The Constitution of Nepal has ensured that the acquisition, enjoyment, sale, commercial gain and other transactions of property are fundamental rights. All these rights are directly related to acquisition, enjoyment and transfer of property. The topic to be discussed here is about private property and the right to enjoy and transfer it freely.

Can any Nepalese freely dispose of their movable and immovable private property acquired through their knowledge, skills, hard work, etc.? Can such property be sold, donated or evicted? Or can he make a will so that he will receive his share after his death? To find answers to these questions, let us look at the arguments of the fathers of two representative cases.

One, the son was doing business after graduation, but after covid, the business went down, he got into trouble. Claimed portion after saving. Don't give a share, you can fly away, but do what you can, don't accept that you will help. Apart from my self-earnings, the court did not accept that I was only trying to get a part from my father, but I gave the whole part. His wife and two children were also separated from his share by his daughter-in-law. The son has already sold his share. Now his accommodation and food are not decided. If we could have prevented him from giving a share, his property would have been saved, after all, he was the one who would get our balance. 

Two, a few years after the marriage, the daughter-in-law filed a divorce and part-law case to make the son-daughter-in-law disagree and break up. We old people are also made defendants in the case, while they are self-reliant. I have some ancestral property from my father. I have earned most of my wealth by working hard day and night. The news has arrived that after roughly calculating the property, 50 million in cash will be needed if the settlement is to be made. The property of the daughter-in-law's wife is abundant, but the matter of her property will not be raised. There was no objection to give her share through her son's share. They have no role and contribution in my personal earnings. Instead, I had been fulfilling many of his wishes beyond his power. They will get it after I die, but can't even tell them not to give it as part now?

The new Muluki Civil Code, 2074 came to replace the Civil Code of 2020, adopting modern and valid principles of jurisprudence. Although it has refined, simplified and modernized the old system, the property rights of individuals have been narrowed through the system of shareholding. That is to say, according to the laws related to the division and property, even if the husband and wife are kept on one side, if there are children who have reached the age, even their own earned property cannot be arbitrarily transferred without giving them a share or without their consent, there is a possibility that it will be annulled. According to jurisprudence, the main basis for determining private property is the right to acquire, enjoy, and transfer absolute ownership, as well as the right to prohibit or evict others. It is already practiced in Western developed countries. In India, the provisions of the Hindu Succession Act, 1956 are largely similar to ours. However, the law there is not as narrow as ours.

Self-acquired property cannot be acquired by oneself : Private property has been defined in point 9 of the 'Property Law' part of the Civil Code, 2074 regarding the definition of property, its types and management methods (Section 256). At the end of this section, the owner of private property has been empowered to say that 'any person shall be entitled to dispose of his private property subject to this Code'. As free and exciting as the system of freeing private property appears to be, it is narrowed down by the legal system of shareholding. Private property, like other shares, does not have to be divided between brothers, sisters, sisters or parents. However, Section 257 (3) states that "...for the purpose of sharing between father, mother and children, even the property acquired by the parents shall be considered as the property of the family", establishing the uninterrupted birthright of the children over the property, and the right of private property has been greatly restricted. 

Even though this arrangement seems to secure the children's future with a guaranteed share of the private property, the result is not pleasant. Due to the fact that even the private property of self-earning has been made subordinate to the children, they are having to suffer harassment such as quarrels and lawsuits in the family without being able to freely sell, donate or hand over their own earnings as they wish. From the point of view of the plaintiff, it can be seen as a fight for rights, but from the point of view of self-earned wealth, the picture looks different. If one day the children sue, they will have to take part in the business or any property.

Retrospective provision : In the civil law issued by Jung Bahadur in the year 1910, there was a provision that 'the father can give a share according to his pleasure; otherwise, if he does not give a share during my lifetime, the son's tax will not be charged'. In the Civil Act of 2020, 10 No. It was said that 'children cannot compel their parents to give share until their parents are alive'. In the current code, parents have not been given the right to not give a share or not to give it now without such a restrictive provision. 

