West Bengal, Government Circular, August 17/20, 1992: Procedures for distributing agricultural land: (1) If a female member of the beneficiary household is eligible for distribution of agricultural land it should be distributed in favour of the said female member. (2) In other cases, the land should be jointly distributed in favour of husband and wife of the beneficiary family, to the extent possible. (Jayoti Gupta, "Women Second in the Land Agenda," Economic and Political Weekly, May 4, 2002.)
West Bengal, Government Instruction, 1994, states in part: (2) It has been brought to our notice that in spite of issue of such a circular pattas are not being issued jointly in the name of husband and wife and instead it is still being issued in the name of husband only as was done in the past. This is highly objectionable. (3) It is once again impressed upon all that in all cases of settlement of vested land (ceiling surplus lands which have been taken over by the government for distribution) for agricultural purpose, patta should be issued jointly in the name of husband and wife as far as possible and the cases settled in the recent past after the receipt of board of revenue, West Bengal's instruction, be corrected accordingly. A report of compliance may be sent to this directorate by February 15, 1994 without fail. (Jayoti Gupta, "Women Second in the Land Agenda," Economic and Political Weekly, May 4, 2002.)
(1) Where land is family land the head of the family shall be registered as the proprietor with the addition of the words "as family representative". (2) Where the proprietor of land, or a lease or a charge is a family representative he shall have the sole and exclusive right of dealing with the land, lease or charge: Provided that nothing contained in this section shall preclude the family representative and family members from regulating the occupation of the land among themselves according to custom. (3) Nothing in this Act shall relieve any person registered as the family representative from any duty, customary or otherwise, to consult other members of the family. A person so registered shall be bound to exercise the powers vested in him by this Act on behalf of and for the collective benefit of the family, but any failure by such person to comply with such duty or obligation shall in no way concern or affect any person dealing with him in good faith for valuable consideration nor shall any such failure create any right to indemnity under this Act. (Registered Land Act, CH 580 1s121)
The West Bengal instructions only apply to government distributed agricultural land, which eliminates the issue of women getting rights to land on their husband’s ancestral property. In addition, the 1992 instruction provides two caveats: female members are beneficiaries “if they are eligible for distribution,” and joint titles are required “to the extent possible.” The 1994 instruction still had the caveat, “as far as possible.” However the tone of the instruction was much stronger. This change resulted from women’s groups getting involved.
One major problem with these instructions is that few people have access to them outside the government. This does not allow women to know and exercise their rights.
By contrast, the Malawi law speaks directly to family land, and states that the land should be registered in the name of the head of the family, but with the language: “as family representative” to indicate that the land is not his alone. However, registering land in the name of the head of household does give that head more power and control over the land than his unnamed spouse.
Family land does not necessarily mean ancestral land, and there do not appear to be separate rules for ancestral land. Some of the beneficiaries of the CBRLDP did jointly title their land, but only if both spouses were participating and few women participated.