, trust, association or body of individuals whether incorporated or not;
  2. The personal law shall not be relevant or be taken into, consideration in determining the composition of the family for the purposes of the Act;

2.30 The same section defines the landholder:

"Land holder" means a family as defined in clause (ee) holding land as raiyat or as under raiyat or a mortgagee of land in possession or holding land permanently settled by Government or lessee of land not resumable by Government;

2.31 Section 4 of the same Act provides that on the appointed day ceiling area has been laid down for one family consisting of not more than five members for the purposes of this act. Section 5 of the same Act provides that it shall not be lawful for any family to hold, except otherwise provided, land in excess of the ceiling area. It is evident from section 2 (ee) that the definition of family in the act is that of a neclear family and not Hindu Undivided Family. All major members of the family who are entitled to be treated as landholders have to be treated as separate units, irrespective of the fact that whether there has been a partition in the family or not [Mahavir Pd. v. State of Bihar, 1976 PLJR 134: AIR 1976 Pat. 256: 1975 BBCJ 701]. In other words it shall be deemed that there has been a partition in the HUF and all major landholders who are entitled to be treated as a separate unit have been so considered. Likewise, in Muslim law right in property by mere birth is not recognised. Family cannot be made to include major children and land held by them cannot be clubbed by the family of the parent. [Ramdulari Kunwar v. the State of Bihar;1976 BBCJ 641]. Coming back to the issue of Mohammedan law a muslim son or daughter do not have any right or interest in the property in the life time of their father. According to the Muslim Law, they acquire the right only in the event of the death of the father. The Muslim major son cannot become a land-holder within the life time of his father within the meaning of this Act and cannot constitute a family as defined under section 2(g) of the Act. Accordingly a Muslim major son is not entitled to a separate unit. [Imamul Hasan Choudhary v. State of Bihar, 1982 PLJR 321:1982 BRLJ 43: 1982 BBCJ 208]. This judgement were set aside by a full bench of the Hon'ble High Court vide overruled by State of Bihar vs. K.M. Zuberi, 1986 PLRJ 67 (SB): 1986 BRLJ 18.] wherein it was held that the primary objective of the Bihar Land Ceiling Act is imposition of ceiling, consequent calculation of surplus land and its distribution to the landless. It is is no way statute for providing for succession, and it is also a wholly secular provision in character. Any consideration of religion and personal law of the party (land-holder) cannot be allowed to intrude State of Bihar v. K.M. Zuberi, 1986 PLJR 67 (SB): 1986 BRLJ 18. (Majority view).

2.32 There is a minority view regarding the above judgements in 1986 PLJR 67 (SB). A minor male child of a Mitakshara Co-parcenary acquires interest in property by birth and is entitled to a share on partition. By including such a child with the definition of family the child has been deprived of his right to claim a separate unit for himself independently. The Legislature enacted an Explanation to clause (ee) of section 2, because this provision of the Ceiling Act was in conflict with personal Hindu Law, by which a minor Hindu son is governed. On the contrary a Mohammedan son gets interest to father's property only on death of his father. To permit a Mohammedan son to retain some property within permissible ceiling area would be making him owner and giving him share in property of his father in his life-time. This will be quite contrary of law governing a Mohammedan son and create inroads in personal laws governing Mohammedans. Before a person can be declared to be entitled to possess one unit of land, that person must have basic right to hold land ibid (Minority view). Though the minority view was not upheld it has a lot of substance in it. The ceiling act decide the total quantum of land that will be available to a family. The distribution within the family will be governed by the personal law to which the family professes. Here the position of women is definitely be worse of. While separate units have been granted to major sons major unmarried daughters and married daughters have not been granted separate units of their own. Though under the Hindu Succession Act they have the same co-parcenary interest as the sons. Even within a nuclear family the enforceability of the girls child's rights will depend upon so many extraneous factors. Normally, it has a low enforceability. Thus, we find that in keeping with the traditions of the Mitakshara the male child has been strengthened at the expense of the female child and this inequitous situation needs to be urgently remedied.

