TRANSFER AND

ACQUISITION OF
IMMOVABLE PROPERTY
AND
INTELLECTUAL PROPERTY
IN NEPAL
2076/08/03
-Aarju Adhikari
Section A, Roll no-3
Second semester
Nepal Law Campus
Immovable Property
 Immovable Property means and includes land, building, things attached to the earth or
permanently fastened to anything.
 According to Muluki Civil Code, 2074
 253. Property deemed to be immovable: (1) The following property shall be deemed to be
an immovable property:
(a) A building or land or structure fixed thereto,
(b) Any goods attached to a building or land permanently,
(c) A mine, stone or mineral embedded in land,
(d) Natural water, surface water and underground water,
(e) A building or other structure so made permanently that it can float over a river, lake or
pond
(f) A standing tree, plant or fruit tree or fruit or flower growing on such a tree, plant or fruit
tree or crops in the land, or
(g) A movable property attached to an immovable property.
 (2) Notwithstanding anything contained in sub-section (1), if any structure, goods or any
part thereof, fixed or attached to any immovable property gets or is detached or unfixed
in any manner, the structure, goods or part so detached or unfixed shall be deemed to be
a movable property.
Modes of Acquisition of Property from
Jurisprudential Standpoint
How are the property rights achieved?
According to Salmond, property can be acquired by these
major
means;
a) Possession
b) Prescription
c) Agreement
d) Inheritance
a) Possession
Possession refers to the ownership of the property res
nullius (Property of no one)
According to Salmond, The possession of a material
object is a title to the ownership of it
If a person holds the ownership of the property and
someone else possess it, he can’t be the owner if
claimed.
However, illegal possession is not considered as the
mode of acquisition of property. For eg; theft items.
Types of Possession
a) Actual Possession
A person who knowingly has direct physical
control over a thing at a given time ,is then
actual possession of it.
b) Constructive Possession
A person who although no in actual possession
knowingly has both the power and the intention
at a given time to exercise dominion or control over
A thing, either directly or through another person
or persons is the construction possession.
b) Prescription
According to Salmond, Prescription may be
defined as the effect of lapse of time in creating
and destroying rights, it is the operation of time
as the vestitive fact.
Prescription is the presumption of a grant arising
from long usage.
Types of Prescription
1. Positive or Acquisitive Prescription
Creation of rights after long usage of Property
India-20 years
UK-12 years
2. Negative or Extinctive Prescription
Destruction of right by lapse of time.
c) Agreement
In agreement a title is acquired with the consent of the
previous owner.
It is not only limited to contracts but it includes all
bilateral acts which create an interest.
The agreement could be in oral and written
form.
Agreement is of two types;
a) Assignment
b) Grant
d) Inheritance
According to Black’s Law Dictionary “Property which descends to heir
on the intestate death of another. An estate or property which a man
has by descent, as heir to another or which he may transmit to another
as his heir.”
Inheritance is the passage of title and ownership of real property from
one who dies intestate (without a will) to people whom the law
designates because of blood or marriage as the owner’s heir.
Salmond says, “Death destroys merely the ownership of a proprietary
right, and not the right itself.”
The nominees of such property are;
1) Those nominated by the last will of the deceased
2) Those appointed by the law in default of any such nomination.
Part-4,Chapter11(Muluki Civil
Code,2074)
Provision Relating to Transfer and Acquisition of Property
413. Property deemed to be transferred: If a person sells, donates, gifts or otherwise transfers a property in which
he or she has right and ownership to another person, the property shall be deemed to have been transferred to
that other person.
414. Property may be transferred: (1) Any person, other than a person who is not competent to make contract
pursuant to this Act or laws in force, may, subject to this Act, transfer a property in which he or she has right and
ownership to one or more than one person jointly or severally.

(2) The competency or incompetency referred to in subsection (1) shall be determined on the basis of whether he
or she was competent or incompetent at the time of the transfer of property by him or her.
