RIGHT AND CONCEPT OF PROPERTY

RIGHT TO PROPERTY- the Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes.

The provisions relating to the right to property were changed a number of times. The Forty-Fourth Amendment of 1978 deleted the right to property from the list of fundamental rights.

A new provision, Article 300-A, was added to the constitution, which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens. The Indian Constitution does not recognize property right as a fundamental right. In the year 1977, the 44th amendment eliminated the right to acquire, hold and dispose of property as a fundamental right. However, in another part of the Constitution, Article 300 (A) was inserted to affirm that no person shall be deprived of his property save by authority of law. The result is that the right to property as a fundamental right is now substituted as a statutory right.

Articles 31-A, 31-B and 31-C are the indicators of the change and the counter pressure of the state when it realized the inherent problems in granting a clear western style absolute fundamental right to property (even though it was balanced by reasonable restrictions in the interest of the public), specially Article 31-C, which for the first time brought out the social nature of property.

 NATURE OF THE PROPERTIES- Property has a very wider meaning in its real sense. It not only includes money and other tangible things of value, but also includes any intangible right considered as a source or element of income or wealth. Property is again divided into corporeal and incorporeal. The former comprehends such property as is perceptible to the senses, as lands, houses, goods, merchandise and the like; the latter consists in legal rights, as chooses in action, easements, and the like.

MEANING OF THE PROPERTY-In general sense, property is any physical or virtual entity that is owned by an individual or jointly by a group of individuals. An owner of the property has the right. Human life is not possible without property. It has economic, socio-political, sometimes religious and legal implications. It is the legal domain, which institutes the idea of ownership. The basic postulate of the idea is the exclusive control of an individual over some ‘thing’. Here the most important aspect of the concept of ownership and property is the word ‘thing’, on which a person has control for use. To consume, sell, rent, mortgage, transfer and exchange his property. Property is any physical or intangible entity that is owned by a person or jointly by a group of people. Depending on the nature of the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to exclude others from doing these things.

There are some Traditional principles related to property rights which includes:

• Control over the use of the property.
• Right to take any benefit from the property.
• Right to transfer or sell the property.
• Right to exclude others from the property.

DEFINITION OF PROPERTY- There are different definitions are given in different act as per there uses and needs. But in the most important act which exclusively talks about the property and rights related to property transfer of property act 1882 has no definite definition of the term property. But it is defined in some other act as per their use and need. Those definitions are as follows:

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as-Property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.

Section 2 (11) of the Sale of Good Act, 1930 defines property as- “Property” means the general property in goods, and not merely a special property.

KINDS OF PROPERTY-Broadly Property is divided into two kinds those are as follow:

MOVABLE PROPERTY-The definition of movable property is given differently in many acts. Some of the definitions are as follows:

• Section 3 (36) of the General Clauses Act defines movable property as- 'Movable property shall mean property of every description, except immovable property."
• Section 2 (9) of the Registration Act, 1908 defines property as-'Moveable property' includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property."
• Section 22 of IPC defines property as- The words “moveable property” is intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything, which is attached to the earth. Things attached to the land may become moveable property by severance from the earth. for example Cart–loaded of earth, or stones quarried and carried away from the land become movable property.

IMMOVABLE PROPERTY -The Term "Immovable Property" occurs in various Central Acts. However none of those Acts conclusively define this term. The most important act which deals with immovable property is the Transfer of Property Act (T.P.Act). Even in the T.P.Act this term is defined in exclusive terminology. According to Section 3 of that Act, "Immovable Property" does not include standing timber, growing crops or grass. Thus, the term is defined in the Act by excluding certain things. "Buildings" constitute immovable property and machinery, if embedded in the building for the beneficial use thereof, must be deemed to be a part of the building and the land on which the building is situated.

• As per Section 3(26) of the General Clauses Act 1897, "immovable property" "shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth". This definition of immovable property is also not exhaustive;
• Section 2(6) of The Registration Act,1908 defines "Immovable Property" as under- immovable Property includes land, building, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth but not standing timber, growing crops nor grass".
• The definition of the term "Immovable Property" under the Registration Act 1908, which extends to the whole of India, except the State of Jammu and Kashmir, is comprehensive. The above definition implies that building is included in the definition of immovable property. The following have been held as immovable property.
• A right to collect rent, life interest in the income of the immovable property, right of way, a ferry, fishery, a lease of land.
• The term "Immovable Property" is defined in other Acts for the purpose of those Acts. As per Section 269UA(d) of the Income Tax Act, 1961, Immovable Property is defined as under :
  Any land or any building or part of a building, and includes, where any land or any building or part of a building is to be transferred together with any machinery, plant, furniture, fittings or other things, such machinery, plant, furniture, fittings and other things also. Any rights in or with respect to any land or any building or part of building (whether or not including any machinery, plant, furniture, fittings or other things therein) which has been constructed or which is to be constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, or other association of persons or by way of any agreement or any arrangement of whatever nature, not being a transaction by way of sale, exchange or lease of such land, building or part of a building.

