By: Kamanthi Wickramasinghe

Date: November 2nd 2016

Source: Daily Mirror

The law relating to land rights and land contracts in Sri Lanka have been embedded in a complex web of statutes that existed since the year 1863. This was during the colonial rule, a period in which the  patriarchal system prevailed.   

As a consequence the law lacks provisions for women to hold land rights independently of their husbands or male relatives and the accepted modern legal principles such as men and women are all equal and women have equal rights to own property are not included in our law as given in the Universal Declaration of Human Rights.   

In 1948 Eleanor Roosevelt was the woman in the forefront who created the Universal Declaration of Human Rights. We had the world’s first woman Prime Minster but unfortunately even today in the 21st century we continue with the laws of the bygone era.   

Sri Lanka’s progress therefore does not match its constitutional commitments on gender equality, or its obligations under international law, to progress to electronic portals to protect identity of owners to secure land title irrespective of ethnicity.   

Sri Lanka is lagging far behind our regional competitors and   

1] generation after generation of women lack access to land rights and poverty becomes a network of disadvantages, each exacerbating the other.   

2], when it come to Foreign Direct Investment, to invest in land one has to find out whether the land belongs to a man or a woman or whether owner is a Kandyan Sinhalese , Tamil or Muslim.   

3] the statutes provide archaic identification owner rules and sufficient optional rules, and as a consequence land fraud has become extremely pervasive in the country   

 

Kirthimala Gunasekara,

Attorney-at-Law, engaged in research relating to land registration methods, documents relating to ownership deeds, title registration system and electronic paperless land contracts under the modern electronic system which has been recently introduced to Sri Lanka, spoke to Dailymirror  about property rights and the laws that govern land documents that support property rights. Exceprts from the interview- 

Q What disabilities are there for women who own land under Government Grants? 

The Land Development Ordinance of 1935, [ LDO] which is a British law is applicable to State lands,  gives preference to male inheritance when the owner dies intestate. The succession rights given in the Ordinance are as follows ---- : (1) sons, (2) daughters, (3) grandsons, etc   

 This bias in the statute has resulted in women being ousted by a male relative at the death of the original (male) owner, even if she was cultivating the land . Remarriage of a man would also leave his first wife with no claim to the land although the land was jointly cultivated by them.   

Q What remedies do you suggest for LDO land owners?

The poor land owners and their wives should have recourse to Legal Aid, a service which a modern state owes to its weak citizens to make its machinery work alike for rich. There is provision under the LDO for an owner to expressly nominate the wife or daughter to be the inheritor to overcome the gender disqualification.

 The reason I could attribute for not perfecting the form would be that the exercise of rights over land is affected by entrenched cultural attitudes and perceptions; that women cannot own land.   

 

Q Is this correct, gender inequality persist more in the  civil law [Kandyan law, Thesavalamai and the Muslim law], than under the LDO?

Yes this is true, in fact this had been recently pointed out by an official in the Land Ministry The Civil law  has a very complex organizational arrangement, exist with gender inequality. 

The discrimination to women is at varying levels and depends on whether the woman is a Sinhlase Kandyan, Tamil or Muslim. 

It is certainly more expeditious to bring an amendment to the LDO to repeal the gender inequality relating to inheritance as it has a uniform law for all ethnic groups.

Few examples ------ 

Thesavalamai Law

Married woman cannot dispose or deal with their immovable property without the written consent of the husband.   

Kandyan Law

Depending on whether a woman is married in diga (the wife leaves her ancestral home to live with the husband and his family) or binna (the husband comes to live with the wife and her family), accordingly the paternal inheritance to property is restricted.   

Muslim law 

When a Muslim household-head dies without leaving a last will, women receive less than what the male members inherit   

Advice ---If any woman requires to enter into a marriage where parties are governed by the personal laws It is best to acquire a good knowledge of the restrictions relating to property devolution and exercise of rights over property . 

The law ---   

    Kandyan Marriage and Divorce Act No. 44 of 1952 (Sri Lanka)and subsequent amendments   

    Matrimonial Rights and Inheritance (Jaffna) Ordinance No 58 of 1947 (Sri Lanka) and amendments   

    Marriage Registration Ordinance No 19 of 1907 (Sri Lanka) as amended in 1995 and 2001   

    Muslim Marriage and Divorce Act No 13 of 1951(Sri Lanka)   

    Matrimonial Rights and Inheritance Ordinance 1876 (Sri Lanka)   

    Maintenance Act No. 37 of 1999 (Sri Lanka)   

    Adoption of Children Ordinance No 24 of 1941 (Sri Lanka) and amendments   

    Civil Procedure Code 1889  

Q Can you tell us  why land fraud is alarmingly pervasive in the country? 

A deed which is a hard copy trusted to guarantee conclusive proof of ownership may not provide this guarantee today. Invalid deeds can be easily prepared with forged signatures to displace the true owner of a land. 

Sri Lanka does not have the basic owner identification portals with features such as electronic signatures and biometric solutions for owner identification to prevent the execution of invalid deeds, before being registered in land registries. 

The deeds are governed rules designed during the colonial era, all invalid deeds are permitted to be registered.   

Mrs Gunasekera stresses that absentee land ownership can cause much damage, while having the deeds safely locked up in a vault.   

1] Upul and Thilaka were married, they were the joint owners of their home. Thilaka left the country to be employed in Dubai. Upul forged Thilak’s signature and got her share of the house transferred in his name by a deed of gift. Thereafter he had mortgaged the house to a bank . Presently Thilaka has to redeem the mortgage with the money she earned from abroad, notwithstanding the fact that she has lost the ownership of her ½ share of the house.   

2]Mrs Joseph lived in her family home in Colombo 3, she was ill . The two daughters were in UK She was looked after by a nurse and a caretaker. After her demise the daughters were surprised to find that their home was gifted to a third party, Mrs. Joseph’s signature was forged.   

3] An entrepreneur purchased a land to build a factory. The real owner was out of the country The brother who had a Power-of-Attorney prevented the purchaser from entering the land as he had purchased the land from a fraudster who had forged the signature of the owner who was out of the country.   

 

Q Can parents gift divided portions of land to children?

Important question as parents who have a knowledge of subdivision will maintain the harmony amongst the siblings. The new law under Bim Saviya has repealed co-ownership and it is always preferable to write divided shares to children with properly approved subdivision plans. Even a husband and wife cannot jointly own land under the new law.   

Few examples on restriction on sub-division -- Municipal Council Colombo has declared certain areas referred to as Prime Residential areas,[ Colombo 3, 5 and 7 ] land in the area cannot be divided in to parcels less than 20 perches.   

Solutions provided for such lands ------------------   

1] To construct a condominium building with separate flats for the children who are co-owners or   

2] if they wish to have separate houses within an area not permitted to be subdivided they could Construct Terrace Houses. [ a new concept under the UDA Development plan Gazette 1535/6.2.2008]   

Division of Estates- Require the permission of The Tea, Rubber and Coconut Estates (Control of Fragmentation) Board - Act No: 20 of 2005   

Bim Saviya Law- Division of all lands require the permission of the Surveyor General - The law applies in certain areas of the country but will apply to all land parcels very soon.   

With such an array of laws, she says that purchasing land is like playing Russian Roulette; even a lawyer will find it difficult to determine ownership with certainty .   

This lamentable state relating to property rights has been raised by responsible international organisations including the World Bank. It was the World Bank that recently introduced the Australian law [ Torrens law] which is referred to as Bim Saviya. .The law has repealed the Common law, Co-ownership rights, the Prescription Ordinance and the Partition Act.   

The law ---   

Kandyan Marriage and Divorce Act No. 44 of 1952 (Sri Lanka)and subsequent amendments   

    Matrimonial Rights and Inheritance (Jaffna) Ordinance No 58 of 1947 (Sri Lanka) and amendments   

    Marriage Registration Ordinance No 19 of 1907 (Sri Lanka) as amended in 1995 and 2001   

    Muslim Marriage and Divorce Act No 13 of 1951(Sri Lanka)   

    Matrimonial Rights and Inheritance Ordinance 1876 (Sri Lanka)   

    Maintenance Act No. 37 of 1999 (Sri Lanka)   

    Adoption of Children Ordinance No 24 of 1941 (Sri Lanka) and amendments   

    Civil Procedure Code 1889  

Q Can you tell us  why land fraud is alarmingly pervasive in the country? 

A deed which is a hard copy trusted to guarantee conclusive proof of ownership may not provide this guarantee today. Invalid deeds can be easily prepared with forged signatures to displace the true owner of a land.  Sri Lanka does not have the basic owner identification portals with features such as electronic signatures and biometric solutions for owner identification to prevent the execution of invalid deeds, before being registered in land registries.  The deeds are governed rules designed during the colonial era, all invalid deeds are permitted to be registered.   

Mrs Gunasekera stresses that absentee land ownership can cause much damage, while having the deeds safely locked up in a vault.   

1] Upul and Thilaka were married, they were the joint owners of their home. Thilaka left the country to be employed in Dubai. Upul forged Thilak’s signature and got her share of the house transferred in his name by a deed of gift. Thereafter he had mortgaged the house to a bank . Presently Thilaka has to redeem the mortgage with the money she earned from abroad, notwithstanding the fact that she has lost the ownership of her ½ share of the house.   

2]Mrs Joseph lived in her family home in Colombo 3, she was ill . The two daughters were in UK She was looked after by a nurse and a caretaker. After her demise the daughters were surprised to find that their home was gifted to a third party, Mrs. Joseph’s signature was forged.   

3] An entrepreneur purchased a land to build a factory. The real owner was out of the country The brother who had a Power-of-Attorney prevented the purchaser from entering the land as he had purchased the land from a fraudster who had forged the signature of the owner who was out of the country.   

Q Can parents gift divided portions of land to children?

Important question as parents who have a knowledge of subdivision will maintain the harmony amongst the siblings. The new law under Bim Saviya has repealed co-ownership and it is always preferable to write divided shares to children with properly approved subdivision plans. Even a husband and wife cannot jointly own land under the new law.  Few examples on restriction on sub-division -- Municipal Council Colombo has declared certain areas referred to as Prime Residential areas,[ Colombo 3, 5 and 7 ] land in the area cannot be divided in to parcels less than 20 perches.  

 

Solutions provided for such lands ---------

1] To construct a condominium building with separate flats for the children who are co-owners or   

2] if they wish to have separate houses within an area not permitted to be subdivided they could Construct Terrace Houses. [ a new concept under the UDA Development plan Gazette 1535/6.2.2008]   

Division of Estates- Require the permission of The Tea, Rubber and Coconut Estates (Control of Fragmentation) Board - Act No: 20 of 2005   

Bim Saviya Law- Division of all lands require the permission of the Surveyor General - The law applies in certain areas of the country but will apply to all land parcels very soon.   

With such an array of laws, she says that purchasing land is like playing Russian Roulette; even a lawyer will find it difficult to determine ownership with certainty .   

This lamentable state relating to property rights has been raised by responsible international organisations including the World Bank. It was the World Bank that recently introduced the Australian law [ Torrens law] which is referred to as Bim Saviya. .The law has repealed the Common law, Co-ownership rights, the Prescription Ordinance and the Partition Act.   

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Photo source: World Bank Photo Collection via Flickr/Creative Commons (CC By-NC-ND 2.0). Photo: © Lakshman Nadaraja/World Bank