Before understanding the
terminology of 'Ownership of Immovable Property' it is necessary to
understand what an immovable property is. In common parlance immovable propertymeans land, buildings and things which
are permanently attached to the land.
According to Section 2(gg) of the
Karnataka Stamp Act,1957 “immovable property” includes land, buildings, right
to ways, air rights, development rights, whether transferable or not, benefits
to arise out of land and things attached to the earth or permanently fastened
to anything attached to the earth. The Transfer of Property Act, 1882, does not
define the word 'immovable property' in detail, but only mentions that
immovable property does not include standing timber, growing crops or
grass. According to the Karnataka
General Clauses Act, 1899 immovable property shall include land, benefits to
arise out of the land and things attached to the earth or permanently fastened
to anything attached to the earth. The
words “attached to the earth” has been elaborately described in Sec.3 of the
Transfer of Property Act. According to
this section, attached to the earth means --
1. Rooted in the earth as in
case of trees and shrubs;
2. Imbedded in the earth as in
case of walls or buildings or
3. Attached
to what is so imbedded for permanent beneficial enjoyment of that to which it
is attached.
Let us now understand something about ownership. Ownership can be
broadly classified into two absolute ownership and restrictive ownership. The ownership is an amalgam of rights,
interest and title which is recognised
under law. The word absolute
ownership is a bundle of rights connected to some specified property. The word
right has a wide meaning. It gives
powers to the person said to have rights to do something or act, or not to do such thing or act, in
relation to his property. Rights are of
different types such as Right in Rem, Right in Personam etc. “Right in
Rem”. is available against the whole world
while the “Right in Personam”, is available against a specified person, or
group or group of persons. The owner of
any property has a legal right which is recognised under the laws of the land. It consists of following rights which are
only illustrative and not exhaustive:
1. Right of Possession and
occupation.
2. Right
to use and enjoy his property without undue interference of outsiders.
3. Right
of alienation of his property as provided under law in favour of any person/s
without any restrictions by way of sale,
gift, transfer by Will, and by creation of trust.
4. Right
to make alteration to the property/structure, consume, destroy, repair,
reconstruct, hypothecate, mortgage, lease and to use the property as security
to borrow funds.
These rights are rights in rem available against the whole
world subject to the restrictions imposed under various laws like Land Reforms
Act, Land Revenue Act, Town Planning Act etc.
Apart from absolute ownership, there are other types of ownerships which
are restrictive in nature. In
restrictive ownership, certain rights detailed under absolute ownership are
restricted or not available for certain specified period.
Under co-ownership, there will be more than one person who jointly own the same property. Both the persons have equal or certain
percentage of rights to possess and enjoy the property as agreed to between
them. In the case of co-ownership, the
owners own the whole property jointly
and thereby their respective shares are not physically ascertainable with
definite measurement and
boundaries. The shares are
undivided. For example, in case four persons own a property of 1200 sft,
each of them would be entitled to 300
sft. of undivided share in this property. This 300 sft of undivided share of
property could be any part of the building/property and cannot be confined to a
specific part. Share of the co-owners in
the property need not necessarily be equal.
It depends on their investment in the property as detailed in the
purchase document. In the absence of any
such details as to the share of investment made for acquisition of property it
is presumed in law, that all the co-owners have equal undivided share of interest,
right and title in the property as per section 45 of Transfer of Property Act.
It is always advisable to clearly mention the share of investment of each
co-owner in the property and their undivided share in right, interest, title in
the property for the purpose of alienation, inheritance and taxation.The
Co-owners share in the property is inheritable and transferable.
The concept of this co-ownership is often termed as “Tenants in common”
in legal parlance. Practically, it is not possible to identify or divide a property held jointly by metes and bounds. Thus, the co-owners
possess and enjoy the property in unison.
Many owners of land, lease the property to others on long lease. The terms of lease also gives right to the
lessee to construct buildings and enjoy the benefits of such buildings on
leased lands. This practice has led to
dual ownership of land and building. The
land is owned by one person and the structures thereon is owned by another
person. The terms of lease also
stipulate whether the ownership of the building will get transferred to the
lessor or the owner of the land free of cost on expiration of the lease period
or has to pay for acquisition of such structures. The Income Tax Act recognises the dual
ownership concept and the owner of the building is taxed for the income
received from the property.
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