PROPERTY RIGHTS WITH SPECIAL REFERENCE TO INDIAN LAW AND PRACTICE

This article is written by Namrata Dube of 9^th Semester of B.A.LL.B. of South Calcutta Law College, Kolkata, an intern under Legal Vidhiya

Abstract: –

The term “Property Right” refers to the legal right of an individual or of an organization to use, manage and dispose of a resource, such as land or personal property. These rights help the owner to prevent third parties from benefiting from them without the owner’s consent. In other words, it means, the legal ownership of resources and how they can be used. The property rights involve possession and ownership of things owned. This article deals with the meaning, history and kinds of property. It also deals with the nature of property rights, the modes of acquisition of property and the position of property rights with reference to Indian laws. In this article, it has been tried to explain the basic concept of property and property rights with various case references.

Keywords: –

Property rights, acquisition of property, Transfer of Property Act, possession, ownership, inheritance, prescription, agreement

Introduction: –

The concept of property plays a very significant role in human life, because it is impossible to live without the use of material objects which constitute the subject matter of property. The property of a man is all that belongs to him, following the law. In modern times, property in its widest sense includes, all the rights which a person has. Thus, a person’s liberty and all other claims which he might have against other person is his property.

History: –

The legal status of the Right to freedom was changed from a fundamental right to a constitutional right due to the excessive possession of land by the zamindars and tenants. The laws related to property were governed by the principles of English Law, Equity and Acts passed by the Governor- General in Council. The people had to depend on the Anglo-Indian Courts due to the lack of specific statutory provision. And the courts used to give judgments on their own notion of justice. It resulted in a complicated and conflicting situation. Thus, to solve the problems related to properties, Law Commission was appointed to create a Substantive Law to deal with property related matters in India.

Meaning of Property: –

The word “property” is derived from the Latin word proprietary, which means an owned or a possessed thing. It is used to denote the proprietary rights of a man as opposed to his personal rights. In this sense, it means a person’s house, land, his shares in business etc. The word can be used in another sense also, which is proprietary rights in rem. According to Salmond, law of property deals with the proprietary rights in rem. He also stated that the ownership of corporeal property is general, permanent and inheritable right of a user. It not only includes the movable and immovable object, but also includes copyrights, patents, shares etc.

The has defined the term property under section 2(1) as, the ownership or the general property, which means all ownership right of the goods. For instance, when a sale takes place, it constitutes the transfer of ownership of goods by the seller to the buyer.

Types: –

The two forms of property are:

• Corporeal Property: – The possessions or ownerships which are materialistic in nature. Example- a house, a book etc.
• Incorporeal Property: – The intangible property which does not have any physical existence, i.e., ownership of a right. Example- stocks, patents etc.

Property Rights: –

The right to property is a natural and inherent right of an individual. Most of the modern constitutions (except communist countries) accepted the right of private property. This means that every person has the right to own or possess the property. Thus, every citizen has the right not to be deprived except through due process of law. The owner has the right to do whatever he likes to do with the property, like use it personally or rent it or gift it.

Nature: –

Property rights have the characteristics which are different from other kinds of rights and duties. They are enumerated below: –

• Property is usually non-human: – This means that a property does not have a right of its own but is simply the passive object of such rights. For example, a piece of land does not have any right of its own, it only serves the land owner. It is the owner’s will and judgment that are served by that object. Human being cannot be the object of property. For instance, a man cannot be the object of property of his wife. Thus, property right applies to those things or objects which do not possess any right of their own.
• Property rights are transferable: – One can transfer his or her property by way of gift, sale or even exchange it. It can be transferred from one generation to next generation also. Davis stated that, in any event the conception of property always means that except on some taboo on transmission or sale it could be transferred. Thus, a person does not have any property right or skill on his wife because they are not transferable.
• Power aspect: – Property not only gives power over things but through things also over persons. Thus, the possession over property means possession of power over others. It acts as an instrument by those who own it can control the life and labour of those who do not own it.
• Property rights involves a difference between ownership and possession of a thing: – There is a difference between possession and ownership of a thing. According to Salmond, possession is the Defacto counterpart of ownership. A person may own a particular thing, but he may not use or enjoy that thing. Someone may have stolen it or borrowed it from the owner.

In India: –

In the year 1950, when the Constitution of India came into force, the right to property was given fundamental status. There are two articles which ensures that the right of an individual against his property is protected, they are Art. 31 and Art. 19(1)(f). It is embodied in Art 31(1) that no one shall be deprived of his property save by the authority of law. This means that if the right of a person is violated then he can move to the Supreme Court for seeking justice, in this case. Art 31(2) also provides the second restriction for acquisition of property. But the above-mentioned articles were deleted by the Constitutional 44^th Amendment Act, 1978, and a new chapter (Chapter IV), was added in Part XII, containing only one article 300A. And thus, the legal status of the right to property was changed from fundamental right to constitutional right. This step was taken by the Parliament because, after independence there were four main systems prevailing in India. And for this, the large parts of land were in possession of zamindars and tenants which caused an unequal distribution of land.

