Unit V Property

5.1: Meaning and concept of property

• The term property is derived from the Latin term

Propertietat and the French equivalent Proprius which
means 'a thing owned'.
• Property is the object over which one has the exclusive righ
of ownership, control and disposal.
disposal
• The concept of property without ownership correlative term
to each other wherein there can be no property without
ownership and vice versa.
• Any things or object without ownership is not considered as
property.
• It means the right over the things or goods which crates
ownership to a person is known as property.
• Broadly speaking the term property includes all sorts o
proprietary rights as well as personal rights possessed by a
person.
• According to The Civil Code 2074,
2074 the term property means
any movable or immovable property.
property
• The term property has different meanings. In the
narrowest sense, property includes nothing more than
physical objects or things which are owned.
• In this sense it was defined as a material object
subject to the immediate power of a person. Bentham
holds that property related to material things only
• In the widest sense the term 'property' includes al
legal rights of a person.
• It means the sum total of a man's fortune including
not only the objects of which he is owner but also the
value of any claims which he may have against other
persons after deduction the amount of any claims
which might be made good against him .
Definition

Jeremy Bentham:: Property is nothing more than the basis of a certain

expectation of deriving hereafter certain advantages from a thin b
reason of the relation in which we stand towards it.
Austin:: Property means the whole of the assets of a man including
both his proprietary as well as personal right.
Immanuel Kant: Property is a part of human personality.
Blackstone: Property consists in free use, enjoyment and disposal of
all acquisition without control on diminution save only by the law of
the land.
The Civil Code 2074 sec 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.
5.2: Kinds of Property

A.Based on Categories
• Moveable property
• Immoveable property
Moveable Property
• The Civil code 2074 sec 254. Property deemed to be
movable:: The following property shall be deemed to be a
movable property:
• Cash or goods that can be transacted as cash or foreign
currency,
• Gold, silver, jewelry, Ratna,, gold or silver ornament or
precious stone,
• Other good that can be moved from one place to another,
except those referred in clause (a) or (b),
• A bond, security, promissory note, bill of exchange, letter of
credit or other negotiable instrument or a benefit derived
therefrom,
• Intellectual property,
• A right in security,
• A trade good-will or franchise
• A property other than the immovable property.
mmoveable Property

• The Civil code 2074 sec 253. Property deemed to be

immovable: The following property shall be deemed
to be an immovable property:
• (a) A building or land or structure fixed thereto,
• (b) Any goods attached to a building or land
permanently,
• (c) A mine, stone or mineral embedded in land,
• (d) Natural water, surface water and underground water,
• (e) A building or other structure so made permanently that
it can float over a river, lake or pond,
• (f) A standing tree, plant or fruit tree or fruit or flower
growing on such a tree, plant or fruit tree or crops in the
land, or
• (g) A movable property attached to an immovable property
B: Based on Ownership

Private property
Property in common
Joint property
Community Property
Public Property
Government property
Trust Property
Private property

Property earned by way of his or her knowledge, skills or effort,

effort
Property acquired by way of donation, bequeath, or succession,
succession
Property acquired by way of a lottery or gift,
Property acquired by way of remuneration, gratuity, pension, medical
expense, provident fund, insurance or other social security,
security
Property acquired by way of intellectual property or royalty,
royalty
woman prior to marriage or acquired from her parental side at the
time of marriage or accrued therefrom,
Common Property

Property inherited from ancestors,

ancestors
Property owned by the coparceners except the private property,
Property earned by the coparceners from the farming, industry, trade
or business in common or property accrued therefrom.
Except where separated in accordance with law, any property earned
by the husband or wife or property accrued therefrom shall be
deemed to be the property in common of the husband or wife.
property earned by the parents for the purpose of partition between
the parents and their children
Joint property:

Any property owned by two or more persons except the coparceners

living in a joint family or property accrued therefrom shall be deemed
to be a joint property.
The right or share of a joint holder in the joint property shall be as
set forth in a deed setting out such rights and share, and failing such a
deed, the holders of that property shall be deemed to have equal
rights and share.
Trees, plants or goods on boundary to be deemed joint property:
property
Government Property
(a) Government houses, buildings or lands,
(b) Roads, paths or railways,
(c) Forests, or trees or trees, bushes in forests,
(d) Rivers, rivulets, streams, lakes, ponds and banks thereof,
(e) Canals, ditches or uncultivated, barren lands,
(f) Mines or minerals,
(g) Himalaya, mountains, rocks, sandy lands, public gardens,
(h) Any Property other than a public, community, trust property or
any one's propert
Public Property
(a) Houses, lands, sewerage or roads having been used since ancient times,
(b) Wells, water conduits, shores, ponds and banks thereof
(c) Exits for chattels, pasture lands, Kharka,
Kharka graveyards, Chihan,
Samadhisthal, Kabristan and lands where these are located,
(d) Inns, Pauwas, Dewals,, religious meditation sites, memorials, temples,
shrines, Chaitya,, monasteries, Stupas, churches, Chowk, Dawali, Chautari
or lands where these are located,
(e) Lands where fairs, markets and public entertainment or sports sites are
located,
(f) Private property provided by any person for public purposes,
(g) Such other property as prescribed to be the public property by the
Government of Nepal, by a notification in the Nepal Gazette
Community Property
Any land held by a community for its use, any structure built in such
land or other property owned by it shall be deemed to be the
community property.
Modes of Acquisition of Property