ANDHRA PRADESH

2.33 Section 10(5) of the Andhra Pradesh Tenancy (Andhra Area) Act 1956, holds, all rights of a cultivating tenant under this Section shall, subject to the provisions of Sections 12 and 13, be heritable. Explanation I: goes, "for the purpose of construing the term ‘heritable’ in this Section, the following persons only shall be deemed to be heirs of a cultivating tenant, namely:-

  1. his legitimate lineal descendants by blood or adoption;
  2. in the absence of any such descendants, his widow for so long as she does not remarry:

Provided that where there is more than one heir, the heirs shall be entitled to sub-divide the interest in the holding according to their shares.

2.34 In this provision there is hardly any scope to operate gender bias as because the right to tenancy develops to all descendants and even to the widow in case of their absence. Besides, Section 6 of the Hindu Succession Act, 1956 has already been amended by the Govt. of Andhra Pradesh.

2.35 The reason for keeping land and all rights connected with it outside the jurisdiction of Central Law appears to be the conflicting interests between national policy of land reform and women’s rights to equality. In a full Bench Case dealing with the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act 1973, the Court said that "the legislation relating to land reforms is a device for bringing about radical alteration in property and economic obligation". The aim of such legislation "was the removal of concentration of wealth and distribution of means of production and material resources of the community". Land Reform has been one of the professed goals of our country and our planners from the very first Five Year Plan which stated that it was interalia with the object" to eliminate all elements of exploitation and social injustice within the agrarian system so as to ensure equality of status and opportunity to all sections of the population".

2.36 These objectives lead one to examine the whole question from a different angle-national policy of helping the deprived against the interest of a handful of people who have exploited the majority so far. In a recent case the point was stressed that "agrarian reform is the basic statutory perspective … so that there would not only be an equitable distribution of land but also there would be no undue imbalance in society resulting in a landless class on the one hand and concentration of land in the hands of a few… The goal of the legislation is to make the surplus land available for working out justice and rural development".

2.37 Looked at from this point of view one sees why equality of sexes was given a second place as was social and economic justice. This comes out also from the speech of Pataskar, the then Law Minister during the Hindu Succession Bill in 1956. He mentions that the "problem of land reforms is being solved by different States in different ways. Land tenures differ not only from State to State but also from area to area in the same State. I know that in the State of Bombay there are many tenures … Under the Constitution, land, in all its aspects is a State subject and any legislation whether existing or future will not be affected in any way by the provision of the Bill (Hindu Succession Bill)… Even now there are some States which have enacted legislation for the prevention of fragmentation or for the fixation of ceiling in respect of agricultural holdings".

Each State knows the needs and ground realities of the regions covered by its legislation. This makes it inevitable that there will be no uniformity as far as the question of devolution of a holding as far as intestacy is concerned. The aforesaid contention will be clear if we examine some of the State legislations selected below.

2.38 Andhra Pradesh Land Reforms (ceiling on Agricultural Holding) Act, 1973.

Section 3(f) of the Act defines family, "(i) in the case of an individual who has a spouse or spouses such individual, the spouses and their minor sons and their unmarried minor daughters, if any; (ii) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried minor daughters……….."

In this provision too there is a gender-bias, as married (or deserted) minor daughters have been left out.

Section 14, Clause 2 of the Act defines the term "person". The term as such does not spell any gender-bias, but the term has further been expressed always only with the masculine pronoun ‘he’ and ‘his.

It is suggested in view of the position above that at all appropriate places gender denoting feminine may also be inserted to remove any scope of gender discrimination.

JUDICIAL INTERPRETATION FURTHER AUGMENTS GENDER-BIAS IN THE STATE LAWS

WEST BENGAL

2.39 The extent to which legislation was aided by judicial interpretation to deny widows any rights in agricultural land is brought out clearly in a Calcutta High Court Case. In Chintamani Debi vs. Upendranath the head of the family died leaving a widow and two sons. Under the West Bengal Estates Acquisition Act 1954 the agricultural land vested in the State and a compensation roll was prepared. Understandably the widow claimed her share of the compensation money. After stating that she cannot claim any interest in her husband’s agricultural property, the learned Judge clarified further that it was, "immaterial whether the agricultural property was converted into another kind of property, which was compensation money. But since according to law she could not claim any interest in her husband’s agricultural property (emphasis added), she cannot claim a better position …. Which had its origin in an agricultural property".

She could therefore get no part of the compensation money which went to the two sons.

