1.3.

Kinds of Property

Dhruba Koirala
National Law College
Kinds of Property

2
Contd…
 Kinds of Property, as per Salmond:
1. Corporeal
a. Movable
b. Immovable
2. Incorporeal
a. Jura in re aliena
i. Securities: Mortgage and Lien
ii. Servitude
iii. Lease
iv. Trust
b. Jura in re Propria
i. Patent
ii. Copyright
iii. Trademark

3
Contd…
 Kinds of Property (on the ground of various Jurists):
1. On the basis of nature of existence and
corporeality:
a. Corporeal property
b. Incorporeal property
2. On the basis of Movability of Property:
a. Movable property
b. Immovable property
3. On the basis of English Legal Development:
a. Real property
b. Personal Property

4
Contd…
a. Corporeal Property:
 Corporeal property means material things or
objects which is physically and tangibly
existed in a material world.
 Corporeal property can also be called as
tangible or material property. It relates to
material objects for example, movables
things, land and all things permanently
attached to it.
 It may be both movable and immovable.

5
Contd…
b. Incorporeal Property:
 Incorporeal property is divided into two
kinds:
i. Rights in re aliena: Some important rights
of this class are: Securities, servitude,
lease and trust.
ii. Intellectual property:

6
Contd…
Securities:
(a)Mortgage: if a debtor gives the whole or any
portion of an immovable property in which the
debtor has title, ownership or possession to a
creditor in consideration of a loan which the
debtor borrows from the creditor, by executing a
deed entitling the creditor to possess that
property with effect from the date of execution of
the deed or after a certain period, such property is
deemed to be given in mortgage-;fx";Fu C0f lnP
afkt s;}n] cfĝf] xs, :jfldTj jf ef]usf] crn ;DklQ jf
To;sf] s'g} c+z lnvt ePsf] ldlt jf lglZrt ;dofjlw kZrft\
ef]u ug{ kfpg] u/L ;fx"nfO{ lbPsf]df To:tf] ;DklQ
aGwsLdf lbPsf] dflgG5 _. 7
Contd…
 In Nepalese context, it may be mortgage with
possession, mortgage without possession and
re-mortgage.-ef]uaGwsL, b[li6aGwsL tyf
nvaGwsL_.
 Where the deed provides that the creditor is
entitled to possess the property mortgaged
with immediate effect at the time of lending or
after a certain period, such a mortgage is
deemed to be mortgage with possession.
aGwsLdf lbPsf] ;DklQ ;fx"n] C0f lb+bfs} avt jf
s'g} lglZrt ;dofjlw kl5 ef]u ug{ kfpg] Joj:yf
ePsf]df ef]uaGwsL lbPsf] dflgG5 . ………
8
Contd…
 Likewise, where the deed provides that the
creditor is entitled to possess the property in
the event of the debtor’s failure to make
repayment of the loan within the deadline set
by the creditor, such a mortgage is deemed to
be a mortgage without possession. C0f r'Qmf
ug{ ;fx" c;fdLn] lgwf{/0f u/]sf] efvfleq c;fdLn]
C0f r'Qmf gu/]sf] cj:yfdf ef]u ug{ kfpg] Joj:yf
ePsf]df b[li6aGwsL lbPsf] dflgG5 .

9
Contd…
 If a person who has acquired a property in mortgage
or any part thereof remortgages such property to
another person in consideration for an amount which
is equivalent to, or lesser than the amount mentioned
in the mortgage deed, in such a case a re-mortgage is
deemed to be created. In other words, remortgage
over the mortgage with possesion is itself re-
mortgage. s;}n] aGwsLdf lnPsf] ;DklQ jf To;sf] s'g} c+z
;f] ;DaGwL lnvtdf pNn]v ePsf] /sd a/fa/ jf ;f]eGbf sd
/sd lnO{ cGo s;}nfO{ k'gM aGwsLdf lbg ;Sb5 / To;/L
k'gM aGwsLdf lbPsf]df nvaGwsL lbPsf] dflgG5 . csf]{
zAbdf eGg'kbf{ ef]uaGwsL dfly k'gM ul/Psf] aGwsL g}
nvaGwsL xf] .
10
Contd…
(b) Lien -u|x0fflwsf/_: It is the holding right of a
person (creditor) over the security/collateral.
As per Salmond, Lien applies to only movable
property. For ex: right of company to forfeit
the unpaid share.
Black’s Law: Lien: A legal right that a creditor
has in another's property, lasting usually until
a debt or duty that it secures is satisfied.
Typically, the creditor does not take
possession of the property on which the lien
has been obtained.