In case of Hari Krishna Mandir Trust v. State of Maharashtra and Others (AIR 2020 SC 3969), it was held that the right to property is a constitutional and a human right. The appellant cannot be deprived of his land being a private road (without the authority of law), if it is allowed, it will be a violation of Art. 300A of Indian Constitution.

The recent status of property in India is well expressed by the Supreme Court of India in the case of Indian Handicraft Emporium v. Union of India (AIR 2003 SC 3240). It was held in this case the court observed that right to property is a human right as a constitutional right Article 300A, but it is not a fundamental right.

Modes of Acquisition of property: –

The property may be acquired in four different modes, viz- Possession, Prescription, Agreement and Inheritance. They can be put in two classes:

• Acquisition inter vivos, which includes possession, prescription and agreement
• Inheritance vis-à-vis Succession on death

As mentioned above, acquisition inter vivos includes possession, prescription and agreement, they are enumerated below: –

Possession: –

According to Salmond, possession is the de facto relation between the possessor and the thing possessed.  It is evidence of ownership as it’s transfer is one of the most chief methods of transferring ownership. To possess a material object is to continuously exercise a claim to its exclusive use i.e., no one else can use it without prior permission or knowledge of the possessor.

It may be mentioned in this context that, possession may not always be rightful, it is factual in many cases. A thief’s possession is not legal. As a matter of fact, it is contrary to law, yet, nevertheless it is possession. Thus, possession of a thing even it is wrongful is a good title against the whole world except the real owner. Also, long adverse possession creates ownership by prescription.

There are two elements of possession, viz, “Corpus Possessonis” and “Animus Possidendi”. One means the effective physical control of the object in possession and the latter means the intention to hold.

Prescription: –

Prescription means the acquisition of an easement, over anyone else’s property through adverse use of that property. Where a substantive right in a property is acquired by one party is known as Acquisitive or positive prescription and extinguished or lost by the other party is known as Extinctive or negative prescription.

For instance, Sec 25 of the Limitation Act r/w Sec 15 of the Indian Easement Act,1882 deals with acquisition of easements by prescription, at the expiry of certain period, viz, 20 years in case of private land and 30 years in case of government land. The expiry of the prescriptive period bars the judicial remedy and beside it creates a substantive right in favour of one party with a corresponding extinguishment of a substantive legal right of the opposite party.

Agreement: –

In India, most common way to acquire a property is by way of agreement. There is a mutual assent between the buyer and seller of a property who will exchange it in exchange of monetary consideration. The two types of agreement viz, the agreement to sell and sale agreement are commonly used to transfer a property. One of the essential elements of agreement is that there should be a common intention to affect the legal relationship between two or more parties.

Inheritance: –

Mitakshara rule of succession regulated the law relating to inheritance applying the principle of survivorship. The wife, widowed mother, minor sons and daughters as a child in the mother’s womb were entitled to get property as a successor of the deceased person. The property is passed from one generation to the next generation. The property may be passed while the owner is alive or dead. In case of the latter the property will automatically pass to his or her heirs.

Case laws: –

• Guru Datta Sharma v. State of Bihar (1962) S.C.J. 382, the apex court defining the property as a legal concept, observed that it is a bundle of rights which includes possession, right to enjoy, right to destroy etc.
• Vidhya Devi v. The State of Himachal Pradesh & Ors. (8^th January,2020), it was held in this case private property is a human right and it cannot be denied and the plaintiff was given compensation for the wrong acquisition of property by the state.
• Bridges v. Hawkesworth (1851) LJQB 75, it was held that the plaintiff as the finder had both the corpus as well as the animus with respect to the notes found as against everyone but the true owner.

Conclusion: –

It can be concluded that the principle in the regulation of property by the state is that, there should be fair and equitable distribution of wealth and property to serve the common intention of all sections of the society. The aim is to ensure that there should be just and fair use of property and protecting it against all kinds of exploitation. The individualistic approach should not be taken, instead the focus is the socialization of property.

Reference: –

• Shiva Satiya, Right to property in India, (satiya 2020)
• Shivang Parashar, Right to property and its Evolution in India, (parashar n.d.)
• Law of Property, S.R. Myneni, (s.r.myneni n.d.)
• The Transfer of Property Act, Dr. R.K. Sinha,  (r.k.sinha n.d.)