(3) A person may, pursuant to sub-section (1), transfer a property in which he or she has right and ownership to
another person with immediate or testamentary effect.
(4) In transferring a property pursuant to this Section, a deed shall be executed in fulfillment of the legal
requirements.
Provided that:
(1) It is not required to execute a deed to donate or gift any movable property or cash amounting up to one
hundred thousand rupees.
(2) Sale or otherwise transfer of a movable property shall be made in accordance with the laws in force.
415. Power of guardian or curator to sell property: (1) A guardian or curator may, subject to
this Act, sell and transfer a property for the rights, interests and protection of the person
under his or her guardianship or curatorship.
(2) Notwithstanding anything contained in sub-section (1), except as otherwise provided in
this Act, no immovable property may be sold without permission of the court.
416. Ownership devolving on transferee of property: (1) If any person transfers his or her
property to another person pursuant to Section 414, his or her ownership in that property
shall cease to exist from the date of such transfer and the transferee shall have ownership in
such property.
(2) Notwithstanding anything contained in sub-section (1), if a person transfers the right in
his or her property to be effective with testament, the transferee shall have ownership in such
property only after the death of the transferor.
(3) If two or more persons acquire the same property, they shall have that much entitlement
to such property in proportion to their respective portion.
(4) If a deed does not indicate the portion to which a person is entitled on the acquisition of
a property, all the persons acquiring the property shall be deemed to have acquired it equally.
417. Power to transfer private property: A person may transfer his or her private property to another
person without any one's consent.
418. Joint property may be sold by way of sale: (1) A joint property may be sold and transferred with the
consent of all of its owners.
(2) Even though all the owners do not agree to transfer the joint property pursuant to sub-section (1), any
owner may transfer the property of his or her right or portion.
(3) If, in making a transfer pursuant to sub-section (1), it is technically not possible to separate the right
or portion of any owner from the joint property, and another owner intends to acquire such property, that
other owner shall be entitled to obtain it at the price mutually agreed upon between the owners.
(4) If more than one owner intend to acquire the joint property, the owner who agrees to pay the highest
price shall be entitled to obtain such property.
(5) Notwithstanding anything contained in sub-section (3), if the other owners do not intend to acquire
the right or portion of any owner and it is not possible technically to separate such property and, the
whole of the joint property shall be sold and the proceeds of sale shall be divided between the owners
according to their respective right or portion in that property.
(6) If any person transfers the joint property in contravention of sub-section (1), only the transfer of the
extent of his or her right or portion in such property shall be valid, and the concerned person shall be
entitled to get return of the property transferred in excess of the right or portion of the transferor.
 419. Prohibition of transferring property in common without obtaining consent: (1) No person shall, without obtaining
written consent of the coparceners in common, transfer a property in common to another person.
 (2) Notwithstanding anything contained in sub-section (1), if a coparcener of the joint family is a witness to the deed of
transfer of a property in common, consent of that coparcener shall be deemed to have been obtained.
 (3) If any person transfers a property in common in contravention of sub-section (1), the transfer of title only to the
extent of such right or portion that person has in that property shall be valid. The concerned coparcener shall be
entitled to get back the property transferred in excess of such right or portion.
 420. Property in common may be sold for household purpose: Notwithstanding anything contained in Section 419, the
person acting as the head of family may, for the household purpose, sell whole of the property in common, in the case
of a movable property, and the half of such property, in the case of an immovable property, without consent of the
others.
 421. Prohibition of transferring other's property: (1) No person shall transfer a property to another person in which any
one else has right and ownership.
 (2) If any person transfers a property in contravention of sub-section (1), such a deed or transaction shall be void.
 (3) If the real owner makes a claim in the property transferred pursuant to sub-section (1), the transferee of such
property shall return it to the concerned owner. (4) If a person finds any lost or stolen property, the owner of such
property may claim it, along with evidence showing his or her ownership, within three years after the date on which the
property was lost or stolen.