11
Contd…
 Servitude: Servitude is the right to use other's property
under law.;'lawfef/ eg]sf] csf{sf] ;DklQ sfg"gsf] clwgdf /xL
cfkm"n] k|of]u ug{ kfpg] ;'lawfsf] clwsf/ xf] .
 If there is a provision entitling the owner of an immovable
property to enjoy or use any immovable property or any part
thereof in which another person has title, ownership or
possession, a servitude shall be deemed to have been
created. Servitude would not be applied in case of movable
properties. Servitude would be applied in the context of
contract, nature of place of immovable properties, usages
and customs remained from ancient time. s;}sf] xs, :jfldTj jf
ef]urngdf /x]sf] s'g} crn ;DklQ jf To;sf] s'g} c+z csf]{ crn
;DklQsf] wgLn] ef]urng jf k|of]u ug{ kfpg] ePsf]df ;'ljwfef/sf]
Joj:yf ePsf] dflgG5 . ;'ljwfef/ rn ;DklQdf nfu" x'Fb}g . s/f/, crn
;DklQ /x]sf] 7fpFsf] k|s[lt, k|yf jf k/fk"j{sfnb]lv rlncfPsf] cEof;
12
Contd…
 Lease: If any person gives any other person any goods under
his/her title and ownership to use and enjoy benefits to be
derived therefrom for a certain period for getting rent
regularly, it shall be deemed to have concluded a lease
contract. In lease contract, there shall be two parties, viz. the
lessor and lessee. Person, who gives goods under his/her title
and ownership, is called lessor and person, who takes other's
property in lease, is lessee. During lease period, lessor shall
get rent and lessee shall enjoy the goods as his own. Under
such contract only possession rather than ownership shall be
transferred. s'g} JolQmn] cfĝf] xs tyf :jfldTjdf /x]sf] s'g} j:t'
csf]{ JolQmnfO{ lgoldt axfn kfpg] zt{df s'g} lglZrt cjlwsf nflu
ef]urng ug{ To;af6 k|fKt x'g] nfe k|of]u ug{ lbg] u/L s/f/
ePsf]df lnh s/f/ ePsf] dflgG5 . lnh cjlwe/ lnh bftfn] axfn /sd
kfpF5 eg] lnhk|fKt stf{n] lnh s/f/sf] clwgdf /xL lnhdf lnPsf] j:t'
cfĝ} ;/x pkef]u ug{ kfpF5 . o:tf] s/f/af6 :jfldTj x:tfGt/0f geO{ 13
 Contd…
 Trust: Guthi as the properties that are separated to
carryout religious and philanthropic activities or the
properties separated to run such organization. Persons
involved in trust or members of trust or members of
trust managing board are trustees and persons for
whose benefit the trust has been established are called
beneficiaries. Ownership of trust properties shall
remain under the title of trustee and beneficiaries are
regarded as their de facto owner. wfld{s jf k/f]ksf/L sfo{
ug{sf lgldQ /flvPsf] ;DklQ jf To:tf] ;+:yf rnfpgsf nflu
/flvPsf] ;DklQ g} u'7L xf] . u'7Ldf ;lDdlnt JolQm jf u'7L
leqsf ;b:o jf u'7L ;+rfnsnfO{ u'l7of/ elgG5 eg] h;sf] lxtsf]
nflu u'7L ;+rfng ul/Psf] xf], To:tf JolQmnfO{ lxtflwsf/L
elgG5 . u'7Lsf] ;DklQsf] :jfldTj u'7Lof/df x'G5 eg]
14
Contd…
 If a person makes necessary arrangements for the
operation and management of a property in which
the person has right, ownership and possession by
another for the benefit of beneficiary, a trust shall
be deemed to be established. s;}n] cfĝf] xs, ef]u /
:jfldTjsf] ;DklQ lxtu|fxLsf] nflu c? s;}af6 ;~rfng /
Joj:yfkg ug]{ u/L cfjZos aGbf]a:t u/]sf]df u'7L :yfkgf
ePsf] dflgG5 .

