Property Rights Of Women In India
Much has been written about gender and property rights, most of it reflecting
the dismal record of developing countries in providing with equal rights not
only to land but to the basic necessities of life. Property rights are
contentious in any jurisdiction. But the right to property in India, adopted as
a fundamental right in Article 31 of the Constitution of the India, 1950
("Article"), has had a particularly tumultuous legal and political history.
It holds the distinction of being the second most debated Article in the Constituent Assembly, the most amended provision of the Constitution and the only fundamental right to ever be deleted. The history of the Article is commonly understood as arising from an ideological institutional conflict between a Parliament in pursuit of socialism and a judiciary safeguarding individual freedoms.
However, looking at the Article and its initial amendments from a "law and development" perspective provides a critique of the current narrative of "conflict" and offers an alternative interpretation of the history of Article 31. The paper argues that rather than arising from the pursuit of either authoritarian socialist planning or an egalitarian social revolution, the travails of the Article came in the context of India's quest for economic modernity through a process of "passive revolution".
The powers of eminent domain reinforced in the Article empowered the state to modernise economic relations in industry and agriculture by restructuring a semi-feudal pre-capitalist property rights regime established during colonialism along productive capitalist lines. In this process, the Article helped to consolidate the powers of the developmental state in the domain of economic policy; forged the relationship between state, market and the individual; and helped shape the regime of private property rights in India.
Understanding the evolution of the fundamental right to property in India therefore, not only tells a key part of India's development story but also contributes to the "law and development" literature by assimilating diverse historical experiences within its framework, which, as critics have long argued, tends to have a strong Eurocentric bias. Rather than disputes leading to violence, the legal system resolves them.
Without such a system, there is no right to an asset or retail estate. For example, let's say Mr Jones builds a house for himself. He may leave it vacant for a time, only to find someone else has moved in. Without property rights and a legal system, he has no ownership, therefore, he has no authority to remove the other party.
This defeats the point of ownership – highlighting the importance of property rights. With property rights, Mr Jones is able to use the legal system to evict and reclaim the property that is his. The culprit will be brought to court and will be forced to pass back the property to the rightful owner.
If the consumer has no right over the good they purchase, then anybody can freely take it. As a result, trade halts and production is almost non-existent. Imagine a society where there is no consequence of theft – which would be the state the economy without property rights.
Women have less access to shelter, income, water, food, education, and healthcare when compared to men, leading to what is often called the "feminization of poverty." While women are increasingly heads of households, today's women and girls in
developing countries make up 70 percent of the estimated 1.2 billion people living in absolute poverty, defined as living on less than $1 a day. No doubt one cause in the overrepresentation of women in poverty is the fact that land and other real property are generally considered to represent about 75 percent of a nation's overall wealth, and women own only an estimated 1-2 percent of all titled land worldwide.
While there is a dearth of reliable and comprehensive data on the extent of inequality between males and females with regard to access to and control over land and real property, particularly in urban areas, available surveys and studies indicate that the disparity is substantial.1
The plight of women in poverty seems destined to continue unless there is significant reform and strengthening of laws, policies, and practices relating to ownership and control of property throughout the developing world, and among approaches taken by donors supporting these reforms. Improving the property rights of women is a matter not only of human rights and gender equality; it is a fundamental principle that underlies economic development for all people.
There is an abundance of research showing that when women's incomes go up, the additional income goes directly to increasing household consumption and therefore into the overall economy; men on the other hand spend much of their income on personal items.2 In addition,
Women's lack of property rights has been increasingly linked to other development:
Problems, including low levels of education, hunger, and poor health.3 For women, there is a linkage between rural and urban poverty. Rural women's incomes could increase if they own or control land, individually or jointly, and have the benefit of legally recognized use and inheritance rights.
Ongoing exclusion of women from rural land rights pushes them toward the cities, where they often join the increasing ranks of women-headed or women-only house holds in slum areas where inadequate housing is the norm and homelessness is all too common. While women make up 66 percent of the labor force in urban areas of developing countries, they account for only 10 percent of income. With urbanization of poverty as well as
Feminization of poverty on the increase, it is critical for women living in peri-urban or urban
settings to have clear rights and independent access, use, and control of property and housing for their own economic benefit and empowerment, and for them to reach their potential in contributing to their countries' overall economies. The purpose of this paper is to explore the nexus of three issues that individually are touchstones of international donor efforts to improve conditions and reduce poverty in developing countries, but are not usually considered together or in terms of how they relate to each other.
These issues are gender equality in property rights, i.e., the rights of women to participate in property use and ownership with full legal and societal protection the importance to economic development of residential and commercial property rights in urban areas; and the role of women in economic development. There is widely available literature about each of these individual issues, but little has been written about how they intersect, and why more emphasis on programs that view them in a holistic manner would make development efforts more efficient and beneficial.
In Sections II, III, and IV, this paper sets out the individual issues and some of the better and worse practices that have been used in addressing them in international development programs. These sections emphasize factors that are then drawn together in Section V, which provides recommendations for addressing all three in a coordinated and more effective way.
Intellectual property (IP) rights are legal and institutional devices to protect creations of the mind such as inventions, works of art and literature, and designs. They also include marks on products to indicate their difference from similar ones sold by competitors. Over the years, the rather elastic IP concept has been stretched to include not only patents, copyrights, trademarks, and industrial designs but also trade secrets, plant breeders' rights, geographical indications, and rights to lay out designs of integrated circuits, among other things.
To proponents, IP rights contribute to the enrichment of society by promoting: (1) the widest possible availability of new and useful goods, services, and technical information that derive from innovative activity, and
(2) the highest possible level of economic activity based on the production, circulation, and further development of such goods, services, and information. These objectives are supposed to be achieved because owners can seek to exploit their legal rights by turning them to commercial advantage. The possibility of attaining such advantage, it is believed, encourages innovation. But (typically) after a certain period of time, these legal rights lapse and the now-unprotected inventions and works can be freely used by others.
IP rights have never been more economically and politically important than they are in today's so-called 'knowledge-based society.' Neither have they ever been so controversial. IP rights are frequently mentioned in discussions and debates on such diverse topics as human rights, agriculture, health, education, trade, industrial policy, public health, biotechnology, biodiversity, environmental protection, information technology, the entertainment and media industries, and the widening gap between the income levels of the developed countries and the developing countries.
Such importance and controversy arise from the fact that today's international IP rules require both developed and developing countries to provide strong and uniform standards of protection. The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), one of the main outcomes of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), which is administered by the Geneva-based World Trade Organization (WTO), is of special importance in that it establishes enforceable global minimum (and generally high) standards of protection and enforcement for virtually all the most important IP rights in one single agreement.
However, there is much more to today's global IP regime than TRIPS. The architecture of the global IP regulatory system includes an increasing diversity of multilateral agreements, international organizations, regional conventions and instruments, and bilateral arrangements. In sum, the international law of IP in its present form consists of three types of agreement.
These are multilateral treaties, regional and supranational treaties or instruments, and bilateral agreements. Of these, the agreement that affects the greatest number of countries is TRIPS. Important also are multilateral treaties administered by the World Intellectual Property Organization (WIPO), a specialized United Nations agency that is also located in Geneva. Prominent examples of the latter include the 1883 Paris Convention for the Protection of Industrial Property and the 1886 Berne Convention for the Protection of Literary and Artistic Works.
Most multilateral IP rights agreements are administered by WIPO, but there are some important non-WIPO treaties such as the 1961 International Convention for the Protection of New Varieties of Plants, which is administered by the Union Internationale pour la Protection des Obtentions Végétales (UPOV) (which shares a headquarters with WIPO in Geneva) and of course, TRIPS. Important regional agreements and instruments include the 1973 European Patent Convention (updated in 2000) and the 1998 European Union Directive on the Legal Protection of Biotechnological Inventions.
A new right over plant material, in some respects analogous to conventional IP rights, was foreshadowed by the Convention on Biological Diversity (CBD, Rio, 1993) and further defined by the Nagoya Protocol to the CBD (2015).
Objectives
This objective of this paper is to describe what exactly the term "property rights" and equality signify and also to present the provisions that are already present in our constitution but are:
The Literature Survey
Guide to the literature survey
The literature on intellectual property rights dates as far back as the era of the classical economist such as Adam Smith and even beyond. Not surprisingly, then, the volume of literature on the subject that has accumulated over the years is immense, and a survey of this kind can only cover a small fraction of what actually exists. in more recent times, one can notice that interest in the subject of intellectual property rights has spread from the law and economics departments of universities to disciplines which traditionally did not consider IPRs as being of relevance.
The intellectual property literature has proliferated and expanded, attracting the interest of researchers in such fields as sociology, anthropology and ethnobiology, international relations and political science, and moral and legal philosophy. In addition, IPRs have become integral to the work of NGOs and international organisations concerned with development and trade. Therefore for a literature survey on IPRs to be at all comprehensive, a very wide net indeed needs to be cast. The survey focuses on writings published since 1995. However, particularly significant earlier texts are also included.
The references are arranged by the following subject areas:
Rather, for busy development practitioners and policy-makers who are unfamiliar with the subject of intellectual property rights, the most profitable return on a limited time investment is likely to be gained by focusing on those selected texts. It is worth pointing out that some of the most interesting studies on different aspects of intellectual property may be found in works that are not primarily about IPRs.
Nature of Property Rights:
Property rights have certain characteristics which are not possessed by other kinds of rights and duties.
The nature of property rights and type of property vary from society to society and within a particular society over time because property rights are socially terminated. We find different forms of property. Property may be broadly classified into two types, private property and common (public property).
An outstanding feature of modem economic life is the institution of private property. The term private property usually applies to rights held by individuals or groups acting in their own interests. The term 'public property' refers to rights held by the community at large and administered by individuals or groups acting as agents of the community. These two types of property differ in the focus of ownership as well as kinds of property rights exercised.
Private property again may be classified into two types: individual property and collective property. In individual property, the control is vested in an individual. Collective property may take various forms depending on the collective entity having ownership and control; it may be
According to Bottomore, "property for power and unlimited acquisition of wealth was product of capitalism," it reached its peak in nineteenth century Europe and North America. Individual private ownership is the basis of capitalist economic system.
Advantages of Private Property:
The institution of private property has gathered a great controversy. It has been defended and attacked on various grounds. On the one hand, it is regarded as essential for social progress, on the other, it is called "theft'.:
The advocates of the institution of private property put forth the following arguments in favour of its advantages:
Disadvantages:
There are some thinkers who maintain that private property creates evils. The disadvantages that are generally attributed to it are discussed as under.
Hypothesis
The property rights can facilitate attainment of other development goals.
Research Questions:
Tentative Chapterization
Following is a detailed chapterization of research topic to give answers to the research questions that arose from the hypothesis:
Why are women property rights important?
Unless women are granted property rights, a country can't develop. Women property rights promote gender equality, which eventually leads to development. Lack of these rights causes underemployment of women and keeps them impoverished. According to UN Habitat, every 1 in 4 developing countries have laws that impede women from owing property. As argued by World Bank, countries with the unequal inheritance laws have also unequal property rights regimes.
Hence, women's property rights are important, as these are fundamental to women's economic security, social and legal status, and sometimes their survival. Land and property ownership empowers women and provides income and security. Without property rights, women have limited say in household decision-making, and no recourse to the assets during crises (be it divorce or death of a husband or any other difficult situation). The lack of property rights also results in domestic violence.
What are the women property rights?
Women, under the international law, have equal property rights. It applies for both movable and immovable (or tangible and intangible) properties. However, in many countries of the world, women property rights are limited by norms, religious traditions, social customs and legislation.
To what other issues have women property rights linked to?
Like other human rights issues, women property rights are linked to discriminatory inheritance practices, agriculture, gendered control over economic resources, right to work and domestic violence or violence against women.
Granting women equal property rights means decreased threat of discrimination, domestic violence and other human rights violations. It also has positive impact on political participation and women empowerment.
What leads to the violation of women's property rights?
The fundamental factors for violations include "discriminatory laws and traditional customs, prejudiced attitude towards women property rights, indifferent authorities and inefficient court system. Those women who assert for their rights are termed as "greedy".
What are the consequences of women property right abuses?
These violations make women dependent on men. They remain poor and are not treated equal to men. They have to live in abject living conditions and are always at the risk of violence both in their parent's home and in-laws. The main consequence of these abuses is that the country remains underdeveloped.
Property rights confer many benefits on women and their families including increased bargaining power, (Social Protection and Economic Autonomy. Women property rights increase the bargaining power of women both in and outside the household and views are heard.
While in the developing countries, parents are usually dependent on their children. Children take care of the parents if parents retain control over their productive assets and are enjoying property rights. Strong property rights give women the much-needed economy whether they are living with their parents or husband. If they lack access to property rights, they remain dependent and their household work and other activities remain invisible and unaccounted for.
What is ownership of land, house, and company?
Ownership of any of the movable and immovable property comes under the property rights. Property rights are the rights to own, acquire (through purchase, gift, or inheritance), manage, enjoy, and dispose of tangible and intangible property, including land, house, money, bank accounts and other assets, livestock, and crops.
Why are women property rights important?
Unless women are granted property rights, a country can't develop. Women property rights promote gender equality, which eventually leads to development. Lack of these rights causes underemployment of women and keeps them impoverished. According to UN Habitat, every 1 in 4 developing countries have laws that impede women from owing property. As argued by World Bank, countries with the unequal inheritance laws have also unequal property rights regimes.
Hence, women's property rights are important, as these are fundamental to women's economic security, social and legal status, and sometimes their survival. Land and property ownership empowers women and provides income and security. Without property rights, women have limited say in household decision-making, and no recourse to the assets during crises (be it divorce or death of a husband or any other difficult situation). The lack of property rights also results in domestic violence.
Is right to property a legal right?
Owning a property is no longer a fundamental right because of an amendment to the Constitution Act 1978. However, it is very much a legal, human and constitutional right.
Can daughter claim father's property after marriage?
Yes, as per law, a married daughter has every right to claim a share in her father's property. She has as much right as her brother or unmarried sister.
What does the right to property include?
All Indians have the right to own property. They also have rights to acquire, manage, administrate, enjoy and dispose of their property. Unless any of this is in conflict with the law of the land, the person cannot be held guilty.
Does son have right on father's property?
Yes, a son is a Class I heir and has right on the father's property.
Women's Property Rights in India
A Historical Overview Women's Property Rights & Vedic Period : During Vedic period woman was considered as a goddess and was adored. The only Disability from which she suffered is that she didn't have the right of inheritance. Vedic literature prescribed inheritance to the unmarried daughter and to a brother-less married daughter. The widow was not given any right of inheritance in her husband's property but childless widow was entitled to succeed to her husband estate. Women's Property Rights & Mediaval Period : The Indian woman's position in the society deteriorated during the medieval period when Sati , child marriages and a ban on widow remarriages became part of social life .The Muslim invaders brought the purdah practice in the Indian society. Among the Rajputs of Rajasthan, the Jauhar was practiced. Polygamy was widely practised especially among Hindu Kshatriya rulers.Women had no property rights during this period.
Women's Property Rights & Smriti Period: In the smriti period, the widow, the daughter, and the mother were expressly named as heirs. But they could succeed to the property of a man only in the absence of male heirs.
Under this law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparcenars, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary.
This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth.
Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female relations as being entitled to inherit namely - widow, daughter, mother,paternal grandmother, and 5.paternal great-grand mother
The Hindu Succession Act, 1956, was the first law to provide a comprehensive system of inheritance among Hindus-and Jains, Sikhs and Buddhists-and address gender inequalities in the area of inheritance.
It applies only in the case of intestate succession and to anyone who converts to Hinduism and their children. The intestate's children (married or unmarried daughter or son), mother and widow get equal share. It has no application in case of testamentary succession (where there is a will).
The Act confers absolute rights, including unfettered rights of disposal of property, on the female in any property-movable and immovable-acquired by inheritance, demise, partition, in lieu of maintenance, arrears of maintenance, gift, property acquired by her own skill, purchase, prescription or in any other manner, and also stridhana, which includes ornaments, apparel, gift received at the time of wedding, property acquired out of her savings.
Section 6 of this Amendment Act ( 2005 ):
It provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family. The daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. The excepted categories to which new Section-6 is not applicable are two, namely:
The rules relating to intestate succession among Christians would come into operation only if the deceased had not executed a will or any document of gift or a settlement deed. In the absence of the aforesaid documents the rules regulating succession enumerated under sections 29 to 49 in Part V of the Indian Succession Act, 1925 would come into play. But, if there is a Will executed by the deceased, the general law as contained in sections 57 to 391 would apply.
The Importance of Intellectual Property Rights in 2021
The origins of intellectual property rights can be traced back to two British statues established during the 17th and 18th centuries. The Statute of Monopolies, enacted in 1624, prohibited the majority of royal monopolies, but preserved the right to grant a letters patent for new inventions for up to 14 years.1 The Statute of Anne, also known as the Copyright Act of 1709, gave book publishers legal protection for 14 years, and granted 21 years of protection for books already in print.2 In the nearly 400 years since the Statute of Monopolies was made law, we have seen intellectual property rights continue to change and evolve around the world.
Why are intellectual property rights important in the modern era? Let's explore.
A Brief Review of Intellectual Property Rights
The various types of intellectual property protections have been covered in depth here on the Cardozo Online Blog, along with IP law for beginners and landmark cases that continue to shape business, entertainment, art, and more. Let's review the various types of protections to further our understanding of how IP law is essential in today's world.
