«Dissertation Zur Erlangung des akademischen Grades Doctor rerum agriculturarum (Dr. rer. agr) eingereicht an der Landwirtschaftlich-Gärtnerischen ...»
Inheritance law in Pakistan is based on Mohammedan law, and according to this law, most of the primary level heirs are sharers and have a fixed ratio in the property. However, the anomalies of other laws (See Section 5.7) support the power theory of Knight; for example, a will does not need to be registered during the life of the testator, and any other person can present the will after his death. A person, who is influential and has income resources other than the land in question, can easily shift the decision of the distribution of the property in his favor.
The actual process of the transfer of property is time-consuming and requires legal contracts plus the outlay of costs known as “transaction costs”. Various authors have explained that individuals always want to reduce their costs (Bromley 1991, Alchine and Demsetz 1972), and so most people avail themselves of the facility of oral transfer of the property to avoid the long and complex system of registration that is implemented in Pakistan.
Similarly, family compromises are also not legally documented, and in the case of partition, any document that is acceptable by an official of the revenue department is considered legally binding. These loopholes also create many problems in cases of the distribution of property (Alston et al.1999) and help the influential actor to obtain the favors of officials.
Power of attorney (See Section, 5.5) which also does not need to be registered in every case, further creates problems if a person who executes that attorney is socially and economically weak in his relationships. Similarly, cases of irregular sales are a common example of power asymmetry. Sale agreement can easily be exploited because of unawareness of the law, and so most people, who have a power of attorney over someone’s property or who own common property, try to sell the land by establishing themselves as being authorized to carry out the sale. These are all frequent examples directly observed in this study.
6.2.1 Land Property Rights in Pakistan
In Chapter 5, land property rights in Pakistan have been thoroughly explained. Some landowners possess official documentation for landownership, which is known as registry in Pakistan, and this documentation gives them legal rights. However, in the study regions, as per survey results, most of the land has been orally transferred from one generation to the next, and the documentation was very old. Land distribution and land transfer among heirs has not been properly managed, which eventually causes serious problems, land degradation being one of these.
For this chapter, in order to analyze the situation of land degradation, it was important to investigate land distribution rights for the heirs; this analysis was helpful in answering the main research questions. In this context, the questions to be answered were: 1) Is the land to be distributed among the heirs? 2) In case of distribution, is land to be transferred to the actual landowner or to someone else authorized for the use of the land? 3) What sort of conflicts are evolved in the regions because of the improper implementation of land distribution laws?
6.2.3 Inheritance Patterns in the Study Region
The hereditary system is based on Islamic inheritance law40. People of this region in Pakistan believe in the traditional and cultural family system, which is comprised of father, mother, and children (and in the case of marriage, families of sons), who all live in one house (unit of analysis). On average, a household consisted of ten members in this region, with a family structure as shown in Figure 6.1. In some cases, other family members such as mother, brothers, or unmarried sisters of the father were also living in the same house.
Islamic Inheritance Law is explained in Chapter 5.
Figure 6.1: Standard Family Unit with Five Children, in which one Son is Married Source: Own Presentation Generally, the father played a significant role with respect to the well-being of his family unit and was responsible for fulfilling all the needs of his house.
For this reason, he was considered the head of household and, in his life could own the entire property by himself.
During the survey conducted in the region, various inheritance patterns were observed. In one third of visited household, land was transferred only to the eldest son, because of family traditions, as they considered that, with the distribution of the land, the family would lose its power. Another pattern was found again in one third of the households, where land was transferred orally, and in practice, the land was handed over to the eldest son or some other senior member of the family to look after. In this distribution, all shareholders had knowledge of their shares, but they were not able to use their rights, as they had made some family compromises, as per the culture of the family. Some other patterns were also observed, where landowners were enjoying full rights.
According to the Stamp Act, 1899 (see Section 5.5), the some registered landowners particularly females, who were culturally bounded and were not able to perform legal different tasks, enpowered the attorneys as an agent to act on their behalf. Other inheritance patterns are explained in Figure 6.2 and 6.3. In Figure 6.2, all the living sharers among which the property is distributed are shown; the mother and the spouse of the deceased are also alive and have received their share of the property as per the rule, but they have distributed their share among their offspring. Hence, mathematically, the distribution of shares can be presented as below.
If the deceased has five children, e.g., three sons and two daughters, every sharer can receive the following fixed shares from his estate.
The widow and the mother of the deceased distributed their shares among their heirs. As per the law, the sharers in the widow’s property were the children of deceased, and as a mother, she could give her share to her children. Similarly, the deceased mother distributed her share among her legal heirs who are her children and children of the deceased (grandchildren can only receive their father’s share in the property of the grandparents providing that their father is died). An explanation of property distribution is given in Table 6.1.
