5 Empirical Setting - Land Administration and Legislations with Local Governance
5.5 Stamp Act, 1899
This act was amended, according to the central law ordinance 1960 and was implemented in the whole of Pakistan, with effect from 14th October 1955, for the transaction of legal documents. Before this, when Pakistan was combined with India, it was amended sixteen times, after it came into force on May 1st, 1899. Section 2 of this act explains the details of all these documents, together with transfer procedures.
In Section 2(10) of this act, the procedure for the transfer of a title for immovable property, which is of the specific amount of legal stamp required by an authorized officer, is mentioned.
First of all, the landowner needs to know the value of his land according to the area. This area value is declared by the registrar or sub-registrar. The landowner obtains legal papers known as the stamp paper, which is two percent of the total value of his registry. In the case of sale, he has to present these documents at the office of the registrar together with two witnesses, because this paper must be duly signed by these two individuals in the office of the registrar.
The landowner has to pay one percent of his land value for the registration fee, and then his registered sale deed will be duly executed.
According to Section 2(15), in the case of the partition of land, such legal documents are also necessary, but in this situation, any order for affecting the partition passed by authority of the revenue department is sufficient. Thus, most of the villagers want to save their time and money and avoid going to the registrar's or sub-registrar’s office. They contact the local patwari and ask him to prepare the temporary transfer documentation, which is known as ‘fard mulkiat’.
Power of attorney is a legal document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal. Section 2(21), of this law explains the conditions of such Power of attorney, which empowers a specified person in place of executant of that attorney. Through these documents, a person can depute his rights to someone else, because of some specific reasons; for example, in the case of his absence from the area, a landowner is not able to look after his land by himself, and so he can give his rights to some other person or persons. Similarly, this might occur in the case of illness or because of old age. Sometimes, a landowner is female and, because of cultural boundaries, is not able
to deal with legal matters. Thus, it is practical to be allowed to execute attorney for someone else.
There are two types of power of attorney.
1) Special power of attorney: through this, the donor30 (s) can give only specific rights to the donee31(s); for example, for the supervision, management, and looking after of the property, to deposit the rent, and to file the cases on behalf of the donor.
2) General power of attorney is the execution of the authority for all matters of the property; for example, not only supervision and care of the property but the installation of new machinery and if necessary, the sale, transfer, and conveyance of the property; even in the case of the death of one of the co-attorneys, the others all are bound to perform his legal deeds.
The procedure of contract for the transfer of power is the same (statement of contract for special and general power of attorney are presented in Appendices 4 and 5) as that discussed above, but in this case, the registration fee is exempted. Registration of power of attorney is necessary only in the case if the donee has to be authorized to use some of the recovered funds from the property of the donor for his own benefit; otherwise, it is not necessary to register the contract.
5.7 Land Acquisition Act 1894
The Land Acquisition Act 1894 was established for the acquisition of land for public purposes. This law came into force on 1st March 1894 and was extended to the whole country. Many amendments were made in this law, according to the needs of the time.
According to this law, the provincial government is authorized to acquire the land in any locality that is likely to be needed for public purposes, and on behalf of the government, a collector can issue the notification for the required locality. The government can appoint any officer for the survey of the land or to set the boundaries of the respected area; this officer is responsible to pay damages in the form of compensation. If any person is not willing to accept the given compensation, the officer is bound to forward the dispute to the collector.
30 Donor who executes the power of attorney
31 Donee is the person who is authorized to use the rights in the absence of donor
The patwari is a very important person because, generally, the collector of the district32 normally appoints him for the survey on behalf of executive district officer (revenue) when land in any locality is needed or is likely to be needed for any public purpose or for a company. He has considerable influence. Even after the survey, if any person has any objection to the survey report, and he applies for reconsideration, the collector can forward his recommendations to the executive district officer (revenue), and he is the final authority for making decisions on land acquisition. He can ask the patwari to confirm the report. Khan (2006) has pointed out that the corruption exists within this department.
Section 4 (1) explains that land can sometimes be acquired without prior survey of the locality. In such cases, a declaration is made by the officer, who is duly authorized by the provincial government and the secretary of the government. After the issue of the declaration, the commissioner can ask the collector to take charge of the acquired land. Thus, he will send a notice to the involved persons, and they can claim their compensation and for damages and lay other objections in writing after fifteen days in front of collector, who will serve all these complaints.
In this law, the compensation prices depend on the market values of land at the time of notification and are defined as the value of land similarly situated and in similar use. In some cases, person finds that the compensation equals the value of the registry of his property. This will be decided according to the situation of the land.
5.7 Law of Inheritance
Inheritance is usually treated as an unimportant issue for policy formation concerning the security of tenure, land rights, land reform, or regularization (United Nations Human Settlements Programme (UN-HABITAT) 2005). However, this is one of the most common ways of acquiring land or of gaining access to land. In all Muslim societies such as Pakistan, inheritance rules are generally derived from religious sources for the division of an individual's property upon death. The rules are implemented by the family and community and are upheld by the State. Before the creation of Pakistan, Mohammedan Law was implemented for inheritance in Indian Courts. After partition in 1953, Islamic Shari’a Law was introduced, and in 1960, inheritances were announced to be distributable according to this
32 In charge at district level activities
law. In 2002, the Supreme Court of Pakistan made an amendment for giving shares to orphan grand-children.
