epartment of Laws, Panjab University Chandigarh. In this article, the author has analysed the jurisprudential aspect of ownership.
“आगमेनपोभोगेन नष्टं भाव्यमतोडन्यथा l
पच्वंधो दमस्तत्र राज्ञ तेनाविभाविते ll”
(The owner has to establish his ownership by showing title and possession if he fails to do this, he should be made to pay the fifth part of the amount involved, as a fine to the king)
The bundle of right of a person over a thing gives him ownership of the thing and the control so exercised by the person over that thing makes the thing the property of that person. The concept of ownership is of both legal and social interest. Not only have court utilized the idea in such a way as to give effect to views of changing individual and social interest, bur so great are its potentialities that in recent times it has become the focus of government policy.
Etymological and legal meaning
The earliest known use of the word ‘owner’, according to Maitland, quoting Dr. Murray, occurred in 1340, and ‘ownership’ in 1583. ‘Early law’ says Holdsworth, ‘does not trouble itself complicated theories as to the nature and meaning of ownership and possession.
First, the conception of the possession came into being, and then the conception of the ownership came into being, and then ownership developed due to changes in the economic structure of the society. In Roman law, as well as in ancient Hindu law, possession and ownership were recognized as two separate and distinct conception.
Roman law and English Law
The Romans began with a technical concept of dominium i.e. dominion as the absolute right to a thing, possessio i.e. possession denoting rather mere physical control. English law on the contrary ‘reached the conception of ownership as an absolute right through development in the law of possession’. The Greeks took a relative view similar to English law- he was owner who could prove a better right to possession than anyone else.
Holdsworth considers the development of ejectment has introduced an absolute right of ownership- ‘a person who wishes to recover against the possessor must show, not merely a better right than the possessor, but an absolute right.’
The idea of ownership in chattel had however a different course of growth. In the initial stages, the rights in movable were not of such a nature that they could be called ‘ownership’. The idea of title as a better right to possess came into being through trover and detinue, which, in turn, came into being through the development into the idea of ownership. Thus came the concept of ownership into existence.
The law of prescription, bailment, and sale without ownership, under the ancient Hindu laws, was based on the distinction of possession and ownership. The ancient Hindu lawgivers like Manu, Yajnavalakya, Vyasa, and Narada pointed out that possession of landed property for twenty years, and of chattels for ten years, by a person created title by prescription. Possession was proof of ownership through pure title. As regards to the sale without ownership, Narada and Yajnavalakya said that when an article or a chattel has been sold by a person who is not the owner, the rightful owner should obtain it from the purchaser.
The concept of ownership which is highly developed one in the ancient laws of the Hindus has been spoken of as a special capacity produced by the acts of purchase, acceptance, and the inheritance, gain, purchaser, conquest, investment of Health, employment.
सप्तविलागमा धमर्मा दायोलाभ: क्रयोजय: l
प्रयोग कर्म योग्श्च या प्रतिगह एवं च: ll
Definition of Ownership
Austin- “a right indefinite in point of user unrestricted in point of disposition and unlimited in point of duration over a determinate thing.”
According to Austin, there are three elements of ownership-
Indefiniteness in point of user
He says, no one can exhaustively enumerate the various ways in which the owner may make use of his property. Bur unrestricted user in all system of laws is qualified by the law of nuisance in accordance with the maxim ‘sic utereturat alienum leadas’ (so use your own property as not injure your neighbors). Again an owner’s indefinite user is restricted by encumbrances in favour of other persons and again limited by any restriction which the state may care to impose in the interest of community by such statues as Town planning Acts, etc.
Unrestricted in point of disposition
He says, the owner can make any kind of alienation, whether by way of gift, sale, exchange or lease or in any other manner permitted by the law. But it is not true in any system of law, such as, in English law, the inheritance (family provision) Act of 1938. In India, the Marumakkathyam law, alienation of ancestral immovable property in Mitakshra law. In Germany, division of small farms beyond a particular limit is not permissible. Further, the Government may acquire any property for public purposes irrespective of the owner’s dissent.
Unlimited in point of duration
He says, Ownership is perpetual and is transmissible from the owner to his heirs. But it is not necessary that an owner’s right should be unlimited in point of duration. It may end with his death or insolvency and or on the happenings of some other contingency as in cases where the ownership is subject to a condition subsequent. Again the rule against perpetuity is another limitation upon the unlimited duration and powers of disposition of the owner.
Salmond improves upon Austin’s definition. According to him: “the ownership of a material object is to a right to the general or residuary uses of it after the deduction of all special and limited rights of use vested by way of encumbrances in other persons.”
