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This article is written by Anam Khan from Hidayatullah National Law University. It is often said that “You cannot know law only by knowing the law. For it is a part of economics, sociology, environment, property, etc”. It is jurisprudence that tells us about the meaning of the law. Similarly, sufficient legal theory and jurisprudence are surrounding the law of property. This is a comprehensive article on the law of property from the jurisprudential perspective.

Introduction

How can one define something he owns? It is the term ‘property’ that is often used to describe objects owned by a person. Property can also be described as something whose right to ownership can be expanded. Therefore, a property can include a living as well as a non-living thing. Although property can have different meanings, the common thread running across various meanings is the right of ownership. Property has become a measure of a person’s success. Therefore, it becomes important to understand the law of property under jurisprudence.

Meaning of Property

The term property is not a term belonging to art. It has been used in a variety of senses. 

In the widest possible sense, the property includes all the legal rights of a person, no matter what his description is. The property of a man is all that belongs to him following the law. Although it is becoming a fashion now, such a usage of the term is common in old books. 

According to Blackstone: “The inferior hath no kind of property in the company, care or assistance of the superior, as the superior is held to have those of the inferior.” 

According to Locke: “Every man has a property in his person. Every individual has the right to preserve his property, that is, his wife, liberty and estate.”

In a narrower sense, the property includes the proprietary rights of a person and not his rights. Proprietary rights constitute his estate or property, whereas, personal rights includes his status or personal condition. If viewed from the lens of a narrower sense, then only land, chattels, shares, and debts are personal property and not his life, liberty or reputation. This is the most commonly used interpretation of property in modern times. 

However, another interpretation and meaning of property include only those rights which are both proprietary and real. The law of property is the law of proprietary rights in rem. Going by this interpretation, a freehold or leasehold estate or copyright also includes the meaning of property. 

In the narrowest possible sense, the property includes nothing more than corporeal property or the right of ownership for material things. 

Austin believed that property can have different meanings at different times. It could be used to denote the greatest rights of enjoyment known to law excluding servitudes or it could also be life interests or sometimes even servitudes. It could be the whole set of assets owned by a person including both rights in-rem and rights in personam. 

Today, intellectual or intangible property has become very important. Instances are copyright, trademark, property in designs and patents. 

Kinds of Property

Corporeal Property

The other name for the corporeal property is tangible property because it has a tangible existence. It relates to material things. The right of ownership of a material thing is the general, permanent and inheritable right of the user of the property or thing. Further corporeal property can be divided into two categories- 

Movable 

Chattels, for example, leases, to cows, to clothes etc are movable property. It simply includes all corporeal property which is not immovable.

Immovable

Land, for example, is an immovable property. According to Salmond, an immovable piece of land has many elements attached to it. It is inclusive of the ground beneath the surface down to the centre of the world. Interestingly, it also includes the column of space above the surface ad infinitum. According to the German Civil Code, the owner of a particular piece of land owns the space above it as well. The right of free and harmless possession of space at a reasonable height over the land is secured and governed by the Air Navigation Act, 1920. 

According to the General Clauses Act 1897, “Immovable property includes land, benefits arising out of the land and things attached to the earth.” 

Real and Personal Property

The difference between real and personal property is similar to the difference between movable and immovable property. The little connection that is, is historical and not based on the logic. Real property means all rights over land recognized by law. However, personal property means all other proprietary rights whether rights in rem or rights in personam. 

Incorporeal Property

Incorporeal property is intangible property. The other terms frequently used are intellectual or conventional property. It includes all those valuable interests which are and can be protected by law. The need to recognise and protect incorporeal property has been recognised in recent times. The scope of the term property has widened and it has come to include virtual property as well. In modern times, a large share of a country’s property can be found in the form of shares of a company. Further incorporeal property is of two kinds- rights in re propria and rights in re aliena. 

Rights in re propria

Under this form of right, the right of ownership in one’s property is not exercised over material objects. Generally, the law of property deals with material objects. However, there are exceptions to this in the form of non-material things produced by human skills and labour. The most important of these are patents, trademarks, artistic copyright, commercial goodwill etc. 

Holland added a new type of intangible property to the list. To quote him: “With such intangible property should probably also be classified those royal privileges subsisting in the hands of a subject which are known in English law as franchises, such as rights to have a fair or market, a forest or free fishery.” 

Rights in aliena 

These rights are known by the name of encumbrances.in simpler words, these are rights in rem over areas of property owned by another person. Such rights run parallel to res encumbered. They bind the res in whosoever hands it may pass. These prevent the owner from exercising some definite rights concerning his property. The main kinds of encumbrances are lease, servitude, security and trusts.

  1. Lease- it is an encumbrance giving a right to the possession and use of the property of another person. It is the transfer of a right to enjoy a certain property. 
  2. Servitude– it is that kind of encumbrance which consists of a right to limited use of land without having the possession of it. Examples of servitudes are- right of a way across the land of somebody, the right of light and air etc.
  3. Security– Lord Wrenbury has defined security as “a possession such that the grantee or holder of security holds against the grantor a right to resort to some property or some fund for the satisfaction of some demand, after whose satisfaction the balance of the property or funds belongs to the grantor.” Securities are of two kinds- mortgage and lien.

Where a mortgage is the transfer of an interest in specific immovable property for the purpose of securing payment of money advanced by way of loan. A lien is the right to hold the property of another person as a security for the performance of an obligation. 

