This article is written by Anushka Bagri of 3rd Year of Banasthali Vidyapith
Abstract
Rights and Duties are important concept in the field of law and out of these property rights is an important and interesting topic to deal with. This article consists of history of property laws in India then with meaning of property, and property rights. Further it deals withs kinds of property and property rights and ways of acquisition of property and position of property rights with reference to Indian laws. In this article it has been tried to clear all the basic concept of property and property rights in a very simple manner.
Key Words– Property Rights, Transfer of Property Act, Property Laws, Acquisition of property, Corporeal and Incorporeal Rights.
History of Property Laws in India
As the government attempted to begin its programme of land reforms to overthrow the zamindari system, the Property Law and Property Rights had always been a problem. It was an agricultural system that resembled feudalism and had led to the concentration of vast amounts of land in the hands of a select few. The rules of English law and equity applied to the laws pertaining to the property. the laws and regulations that the Governor-General-in-Council has passed. Because there was no particular statutory provision, we were forced to rely on Anglo-Indian courts. The courts made their decision based on their own interpretation of justice. It ended up being confusing and contradictory as a result. A law commission was created to write a substantive law to address property-related concerns in India in order to address the aforementioned circumstances and problems.
Meaning of Property
The word “property” comes from the Latin word proprietary, which denotes an owned thing, and its French equivalent, properties.
Britannica states that “property is an object of legal rights, which incorporates things or riches collectively and frequently has strong overtones of individual ownership.” The word in law refers to the entire set of legal dealings that take place between and among people regarding goods. The items may be material (such as products or real estate) or intangible (such as stocks and bonds, a patent or a copyright).
Salmond claims that the term “property” can be interpreted in one of the following three ways:
(i) All of a person’s legal rights are referred to as property. That is to say, it involves a man’s total ownership of both incorporeal and material things.
(ii) The word exclusively refers to a man’s proprietary rights, not his personal rights.
(iii) The phrase covers the rights of property ownership in tangible items like buildings etc.
Property is defined in Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 as “property” of any type, including any right or interest in such property, whether mobile or immovable, tangible or intangible.
The Sale of Goods Act of 1930 defines property as follows in Section 2 (11):
“Property” refers to the overall property of commodities, not just a particular property.
Any object over which a person or company has legal authority could be referred to be property. Property can be categorised as either an intangible asset (such as stocks, patents, etc.) or a tangible thing (such as a car, piece of furniture, piece of machinery, etc.). Real estate is frequently considered an asset, but in some cases, it can also be a problem.
According to the Supreme Court’s interpretation of Article 31, the term “property” shall be given a broad definition and applied to all widely accepted categories of interests that bear the hallmarks or characteristics of property rights. Under Article 300A, “property” refers to more than just land. It covers both physical and intangible rights. It includes cash, a contract, a property ownership interest, etc.
Kinds Of Property
Corporeal property and incorporeal property are the two primary forms of property. This is stated in the section on property transfers.
Meaning of Rights
Rights are those fundamental requirements of social existence without which no one may typically realise his or her best potential. These are the necessary elements for a person’s and his society’s health. Only when people have their rights upheld can they fully express their personalities and provide the society with their finest services.
Property Rights
Property rights define the theoretical and legal ownership of resources, as well as the use to which they may be put. Individuals, businesses, and governments can own these resources, which can be both tangible and intangible.
Property is protected by carefully defined and implemented state laws. These laws define ownership as well as any associated benefits that come with it. Property is a broad phrase, and legal protection for different types of property differs by jurisdiction. Individuals or small groups of people usually own property. Patents and copyrights can be used to safeguard property rights.
Property rights offer the owner or right holder the freedom to do whatever they choose with the property. This includes keeping it, keeping it for personal use, renting it out for a profit, or giving it to someone else.
Types of Property Rights
There are different types of property rights, which are outlined below:
(1) Real Property Rights: These rights speak of the ownership and usage rights of real estate, including the rights to the actual land itself as well as the rights to any minerals, oil, or other natural resources that may be present on the property. They are enforceable legally if they are broken. For instance, if someone uses or profiteers from their land and structures without their consent, owners might take legal action to safeguard their rights.
(2) Personal Property Rights: These deal with the ownership and usage rights of moveable objects including jewellery, furniture, cars, and other commodities. These rights may be sold or transferred legally, for as through sales, inheritance, or use as loan collateral.
(3) Intellectual Property Rights: It covers rights to use and own ideas and creations, such as patents, trademarks, copyrights, and trade secrets. Owners of intellectual property rights have the sole right to exploit and profit from their creations. Without the owner’s consent, others are not permitted to use or exploit the property.
Nature of Property Rights
Property Rights have following characteristics different from other kinds of rights and duties
(1) Property Rights are Transferable: The owner of property may transfer it through a sale, trade, or gift. It can be passed on from generation to generation. According to Davis, “the conception of property always implies that, barring certain taboos regarding sale or transmission, it could be transferred.” In this view, a person’s claim to his wife or his expertise is not considered property because it cannot be transferred.
(2) Property Rights involve distinction between ownership and possession of a thing: Ownership and possession of something are two different things. Despite having something in his possession, a person may not use and enjoy it. Someone else may take it and use it or borrow it with the owner’s permission. The possession of a building may belong to one person, but it may also be paid for by another person (Tenant).
