Jurisprudence and Legal Theories · Chapter 6
Study notes aligned to the official NEB syllabus.
Property is one of the most important ideas in every legal system. A large part of civil law is about property. It deals with who owns what. It deals with how ownership is proved. It also deals with how ownership passes from one person to another. Jurisprudence looks behind these particular rules. It asks what property really is. It asks what kinds of property the law accepts. It also asks by what methods a person gets property and passes it on.
Property (सम्पत्ति) means the legal relationship between a person and a thing. Over that thing the law gives the person certain rights. The word also means the things and rights that a person can own. In its widest sense, property covers all the rights a person has that have money value. In its narrower and common sense, it means the things a person owns. These things may be movable or immovable.
The real heart of property is not the physical thing alone. It is the bundle of rights that comes with the thing. This bundle includes the right to possess the thing. It includes the right to use and enjoy it. It includes the right to take its produce. It includes the right to keep others out. It also includes the right to dispose of the thing by sale, gift or will.
A simple example makes this clear. Suppose A owns a mango orchard. His property is not only the trees and the soil. It is the whole bundle of rights. A can live on the land. A can pick and sell the mangoes. A can keep others out. A can also sell or gift the orchard. Now suppose A leases the orchard to someone else. He gives away some of these rights for a time. But he keeps the final ownership for himself.
Property is classified in several ways. The oldest division is between movable and immovable property. Movable property (चल सम्पत्ति) is things that can be moved from place to place. Examples are goods, cash and animals. Immovable property (अचल सम्पत्ति) is things attached to the earth or forming part of it. Examples are land and buildings. The Muluki Civil Code 2074 keeps this distinction. It matters in practice. The transfer of immovable property needs registration. But a movable thing such as a bicycle can change hands by simple delivery.
A second division is between corporeal and incorporeal property. This is explained below. Property can also be public or private. Public property is owned by the state or the community. Examples are public land, forests and rivers. Private property is owned by individuals. Property can also be real or personal. Real property means rights in land. Personal property means rights in movable things. These divisions matter for a reason. Different rules of transfer, proof and protection apply to each kind.
Corporeal property (भौतिक सम्पत्ति) is property that has a physical body. It can be seen and touched. It has a material shape. Examples are land, houses, vehicles, furniture, animals and money. In simple words, it is the ownership of material things. Corporeal property is itself divided into movable and immovable. Suppose A owns a tractor and a plot of land. Both are corporeal property. The tractor is movable. The land is immovable.
Incorporeal property (अभौतिक सम्पत्ति) is property that has no physical body. It is made up of legal rights that have value. These things cannot be seen or touched. But the law protects them as property. Salmond divided incorporeal property into two classes.
The first class is rights over immaterial things (rights in re propria). This is mainly intellectual property. Examples are patents, copyrights and trademarks. Here the owner has rights over the product of his own mind. Take an author who writes a textbook. The author owns the copyright in it. The copyright is valuable property. It has no physical shape. The author may still sell it or license it to others.
The second class is rights over another person's property (rights in re aliena). These are also called encumbrances. They are rights over property that belongs to someone else. Examples are a lease, a mortgage, a servitude and an easement. A right of way (बाटोको हक) across a neighbour's field is a common example. The holder owns no part of the field. But he has a valuable property right to cross it.
The practical point is simple. Incorporeal property is intangible. Even so, it is as much property as a house or a field. This is because the law recognises the valuable rights it holds. The law protects those rights.
The modes of acquisition are the ways a person first comes to own property. Jurisprudence groups them under four main heads.
The first is possession. Here a person takes possession of a thing that belongs to no one. A thing that belongs to no one is called res nullius (अस्वामिक वस्तु). An example is catching a wild fish in an open river. Another is occupying land that is truly ownerless. By taking possession, the person may become the owner.
The second is prescription (हदम्यादको आधारमा प्राप्ति). This means gaining or losing a right through the passing of time. For example, suppose a person holds land for a long time. The holding is open and continuous. Over time this possession can ripen into ownership. In the same way, a right that is left unused for long can be lost.
The third is agreement. Here a person acquires property by a deal between the parties. Examples are sale, gift, exchange and mortgage. Suppose A buys a house from B. A acquires the house by agreement.
The fourth is inheritance (succession). Here a person acquires the property of someone who has died. The property passes to the heirs. It helps to make one distinction here. Some rights are inheritable. They pass on death to the heirs. Other rights die with the person. An example is a purely personal licence.
Transfer of property is the passing of ownership from one person to another. It happens in two broad ways.
The first way is by act of the parties. Here the owner transfers the property by his own choice. He may do this by sale, by gift (दान), by exchange or by mortgage. He may also do it by a will that takes effect on his death.
The second way is by operation of law. Here ownership passes without any voluntary act of the owner. This happens on inheritance when the owner dies. It happens on partition (अंशबण्डा) of joint family property. It also happens on insolvency and on court execution.
An example shows the difference. Suppose A sells his land to B. In Nepal the Muluki Civil Code 2074 has a rule for this. The transfer of immovable property must be made in writing. It must also be registered (राजीनामा पारित / दर्ता). Only then is it valid. Only then does the title pass. So ownership is treated as changing at the point of registration. This gives the deal certainty. It also gives public notice of the change. Now compare a movable thing. Suppose A simply hands his watch to B as a gift. The watch passes by delivery alone.
The Code recognises acquisition by purchase, by gift, by inheritance and by partition. So the law does two things. It lists the ways property is gained. It also lays down the formalities for transfer. The most important formality is the registration of land. Through these rules, ownership is transferred in a lawful way.