15
Contd…
ii. Intellectual property: IP is an intangible property. It is
creation of anything, which emanates from human
mind. IPRs are rights given to persons over the creation
of their minds.
 IPRs give the creator right to prevent others from
making unauthorized use of their property for a
limited period.
 IP is categorized as Industrial Property such as
Patents, Industrial Designs, Trade Marks,
Geographical Indications, Trade Secrets etc, and
Copyright & Related rights. Moreover, because of the
technological developments some hybrid sui generis
systems such as Plant Breeder’s Right, Layout-design
of Integrated Circuits etc are emerging.
16
Contd…
Patent: A patent concerns the protection of
Inventions, that is a product or process that offers
a new way to the solution of the technical
problem. It is a monopoly right granted to a
person who has invented a new and useful article
or an improvement of an existing article or a new
process of making an article.
Design: Design protection relates to the protection
of ornamental or aesthetic part of an article but
not its technical aspect. Ex: bottle of Coca Cola.
Visual aspect is the subject of protection.

17
Contd…
Trademark: A Trademark is a sign which serves to
distinguish the goods and /or services of one
enterprise from those of other enterprise. It may
consists of a word, a logo, a device, a slogan,
numbers, colors, sounds, etc.
Copyright: It is a legal term that describes the right
given to the creators of a broad range of literary &
artistic works. It is a protection system that covers
published and unpublished works, whatever the
form of expression provided such works are fixed
in a tangible or material form. Copyright provides
exclusive rights to the creators to use or to
authorize to use their works.
18
Contd…
2. On the basis of Movability of Property:
a. Movable property: Movable property means all
property that is not attached to land but are
movable from one place to another.
b. Immovable property: Immovable property
means and includes land, buildings, things
permanently attached to the land and all
things planted on the land.

19
Contd…
3. On the basis of English Legal Development: Real
and Personal Property
 This division of property has been recognized
in English law.
 The law of real property is similar to that of
land or real estate (immovable) and everything
else is personal property.
 Personal property can be both tangible and
intangible.

20
 Nepalese Context:
 As per Constitution of Nepal 2072, explanation given by
Article 25, “property” means all type of movable and
immovable property and the word also includes IP.
 Property Tax Act 2047 ;DklQ s/ P]g @)$&: Property means
those in the form of cash or goods and all movable immovable
property that can be transferred from one person to another
and the word also includes the taxpayer’s bank account and
investment made. gubL jf lhG;Lsf] ¿kdf /x]sf / :jfldTj x:tfGt/0f
ug{ ;lsg] ;a} lsl;dsf rn crn ;DklQ ;D´g' k5{ / ;f] zAbn] s/bftfsf]
a}+s Psfp06 / nufgLnfO{ ;d]t hgfpF5 .
 Muluki Dewani Sanhita 2074: section 252: A property shall be
deemed to be in either movable or immovable form
irrespective of its material or non-material, tangible or
intangible form.
21
 Nepalese Context:
 While going through the Nepalese laws, we find the following types
of property:
a. On the basis of Movability of Property: (Muluki Dewani
Sanhita 2074: section 252, 253, 254)
1. Movable, rn ;DklQ
2. Immovable, crn ;DklQ
b. On the basis of ownership: :jfldTjsf] cfwf/df ;DklQsf] juL{s/0fM
(Muluki Dewani Sanhita 2074: section 255)
1. Private property, lghL ;DklQ
2. Property in common, ;uf]nsf] ;DklQ
3. Joint property, ;+o'Qm ;DklQ
4. Community property, ;fd'bflos ;DklQ
5. Public property, ;fj{hlgs ;DklQ
6. Government property, ;/sf/L ;DklQ
7. Trust property, u'7Lsf] ;DklQ 22
 Contd…
1. Movable property: (Muluki Dewani Sanhita: section 254)
i. Cash or goods which can be transacted as cash or foreign
currency
ii. Gold, silver, ornaments etc.
iii. Goods that can be moved from one place to another,
iv. Bond, security, promissory note, bill of exchange, letter of
credit or other negotiable instrument, C0fkq, lwtf]kq,
k|lt1fkq, ljlgdokq, k|tLtkq jf cGo ljlgd]o clwsf/kq
v. Intellectual property,
vi. Right in security, lwtf]df /x]sf] xs
vii. Trade good-will or franchise, Jofkfl/s VoftL jf k+]mGrfO{h
viii. Property other than the immovable property.
23
 Contd…
2. Immovable property: (Muluki Dewani Sanhita: section 253)
i. Building or land or structure fixed thereto,
ii. Any goods attached to a building or land permanently,
iii. Mines, stones or minerals embedded in land, hldg;Fu cfj4 /x]sf]
vfgL, 9'Ëf jf vlghhGo j:t'
iv. Natural water, surface water and underground water, k|fs[lts
:j¿kdf /x]sf] kfgL, e" ;tx tyf e"ldut ¿kdf /x]sf] kfgL
v. Building or other structure made permanently in such a
manner that it can float over a river, lake or pond, gbL, tfn,
tn}ofdf t}/g] u/L :yfoL ¿kdf agfOPsf 3/ jf cGo ;+/rgf
vi. A standing tree, plant or fruit tree or fruits or flowers growing
on such a tree, plant or fruit tree, crops in land, hldgdf v8f
ePsf] ?v, la?jf jf kmnkm"nsf af]6 jf To:tf ?v, la?jf jf kmnkm"nsf
af]6df kmn]sf kmn jf km"n]sf km"n, hldgdf kmn]sf] jfnL
vii. Any movable property attached to immovable property
24
 Contd…
3. Private property, lghL ;DklQ (Muluki Dewani Sanhita: section
256)
i. Property earned by way of his/her knowledge, skills or
effort, cfkm\gf] 1fg, ;Lk jf k|of;af6 cfh{g u/]sf]
ii. Property acquired by way of donation, will/gift or
inheritance, bfg, as;, jf ck'tfnL :j¿k k|fKt u/]sf]
iii. Property acquired by way of a lottery or gift, lr7\7f jf pkxf/
:j¿k k|fKt u/]sf]
iv. Property acquired by way of remuneration, gratuity,
pension, treatment allowance, provident fund, insurance
or other social security, kfl/>lds, pkbfg, lgj[Qe/0f, pkrf/
vr{, ;+ro sf]if, aLdf jf cGo ;fdflhs ;'/If0f jfkt k|fKt u/]sf]
===================================
25
 Contd…
Private property,…
v. Property acquired in any manner whatsoever while living
apart upon separation of board and bread in accordance
with law or while managing own accommodation at own
cost despite not so living apart, sfg"g adf]lhd dfgf] 5'l§O{
leGg a;]sf] cj:yfdf jf To;/L dfgf] g5'l§Pklg vtLpktL cfkm\gf]
cfkm\gf] u/L vfg' a:g' u/]sf] cj:yfdf h'g;'s} tj/n] k|fKt u/]sf]
vi. Property acquired by way of intellectual property or
royalty, af}l4s ;DklQ jf /f]oN6L :j¿k k|fKt u/]sf]
vii. Property acquired by woman before marriage or after
marriage (Pewa: exclusive property) or (Daijo: dowry)
viii. Written as private property according to law