2.40 Issues of a totally different nature have been thrown up in a recent case from Rajasthan. A number of peasant women challenged the legal provision by which adult son got the allotment of excess land comprising the temporary cultivation lease of their father, and the daughter did not get any. The Rajasthan High Court referred to the permanent allotment rules in the Rajasthan Canal Area, which stated that after providing 25 bighas of land to the temporary lease holder, the excess was to be allotted to the adult sons. The Court held that by excluding adult daughters of the temporary lease holder from allotment of excess land, article 15 of the Constitution was violated which clearly prohibited discrimination on the ground of sex. This perhaps is the only time that a group of peasant women have challenged the discriminatory provisions and the Court has upheld their point.

2.41 The Rajasthan case stands in a class by itself. The real issue at stake was not just depriving women in applying the ceiling law – all the ceiling laws do that anyway. Here the state was not taking away, but giving land to peasants in a newly irrigated area. The peasant women in this case should have shared the state’s "distributive justice" in a manner equal to men. Their occupational class and social status is distinctly different from those of the women involved in the other cases.

2.42 By ignoring their claims, the Rajasthan government was, in fact reinforcing its own, and society’s perception of these women as non-producing dependents. It is now well-known that such a perception is far from the actual reality. They are part of the family labour team, without whose labour support the family economy would not survive. Their contribution often exceeds 50 per cent of the family’s earnings. Especially if these women came from landless families (as is likely since they were being allotted land by the government) their contribution to the family’s survival through their labour and earnings would be critical. This question has been raised very forcibly by groups of peasant women in recent years. Muslim, tribal and scheduled caste peasant women in West Bengal challenged their government in two successive meetings in 1979 and 1980.

"Now that you are distributing land to the landless, why not to us? Are we not peasants? Don’t we work on the land? What about our livelihood and security, when our husbands can kick us out any day?"

Suggestion:- Government may examine and amend the relevant state laws, specially land laws, to bring gender equality and enhancing access of women to land.

ISSUE NO.3: Examination of gender bias in the Hindu Succession Act of 1956, if any, and proposing necessary amendments as may be deemed fit to be taken up by the Central Government

3.1 The Hindu Succession Act amended and codified the laws relating to state of succession among Hindus and brought about some fundamental and radical changes in the law of succession. The Act laid down a comprehensive system of inheritance governing the Mitakshara and the Dayabhagaa Schools and also to those in certain parts of Southern India. The Act applies to any persons who is a Hindu by religion in any of its forms. Buddhists Jains and Sikhs are also included within its ambit and also the converts and reconverts to any of the four religions-Hinduism, Buddhism, Jainism and Sikhism. This Act made major and far reaching changes in the law of succession to the property of a person dying intestate—whether the property was held in co-parcenary rights in a joint family property or was self-acquired. It gave the woman the same rights in the matter of succession as a male, thereby making a material change in their ability to inherit and alienate the property.

3.2 For the first time women have been recognised as simultaneous heir to the property of a male Hindu dying intestate along with the male heirs. The Act provides for certain category of female heirs in the class I of the schedule along with the list of male heirs who are entitled to succeed simultaneously to the property of a male Hindu dying intestate. Besides the widows, daughters have for the first time been made entitled to succeed along with the sons to have a share in the property of their fathers under the said Act. But attention may be invited to some of the sections of the Act, which probably tends to discriminate the female heir, as indicated below:-

  • Section 6 of the Act retains the basic tenet of devolution of property of a deceased male Hindu in a Mitakshara coparcenary by survivorship. However, an exception has been made in the case of a deceased male Hindu who is survived by female relatives specified in class I of the scheduled or a male relatives specified in that class who claim through such female relative. However, in the process of devolution of rights under the Act, the priority is given to male heirs and the rights of women come at a subsequent stage. Thus, the female heirs listed in class I of the Scheduled have the right in the Mitakshara coparcenary property which they did not have before the enactment of this Act.
  • The Section 15 of the Act refers to two restrictions on the devolution of this property. The first is that if the female Hindu has inherited the property from her mother and she does not leave behind a son or a daughter or children of any predeceased son or daughter, the property would devolve on the heirs of the father and not on the husband or other heirs. Secondly, if the property is inherited from her husband or father-in-law and she does not leave behind any surviving sons or daughters or children of any predeceased sons or daughters the property would devolve on the heirs of the husband.
  • According to Section 23 of the Act, even where a female has been conferred the right to get a share in the property of a Hindu intestate her right, it is restricted in the case of a dwelling house occupied by members of the family. In such a case, she cannot claim partition until the male heirs decide to partition it. The female heir has only the right of residence in such a case. This right of residence is available to a daughter only if she is unmarried, deserted or has separated from her husband or is a widow. These widows, however, are entitled to succession only if they have not remarried on the date the succession opens. If she marries before the date of opening up of the succession she loses all her rights.

