PROPERTY and it's kinds-2.pptx

Note of Property and it's Kinds

1. PROPERTY Definition Kinds of Property Acquisition and Transfer of Property Property Law in Nepal -Partition ( aungsabanda ) -Inheritance ( aputali ) e. Modes of Property Transfer in Nepal

2. a. Definition of Property Meaning and Definition: The term “property” is derived from the Latin term “ propertietat ” and the French equivalent “ proprious ” which means ‘ a thing owned’.

3. What is "Property?“ The term is extraordinarily difficult to define. One of America's foremost property law scholars even asserts that the question is unanswerable. The problem arises because the legal meaning of "property is quite different from the common meaning of the term. The ordinary person defines property as things, while the attorney views property as rights (Prof. John G. Sprankling , Understanding Property Law)

4.  Most people share an understanding that property means: "things that are owned by persons. For example, consider the book you are now reading. The book is a "thing." And if you acquired the book by purchase or gift, you presumably consider it to be "owned" by you. If not, it is probably "owned" by someone else. Under this common usage, the book is "property". In general, the law defines property as rights among people that concern things . In other words, property consists of a package of legally recognized rights held by one person in relationship to others with respect to some things or the object. For example, if you purchased this book, you might reasonably believe that you own "the book." But a law professor would explain that technically you own legally-enforceable rights concerning the book. For example, the law will protect your right to prevent others from reading this particular copy of the book.

5. Even if it is difficult to define the term “property” as submitted by Prof. John G. Sprankling , different scholars and different states through their laws have defined the term for practical purposes. They can be discussed as follows: According to Prof. Nomita Aggarwal - ‘Property may be defined as objects over which the right of ownership extends and over which one has the exclusive right of control and disposal”.

6. Definition according to Nepalese laws: The Constitution of Nepal (2015 AD): Article 25 (Explanation): “Property” means any form of property including movable and immovable property, and includes an intellectual property right. According to National Civil Code, 2074 of Nepal- Section: 251. Deemed to be property: Any cash, goods or work shall be deemed to be a property if such cash, goods or action can be used or transacted in or the title thereto can be transferred by way of purchase, sale or otherwise or any benefit can be derived therefrom. Explanation: Except otherwise provided for in this Act, the term "goods" means a physical property capable of being purchased or sold.

7. According to section 4(26) of THE BENAMI TRANSACTIONS (PROHIBITION) AMENDMENT ACT, 2016 of India- "property" means assets of any kind, whether movable or immovable, tangible or intangible, corporeal or incorporeal and includes any right or interest or legal documents or instruments evidencing title to or interest in the property and where the property is capable of conversion into some other form, then the property in the converted form and also includes the proceeds from the property;

8. To conclude, ‘property’ is as a bundle of rights The right to exclude; The right to transfer; and The right to use and possess; The right to disposal. However, these rights do not exist in vacuum. There must be owner to have these rights and the objects (any corporeal or incorporeal, work or creation) over which these rights extends. Hence, property may be defined as “objects over which the ownership rights of a person or persons extend”.

9. KINDS OF PROPERTY Corporeal and incorporeal property Movable and immovable property Real and personal property

10. 1. Corporeal and Incorporeal Property This is a division on the basis of forms of the property. Corporeal Property: means proprietary rights in material things. It can also be called tangible property as it has tangible existence in material world. Any movable or immovable property like land, building, cloths, grains, timbers, buildings, raw materials etc are the examples. Incorporeal Property: means any other proprietary rights in rem . Such type of properties are not material or corporeal things. They are intangible. Incorporeal property is further broadly divided into two classes: Intellectual Property Right: is the product of human intellect. For examples- patents, literary, artistic, musical and dramatic copy rights and commercial goodwill which includes trademark and trade name etc. In Salmond’s terms, it is jura in re- propria .

11. b. Right in re aliena : rights in property owned by other person/s. Some major rights of this class are as follows: Lease: It is that form of encumbrance which consist in the right to the possession and use of property owned by some other person ( lessor ). It is the outcome of separation of ownership and possession. Lease creates an interest in the property in favor of lessee (tenant). Servitudes- A servitude is that form of encumbrance which consists in a right to the limited use of a piece of land without the possession of it, for example, a right of way on the land of another. Securities: This form of encumbrance ensures or facilitates the fulfillment of enjoyment of some other right (usually though not necessarily a debt). Examples; mortgage, lien etc. Trust: The beneficial owner has right to benefit from the trust property which is an obligation against the legal owner.

12. 2. Movable and Immovable Property It is the classification of corporeal properties. This division is perhaps the most important of all and appears to have been well recognized in almost all the legal systems. It can be of two kinds; namely movable and immovable. Movable Property: means all property that is not attached to land or permanently fastened to land or building, and things severed (cut) from the land for agriculture or buildings or other purposes. Immovable Property: means and includes land, buildings, things permanently fastened to the land and all things planted on the land. English Law recognizes same classification in terms of Chattels and Land. Examples: Cash or any transactional objects ornaments, metals, transportable objects, intellectual properties, good will or franchise, mortgage rights etc. Section 253 and 254 of the Country Civil Code, 2074 provides on both movable and immovable property.

