Property Laws

 Common Questions on Property Law

1. What is Property Law?
2. What are the Applicable Laws in Relation to Property?

• Is Registration Compulsory while buying a property?

Property and resources govern the events of humanity. As per Montesquieu, ‘one would forget sooner the murderer of his father than the man who robbed him of his property’. Hence, there are well defined statutes governing interactions involving properties. The major legislation in this regard is Transfer of Property Act. For the scope of this article; Partition, Will, Intangible Property, Succession, etc. shall not be discussed as they are covered under specialised statutes and/or recognised legal practises.

What is Property Law?

Property law is the area of law that governs the various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights, and obligations thereon.

Laws applicable to Property related Matters?

• Transfer of Property Act, 1882
• Indian Easement Act, 1882
• Registration Act, 1908
• Stamp Act, 1988
• Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (at instances of land acquisition)
• Indian Contract Act, 1872
• Specific Relief Act, 1963 –Part II

 What does Constitution of India Reveal about Property?

Initially, Right to Property was a fundamental right under the Constitution in the form of-

Article 19(f) which spoke about the right to acquire, hold and dispose of property, subject to reasonable restrictions

& Article 31 which, as originally enacted, said that no person shall be deprived of his property except by authority of law.

Forty Fourth Amendment to the Constitution of India, deleted Article 19(1)(f) and Article 31[Article 300-A is now the provision regarding right to property]. The current position of the Supreme Court on interpretation on the right to property can be gleaned from one of the few direct judgements on property after the 44^th Amendment, particularly the case of ‘Jilubhai Nanbhai Khachar Etc. v. State of Gujrat And Anr. Etc.’. This case dealt with mines taken by the State under legislated laws from erstwhile revenue farmers and upheld the right of the State to do so under Article 300-A, not entertaining any discussion on adequacy of compensation. Among other things, it is unequivocally held that the right to property under Article 300-A is not a “basic feature or structure of the Constitution” and that the Legislature has power to acquire the property of private person exercising the power of eminent domain by a law for public purpose.

What are the Basic Principal of Property Law?

• Immovable property does not include standing timber, growing crops or grass as per Section 3 of the Act.
• Suresh Chand v. Kundan, 2001 – a portion of land with saplings in it was sold. The seller later argues that the objection was to sell land without trees, and asked for a type of compensation for the extra gain which the other party is getting. Court held that in absence of any express/implied intention in the agreement, it would be taken that the land along with saplings standing on the land which subsequently grown into trees were sold.
• At instances of conflict between Muslim Law & Transfer of Property Act, it is the Muslim Law which shall have prominence.
• Future properties cannot be transferred, for example, Spes Successionis is a void transfer
• Muniswamy v. K. Venkataswamy – on grounds of sound public policy, total restraint on the right of alienation in respect of immovable property which prevents free circulation is to be held void.
• Section 108 of the TRANSFER OF PROPERTY ACT, 1882 enumerates the rights & liabilities of lessor & lessee.