Laws for people?

Published June 25, 2021
The writer is a senior research fellow at the Institute of Development and Economic Alternatives, and an associate professor of economics at Lums.
The writer is a senior research fellow at the Institute of Development and Economic Alternatives, and an associate professor of economics at Lums.

JAVED was never well off but he was able to purchase a six-marla (151.7 square metres) plot of land during his lifetime. Over time he married off his two daughters. He had four sons. One of the sons moved to another city. As his other sons grew older and got married, he allowed each of them to have one and a half marla of land to make their own homes: usually a couple of rooms, kitchen and bathroom.

Javed passed away two years ago. Even in Javed’s life the understanding was that each son would inherit 1.5 marlas of land. The daughters did not figure in in this allocation. The son who moved out eventually ‘sold’ his portion to one of the brothers. So, when Javed passed away there were three sons living in the six-marla space. Two brothers had control over 1.5 marlas each and one had three marlas. Towards the end of his life, Javed had been unhappy with the son who had possession of three marlas and had threatened to disown him but no formal proceedings were ever started.

It has been two years since Javed passed away. The three brothers living on the six marlas have started fighting with each other. Since the proper division of space was never done they share access routes and even electricity, water and gas connections. There is plenty to fight over in terms of who should be paying for what and who should give access from their space to whom. There are intra-family rivalries between the children of the brothers too — the usual dramas of friendship, rivalry, love and hate, of cousins living in close proximity.

The land continues to be in Javed’s name and has not been formally transferred to the children and has never been formally divided. With daily infighting the situation has deteriorated to the point where the quarrels of brothers and children have turned physical on a number of occasions. They have cut off electricity, gas and water connections of each other’s household, and have tried to restrict access of household members to their own houses. They have even given written complaints against each other in the local police station. Since the fighting has not gone beyond their threshold, the police has done nothing so far.

The gap between the formal legal system and what the people face is large.

If the brothers and their children could be good neighbours, that would be the best solution. But that option is out: too much has happened to expect improved ties now. And none of the other solutions are easy or cheap either. Each of the warring brothers has offered to sell his ‘share’ to any one brother so that one person can have the run of the entire six marlas. But none of the brothers has the financial strength to be able to buy out the others as each marla of land in the area costs around Rs6 lakhs to Rs7 lakhs or more.

The only other solution is for all the siblings, including the sisters, to first go to court to get recognition as official inheritors, then to figure out who gets a share and who does not and to get that legally recognised and then to get the law to divide the land according to the shares worked out. But this requires a level of cooperation, sustained over a period of several months, that the family is clearly not capable of. How can they work with each other when they are fighting each other? Will the sisters be willing to leave their shares formally and in front of the law as was the prior understanding? Will the brother who ‘sold’ his share to another brother live up to his part of the bargain?

Apart from the infighting, the delays and expected cost of the legal procedures is another impediment. The family is looking at a good year or two of legal processes. Who is going to bear the cost and the time needed to organise the effort? And how? The brothers are not doing too well in economic terms.

An even bigger impediment is that it is not clear if the ‘title’ that Javed held to that six-marla piece of land is even legal and duly registered. This requires another level of preliminary work. The land is in an area of the city where land titles have lots of problems. Though the family has possession of the land, it is not clear if they have all the paperwork for a land title in place. But without this paperwork how can they even approach the law for getting the land recognised in their names? And if that cannot be done, how can they apply for division of this land? They cannot. Talk about a difficult situation.

The fear of most of the siblings is that violence or the threat of violence will eventually force two of the brothers to leave the land to the third brother. The stronger brother, with control over three marlas, senses that as well. He has been increasing the pressure on the other two brothers and their families. There has been some violence against the sons and there have been threats against the daughters as well. The fear of escalation is quite real.

If there were alternative dispute resolution mechanisms in place, they could possibly help. But none are available. The weaker parties have tried to involve elders of the family and of the neighbourhood to try and reach some sort of agreement, but the stronger brother has been openly defying the advice of these elders: it is in his ‘interest’ not to have a fair solution to the issue.

The gap between the formal legal system and what the people face is large. This is just one instance, there are too many that illustrate the point. In this case the formal system really seems too ill-equipped to address the issues at hand — too distant, too slow, too costly and too bureaucratic. We do not have any recognised ADR mechanisms in place and the counsel of elders in urban living can be ignored. How do we make the law and the legal system more responsive to the needs of the people? Laws are supposed to be for the people and not the other way round.

The writer is a senior research fellow at the Institute of Development and Economic Alternatives, and an associate professor of economics at Lums.

Published in Dawn, June 25th, 2021

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