Meaning Implications and Origin Of Theory Of

Property

The Research work Submitted in the Partial Fulfilment of the Course Jurisprudence-II for
Obtaining the Degree B.B.A. LL.B. During the Academic Year 2021-22

Submitted by:

Keshav Sharma, 2022

Submitted to:
Dr. Manoranjan Kumar

April 2021

Chanakya National Law University

Naya nagar, Mithapur, Patna – 800001

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 ACKNOWLEDGEMENT

It is a fact that any research work prepared, compiled, or formulated in isolation is inexplicable
to an extent. This research work, although prepared by me, is a culmination of efforts of many
people who remained in veil, who gave their intense support and helped me in the completion
of this project.

Firstly, I am very grateful to my subject teacher, Dr. Manoranjan Kumar without the kind
support and help of whom the completion of this project was a herculean task. He donated his
valuable time from his busy schedule to help us complete this project. I would like to thank
him for their valuable suggestions towards the making of this project.

I am highly indebted to my parents and friends for their kind co-operation and encouragement,
which helped me in completion of this project. I am also thankful to the library staff of my
college, which assisted me in acquiring the sources necessary for the compilation of my project.

Last but not the least; I would like to thank the Almighty who kept me mentally strong and in
good health to concentrate on my project and to complete it in time.

Keshav Sharma
Roll. No. 2022
B.B.A., LL.B (Hons.)
Session- 2018-23

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 CERTIFICATE

This is to certify that the following project report Titled “Meaning Implications and Origin Of
Theory Of Property” Submitted At Chanakya National Law University, Patna by Keshav
Sharma roll 2022 B.B.A. LL.B.(hons) carried out under the guidance and supervision of Dr.
Manoranjan Kumar and has not been submitted anywhere for any purposes whatsoever.

Keshav Sharma
ROLL NO. 2022

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Aims/ objective Of the Study.
To study the and understand Meaning Implications and Origin of Theory of Property

Hypothesis
1. Many Jurists have given different ideas about what and how property is defined
thereby creating several theories supporting different methodology of origin of the
concept that is property.
Research questions
1. What is property?
2. What is its’ Implication?
3. What are the different theories f origin of property?
Research methodology
Research methodology used in this project report was doctrinal research

Sources of data
Primary sources: None
Secondary sources: Books, articles, class lectures

Review of literature
For this research, different articles and books dealing with Law of property and Jurisprudence
were studied

Limitations of the Study

1. Researcher is a student
2. Time provided for research is extremely limited
3. Researcher does not have enough resources to conduct a thorough research work
4. The research work is conducted for academic purposes only

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Table of Contents
1. Introduction:........................................................................................................................................ 7

2. Meaning/concept of property: ............................................................................................................. 8

2.1 Property Defined: ........................................................................................................................ 10

3. Types of Property:............................................................................................................................. 10

3.1 Corporeal Property: ..................................................................................................................... 11

3.1.1 Movable Property:................................................................................................................ 11

3.1.2. Immovable Property:........................................................................................................... 11

3.1.3 Real and Personal Property .................................................................................................. 13

3.2 Incorporeal Property ................................................................................................................... 13

3.2.1 Rights in re propria .............................................................................................................. 13

3.2.2 Rights in aliena .................................................................................................................... 13

3.3 Intellectual property .................................................................................................................... 14

A. Patents ...................................................................................................................................... 14

B. Trade Marks ............................................................................................................................. 15

C. Copyright.................................................................................................................................. 15

D. Design Registration .................................................................................................................. 16

3.4 Modes of acquisition of property ................................................................................................ 16

A. Possession ................................................................................................................................ 16

B. Prescription............................................................................................................................... 16

C. Agreement ................................................................................................................................ 16

D. Inheritance ................................................................................................................................ 17

4. Theories of Origin Property .............................................................................................................. 18

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 • 4.1 Natural Theory .................................................................................................................... 18

• 4.2 Metaphysical Theory........................................................................................................... 18

• 4.3 Historical Theory of Property: ............................................................................................ 18

• 4.4 Positive Theory ................................................................................................................... 18

• 4.5 Labour Theory (Spencer): ................................................................................................... 19

• 4.6 Psychological Theory (Bentham): ...................................................................................... 19

• 4.5 Functional Theory (Jenks, Laski): ...................................................................................... 19

• 4.8 Sociological Theory ............................................................................................................ 20

