LLB Notes & RELATED TO LAWS: Property Law Notes

Unit 1: Introduction of the Law of Property

Meaning of the Term Property

Property refers to any tangible, intangible, corporeal, incorporeal, touchable, or untouchable thing with physical value, as well as objects that enjoy full rights like copyright, patent, and design, and the rights holders who possess property rights. These things are also capable of being transferred through various mediums. Any tangible or intangible item that is under someone's ownership and has utility with monetary value is considered property. Thus, the following three elements are necessary for a thing to be considered property:

It must be a tangible or intangible thing.
Such a thing must have some utility.
Such a thing must have some physical value.

Property is defined in Article 25 of the Constitution of Nepal (2015). According to it, "Property means all forms of property including movable and immovable property, and the term also includes intellectual property."

Theories of Property

1. Natural Law Theory

2. Philosophical Theory

3. Labor Theory

4. Historical Theory

5. State-Created Theory

6. Psychological Theory

7. Functional Theory

8. Theory of Diminishing Utility

Kinds of Property

1. Tangible Property (Bhautik Sampatti)

(a) Immovable Property (Achal Sampatti)

(b) Movable Property (Chal Sampatti)

2. Intangible Property (Abhautik Sampatti)

(a) Rights over property/things (Par bastu mathiko adhikar):

i. Mortgage (Dhito)

ii. Easement (Suvidhadhikar)

iii. Lease (Patta)

iv. Trust/Guthi (Guthi)

(a) Property rights over intangible things (Abhautik bastu ma mathi sampatti adhikar):

i. Patent

ii. Copyright (Pratilipi Adhikar)

iii. Trademark

According to Section (dafa) 255 of Part (Bhag) 4, Chapter (parichhed) 1 of the Civil Code, 2017 (Muluki Dewani Sanhita, 2074) regarding provisions related to property, the classification of property based on ownership and the nature of its use is as follows:

i. Private Property (Niji Sampatti)

ii. Joint Family Property (Sagolko Sampatti)

iii. Joint Property (Sanyukta Sampatti)

iv. Community Property (Samudayik Sampatti)

v. Public Property (Sarvajanik Sampatti)

vi. Government Property (Sarkari Sampatti)

vii. Trust Property (Guthiko Sampatti)

Intellectual Property

Property acquired on the basis of thought, sacrifice, penance/dedication. Mental activity remains active in this, and it is earned on the basis of knowledge, intellect, and wisdom.

· Patent

· Design

· Trademark

· Goodwill (Khyati)

· Copyright (Pratilipi Adhikar)

Unit 2: Modes of Acquisition and Transfer of Property

1. Possession (Kabja)

Possession is control over a physical object to establish ownership. In ancient times, property had less importance; people possessed whatever goods and materials they needed or wanted, and whoever possessed it, that property became theirs. The word possession was started by the Romans. They initially kept things that were not under anyone's control; whoever controlled it, it remained in their possession. If there is actual or legal ownership over a thing, that person becomes its owner.

Possession is also of 2 types:

(a) Actual possession

(b) Constructive possession

2. Prescription (Chirbhog)

When a certain period has passed since a person has continuously enjoyed/used any property, the right of ownership over that property given to the user based on that enjoyment is called prescription. According to the famous jurist Salmond, prescription is that method which creates and terminates rights due to the passage of time. Therefore, time also plays an important role in this. Literally, prescription is understood as enjoying/using for a long period of time.

Prescription is also divided into two parts:

i. Positive or property-acquiring prescription

ii. Negative or property-destroying prescription

3. Agreement (Samjhauta)

An agreement is an assent between two or more parties to do or not to do any act. Thus, while making an agreement, the responsibilities to be borne by both parties and the rights of both parties are mentioned. Ownership over property is obtained from such agreements. For example: resignation letter, deed of sale, etc., are examples of this. Based on the recognition of property, an agreement can be divided into 2 parts:

(i) Assignment or transfer

(ii) Grant

4. Inheritance (Aputali)

Inheritance is the method by which property under a person's ownership, possession, or enjoyment is transferred to a new user after their demise, with the aim that vacancy does not arise for the user of that property. Therefore, a person has a right over their property, and by enjoying that property, they become its owner. The process by which the ownership of property is transferred to the owner's nearest relative (heir) after the owner's death is called inheritance.