  • Trust- An obligation annexed to the ownership of property. The persons in whose favour the trusts are advanced are infants, lunatics, unborn persons etc.

Modes of acquisition of property

Salmond refers to four modes of acquisition of property- possession, prescription, agreement, and inheritance. 

Possession

It is the objective realization of ownership. The possession of a material object is a title to its ownership. The de-facto relation between person and thing brings the de-jure relation along with it. He who claims a piece of land as his own and is also in possession of the same makes it good in law also by way of ownership. If a person is in possession of a thing, he cannot do so forcibly. He has also to seek the help of law to vindicate his own right. But if a certain property belongs to nobody, the person who captures it and possesses it has a good title against the whole world. It is similar to how the birds in the air and fishes in the water belong to the person who catches it. 

Prescription

According to Salmond, “Prescription may be defined as the effect of lapse of time creating and destroying rights; it is the operation of time as a versatile effect.” Prescriptions are of two types- positive acquisitive prescription and negative or extinctive prescription.

Prescription is not limited to rights in rem. It is found within the sphere of obligations and of property. Positive prescription is possible only in the cases of rights which admit of possession. Most rights of this nature are rights in rem. Rights in personam are commonly extinguished by their exercise and cannot be possessed or acquired by prescription. Negative prescription is common to the law of property and obligations. Most obligations are destroyed by the lapse of time. Their ownership cannot be accompanied by their possession. 

Agreement

According to Paton, an agreement is an expression by two or more persons communicated to each other of a common intention to affect the legal relations between them. It is an outcome of a bilateral act. It may be in the nature of an assignment or a grant. An assignment transfers existing rights from one owner to another. A grant connotes the assurance or transfer of the ownership of property as distinguished from the delivery of property. 

There are some agreements which require attestation and registration of the deed. There is a general rule that the title of the transferee by agreement cannot be better than that of the transferor. This is primarily because of the fact that no man can transfer a better title than what he possesses. 

However, there are two general exceptions to the rule- 

  1. The transferee gets a good title from a trustee who fraudulently sells the trust property, provided the transferee purchases it for value and without notice of the equitable claim of the beneficiary. 
  2. Where the possession of a thing is with one man and the ownership of it is in another, the processor can transfer in certain cases a better title on the assumption that the possessor is the owner, provided the transferee obtains it in good faith believing him to be the owner. 

Inheritance

Another way of acquiring property is by means of inheritance. When a person dies, certain rights survive him and pass on to his heirs and successors. The rights which are survived by a person are called inheritable rights. Proprietary rights are inheritable rights. Whereas, generally personal rights are not inheritable but there are also exceptions to this general rule. 

Succession to the property of a person may be either testate or intestate. It may be by means of a will or without a will. If there is a will, succession takes place by operation of law. If there are no heirs at all, the property goes to the State. 

Theories of property

Many theories have been put forward to explain the origin of property and its justification. 

Natural Theory

According to this theory, the property is based on the principle of natural reason derived from the nature of things. The property was acquired by the occupation of an ownerless object and as a result of individual labour. According to Grotius, all things originally were without owner and whosoever acquired or captured it became its owner. According to Pufendorf, originally things belonged to people as a whole. There was no concept of individual ownership. It was with time and evolution of humankind that the need of ownership and possession arose. The theory of occupancy thus became the ground and foundation of all property.

Metaphysical Theory

This theory was propounded by Kant and Hegel. A particular thing rightfully belongs to the owner when he is so connected with it that anyone who uses it without his consent does an injury to him. But to get a better justification on the law of property we must go beyond cases of possession where there is an actual physical relation to the object and interference is aggression upon personality. In simpler words, properties the object on which a person has the liberty to direct his will.

Historical Theory

According to this theory, private property had slow and steady growth. It has grown out of a collective group or joint property. There were many stages in the growth of the private property. The first stage of natural possession existed independently of the law. The second stage of juristic possession was a conception of both fact and law. The last stage in the development cycle was that of ownership. Ownership became a purely legal concept. According to Dean Roscoe Pound, the earliest form of property was a group property. It was a matter of time that families partitioned and individual property came into being. 

Positive Theory

The founder of this theory was Spencer. He based his theory on the fundamental law of equal freedom. According to him, property was a result of individual labour. No man has any moral right to property which he has not acquired by his personal labour and effort.

Psychological Theory

According to this theory, a property came into existence from the acquisitive instinct of man. Every individual desires to own things and that brings into existence property. It has been rightly said by Bentham, “Property is nothing more than the basis of a certain expectation of deriving hereafter certain advantages by a thing of reason.” 

Sociological Theory

According to this theory, property should not be considered in terms of private rights but should be considered in terms of social functions. It is an institution which secures maximum interest.

Conclusion

Property is a source of power, a source of labour and most importantly it is regarded as the best and the safest form of investment in the modern time. The value of a property is always appreciated. Knowing the importance of property, it becomes all the more important to know the historical legal background i.e jurisprudence surrounding the same. It is believed that law and property were born together and it is a prophecy that the same would die together. These two aspects are intertwined most intriguingly. Before the laws, property did not exist; take away the laws and property will be no more. Hence, the property has been regarded with special significance in jurisprudence. Owing to the reasons listed above, this article tries to help the reader develop a better understanding of property and its aspects.


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