• 4.9 Property is the creation of the State. ................................................................................... 20

• 4.10 Philosophical Theories– .................................................................................................... 20

o Property as a means to Ethnical Ends ................................................................................... 20

o Property as an End in itself ................................................................................................... 20

5. Conclusion ........................................................................................................................................ 22

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1. Introduction:

Jurisprudence is a name given to certain type of investigation into law, an investigation of an abstract,
general and theoretical nature which seeks to lay bare the essential parts of law and legal systems. It is
a subject which differs in kind from other subjects like torts or contracts and consists a set of rules and
principles to be derived from authoritative sources and applied to factual situations in order to solve
practical problems. It also has an educational value since logical analysis of legal concepts sharpens the
lawyer’s own logical technique.1 In addition, study of jurisprudence can help lawyers combat the
lawyer’s occupational vice of formalism which leads to excessive concentration on legal rules for their
own sake. 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. The law of status, on the other hand, is not of such a nature as to require or repay
any further consideration from the point of view of general theory. The following project work deals
with jurisprudence of the law of property, its meaning, implications and its origin. The term property is
commonly used to define the objects which are owned. In other words, property denotes those things in
which right of ownership can be expanded. The term property includes both living and non-living
things. It has been defined in many ways each providing further insight in the topic of property rights
which have birthed several theories of its origin, such as Evolution theory, Political theory, labour
theory etc., but at the crux of it, questions such as How can one define something he owns? It is the
term ‘property’ that is often used to describe objects owned by a person. Property can also be described
as something whose right to ownership can be expanded. Therefore, a property can include a living as
well as a non-living thing. However, all of these have one common factor that ties them all, that is the
concept of ownership.2 Salmond says that the law of property is the law of proprietary rights ‘right in
rem’, the law of proprietary rights ‘in personam’ is distinguished from it as the law of obligations.
According to this usage, a freehold or leasehold estate in land, or patent or copyright is included in
property but debt or shares or benefit arising out of a contract is not property. According to Salmond,
property has been termed in a variety of senses:

• Legal Rights- It includes all those rights which a person is entitled by a way of law. All those
material objects which a person owns as per the law are his legal rights. These are the rights
which he can exercise over others. It includes a person’s personal as well as proprietary rights.

1
PJ Fitzgerald, Salmond on Jurisprudence ( pp 01-05)
2
Riker, William H., and Itai Sened. “A Political Theory of the Origin of Property Rights: Airport Slots.” American
Journal of Political Science, vol. 35, no. 4, 1991, pp. 951–969. JSTOR, www.jstor.org/stable/2111501. Accessed
11 Apr. 2021.

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 • Proprietary Rights- It does not include personal rights, it only include proprietary rights. It
means that land, chattels, shares or debts are his property but his right to life and reputation are
not included in his property.
• Corporeal Property- It only includes those property which real or which can be seen i.e. land,
chattels, etc. It does not include shares or debts as property3.

2. Meaning/concept of property:

The term property is not a term belonging to art. It has been used in a variety of senses. In the widest
possible sense, the property includes all the legal rights of a person, no matter what his description is.
The property of a man is all that belongs to him following the law. Although it is becoming a fashion
now, such a usage of the term is common in old books.

Property has a very wider meaning in its real sense. It not only includes money and other tangible things
of value, but also includes any intangible right considered as a source or element of income or wealth.
The right and interest which a man has in lands and chattels to the exclusion of others. It is the right to
enjoy and to dispose of certain things in the most absolute manner as he pleases, provided he makes no
use of them prohibited by law.4

The sea, the air, and the like, cannot be appropriated; every one may enjoy them, but no one has any
exclusive right in them. When things are fully our own, or when all others are excluded from meddling
with them, or from interfering about them, it is plain that no person besides the proprietor, who has this
exclusive right, can have any claim either to use them, or to hinder him from disposing of them as he
pleases; so that property, considered as an exclusive right to things, contains not only a right to use
those things, but a right to dispose of them, either by exchanging them for other things, or by giving
them away to any other person, without any consideration, or even throwing them away.

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

According to Locke: “Every man has a property in his person. Every individual has the right to preserve
his property, that is, his wife, liberty and estate.”In a narrower sense, the property includes the
proprietary rights of a person and not his rights. Proprietary rights constitute his estate or property,
whereas, personal rights includes his status or personal condition. If viewed from the lens of a narrower

3
PJ Fitzgerald, Salmond on Jurisprudence ( pp 411-412)
4
Shukla, S.N. Transfer of Property Act, (Allahabad: Allahabad Law House) 2008.