Why Intellectual Property Rights are Important Today
In 2021, intellectual property rights are more important than ever in this global, highly-connected digital landscape. With all of the good the rise of the internet has done for the sharing of information and ideas, it has unfortunately become easier for ideas and works to be stolen, which can be damaging to both national economies and innovation.
Intellectual property protection varies from country to country, but countries that have strong IP laws recognize the important impact original works, designs, inventions, etc. have on the overall economy. Almost every country that has a dependence on international trade takes strong measures to protect their intellectual property rights.3
With the rise of intangible assets that are shared across the internet, it is easy for people to unlawfully copy and share books, music, movies, and more. Copyrights, patents, trademarks, and trade secrets and the laws around these protections are all intended to encourage innovation and creativity and are essential to the practice of IP law to help curb illegal activities.
Organizations like the World Intellectual Property Organization (WIPO) underscore the importance of fostering IP-driven innovation to incentivize and protect creativity. WIPO is a global forum for intellectual property services and is a self-funding agency of the United Nations, with 193 member states.4 In 2020, World IP Day, which is celebrated annually on April 26, focused on the race to find a cure or vaccine for COVID-19.5 Without the proper enforcement of intellectual property rights, vaccine rollouts in 2021 may not have been possible.
Supreme Court's View
Defining the property as a legal concept, the Supreme Court in:
It was due to the reason of giving such a wide meaning to 'property' that in one case (Shantabai V. State of Bombay) it was held that a bare contractual right unattended with any interest in property is property.
The modern judicial trend to interpret right to property in the light of Article 21 of the Constitution dealing with personal liberty also deserves mention at this place. The Apex Court in a number of cases has expressed the view that Article 21 in its widest magnitude covers a variety of rights which constitute the personal liberty of a man.
Therefore, despite the fact that the right to property as a fundamental right has been abrogated and repealed, this right may still be interpreted by the Court as an aspect of personal liberty under Article 21.
Right to Property in India
After the Indian Independence, when the Constitution of India came into force on 26th January, 1950, the right to property was included as a 'fundamental right' under Article 19(1)(f) and Article 31 in Part III, making it an enforceable right.
However, during the first decade of independence era, it was felt that the right to property as a fundamental right was a great impediment in ushering a just socio-economic order and a source of conflict when the State was to acquire private property for public purposes, particularly, expansion of rail, road and industries etc.
In order to get rid of this hurdle, the Supreme Court in the historic case known Fundamental Rights Case held that the right to property is no part of the basic structure of the constitution and therefore, Parliament can acquire or take away private property of persons for concerned good and in the public interest.
Thereafter, Parliament passed the Constitution 44th Amendment which made right to property an ordinary legal right under Article 300-A.
However, the Supreme Court in one of the cases has made it clear that the executive cannot deprive a person of his right to property without the authority of law. The State can acquire a person's property for public purpose on payment of compensation, which need not be necessarily just equivalent of the value of the property so acquired, but such compensation must not be illusory and irrationally disproportionate.
The latest position with regard to property in India is well expressed by the Supreme Court of India in Indian Handicraft Emporium v. Union Of India, wherein the Court observed that right to property is a human right as a constitutional right under Article 300-A, but it is not a fundamental right. It is indeed a Statutory right but each and every claim to property would not be property rights.
Modes of Acquisition of Property/ when possession ripens into ownership
There are four important modes of the acquisition of property. They are: Possession, Prescription, Agreement, and Inheritance. These four modes may be put in two classes:
1. Acquisition inter Vivos- it includes possession, prescription and agreement.
2. Succession on death i.e. Inheritance.
Acquisition inter Vivos- As mentioned earlier it includes the possession, prescription, agreement which are discussed as follows:
Possession
Possession is the objective realization of ownership. It is prima-facie evidence of ownership.
The property which belongs to no one i.e. res nullius, belongs to the first possessor of it and he acquires a valid title to it as against the world. Thus the fish of the sea and the bird flying in open sky belong to one who first succeeds in obtaining possession of them and acquire an absolute title over them. This mode of acquisition has been called as occupatio in Roman law.
A property which is already in possession of someone else, when acquired by possession, gives a good title to the possessor against all third persons except the true owner. In such a case of adverse possession there are in fact two owners, the ownership of one is absolute and perfect, while that of the other is relative and imperfect and often called as possessory ownership by reason of its origin in possession.
If the person in adverse possession i.e. possessory owner is wrongfully deprived of the thing by a person other than the true owner, that person cannot set up the defence of jus tertii, that is, he cannot plead that the thing does not belong to the possessory owner either.
In other words, a possessory owner's possession shall be protected against all except the true owner. This rule is justified on the ground of maintenance of peace and order and to prevent misuse of force.
Prescription
Prescription may be defined as the effect of lapse of time in the creation and extinction of legal rights. It is operation of time as a vestitive fact.
It has two aspects, namely, positive or acquisitive and negative or extinctive.
The creation of a right by the lapse of time is called the positive or acquisitive prescription whereas the extinction of a right by the lapse of time is called extinctive or negative prescription.
For example, the acquisition of right of way by use of it for a prescribed period (in India according to the easement act this period is 20 years) is a positive prescription.
For example, the right to sue for debt is destroyed after a prescribed period (in India it is 3 years). Thus, it is a case of negative prescription. The prescription is based on a conclusive prescription of rightfulness of a long possession, and it is against the person who is not in possession or is not exercising his rights.
The positive prescription is generally based on the ground of possession. Therefore, it would apply on those objects only which admit of possession.
Negative prescription is common to law of property and obligations. According to Salmond, negative or extinctive prescription is of two kinds, namely: Perfect and Imperfect.
Perfect negative prescription results in the destruction of principal right itself whereas imperfect prescription destroys only the right of action not the principal right.
Law of prescription is based on the general principle that law helps the vigilant and not the dormant.
Agreement
Property may also be acquired by agreement which is enforceable by law.
Paton defines agreement as an expression by two or more persons communicated to each other, of a common intention to affect the legal relations between them. It therefore follows that an agreement has four essential elements, namely:
1. It being a bilateral act, there should be two or more parties to an agreement;
2. Mutual consent of the parties;
3. It should be communicated;
4. There should be common intention to affect the legal relationship.
As a proprietary right in rem, agreement is of two kinds, namely:
1. Assignment;
2. Grant.
An assignment transfers the existing right from one owner to another, e.g., assignment of a subsisting lease-hold from assignor to assignee.
Under a grant, new rights are created by way of encumbrance upon the existing rights of the grantor, e.g., grant of a lease of land is the creation of agreement between grantor and grantee.
Agreements may either be formal or informal. Formal agreements are written and require the formality of registration and attestation of the deed to be completed before they are effective. Informal agreements are verbal and do not require any formality.
Inheritance
The right of inheritance is found on the assumption that property serve as a best means of social security. Security of food, dwelling house and means of living to the members in a joint family was the foremost obligation of the Karta which barred from him alienating the family property except for legal necessity and family benefit or seeking relief from distress.
This in turn conferred right of inheritance to the coparceners which included right to be maintained out of family property and to claim partition as co-owners. Even the illegitimate sons, who were not entitled to inherit property as heirs, were required to be maintained by their father.
Mitakshara rules of succession regulated the law relating to inheritance applying the principle of survivorship. The wife, widowed mother, minor sons and daughters as a child in the mother's womb (unborn) were entitled to inherit property as successors of the deceased and they could not be deprived of this right by alienation or otherwise.
The death of the owner of property could result in two kinds of rights, namely:
Proprietary rights are inheritable and most personal rights are un-inheritable.
But there are certain exceptions to this general rule. For example, the right of action survives the death of both parties as a general rule. Proprietary rights may be un-inheritable in case of a lease for the life of the lessee only or in case of joint- ownership.
The rights which a dead man behind him vest in his representatives or successors. But he has also to bear the liability of the deceased. This liability is, however, limited to the amount of property which he has acquired from the deceased. Thus, inheritance is some sort of legal and fictitious continuation of the personality of the dead man.
Succession to the property of a person may be either testate or it may be intestate i.e. by means of will or without a will.
If the deceased had made a will, succession would take place according to the terms of the will.
But if there is no will, then succession would take place by the operation of law which is known as non-testamentary succession. In case there are no heirs of the deceased, his property shall vest in the state.
The power of a person to dispose of his property by testament (will) is subject to the following limitations:
A person cannot dispose of his property by will in such a way as not to vest in any person for a very long time. The property vests in some person within a prescribed time.
Limitation of Quantum Amount
In most legal systems, a testator cannot dispose of his entire estate but instead he has to leave a certain portion of it for those to whom he owes a legal duty to support such as wife, children, etc.