“Ownership in most comprehensive sense denotes relation between a person and a right that is invested in him.”
Thus, according to Salmond, ownership is, therefore, ‘incorporeal’. He then went to say that to speak of the ownership of physical objects is a figure of speech. What is meant is that certain claims are vested in a person.
Duguit has criticized Salmond’s definition and asserted that what a person really owns is a ‘thing’ and not a ‘right’. Cook has characterized Salmond’s definition of ownership as an ‘unnecessary confusion’.
Analysis of ownership
The main rights of ownership are there-
- The right of possession of the property owned,
- The right of enjoyment of the property; it includes the power to deal with the property as the owner pleases (in accordance with the manner prescribes)
- The power to dispose of the property.
There are certain restrictions upon the property; it includes the power to use it.
Article 19 of the constitution says-
All citizens shall have the right,
b) To acquire, hold and dispose of property,
The state can impose reasonable restrictions on the exercise of the right by the law in the interests of the general public, or for the protection of the interests of any scheduled tribe. (Article 19(5))
The state cannot deprive anyone of the property owned by him except in the manner and for the purpose prescribed by law.
- Ownership in English law can only be vested in a person.
- Ownership is needed to give effect to the idea of ‘mine’ and ‘not mine’ or ‘thine’. One aspect of it is that the idea becomes necessary only when there are some relations between persons.
- The right of ownership comprises benefits and burdens. The former consists of claims, liberties, powers, and immunities, but the advantage these gives are curtailed by duties, liabilities, and disabilities.
- Ownership is a social institution. The extent of the rights, privileges, powers, and immunities that are exercisable by an owner reflect the social policy of the legal system.
- Ownership arises only in such a way as are specified by each legal system, as, in classical Roman law for the transfer of ownership in certain kinds of things, special ceremonies were required.
- Ownership is a source of social power. Social reformers, notably those who accept the teaching of Karl Marx of ownership.
Subject Matter of Ownership
Ordinarily, the subject matter of ownership consists of material objects like land, chattels, etc. the wealth and assets of a person such as interests in the land, debts due to his shares in a company, patents, copyrights, etc. may also be subject matter of ownership. Thus intangible rights may also constitute subject matter of ownership.
Salmond also supported this view that right may also be subject matter of ownership though a man is said ‘not to own, but to have a right.’
In the Bank Nationalization case 1970, Supreme Court held that property includes not only tangible things but also intangible things, (Rustom Cavasjee Cooper v. Union Of India (1970 AIR 564, 1970 SCR (3) 530). Likewise, the Supreme Court has held privy purses as property within the meaning of Article 19 and 31 of the constitution.
Kinds of Ownership
On the basis of English law, the ownership is classified in the following ways:
Corporeal and incorporeal ownership
The ownership of material objects is called corporeal ownership whereas the ownership of right is called incorporeal ownership. Thus the ownership of a house, table, land, machinery, etc., is corporeal ownership and the copyright, patent, trademark, right of way, etc. is incorporeal ownership.
Corporeal things are those which are tangible that is, which can be felt by the senses while incorporeal things are intangible and cannot be felt by senses.
Salmond thinks that the distinction between corporeal and incorporeal has merely a theoretical significance because in either case, the ownership is the right vested in the owner and not the material object.
Sole and Co-ownership
When the ownership is vested in one person only, it is called the sole ownership and when it is vested in more than one it is called co-ownership, ex-partnership.
‘Tenants in common’ and ‘joint tenants’ (in English law) are co-owners of the tenancy. In India, the coparcenary of Hindu is also a co-ownership.
Co-ownership is possible only so far as the law makes provisions for harmonizing in some way the conflicting claims of the different owner inner se. There is an existence of reciprocal obligation of restricted use and enjoyment between co-owners.
Trust and beneficial ownership
The institution of trust and beneficial ownership was not the same as now, the institution of trust and the rights of the trustee and the beneficiary are the special creation of English ‘equity’. The relation in trust is that there are two or more sets of owners- one set is under an obligation to use its ownership for the benefit of another, the former is called the ‘trustee’ and the letter is called the ‘beneficiary’, and this is ‘beneficial ownership’. Professor Campbell suggests the term ‘bare ownership’ in place of trust ownership. A trustee in legal theory is owner, though, he has no right to use the property for himself. The purpose of trusteeship is to protect the rights and interests of persons, who for any reason, are unable to protect them for themselves. That which the trustees owns, the beneficiaries owns also.
In agency the property is vested solely in the principal, in a trust, it vests in beneficiary and trustee.
