LAHAUL AND KINNAURI WOMEN DEPRIVED OF ANCESTRAL PROPERTY RIGHTS- A PATHETIC SITUATION OF WOMEN IN H.P.
To
Honorable Chief Minister, Govt. of H.P., Shimla.
Subject:
To take immediate necessary action for providing the ancestral property right
to women on Distt. Kinnaur and Lahaul-Spiti (HP) at ground level
Honorable
Sir,
With regards, this petition is subjected to the welfare and right of the
women living in Distt. Kinnaur and Lahaul-Spiti (HP) at ground level who are
deprived of the Right to Ancestral Property. As you can see the news published
in the Daily Amar Ujala, Hamirpur (HP) edition front page on 14-04-2013 as belowhttp://epaper.amarujala.com/svww_zoomart.php?Artname=20130414a_001157012&ileft=460&itop=258&zoomRatio=137&AN=20130414a_001157012
It
is really a great shame in the modern society era and the public must respect
women in every aspect. If the property is transferred to relatives than the
daughters in absence of the son, this is an act of injustice and cruelty with women in Distt. Kinnaur and
Lahaul-Spiti (HP) . The Law of Wajib Ul Arz cannot be used in modern society.
The tribal women are right and they deserve the attention in this case.
What
is the law of Wajib Ul Arz in international context ?
The wajib-ul-arz is a
record of customs in each village in regard to: the right to irrigation or
right of way or other easementary right, and the right to fishing.Differently
from the rights detailed in a nistar patrak these rights do not pertain to land
or water not belonging to, or controlled or managed by the state government or
a local authority; it relates to rights available on occupied land. Inserting
or modifying an entry in the wajib-ul-arz may happen, either when all persons
interested in such an entry so desire, or where a court intervenes to rule on
an existing entry, or decrees the existence of a custom that has not yet being
recorded.
The term wajib-ul-arz in
the North-Western Provinces is applied to what is considered to be the most
important document contained in the official records relating to the village
administration. Entries therein, properly made and authenticated by the
signatures of the officers who made them, have been held by this Committee in
the case of Rani Lekraj Kuar v. Baboo Mahpal Singh (1879) 7 I.A. 63, to be
admissible in evidence under Section 35 of the Indian Evidence Act in order to
prove a family custom of inheritance, or, under Section 48 as the record of
opinions as to the existence of such custom by persons likely to know of it. In
giving their Judgment their Lordships say " These wajib-ul-arz, or village
papers, are regarded as of great importance by the Government. They were
directed to be made by Regulation VII of 1822," the 9th section of which
enacts that-
It shall be the duty of
collectors and of her officers exercising the powers of collectors, on the
occasion of making or revising settlements of the land revenue, to unite with
the adjustment of the assessment and the investigation of the extent and
produce of the lands, the object of ascertaining and recording the fullest
possible information in regard to, landed tenures the rights, interests, and
privileges of the various classes of the agricultural community. For this
purpose their proceedings shall embrace the formation of as accurate a record
as possible of all local usages connected with landed tenures, as full as
practicable a specification of all persons enjoying the possession and property
of the soil, or vested with any heritable or transferable interest in the
land." and it was specially ordered that-
The information collected on the above points shall be so arranged
and recorded as to admit of an immediate reference hereafter by the Courts of
Judicature.
3. As this Regulation was passed at the time of the introduction
of a regular settlement of the land revenue into "the Ceded and Conquered
Provinces," under which designation the districts afterwards known as
"the North-Western Provinces" were at that time included, the object
of the Government appears to have been to obtain a body of reliable
contemporary evidence upon matters which might afterwards come into
controversy, not only between the landholders and the Government, but between
rival claimants to estates.
4. Regulation VII of 1822 was repealed, as regards the
North-Western Provinces, by Act XIX of 1873, and it is to be observed that this
Act, while providing, in the 62nd and following sections, for the maintenance
of a careful " record of rights" in each mahal, no longer included a
record of " local usages connected with landed tenures" among the
particulars to be entered. It was probably considered that, during the fifty
years which had elapsed between the passing of the Regulation and the Act, such
usages had been sufficiently ascertained, and that it was desirable that
reference should be made to the earlier records when the existence of any such
usage was asserted. For it is clear from a subsequent Judgment of this
Committee in the case of' Uman Parshad v. Gandharp Singh (1887) 14 I.A. 127,
that, in later years, at any rate, attempts have been made by some proprietors
to use these records as an indirect means of giving effect to their wishes with
regard to the nature of their tenure, or the mode of devolution of their
property after their death. When this has been the case, as Lord Hohouse
observes (ubi supra p. 135) these records are "worse than useless, they
are absolutely misleading."
It is to this custom that the
terms of the wajib-ul-arz appear to me to give expression, and the matter
therefore comes to this that before any sharer is competent to transfer his
rights and interests, he must offer to transfer them to his co-sharers. It is
true that the Wajib-ul-arz shows that before the co-sharers can fix the price,
the owner is entitled to get what he can from an outsider, so that he can
insist upon their giving the same. Under these circumstances, the word
"qimat" is used, and it seems to be generally agreed that the meaning
of this word is not "money," but "equivalent" or
"value."
If, therefore, the co-sharers want to get the land, they must give
the vendor the equivalent or value of the thing for which he desires to
exchange his property. Now, in all countries sufficiently advanced in
civilization to possess coinage, money is the accepted standard of value, and
therefore, because in this case the co-sharers cannot give the thing for which
the vendor agreed to exchange his land - it being another piece of land which
does not belong to them--they have a right to obtain his land for an equivalent
in money.
to the interpretation to be placed on the word
"haqiyat," I have nothing to add to the observations which I made
upon a cognate question in the case of Sahib Ram v. Kishen Singh Weekly Notes
1882 p. 192 which was a case decided by a Full Bench, of which I was a member,
but had the misfortune of differing with the majority of the Court. The case
has unfortunately not been reported in the Indian Law Reports, but I have
adhered to the view which I then expressed as to the nature of the proprietary
rights of a co-sharer in a mahal to which, under the wajib-ul-arz, the right of
pre-emption applies. That case related to the question whether the abadi area
or habitable site of a village came within the meaning of the term
"haqiyat;" and in the present case the property appears to be a
grove.
The
rule of pre-emption was originally introduced into India as a part of the
Muhammadan law, and must, by equitable analogy, be administered in the spirit
of that law. This view was adopted by Sir Barnes Peacock,
C.J., a good many years ago. It therefore appears to me that the word
"qimat," which is of Arabic origin, must be interpreted in the sense
given to it by the Muhammadan law, and that is undoubtedly not the technical
meaning of the English word "price." In the law of pre-emption "qimat" includes not
only money, but other kinds of property capable of being valued at a definite
sum of money. This is borne out by the passage in Hedaya, which has been cited
at the Bar: "If a man sell a piece of ground for another piece of ground,
in this case, as each piece of ground is the price for which the other is sold,
the shafee of each piece is entitled to take it for the value of the other,
land being of the class of zosat-al-keem, or things compensable by an
equivalent in money," (Grady's edition of Hedaya, p. 555), and in
this sense the word may be taken to cover the consideration of "sale"
as well as of exchange as defined in Sections 54 and 118 of the Transfer of
Property Act (IV of 1882) respectively. Any other view of the law of
pre-emption would simply render the object of the right easily defeasible--the
object being the exclusion of strangers from the co-parcenary of the property
to which the right applies.
limbadar or co-sharers Construction of
wajib-ul-arz Where a wajib-ul-
arz was not signed by the lainbadar or by any of the co-sharers of the
village (or which it was framed, but was found to have been in
existence without having been questioned by any of the parties who might
have been affected thereby for a period of some thirteen years : Held that
the wiji'i'Ul-arz might be taken as prima facie evidence of the custom of
the village for which it was framed.