Transfer of Property

According to the law, various provisions have been made to transfer property, which are as follows:

· Through partition of property (Anshabanda)

· Through gift/donation deed (Bakaspatra)

· By granting a deed of relinquishment, usufructuary mortgage, simple mortgage, or lease mortgage (Rajinama, Bhog Bandhak, Dristibandhak, or Lakhabandhak)

· By transferring title/rights over one's property in any other manner

· Through auction sale (Lilam Bikri)

· By transferring through any other method

Unit 3: Constitutional Position of Property Rights in Nepal

The constitution guarantees the freedom to acquire, enjoy, and sell property. Furthermore, according to the provisions mentioned in the clauses of the constitution, a constitutional right refers to the authority to directly establish one's right through the Supreme Court via a writ petition.

The constitutional provisions regarding property are as follows:

1. Interim Government of Nepal Act, 1951 (2007 BS)

It provided a constitutional right for citizens to acquire, enjoy, and sell property, and to engage in any profession, employment, industry, or trade, ensuring that the ownership and control of the material resources of the community are distributed in a way that best serves the public good.

2. Constitution of the Kingdom of Nepal, 1959 (2015 BS)

Article 6, Right to Property: "No person shall be deprived of their property save in accordance with the law." It guaranteed every citizen the right to acquire, enjoy, possess, sell, or otherwise dispose of property.

3. Constitution of Nepal, 1962 (2019 BS)

· Article 11 (2)(e): Grants freedom to all citizens of Nepal to earn, enjoy, and sell property.

· Article 15: Provides a constitutional guarantee stating, "No person shall be deprived of their property save in accordance with the law."

4. Constitution of the Kingdom of Nepal, 1990 (2047 BS)

Article 17 of the Constitution of the Kingdom of Nepal, 1990, included the right to property as a fundamental right, providing it with constitutional backing. It also stipulated that the state could acquire land for public purposes only after distributing fair compensation in accordance with the law.

5. Interim Constitution of Nepal, 2007 (2063 BS)

· Article 19, Right to Property: Every citizen shall, subject to the laws in force, have the right to acquire, enjoy, sell, and otherwise dispose of property.

· Article 32: Right to Constitutional Remedies: The right to initiate proceedings in the manner set forth in Article 107 for the enforcement of the rights conferred by this Part is guaranteed.

· Article 107: Jurisdiction of the Supreme Court

6. Constitution of Nepal, 2015 (2072 BS)

Article 25, Right to Property: (1) Every citizen shall, subject to law, have the right to acquire, enjoy, sell, exercise professional rights, and otherwise dispose of property. Provided that the State may levy tax on the property of a person, and manage taxation on income of a person in accordance with the concept of progressive taxation.

Unit 4: Property Law in Nepal

Hidden Treasure (Kalyandhan)

Hidden treasure refers to unclaimed money, buried wealth, or treasures hidden underground anywhere. No property can be without an owner, because the owner of any property can be either the state or an individual. Jurisprudence establishes this rule regarding ownership. Prior to knowing who holds the actual ownership, different countries maintained distinct legal provisions. While specific provisions regarding hidden treasure are not explicitly outlined in the current Civil Code, 2017 (Muluki Dewani Sanhita, 2074), legal provisions regarding hidden treasure did exist in the previous Muluki Ain.

Legal Provision on Trust (Guthiko)

The word Guthi is derived from the Sanskrit word Gosthi. In a general sense, property kept to support a philanthropic organization, public entity, cultural tradition, or to ease the financial aspects of carrying out traditions is called Guthi.

According to Section 2(g) of the Guthi Corporation Act, 1976 (2033 BS), "Guthi means a trust relinquished by a donor of their rights over movable or immovable property or income-yielding property or funds for operating festivals, worship, or processions of any monastery or deity, or for operating religious or philanthropic works like constructing or running temples, shrines, rest houses (Dharmashala, Pati Pauwa), wells, ponds, lakes, roads, bridges, platforms (Chautara), grazing lands, gardens, forests, libraries, schools, dispensaries, hospitals, or institutions, or for maintaining them." Legal provisions relating to Guthi are managed under Chapter 6 of Part 4 (Property Law) of the current Civil Code, 2017 (Muluki Dewani Sanhita, 2074).

Legal Provisions Relating to Land Cultivation (Jagga Awad Garneko)

Land cultivation means the act of digging, tilling, or reclaiming barren or uncultivated land. In the chapters of the previous Muluki Ain, provisions were made regarding water canals, maintenance obligations, bringing water canals to new land, applying for new land cultivation, and resolving disputes over non-registrable lands. In the current Civil Code, 2017 (Muluki Dewani Sanhita, 2074), Part 4, Chapter 4 manages provisions relating to land cultivation, possession/enjoyment, and registration.

Legal Provision on Land Arrangement (Jagga Pajaniko)

The legal doctrine stating that land registered under one person's name cannot be taken or used by another party is known as Jagga Pajani. Accordingly, a person cannot take or attempt to take another's land to make it their own. If such an attempt is discovered, a lawsuit must be filed within 6 months from the date of knowledge. After that period, no legal case can be initiated. In the Jagga Pajani chapter of the previous Muluki Ain, provisions were made regarding transfer of ownership (Dakhil Kharej), updating registration records, relinquishing land, the duties and liabilities of local revenue collectors (Talukdar), methods of selecting Talukdars, and dispute settlements.

Legal Provisions Against Land Encroachment (Jagga Michneko)

Land encroachment means violating land boundaries or encroaching upon another person's land. The prevailing principle dictates that every individual must utilize their own land properly without encroaching upon their neighbor's property. Regarding land encroachment, provisions were made in Chapter 10 of the previous Muluki Ain. In the current Civil Code, 2017 (Muluki Dewani Sanhita, 2074), provisions are integrated across various sections of Part 4, Chapter 3 regarding the enjoyment of property.

Legal Provision on House Construction (Ghar Banauneko)

A house is an absolute necessity for human habitation. Shelter is just as essential to a human being as food (Gaas) and clothing (Kapas). Therefore, constitutional provisions protect citizens' lives, bodies, and housing. When constructing a shelter (building a house), everyone must respect the law and exercise their rights in a manner that does not violate the rights of others. Although the current Civil Code, 2017, does not have a completely separate standalone chapter for this, Part 4, Chapter 3 sets out matters to consider during house construction under property enjoyment provisions, alongside legal consequences if a house is built on land where the builder has no legal right.

Legal Provision on Partition (Ansha Banda)

Partition refers to the act of dividing ancestral property among legal heirs (Ashiyar). It denotes the process of distributing joint family property among the co-parceners of that family. In short, dividing ancestral property (movable and immovable) among heirs according to legal procedures—either mutually through an amicable settlement or through a court lawsuit—is called Ansha Banda.

Legal Provision on Women's Property (Striaamsha Dhanko)

Property acquired by a woman through her personal earnings, gifts, maintenance, settlement deeds, adverse possession, inheritance, or as her share of partition is considered Stridhan (women's property). The legal framework for Stridhan was progressively strengthened in revisions to the old Muluki Ain between 1963 and 1964 (2020 BS). The previous Muluki Ain contained explicit chapters dedicated to Stridhan. Property acquired by an unmarried woman, a married woman, or a widow through self-earning, dowry, inheritance, gifts, or partition constitutes Stridhan. Such property can be utilized or disposed of at her own will. Property obtained via these modes is called Stridhan. However, the current Civil Code, 2017, does not maintain a completely separate standalone provision for Stridhan in family law; instead, property falling under private property category can be referred to as Stridhan. Specifically, private property under Section 256 can be designated as Stridhan.

Legal Provision on Adoption (Dharma Putra Dharma Putriko)

According to the law, when a person accepts another person's son or daughter as their own son or daughter, it is recognized as adoption (Dharma Putra for an adopted son or Dharma Putri for an adopted daughter). A person adopting a child must prioritize the best interest and rights of the child. Both domestic and foreign citizens can adopt a child. According to the Civil Code, 2017 (Muluki Dewani Sanhita, 2074), the provisions relating to adoption are classified into two main parts:

1. Provisions relating to domestic adoption

2. Provisions relating to inter-country adoption

Legal Provisions of Inheritance (Aputali)

Legal Provisions on Money Lending Transactions (Lenden Byabaharko)

A transaction refers to an act where one of two persons gives something to or takes something from another person. In particular, the word transaction denotes the act of lending and borrowing money (loans). In family and social life, a transaction behavior represents the conduct or dealings a person shows towards others. To regulate these transactions, the previous Muluki Ain, 1963 (2020 BS) mentioned the legal procedures and remedies to be followed regarding borrowing loans, promissory notes (Kapali Tamasuk), simple mortgages, usufructuary mortgages, land transfers, claiming rights through deeds, and barter exchange systems. In the current Civil Code, 2017 (Muluki Dewani Sanhita, 2074), transaction-related provisions are managed under Part 4 (Property Law), Chapter 15.

Legal Provisions on Charity and Gift (Dan Bakashko)

When a person gives property under their right and ownership free of charge to any person or for religious, social, public, or community work, it is called a donation (Dan). On the other hand, when a person provides property under their right/ownership free of cost as a reward or gift because they were looked after, taken care of, or out of family love, it is called a gift (Bakas). Provisions regarding donations and gifts are managed under Chapter 10 of the property-related laws of the Civil Code, 2017 (Muluki Dewani Sanhita, 2074).

Gift deeds (Bakaspatra) are of two types:

· Post-demise gift deed (Sheshpachhiko Bakaspatra - takes effect after death)

· Current gift deed (Halako Bakaspatra - takes effect immediately)

Legal Provision on Registration of Deeds (Registrasanko)

Registration refers to the act of registering any written document at a government office. In particular, various types of documents are registered to ensure the security of financial transactions and guarantee legal rights. This ensures that even if an individual's personal copy of a document is destroyed, the legally registered copy remains as evidence to establish their legal rights. Registration is carried out for the following distinct reasons:

· Registration is done to minimize various types of forgery, social crimes, and financial offenses during transactions between individuals.

· To collect revenue for the government.

· To prevent financial fraud or transaction-related offenses.

· Registration holds high importance because a registered deed can be presented as definitive proof in disputed matters. This is why deeds are registered, as it secures legal rights.

Unit 5: Traditional Land Tenure System of Nepal

BIRTA – Privileged Land Ownership

When an individual showed bravery or performed exceptional work, the land given to that person as a reward or prize was called Birta land. The right to generate a source of income from that land in any manner, and to enjoy its benefits by rendering justice, collecting fines, or fees, was also kept under the Birta right.

Birta System

This system has been in practice since the Licchavi period. This system was extensively utilized in Morang, Dullu (Jumla), and Kathmandu. Birta was granted in exchange for sending manpower and necessary resources during wars, during times of emergency, or for completing specific designated tasks in other matters. If the prescribed conditions were not fulfilled, the Birta land would be confiscated. After Jung Bahadur became Prime Minister, it was announced that those confiscated Birta lands would be returned to the soldiers. Small and large arrangements were introduced from time to time to keep Birta lands managed and relevant to the times.

GUTHI – Institutional Land Ownership

According to Section 2 of the Guthi Corporation Act, 1976 (2033 BS), "Guthi means a trust relinquished by a donor of their rights over movable or immovable property or income-yielding property or funds for operating festivals, worship, or processions of any monastery or deity, or for operating religious or philanthropic works like constructing or running temples, shrines, rest houses (Dharmashala, Pati Pauwa), wells, ponds, lakes, roads, bridges, platforms (Chautara), grazing lands, gardens, forests, libraries, schools, dispensaries, hospitals, or institutions, or for maintaining them."

There are three types of Guthi:

· Royal Trust (Raj Guthi)

· Public Trust (Chhut Guthi)

· Private Trust (Niji Guthi)

Provisions regarding Guthi are managed under Part 4, Chapter 6 of the property-related laws of the current Civil Code, 2017 (Muluki Dewani Sanhita, 2074).

JAGIR (Land Assignment System)

Literally, the word Jagir means to obtain or earn from land. The term Jagir refers to land granted to government employees to clear, cultivate, and use for their livelihood. This system started in Nepal around the latter half of the 18th century, but the status of Jagirdars (holders of Jagir) was not uniform across the country. In Nepal, provisions were made allowing employees to collect taxes from a specific piece of land to sustain themselves strictly during their period of active service.

KIPAT (Communal Land Ownership)

Under the Kipat system, land was granted not to an individual but to a specific caste or community group. This clarifies that the Kipat land tenure system was a "tribal/ethnic land system." Although various land tenure systems existed across different regions of Nepal, the government did not hold absolute rights over Kipat lands compared to other areas; instead, rights remained with the respective community group or the Kipatiya (the Kipat holder). Since Kipat land was based on ethnic identity, individuals outside the concerned community held no rights over it. The Kipat land system involved ancestral legal heirs, and operations followed the traditional practices of the specific caste.

This land belongs to the community and passes down through ethnic succession. The Kipat system has been operational since ancient times or from the era of ancestors. Provisions required a specific tax amount to be paid per household based on the designated region. Kipat land was not granted to just one community, but to various groups such as Limbu, Rai, Majhi, Tamang, Bhote, and Chepang. Furthermore, under the Kipat system, regulations stipulated that wet arable fields (Khet) could not be owned by communities other than the Limbus, though dry hillside land (Pakho) could be acquired by others.

Zamindari and Talukdari

Zamindari land refers to an arrangement where a single individual holds land ownership but has tenant farmers (Mohi) cultivate it to generate an income source. This system emerged primarily in the Terai region, where the Zamindar was the individual responsible for collecting land revenue (Malpot) and submitting it to the state. Specifically, a large amount of land registered under an individual's name in Nepal's Terai region is called Zamindari. In this setup, the Zamindar provided loans to farmers, and in return for being allowed to cultivate the land, farmers had to submit a specified share or payment to the Zamindar. This operational style created a distinct feudal class in society. Common citizens, acting as tenant farmers, faced exploitation at the hands of Zamindars, Talukdars, Jimmawals, and Mukhiyas. Consequently, voices were raised against this exploitation, and the system finally ended after the implementation of Land Reform Acts.

RAKAM (Labour Land Ownership)

The compulsory labor extracted from the public for public works is called the Rakam system. In other words, land granted for cultivation and livelihood in exchange for performing specific tasks is called Rakam Jagga (Rakam Land). Individuals cultivating Rakam land were legally obligated to provide compulsory service to the government without wages whenever required.

While Jagir land was temporary in nature, Rakam land was of a permanent nature. The Rakam land system comprised various types of land assignments. Most tasks required by the government were completed through the Rakam system. Types of Rakam included: Dhoke Rakam, Khani Rakam (mining), Daura Rakam (firewood), Ghansi Rakam (grass), Silte Rakam, Kagate Hulaki Rakam (paper mail carrier), Thaple Hulaki Rakam (cargo carrier), Jangi (military support) and Jangi Rakam (military labor) land systems were also prevalent. Individuals receiving this type of Rakam land used to make bricks and clay pots.

UKHADA (Tenancy of Zemindari Land in Palhi Majhkhand)

This system was prevalent in three districts under the central Terai region of Nepal: Kapilvastu, Rupandehi, and Nawalparasi. The land in this region was called Ukhada land. The Zamindars there gave the land within their estate to farmers to cultivate. The Zamindar himself collected the land revenue from the farmers and submitted it to the government. If a farmer could not pay the tax, there was a practice of evicting them and assigning the land to someone who could pay.

Subsequently, a provision was made to register such land under the actual tenant (Mohi). The tenant had to pay a lump sum equal to double the amount of one year's land revenue collected by the Zamindar, or pay it in installments within 5 years from the date of land registration as compensation. Special courts were formed to handle cases related to this. To expedite old pending cases exceeding 10,000 Bighas, arrangements were made through the Supreme Court, which eventually led to the abolition of the Ukhada system. The main objective of doing this was to convert all such lands into Raikar (state-taxed private land). Therefore, in 2021 BS (1964 AD), a separate act regarding Ukhada land was enacted, converting Ukhada land into Raikar and ending the system.

MAHAJANI (A System of Tenancy at Will)

The Mahajani land system was prevalent in Kailali and Kanchanpur districts located in the western Terai. The Mahajani system is understood as a system brought into practice by moneylenders (Sahu or Mahajan). However, it holds its own unique characteristics within the Nepali land system. From a legal perspective, exploitation of farmers began when moneylenders calculated interest equal to the principal amount on loans, fixed their own prices, and forced the export of produce abroad—this came to be known as the Mahajani system.

The Mahajani land system heavily exploited the farmers. Moneylenders used to calculate interest equal to the principal, effectively doubling the debt burden. In lands reclaimed by clearing forests, special benefits were provided where tenants could consume the harvest, pay land taxes (Pot) only after land measurement was completed, and were not rushed to register the land. Because the Mahajani land system severely exploited farmers, after the implementation of Land Reforms in 2021 BS (1964 AD), the legal recognition of loans recorded in the moneylenders' ledgers was terminated, and the farmers automatically became free from debt.

Rajya Rajauta (Abolished Feudatory States within the State of Nepal)

After the unification of Nepal, maintaining unity and harmony among the various states merged within integrated Nepal was as important a responsibility as the unification process itself carried out by the late King Prithvi Narayan Shah. For this reason, provisions were maintained allowing the kings and chieftains (Raja-Rajauta) of various states to utilize state revenues. This Rajya-Rajauta system, which remained in place until 2017 BS (1960 AD), was abolished by the Rajya Rajauta Abolition Act, 2017 BS.

Under the Rajya-Rajauta system, states like Salyan, Bajhang, Jajarkot, Mustang, Bhirkot, Darma, Bajura, Thalahari, Galkot, Gulmi, Gejhokot, Malneta, Dullu, Parbat, Nuwakot, Pyuthan, Khungrikot, and Udaipur, among others, enjoyed privileges under the princely system. After these privileges were abolished by the Rajya Rajauta Act, the contemporary Rajas were permitted to enjoy those privileges strictly for their lifetime; thereafter, restrictions were put in place preventing their descendants from inheriting the title and privileges.