 Suggestion: It is to be considered as to what extent the Hindu Succession Act of 1956 requires an amendment by the Union Government so that its applicability can be made universal all over the country, to such extend as may be considered acceptable under the general socio-economic condition of the country as a whole.

ISSUE NO.4: To consider and decide on the extent to which additional amendments of the Hindu Succession Act, 1956 should be taken up to enhance land rights as may be different in different States considering the ground reality of the socio-economic development of a particular State.

Notes:

4.1 Many of the States have already taken up the issue of women empowerment through succession right to landed property. Amendments to section 6 of the Hindu Succession Act, 1956 have been undertaken by the following States with a view to providing coparcenary right in a coparcenary property for the daughter of a coparcenar in a Joint Hindu Family governed by the Mitakshara law on par with their male counterparts.

S.No. Short tile of the Date of assent State State Enactment of the President
1. Andhra Pradesh The Hindu (Succession 16.5.86) (Andhra Pradesh Amendment) Act,1986
2. The Hindu Succession (Tamil 15.1.90) (Tamil Nadu Nadu Amendment) Act, 1990
3. The Hindu Succession (Karnataka 28.7.94) (Karnataka Amendment) Act, 1994
4. The Hindu Succession (Maharashtra 25.11.94) (Maharashtra Amendment) Act, 1994

4.2 The amended provisions hold:

"29-A. Notwithstanding anything contained in section 6 of this Act,-

  • in a Joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship : and shall be subject to the same liabilities in respect thereto as the son;

(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

  • Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter:
  • Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had 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 of the pre-deceased daughter, as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) 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 will or other testamentary disposition;

(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;

(v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.

  • 29-B. When a female Hindu dies after the date of the commencement of the Hindu succession (Tamil Nadu Amendment) Act, 1989, having, at the time of her death, an interest in a Mitakshara coparcenary property by virtue of the provisions of Section 29-A, her 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 any child or child of a pre-deceased child, 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.

29-C. (1) Where, after the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves under section 29-A or section 29-B upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of, or incidental to, the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred."

4.3 A number of others have made specific gender-sensitive provisions in their land laws. Some, like Rajasthan and Madhya Pradesh have, in accordance with our long-standing policy of non-interference with personal laws, provided that issues related to property, including landed property, would be dealt with in accordance with the appropriate personal laws. However, serious anomalies continue to persist. A number of States like U.P., Haryana, J and K, Delhi and Punjab are apparently yet to take adequate steps to provide the Constitutional/legal safeguards to women, with respect to their access to land. These anomalies are often evident in the tenancy and ceiling laws, which affect the most impoverished and marginalised section of our rural society. In these States, the succession rules relating to agricultural land is different from personal laws affecting the devolution of all other property. In these states land devolves on male lineal descendants. The widow and daughters inherit only in the absence of these male heirs. In some other states, such as Bihar and Orissa the tenancy laws prescribe that occupancy rights will devolve in the same manner as other immovable property, subject to any custom to the contrary. This leaves open the possibility of admitting gender inegalitarian customs if established.

Suggestion: Each State may constitute a Committee of legal experts to suggest necessary State amendments of the Hindu Succession Act, 1956 provisions of which can be duly implemented in the respective State laws relating specially to inheritance of landed property.

ISSUE NO.5: Deliberations to identify the causes of failure of the State machinery to allot ceiling surplus land , Bhudan land and Govt. waste land to implement the policy of ensuring greater access to land for the women, implications thereof and suggestions for future measures.