As for all other inheritance laws, Islamic inheritance law allows the distribution of all kinds of property of the deceased, whether moveable or immovable, among heirs. However, the Islamic Law of succession has many distinctive features which are given below.
1. This law provides a wide range of beneficiaries of these assets 2. Fixed percentage share for the beneficiaries
3. A will is very important for a Muslim, and the importance of the will is clear from the following hadith,33"It is the duty of a Muslim, who has anything to bequest not to let two nights pass without writing a will about it." (Sahih al-Bukhari), but a person is restricted to leaving only one third of his assets according to his will, and the remaining two thirds will be distributed as per rules of Islamic Inheritance Law.
When a Muslim dies, some liabilities are necessary to be paid from his assets.
• All expenses of his funeral
• All debts, which he has to pay
• Implementation of his will
• Distribution of remaining assets among heirs according to Islamic Law 5.7.1 Beneficiaries of Inherited Property
Islamic Inheritance law explains the different levels of beneficiaries, who inherit the property of a deceased. In level one, all those heirs are included who are classified as primary or immediate family members, in which the spouse, children, and parents can be included. Level two, which is categorized as the secondary level, includes the grandchildren (only children of the son, in the case of the son having died), grandparents (in the case of the parents having died), brothers and/or sisters (in the absence of father and son, only), and uncles and/or aunts (in the case of the grandparents also not being alive). Similarly, the distribution occurs to the next levels, in the case of the absence of heirs from previous levels; it is not practical to give the share to the heir in level three, if the heir in level two is alive.
33 Hadith means the narration of Holy Prophet Mohammad (Pease Be Upon Him)
Islam has a clear definition for the heirs; for example, adopted children are not considered as the shareholder in the property of the deceased. Similarly, orphan grandchildren (daughter’s children) are also unlikely to obtain any share from the assets of the grandfather, if he has not mentioned them in his will. The same occurs for an unborn child or a child who is the offspring of the spouse of the deceased. A person can give some share of his property as a gift to these defined members of his immediate family or can leave something (one third of his total assets) for them in his will. The last category (offspring of the spouse) can obtain a share from his mother’s property according to the rules.
5.7.2 Fixed Percentage Shares
Before the explanation of fixed percentage shares in Islamic Shari’a,34 some terms should be clarified, for example, sharer and residuary. Sharers are those heirs who will receive their allotted share according to their entitlements, and residuaries are those who will receive the residue according to their entitlement as per the given rules as (1) remote relations are excluded by the nearer, and if no near relation is available, the residuaries will receive all estate of the deceased. (2) Sometimes, the ratio of double for a son in comparison with a daughter will also generate some residues. Shares from deceased males and females are different for some heirs, but the share of the children is the same from both parental sides. All the details of this sharing are explained below.
Distribution of inheritance between first level heirs for a deceased male: After the performance of his necessary duties, his property will be distributed among his first level heirs, such that his wife will receive one eighth of the remaining property in the case of having children, whereas if there are no entitled descendents,35 she will receive one fourth of the remaining property. If the deceased has only one daughter and no son, then that daughter will receive half of his remaining assets, but in the case of two or more daughters, the shares will be two thirds for all, which will be equally divided between them. If the departed is blessed with sons and daughters, then every brother will get double the share of his sister.
In the case of parents, the mother is the direct sharer of the son’s property and will receive one sixth from this property, if entitled descendents are present. If the deceased has no children, then here again two situations will arise; in the first situation, if no other relation
34 Islamic law
35 Entitled descendants: sons and daughters
such as spouse, father, brother, and sister of the died person exist, then the mother will receive one third of his property, and if any of these relations is alive, then the mother will get one third of the residue. For example, if the wife of the deceased is alive and has no child, then according to the law, the shares of both the widow and the mother are given below in Equation 5.1 and 5.2.
Share of the widow = 1/4 5.1
Share of the mother = 1/3 of the residue (1/3 of the 3/4) = 1/4 5.2 The father’s position as an heir has three characteristics: (1) as a sharer, (2) as a residuary, (3) as a sharer plus residuary. In the presence of other entitled descendents, the father will be a sharer and will receive one sixth of the deceased's property, but if he has no grandchildren, then he can take the residue, and in the presence of female descendents, he will first take his prescribed share of one sixth and then will take the residue.
Figure 5.7 (a) explains the situation of all the first level sharers with their fixed shares;
similarly, part b of Figure 5.7 depicts a scenario in which no entitled descendents exist, and the father and mother inherit as residuaries. Figure 5.7 (c) indicates the situation in which the father acts as both sharer and residuary in the presence of the only female daughter of the deceased.
Figure 5.6 (a): Distribution of Assets among First Level Sharers Source: Own Presentation
Wife 1/8
Sharers
Son 2/3
Daughter 1/3
Mother 1/6
Father 1/6
Figure 5.6 (b): Distribution of Assets with the Wife as a Sharer and the Mother and Father both as Residuaries
Source: Own Presentation
Figure 5.6 (c): Distribution of Assets where the Father acts as a Sharer and Residuary Source: Own Presentation
In the case of a deceased male, the distribution of property to the heirs of the next levels:
According to Inheritance Law, the secondary and next level heirs in the queue are entitled to inherit only in the absence of the particular primary heirs or heirs from the previous level; for example, if the son has died from the group of primary heirs, then his children are entitled to be sharers, and the property will be distributed according to the rules explained above. If the son of an excluded son is present among his entitled descendents, then his only daughter will get half of his share, whereas two daughters will get two thirds, and a son will get double his sister’s share as explained in Figure 5.8. The daughter’s children as previously explained are not eligible for the property of grandparents, but they can receive something as a gift or as part of the will. The only possibility of them receiving a share of the two thirds portion of the grandparents is if there are no sharers or residuaries, which is very rare.
Grandparents represent the next level in the queue after parents and are eligible only if the father and mother no longer exist. The grandmother may be father’s mother or mother’s
mother of the deceased and cannot be excluded from the list of heirs in the absence of the father or mother and will receive one sixth of his property as a sharer. Similarly, the grandfather will receive the same proportion, according to the same rules, that the father of the deceased receives, in the absence of a father or mother.36
Figure 5.7 (a): Distribution of Assets where a Father Does not Exist and the Share of the Father Transfers to the Grandparents as Fixed Sharers
Source: Own Presentation
Figure 5.7 (b): Grandmother Receives a Fixed Share and Grandfather Receives the Residue in the Absence of Descendants
Source: Own Presentation
36 Grandparents of father in case of missing father and grandparents of mother in case of missing mother
Wife 1/8
Sharers
Son 1/2
Daughter 1/4
Mother 1/6
Grandmother
1/6 Grandfather
1/6
Wife 1/4
Sharers and Residuary
Mother 1/4
Grandmother
1/6 Grandfather
(Residue)
Figure 5.7 (c): Grandmother Receives a Fixed Share and Grandfather Receives a Presubscribed Share plus the Residue in the Absence of Descendants
Source: Own Presentation
Similarly, if the deceased has no entitled descendent or ascendant at the primary level,37 then the property passes to secondary level heirs, which are brothers and sisters, who will receive shares only in the case if the father and sons of the deceased have previously died or not existed. Brothers and sisters are also categorized in three different groups, (1) full brothers and sisters, from the same mother and father, (2) uterine brothers and sisters, from the same mother but different father(s), (3) consanguine brothers and sisters, from the same father but different mother(s). Shares of property in all these three cases are different, as given below.
In the case of distribution to full brothers and sisters, if there are no female descendants, and the deceased has only one sister, then she will get half of his property. In the case of more than one sister, then they all get two thirds collectively, and if some brothers also existed but are deceased, then there will be a ratio of two to one between the brothers' and sisters’ shares, as shown in Figure 5.9. If the departed is the brother of a male only, then in the case where no male entitled descendants exit, he will receive one sixth of his property; similarly, if there is only a sister, then she can also claim for a one sixth portion in the same case, but if the deceased has brothers and sisters, then they can have one third of the remaining property, after paying the necessary duties of the deceased. This case is shown in Figure 5.10.
37 Real son and father are the primary level descendent and ascendant respectively.
Wife 1/8
Sharers and Residuary
Daughter 1/4
Mother 1/6
Grandmother
1/6 Grandfather
(1/6+Residue)
Figure 5.8: Share of Full Brothers and Sisters in the Case of no Entitled Descendants and Ascendants
Source: Own Presentation
Figure 5.9: Share of Full Brothers and Sisters in Case of no Male Entitled Descendants and Ascendants
Source: Own Presentation
* TBS = total number of brothers and sisters
The distribution among consanguine brothers and sisters is the same as that for full brothers and sisters, but in the case of uterine relations, if the deceased has only one brother or sister, his/her share will be one sixth, if the deceased has left no children. In the case of a daughter of
Wife 1/8
Sharers and Residuary
Daughter 1/4
Mother 1/6
Sisters
1/3(TBS)* Brothers
1/3(TBS) Wife
1/4
Sharers and Residuary
Mother 1/4
Brothers
1/2 Sister
1/4
the dead man, his brothers and sisters will receive one third of his property, providing that he has no son and father.
Similarly, uncles and aunts are the next following heirs after the grandfather, just as the brothers and sister are next following to the parents, and any nephews and nieces are next
Similarly, uncles and aunts are the next following heirs after the grandfather, just as the brothers and sister are next following to the parents, and any nephews and nieces are next