13. 3. Real and Personal Property This classification of Property has been recognized in England only. It is almost similar to the classification of movable and immovable and virtually overlaps each other. Real Property: includes all rights over land with such conditions and exceptions as the law has deemed fit to make. Personal Property: includes all other proprietary rights whether they are in rem or in personam .

14. 4. Classification of Property on the basis of Ownership Section 255 of Country Civil Code provides the following kinds of property on the basis of ownership and its forms of use: Private Property; (section 256) Common(unseparated)Property; (section 257) Joint Property; (section 258) Community Property; (section 301) Public Property; (section 300) Government Property; (section 299) Trust ( Guthi ) Property; (Chapter-6)

15. c. Acquisition and Transfer of Property Property can be acquired through the followings modes: Possession: acquisition of res nullius things, acquisition through adverse possession. Prescription: It is the mode of creating and destroying rights by the effect of lapse of time. The right by prescription results in favor of the person who is in possession of long period and against the person who are not in possession or is not exercising his/her rights It is further divided into two types; Positive or acquisitive prescription: results in the creation of a right by a lapse of time, for example, right of way is acquired by continued de facto use of it, undisputedly and openly for a period prescribed by law. A period of 20 years is prescribed for acquiring such a prescription under Indian Easement Act. Negative or extinctive prescription: results in the destruction of a right by the lapse of time, for example, the right to sue for non-payment of a debt within a prescribed period is extinguished after the lapse of that period. National Civil Code, 2074, Section 484, 10 years period to sue for debt. The Limitation Act, 1963 of India prescribes a three-year period for the extinction of the right.

16. Positive prescription applies only to property whereas negative prescription applies both to property and obligations. Negative prescription is further divided into two kinds: Perfect negative prescription: is one in which the principal right itself is destroyed, e.g., in case of adverse possession for the statutory period; Imperfect negative prescription: is one in which only accessory right of action is destroyed and not the principal right itself as in the case of a time barred debt i.e., in cases where creditor does not exercise his right of action within the prescribed period he loses his right of action. The creditor can not seek the help of law to recover the debt but the principal right to debt remains unimpaired.

17. iii. Agreement: In agreement a title is acquired with the consent of the previous owner. According to Paton, agreement is an expression by two or more persons communicated to each other, of a common intention to affect the legal relations between them. An agreement has 4 essential elements: Bilateral act, there should be two or more parties to an agreement; Mutual consent among the parties; Communicated; and Common intention to affect legal relationship. Agreement is of two types: Assignment: the existing owner transfers his right to the property to another. Grant: new rights are created by way of encumbrances. E.g., lease, charge,

18. iv. Inheritance: In respect of the death of their owners all rights belonging to the deceased are divisible into two classes, namely : a. Inheritable rights: a right is inheritable if it survives its owner and devolves on his legal representative; b. Uniheritable rights: a right is inheritable if it dies with his person. Generally speaking proprietary rights like debts are inheritable whereas personal rights are not-they extinguish with the death of the deceased. Devolution (transfer/acquisition) takes place in two ways- Intestate Succession- devolution according to the law or custom by which the deceased is governed and the persons to whom the property devolves are called heirs. Testamentary succession : through will,

19. d. Property Law in Nepal Constitutional Provisions: Constitution is the cornerstone of a nation which determines the basic structure of economic system of any country. The constitution of Nepal (2015) provides right to property as a fundamental right of every citizen. The right relating to property (Art. 25) are as follows: Art. 25(1) Every citizen shall, subject to law, have the right to acquire, own, sell, dispose, acquire business profits from, and otherwise deal with, property. Provided that the state may levy tax on property of a person, and tax on income of a person in accordance with the concept of progressive taxation. 25(2) The state shall not, except for public interest, requisition, acquire, or otherwise create any encumbrance on property of a person. Provided that this clause shall not apply to any property acquired by any person illicitly. 25(3) The basis of compensation to be provided and procedures to be followed in the requisition by the state of property of any person for public interest in accordance with clause (3) shall be as provided for in the Act.

20. 25 (4) The provisions of clauses (2) and (3) shall not prevent the state from making land reforms, management and regulation in accordance with law for the purposes of enhancement of product and productivity of lands, modernization and commercialization of agriculture, environment protection and planned housing and urban development. 25 (5) Nothing shall prevent the State from using the property of any person, which it has requisitioned for public interest in accordance with clause (3), for any other public interest instead of such public interest. Analysis: From the above provisions, it is apparent that the property right of the citizens in Nepal is not absolute, however, they deserve the fundamental right to have private property. The property rights of the citizens are limited as they are subject to the law of the state. They don’t have absolute rights rather limited rights of indefinite use and of duration of enjoyment/use/ownership.

21. Provisions Relating to Partition ( Aungsbanda ) and Inheritance ( Aputali ) in Nepalese Laws: The National Civil Code, 2074 is the main legal instrument that provides on Partition and Inheritence . The salient features of those provisions are as follows: Partition ( Aungsbanda ) Please see the notes supplied in Word format.

22. e. Modes of Property Transfer in Nepal Nepalese laws recognize various modes of property transfer in Nepal. Those modes can be enumerated as follows: Partition:(National Civil Code, 2074- Chapter-10) Inheritance: (National Civil Code, 2074, Cha.-11) Possession: Adverse Possession Sale in goods: Operation of Law: