Property laws

The Indian Constitution does not recognize property right as a fundamental right. In the year 1977, the 44th amendment eliminated the right to acquire, hold and dispose of property as a fundamental right. However, in another part of the Constitution, Article 300 (A) was inserted to affirm that no person shall be deprived of his property save by authority of law. The result is that the right to property as a fundamental right is now substituted as a statutory right.

Central Laws which affect acquisition, holding of and disposal off an immovable property in India are the Transfer of Property Act, 1908, Indian Contract Act, 1872, Specific Relief Act, 1963, Urban Land (Ceiling & Regulation) Act, 1976, Land Acquisition Act, 1894, certain provisions of the Income Tax Act which obliges parties in certain metropolitan cities to obtain prior permission of the Income tax authorities for acquiring or giving up or transferring the property above a particular value. The State Acts, which would affect a real property transaction, are Stamp Laws of each State, Rent Laws of each State, etc.

Transfer of Property Act, 1882 governs transfer of property from one person to another. Under the Transfer of Property Act, property of any kind may be transferred. Every person who is competent to contract is competent to transfer property. The transfer may be in whole or in part. He should be entitled to the transferable property, or authorised to dispose off a transferable property which is not his own. The right may be either absolute or conditional. The property may be movable or immovable, present or future. Such transfer can be made orally, unless a transfer in writing is specifically required under any law. A transfer of property passes forthwith to the transferee, all the interest which the transferor is then capable of passing in the property, unless a different intention is expressed or implied.

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