Property law
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Unit
I Introduction
of the Law of Property
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The substantive civil law is divisile
into three
main parts, namely, the law of property, the law of obligations and the
law of statutes. In this chapter, we are concerned only about the first
part, ie, the part related to the law of property or proprietary rights in rem.
The term is applied to a number of different concept which are all legal
rights, proprietary rights, proprietary rights in rem and corporeal property.
Traditionally, life and associated
rights over it and other also includes the property, like in Roman law, slaves
were regarded as the property to the owner.equally wife for a husband and
family for the father were property. Historical jurisprudence also allowed that
son is property for father. But it does not work and there is great subliming
in its entirety.
In a narrow sense, it does include the
corporal or tangible object, like house, land, chattle, buildings etc. That does
not includes the rights of the individual
which allowed reaping the benefit like taking the wood from jungle,
collect the stones and water from the river side etc, and fulfilling the
proprietary interest like right to walk or claim as the means of earning like
fishing rights. But now the jurisprudence regards the property in both;
corporal and incorporal property like patent, copy rights, trade name as well.
Some times intellectual property like art, performance, songs, a dance, and
musical show is property.
According to Oxford Dictionary of law says, anything that can be owned. Salmond described property in a
different four aspects of conception of the property;
All
legal rights – it includes all rights, like life,
liberty and family as well
Properitary
rights – it includes only economic values like, estate,
land, chattle, shares and the debts but not the reputation,liberty and personal
rights
Properitary
rights in rem – it includes all the property that can
be claimed against all but opposite obligation is not property like benefit of
contract. A freehold or leasehold estate in land, or a patent or copyright is
property
Corporal
rights – It includes the ownership over the object ie.
Right of ownership in a material object or that object itself.
Property means the highest right a man
can have to anything being that right which one has to lands or tenementsm,
goods or chattels which does not depend on another’s courtesy: it includes
possession and ownership, estates and interests in corporeal things, capable of
transfer or tansmission, such as debts; and signifies a beneficial right to or
a things considered as having a money value, especially with reference to
transfer or succession, and of their capacity of being injured.
While discussing about the property or
law of property we can not indifferencly treat the possession and ownership.
Without these two expression the property cannot gain the true image. So, we
also need to disscuss and know about possession and ownership which are
discussed below:
Concept of Possession
Generally, it signifies not only legal
phenomenon, but in social phenomenon it is regarded as utilize, consumption,
use and exploited,denial to others, denial of trespass as well. Thus, it
invites the preliminary legal conception
in primitive society.even in modern democratic age, possession is the
gate to enter inot legal world thus it is recognized in various ways.
Possession unless establish the others titles, it constututes the sources of
ownership it is a relation between man and things.
In Roman law it implies the physical
control over the things as well as exclusive control over things that is
legal possession. And a long possession
awards the ownership.
Henery maine described it as the
physical and mental condition that exclude to others from the enjoyment. It
indicates the elements of possession, it requires the physical and mental
condition that constitutes as Corpus and Animus. Corpus
implies the physical relation or control and relation of possession holder
to others. Animus is willingness and capacity of possession over the
object. It is mental condition. It is denial the interference by others. So,
by animus
possidendi, holder excludes to other.
Concept of Ownership
Ownership is the right over the
object having the nature of complete and
prevails over all. Hibbert defined it as a bundle of rights; right to use things,
right to exclude from others, right to dispose and right to destroy.
The Roman conception of Dominium hint the ownership means the absolute right over things.
Ownership validates the possession, control, transfoem and recognizes the
interest of owner as well. Ownership, for this age implies the triple relation
between the Property, owner and state.
That is why ownership is a grant of right by the state or protected by the
state.
Salmond defined
it as the realtion between a people and right that is vested in him. It places
the possession, use and enjoy, transforms, unlimited duration as well. Austin
defined it as the right
indefinite in point of user with the certainty
of user, unrestricted disposition and unlimited duration as well.
Meaning of Property
The term ‘Property’ is derived
from the Latin term Propertietat and the French equivalent Proprious which means a
thing owned. Property has always been seen as an instrument to full
human life and justified as an instrument to full a human life. Men in all so,
they make them their own property.