In Mohammedan law, a person cannot dispose of more than one-third of his property by will without consent of his heirs. This provision is made so that the dependants and legal heirs of the deceased may not be disappointed. However, this limitation does not exist in all the legal systems, and in some systems the whole property may be willed away.
Limitation of Purpose
A person while exercising power of testamentary disposition may provide that his estate may be used by his heirs and successors for the benefit of other persons who survive him.
However, he cannot validly leave any direction in the will which is against public interest, nor can he withdraw the property from the use of the living persons.
For example, he cannot leave a direction in his will that his money be buried in the grave along with his dead-body or thrown into the sea, that his estate or land shall lie waste after his death. Such a testamentary disposition shall be wholly void.
In conclusion It may be stated that the concept of property has a special significance in jurisprudence because the determination of proprietary rights such as ownership, title, etc. is solely based on property.
The concepts of ownership and possession have also originated from the conception of property. Again, rights and duties are also closely related to property. It is for this reason that the law relating to property has been developed as an independent branch of law in jurisprudence. The estate or property for which there is no heir or successor, shall vest in the State.
Recent judicial developments in India are promoting gender equality by recognizing property rights for Indian women. The 2005 Hindu Succession Amendment encourages Hindu females' ownership. The role of courts is crucial, as they interpret laws granting property rights to women in society's interest.
References:
It holds the distinction of being the second most debated Article in the Constituent Assembly, the most amended provision of the Constitution and the only fundamental right to ever be deleted. The history of the Article is commonly understood as arising from an ideological institutional conflict between a Parliament in pursuit of socialism and a judiciary safeguarding individual freedoms.
However, looking at the Article and its initial amendments from a "law and development" perspective provides a critique of the current narrative of "conflict" and offers an alternative interpretation of the history of Article 31. The paper argues that rather than arising from the pursuit of either authoritarian socialist planning or an egalitarian social revolution, the travails of the Article came in the context of India's quest for economic modernity through a process of "passive revolution".
The powers of eminent domain reinforced in the Article empowered the state to modernise economic relations in industry and agriculture by restructuring a semi-feudal pre-capitalist property rights regime established during colonialism along productive capitalist lines. In this process, the Article helped to consolidate the powers of the developmental state in the domain of economic policy; forged the relationship between state, market and the individual; and helped shape the regime of private property rights in India.
Understanding the evolution of the fundamental right to property in India therefore, not only tells a key part of India's development story but also contributes to the "law and development" literature by assimilating diverse historical experiences within its framework, which, as critics have long argued, tends to have a strong Eurocentric bias. Rather than disputes leading to violence, the legal system resolves them.
Without such a system, there is no right to an asset or retail estate. For example, let's say Mr Jones builds a house for himself. He may leave it vacant for a time, only to find someone else has moved in. Without property rights and a legal system, he has no ownership, therefore, he has no authority to remove the other party.
This defeats the point of ownership – highlighting the importance of property rights. With property rights, Mr Jones is able to use the legal system to evict and reclaim the property that is his. The culprit will be brought to court and will be forced to pass back the property to the rightful owner.
If the consumer has no right over the good they purchase, then anybody can freely take it. As a result, trade halts and production is almost non-existent. Imagine a society where there is no consequence of theft – which would be the state the economy without property rights.
Women have less access to shelter, income, water, food, education, and healthcare when compared to men, leading to what is often called the "feminization of poverty." While women are increasingly heads of households, today's women and girls in
developing countries make up 70 percent of the estimated 1.2 billion people living in absolute poverty, defined as living on less than $1 a day. No doubt one cause in the overrepresentation of women in poverty is the fact that land and other real property are generally considered to represent about 75 percent of a nation's overall wealth, and women own only an estimated 1-2 percent of all titled land worldwide.
While there is a dearth of reliable and comprehensive data on the extent of inequality between males and females with regard to access to and control over land and real property, particularly in urban areas, available surveys and studies indicate that the disparity is substantial.1
The plight of women in poverty seems destined to continue unless there is significant reform and strengthening of laws, policies, and practices relating to ownership and control of property throughout the developing world, and among approaches taken by donors supporting these reforms. Improving the property rights of women is a matter not only of human rights and gender equality; it is a fundamental principle that underlies economic development for all people.
There is an abundance of research showing that when women's incomes go up, the additional income goes directly to increasing household consumption and therefore into the overall economy; men on the other hand spend much of their income on personal items.2 In addition,
Women's lack of property rights has been increasingly linked to other development:
Problems, including low levels of education, hunger, and poor health.3 For women, there is a linkage between rural and urban poverty. Rural women's incomes could increase if they own or control land, individually or jointly, and have the benefit of legally recognized use and inheritance rights.
Ongoing exclusion of women from rural land rights pushes them toward the cities, where they often join the increasing ranks of women-headed or women-only house holds in slum areas where inadequate housing is the norm and homelessness is all too common. While women make up 66 percent of the labor force in urban areas of developing countries, they account for only 10 percent of income. With urbanization of poverty as well as
Feminization of poverty on the increase, it is critical for women living in peri-urban or urban
settings to have clear rights and independent access, use, and control of property and housing for their own economic benefit and empowerment, and for them to reach their potential in contributing to their countries' overall economies. The purpose of this paper is to explore the nexus of three issues that individually are touchstones of international donor efforts to improve conditions and reduce poverty in developing countries, but are not usually considered together or in terms of how they relate to each other.
These issues are gender equality in property rights, i.e., the rights of women to participate in property use and ownership with full legal and societal protection the importance to economic development of residential and commercial property rights in urban areas; and the role of women in economic development. There is widely available literature about each of these individual issues, but little has been written about how they intersect, and why more emphasis on programs that view them in a holistic manner would make development efforts more efficient and beneficial.
In Sections II, III, and IV, this paper sets out the individual issues and some of the better and worse practices that have been used in addressing them in international development programs. These sections emphasize factors that are then drawn together in Section V, which provides recommendations for addressing all three in a coordinated and more effective way.
Intellectual property (IP) rights are legal and institutional devices to protect creations of the mind such as inventions, works of art and literature, and designs. They also include marks on products to indicate their difference from similar ones sold by competitors. Over the years, the rather elastic IP concept has been stretched to include not only patents, copyrights, trademarks, and industrial designs but also trade secrets, plant breeders' rights, geographical indications, and rights to lay out designs of integrated circuits, among other things.
To proponents, IP rights contribute to the enrichment of society by promoting: (1) the widest possible availability of new and useful goods, services, and technical information that derive from innovative activity, and
(2) the highest possible level of economic activity based on the production, circulation, and further development of such goods, services, and information. These objectives are supposed to be achieved because owners can seek to exploit their legal rights by turning them to commercial advantage. The possibility of attaining such advantage, it is believed, encourages innovation. But (typically) after a certain period of time, these legal rights lapse and the now-unprotected inventions and works can be freely used by others.
IP rights have never been more economically and politically important than they are in today's so-called 'knowledge-based society.' Neither have they ever been so controversial. IP rights are frequently mentioned in discussions and debates on such diverse topics as human rights, agriculture, health, education, trade, industrial policy, public health, biotechnology, biodiversity, environmental protection, information technology, the entertainment and media industries, and the widening gap between the income levels of the developed countries and the developing countries.
Such importance and controversy arise from the fact that today's international IP rules require both developed and developing countries to provide strong and uniform standards of protection. The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), one of the main outcomes of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), which is administered by the Geneva-based World Trade Organization (WTO), is of special importance in that it establishes enforceable global minimum (and generally high) standards of protection and enforcement for virtually all the most important IP rights in one single agreement.
However, there is much more to today's global IP regime than TRIPS. The architecture of the global IP regulatory system includes an increasing diversity of multilateral agreements, international organizations, regional conventions and instruments, and bilateral arrangements. In sum, the international law of IP in its present form consists of three types of agreement.
These are multilateral treaties, regional and supranational treaties or instruments, and bilateral agreements. Of these, the agreement that affects the greatest number of countries is TRIPS. Important also are multilateral treaties administered by the World Intellectual Property Organization (WIPO), a specialized United Nations agency that is also located in Geneva. Prominent examples of the latter include the 1883 Paris Convention for the Protection of Industrial Property and the 1886 Berne Convention for the Protection of Literary and Artistic Works.
Most multilateral IP rights agreements are administered by WIPO, but there are some important non-WIPO treaties such as the 1961 International Convention for the Protection of New Varieties of Plants, which is administered by the Union Internationale pour la Protection des Obtentions Végétales (UPOV) (which shares a headquarters with WIPO in Geneva) and of course, TRIPS. Important regional agreements and instruments include the 1973 European Patent Convention (updated in 2000) and the 1998 European Union Directive on the Legal Protection of Biotechnological Inventions.
A new right over plant material, in some respects analogous to conventional IP rights, was foreshadowed by the Convention on Biological Diversity (CBD, Rio, 1993) and further defined by the Nagoya Protocol to the CBD (2015).
Objectives
This objective of this paper is to describe what exactly the term "property rights" and equality signify and also to present the provisions that are already present in our constitution but are:
Importance Of Property Rights
- Property Rights Guarantee Freedom
Property rights guarantee freedom because control of production is spread among many acting bodies; nobody has complete power of resources. Whether 'society' or central government controls the means of production; both have complete control.
When governments own resources, a few people decide what to produce, how much to produce and for how much. Instead, millions of individuals own their own resources which they can use for whatever they see fit. This allows for the right and freedom for individuals to pursue their own interests. At the same time, it provides an incentive for people to live, work, and save.
- Economic Progress And Incentive To Work
Without private property, what incentive is there to work? If the house you live in is not yours, then why make improvements? You may not own the house, but who does… the government? What would be the incentive to build the house in the first place?
When there is no private property, there is no incentive other than subsistence. Private property gives individuals an incentive to earn, invest, and accumulate wealth. It incentivizes people to earn as wealth can accumulate. That accumulation can be used for future consumption.
Human wants are inherently infinite and private property allows humans to accumulate wealth and satisfy future wants. This can be for the purpose of our own consumption, but also the purpose of providing for our children.
- Protection of Ecosystem
The importance of property rights can be extended to the ecosystem. What such rights do, is assign the right to a specific piece of land. Without such, it is a common resource that can be used and exploited by everyone. For example, fishing is a known area that can potentially lead to overuse without property rights.
If a fisher owns rights to a specific part of the sea, it is in their interest to ensure there will be sufficient fish in the long term. This results in limited resource extraction. A fisher will want to ensure they can make an earning tomorrow.
What these property rights do is allow for the long-term allocation of resources to be considered. Without such, individuals will rush to catch all of the fish in the sea before others are able to benefit.
- Intellectual Property Rights
Private property rights extend beyond the realms of physical property. There are also intellectual property rights to consider such as patents, copyrights, trademarks, and trade secrets. These protect ideas and business secrets, but how do these help the economy and society? Well, they provide the foundations for ideas to grow and develop.
Are businesses going to spend years and millions on developing a new product or idea, only for it to be copied at a fraction of the cost? It allows businesses to protect their trade secrets like Coca-Cola does with its recipe. Without protections like patents, investors are unwilling and unlikely to invest. For example, within the pharmaceutical sector, millions of dollars are spent on research & development, which requires patent approval.
IP rights incentivizes entrepreneurs to keep innovating and pushing for new developments and technology in the knowledge that they will be protected in the end.
- Protection From Confiscation and Government Control
The ease at which the government can take back property is a serious concern; so many systems try to prevent this through the allocation of property rights. Some countries employ restrictions on government's power, but they do not prevent government over-reach. For example, the US government has a power called 'eminent domain'. This allows the confiscation of private property for public use – as long as a fair price is paid. The courts then judge what a fair price is. However, this price is frequently below the owner's value.
Whilst the US has strong property rights, they are by no means encompassing. When we look at countries with strong property rights, we see a direct correlation with prosperity.
Countries such as Singapore and Hong Kong rank highly on property rights. The likes of Venezuela and Haiti are among the weakest. It only goes to show the importance of property rights. Without such strong property rights, nothing will protect the average citizen from government dictatorship and control.
- Absence of property rights can lead to violence
In some countries such as India, residents are easily evicted without warning or compensation. Thousands are displaced due to infrastructural projects which force residents to resettle elsewhere. This can lead to resentment, anger, and violence.
When individuals believe that the home they built is theirs, but others come and destroy it, violence can result. It might be a government or privately led project that claims the land for re-development – at the price of peoples livelihoods. Without private property rights, those residents have no recourse to fight other than through physical means. They cannot go to court, and they have no legal right to that land due to the absence of property rights.
- Economic Prosperity
When individuals have a claim on a land, home, or other type of property, they are able to benefit economically. For example, that asset can be sold on to another individual, with the associated rights also being passed on. In addition, that asset can be used as collateral to borrow money. Homes are frequently used as collateral in order to allow consumers to obtain a mortgage – something that would be impossible without property rights.
Mortgage lenders own the official property rights until that debt has been paid off, whereby the title deeds are then transferred over to the owner. Only once the mortgage is paid, are the property rights transferred, but it is through this agreement which makes lending thousands of dollars a secure transaction for lenders. Without property rights, there would be no mortgage business.
The same applies to businesses and shareholders. Investors would not invest billions of dollars into businesses if they did not have a stake in that company. Once shares are purchased, they have a formal and legally recognized stake in that company. Without property rights, it could own a share, but would have no legal basis if the company said that it did not issue those shares.
The Literature Survey
Guide to the literature survey
The literature on intellectual property rights dates as far back as the era of the classical economist such as Adam Smith and even beyond. Not surprisingly, then, the volume of literature on the subject that has accumulated over the years is immense, and a survey of this kind can only cover a small fraction of what actually exists. in more recent times, one can notice that interest in the subject of intellectual property rights has spread from the law and economics departments of universities to disciplines which traditionally did not consider IPRs as being of relevance.
The intellectual property literature has proliferated and expanded, attracting the interest of researchers in such fields as sociology, anthropology and ethnobiology, international relations and political science, and moral and legal philosophy. In addition, IPRs have become integral to the work of NGOs and international organisations concerned with development and trade. Therefore for a literature survey on IPRs to be at all comprehensive, a very wide net indeed needs to be cast. The survey focuses on writings published since 1995. However, particularly significant earlier texts are also included.
The references are arranged by the following subject areas:
- General texts
- Public health
- Agricultural development, food security, and nutrition
- Education
- Business and industrial development
- Biotechnology
- Information and communication technologies, and media
- Technology transfer and direct foreign investment
- Administration and enforcement
- Trade and competition
- The TRIPS Agreement
- Traditional knowledge
- Music, folklore, and entertainment
- Biodiversity and the environment
- Human rights
Rather, for busy development practitioners and policy-makers who are unfamiliar with the subject of intellectual property rights, the most profitable return on a limited time investment is likely to be gained by focusing on those selected texts. It is worth pointing out that some of the most interesting studies on different aspects of intellectual property may be found in works that are not primarily about IPRs.
Nature of Property Rights:
Property rights have certain characteristics which are not possessed by other kinds of rights and duties.
- Property Rights are Transferable:
Property can be transferred by its owner by way of sale, exchange or gift. It can be transmitted from one generation to the next. "In any .event the conception of property always implies that except on some taboo on sale or transmission it could be transferred", say Davis. In this sense a person's right in his wife or his skill are not property rights, for they are not transferable.
- Property Rights involves a Distinction between Ownership and
Possession of a Thing:
There is distinction between ownership and possession of thing. A person a may own a thing but he may not actually use and enjoy it. Another person may steal it to use and enjoy, borrow with the owner's consent. A person may own a building, but it may be in the possession of another person (tenant) at a cost.
- Power Aspect:
The third characteristic of property is its power aspect. As a social institution, property gives power, not only over things, but through things also over persons. The possession of property implies the possession of power over others. It has been an instrument whereby those who own it can control the life and labour of those who do not own it. In a capitalist society, for example, the owners of capital have control over the life arid labour of those who do not own it.
- Property is usually Non-human:
This means that the object of property has no rights of its own but is simply the passive object of such rights. The land has no right of its own; it only serves the land owner. It is the owner's will, his discretion and advantage that are served by the object. Human beings cannot be the object of property. For example, a woman cannot be the object of property of her husband. Property rights apply only to those things which have no rights of their own.
The nature of property rights and type of property vary from society to society and within a particular society over time because property rights are socially terminated. We find different forms of property. Property may be broadly classified into two types, private property and common (public property).
An outstanding feature of modem economic life is the institution of private property. The term private property usually applies to rights held by individuals or groups acting in their own interests. The term 'public property' refers to rights held by the community at large and administered by individuals or groups acting as agents of the community. These two types of property differ in the focus of ownership as well as kinds of property rights exercised.
Private property again may be classified into two types: individual property and collective property. In individual property, the control is vested in an individual. Collective property may take various forms depending on the collective entity having ownership and control; it may be
Types of Corporations:
- a private corporation,
- a quasi-public corporation, and
- a public corporation.
Differences between Private and Public Property:
- Private property is owned by a person or group of persons, whereas public property is owned by the community.
- Private property is usually used by its owner for his own good, while public property is used for public good.
- Private property is regulated by the laws of the State, while public property belongs to the State itself and not subject to regulation by any external group.
According to Bottomore, "property for power and unlimited acquisition of wealth was product of capitalism," it reached its peak in nineteenth century Europe and North America. Individual private ownership is the basis of capitalist economic system.
