Among
various types of ownerships, ownership of immovable property is very important.
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
Right to transfer
This
is the most important right enjoyed by the owner. It may be noted that the
right to transfer is not an absolute right enjoyed by the owner, 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 under article 31 dealing with Right to own property
and under article 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 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.
Different 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, 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. 2 lakhs (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 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 the 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. In
green belt area, only agricultural and allied activities are permitted.Permission from planning authorities is
required for any change in the land use.
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 reads
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 labourers belonging to scheduled castes and scheduled tribes
cannot be purchased without the permission of the Government. Any one 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 Directive Principles of State policy provided U/A 39(b) & 48
A of the Indian Constitution.Art 39(b)
of the Indian Constitution provides 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 IndianConstitution 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 purposes of imposing restrictions on transfer of property in the
Transfer of Property Act, 1882 are 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,
and (2) Restrictions to protect the interest of transferor creditors and
people having better title.
According
to sec.5, transfer of property could be effected 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 of the Transfer of Property 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 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.
Doctrine of Lis pendens
: Sec.
52 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.
Fraudulent transfer : Sec. 53 prohibits
transfer of property if the purpose and intention behind such transfer is to
defraud or delay payment to the creditors of the transferor.
Other restrictions : The restrictions which have
a bearing on the possession, enjoyment and transfer of immovable property are
(1) Occupant of land under Karnataka Land Reforms Act, 1961 [Sec. 48], (2)
Grantee of land under Karnataka Land Reforms Act, 1961 [Sec. 77], (3) Occupancy
not transferable without sanction of prescribed authority, Karnataka Land
Revenue Act 1964 [Sec. 100].
Purchase of property by
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 upon fulfillment of necessary
requirement. There is a blanket restriction
upon the non-resident Indians to the
effect that they cannot purchase agricultural, farm / plantation property.
More,
No comments:
Post a Comment