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Report No. 157

1.10 Need to recognise man's right to property.-

It is trite saying that property can be earned only under the protection of the State. Indeed property is that to which law gives recognition. Nevertheless, it goes without saying that property rights cannot be absolute. As Lindsay remarked, right to property requires social recognition. There is no inherent right to appropriate any commodity irrespective of social approval. In the early times, even property right in 'slaves' was duly recognised but with the abolition of slavery no such claim could be advanced on any supposed theory of rights. Without social recognition, therefore, there is no right to property even over one's own person.1 (Locke asserts that every man has property in his own 'person').

The property and its recognition depend on social recognition. It was an aspect well-known to Hindu jurists. According to some Hindu jurists, the idea of property is exclusively indicated in the Sastras and ownership can be acquired only in the modes recognised2 by them. This view is favoured by Dhareswara, Jimutayahana and their followers. On the other hand, Vijnaneswara and his followers maintain that the idea of property has its basis on popular recognition without any dependence on Sastras, the modes of acquisition of ownership being to collect and prescribe those means of acquisition recognized by popular usage that are regarded as commendable and as such worthy of being pursued.

This latter view represents the doctrine that property has its basis in popular recognition. Right to property is also recognised as one of the basic human rights. Article 17 of the Universal Declaration on Human Rights declares that "every one has the right to own property alone as well as in association with others" and that "no one shall be arbitrarily deprived of his property".

Property is, therefore, a creation of social recognition and economic evolution. The State which directs social recognition and promotes economic development must ultimately determine the measure in which right to property shall be guaranteed. Right to property is thus indicative of the social and political philosophy of a State. It goes to the very foundations of the political system.3

1. Cf. Locke, referred, supra, pp. 6-7.

2. P.M. Sen Hindu Jurisprudence (1918), p. 42, cited in Law Commission of India's 70th Report on the Transfer of Property Act, 1882.

3. Refer to H.M. Jain Right to Property under the Indian Constitution, p. 9.

Section 52 of the Transfer of Property Act, 1882 and its Amendment Back

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