Advantages of Private Property:
The institution of private property has gathered a great controversy. It has been defended and attacked on various grounds. On the one hand, it is regarded as essential for social progress, on the other, it is called "theft'.:
The advocates of the institution of private property put forth the following arguments in favour of its advantages:
- Natural Right Argument:
John Locke argued that property is natural to man. The right to private property arises because by labour a man extends his personality into the objects produced. Like the right to life and liberty, property right is also fundamental, inalienable right of an individual. No person and no Government can rightfully infringe upon it. Property is necessary for rational existence of man. It is necessary for the free play of individual capacities.
- Incentive to Work:
It is said that man needs an incentive to work. The concept of private property ensures a labour, control over all the gains of his labour. This motivates him to do still better. It raises his efficiency, satisfaction and indoctrinates a sense of protection.
- Provides Security against Future:
Property provides security to man against starvation. Property is a fore-guard against the wants of tomorrow. Those who have no property, are uncertain about the means of life in future. Economic insecurity discourages social evils such as exploitation. Private property generates sense of security.
- Ethically Sound:
The right to property has always been justified on the ground that it is the reward to an individual to work more and more. It extracts hard and sincere efforts of the worker.
- Property is the Nurse of Virtues:
Property generates social virtues; family sense and affection as well as generosity. It attaches great social virtues to the holder who behaves benevolently. It generates a feeling of social service and sacrifice for the noble cause.
- Socio-economic Progress:
The institution of private property has been the major contributory to the progress of civilisation.
Disadvantages:
There are some thinkers who maintain that private property creates evils. The disadvantages that are generally attributed to it are discussed as under.
- Greed for Property:
Private property makes man greedy. He wants to earn more and more money by any means. He even forgets morality. Private property thus, leads to moral degradation.
- Basis of Capitalism:
Advertisements:
Private property is the basis of capitalism. In capitalism, every person has the right to earn and maintain property. Capitalism is harmful to both the individual and society.
- Breeds Inequality:
Private property is not available to each and every individual because of scarcity. It breeds inequality. Since property begets property and so the rich produce goods and services not for use, but to acquire property from their production. Private property creates wide gap between the haves and have-not's. The ownership of private property gives power to direct the lives of those who have no property.
The rich get control over the political machinery and use it for their advantage. They also corrupt legislatures. They artificially combine to increase the cost of their commodities to the public. Private property breeds social exploitation, inequality and subjugation.
- Breeds Corruption:
Private property breeds corruption that poisons the whole social life. Rich advance their interest at the cost of poor. They satisfy their lust for wealth by exploiting the needs of others. It corrupts the social values like love and generosity, benevolence and charity.
Private property divides the society. It generates disharmony and antagonism. It generates unemployment. In the capitalist economy, as far as the masses of workers are concerned, property cannot be said to have fulfilled its primary social functions of providing security and permanence as basis of freedom and initiative.
Hypothesis
The property rights can facilitate attainment of other development goals.
Research Questions:
- Why are women property rights important?
- What are the property rights?
- To what other issues have women property rights linked to?
- What are the regulations of property rights?
- What leads to the violation of women's property rights?
- What are the consequences of property right abuses?
- What are the benefits of women property rights?
- What is ownership of land, house, and company?
Tentative Chapterization
Following is a detailed chapterization of research topic to give answers to the research questions that arose from the hypothesis:
Why are women property rights important?
Unless women are granted property rights, a country can't develop. Women property rights promote gender equality, which eventually leads to development. Lack of these rights causes underemployment of women and keeps them impoverished. According to UN Habitat, every 1 in 4 developing countries have laws that impede women from owing property. As argued by World Bank, countries with the unequal inheritance laws have also unequal property rights regimes.
Hence, women's property rights are important, as these are fundamental to women's economic security, social and legal status, and sometimes their survival. Land and property ownership empowers women and provides income and security. Without property rights, women have limited say in household decision-making, and no recourse to the assets during crises (be it divorce or death of a husband or any other difficult situation). The lack of property rights also results in domestic violence.
What are the women property rights?
Women, under the international law, have equal property rights. It applies for both movable and immovable (or tangible and intangible) properties. However, in many countries of the world, women property rights are limited by norms, religious traditions, social customs and legislation.
To what other issues have women property rights linked to?
Like other human rights issues, women property rights are linked to discriminatory inheritance practices, agriculture, gendered control over economic resources, right to work and domestic violence or violence against women.
Granting women equal property rights means decreased threat of discrimination, domestic violence and other human rights violations. It also has positive impact on political participation and women empowerment.
What leads to the violation of women's property rights?
The fundamental factors for violations include "discriminatory laws and traditional customs, prejudiced attitude towards women property rights, indifferent authorities and inefficient court system. Those women who assert for their rights are termed as "greedy".
What are the consequences of women property right abuses?
These violations make women dependent on men. They remain poor and are not treated equal to men. They have to live in abject living conditions and are always at the risk of violence both in their parent's home and in-laws. The main consequence of these abuses is that the country remains underdeveloped.
Property rights confer many benefits on women and their families including increased bargaining power, (Social Protection and Economic Autonomy. Women property rights increase the bargaining power of women both in and outside the household and views are heard.
While in the developing countries, parents are usually dependent on their children. Children take care of the parents if parents retain control over their productive assets and are enjoying property rights. Strong property rights give women the much-needed economy whether they are living with their parents or husband. If they lack access to property rights, they remain dependent and their household work and other activities remain invisible and unaccounted for.
What is ownership of land, house, and company?
Ownership of any of the movable and immovable property comes under the property rights. Property rights are the rights to own, acquire (through purchase, gift, or inheritance), manage, enjoy, and dispose of tangible and intangible property, including land, house, money, bank accounts and other assets, livestock, and crops.
Why are women property rights important?
Unless women are granted property rights, a country can't develop. Women property rights promote gender equality, which eventually leads to development. Lack of these rights causes underemployment of women and keeps them impoverished. According to UN Habitat, every 1 in 4 developing countries have laws that impede women from owing property. As argued by World Bank, countries with the unequal inheritance laws have also unequal property rights regimes.
Hence, women's property rights are important, as these are fundamental to women's economic security, social and legal status, and sometimes their survival. Land and property ownership empowers women and provides income and security. Without property rights, women have limited say in household decision-making, and no recourse to the assets during crises (be it divorce or death of a husband or any other difficult situation). The lack of property rights also results in domestic violence.
Is right to property a legal right?
Owning a property is no longer a fundamental right because of an amendment to the Constitution Act 1978. However, it is very much a legal, human and constitutional right.
Can daughter claim father's property after marriage?
Yes, as per law, a married daughter has every right to claim a share in her father's property. She has as much right as her brother or unmarried sister.
What does the right to property include?
All Indians have the right to own property. They also have rights to acquire, manage, administrate, enjoy and dispose of their property. Unless any of this is in conflict with the law of the land, the person cannot be held guilty.
Does son have right on father's property?
Yes, a son is a Class I heir and has right on the father's property.
Women's Property Rights in India
A Historical Overview Women's Property Rights & Vedic Period : During Vedic period woman was considered as a goddess and was adored. The only Disability from which she suffered is that she didn't have the right of inheritance. Vedic literature prescribed inheritance to the unmarried daughter and to a brother-less married daughter. The widow was not given any right of inheritance in her husband's property but childless widow was entitled to succeed to her husband estate. Women's Property Rights & Mediaval Period : The Indian woman's position in the society deteriorated during the medieval period when Sati , child marriages and a ban on widow remarriages became part of social life .The Muslim invaders brought the purdah practice in the Indian society. Among the Rajputs of Rajasthan, the Jauhar was practiced. Polygamy was widely practised especially among Hindu Kshatriya rulers.Women had no property rights during this period.
Women's Property Rights & Smriti Period: In the smriti period, the widow, the daughter, and the mother were expressly named as heirs. But they could succeed to the property of a man only in the absence of male heirs.
- Property of women under Hindu Law:
- Stridhan
- Non-stridhan
- Under Hindu, there were two schools of thought/laws:
- Mitakshara
- Dayabhaga
Under this law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparcenars, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary.
This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth.
Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female relations as being entitled to inherit namely - widow, daughter, mother,paternal grandmother, and 5.paternal great-grand mother
- Dayabhaga Law:
Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father's life time. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers and they can't compel the father to partition the property in his lifetime and the latter is free to give or sell the property without their consent. If one of the male heirs dies, his heirs, including females such as his wife and daughter would become members of the joint property, not in their own right, but representing him.
Women's Rights to property : In theory, in the ancient times, the woman could hold property but in practice, in comparison to men's holding, her right to dispose of the property was qualified, the latter considered by the patriarchal set up as necessary, lest she became too-independent and neglect her marital duties and the management of household affairs. This was the situation prior to 1937 when there was no codified law.
- The Hindu Women's Right to Property Act, 1937 was the outcome of discontent expressed by a sizeable section of society against the unsatisfactory affairs of the women's rights to property. Under the said Act a widow was entitled to a limited interest over the property of her husband - what was to be termed as Hindu widow's estate.
- The Act was amended in 1938 to exclude the widow from any interest in agricultural land.
The Hindu Succession Act, 1956, was the first law to provide a comprehensive system of inheritance among Hindus-and Jains, Sikhs and Buddhists-and address gender inequalities in the area of inheritance.
It applies only in the case of intestate succession and to anyone who converts to Hinduism and their children. The intestate's children (married or unmarried daughter or son), mother and widow get equal share. It has no application in case of testamentary succession (where there is a will).
The Act confers absolute rights, including unfettered rights of disposal of property, on the female in any property-movable and immovable-acquired by inheritance, demise, partition, in lieu of maintenance, arrears of maintenance, gift, property acquired by her own skill, purchase, prescription or in any other manner, and also stridhana, which includes ornaments, apparel, gift received at the time of wedding, property acquired out of her savings.
- After the Hindu Succession (Amendment) Act,2005 Section In September 2005, the Supreme Court (SC) in a landmark judgment declared that Indian women would have an equal right to a share in property as men, granting daughters the right to inherit ancestral property along with male relatives. So under this Act ,the difference between the female and male inheritor has been abolished. Now even female inheritor [daughter] can claim partition of the ancestral property.
Section 6 of this Amendment Act ( 2005 ):
It provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family. The daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. The excepted categories to which new Section-6 is not applicable are two, namely:
- where the disposition or alienation including any partition which took place before 20- 12-2004
- where testamentary disposition of the property was made before 20-12-2004. 4. Property Rights of Women under Muslim Law : A strict reading of the Quran provides far more liberal rights for women in terms of property than is normally believed. Quran emphasizes four core values i.e Insaaf, ehsaan, rehem and Ilma. Many Islamic states, such as Tunisia, have legislated against this liberalism, since they hold that it places too high of a burden on men.
The rules relating to intestate succession among Christians would come into operation only if the deceased had not executed a will or any document of gift or a settlement deed. In the absence of the aforesaid documents the rules regulating succession enumerated under sections 29 to 49 in Part V of the Indian Succession Act, 1925 would come into play. But, if there is a Will executed by the deceased, the general law as contained in sections 57 to 391 would apply.
The Importance of Intellectual Property Rights in 2021
The origins of intellectual property rights can be traced back to two British statues established during the 17th and 18th centuries. The Statute of Monopolies, enacted in 1624, prohibited the majority of royal monopolies, but preserved the right to grant a letters patent for new inventions for up to 14 years.1 The Statute of Anne, also known as the Copyright Act of 1709, gave book publishers legal protection for 14 years, and granted 21 years of protection for books already in print.2 In the nearly 400 years since the Statute of Monopolies was made law, we have seen intellectual property rights continue to change and evolve around the world.
Why are intellectual property rights important in the modern era? Let's explore.
A Brief Review of Intellectual Property Rights
The various types of intellectual property protections have been covered in depth here on the Cardozo Online Blog, along with IP law for beginners and landmark cases that continue to shape business, entertainment, art, and more. Let's review the various types of protections to further our understanding of how IP law is essential in today's world.
Why Intellectual Property Rights are Important Today
In 2021, intellectual property rights are more important than ever in this global, highly-connected digital landscape. With all of the good the rise of the internet has done for the sharing of information and ideas, it has unfortunately become easier for ideas and works to be stolen, which can be damaging to both national economies and innovation.
Intellectual property protection varies from country to country, but countries that have strong IP laws recognize the important impact original works, designs, inventions, etc. have on the overall economy. Almost every country that has a dependence on international trade takes strong measures to protect their intellectual property rights.3
With the rise of intangible assets that are shared across the internet, it is easy for people to unlawfully copy and share books, music, movies, and more. Copyrights, patents, trademarks, and trade secrets and the laws around these protections are all intended to encourage innovation and creativity and are essential to the practice of IP law to help curb illegal activities.
Organizations like the World Intellectual Property Organization (WIPO) underscore the importance of fostering IP-driven innovation to incentivize and protect creativity. WIPO is a global forum for intellectual property services and is a self-funding agency of the United Nations, with 193 member states.4 In 2020, World IP Day, which is celebrated annually on April 26, focused on the race to find a cure or vaccine for COVID-19.5 Without the proper enforcement of intellectual property rights, vaccine rollouts in 2021 may not have been possible.
Supreme Court's View
Defining the property as a legal concept, the Supreme Court in:
- Guru Dutt Sharma V. State of Bihar, observed that it is a bundle of rights,
and in the case of tangible property, it would include the right of possession,
the right to enjoy, the right to retain, the right to alienate and the right to
destroy.
The Supreme Court has said in;
- Commissioner, Hindu Religious Endowment V. K. Lakshmindra, that there is no
reason why the word 'property' as used in Article 19(1) (f) of the constitution
should not be given a liberal and wide connotation and should not be extended to
those well recognised.
- Dowry: The Muslim woman has all rights to the dowry, including any interest it might earn if in cash. If this dowry money is invested, all profits are the woman's, and there is no legal obligation to share with the man. The dowry, in other words, creates the basis of all female property rights.
- Muslim Women's Property Rights: Division among the sexes in Islam, if anything, is biased against the male. The husband has all the obligations. Legally, the husband must care for the home and children, and any aged parents if applicable. The woman, the wife, need not do any of these things. Her money is hers and hers alone. The man's money is never really his, but belongs to the extended family. These rights serve to liberate women under Islamic law, but bind the man to family support. According to Dr. Nahid Angha, a woman can buy and sell in the marketplace, own her own business and, in the case of divorce, receive all her contributed property, including the dowry. Since the woman has full control over her dowry money and wealth, it follows that Islam cannot legislate negatively against her in any other property matter without falling into contradiction.
- Shares of Property Under Muslim Law: "Allah commands you regarding your children. For the male a share equivalent to that of two females." *A son inherits a share equivalent to that of two daughters, a full (germane) brother inherits twice as much as a full sister, a son's son inherits twice as much as a son's daughter and so on. *"If (there are) women (daughters) more than two, then for them two thirds of the inheritance; and if there is only one then it is half." *The share of the daughter under Muslim law is determined by the principle that a son inherits twice as much as a daughter.
-
Property Rights for Christian Women in India:
- According to the Indian Succession Act, 1925, a Christian widow is entitled to one-third of her husband's property.
- All children get an equal share in the remaining property.
- Children of pre-deceased sons and daughters get their parents share of the property. In case there are no children, the widow gets Rs.5,000 along with half the share of the property left after deducting that amount.
- A child in the womb is also entitled to a share of the property.
- Any money earned by a Christian woman is her own property. Nobody can take it away from her.
- She has the right to will away or gift away her own money, jewelry and other property to anybody she wants.
- Even if a Christian women's father spends money on gifts at her marriage, she is still entitled to a share in her father's property Laws Governing Christian Women's Property Rights in India.
- Christians from Goa are governed by the Portuguese's civil code.
- Cochin and Travancore by Christian Succession Act 1921 and Travancore Christian Act 1916.
- Those in Punjab, Haryana, and Himachal Pradesh by Customary laws.
- Rest by Indian Succession Act Intestate succession among Christians.
It was due to the reason of giving such a wide meaning to 'property' that in one case (Shantabai V. State of Bombay) it was held that a bare contractual right unattended with any interest in property is property.
The modern judicial trend to interpret right to property in the light of Article 21 of the Constitution dealing with personal liberty also deserves mention at this place. The Apex Court in a number of cases has expressed the view that Article 21 in its widest magnitude covers a variety of rights which constitute the personal liberty of a man.
Therefore, despite the fact that the right to property as a fundamental right has been abrogated and repealed, this right may still be interpreted by the Court as an aspect of personal liberty under Article 21.
Right to Property in India
After the Indian Independence, when the Constitution of India came into force on 26th January, 1950, the right to property was included as a 'fundamental right' under Article 19(1)(f) and Article 31 in Part III, making it an enforceable right.
However, during the first decade of independence era, it was felt that the right to property as a fundamental right was a great impediment in ushering a just socio-economic order and a source of conflict when the State was to acquire private property for public purposes, particularly, expansion of rail, road and industries etc.
In order to get rid of this hurdle, the Supreme Court in the historic case known Fundamental Rights Case held that the right to property is no part of the basic structure of the constitution and therefore, Parliament can acquire or take away private property of persons for concerned good and in the public interest.
Thereafter, Parliament passed the Constitution 44th Amendment which made right to property an ordinary legal right under Article 300-A.
