Property Law in India

Property law has always been an area of concern for any country as it is something which every member of a society whether rich or poor has to deal with. It governs the relationships between the members of a society in respect to things which can be tangible or intangible. 

Property Law in India has undergone a number of changes and complications related to it’s  formation and execution.  . In this blog, I shall discuss in details about property laws in India and its various aspects.

HISTORY OF PROPERTY LAW IN INDIA

The Property Law and the Property rights  had always posed a challenge to the government as it tried to initiate its program of land reforms to dismantle the zamindari system. It was a structure of agriculture that resembled feudalism and had resulted in an massive amounts of land being vested in a few hands.The laws related to the property were governed by the principles of English Law, Equity The Regulations and Acts passed by the Governor-General-in -Council.There was a lack of specific statutory provision, we had to depend upon the Anglo-Indian courts.The courts decided the matter on their own notion of justice.As a result it came out to be a complicated and a conflicting one.To deal with the said situation and problems of property related issues Law Commission was appointed to create a substantive Law to deal with the property related matters in India.

WHAT IS PROPERTY LAW

In general terms, Property Law in any country deals with the law which governs the various issues related to the ownership of property .Property law deals with the mechanism of  what  an individual is entitled to own and provides guidelines to its usage and conditions. It is applicable to both real and personal property. It impacts everyone living in a society and is also an important part of land law, family law and municipal law.

Anything that is legally owned is a property. Further all the properties can be broadly categorised into Real and Personal property.Now arises a confusion between real property and personal property. What is the difference between both the laws? So basically, real property means land which thereby means land laws and includes things which are attached to land such as house, garage, commercial buildings and even trees or forest. Whereas, personal property includes things which one possess and is movable like a car.

TRANSFER OF PROPERTY ACT 1882

Before the Transfer of Property Act  came into force the laws related to property was governed by the principles of English Law and Equity.The transfer of property in India is regulated by the Transfer of property act, 1882 which was enforceable in India from July 1, 1882. It contains provisions regarding transfer of property and has rules and regulations regarding the transfer.

According to the Transfer of property act, 1882 ‘transfer if property’ is an act by which a person transmits the property to another person where the person may include an individual, association, company or body of individuals and the property transferred can be both movable and immovable.

TYPES OF PROPERTY

There are basically two types of property:-

1.    Self-Acquired Property

These type of properties are owned by an individual with his own earned money and is not inherited by any of his ancestors. Properties acquired as a ‘gift’ or a ‘will’ is also considered as a Self-Acquired Property.

2.    Ancestral Property

Properties which are acquired or inherited by ancestors or forefathers is known as ancestral property. The properties inherited must be atleast three  generation old i.e. the property descends from father, father’s father, and great grandfather. . A person born in a family acquires the property by virtue of his birth in the family.

HOW CAN YOU CLAIM ANCESTRAL PROPERTY

The claim of an ancestral property comes through the birth. 

For a property to be ancestral, two major conditions should be fulfilled:-

• The property should be at least three generation old.
• The same property should not have been divided into past three generations

 Partition notice or a declaration to separate is one of the way through which partition of an ancestral property can be done. The partition can also be done through suits or arbitration. According to Hindu Succession Act, 2005 daughters too have a share in the property and can claim their rights. If they are denied of their rights then in that case a legal notice can be sent or can also file a suit for partition.

By any chance if the property is sold off without any notice or your consent, then in that case it is suggested that the person buying the property should be added to a party and a suit should be filed to claim ones share.

PROPERTY RIGHTS OF LGBT COUPLES

Though the rights related to the LGBT community has always remained a question , their rights in relation to the property is also made clear along with the following processes.Well, more and people are acquiring both tangible and intangible properties in joint names these days. In such cases people enter in cohabitation agreements. In case you obtain title jointly and ends up with a dispute then one can end the joint ownership. This can be done by selling the property to another person or to one another. One can divide it up in case of bank property. This get difficult in case of investments as the ratio may vary.

If there is difference in opinion then partition can be filed in the circuit court. After the filing of matter the court appoint an appraiser who values the property. The court then orders mediation after the filing until the party agrees with the mediation without any report. The court orders the property sold in case the parties do not settle the matter in mediation. If one of the partner excludes another from the property or if one moves out on their own or if one excludes himself or herself from the property then in that case there is a requirement for payment of mortgage or loan payment and also maintaining the property.

WHY BECOME A PROPERTY LAWYER

Property law can be of a great choice for legal practice who enjoys technical writing and attention to detail as property law involves detailed reading and writing. There is even impact of even one word in property law and lawyers tend to develop long term relationships with the clients. Thus, opting for a property lawyer can be a stable legal practice for solo attorneys and even large firms alike.