From Custom to Code: The Evolution of Property Law in India

–Ananya Sinha

Property rights are the cornerstone of any advanced legal system. In India, the history of property law represents the country’s social, religious, economic, and political developments spanning thousands of years. From uncodified customary laws to codified acts and contemporary electronic registration systems, the theory and legal conceptualization of property have changed dramatically.

This paper follows the evolution of property law in India through ancient traditions, colonial administrations, post-independence constitutional designs, and the age of the internet. It also delves into how legislatures and courts have reinterpreted and reconfigured such rights to keep up with shifting social realities.

Ancient and Customary Traditions

In ancient India, property law was principally regulated by religious scriptures, social norms, and tradition. The Manusmriti, Yajnavalkya Smriti, and other Dharmashastra writings prescribed property rights and inheritance rules within a patriarchal and caste-oriented system. Ownership of property, particularly land, was traditionally patriarchal and hereditary. Sons were the legal heirs, while daughters were restricted in their rights, normally receiving dowry or gifts at marriage. Collective ownership also existed in agrarian societies, where the village councils managed the land collectively.

Matrilineal systems, such as the Marumakkathayam law in Kerala, existed in certain areas, giving inheritance through the woman’s line, demonstrating variety in traditional customs. As Islamic dominion rose in medieval India, Sharia-based property laws were enacted, such as rules of inheritance (faraid), co-ownership, and life interest (habs). Such laws still affected Muslim populations even under the colonial regime and continue to do so under personal law systems today.

Colonial Period: Codification and Land Reforms

The British brought a historic deviation from customary property practices. The colonial government wanted to establish a uniform and revenue-effective system of land ownership in order to simplify taxation as well as administration.

Important developments were: the Permanent Settlement of Bengal (1793), instituted by Lord Cornwallis, which institutionalized zamindars as hereditary owners of land and collectors of revenue. It legitimized land ownership and made tenants subordinate cultivators. The Ryotwari and Mahalwari systems, applied to other regions of India, dealt with cultivators or village communities themselves as revenue-paying units.

The British also enacted pivotal legislation that formed the foundation of contemporary property law. The Transfer of Property Act, 1882 (TPA), established the legal precepts for transferring immovable and movable property and regulates sale, mortgage, lease, exchange, and gift of property. The Indian Easements Act, 1882, formalized rights over light, air, water, and passage over other people’s property. The Indian Registration Act, 1908, formalized the need to register transactions in immovable property to make them legally recognized and avoid fraud.

Though these laws introduced uniformity and certainty, they tended to favor landlords and investors over tenants or small farmers. Traditional customs were usually neglected or replaced by formal legislation.

Post-Independence Era: Constitutional and Social Reforms

Following independence in 1947, India’s leadership attempted to reorient property rights to accommodate the values of social justice, fairness, and economic redistribution. The Constitution of India initially provided for the right to property as a basic right under Article 31.

Large-scale land reform schemes were nevertheless initiated in the 1950s and 1960s to overcome rural poverty and eliminate the feudal zamindari system. These comprised the elimination of intermediaries (zamindars and jagirdars) who did not play a direct part in cultivation or production, levying land ceilings to restrict the size of land one could hold, and tenancy reforms to grant additional security and rights of ownership to tenants and sharecroppers.

The reforms were challenged in many ways through legal challenges, resulting in an epidemic of litigation. To counter that, the government amended the Constitution multiple times to immunize land reform laws from the jurisdiction of courts. The largest turning point was the 44th Constitutional Amendment (1978), when the right of property was delisted from fundamental rights and became instead a constitutional legal right under Article 300A. This enabled the state to take private property into public use by paying reasonable compensation without infringing on fundamental rights.

Modern Property Law: Statutes and Social Equity

In the present day, Indian property law is a combination of statutory laws, personal laws, and judicial interpretation. Some of the major legal developments of the present times are:

The Hindu Succession (Amendment) Act, 2005, a historic reform, equalized daughters’ rights to inheritances in Hindu joint family property, reversing centuries of patriarchal tradition. Daughters now have the same rights and obligations as sons in ancestral property.

The Muslim Personal Law (Shariat) Application Act, 1937, still regulates property rights between Muslims, especially with regards to inheritance. Muslim property law reforms, though, have been slow and still occur under interpretations of personal law.

The Benami Transactions (Prohibition) Act, 1988 (amended 2016), works to prohibit property transactions undertaken in pseudonymous names for purposes of evading taxes or hiding ownership. This legislation empowers the government to seize such assets.

The Real Estate (Regulation and Development) Act, 2016 (RERA), came into being for safeguarding homebuyers and providing transparency in the real estate market. It makes registration of real estate projects and developers mandatory, with the purpose of holding them accountable and ensuring timely possession.

The Land Acquisition, Rehabilitation and Resettlement Act, 2013, transformed the process of acquisition of private land for public purposes by making social impact assessments, payment of just compensation, and rehabilitation of affected persons compulsory.

Digitization and the Property Law of the Future

India has made significant strides in modernizing land records and cutting disputes. The Digital India Land Records Modernization Programme (DILRMP) seeks to establish a common database of land records, encourage electronic registration, and merge survey data. Karnataka, Maharashtra, and Andhra Pradesh states have digitized thousands of land records, enhancing access and transparency.

Blockchain technology is also being tested in pilot schemes for tamper-evident land registries. On a national scale, this could cut property fraud, disputes over title, and registration delays by a significant margin. Finally, smart contracts, e-dispute resolution, and geo-tagging of property are set to transform the transfer and security of property in the near future.

Judicial Interpretation and Changing Principles

Indian courts have played a pivotal role in developing the jurisprudence in relation to property rights. In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that the basic structure of the Constitution, including the rule of law, should be preserved even in land reform legislation.

In Jilubhai Nanbhai Khachar v. State of Gujarat (1995), the Court reaffirmed that although the right to property is no longer a fundamental right, it remains constitutionally protected and cannot be abrogated arbitrarily.

Recently, the Supreme Court in Shakti Vahini v. Union of India (2018) reiterated that the right to choose a spouse and live in community property is legally included within personal liberty under Article 21.

The development of Indian property law illustrates the country’s overall trajectory from a hierarchical, tradition-based society to a modern constitutional democracy. Ancient tradition provided the foundation, colonial codification provided form, and post-independence reforms infused the system with justice and equity.

With the nation embracing digital governance and modernization of real estate, the challenge before us is securing property rights that are inclusive, corruption-free, and safe. Institutional resilience, clear legislation, and accessible justice will be pivotal in delivering the constitutional promise of equal property ownership for all citizens.