The said ivajib-ularz contained a clause relative to pre-emptive rights to
the following effect : "When any muafidar in the patti desires to transfer
his share, then first a shareholder in the path takes it, and if he
does not take it, then another man who desire to take it takes it." Held
that this clause was declaratory of the village custom and that it was not
intended thereby to adopt the Muhammadan law of pre-emption. RUSTAM
ALI KAHN v. ABBASI BEOAM, 13 A. 407=11 A.W.N. (1891) 146 ... 260
(2) Wajib-ul-arz Inivroper use of wajib-ul-arz to record wishes of sole proprietor
of villag a Succession Hindu Law Primogeniture- The object of the
wajib-ul-are is to supply a reliable record of existing loyal custom. It was
never intended that the wajib ul-arz should be used as an indirect means
of giving effect to the wishes of a sole proprietor with regard to the
nature of his tenure or the mode of devolution of the property which
should obtain after his death. 8UPERUNDDHWAJA PRASAD v. G.
PRASAP, 15 A. 147 = 13 A.W.N. (1893) 85 ... 813
3) Act XIX of 1873, ss. 3, sub-s. (1), 101 Partition Wajib-ul-arz Power of
Collector in constituting a new mahal by partition to frame a new wajib-ul-
arz for such mahal. Ic is within the implied, though not within the speci-
fied, powers of a Collector while constituting new mahals by partition of
a previously existing single mahal to frame new wajib ul-arz for each of
the new mahals so constituted. KEDAR NATH v. RAM DIAL, 15 A. 410
arz was not signed by the lainbadar or by any of the co-sharers of the
village (or which it was framed, but was found to have been in
existence without having been questioned by any of the parties who might
have been affected thereby for a period of some thirteen years : Held that
the wiji'i'Ul-arz might be taken as prima facie evidence of the custom of
the village for which it was framed.
The said ivajib-ularz contained a clause relative to pre-emptive rights to
the following effect : "When any muafidar in the patti desires to transfer
his share, then first a shareholder in the path takes it, and if he
does not take it, then another man who desire to take it takes it." Held
that this clause was declaratory of the village custom and that it was not
intended thereby to adopt the Muhammadan law of pre-emption. RUSTAM
ALI KAHN v. ABBASI BEOAM, 13 A. 407=11 A.W.N. (1891) 146 ... 260
(2) Wajib-ul-arz Inivroper use of wajib-ul-arz to record wishes of sole proprietor
of villag a Succession Hindu Law Primogeniture- The object of the
wajib-ul-are is to supply a reliable record of existing loyal custom. It was
never intended that the wajib ul-arz should be used as an indirect means
of giving effect to the wishes of a sole proprietor with regard to the
nature of his tenure or the mode of devolution of the property which
should obtain after his death. 8UPERUNDDHWAJA PRASAD v. G.
PRASAP, 15 A. 147 = 13 A.W.N. (1893) 85 ... 813
3) Act XIX of 1873, ss. 3, sub-s. (1), 101 Partition Wajib-ul-arz Power of
Collector in constituting a new mahal by partition to frame a new wajib-ul-
arz for such mahal. Ic is within the implied, though not within the speci-
fied, powers of a Collector while constituting new mahals by partition of
a previously existing single mahal to frame new wajib ul-arz for each of
the new mahals so constituted. KEDAR NATH v. RAM DIAL, 15 A. 410
Wajib-ul-arz is a
document included in the record-of-rights cannot be
disputed since it contains the statements on matters
envisaged under clauses (a) and (b) of sub-section (2) of
Section 31 of the Act. According to the courts ,
Wajib-ul-arz document being record-of-rights of estates
completed after November 18, 1871, and there being
nothing expressly stated in them that the forest or quarry
or land or interest in the estates belong to the
Government, the lands in such estates including brick-
earth in them shall be presumed to belong to the
concerned landowners as is declared in sub-section (2) of
Section 42 of the Revenue Act."
document included in the record-of-rights cannot be
disputed since it contains the statements on matters
envisaged under clauses (a) and (b) of sub-section (2) of
Section 31 of the Act. According to the courts ,
Wajib-ul-arz document being record-of-rights of estates
completed after November 18, 1871, and there being
nothing expressly stated in them that the forest or quarry
or land or interest in the estates belong to the
Government, the lands in such estates including brick-
earth in them shall be presumed to belong to the
concerned landowners as is declared in sub-section (2) of
Section 42 of the Revenue Act."
Community rights are completely
overlooked. There is no understanding of these
community rights at the State level.
Though people have collected the old record known
as Wajib-ul-urz, which is a document
of record of rights existed before British period in
Urdu. This record of rights mentions
about all the rights such as timber for house
construction, grazing rights, timber
for making agricultural implements, grass for
thatched roof, fodder, fuel wood,
looping trees for cattle, Chirgoza and Kail dry leaves
for bedding of cattles, wood for
ceremonies, dry wood for dead etc . These rights are
known as “Bartandari Rights” in HP.
The issue of community rights came up very
strongly in all the places and
submission regarding these old records was made to
committee members. In 1927
(according to Indian Forest Act) settlement 24 rights were
recorded. But over the years these
rights have been transformed into concession.
Submissions were made that all these
rights should be granted under community rights.
The GoHP states that the record of
rights has already been compiled since 1921, and rights
have already been settled under the
Forest Act 1927. The state authorities say that the HP
Land Revenue Act is also applicable.
Chapter IV of HP Land Revenue Act envisages that if
there is any change in the record of
rights, there is a detailed procedure for making new
entries, variations, alterations,
additions’ in the record of rights. Thus their is a complete
code, statutory enactment and rules
and regulations pertaining to these rights especially in
three tribal districts. The record
of rights i.e individual and community which were earlier
recorded in Wazib-ul-arj were finally
reduced in the shape of Forest Settlement Report.
The wajib-ul-arj document is
available in Urdu (these documents were also submitted to
committee). It is important that
these documents needs to be translated to find out the real
status of rights before British
annexed forest and rights of the people.
At this juncture we may refer
to the relevance of Wajib-ul-arz while dealing with cases of customary
easements. Section 242 of the Code deals with Wajib-ul-arz and is extracted
below :
"242. Wajib-ul-arz.--(1) As soon as may
be after this Code comes into force, the Sub-Divisional Officer shall, in the
prescribed manner, ascertain and record
the customs in each village in regard to –
(a)
the right to irrigation or right of way or other easement; (b)
the right to fishing; in
any land or
water not belonging
to or controlled
or managed by
State Government or a local authority and such record shall be known
as the Wajib-ul-arz of the village.
(2)
The record made
in pursuance of
sub-section (1), shall
be published by
the Sub-Divisional Officer
in such manner
as may be prescribed.
(3)
Any person aggrieved
by any entry
made in such
record may, within one year from the date of the
publication of such record under sub-section (2), institute a suit in a civil
court to have such entry cancelled or
modified.
(4)
The record made
under sub-section (1)
shall, subject to
the decision of the civil court
in the suit instituted under sub-section (3), be final and conclusive.
(5)
The (Sub-Divisional Officer) may, on the application of any person
interested or on his own motion, modify an entry or insert any new entry in the Wajib-ul-arz on any of the following
grounds :
(a) That all persons
interested in such entry wish to have
it modified; or
(b) That by
a decree in
a civil suit
it has been
declared to be erroneous; or
(c) That being founded on a
decree or order of a civil court
or on the
order of a
Revenue Officer it
is not in
accordance with such decree or order; or
(d) That being
so founded, such
decree or order has subsequently been varied on
appeal, revision or review; or
(e) That the
civil court has
by a decree determined any custom existing in the
village."
Rules have been
made under section
242 relating to
Wajib-ul-arz vide notification
dated 2.2.1966, Rule 2 thereof is extracted below :
"2. Customs under sub-section (1) of section 242
shall be ascertained and recorded in
the Wajib-ul-arz under the following heads, namely : - (i) Right to irrigation; (ii) Other water-rights; (ii) Right to fishing; (iv) Rights of
way, village roads,
paths, drains and
the like; (v) Rights of persons of other
villages over the lands of the
village; (vi) Rights of the villagers
over the lands of other villages; (vii) Other easement - (a) Burial and cremation
ground, (b) Gaothan (c) Encamping-ground, (d)
Threshing-floor, (e)
Bazars, (f) Skinning-grounds, (g)
Rights to graze and take fuel, (h) Manure and rubbish;
(viii) Other miscellaneous rights."
15. Wajib-ul-arz is thus the
record of customs in a village in regard to (i) easements (including
the right to
irrigation and right
of way); and
(ii) the right to fishing in
privately owned/held lands and water bodies. The entries therein
could be modified
in the manner
provided in sub-section
(5) of section 242 of the Code.
Though the Code provides for maintaining a record of all
customary easements imposed
upon privately held
lands and water bodies, significantly the Code does
not provide the remedies available in the event of disturbance or interference
with such easements recorded in Wajib-ul-arz, as the remedy is only way of a
suit before the civil court. Customary easements are the most difficult to
prove among easements. To establish a custom, the plaintiff will have to show
that (a) the usage is ancient or from time immemorial; (b) the usage is regular and continuous; (c)
the usage is certain and not varied; and (d) the usage is reasonable. If
the Wajib-ul-arz (where
such a record
is maintained) records
or shows the
customary easement, it would make the task of civil courts comparatively
easy, as there will be no need for detailed evidence to establish the custom.
Be that as it may. If the
remedy for violation
of a customary
easement recognized and recorded
in the Wajib-ul-arz is by way of a civil suit, it is inconceivable that in
regard to violation of a customary easement
not recognized or recorded in the
Wajib-ul-arz, the remedy would be only by way of a summary enquiry by the
Tahsildar under section 131 of the Code, and not by a suit, before the civil court.
I am producing a judgement about this :-
Allahabad
High Court
Jiwan Ram vs Tondi Singh on
10 July, 1911
Equivalent citations:
(1912) ILR 34 All 13
Author: G
Knox
Bench: G Knox, K Husain
JUDGMENT
George
Knox, J.
1. I
would dismiss this appeal. It arises out of a suit for pre-emption based upon
custom as contained in the wajib-ul-arz. The wajib-ul-arz under which the right is claimed is a
wajib-ul-arz prepared under and in accordance with the provisions of Regulation
VII of 1822. According to the Regulation that wajib-ul-arz is primd facie
evidence of the custom recorded in it unless and until it has been formally
altered. It shall be shown by the result of a full investigation in a regular
suit that the proceeding or record of the Collector was erroneous or
incomplete. No evidence has been given by the defendant. I have therefore, to
see what is the true construction to be placed upon its language. The terms of
it will be found fully set out at page 282, I.L.R., volume 32. As I read them
they record a custom whereby a person holding a share in the deh of Dharera has
a right of pre-emption over and above a stranger. This is what I understand the
villagers of Dharera intended and what they-understood and what the Settlement
Officer found to be the custom. The stranger was to be kept out so long as any
one who held any part or lot in the deh was prepared to pre-empt.
2. I
would therefore dismiss the appeal with costs.
Kabamat
Husain, J.
3. Certain property in the village Dharera
was sold and a suit for pre-emption on the basis of the wajib-ul-arz of 1272
Fasli brought. The terms of the wajib-ul-arz are:
Agar kisi hissadar ko haqiyat apni bai wa
rehan aur murtahin ko rehan dar rehan karna ho to bawaqt intiqal ke lazim hoga
ki pahle apna hissadar karib ko aur darsurat inkar uske dusre hissadar deh ko
khabar dekar baqimat wajib bai wa rehan kare.