Property therefore, may be defined as
objects over which the right of ownership extends and over which one has
exclusive right of control and disposal. Bentham defines property as material
object subject to the immediate power of a person.
In widest sense the term property
includes all legal rights of a person. It means the sum total of a man’s
fortune including not only the objects of which he or she is owner, but also
the value of any claims, which he may have against other persons after deducing
the amount of any claims, which might be made good against him.
Property is not a thing, but the rights
which extends over a thing. The essence of property is in the relations among
men arising out of the relations to things. Thus, property is a legal concept
is the sum total of a bundle of rights which includes; right of possession,
right to enjoy, right to alienate, right to retain and so on.
Definition of Property
While we discuss about the definition
regarding property it is very hard to give definite definition of property.
There are number of definition regarding property given by different jurist.
Among them some jurist have defined property which are as below;
According to Salmond,
“All legal rights,
proprietary rights, proprietary right in rem, corporeal is called property”
According to Noyes,
“Property is protected rights or bundle
of rights……. Which is connoted by legal concepts of occuping, possessing or
using.”
According to Bentham,
“Property and law born together and dies
togethe.”
According to 14th
Amendment of US constitution,
“Property is used in juxta position of
liberty and the course has interpreted property to be essential conditions of
liberty.”
[close relation between property and
liberty, two way relationship; if no property, no liberty and vise-versa.
According to Article 17
(1), Universal Decleration of Human Right UDHR,
“Everyone has the right to own property
alone as well as in association with others.”
In
nut shell, property is the rights which have secured the all rights given by
the law of the land to possess, enjoy, acquire, dispose, transfer and distroy.
Property, law and liberty are closely related to each other. They grow up
together and ends together, it means one’s existence is related to another.
Property secure the identity and personality of the people.
Kinds of Property
1. Movable
property
2. Immovable
property
3. Corporal property
4. Incorporal
property
a) Jura
in re- aliena
Lease, claims,
servitudes, Securities
b) Jura
in re- propria
Patent, Trade mark,
Design, Geographical indication, Integrated circuit
1.
Movable
property
Those property
which can be easily carried and whose place can be easily changd is movable
property. Movable property is not associated with land or permanently fastened
to land or building and things served from land.
Neplease
Interpretation Act,2010 defines movable and immovable property.
For example, motor,
cars, gadgets etc
2.
Immovable
property
Those property
which are associated with land and permanently fastened to land or building,
and things served from land is immovable property.
The sort of
property cannot be carried nor can we change its place.
Nepalese Interpretation
Act, 2010 defines immovable property to the land, benefit that arises from land
and fixed with the land.
3.
Corporal
property ( merchandised/ Visible/ Material)
Corporal
property are material object and things which we can see, touch. These are
called tangible property as they have tangible existence in material world.
It relates to
material things for example, land, buildings and all things that are
permanently attached to land. It includes all movable and immovable property.
4.
Incorporeal
property
Immaterial and
intangible properties are called incorporeal property. Incorporeal properties
are intangible but are recognized interest of individual in a monetary value.
It does not have
tangible existence we cannot see, touch, but are valued.
It can be classified
as;
a) Jura
in re-aliena
b) Jura
in re-propria
a.
Jura
in re-aliena
It is a kind of
property recognized by the relation of two or more persons relating to area and
its control and possession thereafter belonging to somebody else. It restricts
the real owner to use, exploit the benefit and control of property.
Lease:-
It is one of
immovable property and is a transfer of a right to enjoy property for a certain
time owned by some other persons for valid consideration.
Claims:-
Kinds of shares, e.g.
Bonus
Servitudes:-
It is that form
of encumbrance which consists in a right to the limited use of piece of land
over which it exists.
For example, a right of
way on the land of another
Securities:-
Mortgages
It refers to
transfer of interest in specific immovable property for the purpose of securing
the payment of money. To offer something as security for loan or lending
Lien
It is a right
which is in its own nature a security for to retain possession of goods sold
until the payment of price is made.
b.
Jura
in re-propria
Right over some
human creation or labour is recognized as property to individual that are right
in re-propria. These are intellectual property and industrial property.
It is not right over
goods or object, but right over the conception, creation, innovation, and
formula, technique that can be exploited or commercially valued.