Legal and equitable ownership
The dictation is recognized in English law, it is closely connected to the theories of trust and beneficial ownership. In English, the ownership recognized under the rules of common law (in common law courts) was legal ownership and ownership which was recognized under the Equity courts on equitable principle was called equitable ownership. It is the duplicate ownership, one person is the legal owner and another is the equitable owner of the same right at the same time. If the legal right to a thing is in ‘A’, but the beneficial right to it is in ‘B’, then the court of Equity would decree that ‘A’ held as trustee for ‘B’.
Vested and Contingent Ownership
Ownership is said to be vested when the owner’s title is already perfect. It is called contingent when the owner’s title is as yet imperfect but is capable of becoming perfect in the future on the fulfillment of some condition. It is vested ownership, the property is owned absolutely.
In contingent ownership, the property is owned conditionally. It means that the investetive facts are incomplete, but it may be completed in the future. Till then the ownership is contingent and when the required condition is fulfilled, it becomes complete or vested.
In India, a vested or contingent interest takes place on a transfer of property, is given in the place on a transfer of property, is given in the ‘Transfer of Property Act (Act IV of 1882)
In Shashi Kanta v. Pramodchandra (A.I.R. 1932 Cal. 609), their lordship of the Calcutta High Court pointed out the distinction between a vested and contingent interest
Absolute and limited Ownership
When in a person all the rights of ownership (i.e. possession, enjoyment, and disposal) are vested without any restriction (except that imposed by law in the interest of society), his ownership is absolute ownership, but when there are limitation on user, or duration or disposal, the ownership is limited ownership. An example of limited ownership, in English law is life tenancy when an estate is held only for life. In Hindu law (before 1956) women’s estate was a limited ownership.
Method of Ownership
Broadly speaking, there are two modes of acquiring, namely,
Original acquisition of ownership takes place when ownership is acquired by some personal acts on the part of the acquirer. It is of three kinds-
Absolute– when a thing is acquired which has no previous owner (res nullius), it is done in two ways-
- Occupation – for a thing of which there is no owner, as a bird in the air and a fish in the water, the general rule of Roman law that the first occupier became the owner. In Roman law, the property obtained by conquest was treated as res nullius, and therefore it rules applied. Manu recognized conquest as a mode of acquisition. And also if anyone found the treasure on its land, he took whole.
- Specification- If a person by working upon a material belonging to another made it into something new, he became the owner of the new product. For ex- if a sculptor made a statue. There are no such rules in modern times.
Extinctive- when a person by some act on his ownership of the previous owner and acquires its ownership himself, it is called extinctive acquisition. For example, acquisition of ownership by prescription is 12 years in India.
Accessory- This is called accessory acquisition that is when the ownership of a property is acquired by way of accession to some existing property. Examples are produce of land or animals or fruits of trees. Manu has termed this mode of acquisition as ‘property’ which means acquiring by accession.
when ownership is derived from a previous owner, it is called derivative acquisition of ownership. It takes place when ownership is acquired by inheritance or gift or purchase etc.
Ownership and possession- distinguished
- Speaking on the distinction between the two Salmond has stated that, possession is in fact, what ownership is in right. Ownership is the guarantee of the law, possession is the guarantee of facts.
- Ownership cannot be last without the consent of the owner whereas accident may be lost either by accident or by the wrongful act of another.
- There may be ownership without possession of a debt which is capable of being owned but not possessed.
- Possession and ownership differ in their mode of acquisition also.
Like other countries recognizes the right to ownership in property in India. It is guaranteed and protected right by the Constitution (300A). The right of ownership is subjected to many statutory laws and regulations e.g. sale and transfer of land, land reforms act. The town planning and slum clearance legislation acquiring urban land for public purposes the landholding ceiling legislation which regulates the possession laws as other laws derived from English law, although we had legacy of that laws.
- Dr. S.N. Dhyani, Jurisprudence- A study of Indian legal theory (Metropolitan Book Co. (pvt.) Ltd., New Delhi, Second Edition1 985)
- Dr. N.V. Pranjpe, Jurisprudence and legal theory (central law Agency, Allahabad, Eight Edition 2016)
- Dwedhi, Jurisprudence and legal theory(central law publication, seventh edition 2017)
- Dayal, Text book of jurisprudence and legal theory, Second edition
- R.W.M. Dias, Jurisprudence (Aditya books (pvt.) Ltd., New Delhi, 1994, fifth edition
- B.N.M. Tripathi, jurisprudence and legal theory (Allahabad law agency)
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: