A

Project Report on

IDEA OF OWNERSHIP AND ITS CHALLENGES

Submitted to: Mr. Manoj Kumar (Faculty :Jurisprudence)

Submitted by: Chandrashekhar Sharma

Section B

Roll No.-49

Semester- VI, B.A.L.LB. (Hons.)

Hidayatullah National Law University

Raipur, Chhattisgarh

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 DECLARATION

I, Swapnil Rathore, hereby declare that, the project work entitled, ‘Idea of Ownership and its
Challenges’ submitted to H.N.L.U., Raipur is record of an original work done by me under the
guidance of Mr. Manoj Kumar, Faculty Member, H.N.L.U., Raipur.

Chandrashekhar Sharma

Roll No. 49

Section B

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 TABLE OF CONTENTS

Acknowledgements.....................................................................................................................3

Introduction..................................................................................................................................4

Objective......................................................................................................................................5

Research Methodology................................................................................................................5

Definition......................................................................................................................................6

Characteristics of Ownership.......................................................................................................8

Classification of Ownership.........................................................................................................9

Significance of Ownership in Modern Social Context...............................................................11

Distinction between Ownership and Possession ………………..……………………………..13

Criticism………………………………………………………………………………….……..15

Conclusion....................................................................................................................................16

Bibligraphy...................................................................................................................................17

Webliography...............................................................................................................................17

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 ACKNOWLEDGEMENTS

I would like to thank my Jurisprudence faculty Mr. Manoj Kumar for giving me this research
project. It has been an exciting yet a rigorous journey while completing this project. The project
has helped me gain an incisive view regarding concept of ownership.

I would also like to thank my dear colleagues and friends in the University, who have helped me
with ideas about this work and also a source for constant motivation and hence they were a
guiding force to me in making of this project. Last, but not the least I thank the University
Administration for equipping the University with such good library and IT lab. My special thanks
to library staff and IT staff for equipping me with the necessary books and data from the website.

I would also like to thank the hostel staff for providing me a healthy and clean environment that
provided me a great concentration level.

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 INTRODUCTION

The idea and concept of ownership is developed by slow degrees with the growth of civilization.
In primitive societies the only concept known to human mind was that of possession. It was
much later that the concept of ownership adopted. So long as the people were wandering from
place to place and had no settled place of residence, they had no sense of ownership. The idea
began to grow when they started planting trees, cultivating lands and building their homes. The
transition from a pastoral to an agricultural economy helped the development of the idea and
concept of the ownership.

Thus, ownership denotes the relation between a person and an objective forming the subject
matter of his/her ownership. The normal case of ownership can be expected to exhibit the
incidents as follows: First, the owner will have a right to possess the thing which s/he owns.
Secondly, the owner normally has the right to use and enjoy the thing owned. Thirdly, the owner
has the right to consume, destroy or alienate the thing. Fourthly, ownership has the
characteristics of being indeterminate in duration. Fifthly, ownership has a residuary character.
The right to ownership was also recognized under the ancient Indian law. The great commentators
notably, narada, Yajnavalkya, vyas etc. emphasized the right of ownership of property was to be used
for noble cause and good motives. The ancient Hindu law ordained men to behave in a particular
manner in relation to person or property of another. They were warned that misuse of the right of
ownership would entail them moral and public indignation and they would be liable for punishment.
The ancient laws of prescription, bailment, sale, etc. were based on distinction between ownership
and possession.

The literal meaning of the term ‘own’ is to have or hold a thing. The one who holds a thing as his
own is said to be the owner and has right of ownership ever it. Thus in the non-legal sense ownership
may be defined as the right of exclusive control over and disposal of a thing at will.
In the legal sense the term ownership carries the meaning of right over a thing to the exclusion of all
other persons. This implies non-interference by others in the exercise of this right and must be
distinguished from mere holding of a thing in one’s possession.

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 OBJECTIVE

• Examining the concept of ownership.

• Point out the characteristics and classification of ownership.
• To distinguish between ownership and possession.

RESEARCH METHODOLOGY

The research is Doctrinal in nature. Secondary and electronic resources have been largely used to
gather information and data about the topic. Books and other references as guided by the faculty.
Websites, and articles have also been referred.

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 DEFINITION

Ownership, in its most comprehensive signification, denotes the relation between a person and
any right that is vested in him. That which a man owns is in all cases a right. When, as is often
the case, we speak of the ownership of a material object, this is merely a convenient figure of
speech. To own a piece of land means in truth to own a particular kind of right in the land,
namely, the fee simple of it.

Ownership, in this generic sense, extends to all classes of rights, whether proprietary or personal,
in rem or in personam, in re propria or in re aliena. I may own a debt, or a mortgage, or a share in
a company, or money in the public funds, or a copyright, or a lease, or a right of way, or the fee
simple of land. Every right is owned; and nothing can be owned except a right. Every man is the
owner of the rights which are his.