Patent:-
It is very
important kind of property. It is highly sophisticated and protected by
international conventions. It refers to formula, process, technique and
innovation steps. Example, patent for making coke
Trade
mark:-
It refers to
sign, symbol, mark and letter which are related to product or right of legal
person entity. It should be novel mark and should not tally with other
products. Flags, logo, cannot be used as trade mark.
Design:-
It’s an incorporeal
property which encumbrance right over industrial design. There exists
independent industrial design for each company.
Integrated
circuit:-
Usually used in
technical equipment like television, radio
Geographical
indication:-
Product of a
particular place which is very unique and famous, example, Rum of Italy, Suriss
cheese, Darjeeling tea
Theories
of Property
Theoretical
justification of property are numerous as various scholars has given their own
ideas and views like, Roscou Pound gave six theories of property, some of them
are below:-
1. Natural
theory of property
2. Metaphysical
theory of property
3. Psychological
theory of property
4. Sociological
theory of property
5. Positivist
theory of property
6. Socialist
or communist theory of property
1.
Natural
theory of property
Natural thoery
believes or presupposes that earlier their were no rules or laws that goverened
property nor distinction of property among men. One who came first and
possessed objects or things first those object become their property. As there
was the provision of collective or individual property.
The person could
be the owner of the property until he or she would use it.
But later
population and number of people increased and the interest of people grew the
purpose and meaning of property developed. Property was not just used for
timebeing but people started to preserve their things or things that they own
them.
Every human
beings is depended upon nature. Human are the product of nature. We can’t go beyond nature.
This theory is
based itself on the natural principle of occupation of res-nullius. Nature is
self evident, no one can change it. Reason is the basis of natural theory. This
theory talks about prior method without emperical test and experitmentation we
have to accept it as it is. This does not need any test.
Res-nullius
means anything which was nobody’s property, which are not owned by anybody.
Property of nobody possessed property but later human came to control over
things.
Natural theory
thinks everthing is the property of human beings. There are some exponent who
discuss about the property they are, Black stone, Plato.
Black stone
Absolut ownership by over all material things. A gift
of the creator to men. i.e. dominian over all the earth and everything living
thing over it. Human being have absoute domain over earth and all living
things. Human beings are the master of the earth. Natural theory is based on
nature.
Plato
According
to him there are two types of goods, limited goods/ perishable and unlimited
goods/ unperishable. For example, human power, mines and all resources are
limited wealth or goods which are perishable goods and aesthetic experience or
experience which can not be expressed in words beauty wisdom are ulimited or
unperishable goods.
Maine is against natural theory.
2.
Metaphysical
theory of property
Inviolability of
the human will. Gained great currency through the works of Imile kant in terms
of this theory. Laws are deeded for the regulation of human conduct as well as
change. Absence of law means vehicle without driver.
Sanctity of
person i.e. inviolability or purity of person. It is one of the most important
study. This theory developed from inviolability or of person i.e. to sanctity
of property. Sanctity of property means law protects the property of a person.
Law empowers persons to earn property. Individual’s property is extended to
property.
Imil Kant and Locke
are the chief exponent of this theory. Imil Kant developed this theory. There
is great value of property. A person cannot be detached from the property.
Property plays an inviolable or pure role in a person’s life.
Locke
assumes that;
1. Individual
is capable of approprieting more than he or she can use i.e. a person can
create, extract and exploit more property through rational power, physical and
mental energy.
2. An
individual is motivated to do so.
3. Nothing
is wrong with other that waste when a person does labour nothing is wrong.
Maximum gain is fruit full but maximum or least waste is not fruit full.
Justification by Lock
for appropriating property:-
1. The
production of ideas requires person’s labour.
2. These
ideas are appropriate.
3. The
ideas can help to make property without breaching non-waste condition.
4. Without
labour and ideas one cant’s produce or gain property.
5. Ideas
should be materialized.
Hegel
spirit
is the universal substance.
Ultimate
goal for human beings is idea
This theory claims that
control over property improves one’s personality and makes one free. It is in
juxta position with liberty. Property is the right of an individual so its
safety is necessary. Property satisfies one’s interests. It is important to full
human’s life.