Children who have reached the age have always been guaranteed the right to ask their parents for a share of their ancestral property and their private earnings. This seems more liberal than the freedom given by the current law in the case of children. Moreover, the fear of children becoming dependent and dependent on their parents' wealth has increased. Although the current code is claimed to be in line with international good practice, the provisions related to this part are behind the old civil law of Nepal. 

Divorce and property claims : It may be too hasty to dismiss the rise in divorce as an unresearched anomaly. Rather, it can be considered positive that married men and women are aware of their rights and seek legal remedies. However, in a single case, there is a tendency to get divorced by claiming a portion of the husband's property within a short period of time after marriage. When a partial case is filed against the husband, the property comes from the property of the husband's parents, so in this case, the question arises whether the marriage is based on the property of the mother-in-law rather than the merit of the boy. 

On the other hand, securing the livelihood or sustenance of such women is a mandatory and important condition in the case of divorce cases involving issues such as those who are actually unjustly treated by their husbands or families, are completely dependent on their husbands, and have to take care of their children by themselves. It is also not fair to divorce the wife/daughter-in-law who has spent years in the same house and put them in the same basket. The victimized woman must get her husband's share but at least not from their self-earned private property if the mother-in-law does not want it. 

Property cases burden the court : If we look at the annual report of the Supreme Court for the last 4 years, the number of divorce cases has surpassed the shareholding in the courts at all levels. According to the Supreme Court's latest (2079/80) annual report, 40,183 divorce and 37,253 divorce cases were pending. When a divorce case is filed, the partial case is not mandatory or filed in parallel, but in most cases, both cases are filed. In many cases, settlements are settled in the lower courts, whether or not they are settled. In addition to this, there have been a significant number of cases related to land related to property and deed cancellation under civil cases. 

Wills on self-earned property : Initially, there was no provision of wills for Hindus in India either. But 154 years ago, in 1870, for the first time, a law was passed that allowed even Hindus to transfer property through a will. which ensured that the rights of the property remained fully vested in its rightful owner. The root of our problem is the subordination of the transfer of private property to children. The work that needs to be done to improve this is to amend the legal system. Originally, although Article 257 (3) of the Code was repealed in the palace of property laws, it should be addressed not only in general, but also in relation to provisions related to international law.

Current Civil Code, 2074 cannot adopt the will system (bill system) in property transfer is an error. To draft the current provisions of this code, the "Civil Law Reform and Amendment Task Force Draft Committee" studied the civil laws of many countries, discussed and consulted with stakeholders. Since the will system is proper in Nepal as well, the parliament completely ignored it while passing the bill for proposing a 'will related arrangement'. This arrangement could have been maintained to be implemented after a few years, but it was not done.

If it is not appropriate to go to the will system for the entire property, then it seems appropriate to apply the system according to the 'Hindu Inheritance Act, 1956' issued for Hindus in India. According to which the property can be divided into two parts namely ancestral property and self-earned property. It can be arranged that all the sharers will have equal share in the ancestral property from the father and that the self-earned property can be used completely as long as one lives and if a will is made after the death, it can be given to anyone accordingly. If a will is not made, such self-earned property can be divided among the remaining shareholders after its balance. Therefore, it is appropriate for us to apply the provisions of wills only to self-earned assets and not to entire assets. By doing this, the full right of the owner is also established on the private property of self-earning, while the right of the children to claim a share on the ancestral property is protected. 

This can significantly reduce the number of other family and property disputes, including share cases, which amount to more than 37,000 annually. Until the proposed measures are adopted, it is not possible to get rid of the pain of the same traditionalist family disputes and court troubles. 

conclusion 

Family structure shifting from joint to single family, globalization, urbanization, industrialization, immigration, employment and new opportunities for entrepreneurship are changing the character of society. However, the current legal system related to share and property is such that instead of encouraging children to become independent, they remain inactive and depend on their parents because of the parents' property. On the other hand, a dynastic system in which a person's right to hard-earned property is reduced but the rights of children who have not contributed to it is maintained only on the basis of birth does not seem suitable in today's society.