Austin defined ownership as ‘a right indefinite in point of user, unrestricted in point of

disposition and unlimited in point of duration.’

Austin’s definition thus implies thee attributes viz.,

a) Indefinite user,

b) Unrestricted disposition and

c) Unlimited duration.

Holland‘s definition: Austin’s definition of ownership has been followed by Holland. He defines
ownership as plenary control over an object. According to him an owner has thee rights on the
subject owned:-

a) Possession

b) Enjoyment

c) Disposition

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According to Salmond, ‘Ownership in most comprehensive significance denotes the relation
between a person and any right that is vested in him.’ That, which a man owns, according to him,
is in all cases a right. Ownership in this wider sense extends to all classes of rights, whether
proprietary or personal, in rem or in personam, in re-propria or in re-aliena. He adds that it
applies not only to rights in the strict sense but also to liberties, powers and immunities.

Thus, according to Salmond ownership vests in the owner a complex of rights which s/he
exercises to the exclusion of all others. For Salmond what constitutes ownership a bundle of
rights which in here in an individual. Salmond’s definition thus points out two attributes of
ownership:-

a) Ownership is a relation between a person and rights that is vested in him;

b) Ownership is incorporeal (immaterial, having no material body or form).

Methods of acquiring ownership:

A thing is capable of being owned, the methods of acquiring ownership over it will vary from
legal system to legal system. There are two modes of acquisition of ownership and those are
original and derivative. Original acquisition can be absolute: res nullius and by occupation.
Basically, one can acquire ownership in two ways:

i. by operation of law or

ii. by reason of some act or event.

As to the first, a statute might provide that all A’s property should after a certain period of time
vest in B. As to the second this may consist in the first taking or madding a thing, both being
cases of original acquisition. Thirdly, the thing may fall into man’s ownership without any
human act, as would be the case if a piece of land were to break off from an island in a river and
attach itself to my land on the opposite bank.

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 CHARACTERISTICS OF OWNERSHIP
There are certain characteristics as such:

• It is absolute or restricted. An owner of a property may be its absolute owner and nobody
else may have any interest in the same. It is also possible that there may be certain
restrictions on the right of ownership and those restrictions may be imposed by law or by
voluntary agreement. An owner may lease out his property. He may mortgage the same.
Thus, he comes to have a limited ownership. A compulsory restriction may be imposed
on ownership if another person comes to have an easement on a particular property.
• It is also possible that certain restrictions may be imposed on the owners of property in
times of national emergency. The house of any owner may be requisitioned and any
compensation may be fixed by the prescribed authority. The Government may appoint
some authority to control the rents charged by the owners of property.
• The Government may demand certain taxes from the owners of property. If those taxes
are not paid, the Government may confiscate their property of that portion of property
which is necessary to realise the money due to the Government.
• The ownership of a person does not diminish with his death. He is entitled to leave his
property to his property to his successors. The owner can distribute the property even in
his own lifetime.
• Certain disabilities have been imposed on infants and lunatics with regard to the disposal
of property. Obviously, they are not competent to enter into valid contracts. They are not
expected to understand and appreciate all the implications of their actions.1

1
www.legalservicesindia.com/article/print.php?art_id=1281

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 CLASSIFICATION OF OWNERSHIP

Ownership may be of various kinds. Broadly, it may be classified under the following heads-

I. Vested and Contingent ownership

II. Sole and Co-ownership

III. Corporeal and Incorporeal ownership

IV. Legal and Equitable ownership

V. Trust and Beneficial ownership

VI. Absolute and Limited ownership

I. Vested and Contingent ownership

Ownership is either vested or contingent. It is vested when the owner’s title already perfect, it is
contingent when his title is as yet imperfect, but is capable of becoming perfect on the fulfillment
of some condition. In the former case the ownership is absolute; in the latter it is merely
conditional. Once it is matured it automatically converts into vested type of ownership.

II. Sole and Co-ownership

Sole ownership indicates the singular control over the property. In this concept an individual
only entertains all sorts of rights of ownership over his owned property. Co-ownership is a
concept of plural or multiple owners holding right over the particular property. A single person
cannot entertain the rights of ownership in group.2

III. Corporeal and Incorporeal ownership

Ownership over any material object which can be movable or immovable but tangible objects is
called corporeal ownership. Incorporeal Ownership means ownership over the immaterial things
such as right over patent, design, trademark, copyright etc.

IV. Legal and Equitable ownership

2
drgokuleshsharma.com/pdf/possession

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The distinct between legal and equitable ownership is limited in English common law only.
Legal ownership is a legally defined and protected property. Generally, ownership is understood
as a legal ownership. In other words, legal ownership is that which has its origin in the rules of
the common law.