3.
Psychological
theory of property
Human beings are
separated from other animals as they have rational thought i.e. rational power.
Every human beings needs basic things i.e. food shelter and cloth.
Acquisitive instinct
i.e. to acquire things is the principle of psychological theory. Human possess
an instinct to acquire things and make them their property. Human have instinct
to acquire things to full their lives like shelter, clothing, fooding etc.
This theory deals with
human’s needs and wants and concern about man’s instinct to full human’s life.
Safe, security
is another element that full human life. Physical safety and security is an
essential part of human life both property’s safety as well as physical.
Every individual
wants privacy, opinions of him or her to be respected.
Affection, love is
another need of human. He or she wants to be loved by everyone.
Self-esteem (position
to be recognized as person self-actualization.)
1. Psychological
theory is based on the acquisitive instinct in human personality.
2. The
nation of property is instinctive in men as it is in animal e.g. no one
including animal likes to get disturbed while eating.
3. From
the earlier stage in the social development the acquisitive instinct has this
view.
Property now has
become a social asset. If society does not recognize property then there exists
no value in that property. So, property is important aspect of society.
It played a
prominent part in the development of social assets. This theory is active in
recognizing the value of property.
Property is the
means of such recognition. E.g. gold, diamond recognized as property by
society.
Man was
exercising and asserting right to private property.
This
theory says that all humans have desires to earn, possess and own property.
It’s the psychology of all human being possessing property is always backed by
psychology of human being.
4.
Sociological
theory of property
1. Sociology
means a study of social statistic or order science of society and social
dynamisms progress.
2. When
the society developed the concept of private property developed but earlier
there was only collective farming.
3. This
theory stress the social needs which property should sub- server
4. Assets
have traditionally being looked upon as subject of unlimited private ownership.
5. Transport,
power and communication may be taken out of private hand into the public
domain.
6. Such
theory places important limitation on concept of ownership.
This theory is
based on progress of the society through equal distribution of wealth among the
members of the society. This theory is based on the concept of social security
and protection and promotion of social resources.
General progress
socio-economic, political, cultural etc. is the need of society which is
reflected by this theory. This theory sub-serves the basic needs as well as al
social needs. This theory says that without exercising our legal rights
(property) we cannot fulfill the social needs.
For example
Land
does not serve every needs of human being but exploitation of legal rights
helps to fulfill our needs.
5.
Positivist
theory of property
Positivist
school or positivist played an important role in making law pure and separating
it form the power of nature or nature being supreme.
Kelsen one of the
supporters of this theory said, law must be separated from sociology religion,
moral or any other social science and said law must deal only with law itself.
Likewise, Jeremy
Bentham and John Austin believed on command of the sovereign backed by
sanction
HLA Hart
modern jurist and inclusive positivist said law is made by people, there is no
necessary connection between law and morality, law is closed logical system
(everybody has to be abided by law made by legislator or sovereign that is in
written form)
Law being open
means philosophical. Law made by the sovereign related to property is the
concept of this theory. Example, right to property that is enlisted in Nepalese
constitution. Right to property being fundamental right, everyone has authority
to exercise property.
Ø The
positivist theory emphasizes state power and enforcement of legal order.
Ø The
law needs to guarantee protection of property.
Ø If
a person has custody or own of property and intention to retain such property,
he must not be disposed of that custody of property except by state power.
6.
Socialist
and communist theory of property
The term socialism was invented by
Pierre Le Rows in 1838. Louis Blank french socialist advocated Doctrine of
Equality (laisses fair economy)
Socialism is not revolutionary in
character; change of approach to the existing direction of wealth and
opportunity. There is saying that few people cannot possess maximum opportunity
and wealth. This theory does not believe in revolution but believe on
evolution.
Communist theory was propounded by Karl
Marx who spoke of universal matters without matter or property one cannot live.
There has to be equitable distribution of income and wealth, classless society.
Communism
relies upon revolution
Concept of collective property later
after civilization went to individual holding of property and the concept of
private property arouse. Property went in the hands of few people i.e. Bourgeoisie.
Then, the mass people who were without property revolted against Bourgeoisie which led to preliterate
dictatorship where the main motto was to make
classless society.
