CRITICAL ANALYSIS OF DOCTRINE OF PROPRIETARY RIGHTS

A Project submitted in partial fulfilment of the course PROPERTY LAW,

3rd SEMESTER during the Academic Year 2018-2019

SUBMITTED BY:
Abhishek Singh
Roll No. - 1606
B.B.A LL.B

SUBMITTED TO:
Dr. BRN Sharma
FACULTY OF PROPERTY LAW

SEPTEMBER, 2018

CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA NAGAR,

MEETHAPUR, PATNA-800001
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the BB.A. LL.B (Hons) Project Report entitled
“CRITICAL ANALYSIS OF DOCTRINE OF PROPRIETARY RIGHTS” submitted at
Chanakya National Law University; Patna is an authentic record of my work carried out
under the supervision of Dr. BRN Sharma. I have not submitted this work elsewhere for any
other degree or diploma. I am fully responsible for the contents of my Project Report.

(Signature of the Candidate)

ABHISHEK SINGH
Chanakya National Law University, Patna

i
 ACKNOWLEDGEMENT

―IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER‖
A project is a joint endeavor which is to be accomplished with utmost compassion, diligence
and with support of all. Gratitude is a noble response of one‘s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered Property
Law teacher Dr. BRN Sharma whose support and guidance was the driving force to
successfully complete this project. I express my heartfelt gratitude to him. Thanks are also
due to my parents, family, siblings, my dear friends and all those who helped me in this
project in any way. Last but not the least; I would like to express my sincere gratitude to our
Property Law teacher for providing us with such a golden opportunity to showcase our
talents. Also this project was instrumental in making me know more about the CRITICAL
ANALYSIS OF DOCTRINE OF PROPRIETARY RIGHTS. This project played an
important role in making me understand more about the people who are competent to transfer
and who are not. It was truly an endeavour which enabled me to embark on a journey which
redefined my intelligentsia, induced my mind to discover the intricacies involved in the
competency of the people in the transfer of property.

Moreover, thanks to all those who helped me in any way be it words, presence,
Encouragement or blessings...

- ABHISHEK SINGH
- 3rd Semester
- B.BA LL.B

ii
 TABLE OF CONTENTS

Declaration…………………………………………………………………………………….i

Acknowledgement…………………………………………………………………………….ii

Table of Contents…………………………………………………………………………….iii

Aims and Objectives……………………………………………………………………….…iv

Research Methodology……………………………………………………………………….iv

Limitations……………………………………………………………………………………iv

1. Introduction………………………………………………………………………….1-2

2. Evolution of Proprietary Rights……………………………………………...……...3-6

3. Nature of Proprietary Rights………………………………………………………...7-9

4. Types of Property Rights………………………………………………………....10-14

5. Property Rights and Human Rights…………………………….………………...15-16

6. Conclusion………………………………………………………………………..17-18

Bibliography……………………………………………………………………........………19

iii
 AIMS AND OBJECTIVES

The Aims and Objectives of this project are:

1. To study doctrine of proprietary rights.
2. To critically analyse the doctrine of proprietary rights.
3. To study about the various kinds of proprietary rights.

RESEARCH METHODOLOGY

For this study, doctrinal research method was utilised. Various articles, e-articles, reports and
books from library were used extensively in framing all the data and figures in appropriate
form, essential for this study.
The method used in writing this research is primarily analytical.

LIMITATIONS

The presented research is confined to a time limit of one month and this research contains
only doctrinal works which are limited to library sources.