 (5) If any person claims such property pursuant to subsection (4), the finder of that property shall return it to the
owner, by collecting the amount of expenses, if any, incurred in its preservation or maintenance.
 (6) Notwithstanding anything contained in sub-section (4), if a person has acquired any stolen or lost property by way
of purchase at a public market or auction or bidding made publicly by any person or body, the person shall not be
bound to return such property to the real owner unless and until he or she obtains the real value of such property and
the fees or amount, if any, paid by him or her in the acquisition of such property
 422. Prohibition of transferring property in duplication: (1) No person shall re-transfer to another person a property which he or
she has already transferred to some other person.
 (2) If any person transfers a property in contravention of sub-section (1), the deed of transfer registered at an earlier date shall get
legal validity if the transfer of an immovable property has been made, and if the transfer of a movable property has been made,
the transfer to the person who acquires the property earlier shall be valid.
 423. Donation or gift incapable of being effected by guardian or curator: No guardian or curator may donate or gift any property
 belonging to the person under his or her guardianship or curatorship to any person.
 424. Entitlement to amount or compensation in event of deprivation of enjoyment of property: (1) If a person transfers a property
by way of sale pursuant to this Chapter and the purchaser is deprived of enjoying the property wholly or partly because of such
transfer being invalid for any reason, the purchaser shall be entitled to recover from the transferor the amount paid by him or her
for the property to the extent that he or she is so deprived of enjoying, an interest to be set by yearly ten percent of the amount
and the registration fee or other amount, if any, he or she has paid for the transfer of that property as if it were an unsecured bond
(Kapali).
 (2) If any person makes any structure in a property purchased pursuant to this Chapter and is not able to enjoy that property
because of such transfer being invalid for any reason, that person may demolish and take away the structure made by him or her
within six months.
 (3) If any person is aggrieved from the transfer of a property in contravention of Sections 419, 421 and 422 or the failure to
demolish and take away any structure pursuant to subsection (2), such a person shall also be entitled to a reasonable
compensation for actual loss and damage suffered by him or her from such transferor, in addition to the amount referred to in
subsection (1).
 (4) If a person who may be entitled to a donation or who is entitled to a donation or gift is aggrieved from being unable to use the
property for any reason under this Chapter, the person shall be entitled to get a reasonable compensation from the person
making donation or gift, subject to the other Sections of this Chapter.
Provided that compensation cannot be recovered in the case of a testamentary gift being void.
 (5) Notwithstanding anything contained elsewhere in this Section, a person who obtains a property in any of the following
circumstances shall not be entitled to recover the amount referred to in sub-sections (1), (3) and (4):
 (a) If he or she has obtained the property knowingly that it was other’s property or a stolen property,
 425. Right in property may be transferred by attorney: (1) If a person appoints another person, who is
competent to be an attorney in accordance with law, as his or her authorized attorney indicating the reason
that he or she is not able to appear in person before the concerned office in order to sell and transfer his or
her immovable property, such an authorized attorney may, on his or her behalf, sell and transfer his or her
property to another person.
(2) A person may sell his or her movable property through his or her attorney or agent.
426. Procedure to be followed by body corporate while purchasing or transferring property: (1) If, in
transferring an immovable property held in the name of a body corporate established in accordance with
law, the board of directors of such a body gives power by a decision to any member of the board of directors
or employee of such a body to transfer the property, such a person may transfer the property on behalf of
such a body.
(2) If the procedure referred to in sub-section (1) is fulfilled while purchasing or otherwise obtaining an
immovable property in the name of a corporate body, the property may be purchased or obtained in the
name of such a body.
427. Property may be purchased or obtained by other person on one’s behalf: If, except the circumstance set
forth in Section 426, a person who purchases or obtains a property in accordance with this Chapter is, for
any reason, unable to appear in person before the concerned office and gives a power of attorney,
accompanied by his or her citizenship certificate, to a person who is competent to be an attorney by law in
relation to the purchase or obtainment of the property, such an attorney may purchase or obtain the
property in the name of that person.