Eminent Domain and
Police power
All
the property should be in the hand of state.
According
to this theory right of succession should be to the state. The state should be
the sole proprietor.
Karl
Marx used three fold Hegelian Process:-
Thesis
– private property own by a man.
Anti-
thesis – private property own by the labor of another.
Synthesis –
expropriation of wealth of capitalists by working classes. Proletariat
capturing the property of capitalist.
As
per this theory an individual cannot own excessive property.
Materialism and idealism are obviously
antagonistic. Communist manifesto of Karl Marx reached Russia in 1880 and went
to west Europe. Manifesto emphasizes the position of preliterate.
Another shift in communist doctrine came
from china and was based on pure Lennisim. It was in 1949 when the Goumindang,
led by Chiang – kai – sheh was driven into exile in Jaiwah and Mao-Tes-Tung
came.
There
are four perspective that currently dominate theoretical wading about
intellectual property.
1. Utilitarianism
theory of property
2. Labour
theory of property
3. Personality
theory of property
4. Social
planning theory of property
1.
Utilitarianism
theory of property
Locke, Hobbes, Bentham
are developers of this theory of property. Hobbes said once there were men
living solitarily who seek for security and happiness. Locke says maximum
happiness of maximum people. This theory says
Ø Pain
and fear makes an individual weak
Ø Every
man should seek the happiness of other in general
Ø Greatest
happiness’s of greatest number.
So, law also should seek greatest
happiness of greatest number. So, law of property should seek for wealth
maximization for greatest happiness.
2.
Labour
theory of property
Without using labour one cannot own
property. Likewise, for intellectual property one has to use his or her mind
and creation.
3.
Personality
theory of property
This theory is related to creativity of
human being rather than physical personality. This theory relegates with
Hegel’s concept of Idea. Idea or creativity enhances one’s personality.
Physical
personality is inferior to mental spiritual capacity. Through this, a person
can run society and nation.
For
example, concept of TRIPS in WTO was the idea of 12 lawyers.
Kant and Hegel’s
writings are related to personality frame. This approach argues that
intellectual property right are justified in that these rights protect
artifacts which authorize and artistic have expressed their personality or
personhood or will.
As such it may also be argued that
intellectual property right is important in that they creates social and economic
conditions conducive to individual creativity and expression. Because
intellectual property in such a framework is seen as an expression of
individual personhood including one own personal images, mannerism, highly
expressive intellectual activities and more diversion of strong protection.
Social planning theory
of property
Property can be used to serve social
interest when the property fulfills societal purpose then it is associated with
social interest. Society first should be enriched first rather than individual
interest.
This philosophy is the best term social
planning theory, is in par derived from wide group of philosophical and legal
theorists including Thomas Jeffersion, Karl Marx.
Property
earned should be utilized………… and legal realists and modern exponent of
republicanism (autonomy of people) for the welfare of the society as state has
eminent domain.
Concept of Ownership
Ownership is the right over the object
having the nature of complete and prevails over all. Hibbert defined it as a
bundle of rights, right to use things, right to exclude from others, right to
dispose and right to destroy. The Roman conception of Dominium hint the
ownership means the absolute right over things. Ownership validates the
possession, control, transform and recognizes the interest of owner as well.
Land is not capable of destroy thus here lies the interests.
Austin defined it as the right indefinite
in point of user with the certainty of user, unrestricted disposition and
unlimited duration.
Salmond
defined it as the relation between a people and right that is vested in him. It
places the possession, use and enjoy, transform, unlimited duration as well.
Ownership, for this age implies the triple relation between the property, owner
and state. That is why ownership is a grant of right by state or protected by
the state.
Meaning of Ownership
Ownership is derived from the Roman law
conception of Dominium which means the absolute right over things. They use to
talk about relation of person to things. There is close relationship between
individual and the thing owned by the person.
In English law, derived the, concept of
ownership, from Roman law which means ‘Own’. Ownership includes right to enjoy
over things. Unlimited power to use, dispose, enjoy, multiply and alienate is
ownership.
This includes indeterminate power
ownership has the characteristics of being indeterminate in duration. Owner
normally has the right to use enjoy the things owned.
