Upholding Equality and Property Rights: A Progressive Outlook in Nepal

This article examines Nepal's constitutional provisions and property laws that promote equality and protect property rights. It highlights the broad definition of property, equal rights to the ancestral property for offspring.

The Constitution of Nepal, under Article 25, defines property as encompassing all forms of movable and immovable assets, including intellectual property rights. Additionally, the Civil Code of 2074 stipulates that any form of cash, goods, or actions that can be used, transacted, or have their title transferred through purchase, sale, or other means, as well as deriving benefits from them, shall be considered as property. Property can take various forms, such as private property, property in common, joint property, community property, public property, government property, or trust property. This broad definition encompasses both tangible and intangible assets. Every citizen has the right, as per the law, to acquire, own, sell, dispose of, derive business profits from, and otherwise deal with property.

Article 18 of the Constitution of Nepal ensures equality before the law for all citizens. It prohibits discrimination in the application of general laws based on grounds such as origin, religion, race, caste, tribe, sex, physical condition, disability, health, marital status, pregnancy, economic condition, language, region, ideological conviction, or similar other factors. Furthermore, Article 18 (5) states that all offspring have an equal right to ancestral property without discrimination based on gender. These provisions regarding equality and equal rights over ancestral property represent significant milestones in safeguarding the rights of women.

Section 206 of the Civil Code of 2074 further establishes the principle of equal entitlement to partition shares of property among coparceners. For the purpose of apportioning common property, coparceners include the husband, wife, father, mother, son, and daughter. It is crucial to note that all coparceners should receive an equal portion of the ancestral property. In a progressive approach, Nepalese law goes even further by acknowledging the rights of unborn children. If a woman coparcener is pregnant during the partition, the yet-to-be-born baby is considered a coparcener, and their share is allocated before the distribution of the property.

In the realm of property rights, two key aspects are ownership rights and possessory rights. Ownership rights are acquired in accordance with the law, granting the owner absolute power over the property. Possessory rights, on the other hand, are lawfully obtained with the intention to possess the property from the owner. The Constitution of Nepal and property-related laws emphasize the principle of equality in exercising property rights throughout the country.

Overall, the Constitution of Nepal, along with the Civil Code and related legislation, provide a comprehensive framework that recognizes and protects property rights. By promoting equality and non-discrimination, particularly in terms of gender and ancestral property, these laws play a pivotal role in ensuring equal opportunities and fair treatment for all citizens.

Advocate Ram Kumar Khatiwada

Chairperson: Vibrant International law Associates

Completed LLM from South Asian University, New Delhi with full scholarship. Executive member at High Court Bar Association, Patan.