4. [If any
hissadar (sharer) has to sell or mortgage his haqiyat (interest) and if any
mortgagee has to sub-mortgage it, he at the time of the transfer must give
information first to his near hissadar and in case of his refusal (to buy) to
other hissadar deh (sharer in the village) and then sell or mortgage it (to
others) for a proper price.]
5. The
village afterwards was divided into several mahals for whioh no new
wajib-ul-arz was framed. The property sold was situate in one mahal and the
pre-emptor had a share in another mahal. A single Judge of this Court held that
a perfect partition " put an end to the right of pre-emption in respect of
the property situate in a different mahal and the Full Bench case of Dalganjan Singh v. Kalka Singh (1899)
I.L.R. 22 All. I applied. He therefore dismissed the pre-emptor's claim. On
appeal, the learned Judges who heard the appeal took different views. Stanley,
C.J., held that the plaintiff was entitled to pre-empt notwithstanding the
partition, and that the words hissadar deh, as used in this wajib-ul arz, meant
a sharer in the village. Banerji, J., came to the conclusion that the plaintiff
could not pre-empt after the partition of the village, as, although he was a
sharer in the village, he was not a co-sharer of the vendor, and that the words
hissadar deh, as used in the wajib-ul-arz meant a co-sharer of the undivided
village for which the wajib-ul-arz had been prepared. See Dori v. Jiwan Ram (1910)
I.L.R. 32 All. 265. Hence this appeal. It has been . expressly laid down in the
Full Bench case of Dalganjan Singh that, where on the perfect partition of a
mahal under the North-Western Provinces Land Revenue Act, 1873, no new
wajib-ul-arz has been framed for any of the new mahals, the question whether or
how far a contract or a custom of pre-emption recorded in the wajib-ul-arz of
the undivided mahal is still in force, or who is entitled to claim the benefit
of it, is not capable of any absolute or invariable answer." This shows
that the mere fact that the words hissadaran deh have been construed to mean
"co-sharers in the undivided village," is no reason for holding that
the words "hissadar deh" in the present case also mean a co-sharer in
the undivided mahal and not a sharer in the deh, Nos. , village.
6. Again,
in interpreting a wajib-ul-arz according to the ruling in the case of Dalganjan
Singh "no general consideration are of any value. In every case we must
place ourselves as nearly as possible in the position of the parties and have
regard to surrounding circumstances." These remarks imply that the learned
Judges who decided Dalganjan
Singh v. Kalka Singh (1899)
I.L.R. 22 All. 1 on placing themselves as nearly as possible in the position of
the parties to the wajib-ul-arz and considering the surrounding circumstances
came to the conclusion that by using the words "hissadaran deh the framer
of the wajib-ul-arz intended to confer ; the right of pre-emption on the
co-sharers of the undivided deh meaning thereby the undivided mahal. It must be
taken for granted that in the case such surrounding circumstances did exist as
forced the learned Judges to come to that conclusion. It remains to be seen if
in the case before us the circumstances are such as to make us conclude that
the right of pre-emption is intended for the co-sharers of the undivided deh as
one mahal. Deh is a Hindi word and means a definite area of agricultural ,
holdings with houses upon, and is thus a physical unit. Mahal is a corruption
of an Arabic word and is a legal term meaning "any local area held under
separate engagement for the payment of the land revenue." Deh and mahal
are two distinct conceptions. In one deh there may be several mahals and in one
mahal there may be several dehs or portions of them. It, however, sometimes
happens that a definite area of land is one deh and also one mahal. This is a
pure accident and must not lead to the erroneous notion that when the terms
"deh" and "mahal" may be predicated of one and the same
area of land, they became synonymous. When the wajib-ul-arz of the village
Dharera was framed in 1272 Fasli, it was one deh and also one mahal. It was
called a deh from the physical point of view and a mahal from the fiscal
stand-point. The meaning of a "hissadar in the deh of Dharera" is
quite distinct from the meaning of "a hissadar in the mahal of Dharera.''
The plain and natural meaning conveyed by the former is "a sharer in the
physical entity called Dharera" without any notion of his liability to the
payment of revenue ; while the natural and ordinary meaning of the latter is
"a co-sharer in the mahal of Dharera who is a member of the co-parcenary
body jointly and severally responsible for the revenue of the mahal.
7. There
being a vast distinction between the word "deh" and the word
"mahal," the plain meaning of a "hissadar deh" in the
wajib-ul-arz we have to construe is "a sharer in the village
Dharera," and there are no surrounding circumstances to lead me to infer
that the intention of the framers of the wajib-ul-arz in question was to mean
by those words a co-sharar in the undivided mahal of Dharera." Had they
any such intention, they would have used the expression "hissadar
mahal" instead of "hissadar deh." Moreover, the distinction
sought to be drawn between a "hissadar deh" and a "hissadar
mahal is too fine for the mental calibre of the class of people to which the
ordinary f ramers of waib-ul-arzes belong. Again, in the wajib-ul-arz before us
there" are indications which go to show that a "hissadar deh"
means "a sharer in the village" and not "a co-sharer in the
undivided mahal." One is that the framers are stating a custom which
exists in the "village" and not in the mahal" Another is that
they use the word "hissadar" in the singular number, showing thereby
a complete absence of the idea of the co-parcenary body from their minds. The
existence of the expression, "As to the rights of co-sharers among
themselves based on custom or agreement," in the wajib-ul-arz in Dalganjan
Singh's case might have been one of the surrounding circumstances which led the
Chief Justice to hold that "deh" in that wajib-ul-arz meant
"mahal" There is nothing in the case before us to show that the word
"hissadar" in the beginning of the pre-emption clause means "a
co-sharer in the undivided mahal of Dharera" to make me infer that that
word in the expression "hissadar deh" also means "a co-sharer in
the undivided mahal of Dharera." The natural meaning of the pre-emption
clause in the case before us to my mind is that at the time framing the wajib-ul-arz
there existed a custom whereby a sharer in the village was entitled to
pre-empt. The fact that he at that time was also a co-sharer in the undivided
mahal of Dharera was a mere accident and not the differentia on which the
existence of the right of pre-emption depends. It is admitted in Dalganjan
Singh's case that persons other than co-sharers in an undivided mahal can have
the right of pre-emption after a perfect partition, and that being the case to
be a co-sharer in an undivided mahal, cannot be an essential of the right of
preemption. For the above reasons I hold that the plaintiffs, on the right
interpretation of the wajib-ul-arz of 1272 Fasli, notwithstanding a perfect
partition, are, as sharers in the village, entitled to pre-empt. The result is
that I would dismiss the appeal with costs.
FURTHER,
IT MAY BE OBSERVED CLOSELY IN THE VERDICT OF SUPREME COURT GIVEN BELOW:-
Supreme Court of India
Dayaram & Ors vs Dawalatshah & Ors on 8 January, 1971
Equivalent citations: 1971
AIR 681, 1971 SCR (3) 324
Bench: S C.
PETITIONER:
DAYARAM
& ORS.
Vs.
RESPONDENT:
DAWALATSHAH
& ORS.
DATE OF
JUDGMENT08/01/1971
BENCH:
SHAH,
J.C. (CJ)
BENCH:
SHAH,
J.C. (CJ)
HEGDE,
K.S.
GROVER,
A.N.
CITATION:
1971 AIR
681 1971 SCR (3) 324
1971 SCC
(1) 358
ACT:
Madhya
Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act
1, of 1951-SS. 3, 14-S. 14 scope of-Section only intended to determine the
Proprietary rights in the land qua the State-Dhanora-Zamindari- Succession by
lineal primogeniture-'Nearest male relative' does not mean eldest male
relative.
HEADNOTE:
Under the Chanda Patent and the terms
recorded in the Wajibul-Arz the Dhanora Zamindari was impartible and on the
death of the holder it devolved upon his eldest son and in the absence of a
legitimate or an adopted son it devolved upon the nearest male relative. The
succession to the Zamindari was subject to the power of the Governor to
dispossess a person found unfit to observe the conditions of loyalty, good
police administration and improvement of the estate.