TANGIBLE AND INTANGIBLE PROPERTY:

• Tangible property- Tangible property refers to any type of property that can generally be moved (i.e., it is not attached to real property or land), touched or felt. These generally include items such as furniture, clothing, jewellery, art, writings, or household goods.
• Intangible property: Intangible property refers to personal property that cannot actually be moved, touched or felt, but instead represents something of value such as negotiable instruments, securities, service (economics), and intangible assets including chose in action.
• Intellectual property- Intellectual property is a term referring to a number of distinct types of creations of the mind for which property rights are recognized—and the corresponding fields of law.
  
  TYPES AND NATURE OF PROPERTIES –  Mainly there are two types of properties-
• FREE HOLD- it gives the owner/purchaser a complete ownership of the property. The owner has the right to use it, exclusively possess it, enjoy it as owner wants , dispose of it by deed or will, and take its fruits and on his/her death, the ownership  automatically goes to the legal heirs with absolute rights of the property.
• LEASE HOLD- A leasehold property is leased from the freeholder for a specified period of time. The lease usually includes a range of terms and conditions. Lessee has right to enjoy it and on permission can transfer the property. On breaking the terms lessee can lose the property. On expiry of lease tenure, lessee requires renewing it and on death of lessee, the property rights will go to the legal heirs if lessor has permitted by terms of lease deed. A purchaser of lease hold rights requires getting mutation in the office of lessor. Lease hold rights can be mortgaged if terms of lease deed permits with or without NOC as the lease deed permits.

NATURE OF PROPERTIES- We get the immovable properties in following forms generally-

• Agricultural: The land which is used for agriculture activities.
• Land
• Farm House
• Residential: The land and built up units used for residential purposes.
• Land
• Row House
• Apartment/flats
• Society House
• Bungalow
• Plots/houses of any residential Colony
• EWS/LIG/MIG/HIG of Government schemes
• Commercial- the land/unit is used for commercial/business purposes.
• Land
• Showroom
• Shop cum Office
• Shop cum Flats
• Hotel
• Software Park
• Business Center
• Warehouse/Go-down
• Corporate Office Park
• Conference/Training Centre
• Industrial- The land used for industrial/factory purpose.

• Land
• Shed
• Estate
• Factories

MODES OF ACQUISITION OF OWNERSHIP: Generally there are two modes of acquisition of property ownership i.e. by inheritance and by transfer.

 By inheritance- On death of original owner, property rights inherited to the next legal heirs. Legal heirs need to get the mutation of property in relevant Government office.

 By Transfer- Ownership can be acquired by transfer according to Transfer of property Act. Following are the documents of transfer-

• Sale: Sale is the most convenient mode of transfer of immovable property and consequently purchase is the ideal mode for acquiring title.
• Lease – lease is a transfer of right of possession and enjoyment for a specified period.
• Partition – Joint/co-owner of property can divided their shares by executing partition deed.
• Release- Joint/co-owner can release the right of ownership in favor of other co-owner by release deed.
• Will: This is the one and only instrument which allows a person to dispose his property while he is alive and to take effect after his death.
• Gift: The Hindu Succession Act has not made any provisions for making a gift by a manager of a joint family of his interest in the joint family property and as such Section 30 does not avail to the appellant and clearly of the opinion that the gift by the first defendant are invalid even as regards his interest in the joint family properties. There can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee.
• Transfer of Ownership: The rights of a transferee from a co-owner are regulated by Section 44 of the Transfer of Property Act which provides that whereas one or two or more co-owners of the immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. According to this statutory provision also what transferee gets is the right of the transferor to joint possession and to enforce a partition of the same irrespective of the fact whether the property sold is fractional share of specified portion, exclusively in possession of the transferor.
• Succession: The natural way of acquiring title to property is by succession. By succession property devolves on a person as a matter of course by operation of law, partition, custom or usage under intestate succession and testamentary succession operates in a different way and is dealt with hereunder.
• Exchange: Section 118 of Transfer of Property Act defines exchange as “when two persons mutually transfer the ownership of one thing for ownership of another, neither thing or both things being money only, the transaction is called as exchange.

SHARING OF PROPERTY -

• SHARE- Aspect of property whereby ownership or equity of a particular portion of all property (stock) ever to be produced from it may be given to another party, which is itself an incorporeal form of property. The share may easily be destroyed once it and the property are owned by the same party.
• RENT AND LICENSE- Allowing limited and temporary but potentially renewable, exclusive use of property, but in exchange for compensation.
• EASEMENT- Aspect of property whereby right of particular use of it may be given to another party, which is itself an incorporeal form of property. The easement or use-right may easily be destroyed once it and the property are owned by the same party.
• MORTGAGE/CHARGE- condition whereby while possession of property is achieved or retained, possession of it is contingent upon performance of obligation to somebody indebted to, and unencumbered ownership of it is contingent upon completion of obligation. The performance of obligation usually implies division of the principal into installments.

VIOLATION OF PROPERTY RIGHTS-

• Trespassing-Use of physical and usually but not necessarily only immovable property or occupation of it.
• Vandalism- Alteration, damage or destruction of physical property or to the appearance of it.
• Infringement- Incorporeal analogy to trespassing.