Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore
The ownership of
immovable property is classified into freehold and leasehold. Freehold rights
would provide the owner an absolute ownership of such property. This means that
the owner has full freedom to deal with the property as he likes without any restrictions.
Under leasehold right, the lessee does not get any right of ownership, but only
a right of possession and enjoyment subject to the restrictions imposed by the
lessor.The three important rights enjoyed by the owner of property are:
1) Right to use
2) Right to
destroy and
3) Right to
transfer
No Fundamental Right:
The important
right is the right to transfer. It may be noted that this right to transfer is
not an absolute right, but it is subject to the restrictions imposed by the law. In this regard the first and foremost important restriction flows from the
Constitution of India.Before the 44th amendment to the Indian Constitution,
Right to property was a fundamental
right u/a 31 dealing with Right to own property and u/a 19(1)(f) dealing with
Right to dispose and enjoy property.These two rights were protected by Art 13
(1) (2) in the Indian Constitution,whichprovided that any law including
rules,regulations, notifications, ordinance etc. to the extent they violate
fundamental rights are void.
This protection
has come to an end by the 44th Amendment,deleting Right to property in the
chapter of Fundamental rights and placing it in the ordinary rights chapter
i.e. Art 300 A.Thus, the right to property, more so of immovable property, is
no more a fundamental right.
Various States
have enacted laws, imposing restrictions on the rights of the owner of the
property.The Government of Karnataka
has prescribed certain ceiling on holding of the agricultural property by
persons, companies, societies etc. under the Karnataka Land Reforms Act, 1961.The limit prescribed depends upon the type of land. If the holdings are in
excess of prescribed limits, the excess of the holdings will vest with the
Government of Karnataka.The Karnataka Land Reforms Act generally prohibits
transfer of agricultural property to non-agriculturists and persons having source
of income more than Rs.2lakhs(average for last 5 year income) from
non-agricultural sources. agricultural property cannot be transferred to
non-agriculturists, Karnataka Land Revenue Act provides for conversion of
agricultural land to non agricultural land and such converted land can be
transferred to non-agriculturists.
Land Acquisition:
There is another
important legislation i.e., Land Acquisition Act, 1898, which provides for
acquisition of property for public purpose. Once the Government issues
preliminary notification for the acquisition of such land,whether agricultural
or non-agricultural,such property cannot be transferred to any other person.Here again,authorities competent to acquire property are the Central or State
Government and other Government agencies like BDA, KIADB, KHB etc.
Zonal Regulation:
The
Comprehensive Development Plan has categorized the areas into various zones
like residential, commercial,industrial, green belt area etc., and has also
prescribed the various activities which can be carried on in such zones.
Permission from planning authorities is required for any change in the land
use. In green belt area, only agricultural and allied activities are permitted.
PTCL Act:
The important
social welfare Act with regard to Transfer of property is “The Karnataka SC
& ST (PTCL) Act, 1978. The preamble of the Act provides that “An Act to
provide for the prohibition of transfer of certain lands granted by the
government to persons belonging to the scheduled castes and scheduled tribes in
the state, which means any land granted to the landless agricultural laborers
belonging to scheduled castes and scheduled tribes cannot be purchased without
the permission of the Government. Anyone who purchases such a property will not
get clear and marketable title; such property will be eventually acquired by
Government and returned to the original owner without any compensation to the
purchaser.”
These
restrictions on the transfer of property are social in nature i.e., to give
effect to the importance of Directive Principles of State policy provided u/a
39(b) & 48A of the Indian Constitution Art 39(b) of the Indian Constitution
provides that:
1)The ownership
and control of the material resources of the community are so distributed as
best to sub-serve the common good.
2)Article 48 A
in the Indian Constitution provides that the state shall endeavor to protect and
improve the environment and to safeguard the forests and wildlife of the
country.
Transfer of Property Act :
In the Transfer
of Property Act, there are certain restrictions on the transfer of property.
The purpose of imposing restrictions on transfer of property in the Transfer of
Property Act, 1882 is to protect the interests of creditors and persons having
better title to the property and to prevent property being removed from trade
and commerce.
There are two
kinds of restrictions on the transfer of property.They are:
(1) Restrictions
to protect the society as a whole,
(2) Restrictions
to protect the interest of transferor creditors and people having better title.
According to sec.5, transfer of property could be affected only between living persons and
hence no property can be transferred to an unborn person. However, Sec 13
provides for transfer of property to any living person to be held for the
benefit of such unborn person.
Sec. 10 in the
T.P. Act provides that any condition imposed by the Transferor to the
Transferee absolutely from parting with or disposing of his interest in the
property is void.This provision facilitates transfer of property by transfer
without any restrictions.However, the
Act allows temporary restrictions. Various development authorities and
societies restrict alienation for some period. This freedom of transferee can
be curtailed in case of lease for the benefit of lessor, property transferred
to woman, for the benefit of woman not being a Hindu, Mohammedan or Buddhist,
so that she shall not have power during her marriage to transfer or charge the same
or her beneficial interest thereon.
Sec. 52 –
Doctrine of Lispendens, which provides that if any suit relating to immovable
property is pending in a competent court of law and during such pendency, if
property is transferred, such transfer is subject to decision given by the
court.
Sec. 53 deals
with fraudulent transfer. It prohibits transfer of property if the purpose and
intention behind such transfer is to defraud or delay payment to the creditors
of the transferor.
The other
restrictions are:Occupant of land under Karnataka Land Reforms Act, 1961 [Sec.
48], Grantee of land under Karnataka Land Reforms Act, 1961 [Sec. 77],
Occupancy not transferable without sanction of prescribed authority, Karnataka
Land Revenue Act 1964 [Sec. 100].
Purchase of property NRI / POI:
Foreign
nationals of non-Indian origin residing outside India cannot purchase any
immovable property in India. Persons of Indian origin means persons who held an
Indian Passport any time earlier or whose father or grandfather was a citizen
of India.
Non-resident
Indians can purchase residential and commercial properties without any
restriction on ceiling on the number of properties.The only restriction on the non-resident
Indians is that they cannot purchase agricultural,farm/plantation property.
In this regard non-resident Indians need not have to send any document or
statement to Reserve Bank of India, Government of India or to any bank—before,
during or after such purchase. This freedom is available to all non-residents
who are either citizens of India (i.e., holding Indian Passport) or who are
persons of Indian origin.This freedom
is available for buying residential or commercial property.
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