However, the Supreme Court in one of the cases has made it clear that the executive cannot deprive a person of his right to property without the authority of law. The State can acquire a person's property for public purpose on payment of compensation, which need not be necessarily just equivalent of the value of the property so acquired, but such compensation must not be illusory and irrationally disproportionate.
The latest position with regard to property in India is well expressed by the Supreme Court of India in Indian Handicraft Emporium v. Union Of India, wherein the Court observed that right to property is a human right as a constitutional right under Article 300-A, but it is not a fundamental right. It is indeed a Statutory right but each and every claim to property would not be property rights.
Modes of Acquisition of Property/ when possession ripens into ownership
There are four important modes of the acquisition of property. They are: Possession, Prescription, Agreement, and Inheritance. These four modes may be put in two classes:
1. Acquisition inter Vivos- it includes possession, prescription and agreement.
2. Succession on death i.e. Inheritance.
Acquisition inter Vivos- As mentioned earlier it includes the possession, prescription, agreement which are discussed as follows:
Possession
Possession is the objective realization of ownership. It is prima-facie evidence of ownership.
The property which belongs to no one i.e. res nullius, belongs to the first possessor of it and he acquires a valid title to it as against the world. Thus the fish of the sea and the bird flying in open sky belong to one who first succeeds in obtaining possession of them and acquire an absolute title over them. This mode of acquisition has been called as occupatio in Roman law.
A property which is already in possession of someone else, when acquired by possession, gives a good title to the possessor against all third persons except the true owner. In such a case of adverse possession there are in fact two owners, the ownership of one is absolute and perfect, while that of the other is relative and imperfect and often called as possessory ownership by reason of its origin in possession.
If the person in adverse possession i.e. possessory owner is wrongfully deprived of the thing by a person other than the true owner, that person cannot set up the defence of jus tertii, that is, he cannot plead that the thing does not belong to the possessory owner either.
In other words, a possessory owner's possession shall be protected against all except the true owner. This rule is justified on the ground of maintenance of peace and order and to prevent misuse of force.
Prescription
Prescription may be defined as the effect of lapse of time in the creation and extinction of legal rights. It is operation of time as a vestitive fact.
It has two aspects, namely, positive or acquisitive and negative or extinctive.
The creation of a right by the lapse of time is called the positive or acquisitive prescription whereas the extinction of a right by the lapse of time is called extinctive or negative prescription.
For example, the acquisition of right of way by use of it for a prescribed period (in India according to the easement act this period is 20 years) is a positive prescription.
For example, the right to sue for debt is destroyed after a prescribed period (in India it is 3 years). Thus, it is a case of negative prescription. The prescription is based on a conclusive prescription of rightfulness of a long possession, and it is against the person who is not in possession or is not exercising his rights.
The positive prescription is generally based on the ground of possession. Therefore, it would apply on those objects only which admit of possession.
Negative prescription is common to law of property and obligations. According to Salmond, negative or extinctive prescription is of two kinds, namely: Perfect and Imperfect.
Perfect negative prescription results in the destruction of principal right itself whereas imperfect prescription destroys only the right of action not the principal right.
Law of prescription is based on the general principle that law helps the vigilant and not the dormant.
Agreement
Property may also be acquired by agreement which is enforceable by law.
Paton defines agreement as an expression by two or more persons communicated to each other, of a common intention to affect the legal relations between them. It therefore follows that an agreement has four essential elements, namely:
1. It being a bilateral act, there should be two or more parties to an agreement;
2. Mutual consent of the parties;
3. It should be communicated;
4. There should be common intention to affect the legal relationship.
As a proprietary right in rem, agreement is of two kinds, namely:
1. Assignment;
2. Grant.
An assignment transfers the existing right from one owner to another, e.g., assignment of a subsisting lease-hold from assignor to assignee.
Under a grant, new rights are created by way of encumbrance upon the existing rights of the grantor, e.g., grant of a lease of land is the creation of agreement between grantor and grantee.
Agreements may either be formal or informal. Formal agreements are written and require the formality of registration and attestation of the deed to be completed before they are effective. Informal agreements are verbal and do not require any formality.
Inheritance
The right of inheritance is found on the assumption that property serve as a best means of social security. Security of food, dwelling house and means of living to the members in a joint family was the foremost obligation of the Karta which barred from him alienating the family property except for legal necessity and family benefit or seeking relief from distress.
This in turn conferred right of inheritance to the coparceners which included right to be maintained out of family property and to claim partition as co-owners. Even the illegitimate sons, who were not entitled to inherit property as heirs, were required to be maintained by their father.
Mitakshara rules of succession regulated the law relating to inheritance applying the principle of survivorship. The wife, widowed mother, minor sons and daughters as a child in the mother's womb (unborn) were entitled to inherit property as successors of the deceased and they could not be deprived of this right by alienation or otherwise.
The death of the owner of property could result in two kinds of rights, namely:
- Inheritable; and
- Un-inheritable rights.
Proprietary rights are inheritable and most personal rights are un-inheritable.
But there are certain exceptions to this general rule. For example, the right of action survives the death of both parties as a general rule. Proprietary rights may be un-inheritable in case of a lease for the life of the lessee only or in case of joint- ownership.
The rights which a dead man behind him vest in his representatives or successors. But he has also to bear the liability of the deceased. This liability is, however, limited to the amount of property which he has acquired from the deceased. Thus, inheritance is some sort of legal and fictitious continuation of the personality of the dead man.
Succession to the property of a person may be either testate or it may be intestate i.e. by means of will or without a will.
If the deceased had made a will, succession would take place according to the terms of the will.
But if there is no will, then succession would take place by the operation of law which is known as non-testamentary succession. In case there are no heirs of the deceased, his property shall vest in the state.
The power of a person to dispose of his property by testament (will) is subject to the following limitations:
- Limitations of time;
- Limitation of amount; and
- Limitation of purpose.
A person cannot dispose of his property by will in such a way as not to vest in any person for a very long time. The property vests in some person within a prescribed time.
Limitation of Quantum Amount
In most legal systems, a testator cannot dispose of his entire estate but instead he has to leave a certain portion of it for those to whom he owes a legal duty to support such as wife, children, etc.
In Mohammedan law, a person cannot dispose of more than one-third of his property by will without consent of his heirs. This provision is made so that the dependants and legal heirs of the deceased may not be disappointed. However, this limitation does not exist in all the legal systems, and in some systems the whole property may be willed away.
Limitation of Purpose
A person while exercising power of testamentary disposition may provide that his estate may be used by his heirs and successors for the benefit of other persons who survive him.
However, he cannot validly leave any direction in the will which is against public interest, nor can he withdraw the property from the use of the living persons.
For example, he cannot leave a direction in his will that his money be buried in the grave along with his dead-body or thrown into the sea, that his estate or land shall lie waste after his death. Such a testamentary disposition shall be wholly void.
In conclusion It may be stated that the concept of property has a special significance in jurisprudence because the determination of proprietary rights such as ownership, title, etc. is solely based on property.
The concepts of ownership and possession have also originated from the conception of property. Again, rights and duties are also closely related to property. It is for this reason that the law relating to property has been developed as an independent branch of law in jurisprudence. The estate or property for which there is no heir or successor, shall vest in the State.
Recent judicial developments in India are promoting gender equality by recognizing property rights for Indian women. The 2005 Hindu Succession Amendment encourages Hindu females' ownership. The role of courts is crucial, as they interpret laws granting property rights to women in society's interest.
References:
- Agrawal, P.K., Land Reforms in India: Constitutional and Legal Approach (New Delhi: M D Publications, 1993). Search in Google Scholar
- Allen, T., The revival of the right to property in India, 10 Asian journal of comparative law, no. 1 (2015).10.1017/asjcl.2015.4 Search in Google Scholar
- Allen, T., The right to property in commonwealth constitutions (Cambridge: Cambridge University Press, 2000).10.1017/CBO9780511493812 Search in Google Scholar
- Ambedkar, B.R., "Memorandum and Draft Articles on the Right of States and Minorities" in B.S. Rao (ed.), The Framing of India's Constitution: Select Documents, vol. II (Delhi: Universal Law Publishing Co, 2004). Search in Google Scholar
- Ananth, V. K., The Indian Constitution and Social Revolution, SAGE Series in Modern Indian History, vol. XVI (New Delhi: SAGE Publications, 2015). Search in Google Scholar
- Appu, P.S., Land Reforms in India: A Survey of Policy, Legislation and Implementation (New Delhi: Vikas Publishing Houses, 1996). Search in Google Scholar
- Austin, G., The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford India Paperbacks, 1999). Search in Google Scholar
- Austin, G., Working a Democratic Constitution (New Delhi: Oxford University Press, 1999). Search in Google Scholar
- Bagchi, A.K., Land Tax, Property Rights and Peasant Insecurity in Colonial India, 20 The Journal of Peasant Studies, no. 1 (1992).10.1080/03066159208438500 Search in Google Scholar
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