Civil and Criminal Law and Justice · Chapter 2
Study notes aligned to the official NEB syllabus.
Property is anything that a person can legally own. The owner has the right to keep it, use it, and give it away. In law, property is not valued just as a physical thing. It is valued for the set of rights that come with it. These rights include the right to possess the thing. They include the right to use and enjoy it. They include the right to earn income from it. They also include the right to pass it to someone else by sale, gift or inheritance.
The Muluki Civil Code 2074 (2017) treats the right to property as a very important civil right. It says who can own property. It says how ownership passes from one person to another. It also says how disputes over property are settled. This follows the Constitution, which gives every citizen the right to property.
Property is sorted in two main ways. The first way looks at the physical nature of the property. There are two kinds here. Movable property (चल सम्पत्ति) is anything that can be moved. Money, vehicles, jewellery, crops and goods are movable. Immovable property (अचल सम्पत्ति) is property that cannot be moved. Land, houses, and things fixed to the land are immovable.
This difference matters. To transfer immovable property, you usually need a written deed. The deed must be registered. Movable property can often pass just by handing it over. For example, say Ram sells his motorcycle to Shyam. Handing over the motorcycle can complete the sale. But say Ram sells his field. The sale works only through a registered deed. The land records must also be changed into the buyer's name. This record change is called mutation.
The second way of sorting property is important in Nepali family law. It looks at where the property came from. There are two kinds here. Ancestral or coparcenary property (पैतृक सम्पत्ति) comes down the family line. In this property, family members have a right by birth. Self-acquired property (आर्जित सम्पत्ति) is property a person earns or gains by their own effort. The owner has more freedom over self-acquired property. For example, land inherited from a grandfather is ancestral. A flat bought with your own salary is self-acquired.
There is one more common division. Tangible property has a physical form, like land or a car. Intangible property has no physical form. Debts owed to you, company shares, and intellectual property rights are intangible.
Partition (अंशबण्डा) means dividing the joint family property. The property is shared among the family members who have a right to it. These members are called coparceners (अंशियार). A coparcener is a family member who has a right to a share. Each coparcener takes a separate share in their own name.
Under the Muluki Civil Code 2074, the coparceners are, broadly, the husband, wife, father, mother, son and daughter living in the joint family. On partition, they all get equal shares of the joint property. The Code brought one big reform here. A son and a daughter now have an equal right in ancestral property. A daughter no longer gets a smaller share than a son.
Here is an example. Think of a family with a father, a mother, one son and one daughter. They hold ancestral land together. On partition, the land is divided into four equal shares. The daughter gets the same share as the son.
Any coparcener can ask for partition. The partition is written down in a partition deed (अंशबण्डाको लिखत). This deed lists the property and each person's share. The property here is immovable, so the deed must be registered. The land records are then changed by mutation (दाखिल खारेज). This is done at the land revenue office (मालपोत कार्यालय). Each sharer's name is entered against their own portion.
After partition, a separated coparcener holds their share free of the others. But the family's debts are also divided along with the property. So if the family owed a loan, each sharer carries a fair part of that loan. Sometimes the coparceners cannot agree on the division. In that case, any one of them can go to court. The court then divides the property using the same equal-share rule.
Succession (अपुताली) decides what happens to a person's property when they die. It applies when the person did not partition the property during their lifetime. The Muluki Civil Code 2074 sets an order of heirs. An heir is a person who has a right to inherit. This order is based on how close the relationship is. The property goes first to the closest family members. These are people like the spouse, sons and daughters, and other near relatives in the household. It goes to more distant relatives only if the near ones do not exist. Sons and daughters inherit equally.
Here is an example. Say a man dies. He owns a house that he never partitioned. He leaves a widow, a son and a daughter. These three share the house as the nearest heirs. The son and daughter take equal shares. The law would look to more distant relatives only if there were no near heirs at all.
Sometimes a person dies leaving no heir at all within the recognised degrees of relationship. The property does not stay ownerless. It passes to the Government of Nepal (नेपाल सरकार). This passing to the state is called escheat. So succession makes sure property always has a lawful owner. It also puts the family's claim first, before the state's claim.
In the past, Nepali law recognised a separate kind of property owned by a woman. It was called स्त्रीधन. Two related terms were पेवा and दाइजो. A woman had special rights over this property. The Muluki Civil Code 2074 has mostly replaced this with equality. A woman is now a coparcener in her own right. She has an equal share in family and ancestral property, the same as male members. She is no longer limited to a separate women's fund.
Under the Code, a wife shares in the husband's property. A daughter inherits equally with a son. Any property a woman earns or gains herself is her self-acquired property. She can deal with it freely.
Here is how the change looks. Under the old thinking, a daughter might get only a small separate fund. Under the Code, this is different. Take a family with two children. On partition, the daughter takes the same share of the ancestral land as her brother. A wife shares in the family property too. She no longer depends only on a separate स्त्रीधन. This change follows the Constitution. The Constitution guarantees equal property rights for women. It also bans discrimination based on sex.
A gift is a transfer of property made freely. It is made without consideration. This means the giver gets no payment in return. Nepali usage has two words here. दान is an outright charitable or religious gift. बकस is a grant or gift of property to a chosen person.
Under the Muluki Civil Code 2074, the owner of self-acquired property may gift it. A gift of immovable property must be made by a registered deed. The deed is what makes the gift valid and transfers the title. A gift of movable property is complete when it is handed over and accepted.
Here is an example. Say an elderly woman wants to give her own house to her grandson out of love. She makes a बकस by a registered deed. After that, the land records are changed into the grandson's name. Now compare a gold chain. She can gift the chain simply by handing it over with the intention to give.
One word of caution. दाइजो (dowry) is sometimes loosely called a gift. But in law it is different. It is a distinct and restricted practice. Nepal's social-reform laws discourage and regulate it. Do not confuse दाइजो with a lawful दान or बकस.