Raikar (Revenue Payable Registered Land)

The word Raikar is believed to be formed by combining the two words ‘Raj’ (State/King) and ‘Kar’ (Tax). Therefore, it denotes land taxed by the state or land kept under the ownership of the state. In Nepalese law, the term Raikar is used to mean that taxes must be paid to the state, and a state record of it is maintained. The Raikar land system is the oldest land tenure system. Ownership of the land transfers to an individual only after paying the prescribed tax to the state, granting them all rights regarding possession, enjoyment, and transfer.

Thus, land given by the state to tenants (Raiti) to earn from by paying land revenue, or on the condition of paying revenue, is called Raikar land. Following the unification of Great Nepal, during both the Shah and Rana periods, all land appeared to remain under state authority. Because tenants possessed the right to earn and pay revenue to the state (Occupancy Right), farmers could permanently sell, mortgage, and transfer that land, yet they retained the right to till it. If a tenant farmer (Mohi) who was required to pay rent (Kut) to the state failed to submit it, the state maintained provisions to evict them, appoint a new tenant farmer, and recover the outstanding arrears.

Khaikar (A Land tenure system for occupying land zamindari)

Khaikar refers to a type of land system where land registered under one individual's name is given to other tenants to possess, enjoy, and cultivate for their livelihood. This practice was prevalent in Far-Western districts including Seti, Mahakali, and Karnali. For this type of land, the actual users possessed and enjoyed it, paid land revenue to the local revenue collector (Jimmawala) through the registered owner, and restrictive provisions were placed preventing the registered owner from claiming rights over the user's homestead land simply based on registration. In the year 1918 AD (1975 BS), records (Moth) of Khaikar were prepared, receipts were issued to the Khaikar holders through the Talukdar, and provisions were made to register the land under the Khaikar holder's name based on those receipts.

JHORA (Reclaimed land in Eastern Terai)

Jhora refers to land that had to be reclaimed by individuals who received royal decrees (Lalmohar/Khadga Nishan) or direct authorization from the King (Shree 5) to clear and settle land, which they reclaimed themselves or by employing other tenants. Specifically, forests were cleared in Morang, Sunsari, and Jhapa districts, which were also called Jhora areas. Later, the Jhora Land Related Act, 1971 (2028 BS) was enacted and implemented. The objective of this Act was to properly manage lands in Jhora areas, protect the tenancy rights of actual cultivating tenants who reclaimed the land through their own hard labor, and play a vital role in managing the Jhora land system.

Kharka (Pasture Land)

According to Section 2(a) of the Pasture Land (Kharka) Nationalization Act, 1974 (2031 BS), Kharka land means land used exclusively for animal grazing under names like registered or unregistered Kharka, Kharcharan, etc. Since it is less suitable for arable cultivation, it has traditionally been enjoyed by paying a very minimal tax for grazing livestock, running bee-keeping businesses, or grazing sheep and mountain goats (Chyangra). The Pasture Land Nationalization Act, 1974, was implemented with the objective of organizing and nationalizing such pasture lands.

Unit 6: Existing Laws on Land Redistribution and Land Use

Land Rules/Lands Act, 1964 (Bhumisambandhi Ain, 2021)

The Lands Act, 1964, was introduced to discourage unequal distribution and unnecessary hoarding of land, and to make essential provisions regarding mandatory savings and tenancy rights. Prior to this Act, there was no equality in land distribution. No ceilings were fixed on land holdings, and systems like Zamindari and Talukdari prevailed. A limited class held a monopoly over land.

For these various reasons, the Lands Act, 1964, was enacted to introduce proper land ceilings, reform relations between landlords and tenants (Mohi), implement scientific agricultural programs, and accelerate national economic development. It aimed to ensure equitable land distribution, provide essential agricultural knowledge and skills, make resources accessible, and uplift the living standards of land-dependent farmers.

To accelerate economic growth, it was desirable to divert idle capital and population pressure from land to other sectors of the economy, distribute agricultural land equitably, provide necessary agricultural knowledge and resources to improve the lives of actual farmers, maximize agricultural production, and protect the economic welfare of the general public. Hence, this Act was enacted with the advice and consent of the National Panchayat.

Guthi Corporation Act, 1976 (Guthi Corporation Act, 2033)

The Guthi Corporation Act defines Guthi as a trust where a donor relinquishes their rights over movable or immovable property, income-yielding assets, or funds. These funds are dedicated to operating festivals, worship, or processions for any monastery or deity, or for religious or philanthropic works like constructing or running temples, shrines, rest houses (Dharmashala, Pati Pauwa), wells, ponds, lakes, water taps, roads, bridges, platforms (Chautara), grazing lands, schools, libraries, or dispensaries. Legal provisions concerning Guthi existed in the Muluki Ain even before this Act.