Source: Own Presentation In this situation, for the distribution of one third of the portion of the property, no written will was available in most cases. For all such cases, the whole property, after the removal of funeral expenditures and debt due from the deceased, were to be distributed between shareholders as shown in Figure 6.2.
Figure 6.2: Share of Inheritance in Case of Redistribution of Widow’s and Mother’s Share Source: Own presentation In Figure 6.
3, another observed situation is presented, which was quite common in the study areas. In this situation, the eldest son had died, and his share was distributed to his orphans, but these orphan grandsons were not the sharers in the property of the mother of their grandfather. Hence, the share of grandchildren was reduced to 9/32, and as per the rule, this was distributed between the brothers and sisters at the ratio of 2:1. In this case, the granddaughter would receive 3/32, and the grandson’s share would be 6/32.
Figure 6.3: Share of Inheritance in Case of Redistribution of Widow and Mother’s Share and one Son is also Died Source: Own presentation Some of the landowners of the region reported that they owned smaller than average size plots after the distribution of estate among the heirs of a large family.
Culture of the joint family in the region promotes family compromises and arrangements. The main intention of these compromises is to avoid disputes in the family, but severe conflicts related to land distribution and land transfer were observed between the family members during the survey. These created problems not only in the relationships between family members, but also had effects on the fertility of the soil, as crop burning and water dispersal were common results of conflicts between different shareholders.
6.3 Results 6.3.1 Land Distribution among Heirs In most of the families, land was not distributed in a proper way, the land still being registered in the fathers or even grandfather’s name. These families had availed themselves of the facility, provided by law, that a ‘will’ could be executed at any time after the death of the testator. Initially, family members were made to comprise and, according to the family traditions, allowed one of the family members to take charge of the estate. Generally, this member was eldest living son, who established himself as being authorized to look after the property. In the Shaikhupura-Kamoki region, fifteen households were found in which their land had not been distributed at all. In Qadirabad Dam region, the number exceeded twenty, but in Nandipur region, this number was lower than that in the second region, and only fifteen households were found who had not distributed their land (Table 6.2).
Another common situation was that distribution had occurred according to the oral transfer of the property. Through this distribution, landowners were awarded some specific rights, mainly to cultivate their land and to look after it, but they were not allowed to sell their land, because it had not been legally transferred to them. In this case, documentation was either very old or some of the members had obtained temporary documentation from the local patwari for the partition. These types of distribution cases numbered thirty percent in the ShaikhupuraKamoki region, thirty eight percent in then Qadirabad Dam region, and again thirty percent in the Nandipur region (data shown in Table 6.2).
In these regions, only a few households were found who were enjoying full land rights, as land was not only distributed, but the landowners had full possession of their land. In these cases, the landowners had their complete documentation with a new cadastral document signed by the sub-registrar. These cases involved forty percent, twenty two percent, and forty percent for visited households in each region as presented in Table 6.2.
Table 6.3: Results of Land Distribution Structure on Land Degradation for all Study Regions
Mainly these regions were selected on the basis of the degree of land degradation; the Shaikhupura-Kamoki region was declared as a medium-level degraded area on the basis of soil fertility. Similarly, the Qadirabad Dam region was a highly degraded area, and the Nandipur region was a less degraded area. To determine whether the intergenerational land distribution and transfer of land among heirs was the reason for land degradation, a regression analysis was performed, which gave the following results expressed in Table 6.3.
These results showed that the variable of land degradation regressed on other two variables; one variable being ‘intergenerational land distribution’ and second one being ‘transfer of land among all heirs’. All the estimated co-efficients established that these variables are significant for causing degradation of land in all three regions, and so the hypothesis that ‘land distribution among heirs is also a reason for land degradation and causes bad effects on the land’ can be accepted. Negative values of estimated coefficients show the inverse relationship of the dependent and independent variables, which mean that more land will be degraded following further improper land distribution and a poor land transfer structure in the region.
Figure 6.4: Relation of Land distribution and Transfer of Land with Land Degradation in Shaikhupura-Kamoki Region Source: Own Presentation, field survey 2008 Figure 6.
4 depicts the relationship of land distribution among heirs and the transfer of land with respect to land degradation in the Shaikhupura-Kamoki region. The steeper line of the land distribution with a negative slope of value 55.90 shows that the land distribution in this region has a strong effect on the land degradation, whereas the more flattered line of the land transfer of value 2.06 means that this variable is significant but comparatively less effective.