CHANAKYA NATIONAL LAW UNIVERSITY

PROJECT REPORTS OF 6Th SEMESTER 2014

JURISPRUDENCE II

MEANING IMPLICATION AND THEORIES OF ORIGIN OF PROPERTY

Submitted by:Animesh Rishi

Roll-522
6th Semester
2011-2016

ACKNOWLEDGMENT

I am feeling highly elated to work on under the guidance of my Jurisprudence teacher. I am

very grateful to him for the exemplary guidance. I would like to enlighten my readers
regarding this topic and I hope I have tried my best to bring more luminosity to this topic.
I also want to thank all of my friends, without whose cooperation this project was not
possible. Apart from all these, I want to give special thanks to the librarian of my
university who made every relevant materials regarding to my topic available to me at the
time of my busy research work and gave me assistance.

CONTENTS
I.
II.
III.

IV.

V.

Introduction
Meaning Of Property
Kinds Of Property
Corporeal And Incorporeal Property
Movable and Immovable
Real and Personal
Theory Of Property
Natural law Theory
Labour Theory
Metaphysical Theory
Historical Theory
Psychological Theory
Functional Theory
Theory of property is the creation of state
Conclusion
Bibliography

INTRODUCTION
The term property has been used in variety of ways. Broadly speaking, property includes all the
legal rights of a person of whatever description. But if we try to confine the definition then we
can say that property includes the proprietary rights of a person and not his personal rights that
would mean rights constituting estate or property. But still the basic question is how did property
come into being? How did it originate?
How do things come to be owned? This is a fundamental puzzle for anyone who thinks about
property. One buys things from other owners, to be sure, but how did the other owners get those
things? Any chain of ownership or title must have a first link. Someone had to do something to
anchor that link. The law tells us what steps we must follow to obtain ownership of things, but
we need a theory that tells us why these steps should do the job.
John Locke's view, once described as "the standard bourgeois theory," is probably the one most
familiar to American students. Locke argued that an original owner is one who mixes his or her
labor with a thing and, by commingling that labor with the thing, establishes ownership of it.
This labor theory is appealing because it appears to rest on "desert," but it has some problems.
First, without a prior theory of ownership, it is not self-evident that one owns even the labor that
is mixed with something else. Second, even if one does own the labor that one performs, the
labor theory provides no guidance in determining the scope of the right that one establishes by
mixing one's labor with something else. Robert Nozick illustrates this problem with a clever
hypothetical. Suppose I pour a can of tomato juice into the ocean do I now own the seas?1
The substantive civil law is divisible into three great departments, namely the law of property,
the law of obligations, and the law of status. The first deals with proprietary rights in rem, the
second with proprietary rights in personam, and the third with personal or non- proprietary
rights, whether in rem or in personam.
Austin looks at property in its widest sense and suggests that property denotes the greatest right
of enjoyment known to the law excluding servitudes. Sometime even servitude is described as
1 Rose, Carol M., "Possession as the Origin of Property" (1985). Faculty Scholarship
Series. Paper 1830.
4

property in the sense that there is a legal title to them. Considered from this point of view,
property means the whole of the asset of a man including both his proprietary as well as personal
rights.
There are four distinct modes of the acquisition of property:
1. Possession: It has been stated earlier that possession is the objective realisation of
ownership. It is prima-facie evidence of ownership.
2. Prescription:

it may be defined as the effect of lapse of time in the creation and

extinction of a legal right. It is operation of time as a vestitive fact.

3. Agreement: property may also be acquired by agreement which is enforceable by law.
4. Inheritance: the right of inheritance is founded on the assumption that property serves as
a best means of social security.
The term property is used in different senses. In its most comprehensive sense it includes those
things, whether animate or inanimate, which belong to a person. It includes all legal rights of
whatever description. In this sense a persons life, liberty, reputation and estate constitute his
property.
In jurisprudence the term property is, however, used to refer to only proprietary rights in rem,
that is to say, such proprietary rights only as are available against the world at large.
All property is either corporeal or incorporeal. Corporeal property is the right of ownership in
material things; incorporeal property is itself of two kinds, namely
(1) jura in re aliena or encumbrances, whether over material or immaterial things for e.g , leases,
mortgages and servitude, and
(2) jura in re propria over immaterial things for eg, patents, copyrights, and trade mark.
Jurists have differed in their views regarding the origin of property. Many have advanced their
own theories in this regard. None of them however, seems to be wholly correct but there might
be some truth in each one of them. They may not individually be able to explain the whole
concept of origin of property but they certainly help us in understanding it better.
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AIMS AND OBJECTIVES

The main aim here is to find the most acceptable theory of origin of property with the objective
of achieving the understanding of its existence in the society.

RESEARCH METHODOLOGY
The method used for research is the doctrinal method and involves research in the library and on
the internet.
HYPOTHESIS
It is possible by analysis to find out the correct and apt theory of property through research.

CHAPTER 2- MEANING OF PROPERTY

The term property is not a term of art. It has been used in variety of senses. 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 in the inferior.
The term property in a loose sense, may be described as the sum-total of a mans fortune,
including not only the objects of which he is the owner, but also the value of any claims which
he may have against other persons, after deducting the amount of any claims which might be
made good against him.2
In a limited sense, Property covers only a persons proprietary rights as opposed to his personal
rights. Thus a land, chattel, shares and debts due to him constitute his property. This is the most
usual sense in which the term is used in modern time. In yet another sense, property includes
only those rights which are proprietary rights in rem, e.g. patent, and copyright. But a debt or
benefit of a contract is not included within the term property in this sense.
Property is that sole and despotic dominion which one man claims and exercises over the
external things of the world, in total exclusion of the right of any other individual in the
universe.3 A property right is the exclusive authority to determine how a resource is used,
whether that resource is owned by government or by individuals. Society approves the uses
selected by the holder of the property right with governmental administered force and with social
ostracism.
Private property rights have two other attributes in addition to determining the use of a resource.
One is the exclusive right to the services of the resource. Thus, for example, the owner of an
apartment with complete property rights to the apartment has the right to determine whether to
rent it out and, if so, which tenant to rent to; to live in it himself; or to use it in any other peaceful
way. That is the right to determine the use. If the owner rents out the apartment, he also has the
right to all the rental income from the property. That is the right to the services of the resources
(the rent).
2 Holland T.E. : Elements of Jurisprudence (13th Ed. 2010) p. 211
3 J.W. EHRLICH, ERLICH'S BLACKSTONE 113 (1959).
7

Finally, a private property right includes the right to delegate, rent, or sell any portion of the
rights by exchange or gift at whatever price the owner determines (provided someone is willing
to pay that price). If I am not allowed to buy some rights from you and you therefore are not
allowed to sell rights to me, private property rights are reduced. Thus, the three basic elements of
private property are (1) exclusivity of rights to choose the use of a resource, (2) exclusivity of
rights to the services of a resource, and (3) rights to exchange the resource at mutually agreeable
terms.
According to Salmond, the substantive civil law, as opposed to the law of procedure, is divisible
into three major parts, namely, the law of property, the law of obligations, and the law of status.
The first deals with proprietary rights in rem, the second with proprietary rights in personam and
the third deals with personal or non-proprietary rights, whether in rem or in personam.4
Salmond observes that the term property may have a variety of applications but in legal terms it
refers to the following:
1. All legal rights. It includes a persons legal rights of whatever description. A mans
property is all that is his in law. This ordinarily implies complete ownership of all thingsmaterial as well as incorporeal; Hobbes and Blackstone have supported the use of the
term property in this sense.
2. Proprietary rights. - It includes not all rights, but only a mans proprietary rights as
opposed to his personal rights. Thus if I sell my land to you, the property in it shall pass
to you on your paying me the purchase money.
3. Corporeal Property. - in the sense, property includes nothing more than corporeal things,
that is, right of ownership in a material object such as a watch, land, etc.5
Austin looks at property in its widest sense and suggests that property denotes the greatest right
of enjoyment known to the law excluding servitudes. Sometime even servitude is described as
property in the sense that there is a legal title to them. Considered from this point of view,
property means the whole of the asset of a man including both his proprietary as well as personal
rights.
4 Fitzgerald, P.J. ; Salmond on Jurisprudence, (12th ed.) p. 441
5 Bentham: Principles of legislation, p. 231
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Property as interpreted by the Supreme Court of India

The Supreme Court of India, in R.C.Cooper V. UOI,6 gave a very comprehensive definition of
property and observed: Property means the highest right a man can have to anything being that which one has to lands
or tenements, goods or chattels which does not depend on others courtesy; it includes
ownership, estate and interests in corporeal things, and also rights such as trademarks,
copyrights, patents, and even rights in personam capable of transfer or transmission, such as
debts; and signifies a beneficially right to or a thing considered as having money value,
especially with reference to transfer or succession, and of their capacity of being acquired.
Most of the modern legal systems are using the term property in a comprehensive sense.
In India, property has been given constitutional protection under Article 29 (1) (f) of the
constitution of India so that state may not interfere with a persons right to property.
That importance of personal property is residing these days. This is why right to property had
been dropped from the category of fundamental rights by Constitution Forty-Forth (Amendment)
Act, 1978 and it has now become an ordinary legal right under Article 300-A. state is under an
obligation to protect the property right of its subjects.
In a democratic country like India, nationalisation of means of product ion brought about a
radical change in law of property than individual property. Today, property has been developed
as a social institution.7
The effect of the constitutional amendment which took away the right to property from the
category of fundamental rights and made it an ordinary legal right under Article 300A, is that a
person cannot invoke the writ jurisdiction of the supreme court under Article 32 in case his right
to property is violated. The nature of right to property in the post 44 th Amendment era came for
consideration before Supreme Court in Julubhai Nanubhai Khachar V. State of Gujrat 8 wherein
the court observed:
..the right to property under Article 300A is not a basic structure of the constitution. It is only a
constitutional right-The deprivation of the property shall be only by authority of law, be it an Act
6 AIR 1970 SC 564; also known as Bank Nationalisation Case
7 National Textile Workers V. P.R. Ramkrishnan, AIR 1983 SC 75
8 AIR 1995 SC 142 (157).
9

of Parliament or State Legislature but not by executive fiat or an order. Deprivation of property is
possible by acquisition or reacquisition or taken possession of for the public purposes.
The modern judicial trend to interpret right to property in the light of Article 21 of the
constitution dealing with the personal liberty also deserves mention at this place. The apex court
in a number of cases has expressed a view that Article 21 in its widest magnitude covers a variety
of right (including right to property) which constitute the personal liberty of a man. Therefore,
despite the fact that right to property as a fundamental right has been abrogated and repealed, this
right may still be interpreted by the court as an aspect of personal liberty under Article 21.
Therefore, a law seeking to deprive a person of his personal liberties relating to property must
not only be reasonable but must also be right just and fair and consequently it must provide for
just compensation.9
Modes of Acquisition of Property
There are four distinct modes of the acquisition of property:
1. Possession: It has been stated earlier that possession is the objective realisation of
ownership. It is prima-facie evidence of ownership.
2. Prescription: it may be defined as the effect of lapse of time in the creation and
extinction of a legal right. It is operation of time as a vestitive fact.
3. Agreement: property may also be acquired by agreement which is enforceable by law.
4. Inheritance: the right of inheritance is founded on the assumption that property serves as
a best means of social security.

CHAPTER 3-IMPLICATIONS OF ORIGIN OF PROPERTY

The term property whenever introduced wouldnt have had anymore implications than the origin
of the concept of origin of property through possession. Though this might not seem like a very
likely condition it is a point that has to be analyzed for understanding the change brought into the
humans through property. It is very likely that when the concept of property came up it was
9 Bhattacherjee A.M.: Right to property After Forty fourth Amendment, AIR Journal, 1980 p.5
10

regulated by possession which justifies the statement of Blackstone given earlier i.e. The
inferior hath no kind of property in the company care or assistance of the superior, as the
superior is held to have in the inferior. Thus stating that might would define who could posses
any property.
For legal scholars, the evolution of property rights has been a topic in search of a theory.
Our aim here is to draw together various accounts (some of them largely neglected in the legal
literature), from dated to modern, and suggests a way they can be melded into a plausible
explanation of propertys genesis and early development. What results hardly amounts to a
theory, but it does suggest an outline for one. Moreover, it provides a primer on the subject, a
reasonably solid foundation for thinking and talking about the evolution of property rights.
The situation that has been reached today, that of non interference in others property being the
law has been the possible through the basic human nature.
In A Treatise of Human Nature, David Hume introduced the idea of behavioral conventions 10
that arise spontaneously from a general sense of common interest; which sense all the members
of the society express to one another, and which induces them to regulate their conduct by certain
rules. The actions of each of us have a reference to those of the other, and are performed upon
the supposition, that something is to be performed on the other part. 11 Today we speak of a
convention as a social practice generally adhered to by the members of a particular social group
without any explicit agreement or external enforcement, thanks to a general expectation that the
practice will be followed. This expectation is one of the reasons any individual follows the
practice, such that the practice is taken by all to reflect a shared understanding or implicit
agreement.12 Humes view, thus understood, anticipated much later developments in modern
game theory13 in which conventions are mutual best response outcomes that are sustained by the

10 DAVID HUME, A TREATISE OF HUMAN NATURE, bk. 3, pt. 2, 7, at 490 (L.A. Selby-Bigge ed., Oxford Univ. Press 2d ed. 1978) (1740):

11 Id.
12 Robert Sugden, Conventions, in 1 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW at 453, 454.

11

fact that virtually all players believe that virtually all other players will best respond.14
With respect to property rights and rights of individual ownership in particular, Hume saw
them as the remedy to problems of exploitation. Without property rights, whatever anyone
gathered, grew, or built would be vulnerable to the violence of others, 15 but all the while it
would be in the interest of each person to leave another in the possession of his goods, provided
he will act in the same manner with regard to me.16 So there might develop a convention
entered into by all the members of the society to bestow stability on the possession of external
goods, and leave everyone in the peaceable enjoyment of what he may acquire by his fortune and
industry.17 The convention, Hume said, arises gradually, and acquires force by a slow
progression, and by our repeated experience of the inconveniences of transgressing it.18
Thus we can simply understand that the origin of property must have created a scuffle in the
human societies existent in the past. But it is clear that as more people were able to gather up
property of their own the interest started getting limited to insuring the safety of their property
rather than acquisition. Though acquisition of new property might have started some show of
might as was seen in the kings in Indian history trying to expand their empire. The modes of
acquisition must have changed over the course of time depending more on the skills of
negotiation of the person rather than might. This evolution obviously came with the introduction
of law in the community. The present scenario in this context is based on the various principles
13 George J. Mailath, Evolutionary Game Theory, in 2 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW
14

SAMUEL BOWLES, MICROECONOMICS: BEHAVIOR, INSTITUTIONS, AND EVOLUTION (2004). Bowles points out that individual claims on property
preceded the develop-ment of agriculture about eleven millennia ago and became more extensive thereafter; the rights emerged and
proliferated without the assistance of states or other centralized en-forcement agencies. Id. at 382. Many thousands of years later,
centralized forms of pun-ishment and enforcement of property rights began to emerge as a new form of organization. Id.

15DAVID HUME, A TREATISE OF HUMAN NATURE, bk. 3, pt. 2, 7, at 487-488 (L.A. Selby-Biggeed., Oxford Univ. Press 2d ed. 1978) (1740):
16 DAVID HUME, A TREATISE OF HUMAN NATURE, bk. 3, pt. 2, 7, at 490 (L.A. Selby-Biggeed., Oxford Univ. Press 2d ed. 1978) (1740):
17 DAVID HUME, A TREATISE OF HUMAN NATURE, bk. 3, pt. 2, 7, at 489 (L.A. Selby-Biggeed., Oxford Univ. Press 2d ed. 1978) (1740):
18 DAVID HUME, A TREATISE OF HUMAN NATURE, bk. 3, pt. 2, 7, at 489 (L.A. Selby-Biggeed., Oxford Univ. Press 2d ed. 1978) (1740):
12

of law which intend to define the ownership of the matter called property. This though is
achieved through documentation the legal system still accepts possession as the prima facie basis
of ownership.
CHAPTER 5-KINDS OF PROPERTY
The term property is used in different senses. In its most comprehensive sense it includes those
things, whether animate or inanimate, which belong to a person. It includes all legal rights of
whatever description. In this sense a persons life, liberty, reputation and estate constitute his
property.
This usage has become obsolete and finds place only in the works of the older jurists like
Blackstone, Hobbes and Locke.
In its narrower sense it means only proprietary rights but not personal rights. Thus, land, chattels,
shares, debts, copyright, etc., constitute ones property but not his life, liberty or reputation. In
this sense, property includes any right, which has an economic value.
In its oldest and narrower sense the term property includes nothing more than corporeal
property, i.e., the ownership of material objects alone. Bentham refers to such a usage.
In jurisprudence the term property is, however, used to refer to only proprietary rights in rem,
that is to say, such proprietary rights only as are available against the world at large. This is the
meaning adopted by Salmond.
In this sense a patent or a copyright is property, but not so a debt or the benefit of a contract.
Proprietary rights which are rights in personam are distinguished as obligations. That part of the
law which deals with the proprietary rights in rem is the Law of Property.
Under the law, though, there are three categories of property. Most people have two types and
some have all three.
Real property is land and buildings. Anyone who owns a house or a condo owns real property.
(A mobile home is not real property because one does not own the land the vehicle sits on.)

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Personal property is divided into two categories. Intangible personal property is cash and its
equivalents: mutual funds, stocks, insurance policies, savings and checking accounts, even the
wad of bills you may have stuffed in your sock drawer.
Tangible personal property is a large category of what people own. Its anything you can touch.
Its the baseball card collection, jewellery, furniture, housewares, clothes, automobiles, and coin
and stamp collections.
The term property is used in different senses. In its most comprehensive sense it includes those
things, whether animate or inanimate, which belong to a person. It includes all legal rights of
whatever description. In this sense a persons life, liberty, reputation and estate constitute his
property.
This usage has become obsolete and finds place only in the works of the older jurists like
Blackstone, Hobbes and Locke.
In its narrower sense it means only proprietary rights but not personal rights. Thus, land, chattels,
shares, debts, copyright, etc., constitute ones property but not his life, liberty or reputation. In
this sense, property includes any right, which has an economic value.
In its oldest and narrower sense the term property includes nothing more than corporeal
property, i.e., the ownership of material objects alone. Bentham refers to such a usage.
In jurisprudence the term property is, however, used to refer to only proprietary rights in rem,
that is to say, such proprietary rights only as are available against the world at large. This is the
meaning adopted by Salmond.
In this sense a patent or a copyright is property, but not so a debt or the benefit of a contract.
Proprietary rights which are rights in personam are distinguished as obligations. That part of the
law which deals with the proprietary rights in rem is the Law of Property.
Corporeal and Incorporeal Property:
Corporeal property is the right of ownership in material things, such as land, chattel, etc.
Incorporeal property are other proprietary rights in rem. Incorporeal property is itself of two
kinds, viz.,
14

(1) jura in repropria, i.e., proprietary rights over immaterial things, e.g., patents, copyrights and
trademarks, and
(2) jura in re aliena (encumbrances) whether over material or immaterial things, e.g., leases,
mortgages and servitudes.
Ownership of Corporeal Property: Salmond defines the right of ownership of a material thing as
the general, permanent and inheritable right of user of the thing.
In the first place, the ownership of a material object is a right to the general or aggregate use of
the thing. The owner of a material object is entitled to its use except in so far as it is restricted by
natural limits or restrictions arising from the effect of encumbrances.
In the second place, the right of ownership is a permanent right existing so long as the material
thing is in existence.
And, lastly, the ownership of a material object is inheritable and the right survives after his death.
Movable and Immovable Property:
Corporeal property is of two kinds: movable and immovable. Thus, land is immovable property,
while chattels denote movable property.
Immovable properly, according to Salmond, includes the following five elements:
(1) A determinate portion of the earths surface;
(2) The ground beneath the surface down to the centre of the earth;
(3) A reasonable space above the surface necessary and sufficient for the free beneficial
enjoyment of the surface land;
(4) All objects which are on or under the surface in its natural state, e.g., minerals and vegetation
forming part of the land; and
(5) All things attached to the earth, i.e.; all objects placed by human agency on or under the
surface, with the intention of permanent annexation, e.g., buildings, doors, fences.

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Real and Personal Property:

Corporeal property is divided into real and personal property. The former comprises all rights
over land; the latter comprises all other proprietary rights, whether in rem or in personam.
The distinction between real and personal property is identical with immovable and movable
property though the former has an historical origin. In Roman law real property was such
property that could be recovered by a real action. A real action in English Law is one in which a
res may be specifically enforced, and land was the only res which could be so enforced. Hence
land was regarded as real property and movable as personal property.
Although, strictly speaking, the distinction between immovable and movable property does not
exactly correspond to real and personal property which is a result of feudal ideas, they are now
almost interchangeable terms.
Immaterial Forms of Property:
The subject-matter of a right of property is either a material or immaterial thing. The law of
property mostly relates to a material thing. Professor Salmond observes that the only immaterial
things which are recognised by law as the subject-matter of rights are the various immaterial
products of human skill and labour.

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CHAPTER 6-THEORIES OF PROPERTY

Jurists have differed in their views regarding the origin of property. They have advanced their
own theories in this regard. None of them however, seems to be wholly correct but there is some
truth in each one of them. These theories are discussed below
Natural law Theory: This theory is based on principle of natural reason derived from the nature
of things. According to this theory, property was first acquired by occupation of an ownerless
object (res nullius) as a result of individual labour.
Grotius, Pufendrof, Locke and Blackstone have supported this theory. Kant also upholds this
theory in his classic work Philosophy of law. As pointed out by Blackstone, by the law of nature
and reason, he who first began to use a thing acquired therein a kind of transient property that
lasted so long as he was using it and no longer. However, as the population increased, the
meaning of property was extended not to the inordinate use only but to the substance of thing to
be used. Thus the theory of occupancy was the foundation of all property.
The natural theory of property has been criticised by Sir Henery Maine and Bentham. According
to Henry Maine, it is erroneous to think that possession give rise to title for there is no reasonable
ground to support this contention.
Bentham hold that property has not originated by first occupation of an ownerless thing, but it is
creation of law. He does not believe in the exercise of property without the existence of law.
Labour Theory: this theory primarily believes that property can be claimed on the exclusive
basis of ones work, which produced that property. It recognises the role of labour for adequate
rewards. When a person acquires property, he is entitled to hold it exclusively.

17

According to this theory, a thing (res) is the property of the person who produces it or brings it
into existence. However, this view has been criticised by Horld Laski on the ground that labour
does not produce property; it is only means to earn property.19
Notably, the Marxist theory of property is based on predominance of labour in economy of a
country. This theory has lost significance in modern time because it has been shown that there
may be many situations when property can be acquired without labour, e.g., property obtained by
inheritance or under will.
The labour theory of property finds recognition even in the ancient texts of the Hindu Law
commentators notably, Yajnavalkya who underlined the principle that a persons wages will be
according to work done by him. Thus when wages have been fixed for a particular task, which
was undertaken but not accomplished due to illness or other impediments, hten wages would be
paid in proportion to the work done. Similarly when more profits were made by reason of special
knowledge or skill of the worker, then the master shall pay him an mount exceeding the fixed
wages.20
Katyayna recognised the stridhana property of woman and pointed out that wealth earned by a
woman by application of her intellectual ability or business skill or craftsmanship was her own
property over which she had exclusive right of disposal.21
The profit earned by her in business, trade or employment who also her exclusive stridhana
property. The labour theory of property is also sometimes called as the positive theory. It was
propounded by Spencer who founded it on the fundamental law of equal freedom of individual.
He asserted that property is the result of individual labour and therefore, no one has a moral right
to property which he has not acquired by his personal labour.
Metaphysical Theory

19 Harolad Laski: A Grammer of Politics,(5th ed.) p. 185

20 Yajnavalkya II 195-96
21 Katyayana, 895-902
18

This theory was propounded Hegel and Kant. According to Hegel Property is the Objective
Manifestation of the personality of an individual. In other words, property is the object on
which a person has the liberty to direct his will. Kant has also supported metaphysical theory of
property and justified its existence and need for protection. He observed that law of the property
does not merely seek to protect possession where there is an actual physical relation between the
possessor and the object, but it goes beyond it and considers personal will of the individual more
important in the concept of property. This theory has been criticised on the ground that it is little
concerned with realities and is based on theoretical assumptions.
Historical Theory
This theory believes that private property has its growth in three distinct stages.
In the first stage, a tendency developed among people to take thing into natural possession and
exercise control over them independently of the law or the state.
In the second stage, the juristic conception of possession gradually developed which meant
possession in fact as well as in law.
In third and the last stage, there was development of ownership which is purely a legal
conception having its origin in law. The law guarantees the owner of property, exclusive control
and enjoyment of property owned by him.
Henery Maine was the main supporter of the historical theory of the origin of property. He
observed that property originally belonged not to individuals, not even to isolated families, but to
large societies composed on the patriarchal pattern. It was at later stage that collective property
disintegrated and individual right of property came into existence.22
Roscoe Pound also agrees that the earliest form of property was group property which
subsequently disintegrated into family property and finally the concept of individual property
evolved. The noted Italian jurist Miraglia has also supported the historical theory of property.
Psychological Theory

22 Sir Henry Maine : Ancient Law, p.270

19

According to this theory, property came into existence on account of the acquisition tendency of
human beings. Every one desires to own things and keep them in his possession and control.
Bentham has supported this theory of property and pointed out that property is altogether a
conception of mind. It is nothing more than an expectation to derive certain advantages from the
object according to ones capacity.
Roscoe Pound also supports Bentham and holds that the sole basis of conception of property is
the acquisitive instinct of individual which motivates him to assert his claim over objects in his
possession and control.
This theory has been criticised for being Maines imaginative reconstruction based on Indian
village communities and certain local customs prevailing in ancient Indian villages and,
therefore, it lacks universal application.

Functional Theory
The functional theory considers property as a social interest for promoting general security and
protection of individual interests in personality, domestic relation and in subsistence. As pointed
out by Roscoe Pound, interests of personality like security of ones physical being, privacy,
honour, reputation, etc. can be realized only through some access to property. Interests in
domestic relations are protected when the interests of parents. Children, husband, wives and
other dependents are well safeguarded by support and protection of the family. Interests of
subsistence include right to property, economic advantages, and freedom of association and
availability of employment- opportunities.23
As rightly suggested by Jenks the concept of property should not only be confined to private
rights but in should be considered as a social institution securing maximum interests of the
society. No one can be allowed an unrestricted use of his property to the detriment of others. In
his opinion, the use of property should conform to the rules of reason and welfare of the
community. The functional theory justifies acquisition of property by law and individual-efforts.
Its distribution, however, should be on equitable basis.
23 Julis Stone: Province and Function of Law, p.565-6
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Laski also supports the functional theory of property. He observes, Property is a social fact like
any other and it is the character of social facts to keep on changing. Property, therefore, has
assumed varied aspects and is further liable to changes with the changing norms of the society.
The roots of property as a social institution are traceable in the ancient Hindu Philosophy of
Dharma which emphasized on just relations in economic and property matters and not encroach
upon the right to wealth of others. It was the duty of the karta of the family to maintain all the
family members ensuring their social security and enjoyment of property.24
The customs and practices through which property could be lawfully acquired included
donations, gifts, payment of price in case of purchase, seizure of property in war, lending of
money on interest, wages, etc. Any unjust acquisition of property was strictly prohibited and
considered as a sinful act.25
The joint family system in ancient India inspired members of a family with unity of mind and
heart with the result property right assumed a functional role of service to the community as a
whole.
The central principle underlying property acquisition was social security and collectively of
ownership. Mutual trust, good faith and respect for others property right, refrained people from
indulging in unjust enrichment for their selfish ends.
Theory of property is the creation of state: According to this theory the origin of property is to
be traced back to the origin of law and the state. Jenks observed that property and law were born
together and would die together. This in other words, means that property came into existence
when laws were framed by the state. In this context Rousseau observed , it was to convert
possession into property and usurpation into a right that law and state were founded.
He asserted that property was the creation of the state and it is nothing but a systematic
expression of degrees and forms of control use and enjoyment of things by person that are
recognised and protected by law. There is, however, little truth in this theory because in fact both
24 Purohit, S.K.: Ancient Indian Legal Philosophy, (1994), pp.212-213
25 Yajanavalkya Smriti II, 168.
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state and property have their origin in the socio-economic forces therefore one cannot be the
source of origin of the other.

CONCLUSION AND SUGGESTIONS

The term property is of utter importance to and not limited to the human society, keeping in
mind the territorial wars in animals of various species. It is clear that having property would
ensure a state of living that would be acceptable to the persons. Also since property signifies
standard of living of the person possessing it or having clear ownership then it would imply that
to raise ones stature in the society one would have to acquire a lot of property.
This research has come out with one most definitive result. We cannot decide which theory
of property is the most apt and correct. All the different scholars who have given these theories
have done it in their own personal space taking things into different contexts. At most we can say
that the various theories of property are different from each other. One may support any
according to their thinking or instinct. But no one is totally correct or perfect as of now.
Just like Jenks observed that property and law were born together and would die together.
This in other words, means that property came into existence when laws were framed by the
state. In this context Rousseau observed, It was to convert possession into property and
usurpation into a right that law and state were founded. We can be sure that property will stay
till the society exists. No one can deny the need of property in their lives. Thus law has evolved
to protect the right of the real owner. The property is supposed to go to the person who has the
right of ownership, but still sticking to the principle derived from our early history the courts
prefer to protect the rights of the possessor rather than that of the owner. This is because it is
justified to take someone out of possession of a property only when it is proved that someone
else has a better title to it. Thus the possessor may have a better title against the world at large
but not against the real owner.
Thus the research has proved that there are multiple theories of the origin of property, many
of them look promising but they are insufficiently formulated and some are purely hypothetical.
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But the theories have broadened the scope of the debate on the matter of property. This concludes
this research as a descriptive one rather than a decisive one.

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BIBLIOGRAPHY
I.

PRIMARY SOURCES:
(a) Books
PJ Fitzgerald, Salmond on Jurisprudence 12th ed., Universal Law Publishing Co., New
Delhi ,2012
Dr. Avtar Singh and Dr. Harpreet Kaur, Introduction to Jurisprudence 4 th ed., Lexis
Nexis Haryana , 2013
Dr.B.N. Mani Tripathi, Jurisprudence Legal theory, 16th ed., Allahabad Law agency,
Allahabad, 2005.
Dr. N.V. Pranjape, Studies in Jurisprudence and Legal Theory,5 th ed., Central Law
Agency, Allahabad 2009.
Dr. V. D. Mahajan, Jurisprudence and Legal Theory, 5th ed. Eastern Book co., Lukhnow.
A Treatise of Human Nature, by David Hume.

II.

SECONDARY SOURCES:
(a) Websites:

http://www.saradiamondattorney.com/three-types-of-property-under-the-law/
http://www.shareyouressays.com/114737/difference-between-corporeal-property-andincorporeal-property-explained.
http://www.britannica.com/EBchecked/topic/479032/property-law/28485/Property-lawand-theory-in-the-early-modern-period.
http://ebooks.adelaide.edu.au/h/hume/david/h92t/contents.html

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