The Guthi Corporation Act, 1976, was implemented to effectively operate and make additional necessary provisions, superseding the previous Guthi Corporation Acts of 1964 (2021 BS) and 1972 (2029 BS). The Guthi Corporation was established to systematically manage Royal Trusts (Raj Guthi) by removing them from direct government administration and handing them over to an autonomous body. It was deemed necessary to amend and consolidate laws relating to Guthi to maintain good relations among different classes, protect the economic interests and morality of the general public, and make timely arrangements. Thus, this Act was formulated with the advice and consent of the National Panchayat.

Birta Abolition Act, 1959 (Birta Unmulan Ain, 2016)

Birta refers to land where the state completely exempted all land taxes, or land granted as tax-free Mafi or Raikar where the owner paid only a nominal amount instead of the full tax rate. It also refers to state land granted to specific individuals by Kings or Ranas out of pleasure for services rendered, sacrifices made, or bravery shown, completely exempting them from all state taxes. To eliminate the various existing types of land ownership systems and maintain equality among citizens, the Birta system was abolished in 2016 BS (1959 AD) to convert all Birta lands into Raikar tax-paying lands and impose uniform taxes.

Ukhada Act, 1964 (Ukhada Ain, 2021)

Ukhada denotes land cultivated and used by a tenant farmer based on an informal mutual agreement with the landowner by paying a specified cash rent (Pot). In Nepal, this started during the reign of King Prithvi Narayan Shah, when land was given to farmers for cultivation on the condition of paying rent to the landowner. This practice took the form of the Ukhada system during the Rana period.

This system was primarily prevalent in Rupandehi and Nawalparasi districts. Under this system, the farmer paid land rent to the landowner, and the landowner paid tax to the government. This dual structure caused numerous disputes between farmers and landowners. Due to the arbitrary behavior of landowners, farmers faced severe exploitation and suffering under Zamindars, which led to the enactment of the Ukhada Related Act in 2021 BS (1964 AD).

Unit 7: Existing Law on Land Administration and Measurement

Land Measurement Act, 1963 (Jagga Napjanch Ain, 2019)

Traditionally, land measurement in Nepal lacked scientific methods, leading to widespread land disputes. To resolve these conflicts, a clear need emerged to measure and survey land scientifically. The Land Measurement Act, 1963 (2019 BS), was enacted to determine land areas across different regions, classify land types, distribute land ownership certificates to owners, establish tax rates based on survey maps, and determine rent (Kut) for tenant farmers. This Act was formulated under Article 93 of the Constitution of Nepal to maintain good relations among various classes, castes, and regions, and to ensure the convenience of Nepalese citizens.

Land Revenue Act, 1977 (Malpot Ain, 2034)

In Nepal, land registration, ownership transfer (Namsari), revenue collection, and registration cancellation (Dakhil Kharej) were previously handled under changing administrative names like Mal Adda, Malpot Office, and Land Administration Office. Because different districts followed varying procedures and laws, significant problems arose in land registration and revenue collection. To systematize these operations, the Land Revenue Act, 1977 (2034 BS), was enacted. This Act standardized land registration procedures and established clear provisions for registration transfers (Dakhil Kharej) and updating record books (Lagat Katta). It also organized revenue collection and tax waiver processes, significantly boosting national revenue.

Unit 8: Land Acquisition Act (Jagga Prapti Ain)

Concept of Land Acquisition (Jagga Praptiko Awadharna)

When a state government acquires land for public interest and absolutely essential developmental works—by providing fair compensation or alternative land exchange as prescribed by law—the process is called land acquisition. The state cannot acquire, requisition, or create any encumbrance on an individual's private property except for public interest. When acquiring land for public interest, fair compensation must be provided. To utilize such acquired land, the government-designated organizations, corporate bodies, or relevant entities must secure official approval to run public works and developmental projects under state policy guidelines. This framework is governed by the Land Acquisition Act, 1977 (2034 BS).

Unit 9: Intellectual Property Law in Nepal (Nepalma Baiddhik Sampatti Sambandhi Kanun)

Intellectual property refers to the product of human intellect or creative work. The nature of intellectual property is distinctly different from other traditional forms of property. Intellectual property represents the intangible (Abhautik) or abstract (Amurta) ideas and information generated through human contemplation, thought, and knowledge, which cannot be measured as a physical object. In other words, intellectual property is the outcome achieved through human intellect, wisdom, skills, reflection, and knowledge.

To sum up, it is the legal right granted over the products of human intellect in industrial, scientific, artistic, and literary fields. Real intellectual property is the creation of a new item, invention, or artistic/literary piece achieved by utilizing a person's study, research, or inherent internal mental capacities. Intellectual property rights generally signify rights over intangible matters. To encourage creators, legal frameworks grant them an exclusive monopoly over such property for a designated period of time.