iv
 INTRODUCTION

The concept of property occupies an important place in human life, because it is virtually
impossible to live without the use of material objects which constitute the subject-matter of
property.
In its widest sense, all animate or inanimate things belonging to a person are included in the
term property; for instance, a person‘s life, liberty and estate may also be considered his
property. However, it has now become obsolete to interpret the term ―property‖ in this
comprehensive sense.
In a limited sense, property covers only a person‘s proprietary rights as opposed to his
personal rights. Thus land, chattels, shares and debts due to him constitute his property. Thus
in the most usual sense in which the term is used in modern times.
In modem times, apart from its common use, ―property" is used in a wider sense also. In its
widest sense it includes all the rights which a person has. Thus, a person‘s life, liberty,
reputation and all other claims which he might have against other persons is his property.
The term ―property‖ is used also to denote the proprietary right of a man as opposed to his
personal rights. In this sense, it means a person‘s land, house, his shares in a business
concern, etc. It is used in a third sense also, that is, to mean proprietary right "in rent".
SALMOND takes the term in this sense. He says: ―the law of property is the law of
proprietary rights ―in rem‖ the law of proprietary rights ―in pesonam‖ being distinguished
from it as the law of obligations. According to this usage, a freehold or leasehold estate in
land, or patent or copyright is property but a debt or the benefit of a contract is not.‖1
There is also a fourth and the narrowest sense in which the term ―property‖ is used. In this
sense it includes corporeal property only. It denotes the right of ownership in a material
object or the object itself. It is submitted that in modem times, the general use of the term is
not made in the sense in which it includes all the legal rights, nor has the term remained
confined to the sense in which it includes corporeal property only. The use of the term in this
sense will not give the idea of the practical application of it. In most of the legal systems of
the world the term is used either in the second or in the third sense. The sense in which
SALMOND takes the term ―property‖ is also narrow. Now, things or rights which were not
called property previously have come to be included in it.

1
SALMOND: Jurisprudence

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Proprietary rights, also known as property rights, are the theoretical or legal rights that an
entity has to own property, whether tangible or intangible. Property rights are some of the
most basic rights in a free society. They give individuals the right to accumulate, own, hold,
delegate, rent, or sell their property. Within economics, property rights form the basis for all
market exchange, and they don't always refer only to what's lawful. They might also refer to
what is ethical or moral.
The definition of property is expansive. Property can include physical resources, land, non-
human creatures, and intellectual property.
There are many types of property:
 Community property
 Private property
 Abandoned property
 Intangible property
 Marital property
 Mislaid property
 Personal property
 Public property
 Real property

Property, as Hobhouse‘s says, ―is to be conceived in terms of the control of man over things‖,
a control which is recognised by society, more or less permanent and exclusive. The essential
point in the notion of property, as says Ginsberg, is that there is recognised right of control
over things vested in a particular person-Dr persons – a right which, within certain limits, is
free from the interference of others.
According to Salmond, “Proprietary Rights includes not all rights, but only a man’s
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”
AUSITN looks at property in its widest sense and suggests that property denotes the greatest
right of enjoyment known to the law excluding servitudes. Sometimes even servitudes are
described as property in the sense that there is a legal title to them. Sometimes property
means the whole of the assets of a man including both his proprietary as well as personal
rights.

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 EVOLUTION OF PROPRIETARY RIGHTS

Right to property is framed as a human right under the Universal Declaration of Human
Rights2 and is recognized as a fundamental right in most democracies. It is one of the most
controversial of rights, always in need of an appropriate definition suited to a nation‘s
political, social and economic conditions.3 While all liberal constitutions allow for certain
reasonable restrictions on an absolute right to property for some public good, the challenge
facing every country is where to draw the line against state interference into a person‘s right
to own and enjoy property.
In 1950, independent India drafted into its new Constitution a set of fundamental rights for its
citizens to free speech, peaceful assembly, and association, to move freely throughout the
territory, to reside and settle in any part of the country, ―to acquire, hold and dispose of
property‖, and to practice any profession, or carry on any occupation, trade or business. The
Constitution also gave the nation an independent judiciary.

Evolution of Property Rights in India: Pre Independence

The concept of private property as understood in today‘s constitutional sense evolved with
the interpretation of classical Hindu law by judges of the British Empire. The English
common law practices ironed out conflicting texts and divergent customary rules prevailing
across India and codified problematic elements of a Hindu‘s right to property and its
alienation.4
Muslim Rulers5 had introduced the Jagirdari system of creating temporary alienations on
military-revenue considerations, which evolved in the sixteenth century. Jagirs (land
holdings) were granted to nobles, scattered away from each other to prevent consolidation by
the assignees. British rulers inherited the existing land settlement systems of the Mughals that
covered much of the Indian sub-continent. Waning Mughal rule had made the jagirdars de
facto owners of the land. It was politically expedient for the colonial rulers to continue
dealing with them to generate land revenue. By imposing the English common law to

2
Universal Declaration of Human Rights, Article 17, “(1) Everyone has the right to own property alone as well
as in association with others; (2) No one shall be arbitrarily deprived of his property”
3
Definitional issues have ensured that right to property has not been included in the International Covenant on
Civil and Political Rights and International Covenant of Economic, Social and Cultural Rights.
4
The earliest record of the concept of private property in India is in the Manusmriti, The Code of Manu, a body
of ancient Sanskrit texts detailing religious and legal duties of Hindus.
5
Muslim rule in the Indian sub-continent was spread roughly between tenth to eighteenth centuries.

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determine property relationships, the British ironically laid the ground for recognition of
private property rights in India.
In 1793, the British government granted Permanent Settlements to zamindars (landed
aristocrats)6 in the region of Bengal with ownership rights over land. The settlement was
extended to Bihar, Madras and Orissa. Modified versions of such settlements, including
short-term alienations, were created in other parts of India also.7 The common feature of
these diverse land tenure systems was that the zamindars did not technically own the land and
the tillers of the land were tenants of the zamindars.8
The concept of eminent domain as an attribute of State sovereignty was first introduced by
the British through the Bengal Regulation I of 1824, which authorized compulsory
acquisition of private property by the State.9 The Land Acquisition Act of 1894 empowered
the State to acquire private land for a ‗public purpose‘ on payment of compensation.10
Constitutional protection of property figured for the first time under the British rule in the
Government of India Act of 1935. Expropriation of private property, including land and
commercial and industrial undertakings, without ‗public purpose‘ and full compensation was
illegal.11

6
The term ‘zamindar’ is broadly used for ‘intermediaries’ across varied tenure systems, who administered land
on behalf of the rulers, but did not own it
7
Broadly, three different types of revenue systems were introduced by the British, which evolved into the land
tenure systems that independent India inherited. The Zamindari system introduced around 1793, prevailed
over most of North India, including present-day Uttar Pradesh (except Avadh and Agra), Bihar, West Bengal,
most of Orissa, and Rajasthan (except Jaipur and Jodhpur). The Ryotwari system, introduced in Madras in 1792
and in Bombay in 1817–18, held sway over most of South India, including present-day Maharashtra, Karnataka,
Tamil Nadu, Kerala, Andhra Pradesh, and most of Madhya Pradesh and Assam and also the princely states of
Jaipur and Jodhpur in Rajasthan. The Mahalwari system was introduced between 1820 and 1840 to the
present-day Punjabs in Pakistan and India, and Haryana, parts of present-day Madhya Pradesh and Orissa, and
the princely states of Avadh and Agra in Uttar Pradesh.
8
Permanent Settlements meant that zamindars paid revenue fixed in perpetuity to the government, which was
at rates higher than what was paid prior to 1793.
9
Bengal Regulation I, 1824 applied to the Bengal Presidency. Similar laws were enacted for Bombay (Building
Act XXVII of 1839) and Madras (Act XX of 1852 adopting sections of the Bengal Regulation I, 1824). Separate
amendments brought the railways under these legislations. First consolidated land acquisition law for British
India was Act VI of 1857 repealing all previous legislations. See, Law Commission of India, Tenth Report: Law of
Acquisition and Requisition of Land, 1958.
10
Land Acquisition Act 1894, originally applied only to British India. The Native States passed their own land
acquisition acts, for example, the Hyderabad Land Acquisition Act 1899, the Mysore Land Acquisition Act 1894,
the Travancore Land Acquisition Act 1914
11
Government of India Act 1935, “Section 299 (1): No person shall be deprived of his property in British India
save by authority of law; Section 299(2): Neither the Federal nor a Provincial Legislature shall have power to
make any law authorizing the compulsory acquisition for public purposes of any land, or any commercial or
industrial undertaking, or any interest in, or any company owning, any commercial or industrial undertaking,
unless the law provides for the compensation for the property acquired and either fixes the amount of
compensation, or specifies the principles on which, and the manner in which, it is to be determined…; Section

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Post-Independence
By the end of the British rule, zamindars held vast tracts of land with complete control over
the tillers‘ rights. This land was however, hugely fragmented, because of the historical nature
of alienations made first by the Mughals and later by the British. In the run-up to the Indian
independence in 1947, socialism was the dominant ideology of the Indian National Congress,
the party that led India‘s freedom struggle against British rule. Insecurity of land tenures
among the village communities, poverty and indebtedness and recurring famines preoccupied
negotiations on law-making with the British to secure independence and later, within the
Constituent Assembly drafting the Constitution for independent India.
The Constituent Assembly was strongly divided between government takeover of private
property and the continuance of property rights as it stood in the 1935 Act. Even among those
who favoured expropriation, and no one really opposed abolition of zamindari, differences
arose over how much compensation should be paid.12 The Constitution of India, which came
into effect in 1950, was therefore, a compromise. So while the citizens enjoyed fundamental
right ―to acquire, hold and dispose property‖ under Article 19(1)(f), Article 19(5) made this
right subject to reasonable restrictions in public interest. This fundamental right could also be
taken away under Article 31, the eminent domain article, but taking of private property could
only be ‗by the authority of law‘, ‗for public purposes‘ and on payment of compensation.
Though compensation was a fundamental requirement, there was to be no ‗just
compensation‘, only that the law should provide for compensation for the acquired property
and either fix the amount or specify the principles of determination of compensation. The
Constitution also placed ‗acquisition and requisitioning of property‘ as a Concurrent List item
which meant that both Parliament and the State legislatures could enact laws on the subject.
But authority of the Parliament was established as a fundamental principle and legislations
passed by the States required Presidential assent.
The founding fathers‘ primary goal was to ensure social engineering through agrarian
reforms.13 Land was made a ‗state subject‘ by the Government of India Act 1935, and this
position continued under the Indian Constitution. Individual States therefore, enacted a large

299(5): In this section ‘land’ includes immovable property of every kind and rights in or over such property,
and undertaking includes part of an undertaking
12
The Social Revolution and the First Amendment, Chapter 3. While Rajendra Prasad, Jawaharlal Nehru and
Sardar Vallabhbhai Patel were on one page that Zamindari must be abolished, Mahatma Gandhi had earlier
expressed himself against unjustly dispossessing zamindars of their property and instead advocated converting
their mind-set to holding property in trust for their tenants.
13
Government’s land reforms agenda had five components: Abolition of the Intermediaries; Tenancy Reforms;
Ceiling on landholdings; Consolidation of holdings; Compilation and updating of land records.

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number of land reform legislations essentially to abolish intermediary tenures, regulate the
size of holdings (to enable ceiling-surplus redistribution of land to the landless), and for
consolidation (of fragmented land holdings) and settlement of tenures/ownership.
A series of judgments from the Supreme Court and High Courts in the first years of the
Constitution belied the expectation of the Constituent Assembly that the government would
be allowed a free hand with its social engineering. Courts repeatedly struck down laws
enacted by the State Legislatures as ultra vires of fundamental rights and rule of law
principles of the new Constitution.

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 NATURE OF PROPRIETARY RIGHTS

Property is a very important institution in the economy of societies. The word ‗property‘ is
used in two senses. According to some writers it includes goods or things owned by an
individual or group of individuals. Thus, Anderson and Parker write, ―Property consists of
goods and services that society gives an individual or group of individuals the exclusive right
to possess, use and dispose of.‖ In this sense property is one‘s own, something possessed by
him.
It may be tangible or intangible. Tangible items are those which can be seen and touched.
Clothing, ornaments‘, weapons, tools, utensils, houses, lands, automobile, animals etc. are
tangible items. The intangible property is that which cannot be seen and touched. Such
property consists of goodwill, copy rights, trade mark etc. Most of our property consists of
tangible items.14
In its second sense, property refers to rights. Davis writes, ―Property consists of the rights and
duties of one person or group as against all other persons and groups with respect to some
scarce goods.‖ It sets off what is mine from what is thine.
Rights and duties are not tangible in a physical sense. In this sense, tangibility or intangibility
of the thing owned is of little importance, because what is owned are not the goods but the
rights to use these goods. H. T. Mazumdar also writes, ―Property is the intangible right to use
and disposal of a good, material or non-material, in which ownership rights are affirmed for
the group, or a member or a set of members of the group by the folkways and mores.‖ It may
be noted that the idea of property takes its birth only when something is scarce and valuable.
If a thing is easily and freely available it cannot be the object of property.15
For example, air and light are freely available to every person. Hence they cannot form
property, i.e., none can have an exclusive right to their use. In a society there is scarcity of
goods. The members have less than they want. Therefore, they want to possess the exclusive
right to things in scarcity and here the concept of property acquires significance.

14
Property and Proprietary Rights. (2016, 02 28). Retrieved 09 07, 2018, from Law Explorer:
https://lawexplores.com/property-and-proprietary-rights/
15
ibid

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Understood in terms of rights the following are the characteristics of property rights:
(i) Transferability:
Property can be transferred by its owner by way of sale, exchange or gift. A landowner can
transfer his land. Physician can sell his automobile. But one cannot transfer one‘s skill and so
skill is not property.
(ii) Property rights do not necessarily imply actual use and enjoyment of objects
by the owner:
Law makes a distinction between ownership and possession. One may own property without
actually using it. In other words, possession of property may be in the hands of persons who
is not its owner. A tenant is in possession of a house but the house is not his property. It is the
property of the landlord.
(iii) Power-aspect:
The possession of property implies the possession of power over other. As said above,
property can exercise control over those persons who do not have it. The extent of power
which property gives to the owner depends not only upon the definition of his rights but also
on the intensity of others‘ need and scarcity of the thing.16
A man‘s ownership of a fountain pen does not give him any control over the illiterate people
who do not need it, nor on others because it is abundant in supply. But if a man has
ownership of all the clothing factories, his power over others would be great.
(iv) Property refers to a concrete external object:
It is suggested by some writers that property rights refer to a concrete external object, but as
we have seen above such a view limits narrowly the range of property rights. One can have
property of intangible thing like goodwill, when one sells the goodwill of one‘s business,
what he actually sells is not any external object.17
The seller of goodwill only agrees not to compete with the buyer by using the name of the
product or the name of the company. For example, if the manufacturers of ‗Bajaj‘ electrical
goods sell their goodwill what they agree to is that they will not thereafter brand their goods
by the name of ‗Bajaj‘. They do not sell their goods but only the name by which these goods
were known in the market. They have sold their property of goodwill.

16
Property- The Nature of Property. (2017, 02 27). Retrieved 09 07, 2018, from Science Jrank:
http://science.jrank.org/pages/10874/Property-Nature-Property.html
17
Property: Meaning and Nature of Property Rights, Retrived 09 07, 2018, from Sociology Discussion:
http://www.sociologydiscussion.com/property/property-meaning-and-nature-of-property-rights/2350

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 (v) Property is usually non-human:
This means that the object of property has no rights of its own but is simply the passive object
of such rights. The land has no right of its own it only serves the land owner. In other words,
human beings cannot be the object of property. A woman cannot be the property of her
husband, nor can the children be the property of their parents. Property rights apply only to
those things which have no rights of their own.

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 TYPES OF PROPERTY RIGHTS

Proprietary rights, also known as property rights, are the theoretical or legal rights that an
entity has to own property, whether tangible or intangible. Property rights are some of the
most basic rights in a free society. They give individuals the right to accumulate, own, hold,
delegate, rent, or sell their property. Within economics, property rights form the basis for all
market exchange, and they don't always refer only to what's lawful. They might also refer to
what is ethical or moral.18
Types of Property Rights

1. Real Property Rights

Real property is one of the major types that has property rights disputes. Real property is
defined as land and objects on it. The perception of property rights varies widely when it
comes to land.
In general, most people agree that the real property owner has property rights over stationary
objects located on the land, such as a home, trees, plants, rocks, minerals, and crops. On the
other hand, there are many disagreements over things that move across property, such as
animal life and water.19
These are the situations that make the laws and beliefs on property rights murky. It's common
for two people to disagree in property rights disputes because each person has his own belief
on what is morally or ethically right and how to interpret the written laws.
History shows us that land and property rights often result in wealth and power for
individuals.20

2. Private property Rights

Private property rights form one of the major pillars of a capitalist economy, a legal system,
and a moral philosophy. Private property rights allow an individual the ability to exclude
others from use or benefit of his or her property.

18
Berkes, F., D. Feeny, B.J. McCay, and J.M. Acheson. "The Benefit of the Commons." In Natur
19
https://www.upcounsel.com/proprietary-rights
20
Jentoft, S. "Fisheries Co-management: Delegating Government Responsibility to Fishermen's Organizations."
In Marine Policy, April 1989,

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Private property rights can be granted to an individual, which can be understood to mean a
person, group of people, corporation, or non-profit entity.21

There are three attributes to private property rights:

1. The right to determine the use of the property
2. The right to income or proceeds from property
3. The right to delegate, sell, or rent any portion of the rights to the property
The Right to Determine the Use of Private Property
The owner of private property has the right to determine how that private property is used.
For example, the owner of an apartment can choose to live in it himself, rent it to another
person, leave it vacant, or use it in any other peaceful way.
The Right to Income
The owner of private property also has the right to all of the income or proceeds that are
made from the delegation of the property. Returning to the previous example, the owner of
the apartment has the right to rent the apartment. The owner of the apartment also has the
right to all of the rent that comes in as an effect of his renting the property.
The Right to Delegate Rights
The owner of a property has the right to delegate, sell, or rent any portion of the right to his
property. This means that the owner of the apartment can sell the apartment at any time. If the
owner of the apartment sells his full share in the apartment, he has given the ownership and
the property right to the apartment to the new owner.22

Acquiring Property rights

The way that individuals gain property rights depends upon the freedom of exchange of
property rights within a country or culture.
In a regime that has no private property rights, ownership and property rights are given out by
force. Ownership rights are generally managed by the government in such situations. The
government in a system with no private property rights decides who may interact with, be
excluded from, or may benefit from the use of a property. Typically, property is awarded for
political gain instead of economic gain.

21
Clark, C. W. "The Economics of Over-Exploitation." In Science 181, 1973
22
Gordon, H. S. "The Economic Theory of a Common Property Resource: The Fishery." In Journal of Political
Economy 62, 1954

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In contrast to this, there are governments and cultures that allow for a freedom to trade
property rights by individuals. In a society such as this, property rights can be transferred,
sold, and acquired from other individuals in a mutually agreed upon transfer. This can be a
sale, trade, rent, and inheritance, charity, gambling, or sharing.
Within this system, there is also sometimes the option for homesteading, where an individual
acquires rights to unowned property by mixing his labour with the resource over time.23

Restrictions on Property Rights

Restrictions on property rights may seem to improve the market, but they're actually
detrimental to society.
The market values of private property reflect the preferences and demands of the society. It
doesn't matter who the owner of the property is, the rest of society decides what the market
value and most profitable use are. If the owner chooses to use the property for another
purpose, society will prove that that's not the most profitable use.
Private Citizens make individual decisions about their private property, but those private
decisions are influenced by public or social opinion.
Property rights are intended to eliminate destructive competition for resources. Successfully
designed property rights eliminate violent competition and replace it with peaceful
competition.
Market values become more influential when property rights properly protect resources.
Personal status and attributes then become less important.
Consider rent controls. When the government steps in and places controls on rent that are
below the level set by the free market, it doesn't eliminate the competition for apartments.
This type of restriction moves competition from monetary exchanges to that of personal
characteristics. This increases the likelihood of discrimination based on age, sex, ethnicity,
and religion.24
When property rights are weakened to the extreme, there are two outcomes: socialism and
commonly owned resources. Common property means that the property is jointly owned and
managed. Examples of this are grazing on public lands and fishing in the open ocean.

23
Jentoft, S., and B.J. McCay. "User Participation in Fisheries Management: Lessons Drawn from International
Experiences." In Marine Policy 19, no. 3, 1995
24
Hardin, G. "The Tragedy of the Commons." In Science 162, 1968

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Because different groups will have differing opinions on how to manage these resources,
common property laws can be highly controversial

Benefits of Property Rights

Property rights give the property owner several benefits, often known as a "bundle."
For landowners, the property rights bundle may include:
 Selling
 Leasing
 Mortgaging
 Donating
 Subdividing
But the community also has its own bundle of rights. Those rights might include:
 Taxing
 Taking for public use
 Regulating
These benefits may be added to or taken away over time as opinions and regulations of
property rights change. An example is the concept of "fee simple absolute," the basic form of
property ownership in the U.S.25
In the 1800s, the federal government could extract minerals from fee simple absolute land.
By 1900, the government abandoned this mineral rights claim and recognized that a fee
simple absolute property owner had rights to both the surface and the sub-surface of his land.
In some societies, property rights may be "unbundled" and parcelled out among many entities
according to written contracts. Examples could be the separation of mineral rights from
surface rights (as above), utility easements, and restrictive deed covenants.

Lack of Property Rights

A lack of property rights can create problems and have consequences.
Opportunism
If there are no boundaries around property, it becomes easy to steal and exploit. A good
example of this is online music.

25
McCay, B.J., R. Apostle, C. Creed, A.C. Finlayson, and K. Mikalsen. "ITQs in Two Fisheries: An Appraisal of
Process and Consequences." In Ocean and Coastal ilanagement, in press.

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Misuse of Scarce Resources
This problem takes into account the moral issues that surround property rights. Examples are
deliberately dumping oil into the sea and littering.
Overuse of Resources
A lack of property rights can lead to an overuse of resources. Good examples of this are
traffic congestion, over-fishing, hunting endangered animals, and foresting in some areas.
Much of the environment cannot be protected by property rights and is therefore in danger of
being overused.26
Over-Development of Cities
Some economists even associate a lack of property rights with the over-development of urban
areas, which causes squalor and crowding.
Remedies
To fix these problems, communities and governments must change their laws. When property
rights are put into place to protect resources, there are fewer problems with overuse.

26
Little, D. Varieties of Social Explanation. An Introduction to the Philosophy of Social Science. Boulder, CO:
Westview Press, 1991.

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 PROPERTY RIGHTS AND HUMAN RIGHTS

Much is heard these days of the distinction between human rights and property rights, and
many who claim to champion the one turn with scorn upon any defender of the other. They
fail to see that property rights, far from being in conflict, are in fact the most basic of all
human rights.
Liberals will generally concede the right of every individual to his ―personal liberty,‖ to his
freedom to think, speak, write, and engage in such personal ―exchanges‖ as sexual activity
between ―consenting adults.‖ In short, the liberal attempts to uphold the individual‘s right to
the ownership of his own body, but then denies his right to ―property,‖ i.e., to the ownership
of material objects. Hence, the typical liberal dichotomy between ―human rights,‖ which he
upholds, and ―property rights‖ which he rejects. Yet the two, according to the libertarian, are
inextricably intertwined; they stand or fall together.27
Take, for example, the liberal socialist who advocates government ownership of all the
―means of production‖ while upholding the ―human‖ right of freedom of speech or press.
How is this ―human‖ right to be exercised if the individuals constituting the public are denied
their right to ownership of property? If, for example, the government owns all the newsprint
and all the printing shops, how is the right to a free press to be exercised? If the government
owns all the newsprint, it then necessarily has the right and the power to allocate that
newsprint, and someone‘s ―right to a free press‖ becomes a mockery if the government
decides not to allocate newsprint in his direction. And since the government must allocate
scarce newsprint in some way, the right to a free press of, say, minorities or ―subversive‖
antisocialists will get short shrift indeed. The same is true for the ―right to free speech‖ if the
government owns all the assembly halls, and therefore allocates those halls as it sees fit. Or,
for example, if the government of Soviet Russia, being atheistic, decides not to allocate many
scarce resources to the production of matzohs, for Orthodox Jews the ―freedom of religion‖
becomes a mockery; but again, the Soviet government can always rebut that Orthodox Jews
Property and Exchange 51 are a small minority and that capital equipment should not be
diverted to matzoh production.28
The basic flaw in the liberal separation of ―human rights‖ and ―property rights‖ is that people
are treated as ethereal abstractions. If a man has the right to self-ownership, to the control of
27
May, Peter H. "A Tragedy of the Non-Commons: Recent Developments in the Babacu Palm Based Industries
in Maranhao, Brazil." In Forests, Trees and People Newsletter 11, 1990
28
Donham, D. History, Power, Ideology. Cambridge: Cambridge University Press, 1990.

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his life, then in the real world he must also have the right to sustain his life by grappling with
and transforming resources; he must be able to own the ground and the resources on which he
stands and which he must use. In short, to sustain his ―human right‖—or his property rights in
his own person—he must also have the property right in the material world, in the objects
which he produces. Property rights are human rights, and are essential to the human rights
which liberals attempt to maintain. The human right of a free press depends upon the human
right of private property in newsprint.
In fact, there are no human rights that are separable from property rights. The human right of
free speech is simply the property right to hire an assembly hall from the owners, or to own
one oneself; the human right of a free press is the property right to buy materials and then
print leaflets or books and to sell them to those who are willing to buy. There is no extra
―right of free speech‖ or free press beyond the property rights we can enumerate in any given
case. And furthermore, discovering and identifying the property rights involved will resolve
any apparent conflicts of rights that may crop up.29
Consider, for example, the classic example where liberals generally concede that a person‘s
―right of freedom of speech‖ must be curbed in the name of the ―public interest‖: Justice
Holmes‘ famous dictum that no one has the right to cry ―fire‖ falsely in a crowded theater.
Holmes and his followers have used this illustration again and again to prove the supposed
necessity for all rights to be relative and tentative rather than precise and absolute.

29
Regier, H.A., and A.P. Grima. "Fishery Reserve Allocation: An Explanatory Essay." In Canadian Journal of
fisheries and Aquatic Sciences 42, 1985

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 CONCLUSION

Property is a very important institution in the economy of societies. The word ‗property‘ is
used in two senses. According to some writers it includes goods or things owned by an
individual or group of individuals. Thus, Anderson and Parker write, ―Property consists of
goods and services that society gives an individual or group of individuals the exclusive right
to possess, use and dispose of.‖ In this sense property is one‘s own, something possessed by
him.
It may be tangible or intangible. Tangible items are those which can be seen and touched.
Clothing, ornaments‘, weapons, tools, utensils, houses, lands, automobile, animals etc. are
tangible items. The intangible property is that which cannot be seen and touched. Such
property consists of goodwill, copy rights, trade mark etc. Most of our property consists of
tangible items.
In its second sense, property refers to rights. Davis writes, ―Property consists of the rights and
duties of one person or group as against all other persons and groups with respect to some
scarce goods.‖ It sets off what is mine from what is thine.
Rights and duties are not tangible in a physical sense. In this sense, tangibility or intangibility
of the thing owned is of little importance, because what is owned are not the goods but the
rights to use these goods. H. T. Mazumdar also writes, ―Property is the intangible right to use
and disposal of a good, material or non-material, in which ownership rights are affirmed for
the group, or a member or a set of members of the group by the folkways and mores.‖ It may
be noted that the idea of property takes its birth only when something is scarce and valuable.
If a thing is easily and freely available it cannot be the object of property.
For example, air and light are freely available to every person. Hence they cannot form
property, i.e., none can have an exclusive right to their use. In a society there is scarcity of
goods. The members have less than they want. Therefore, they want to possess the exclusive
right to things in scarcity and here the concept of property acquires significance.
In everyday conversation, we usually speak of ‗property‘ rather than ‗property rights‘ but the
contraction is misleading if it tends to make us think of property as things rather than as
rights. A more modern view sees property not as a thing or a relationship between a person
and a thing, but as rights against others, in or over things. In other words, property can be
seen as defining the obligations of persons with respect to a tangible or intangible object.
When viewed in these terms – that is, property seen in terms of rights against others, rather

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than as a thing of commercial value – the concept of property rights in the human body would
seem to have a more acceptable face. Intangibles to which property rights or interests have
been attributed in contemporary discourse include welfare,
benefits, franchises, whiteness, racial identity, personhood, university degrees and air
space. Some have gone further to say that property establishes a legal relationship between
persons, not necessarily with reference to things.
A property interest indicates not necessarily that the holder owns something, but that
someone owes him an obligation. Unlike contractual rights, which are enforceable against a
particular person or persons (rights in personam), property rights are enforceable against the
whole world (rights in rem). Rights against others can be seen as negative rights, as expressed
in Matthews‘ view of property:
The common law sees property as essentially negative, the right to exclude others from
something, or from some aspect of something. This negative right may be absolute, as for
example ‗This is my pen‘. I can exclude everyone from everything in relation to it. Or it may
be limited – even isolated as in for example ‗I have a right to light over (your) land‘. I can
prevent you from building in a certain way on your land. Sometimes the negativity imposes a
positive obligation on another person, as in ‗You owe me £10‘.
The concept of property as rights against others owes its place in the annals of property law
to the seminal work of Wesley Hohfeld.

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 BIBLIOGRAPHY

Books
1. Saxena, Poonam Pradhan; Property Law, Lexis Nexis, 2nd Edition (2011)
2. Singh, Avatar; Textbook on the Transfer of Property Act, Universal Law Publishing,
5th Edition (2016)
3. Tiwari, H.N.; Transfer of Property Act, Allahabad Law Agency, 6th Edition (2015)
4. Shukla, S.N.; Transfer of Property Act, Allahabad Law Agency,29th Edition (2015)
5. Sarathi, Vepa P.; G.C.V‘s Subba Rao‘s Law of Transfer of Property, ALT
Publications, 6th Edition (2008)

Websites
1. https://lawexplores.com/property-and-proprietary-rights/
2. http://www.sociologydiscussion.com/property/property-meaning-and-nature-of-
property-rights/2350
3. http://science.jrank.org/pages/10874/Property-Nature-Property.html
4. https://ageconsearch.umn.edu/bitstream/17276/1/ar960127.pdf
5. https://www.investopedia.com/terms/p/property_rights.asp
6. https://fee.org/articles/human-rights-are-property-rights/
7. https://mises.org/wire/property-rights-and-human-rights
8. http://shodhganga.inflibnet.ac.in/bitstream/10603/71969/8/08_chapter%206.pdf

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