26
 Contd…
4. Property in common, ;uf]nsf] ;DklQ (Muluki Dewani Sanhita:
section 257)
i. Property inherited from ancestors, lktf k'vf{af6 k|fKt ;DklQ
ii. Property owned by the co-owners other than private
property, lghL afx]s c+lzof/sf] gfddf /x]sf] ;DklQ
iii. Property earned by the co-owners from the farming,
industry, trade or business in common or property
accrued therefrom, c+lzof/n] ;uf]nsf] v]tL, pBf]u, Jofkf/,
Joj;foaf6 cfh{g u/]sf] jf ;f]af6 a9] a9fPsf] ;DklQ
iv. Except where separated in accordance with law, any
property earned by the spouses or property accrued
therefrom shall also be deemed to be the property in
common of the spouses, sfg"g adf]lhd leGg ePsf]df afx]s
klt kTgLn] sdfPsf] jf To;af6 a9] a9fPsf] ;DklQ klt kTgLsf]
;uf]nsf] ;DklQ x'G5 . 27
 Contd…
Property in common….
v. Any property earned by parents for the purpose of
partition between the parents and their children shall
also be considered to be the property in common, afa'
cfdf / 5f]/f 5f]/L jLr c+zj08f ug]{ k|of]hgsf] nflu afa' cfdfn]
cfh{g u/]sf] ;DklQ ;d]t ;uf]nsf] ;DklQ dflgG5 .