Law is the only appropriate medium to protect intellectual property rights. In a market-oriented economy, commercial enterprises play a massive role. If the intangible assets of such enterprises are not adequately protected, the resulting practical insecurity negatively impacts the entire economy over time. Just as physical or movable property requires protection, it is vital to protect intellectual property rights by controlling unauthorized duplication, copying, or tampering by third parties. Creators can utilize their own creations to produce goods, or choose to grant licenses, lease, or sell those rights to others. In this manner, preventing unauthorized use, the concept of intellectual property rights grants creators an exclusive monopoly for a specified time. However, granting such monopolies is not entirely free from controversy. The primary reasons and significance behind granting rights over intellectual property to a creator include:

(a) To encourage the creator

(b) For the progress and development of society

(c) To provide the creator with economic earning opportunities

(d) To contribute to economic and social development by fostering fair trade

Kinds of Intellectual Property (Baiddhik Sampattika Prakar)

Patent

A patent is a vital aspect of intellectual property rights. A patent is not an invention itself, but a legal right granted to an inventor regarding their invention (Invention). When someone utilizes their intellect to create or invent a new object or technology, the right established over that object or technology is called a patent.

A patent is a legal right granted to the owner regarding an invention's process or production, which prohibits anyone else from manufacturing or using it without their permission. Nepal's Patent, Design, and Trademark Act defines a patent as "any useful invention discovered based on a new theory, formula, or method regarding the composition, manufacturing, operation, or propagation of any substance or group of substances."

Trademark (Trademark Chinha)

A trademark is a basis for distinguishing one product from other similar products. A trademark is a type of sign or symbol used on goods or services. A trademark can be a word, symbol, number, color, or a combination of colors. Its primary purpose is to differentiate one's goods or services from those of others. In Nepal's Patent, Design, and Trademark Act, 1965 (2022 BS), a trademark is defined as "a word, symbol, picture, or a combination thereof used by any firm, company, or individual to distinguish their manufactured goods or provided services from the goods or services of others."

Designs (Designharu)

In a general sense, a design refers to the attractive or aesthetic (Ornamental or Aesthetic) aspect of an object. Under intellectual property, design signifies the visual appeal of a product that attracts others to use it. Nepal's Patent, Design, and Trademark Act, 1965 (2022 BS) defines a design as "the form, shape, or configuration of any manufactured object made by any means." Since protecting a design under intellectual property is crucial from an industrial perspective, it is also referred to as an industrial design.

Copyright (Pratilipi Adhikar)

Copyright is that branch of intellectual property rights which provides protection to the rights of creators of works, presentations, broadcasts, and audio recordings in literary, artistic, scientific, and other similar fields. Copyright acts as an exclusive right over the creator's creative expression. It prevents anyone from unauthorized use without the creator's permission. Under copyright, literary and artistic creations are primarily protected. According to the Berne Convention, "literary and artistic works" include every production in the literary, scientific, and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets, articles, and other writings; lectures, addresses, sermons, and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works; works of drawing, painting, architecture, sculpture, engraving, and lithography; photographic works; works of applied art; illustrations, maps, plans, sketches, and three-dimensional works relative to geography, topography, architecture, or science.

Unit 10: Examination of Constitutional and Legal Rights of Property in Nepal

Various rights related to property have been granted in our country. In this context, both legal rights and constitutional rights can be obtained regarding property. What these rights are and how they are provided are mentioned sequentially below:

1. Constitutional Rights (Constitutional Provision on Rights to Property in Nepal)

In addition to the systems managed by various property-related laws, the supreme law of the land—the Constitution—provides security for property, which is called a constitutional right to property. The Constitution contains provisions granting the freedom to acquire, enjoy, and sell property. Furthermore, according to the provisions mentioned in the clauses of the Constitution, a constitutional right refers to the authority to directly establish one's right through the Supreme Court via a writ petition.

2. Legal Rights

Property refers to the various movable, immovable, tangible, intangible, and intellectual assets acquired by a person through different means over which they hold ownership. The rights to acquire, transfer, sell, donate, or give such property as a gift, alongside provisions for protecting, classifying, inheriting, and managing landlord-tenant (Jagga Dhani - Mohiyani) relations, are derived from Nepalese Acts and laws made to explain, analyze, and regulate property. The authority obtained by the general public through these enacted property laws—which dictate how to acquire or sell property, and outline the legal actions to take if those rights are violated—is called a legal right (Legal rights).

LLB Notes & RELATED TO LAWS

Wednesday, 24 June 2026

Property Law Notes