428. Property may be purchased or obtained in the name of incompetent or quasi-competent person: A guardian or curator may
acquire any property by way of donation, gift, purchase or otherwise for the baby in the womb or minor under his or her
guardianship or curatorship.
429. Registration and deregistration of property right in which is transferred in testament: (1) If a person transfers his or her
right in a property to another person with testamentary effect and such transferor of property dies, one who obtains the
property shall submit an application, accompanied by the death registration certificate as well as other evidences, to the
concerned office for the transmission of the property to him or her, within six months after the date of the transferor’s death.
(2) If an application is submitted pursuant to sub-section (1), the concerned office shall examine the deed maintained in it and
make necessary inquiry as to whether the deed executor has died or not and the deed is void or not.
(3) If, upon an inquiry made pursuant to sub-section (2), it appears that the transferor of the property has died and has not got
the deed voided, such property shall be transmitted to the applicant.
(4) If any person submits an application to the office for the transmission after the expiration of the time-limit referred to in
sub-section (1), the office shall transmit such property to the applicant in accordance with such a deed, by collecting the fees by
five hundred rupees for each year after the expiration of the time limit.
430. Not to claim for damage, destroy or low quality: A person who has once purchased a property from another person shall not
be entitled to make a claim that such property is damaged, destroyed or of low quality.
 Provided that if the seller has sold the property by misrepresentation or with deviation from the particulars set forth in the
deed.
 431. Property may be exchanged: (1) Any person may exchange his or her property with another person with or without adding
any amount.
(2) A deed shall be executed in accordance with law in exchanging a property pursuant to this Act. d, the purchaser shall be
entitled to compensation for the same.
432. Restriction on transfer of immovable property to foreigner: (1) No person shall, without obtaining
prior permission of the Government of Nepal, transfer any immovable property to a foreigner.
(2) If any person transfers any immovable property to a foreigner in contravention of sub-section (1), the
relevant deed shall ipso facto be void, and such property shall devolve on the Government of Nepal.
(3) The amount invested by the creditor in the obtainment of an immovable property pursuant to sub-
section (1) shall be equivalent to an unsecured bond (Kapali).
433. Foreigner to transfer partition share or inheritance, if any obtained: (1) If any foreigner obtains a
partition share in or succeeds to any immovable property in Nepal, the property shall not be eligible to be
transferred to or registered in his or her name nor shall he or she be entitled to enjoy the income of that
property, except where so permitted by the Government of Nepal.
 Provided that this provision shall not apply to a person who has obtained non-resident Nepali
citizenship.
(2) Any foreigner who obtains any partition share or succession pursuant to sub-section (1) shall transfer
such property to a citizen of Nepal in any manner, and the concerned office shall, for that purpose, issue a
provisional landownership registration certificate valid for the day of transfer of right.
(3) If the foreigner fails to transfer a partition share or succession obtained in his or her name pursuant to
sub-section (1) to a citizen of Nepal pursuant to sub-section (2) at any time, in the case of the partition
share, and within three years of its obtainment, in the case of succession, the Government of Nepal shall
have right in such property after the expiration of that time-limit.
434. Statute of limitation: A lawsuit may be made
within the statute of limitation, if any, specified
separately in this Chapter, at any time in the case of
Section 449, and, in relation to the other cases, within
six months after the date of knowledge of any act done
or action taken pursuant to this Chapter, by a person
who is aggrieved from such act or an action.
Modes Of Transfer Of Property
a) By Partition
(Muluki civil code,2074 Part-3, Chapter 10)
Provisions Relating to Partition
206. Equal entitlement to partition share
207. Son and daughter born from couple whose
matrimonial relationship is dissolved to obtain
partition share
208. 209. To obtain partition share from mother.