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sense, then only land, chattels, shares, and debts are personal property and not his life, liberty or
reputation. This is the most commonly used interpretation of property in modern times.

However, another interpretation and meaning of property include only those rights which are both
proprietary and real. The law of property is the law of proprietary rights in rem. Going by this
interpretation, a freehold or leasehold estate or copyright also includes the meaning of property. In the
narrowest possible sense, the property includes nothing more than corporeal property or the right of
ownership for material things. 5

Austin believed that property could have different meanings at different times. It could be used to denote
the greatest rights of enjoyment known to law excluding servitudes or it could also be life interests or
sometimes even servitudes. It could be the whole set of assets owned by a person including both rights
in-rem and rights in personam. Today, intellectual or intangible property has become very important.
Instances are copyright, trademark, property in designs and patents.

In general sense, property is any physical or virtual entity that is owned by an individual or jointly by a
group of individuals. An owner of the property has the right. Human life is not possible without
property. It has economic, socio-political, sometimes religious and legal implications. It is the legal
domain, which institutes the idea of ownership. The basic postulate of the idea is the exclusive control
of an individual over some ‘thing’. Here the most important aspect of the concept of ownership and
property is the word ‘thing’, on which a person has control for use.

To consume, sell, rent, mortgage, transfer and exchange his property. Property is any physical or
intangible entity that is owned by a person or jointly by a group of people. Depending on the nature of
the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or
destroy their property, and/or to exclude others from doing these things.6

The key ingredients/principles of related to property rights which includes include:

• Control over the use of the property.

• Right to take any benefit from the property.
• Right to transfer or sell the property.
• Right to exclude others from the property.7

5
ibid
6
Saxena, Poonam Pradhan, Property Law (Nagpur: Lexis Nexis Butterworths Wadhwa) 2006.
7
Ibid.

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2.1 Property Defined:

There are different definitions are given in different act as per there uses and needs. But in the most
important act which exclusively talks about the property and rights related to property transfer of
property act 1882 has no definite definition of the term property. But it is defined in some other act
as per their use and need.8 Those definitions are as follows:

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as:

“Property” means property of any kind, whether movable or immovable, tangible or intangible, and
includes any right or interest in such property.

Section 2 (11) of the Sale of Good Act, 1930 defines property as:

“Property” means the general property in goods, and not merely a special property.9

3. Types of Property:

According to Salmond in a broader sense, property can be divided into two types being corporal or
incorporeal property.

Fig: Types of property10

8
https://legal-dictionary.thefreedictionary.com/property
9
Sarathi, P. Vepa, Law of Transfer of property, (Lucknow: Eastern book company) 2010.
10
PJ Fitzgerald, Salmond on Jurisprudence ( pp-413)

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3.1 Corporeal Property:

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

3.1.1 Movable Property:

The definition of movable property is given differently in many acts. Some of the definitions are as
follows:

Section 3 (36) of the General Clauses Act defines movable property as:

'Movable property shall mean property of every description, except immovable property."

Section 2 (9) of the Registration Act, 1908 defines property as:

'Moveable property' includes standing timber, growing crops and grass, fruit upon and juice in trees,
and property of every other description, except immovable property."

Section 22 of IPC defines property as: The words “moveable property” is intended to include corporeal
property of every description, except land and things attached to the earth or permanently fastened to
anything, which is attached to the earth. Things attached to the land may become moveable property by
severance from the earth. For example Cart–loaded of earth, or stones quarried and carried away from
the land become movable property. It simply includes all corporeal property which is not immovable.11

3.1.2. Immovable Property:

The Term "Immovable Property" occurs in various Central Acts. However none of those Acts
conclusively define this term. The most important act which deals with immovable property is the
Transfer of Property Act (T.P.Act). Even in the T.P.Act this term is defined in exclusive terminology.12

i. According to Section 3 of that Act, "Immovable Property" does not include standing timber, growing
crops or grass. Thus, the term is defined in the Act by excluding certain things. "Buildings" constitute
immovable property and machinery, if embedded in the building for the beneficial use thereof, must be
deemed to be a part of the building and the land on which the building is situated.

11
Tripathi, G.P. The Transfer of Property Act, (Allahabad: Central Law Agency) 2008.
12
ibid

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ii. As per Section 3(26) of the General Clauses Act 1897, "immovable property" "shall include land,
benefits to arise out of land and things attached to the earth, or permanently fastened to anything
attached to the earth". This definition of immovable property is also not exhaustive;13

iii. Section 2(6) of The Registration Act,1908 defines "Immovable Property" as under:

"Immovable Property includes land, building, hereditary allowances, rights to ways, lights, ferries,
fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened
to anything which is attached to the earth but not standing timber, growing crops nor grass".

The definition of the term "Immovable Property" under the Registration Act 1908, which extends to the
whole of India, except the State of Jammu and Kashmir, is comprehensive. The above definition implies
that building is included in the definition of immovable property.

The following have been held as immovable property.

A right to collect rent, life interest in the income of the immovable property, right of way, a ferry,
fishery, a lease of land.

iv. The term "Immovable Property" is defined in other Acts for the purpose of those Acts. As per Section
269UA(d) of the Income Tax Act, 1961, Immovable Property is defined as under:

a. Any land or any building or part of a building, and includes, where any land or any building or part
of a building is to be transferred together with any machinery, plant, furniture, fittings or other things,
such machinery, plant, furniture, fittings and other things also.

b. Any rights in or with respect to any land or any building or part of building (whether or not including
any machinery, plant, furniture, fittings or other things therein) which has been constructed or which is
to be constructed, accruing or arising from any transaction (whether by way of becoming a member of,
or acquiring shares in, a co-operative society, or other association of persons or by way of any agreement
or any arrangement of whatever nature, not being a transaction by way of sale, exchange or lease of
such land, building or part of a building.

According to Salmond, an immovable piece of land has many elements attached to it. It is inclusive of
the ground beneath the surface down to the centre of the world. Interestingly, it also includes the column
of space above the surface ad infinitum. According to the German Civil Code, the owner of a particular

13
https://www.legalbites.in/property-laws-
jurisprudence/#:~:text=Property%20is%20a%20belonging%20of,or%20out%20of%20an%20agreement.&text=
The%20concept%20of%20property%20has,rights%20based%20on%20the%0property.

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piece of land owns the space above it as well. The right of free and harmless possession of space at a
reasonable height over the land is secured and governed by the Air Navigation Act, 1920.

3.1.3 Real and Personal Property

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

3.2 Incorporeal Property

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

3.2.1 Rights in re propria

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

Holland added a new type of intangible property to the list. To quote him: “With such intangible
property should probably also be classified those royal privileges subsisting in the hands of a subject
which are known in English law as franchises, such as rights to have a fair or market, a forest or free
fishery.” 14

3.2.2 Rights in aliena

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

14
Shukla, S.N. Transfer of Property Act, (Allahabad: Allahabad Law House) 2008.

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

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

• Trust- An obligation annexed to the ownership of property. The persons in whose favour the
trusts are advanced are infants, lunatics, unborn persons etc15

3.3 Intellectual property

Intellectual property is a term referring to a number of distinct types of creations of the mind for
which property rights are recognized—and the corresponding fields of law.

Property does not just comprise of tangible things like houses, cars, furniture, currency, investments
etc and such assets are not the only kind that can be protected by law. There are many other forms
of intangible property known as intellectual property that have been recognized under the law and
granted protection against infringement

Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible
assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases,
symbols, and designs. Patents, trademarks and copyrights, designs are the four main categories of
intellectual property.

A. Patents

Patents are used to protect new product, process, apparatus, and uses providing the invention is not
obvious in light of what has been done before, is not in the public domain, and has not been
disclosed anywhere in the world at the time of the application. The invention must have a practical
purpose. Patents are registrable nationally; the patent granted by European Patent Office is a

15
PJ Fitzgerald, Salmond on Jurisprudence ( pp-421-440)

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 “bundle” of national patents. No EU-wide single patent system exists to date, although the
Community Patent is in the final stages of enactment. Registration provides a patentee the right to
prevent anyone making, using, selling, or importing the invention for 20 years. Patents are enforced
by court proceedings. In addition, the Regulation on Supplementary Protection Certificates (SPCs),
grants “patent extensions” of up to 5 years to pharmaceutical and plant products, providing as much
as 25 years of patent life for originator medicines.