Therefore, we must
amend the said law which is anti-women and anti-justice in nature because
modern society does not allow it to be continued in the old patterns. As
we know:
The Hindu Succession
Act, 1956 is an Act to codify the law relating to intestate succession
among Hindus. Intestate succession means succession to property left by a Hindu
without any testamentary instrument like Will, Settlement etc. The Act brought
about important changes in the law of succession but without affecting the
special rights of the members of a coparcenary. Coparcenary consists
of a male Hindu, his son, grand son (son’s son) and great grand son
(son’s son’s son). Daughters were excluded from succession to coparcenary
property. The law by excluding the daughter from participating in the
coparcenary ownership not only contributed to her discrimination on the ground
of gender but also led to oppression and negation of her fundamental
right of equality guaranteed under Article 226 of the Constitution of India.
Parliament felt that non inclusion of daughters in the coparcenary
property was causing discrimination to them and accordingly decided to bring in
necessary changes in the law. Accordingly Section-6 of the Hindu
Succession Act, 1956 was substituted by a new provision vide the Hindu
Succession (Amendment) Act, 2005 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 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 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.- For the purposes of this sub-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.
(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.
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".
The new Section 6 provides for parity of rights in the coparcenary property
among male and female members of a joint Hindu family on and from 09-09-2005.
Thus on and from 09-09-2005 the daughter is entitled to a share in the ancestral
property and is a coparcener as if she had been a son. The States of
Tamil Nadu, Andhra Pradesh, Karnataka and Maharashtra made
necessary changes in the law giving equal rights to daughters in the ancestral
property by enacting State amendments and in these states the daughters have
been provided parity of rights in the co-parcenary property with effect from
the dates notified by the said State amendments. The effective dates
are:- Tamil Nadu(25-03-1989), Andhra Pradesh (5-9-1985) Karnataka (30-07-1994)
and Maharashtra (22-06-1994). The State of Kerala abolished the joint
family system by enacting the Kerala Joint Hindu Family System (Abolition) Act.
1975 with effect from 1-12-1976.
The right accrued to a daughter in the ancestral property, by virtue of the Amendment Act, 2005 is absolute, except in the circumstances provided in the amended Section-6. The excepted categories to which new Section-6 is not applicable are two, namely, (1) where the disposition or alienation including any partition which took place before 20-12-2004 and (2) where testamentary disposition of the property was made before 20-12-2004.
In a landmark judgment on Friday, the high court has ordered that
married women born after 1956 will be entitled to an equal right of inheritance of ancestral property from parents. According to the Hindu Succession Act (1956) the right to ancestral property was not given to married women. But it was amended on September 9, 2005, to provide the right to parental property for daughters as an equal right since birth.
married women born after 1956 will be entitled to an equal right of inheritance of ancestral property from parents. According to the Hindu Succession Act (1956) the right to ancestral property was not given to married women. But it was amended on September 9, 2005, to provide the right to parental property for daughters as an equal right since birth.
Justice N Kumar while listening to an appeal filed by Bangalore
resident Pushpalatha, directed that a married daughter is also a co-parcenar
(having an equal right to ancestral property along with male siblings) and is
entitled to equal share as that of the sons in co-parcenary properties and the
marriage in a way affects her right to get equal share in the co-parcenary
property to married woman since 1956.
Hence, I am making this appeal before you to allow all the ancestral
property rights to the women living in tribal distt. Kinnaur and Lahaul-Spiti
immediately.
Dated: 14-04-2013 Yours
sincerely: Vijay Kumar Heer, State President , H.S.K.M.
& Himachal Shikshak Mahasangh JBT Cell, HP
VPO CHAKMOH , TEHSIL BARSAR, DISTT. HAMIRPUR , H.P. 176039
Comments
Post a Comment