(3) Property is usually non-human: This implies that a piece of property has no inherent rights and merely serves as the passive object of other people’s rights. The land serves the landowner and has no inherent rights. The object is used to further the owner’s will, discretion, and advantage. People cannot be treated as objects of property. For instance, a woman cannot be her husband’s object of property. The only things to which property rights apply are those without inherent rights.
(4) Power Aspect: Property is a social institution that grants authority over both goods and people through those things. Owning anything indicates having control over someone else. It has served as a tool through which those who hold it can manage the lives and labour of others who do not. For instance, in a capitalist society, people who own wealth have influence over the lives and labour of those who do not.
Right to property in India
When the Indian Constitution went into effect on January 26, 1950, following Indian Independence, it included the right to property as a “fundamental right” under Article 19(1)(f) and Article 31 in Part III, making it a legally enforceable right. However, during the first decade following independence, it was believed that the fundamental right to property was a major obstacle to the establishment of a just socio-economic order and a source of contention when the State sought to acquire private property for public purposes, particularly the expansion of rail, roads, and industries, among other things.
In order to overcome this obstacle, the Supreme Court ruled in the famous case known as the Fundamental Rights Case that because the right to property is not a fundamental component of the constitution, Parliament is free to take private property from individuals for purposes of public interest and concern.
Following that, the 44th Constitutional Amendment was approved by Parliament, converting the right to property into an ordinary legal right protected by Article 300-A.
The Supreme Court has ruled in one of the cases that an individual’s right to property cannot be violated by the administration without a court’s approval. For a public purpose, the State is permitted to seize a person’s property in exchange for payment of compensation, which need not be exactly equivalent to the value of the property taken, but also cannot be fictitious or excessively disproportionate.
The Supreme Court of India stated clearly its most recent stance on property in Indian Handicraft Emporium v. Union of India, noting that while the right to property is a constitutional right under Article 300-A, it is not a fundamental right. It is a legal right, but not every claim to property would qualify as a property right.
Modes of Acquisition of property
Under the jurisdiction of Indian property laws, property may be acquired in a number of ways. The five methods of acquiring property are listed below in the following order:
(1) Possession: In general, the term “possession” refers to having actual physical control over or possession of a piece of property. This is seen as proof of ownership of the subject property prima facie. Although there can be some confusion between possession and ownership, unless there is a written agreement to the contrary, the person who is claimed to have possession of an object, asset, or piece of property is typically considered to be the owner.
Res nullius, or property that belongs to no one, is the property of the original owner, who is given a legal title to it against the rest of the world. When someone else takes control of anything that was previously in their care, custody, or ownership, the title to that asset finally transfers to her.
(2) Agreement: According to Indian property law, the most popular way to acquire property is by an agreement, but other methods of acquisition are also permissible. It is a formal agreement between the buyer and the seller, who will exchange property in exchange for payment, in the Indian property selling process. According to the terms of the agreement, either a portion or the entirety of possession, or ownership, passes to the other party. The two types of agreements that are most frequently used to transfer properties are the sale agreement and the agreement to sell.
(3) Inheritance: In India, inheritance has traditionally been the most popular way to acquire property. Property is being passed down from one generation to the next. Such a bequest may be made either while the property owner is still alive or after death, in which case the deceased person’s property will automatically pass to his or her heirs (testamentary or intestate).
(4) Gift: Giving property as a gift is the final but most important way to acquire it. A gift is a method for giving someone else one’s possessions without receiving any cash compensation. According to this method, a donation must satisfy a few criteria in order to be considered legitimate i.e., property, real ownership, and free consent.
Sections 122-129 of the Transfer of Property Act, 1882 regulate gifts. Any gift of property made without the recipient’s free consent is void, as is any transfer of future property made in exchange for payment.
Conclusion
Property Rights is an important concept to study in the field of law. From, the above all points it can be concluded that the constitutional clauses included in Articles 39(b) and (c) in the context of India express the state’s strong opposition to the concentration of wealth in the hands of a select few at the expense of social interests and the overarching idea behind the State’s regulation of property through the use of law has been the equitable and fair distribution of wealth in order to serve the common interests of all societal segments. Instead of taking a limited individualistic approach, the socialisation of property has been the focus.
References
1) Neha Roy, Property Law in India, Vidhikarya, https://www.vidhikarya.com/legal-blog/Property-Law-in-India, last seen on 14/06/2023.
2) Property, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/property, last seen on 14/06/2023.
3) Will Kenton, What Are Property Rights, and Why Do They Matter? Investopedia, https://www.investopedia.com/terms/p/property_rights.asp, last seen on 15/06/2023.
4) Vineeth, Property Rights, Clear Tax, https://cleartax.in/g/terms/property-rights, last seen on 16/06/2023.
5) Armen A. Alchian, Property Rights, Econlib, https://www.econlib.org/library/Enc/PropertyRights.html, last seen on 16/06/2023.
6) Shiva Satiya, Right to Property in India: everything important you should know about, iPleaders Blog, https://blog.ipleaders.in/right-to-property-in-india/, last seen on 16/06/2023.
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