209. To obtain partition share from part of father or
husband.
b) By mortgage
Muluki Civil Code, 2074
Chapter-12
Provisions Relating to Mortgage of Immovable Property

437. Mortgaged property to be possessed and enjoyed

 438. Possessory right in mortgaged property to be
deemed transferred
439. Entitlement to possess as if it belonged to oneself
440. Duty to take reasonable care of mortgaged property
c) By gift or donation
Part-4, Chapter-10
Provisions Relating to Donation and Gift
 As per sec 406(1), if a person grants free of cost a property in which the
person has right and ownership to another person or for any religious,
social , public or community purpose such an act shall be deemed to be
a donation.
 As per sec 406(2), If a person grants free of cost a property in which the
person has the right and ownership to another person as a reward,
prize or tip in consideration for merits to him/her by that other person
by way of fostering him/her or otherwise or for family love or affection
such an act shall be demmed to be a gift.
d) Other provisions
By sale
By lease
Transfer and Acquisition of
Intellectual Property in Nepal
Patent
 According to sec 2(a) of Patent, Design and Trade Mark Act, 2022,
Patent means any useful invention relating to a new method of process
or manufacture, operation or transmission of any material or a
combination of materials, or that made on the basis of a new theory or
formula.
 According to sec 3(1) of the same Act, a person desirous of obtaining
right over any patent shall register such patent in his or her name
under this Act.
 As per the sec 7 of this Act, patent need to be registered after
necessary investigations and as per sec. 8 registered patent must be
published in Nepal Gazette for information of public.
 As per sec 8 registered patent must be renewed in every seven years
under sec 23B.
Design
 As per the sec 2(b) of the Act , Design means the form or
shape of any material manufactured in any manner.
 As per sec 12(1) a person may acquire title to the design
after registration of the design as per sec 14 in the name of
the applicant and issue a certificate as mentioned in
schedule 2(b).
 The registration of design must be renewed every five
years under sec 23B in order to be valid.
Trade-mark
 As per this Act, Trade-mark means word, symbol or picture or a
combination thereof to be used by any firm, company or individual in
its products or services to distinguish them with the product or service
of others.
 As per sec 16(1) of the Act, a person may acquire title to the trade-mark
of his business after necessary investigation as per sec 17 followed by
registration in the department under sec 18.
 As per sec 18C, the registered trade-mark should be brought into use
within one year from the date of registration and must be renewed
every seven years under sec 18.
Transfer of ownership or
approval for use of patent,
design or trade-mark
 As per sec 21D of the Act, the owner of the patent, design or trade-mark
may file a joint application stating the facts accordingly before the
department accompanied by the prescribed fees.
 The department may then transfer the ownership or provide approval of
use for such patent, design or trade-mark.
Copyright
 Copyright is an international legal system that seeks to prevent the
reproduction of literary and artistic works without the consent of their authors.
 According to Copyright Act, 2059 sec 3(2) Any translation, arrangement,
sequential arrangement of work or collection of works presented as original
from viewpoint of presentation, collection or expression, data or database
readable with or without support of machine, any proverb, folktale, folksong
falling under folk expression or any other derivate words based on folk
expression shall be protected as original work, without prejudice to the
copyright of the original work.
 As per sec 3(5), registration of a work, sound recording, performance or
broadcasting is not required.
 As per chapter 5, sec 24(1) of the same Act, the copyright owner may transfer all
or any of the economic rights conferred on him/her to anyone by making a
written agreement and for the transfer of moral rights, after death of the real
owner, a written agreement should be made earlier with the terms and
conditions that his/her name shall not be removed from the work.
 Any Queries??

If yes, go through the

sections of Muluki
Civil Code,2074
mentioned above
Thank you
References
Book, Property Law in Nepal, author Laxmi Prasad
Kharel, Pairavi Prakashan
Property law, author Professor Gunanidhi Neupane,
Lumbini Prakashan
Muluki Civil Code,2074
Patent, Design and Trademark Act, 2022
Copyright Act, 2059