Definition of Ownership
As we know there are different jurist
and they have their own definition regarding ownership. So, it is obvious that
the exact definition cannot be given or found regarding ownership. Although
some definition are cited below
According
to Salmond,
“Ownership
denotes the relation between a person and an object forming the subject matter
of his ownership.”
According
to Duguit,
“Ownership
is a relation between a person and a thing. On account of this relation the
person has the power of disposal, use and enjoyment of the thing.”
According
to Holland,
“Ownership
is plenary control over an object which includes;
Possession,
enjoyment and excluding others”
From the above, definition it tries to
indicate that ownership is the right over the things which is imposed to the
person. It is the legal reorganization of the property and relation with the
person. That person who has all right to use, acquire, enjoy, transfer, dispose
and destroy is called ownership.
Subject matter of
ownership
Material
objects
Both
movable and immovable objects not corporeal property for example, land chattles
etc.
Right
Right
includes Jura in re – aliena
i.e.
securities, servitudes and trusts
Right
includes Jura in re – propria
i.e.
patent, trademark, design, formula etc.
The prime subject matter of ownership
consists of material objects such as land and chattels. But according to
Salmond, ownership is by no means limited to things of this category. A man’s
wealth may consist not only of his land and goods, but of such things as
interests in the land of others, debts due him, shares in companies, patents,
copyrights and his interests in trust funds.
Kinds of ownership
1. Corporal
and incorporeal ownership
2. Sole
and co-ownership
3. Legal
and equitable ownership
4. Vested
and contingent ownership
5. Absolute
and limited ownership
6. Trust
and Beneficial ownership
1.
Corporeal
and incorporeal ownership
Ownership over the visible and tangible
object is called corporal ownership while ownership over the proprietary value like copy right, patent, design, trade
mark and good will are called incorporeal ownership.
2.
Sole
and co-ownership
Ownership vested in a single person is
sole ownership and ownership in common and joint ownership is co-ownership. In
sole ownership a person is the de-jure owner where he or she can use or enjoy
or exercise property without restriction or boundary. In co-ownership or joint ownership
over property one individual cannot exercise property regarding use, enjoyment
in this type of ownership.
3.
Legal
and equitable ownership
Legal ownership is that which has its
origin in the rules of common law, while equitable ownership is that which
proceeds from rules of equity divergent from the common law. Actual owner is
legal owner but beneficiary may be different or some time legal ownership is
conditional like in the property of children hold by the guardian. Thus, ownership
which is recognized by law is legal ownership, whereas that ownership which is
recognized by equity is called equitable ownership.
4.
Vested
and contingent ownership
All perfect ownership is vested in
nature. And sometime to attain the perfect ownership some condition must be
fulfilled are called contingent. Like ownership will be after the death of A,
B, C or D has a nature of contingent.
5.
Absolute
and limited ownership
Availability of all rights under the
ownership is called the absolute ownership like use, possession, transform,
earn, etc. But in some case ownership do not allow to enjoy in a full context
like without the consent of family member a joint family property cannot be
sell.
6.
Trust
and beneficial ownership
Another instance of duplicate ownership
is trust ownership which allows for the separation of the powers of management
and the right of enjoyment. Trust property is that which is owned by two
persons at the same time, the relation between the two owners being such that
one of them is under an obligation to use his ownership for the benefit of
another. There former is called the trustee, and his ownership is trust
ownership; the latter is called the beneficiary, and his ownership is
beneficial ownership.
For
example, if A says one ropani of land is mine and wishes to hand over to trust
or other where other receiving it is a beneficiary
|
Unit
II Modes of
Acquisition and Transfer of Property
|
By
taking
By
delivery
In
by
taking there lies,
Ø Coercion,
lack of consent
Ø Forcefully
Ø Illegal
method of acquisition of property
For
example, capturing other property during Maoist insurgency
In
by
delivery there lies,
Ø Consent
is necessary
Ø Actual
delivery is real possession
Ø Constructive
delivery is not real
According
to Salmond,
for the attainment of ownership there are two ways for acquisition
Ø By
legal operation or operation of law
Ø By
existence of act or event / By reason of act or reason of event
Ø By legal operation or By operation
of law
When any owner registers any property in
his name in accordance with presented law.
For
example, A has to register his land to acquire ownership and enjoy his
property. Without provision of law, no one can own property.
Ø By existence of act or event/ By
reason of act or reason of event
The act of person helps to own property.
Every individual by reason of act may own the thing.
By reason of act means making when a
person makes a thing, it’s under the ownership of that person.
In
other word, it means creativity. Human use, intellect idea, intellectual
creativity and power to make many things.
For
example, creation of pearl, computer design etc.
A
man can make ownership by using both physical and mental capacity.
By
reason of event ownership can be acquired. For example, land which has been
annexed by flood.
There
are four modes of acquisition of
property which are of primary importance;
Ø Possession
Ø Prescription
Ø Agreement
Ø Inheritance
Ø Possession
Possession is the prima facie of
ownership which includes corpus possession and animus possession i.e. physical
and mental control and attitude over things. By possessing a material object,
the owner may acquire a legal title to it in two ways, by occupation or by
possessory ownership. When the possession of any property is taken by the claimant
which is not the property of any one, in Roman language it is called res
nullius.
The
possessory ownership is the condition when the things of which possession is
taken may be already the property of someone else.
Ø Prescription
It is the kind of mode of acquiring
property. It refers to lapse of time, it includes, positive and acquisitive
prescription, negative or extinctive prescription. It means a property when
acquired by lapse of time. It also refers to possessory remedies.
Ø Agreement
Property can be owned by means of
agreement. This works in every level. For example, A may handover his property
to B by agreement. In agreement there is assignment and grant.
Ø Inheritance
It means death of owner raises the right
to attain property. As for example, son and daughters are eligible for acquiring
property of their parents. Communist law says that one cannot inheritance
property to their children state has to do it.
While discussing about the modes of acquisition
of property there goes the side by side the transfer of property. Inheritance,
agreement, by delivery, by will and reward / accession through which property
are transfer.
The widow women and raped women also can
acquire the property. As in muluki ain, chapter on partition
share no. 5 says that widow women are eligible to get the
property of deceased father or husband. In chapter 10 it says the raped
women eligible to get half of the property and given to the raped
women.
Through
registration we can acquire the property, Land Act 1964, (amendment) section
2 says, A person having registration a land in his or her name paying
the land tax to the government is called a landlord.
According
to land
ceiling person of terai can acquire 10
begas of land, person of hill can acquire 70
ropanies of land and person of Kathmandu valley can acquire 25
ropanies of land.
Transfer of property
Transfer of
intellectual property in Nepal
Patent,
Design and Trademark
According to sec 21(d) amended
version Patent Design and Trademark Act
2063
If
the permission to use, design, and trademark is given to any other person, the
ownership shall be transferred in the name of that user. Licensing of trademark
is available in the existing law. Right to license and use should be granted
with adequate provision of quality control.
Transfer of copyright
and or license of copyright in Nepal
Ø One
needs to obtain a license from the owner of the copyright to use any part of
the work.
Ø License
in copyright is basically granted of right by the owner of copyright to exercise
certain rights with respect of copyright work registered copy.
Ø Any
person who intends to get any work sound recording, performance, broadcasting
register voluntarily, that makes get the same registered. (section 5 (2) of Copyright Act)
Ø The
copyright owner may transfer all or any of the economic right conferred on him
to any one by making a written agreement or authorized anyone to use the same
with or without specifying any terms. (Section 24 (1) of Copy right Act )
Ø The
person entities to moral rights may for the protection of moral right shall both
remove from the work.
Constitution provision on Right to property in Nepal
Right to property indicates the right to
possess and ownership over the property. Every person have right to acquire
possess, use, own, enjoy, dispose and destroy the property. The law should give
legal protection to the property which the person possesses it. Right over
property and the relation between property and person is related to each other.
Property secures the personality of the person.
In our Nepal the acquiring of the
property through legal validity is categories like, through partition, inheritance,
succession, gift, will, by purchasing but getting the registration.
When we go through the constitutional
provision we can see the constitutional development in Nepal. As according to
the development of constitution in Nepal in each constitution the provision
relating to right to property is secured under the Fundamental Rights.
1. Government
of Nepal Act 1948 2004 B.S
2. Interim
government of Nepal Act 1951 A.D/2007 B.S
3. Constitution
of kingdom of Nepal 1959 A.D/2015 B.S
4. Constitution
of Nepal 1963 A.D/ 2019 B.S
5. Constitution
of the kingdom of Nepal 1990 A.D/2046 B.S
6. Interim
constitution of Nepal 2007 A.D/ 2063 B.S
Government of Nepal Act
1948/2004 B.S
According
to Article
4,
“Subject
to the principle of public order and morality guarantee to the citizens of
Nepal security of property.”
Absolute
right is not provided but conditional. Right is provided by this constitution eminent
domain.
In
Indian Article 19 (1) (f), 19 (5) Article 31,
“All
citizens India shall have the right to acquire hold an dispose property.”
Article
19 (5),
“Nothing
reasonable restriction was imposed state had the eminent domain over private
property.”
Fourthy
four (44th ) amendment Article 300 (A) is added.
“Person
not to be deprived saved by authority of law; no person shall deprived of his
property saved by authority of law.”
Interim Government of
Nepal Act 1951A.D/ 2007 B.S
In
this Article
17 (2) (f) says,
“Subject
to the laws for the time being enforce provided for the right to acquire, hold
and dispose of property.”
It
was also not absolute right it is also conditional right.
Constitution of the
kingdom of Nepal 1959A.D / 2015B.S
“No
person shall be deprived of his property save in accordance with the law and
every citizen is entitle to acquire and dispose of property.”
Constitution of Nepal
1963 A.D 2019 B.S
In
this time there was the partyless panchayat system. Article 11 (1) (2)
provided the Right to property
Article
11 (2) 2 (e),
“Guarantee
fundamental right of freedom to acquire and enjoy or dispose it by sale or
otherwise to all citizen.”
Article
15 of this constitution stated,
“No
person shall be deprived of his property save in accordance with law.”
Constitution of the
Kingdom of Nepal 1990 A.D/ 2046 B.S
Article
17 of constitution of Kingdom of Nepal has made the
right to property,
According
to Article,
“All
citizen’s shall be subject to existing laws have the right to acquire, own,
sell and otherwise dispose of property.”
The question whether right to property
under Article 17 of the constitution was fundamental right arouse in
the case, in which the 4th amendment is done in Land Act 1964 was
challenges on the ground that it deprived landowner lords of their property
without providing compensation. Thus the Act was ultra virus, passive or
ineffective.
The 5 member special bench decided that
property right under Article 17 was legal right.
Article
17 (2) of the constitution 1990 incorporated the principle
of eminent domain which reads – the except for public purpose the state shall
not acquire or obtain individual property or creates any right over such
property by any other way.
In the case, advocate Mithilash K. Singh
Vs. Rt. Hon. P.M Ministerial.
State
can acquire for the public purpose and compensation should be given under
Article 17 2
The
right
to receive compensation under Article 17 (3) of 1990’s
constitution for acquisition of property was held to be fundamental right.
In case; Sita Bista Kshetri Singh Vs.
HMG, Ministry of Home
Humet
Tole,
The land Acquisition Act 1974 has been
held to be valid under of the constitution of Kingdom of Nepal 1990, in Sita
Bista Kshetri Vs. HMG Ministry of Home, in which Land acquired to settle
families due to collapse of Humet Tole.
In the 1977, was challenged the court
said, that since the Land Acquisition Act 1974 conforms to the constitutional
provision of Article 17. That state can acquire land for public interest.
And Article
17 (3) that compensation shall be awarded, thus the Act is not in
consistent with the provision of constitution of kingdom of Nepal 1990.
Interim Constitution of
Nepal 2007 A.D 2063 B.S
In this constitution provision of right
to property is secure in part 3 under Fundamental right in Article 19. Article
19 (1) says that,
every
citizen shall, subject to the laws in force, have the right to acquire, own,
sell, dispose of, and otherwise deal with, property.
Article
19 (2) talks about the eminent domain the acquisition
property by state for public interest.
Article
19 (3) talks about the compensation shall be provided for
any property acquired or requisitioned or encumbered by the state in course of
enforcing a scientific land reform program or in the public interest, in
accordance with law.
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