28
 Contd…
5. Joint property, ;+o'Qm ;DklQ (Muluki Dewani Sanhita: section
258)
i. Any property owned by two or more persons except
coparceners of the undivided family or property accrued
therefrom shall be deemed to be a joint property,
Psf;uf]nsf c+lzof/x?sf] afx]s b'O{ jf b'O{eGbf a9L
JolQmx¿sf] gfddf /x]sf] jf ;f]af6 a9] a9fPsf] ;DklQ ;+o'Qm
;DklQ dflgG5 .
ii. The entitlement to and share of a joint holder in the joint
property shall be as set forth in a deed setting out such
entitlement and share, and failing such a deed, the joint
holders of that property shall be deemed to have equal
entitlement and share, ;+o'Qm ;DklQdf s'g} JolQmsf] xs jf
lx:;f v'nfO{ lnvt ePsf]df ;f]xL adf]lhd / lnvtdf s'g} pNn]v
gePsf]df ;f] ;DklQ /xg] JolQmx¿sf] ;dfg xs / lx:;f /x]sf] 29
 Contd…
6. Community property, ;fd'bflos ;DklQ (Muluki Dewani Sanhita:
section 301)
Any land held by a community for its use, any structure built
in such land or other property owned and possessed by it shall
be deemed to be the community property. s'g} ;d'bfon]
cfkm\gf] k|of]usf] nflu /fv]sf] hUuf, To:tf] hUufdf agfPsf] s'g}
;+/rgf jf ;d'bfosf] :jfldTj /x]sf] cGo ;DklQ ;fd'bflos ;DklQ dflgG5
.
For example, under Section 25 of Forest Act, Government of Nepal
may handover any part of a National Forest to a Users' Group in the
form of a Community Forest entitling to develop, conserve, use and
manage the Forest and sell and distribute the Forest Products
independently by fixing their prices according. This is the property
handed over to a community based on area. Unless the Government
of Nepal withdraws, the forest shall be regarded property of the
community. … 30
Contd…
For another example, if any temple has been built for a 'Kul
Puja' (clan worship), the temple shall be the property of the
clan that worships at the temple. It is considered as
community property. Land ownership certificate of such land
shall be prepared under the name of the clan community.

31
 Contd…
7. Public property, ;fj{hlgs ;DklQ: (Muluki Dewani Sanhita: section
300)
i. Houses, lands, sewerage or roads having been used since
ancient times, k/fk"j{sfnb]lv /x]sf] 3/, hUuf, 9n jf af6f]
ii. Wells, water conduits, shores (Panighat), wells, ponds and
banks thereof, s'jf, kFw]/f], kfgL3f6, Ogf/, kf]v/L tyf ;f]sf]
8Ln
iii. Exits for chattels, pasture lands, graveyards and lands
where these are located, ufO{j:t' lgsfNg] lgsf;, uf}r/, vs{,
cGToi6L:yn, jf lrxfg jf d;fg3f6 jf ;dflw:yn sla|:yfg /x]sf] hUuf
iv. Inns, rest houses, monuments, religious meditation sites,
memorials, temples, shrines, Chaitya, monasteries, Stupas,
churches, courtyards, open parts of markets, platforms or
lands where these are located, kf6L, kf}jf, b]jn, wfld{s pkf;gf
:yn, :df/s, d7, dlGb/, r}To, u'Daf, :t"k, d:hLb, Ouf{j, sj{nf, 32
 Contd…
 Public places such as open market (Haat Mela), lands where
entertainment is done or playing grounds are located
 Other lands as prescribed by Nepal Government publishing
at Nepal Gazette
 The ownership of the public property shall vest in a public
organization or the Government of Nepal.

8. Government property, ;/sf/L ;DklQ (Muluki Dewani Sanhita:

section 299)
i. Government houses, buildings or lands,
ii. Highway, road or railway,
iii. Forests, or trees and bushes in forests, jg, h+un jf jg
h+undf /x]sf ?v, a'6\ofg ===================
33
 Contd…
iv. Rivers, streams, lakes, ponds and banks thereof, gbL,
vf]nfgfnf, tfn, kf]v/L tyf ;f]sf] l8n
v. Canals, ditches or uncultivated, barren lands, gx/, s'nf] jf
P]nfgL, ktL{ hUuf
vi. Mines or mine materials
vii. Himal, terrains, mountains, rocks, sandy lands, public
gardens, lxdfn, le/, kx/f, 8u/, au/, ;fj{hlgs au}+rf
viii. Property other than the public, community, trust or any
one's private property, ;fj{hlgs, ;fd'bflos, u'7L jf s'g}
JolQmsf] gfddf /x]sf] lghL ;Dklt afx]ssf] cGo ;DklQ
9.Trust property, u'7Lsf] ;DklQ
The property title to which belongs to, or which is owned, the
Trust shall be deemed to be the Trust property.
34
Thank You

35