B. Trade Marks

A symbol (logo, words, shapes, a celebrity name, jingles) used to provide a product or service with
a recognisable identity to distinguish it from competing products. Trademarks protect the distinctive
components which make up the marketing identity of a brand, including pharmaceuticals. They can
be registered nationally or internationally, enabling the use of the symbol ®. Trade mark rights are
enforced by court proceedings in which injunctions and/or damages are available. In counterfeiting
cases, authorities such as Customs, the police, or consumer protection can assist. An unregistered
trade mark is followed by the letters ™. This is enforced in court if a competitor uses the same or
similar name to trade in the same or a similar field.

C. Copyright

Copyright is used to protect original creative works, published editions, sound recordings, films
and broadcasts. It exists independently of the recording medium, so buying a copy does not confer
the right to copy. Limited copying (photocopying, scanning, downloading) without permission is
possible, e.g. for research. Publication of excerpts or quotes needs acknowledgement. An idea
cannot be copyrighted, just the expression of it. Nor does copyright exist for a title, slogan or phrase,
although these may be registered as a trade mark. Copyright applies to the Internet with web pages
protected by many different copyrights, so that permission should be asked to copy or print a page,
or insert a hyperlink to it. Material cannot be posted on a Web site (Intranet included) without
permission from the copyright holder.

Copyright is not registrable because it arises automatically on creation. Copyright is protected in

the EU for 70 years after the author’s death for creative works, 50 years for broadcasts, etc and 25
years for published editions. Use of © is not required in most of Europe. Copyright is enforced by
court proceedings.16

16
https://www.lexology.com/library/detail.aspx?g=e963324a-4b62-49ab-bd90-
aeddb1aee2b0#:~:text=The%20Copyright%20Act%201957%20(the,for%20copyright%20protection%20in%20I
ndia.&text=India%20is%20a%20member%20of,the%20International%20Copyright%20Order%2C%201999.

15 | P a g e
D. Design Registration

Design registrations are used to protect products distinguished by their novel shape or pattern. They
are available for one-off items. The design itself must be new, although a 1 year grace period is
allowed for test-marketing. Registration is not possible where the new form is dictated by function.
The design is registrable either nationally or under an EU-wide single right. It can also be protected
by copyright.

3.4 Modes of acquisition of property

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

A. Possession

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

B. Prescription

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

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

C. Agreement

According to Paton, an agreement is an expression by two or more persons communicated to each other
of a common intention to affect the legal relations between them. It is an outcome of a bilateral act. It

16 | P a g e
may be in the nature of an assignment or a grant. An assignment transfers existing rights from one
owner to another. A grant connotes the assurance or transfer of the ownership of property as
distinguished from the delivery of property.

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

However, there are two general exceptions to the rule-

• The transferee gets a good title from a trustee who fraudulently sells the trust property, provided
the transferee purchases it for value and without notice of the equitable claim of the beneficiary.

• Where the possession of a thing is with one man and the ownership of it is in another, the
processor can transfer in certain cases a better title on the assumption that the possessor is the
owner, provided the transferee obtains it in good faith believing him to be the owner.

D. Inheritance

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

Succession to the property of a person may be either testate or intestate. It may be by means of a will
or without a will. If there is a will, succession takes place by operation of law. If there are no heirs at
all, the property goes to the State.17

17
PJ Fitzgerald, Salmond on Jurisprudence ( pp-433-448)

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4. Theories of Origin Property

There are many theories which have been evolved for the purpose of understanding the concept of
property properly. Some of those theories are as follows:

• 4.1 Natural Theory

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

• 4.2 Metaphysical Theory

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

• 4.3 Historical Theory of Property:

According to the Historical theory, the concept of private property had grown out of collective group
or joint property. In the words of Henry Maine, “Private property was chiefly formed by the gradual
disentanglement of the separate rights of individual from the blended rights of the community. Earlier
property did not belong to individuals, not even to isolated families, but the larger societies composed
on patriarchal mode. Later with the disintegration of family- individual rights came into being. Roscoe
Pound also pointed out that the earliest form of property was group property. It was later on that families
were partitioned, and individual property came into being.

• 4.4 Positive Theory

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

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 • 4.5 Labour Theory (Spencer):

The theory is also known as ‘positive theory’. This theory insists on the fact that labour of the individual
is a foundation of property. This theory says that, a thing is the property of a person, who produces it
or brings it into existence. The main supporter of this theory is Spencer, who developed it on the
principle of equal freedom. He says that property is the result of individual labour. Therefore, no person
has a moral right to property which he has not acquired by his personal effort.

