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Among
various types of ownerships, the ownership of the immovable property is very
important. The ownership of the
immovable property is classified into free hold and lease hold. Free hold is absolute ownership, which means
the owner has full freedom to deal with the property as he likes without any
restrictions.
The
three important rights enjoyed by owner of property are: 1. Right to use, 2)
Right to destroy and 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 absolute right, but it is subject to restrictions imposed by the
law. In this regard the first and
foremost important restriction flows from the constitution of India . Before 44th amendment to the
Indian Constitution, Right to property was 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, which provided that any
law including rules regulations, notifications, ordinance etc., to the extent
they violate fundamental right are void.
This
protection has come to an end by 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.
Agricultural
land:
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 Karnataka land Reforms
Act, 1961. The limit prescribed depends
upon the type of land. If the holdings
are in excess of prescribe limits, the excess holdings will vest with the
government of Karnataka. The Karnataka
Land Reforms generally prohibits transfer of agricultural property to Non
Agriculturists and Persons having source of income more than Rs. 2 lakh
(average for last 5 year income) from non-agricultural sources.
Though
agricultural property cannot be transferred to non-agriculturists. Karnataka land Revenue Act provides for
conversion of agricultural land to non-agricultural land 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 and for the purpose of company. 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 and Central or State Government
and other government agencies like BDA, KIDB, 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 that can be carried out in such zones. The owners have to comply with such
prescribed area, permission from planning authorities required for any change. In green belt area only agricultural and
allied activities are permitted and the conversion of land is allowed.
PTCL
Act:
The
important social welfare Act with regard to Transfer of property is “The
Karnataka SC & ST (PTCL) Act, 1978, i.e., 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 Government. Any one who purchases such property will not
get clear and marketable title; such property will be acquired by Government
and returned to original owner.”
These
restrictions on the transfer of property are social in nature i.e., to give
effect to importance Directive principle of State policy provided u/A 39(b)
& 48 A of the Indian Constitution.
Art 39(b) of the Indian Constitution provides that:
1) That the ownership and control of
the material resources of the community are so distributed as best to sub serve
the common good. Article 48 A in the
Indian constitution provides that.
2) The state shall endeavor to
protect and improve the environment and to safeguard the forests and wild life
of the country.
Transfer
of Property Act
In
the Transfer of property Act there are certain partial restrictions on the
transfer of property.
Sec.
52 – Doctrine of lispendens which provides that if any suit relating to
immovable property is pending in competent court and during such pendency if,
property is transferred such transfer is subject to decision given by the
court.
Sec.
53 – which deals with fraudulent transfer, prohibits of transfer of property if
the purpose and intention behind such transfer to defraud or delay the
creditors of the transferor:
But
Sec 10 in the T.P. Act provides that any condition imposed by Transferor to
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, 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 belonging to 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.
In
T.P. Act very important restriction is transfer of property to unborn person,
under section 5, where the transfer of property is between living persons
only. But Sec 13 provides for transfer
of property to some other person for the benefit of such unborn person.
Purpose
of imposing restrictions on Transfer of property in the Transfer of property
Act, 1882 are for: To protect the interests of creditors, To protect the
interest of persons having better title to the property. To prevent property being removed from trade
and commerce. To sum up, broadly 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.
The
other restrictions are: Sect, 48A: Occupant of land under Karnataka land
Reforms Act 1961, Sec: 77: Grantee of land under Karnataka Land Reforms Act
1961, Sec: 100: Occupancy not transferable without sanction of prescribed
authority Karnataka Land Revenue Act 1961.
Purchase
of property NRI / POI:
Lastly
foreign national of non-Indian Origin resident outside India cannot purchase any immovable property in India . Whereas 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 they cannot purchase agricultural,
Farm / plantation property. In this
regard Non-resident of 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
Passports) or who are persons of Indian Origin.
This freedom is available for buying residential or commercial property.
Persons
of Indian Origin means persons one who hold an Indian Passport any time earlier
or whose father or grandfather was a citizen of India .
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