The Punjab & Haryana High Court has held that any custom or restriction which curtails the right of a female to alienate property inherited by her from her husband, when such property is non-ancestral in nature, is inherently discriminatory. The Court explained that a limitation founded solely upon gender or marital status cannot withstand the scrutiny of Article 14 of the Constitution of India, which mandates equality before law and prohibits arbitrary or unreasonable classifications.
Consequently, the Court ruled that any such fetter on a woman’s right to deal with her independently inherited property must be held to be constitutionally impermissible, legally unsustainable, and devoid of binding effect. Finding the sale a legally recognized necessity, the Court concluded that since the property was non-ancestral, the restrictions in the Riwaj-i-am did not apply to Rehmani’s power of alienation.
A Single Judge Bench of Justice Virinder Aggarwal noted that the suit land had been conclusively determined to be non-ancestral in a prior litigation between the parties (Civil Suit No. 167 of 1981). This finding was relied upon by the First Appellate Court and accepted as correct. The Bench heavily relied on the Supreme Court’s judgment in Jai Kaur vs. Sher Singh [AIR 1960 SC 1118], which established that questions and answers in a Riwaj-i-am or Wajib-ul-arz are presumed to refer only to ancestral property unless there is a clear indication to the contrary.
The Bench extensively discussed that any custom restricting a woman’s property rights based on gender is contrary to the constitutional mandate of equality under Articles 14 and 15. Reference was made to the decision in Mohammad Yunis vs. Malooki [2004 (1) RCR (Civil) 476], which held that a custom from the pre-Constitution era cannot be recognized unless it meets the approval of the equality clause.
Essentially, personal laws conferring inferior status on women are ‘anathema to equality’ and that international conventions like CEDAW, ratified by India, mandate the elimination of all forms of gender-based discrimination, added the Bench.
Lastly, the Bench found that the lower courts erred in concluding the sale was without legal necessity. Since it was established that Janvi was the daughter of Smt. Rehmani (though not of Akkal), the Bench concluded that the alienation was made for the bona fide and pressing needs of Smt. Rehmani herself, specifically for the marriage expenses of her granddaughter (Janvi’s daughter), which is a legally recognized necessity.
Briefly, the dispute concerns suit land which originally belonged to Akkal, who was of the Meo caste. The plaintiff/respondent, claiming to be the collateral relative of the issueless Akkal, instituted a suit for declaration and possession. Now, the plaintiff’s case was that according to the customary laws of the Meo community, Akkal’s widow, Smt. Rehmani, inherited only a life estate in the property.
It was alleged that Rehmani, in disregard of the plaintiff’s succession rights, executed a registered sale-deed in favour of defendants No. 2 and 3 for a purported consideration of Rs. 28,000, which the plaintiff claimed was fictitious. The plaintiff contended that this sale was void and inoperative against his rights as it was made without his consent and without any lawful necessity.
The defendants opposed the suit, denying that succession was governed by the alleged customs and questioning the plaintiff’s relationship with Akkal. They asserted that the sale was executed out of genuine legal necessity, which included Rehmani’s maintenance, construction of a house for her daughter, and the marriage of her granddaughter.
During the pendency of the suit, Rehmani passed away, and the plaintiff amended the plaint to include a claim for possession. The Sub-Judge 1st Class decreed the suit in favour of the plaintiff, and this decision was upheld by the Additional District Judge.
Appearances:
Senior Advocate Ashish Aggarwal and Advocate Vishan Pundir, for the Appellant
Senior Advocate M.L. Sarin and Advocate Heman Sarin, for the Respondent