There are four distinct modes of the acquisition of property

possession,
prescription,
agreement, and
inheritance.
Possession
Possession means Physical Control over a thing or an object. It is
prima facie evidence of ownership. The property which belongs to no
one is res nullius,, belongs to the first possessor of it and he acquires a
valid title to it as against the world.
If Property belongs to nobody, the person who captures and
possesses it. He/she becomes sole owner. For example, example, the
birds of the air and the fish of the sea are the property of that person
who first catches them.
• Property acquired by adverse possessory. (Sec. 273)
Prescription:

Property acquired or destructed due to lapse of time.

According to Salmond:: "Prescription may be defined as the effect of
lapse of time in creating and destroying rights; it is the operation of
time as a vestitive fact.
Prescription is the mode of creating and destroying rights by the
effect of the lapse of time.
Prescription is the following two types:-
types:
• 1.. Positive or Acquisitive prescription(Sakaratmak
prescription( or Aarjanatmak)
• 2.. Negative or Extinctive prescription (Nakaratmak
( or Samapanmulak)
Positive or Acquisitive prescription- when the right is created by lapse of
time.
Property acquired by continue de facto use of it until the period prescribed
by law.
In Nepal, any movable property for 3 years and for immovable property
over 30 years.
Negative Negative or Extinctive Extinctive prescription prescription-
When a right already existing is destroyed due to its no exercise for
prescribed period is called Negative or Extinctive prescription. For example
Time barred debt.
In Nepal, Sec. 484 Period of deed executed in household:-
household: Payment within
the period of ten years.
Agreements:

Agreement- Property may also be acquired by agreement which is

enforceable by law.
The owner of a right can transfer his rights in property to another
with or without consideration.
If it is for consideration it is called a sale and if it is without without
consideration it is called a gift
nheritance:

Another method of acquiring property is by means of inheritance.

When a person dies certain rights survive him and pass on to his heirs
and successors.
After real owner’s death it transfers to his inherent or others who is
near of previous owner.
Property Law in Nepal

Partition (aungsabanda)
(1) Each coparcener shall have equal entitlement to partition share.
(2) If a woman coparcener is pregnant at the time of partition, and
the baby to be delivered by her is to become a coparcener,
(3) If the pregnant woman under sub-section
sub (2) does not deliver a
live baby, the partition share set aside for such a baby shall be divided
equally between the other coparceners.
Cont.
Son and daughter born from couple whose matrimonial relationship is dissolved
to obtain partition share:
To obtain partition share from mother
To obtain partition share from part of father or husband:
Latter wife or child to obtain partition share from part of husband or father:
Right to obtain partition share:
Separation may be effected at any time:
Husband or wife may get separated by obtaining partition share
Widow may effect separation by taking her partition share
Relinquishment of partition share etc (see Chapter 10 Provision relating to
partition)
nheritance (Aputali)

The National Civil Code 2074 sec 237. Inheritance deemed to be

opened:: Upon the death of a person, succession to his or her
property shall be deemed to be opened.
Explanation: For the purposes of this Chapter, the term "Inheritance"
means devolution of liabilities and rights in regard to debt, wealth
and property of the deceased upon his or her heirs in accordance
with law
The National Civil Code 2074 sec 238.
238 Heir entitled to Inheritance:
Where inheritance to a person's property is opened, his or her
nearest heir shall be entitled to such inheritance.
The National Civil Code 2074 sec 239.
239 Order of preference of heirs for
succession: (1) The order of preference of nearest heirs for succession shall
subject to the other Sections of this Chapter, be as follows:
(a) Husband or wife living in the undivided family,
(b) Son, daughter, widow daughter-in in-law living in the undivided family,
(c) Father, mother, step mother, grand-son,
grand granddaughter, grand-
daughter-in-law,
law, on the side of son or daughter, living in the undivided
family,
(d) Separated husband, wife, son, daughter, father, mother, step-mother,
step
(e) Separated grand-son, grand-daughter
daughter from the son's generation,
(f) Separated grand-father, grand-mother,
mother,
(g) Grand-father, grand-mother,
mother, elder brother, younger brother, elder
sister, younger sister, widow elder brother’s wife or younger brother’s
wife living in the undivided family,
(h) Uncle, aunt, nephew, niece, living in the joint family,
(i)) Separated elder brother, younger brother, elder sister, younger
sister, widow elder brother's wife or younger brother's wife.
Cont.
Distant heir entitled to succession:
Maintaining and caretaking heir entitled to succession:
Separated heir entitled to succession
Maintaining and caretaking person entitled to succession
Not to be obliged to accept succession:
Disqualified for succession
Obligations and rights of person upon whom succession is devolved:
Creditor may recover debt
Local Level to receive property under succession
Succession to property of foreigner died in Nepal: (See detail in Chapter 11
provision relating to Inheritance)
Modes of transfer of property in Nepal

By selling
By donation
by giving gift
finder of lost goods
by giving to trust
by the acquisition tha is done by the government under the law
by operation of law
by death
by insolvency
by adverse possession