5.1. It was this demand, conveyed to the Planning Commission and the Government of India by several national women’s organisations that led to the promise in the Sixth Five Year Plan (1980-85) that in cases of assets being distributed, "Government shall endeavour to provide joint titles to husband and wife". To start with, this was to be introduced in cases of transfer of agricultural and homestead land. The review of the Sixth Plan referred to this decision as a "radical move". The commitment in the Sixth Plan was the first acknowledgement that without economic independence women’s equality would remain unrealisable. It was thus necessary for the State to accelerate the process of translating the Constitutional guarantee of equality through such ‘radical’ measures.

5.2 Government of India took special note for empowering women through allotment of surplus land, the activity for which started since the year 1952. The para 27.19 of the Sixth Five Year Plan in no certain term declared:

"Economic independence of women would accelerate the improvement of the status of women. Government would endeavour to give joint title to husband and wife in the development activities involving transfer of assets. This would be taken up for implementation to start within programmes like distribution of land and house sites and beneficiary oriented economic units."

5.3 This important policy directive of the plan was also considered in the Conference of Revenue Ministers and Revenue Secretaries held on 17th and 18th May, 1985. The Conference recommended that legal provisions be made by States/UTs for giving joint pattas in the name of the head of the family and spouse wherever land is allotted by Government or Gram Sabha. It was also decided that recording the name of the wife of the land holder in the record of right and other land records as matter of course be done.

5.4 The National Perspective Plan for Women 1988-2000 has recommended further steps to accelerate the process of empowerment of women. Taking into account these recommendations, the following steps may please be considered for implementation:-

  1. The allotment of Government wastelands, government land and surplus ceiling land, village common land, developed house sites, allotment of Indira Awas Tenements, etc. should invariably be done in the joint names of the husband and wife or single title of ownership given to women and scheduled castes, particularly those who are widows, unmarried or victims of harassment. At least 40% women members in the above categories may be given pattas.
  2. The rights of women, as co-owners of property, should not merely be confined to land but also to other productive assets like trees and houses. The land records should show entries both of husband and wife. Tree pattas should be issued in the name of women as a matter of preference.
  3. Land reforms and distribution are basic pre-requisites for economic development. Potential women beneficiaries should be associated with any group set up to advise the implementation machinery.

5.5 The Department of Rural Development have received comments of various State Govts. regarding implementation of issuing joint pattas while distributing surplus land, out of Land Ceiling Act and other types of land to be distributed among landless poor. Following are the States who have readily started implementing the scheme:-

  • Andhra Pradesh, Assam, Bihar, Gujarat, Maharashtra, Goa, Daman and Diu, Tripura, Tamil Nadu and Madhya Pradesh.

5.6 However, Governments of Haryana and Orissa have stated that until and unless applications from the beneficiaries do not come to the authorities, it will be difficult to allot joint pattas. Government of Uttar Pradesh have stated their difficulty because in many cases problems arise out of widow re-marriage. Therefore, suggestions have been made that in case of death of male khathedar the land should devolve in equal shares to his widow with his sons, the sons being not alive devolution in favour of the widow alone. Government of West Bengal have stated that 75% of ceiling surplus land has already been distributed to individual. So, they expressed their inconvenience.

5.7 The Govts. of Haryana and Orissa may be instructed to call for applications in joint name only to overcome their problem. Govt.of Uttar Pradesh can be instructed not to give stress on widow re-marriage as because male are frequently going for polygam. Govt. of West Bengal may be instructed to follow the latest instructions for 25% ceiling surplus land yet to be distributed among the people and the pattas issued in single name may be regularised by incorporating the joint name in consonance with the existing laws.

5.8 The Ministry of Rural Areas and Employment organised a number of national level conferences involving the Revenue Ministers as well as the Chief Ministers of all the States in which this issue was deliberated upon and policy decisions were adopted on the basis of national level consensus to provide greater access to land resources to the rural women. The summary of the Recommendations of the Conferences of the Revenue Ministers and Chief Ministers’ of States/UTs are given below:

1985:

5.9 Legal provisions be made by the States/UTs for giving pattas in the name of the head of the household and the spouse whenever land is allotted by the Government or the Gram Sabha.

1986:

5.10 Land Pattas be granted in future could be made jointly in the names of Husband and wife jointly. But in respect of Pattas already granted and distributed as it would require huge administrative effort to convert them into Joint Pattas, it was felt that all Pattas could be converted into Joint-Pattas at the time of updating of records or on a specific demand from a beneficiary even earlier.

1988:

5.11 The joint ownership of man and women spouse should be extended to all types of productive assets including land.

5.12 In the allotment of the Government land/surplus ceiling land and house-sites, at least 40% number of eligible women should be given pattas wherever possible.

5.13 Apart from the fixation of a specific percentage of distribution it was also recommended that the allotment of land to women beneficiaries and issue of joint patta needed to be monitored periodically.

5.14 As a follow up action to these recommendations, the Department of Rural Development advised all the State Governments and Uts vide their letter dated 2nd April, 1990 to effectively implemented the provisions with immediate effect. The Secretary to the Government of India, Ministry of Rural Development impressed upon all the Chief Secretaries of all the State Government etc. through his D.O. letter dated 3rd July, 1992 that at least 40% of the pattas be given to the women.

5.15 The issue was further vigorously pursued through the reminders dated 7.12.92, 19.4.93 and 21.3.94.

1990:

5.16 The Chief Ministers’ Conference also considered the issue for protecting the interest of the women.

5.17 It reiterated the recommendations of the Revenue Ministers’ Conference held in 1988.

1992:

5.18 The Chief Ministers’ Conference in the year 1992 also kept the issue of distribution of surplus land in its agenda 1.18 which held: "At least 40% of the allotment should be made in the name of female members of the household and the remaining jointly in the name of Husband and Wife. This will lead to enhance status of women with rural society.

1995:

5.19 The Revenue Ministers’ Conference held on 27th December, 1995 resolved to give top priority to SC/ST families while allotting Ceiling surplus, Bhoodan and Waste land. Out of the total beneficiaries, 40% should be exclusively assigned to women and in rest of the cases, the allotment should made jointly in the names of the husband and the wife.

1997:

5.20 The earlier recommendations were reiterated in the Conference, held in 1997.

1997:

5.21 The recommendation have been forwarded to the State Governments and the Union Territories for immediate execution. Some States have replied in affirmation. However, in many cases, there has been no response, despite several reminders etc. The statements showing distribution of Ceiling surplus land etc. prepared by the State Governments and Uts do not show any bifurcation of distributed land between women and men beneficiaries. It appears that the authorities are not taking the issue with adequate seriousness.

Suggestion:- Decisions are to be taken for effective implementation of the existing policy for allotment of government land to empower the women in the manner suggested above. Deliberations and decisions are also required for plugging the administrative loopholes which lead to tardy implementation of legal rights in social legislations.

ISSUE NO.6: Examination of certain probable difficulties, social resistance and side effects in strict implementation of the law of inheritance particularly on landed properties and suggesting measures for averting such eventualities.

Notes:

6.1 There is a definite need to study the socio-economic as well as political and cultural background of various regions for adoption of any national policy or legislative change as the issue is quite sensitive and may be having genuine problems in implementation. The probable area of objections and criticisms as well as social resistance, administrative difficulties may be taken into consideration to avert any set-back in grounding the national policy effectively. Some of the issues which require consideration in advance, are enlisted below:

A. Matters relating to effective implementation of law of related inheritance

  1. Many people, to ensure inheritance to the mail heirs, make "wills’ before their death, which is at present a legal instrument to devolve property to the heirs. Should, therefore, be a legal prohibition abolishing the right to make "will" in advance in contravention of law of inheritance? If such, prohibitive law is made, whether that will violate the fundamental rights to any individual?
  2. The revenue officials execute mutation proceedings in favour of the male heirs accepting the oral as well as written certificates given by family heir, communicating her unwillingness to inherit or her desire to abdicate the property rights in favour of her brothers/other family heirs. Such certificates or oral statements are given by female heirs out of various social, economic, cultural, psychological compulsions. Should, therefore, be legislative provisions in the concerned land laws to ignore such certificates or oral evidence which contravenes any given rights relating to inheritance? Shall such legal prohibition can be challenged as violation to fundamental rights of those female heirs?
  3. If female heirs are legally compelled to inherit the lawful share of the family property and thus allowed only to alienate such right in favour of the chosen male heir only through subsequent deed of transfer executed and registered legally. Shall it mean only a legal compulsion of spending money on stamp duty and execution of deeds? Whether that will only mean such additional burden on the female heirs acquiring no real benefit under the prevailing social condition? Will there by any possibility of ensuring full protection of all female heirs from any social, cultural or emotional pressure for executing such transfer deeds in favour of male heirs to buy peace, stay together within the family for getting the family support necessary for her daily maintenance, livelihood and upbringing, education till married or re-married, as the case may be.

B. Problem of effective implementation of the law of inheritance.

  1. Seeing the outcome of the national policy to allot 40% of the government land in favour of the women beneficiaries(which did not get implemented in some states effectively), it can be reasonably doubted whether strict compliance of law of inheritance can be enforced in our society.
  2. Shall it be desirable to make strict penal provisions for any attempt by any male heir to deny or avert proper inheritance to the female heirs or to effect easy access of female heirs to the inherited property.
  3. It may be examined whether there is any possibility of bifurcation of the family as soon as inheritance to female heir is physically effected? In such situation inheritance in most cases may lead to unmarried female child to economic and social insecurity. Since 59% of the holding is small and marginal, the female heir in most cases will inherit only such small holding which if not cultivated personally, generates such small return in the form of rent or share of crop, which will not be sufficient amount for her maintenance, education and marriage. What will happen to such unmarried female heir if the male heir bifurcate the property and allowed to have a separate establishment even before marriage?
  4. The fear of alienating the landed property in the families of the small and marginal farmers or asset-poor rural and urban families, may lead to greater number of infanticide, forced abortion detected female foetus, cruelty on them by the male heirs till her childhood, leading to bad education, bad health care and even negligence including lack of medical care leading to untimely or premature death. What modalities or protective mechanisms can be adopted to prevent such cruelty or eventual killing of prospective female heir or actual female heir.
  5. In many parts of Orissa, Bihar, M.P. and U.P. it has been reported that clever people of upper caste are marrying the tribal girls to get access to the tribal land and the experience of NGOs revealed that the female inheritance or ownership of landed property is being objected to by the women of those tribal and SC/ST families.
  6. Such marriages in many cases are only to grab the land and not to give proper status to the married women and in many cases they live a life of abandonment after alienation of the property.
  7. Customary rights of various tribal community are also to be looked into before imposing the standard inheritance law as may be conceived at the national level.

6.2 Can there be a law to ensure that women do not suffer from a feeling of economic insecurity before marriage or after marriage by making legislations which assures that

  1. a female member of any family before marriage shall enjoy all the property of her parents, and the brothers after the death of the parents; and
  2. all female members of the society on the date of marriage or within 30 days from such date of marriage shall jointly own all properties of her husband owned, acquired or inherited by such husband during the continuation of the marriage.

This shall imply that all marriages shall be registered and in the registration certificate signed by both the parties there should be a written guarantee that the bridegroom undertakes the responsibility of registering all properties in the name of the wife presently owned or to be owned in future by any legal means including inheritance and such registration of joint ownership shall be conducted within 30 days from acquiring, holding or inheriting such property. For example, if a bridegroom owns a motor vehicle in his name before the date of marriage, he shall within 30 days after the marriage change the registration certificate amended to include the name of the wife. Similarly, all properties registered in the name of the bridegroom shall be again registered to incorporate the name of the wife and the process shall continue throughout the married life of the bridegroom. The same rule shall apply for the bride and she shall also, while acquiring any property w.e.f. the date of marriage and till the continuation of the marriage, get all such property registered in the joint name of herself and her husband. Enjoying family properties with equal rights and privilege before the marriage as suggested under para "A" and after marriage as suggested under para "B" can only ensure equal property rights than the problem of alienation of property from the pre-marital family to the post-marital family, which has all ingredients for social education and other problems narrated above. In the mantras used for Hindu marriages there is utterance that "your heart is my heart etc." and therefore the same concept "your property is my property" shall be the future law to change the present situation globally where the registered value of the total property of the women are less than 1% of the property value registered in the name of the male members of the society.

Suggestion:- The Government may consider the areas and issues on which state-wise, region-wise, community-wise studies are required to understand the existing social, religious and customary laws and ramifications of implementation of a common policy on this pluralistic society of India.

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