HISTORY OF RIGHT TO PROPERTY THROUGH THE LENS OF CONSTITUTION
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The right to property ceased to be a fundamental right by the Constitution (Forty-Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare state, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article. The Right to private property was regarded as a fundamental right under Article 31 of the Indian Constitution until 1978. But at present, the Right to property viz. “No person shall be deprived of his property save by authority of law” as enshrined in Article 300A, as inserted by 44nd Constitutional Amendment.?Earlier, The Constitution of India used to protect the property right in many ways:-.
1) it guaranteed that “All citizens shall have the right to acquire, hold and dispose of the property.” The State, however, could impose reasonable restrictions (i) to serve the exigencies of public welfare and (ii) to protect the interest of any Scheduled Tribe [vide Art. 19 Clauses (1) (f) & (5)].
2) in the phraseology of Art. 300A, the Constitution makers in Art. 31(1) guaranteed that “No person shall be deprived of his property save by the authority of law”. The provision indicated that a person can be deprived of his property only through an Act passed by the Parliament/State Legislature and not by executive order or fiat. The word ?Law? in Art. 300A means an Act of Parliament or a State Legislature, a rule or a statutory order, having the force of law, that is positive or State-made law.[2]
3) as provided in Art. 31(2) (now deleted), the property of a person could be acquired or requisitioned only under two contingencies viz. (i) the acquisition or requisition could be for public purpose and (ii) the law must provide for payment of compensation to the owner of the property either by fixing the amount of the compensation or by specifying the principles upon which it could be determined or fixed. The obligation to pay compensation, however went on diluting continuously by the Constitution First, Fourth, Seventh, Twenty-fifth and Forty-second Amendment Acts. The fundamental ?right to property? has been abolished because of its incompatibility with the goals of justice, social, economic and political and equality of status and of ?opportunity? and with the establishment of a social democratic republic, as contemplated by the Constitution.[3]?The right to property? under Art. 300A is not a basic feature or structure of the Constitution. It is only a Constitutional right.[4]
Constitution.”
In a very recent case of Jilu bhai Nambhai Khachar v. State of Gujarat[5], the Apex Court held that after the Constitution Forty Fourth Amendment Act has come into force, the right to property in Arts. 19(1)(f) and 31 had its obliteration from Part III, Fundamental Rights. Its abridgment and curtailment does not get retrieved its lost position, nor gets restituted with renewed vigour claiming compensation under the garb ?deprivation of property? in Art. 300A. The court further held that the principle of unfairness of the procedure attracting Art. 21 does not apply to the acquisition or deprivation of property under Article 300A giving effect to the Directive Principles.
The definition of sale deed is given in the section 54 of the Transfer of Property Act, according to which, sale is transfer of property in exchange of a price which has been paid or promised to be paid or some portion of which has been paid and the remaining portion is promised to be paid.
In a transaction for sale, there is reciprocal set of promises between seller and the purchaser in which the promise of one is the constitution of the other.
The analysis of the definition of sale is that the transfer of a property would be called sale when through such a transaction.
1) Ownership is confirmed
2) The transfer made for some price
Both the essential condition was satisfied and fulfilled for a sale.
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MORTGAGE DEED
A mortgage deed is a legal document that gives lender an interest in a property when you take out a loan backed by the property. If a borrower does not pay back a loan in accordance with the agreement, the lender can foreclose and take possession and take possession of the property or have it auctioned. Basically, mortgage deed is a paperwork that allows the lender to put lien on the property until the loan is paid.
Section 58 of the Transfer of the Property Act, 1882 defines mortgage as transfer of interest in specific immoveable property for the purpose of securing.
LEASE DEED
When a property is used and enjoyed by the person in possession of it in exchange for a consideration to the actual owner, the property is said to be leased or rented. When a property is given on a lease, it means that the lessee or the tenant can use the property for a definite period of time for which he/she would be required to pay a certain fixed amount of rent. When this period extends to more than an year, a lease deed must be prepared.
GIFT DEED
A deed of gift is a signed legal document that voluntarily and without recompense transfers ownership of real, personal or intellectual property such as a gift of materials from one person or institution to another.
Gift deed is a legal document that describes the voluntarily transfer of gift from a donor (owner of the property) to done (receiver of gift) without any exchange of money. The donor should not be solvent and should not use this as a tool for tax evasion and illegal gains.
POWER OF ATTORNEY
A Power of Attorney (POA) or letter of attorney is a written authorization to represent or act on another’s behalf in private affairs, business or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor (of the power). The one authorized to act is the agent, attorney or in some common law jurisdiction called the attorney in fact.
WILL
A will or Testament is a legal document that expresses a person’s (testator) wishes as to how their property is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. The law relating to will is contained in part VI of the Indian Succession Act, 1925. But this is not applicable to wills made by the Mohemmedans.