Equitable ownership is basically carried out from the Chancery courts of UK. Equity courts
protect the rights of property. Equity law granted rights were the concept of equitable ownership.
Equity law is a concept of natural law philosophy. It does have no practicability to rest of the
world.

V. Trust and Beneficial ownership

Trust ownership is also known as duplicate or dual types of ownership. It is well defined right
that one should use the right to favour other. This kind of ownerships looks like ceremonial
having no powers.

Beneficial ownership is relating to rights over the trust to use the authority in favour of the trust
itself. This type of ownership is taken as a real ownership because it is powerful and using right
to favour the trust is to benefit all trustees. Moreover user is none other than a trustee

VI. Absolute and Limited ownership

Absolute ownership is a concept of right having no any conditions. Particular property is totally
under the control of owner. Limited ownership is a conditional approach of the rights over the
property. It is basically based on contract law or dependency and various defined limitations
towards the entertainment of right relating to ownership.

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 SIGNIFICANCE OF OWNERSHIP IN MODERN SOCIAL CONTEXT
Ownership is a socially significant concept because it is an index of wealth and social position.
Ownership of land was means of controlling government. In a feudal system based on land
ownership, the feudal lords wielded tremendous influence and even the qualification to vote was
based on ownership of land. The social aspect of ownership also highlights the important
principle that on owner shall enjoy his interest in a manner compatible with the interest of others.
As Lord Evershed said; ‘Property like other interests has a social obligation to perform’. The
extent of this social obligation reflects the social policy of the legal system.

It is important to remember that ownership is not merely a bundle of rights, liberties and powers.
It is also carries with it corresponding burdens in the nature of duties, liabilities and disabilities
which prescribe and regulates how an owner should utilize his property for the benefit of other
individuals or society. Property owned by person is liable to execution for the debts incurred by
him. The liability to pay property tax, wealth tax, etc is also imposed in the social interest. When
control legislation imposes restriction on the way in which one may use his property.3

The typical individualist approach to ownership is reflected in the definition of Austin, which we
have analyzed earlier. However, gradually the emphasis began to shift from the individual to
society-from ownership as a fundamental right of property to the wants of people and one’s duty
towards others. It came to be recognized that limitation are integral to the concept of property,
and not exception to an otherwise unlimited right.

The Marxist theory of ownership draws attention to the evil role it has played. It begins with
individual working with its own tools and raw materials. Later, the profit accumulated through
trading manufactured products elevates him to position to provide the tools and raw materials,
and get other people to provide the labour. The manufactured products however remain in his
ownership, not in that of the labourer, and he continues to trade it as his own property. It is the
concept of ownership that enables the exploitation of workers. Ownership of the means of
production-tools and raw materials-became a source of power over persons for private profit.4

3
www.lawctopus.com/academike/ownership-social-concept/
4
journals.cambridge.org/article_S0008197300082076

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This promoted inequality, because using the power of dismissal and threat of unemployment and
consequent starvation, the employer was able to dictate unfair terms of service. The owners of
the means of production became industrial commanders wielding enormous powers that strike at
the fundamentals of society.

Dr. Friedmann attributes three main reasons for the declining influence of private ownership in
modern social order.

Firstly, the gap between employer and labour class is gradually narrowing down due to trade
union movement, nationalization of industries and national insurance schemes and now the
employers can exploit the workers by misusing their power. As a result of this the bargaining
power of both the entrepreneurs and the workers is more or less equal.

Secondly, the profiteering by industrialists has been considerably regulated through legislative
measures and effective tax laws.

The industrialists are now required to contribute a considerable part of their income and profit to
the public fund of the state. This has helped in equitable distribution of wealth.

Thirdly, the encouragement provided to the corporate sector in recent decades has helped in
separating the power element from ownership. During the capitalistic era, both ownership and
power are centralized in the industrialists which were detrimental for the labour class. But today
the real power vests in the management comprising experts in their respective fields and the
owners are divested of this power. Thus power has been separated from the ownership. Further
in order to ensure that the management does not misuse their power and authority,
comprehensive company legislation and labour and industrial laws have been enacted by almost
all countries.

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 DISTINCTION BETWEEN OWNERSHIP AND POSSESSION

According to Ihering, “Possession is the objective realization of ownership.” It is the external

realization of ownership. It is a valuable piece of evidence to show the existence of ownership. It
is in fact what ownership is in right. It is the de facto exercise of a claim while ownership is the
de jure recognition of that claim. Possession is the de facto counterpart of ownership. It is the
external form in which rightful claims normally manifest themselves. For example, a rented
house is actually in possession of the tenant but the ownership of it is vested in the landlord.
According to Salmond, “ownership in its widest sense implies “the relation between a person and
any right that is vested in him. Possession is in fact what ownership is in right. Bringing out
distinction between possession and ownership Salmond pointed out that a person is said to be the
owner of a thing when his claim receives the recognition and protection from the law of the state,
but possession may be exercised and realized even without such recognition or protection from
the law. Thus ownership has the guarantee of law but possession has some measure of security
and value from the facts, without any possibility of support from land.
According to Austin, ownership in its wider sense is a right “indefinite in point of user,
unrestricted in point of disposition and unlimited in point of duration”. The right of alienation of
property is a necessary incident to the right of ownership, but there are many restrictions with
regard to the alienation of property today.
According to Pollock, “Ownership may be described as the entirety of the powers of use and
disposal allowed by law. The owner of a thing is not necessarily the person who at a given time
has the whole power of use and disposal; very often, there is no such person. We must look for
the person having the residue of all such power when we have accounted for every detached and
limited portion of it, and s/he will be the owner even if the immediate power or control and user
are elsewhere”.5
Possession and ownership differ in their mode of acquisition. The transfer of possession is
comparatively easier and less technical but the transfer of ownership in most cases involves a
technical process of convincing.

5
chestofbooks.com › Religion › A Man and His Money

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On the basis of above discussion, we can compare ownership and possession in this way in brief:

Ownership Possession
i. Ownership is an absolute authority
over the property.
ii. Ownership is perfectly legal right. It i. Possession is relative authority holding
shows legal situation. physical control over the property.
iii. Ownership is a de jure concept. ii. Possession is possessory right only. It
iv. Ownership right is wider concept. shows real situation.
v. Ownership holds unlimited and iii. Possession is a de facto concept.
uncontrolled rights. iv. Possession is a right of consumption
vi. Transfer of ownership is not easy only.
and it needs to legal or formal v. Possession right is limited concept of
procedures, prerequisites of right.
registration. vi. Possession is comparatively easy and
vii. Ownership has no technical practically no need to register and such
obstructions to transfer. formalities.
viii. Ownership is a union of vii. Possession faces the technical obstacles
ownership and possession. for transfer.
ix. Ownership only does not carry viii. Possession is a single concept giving
practical use in the absence of no right of ownership.
possession. ix. Possession may create ground for the
x. Ownership does not get priority if ownership as well.
there is an equal right over the same x. Possession is the real and basis of
property. priority for the situation of equal rights.

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 CRITICISM
I. Austin’s view of ownership has been criticized on various grounds;

a. It is pointed out that ownership is not a right but a bundle of rights. It is the aggregate or
sum total of the rights of user and enjoyment.

b. Ownership is not merely a right but also a relationship between the right owned and the
person owning it.

c. The idea of the right of indefinite user is also attacked. Many limitations can be put upon
that user. The owner must use his property in such a way as not to interfere with the rights of
others.

II. Salmond’s view of ownership has been criticized by many writers;

a. According to Duguit, ownership is a relationship between a person and a thing over which
he is permitted, on account of this relationship, complete disposal, use and enjoyment. What is
owned is a thing and not a right.

b. According to Cook, there are many rights which a person may possess and to use the term
‘owner’ to express the relationship between a person and a right is to introduce necessary
confusion. Ownership is the name given to the bundle of rights.

c. According to Kocourek, ownership is a relationship of the owner and a right to a thing

which can be economically enjoyed. The right of ownership is a matter of legal protection. 6

6
www.publishyourarticles.net/...hub/law/...ownership...possession/3986/

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 CONCLUSION

The way of ownership, philosopher Salmond, had indicated the ownership cooperates with
person and right. Austin quoted right to user of indefinite nature, Holland concerned for power to
the possession, enjoyment and ownership.
Basically, ownership functions according to its definition and characteristics. In the functionally,
it has social position and significant. It has the judicially as well as social control and policy.
Ownership of land was also means of controlling government. By the way ownership is depends
on according to the nation’s government. Although, philosopher defined its nature, definition,
acquisition, kinds and function related with possession, owner, right and so on but it has
naturally right with the nation about property, citizens and power.
At last, we can say that ownership is strictly a legal concept and possession is non-legal and pre-
legal concept, so they have basic different but closely co-related with each other.

One conclusion typically drawn from the relativity of title is that property law protects
not ownership but rather rights to possess of varying strength. There are no owners on this view,
just possessors. A modern version of this story, equally reductionist, is that there are no
possessors, only owners. The law resolves conflicts between owners by privileging pre-existing
rights. Neither version of the story adequately locates the place of ownership in a system of law
that also treats title as relative.

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 BIBLIOGRAPHY

• Jurisprudence and Legal Theory, Dr. V.D.Mahajan , 5th Edition

• Studies in Jurisprudence and Legal Theory, Dr. N.V.Paranjape, 7th
Edition

WEBLIOGRAPHY
• www.publishyourarticles.net
• www.chestofbooks.com
• www.lawctopus.com
• www.legalservicesindia.com

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