Customary Restrictions Can't Bar Widow From Alienating Non-Ancestral Property, Gender-Based Customs Must Yield To Equality: P&H High Court

The Punjab and Haryana High Court has said that a widow is competent to alienate non-ancestral property inherited from her husband without the consent of collaterals, as any customary restriction to the contrary is constitutionally impermissible.Justice Virinder Aggarwal said, “Consequently, 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."The dispute concerned agricultural land measuring 42 Kanals 19 Marlas, originally owned by one Akkal, a member of the Meo community. Akkal died issueless and was survived by his widow, Smt. Rehmani. The plaintiff, claiming to be Akkal's nearest collateral, instituted a suit for declaration and possession, asserting that under Meo customary law, a widow acquires only a life estate, and that succession would revert to collaterals upon her death.During her lifetime, Rehmani executed a registered sale deed dated 04.01.1982 in favour of the defendants. The plaintiff challenged the sale as void, alleging lack of legal necessity, absence of consideration, and violation of customary law governing alienation by a widow.Both the Trial Court and the First Appellate Court decreed the suit, holding that the widow lacked authority to alienate the land without the consent of collaterals.The Court noted that the nature of the property had already been conclusively determined as non-ancestral in earlier litigation between the parties, and that this finding had attained finality.Relying extensively on the Supreme Court's decision in Jai Kaur v. Sher Singh (AIR 1960 SC 1118), the Court reiterated that entries in the Wajib-ul-Arz ordinarily relate only to ancestral property, unless there is a clear and specific indication to the contrary. The Court observed that historical compilations of customary law were framed in a socio-economic context where ancestral property predominated, and self-acquired property received little attention.The Court further held that earlier decisions such as Smt. Hussain Bai v. Kalu (1969 PLR 819), which applied customary restrictions even to non-ancestral property, failed to consider binding Supreme Court precedent and therefore could not be treated as laying down correct law. Placing strong reliance on constitutional jurisprudence, the Court emphasised that customs restricting the proprietary rights of women solely on the basis of gender are incompatible with Articles 14 and 15 of the Constitution."The legal position stands crystallised beyond ambiguity 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. 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," said the Court.The bench found that the Courts below failed to appreciate the material evidence in its correct legal perspective. Though Janvi was not proved to be the biological daughter of Akkal, the record unmistakably establishes that she was indeed the daughter of Rehmani and the impugned alienation was, thus, effected not for purposes relatable to the estate of the deceased husband but solely for the bona fide and pressing needs of Rehmani herself, particularly for meeting the marriage expenses of her granddaughter, the daughter of Janvi a fact duly proved on record, it added. Once the property is held to be non-ancestral, and the sale is shown to be for a legally recognized necessity of the owner, the transaction cannot be declared void merely for want of the consent of the collateral, it said.Consequently, the judge concluded that the finding recorded by the Courts below that the impugned sale was without legal necessity is also found to be legally untenable and unsupported by the evidentiary matrix. Resultantly, the appeal filed by the appellants deserves to be, and is hereby, allowed. Mr. Ashish Aggarwal, Senior Advocate with Mr. Vishan Pundir, Advocate for the appellants.Mr. M.L. Sarin, Senior Advocate with Ms. Heman Sarin, Advocate for respondents No.1 and 2.Title: Mohd. Ashraf and Another v. Sadiq (Since Deceased) through his LRs and OthersClick here to read order

Customary Restrictions Can't Bar Widow From Alienating Non-Ancestral Property, Gender-Based Customs Must Yield To Equality: P&H High Court

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