• 4.6 Psychological Theory (Bentham):

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

According to Bentham, Property is altogether a conception of mind. It is nothing more than an

expectation to derive certain advantages from the object according to one’s capacity.

Roscoe Pound also supports Bentham and observed 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.

• 4.5 Functional Theory (Jenks, Laski):

The theory is sometimes also known as ‘sociological theory of property’. It implies that the concept of
property should not only be confined to private rights, but it should be considered as a social institution
securing maximum interests of society. Property is situated in the society, has to be used in the society.

According to Jenks, no one can be allowed an unrestricted use of his property, to the detriment to others.
He said that the use of property should conform to the rules of reason and welfare of the community.

According to Laski, Property is a social fact like any other, and it is the character of social facts to alter.
Property has further assumed varied aspects and is capable to further change with the changing norms
of society.

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 • 4.8 Sociological Theory

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

• 4.9 Property is the creation of the State.

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. It means that property came into existence when
the state framed laws. Property was nowhere before law. According to Rousseau, “It was to convert
possession into property and usurpation into a right that law and state were founded”. The first who
enclosed a piece of land and said- ‘this is mine’- he was the founder of real society. He insisted on the
fact that property is nothing but a systematic expression of degrees and forms of control, use and
enjoyment of things by persons that are recognized and protected by law. Thus, the property was the
creation of the state.

• 4.10 Philosophical Theories–

o Property as a means to Ethnical Ends

In the opinion of Aristotle, Hegel and Green, Property has never been treated as an end, but always as
a means to some other end. According to Aristotle, it may be a means to the end of good life of the
citizens, further in the opinion of Hegel and Green, it may be a means to the fulfilment of the will
without which individuals are not full human. According to Rousseau, Jefferson, Friedman, it may be
a means as a pre-requisite of individual freedom seen as a human essence. Similarly the outstanding
critics of property like Winstanley, Marx have denounced it as destructive of human essence, a negative
means in relation an ontological end. In all the above cases, property is taken as a means not as an end.

o Property as an End in itself

The supporters of liberal Utilitarian model, from Locke to Bentham, recognize property as an end. It is
maximization of utilities. According to Bentham, the command of utilities is measured by the material
wealth. The maximization of material wealth is indistinguishable from the ethical end; property is
virtually an end in itself. In the words of Locke, the unlimited accumulation is a natural right of the
individual that is an end in itself. Aristotle and Aquinas have considered, ‘’property as a means,
concluded for a limited property right. Hegel and Green, treats property, as a means, concluded for an

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unlimited right’. The supporters of utilitarian tradition treat, accumulation of property, as an end, always
meant a right of unlimited accumulation.18

Later the concept changed, and the utilitarian Bentham held that the ultimate end to which all social
arrangements should be directed was the maximization of the aggregate utility (Pleasure minus pain) of
the members of the society. While listing out the kinds of pleasures, including non-material one, he held
that wealth, the possession of material goods was so essential to the attainment of all other pleasures
that it could be taken as the measure of pleasure or utility as such.19

18
Saxena, Poonam Pradhan, Property Law (Nagpur: Lexis Nexis Butterworths Wadhwa) 2006.
19
Sarathi, P. Vepa, Law of Transfer of property, (Lucknow: Eastern book company) 2010.

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5. Conclusion

The existence of concept of property is from the ancient period. This concept has a very broad history.
There are many philosophies laid down by many thinkers like Bentham, Laski. These philosophies are
immensely helpful in understanding the concept of property. The main finding was that the term
property is defined in different ways in each act as to its use. As in Sale of Goods act 1930 it is defined
differently than in Benami Transactions (Prohibition) Act, 1988. In transfer of property act which is
most important act which deals with property does not have definition of the term property. There are
many kinds of property as to it uses. In today’s era, not only the things which can be seen or touched
but also the things which cannot be touched or seen come in the purview of property. Such as idea
innovation, composition etc. These properties are known as intellectual property.

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

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References

Books:

o Tripathi, G.P. The Transfer of Property Act, (Allahabad: Central Law Agency) 2008.

o Sarathi, P. Vepa, Law of Transfer of property, (Lucknow: Eastern book company) 2010.

o Shukla, S.N. Transfer of Property Act, (Allahabad: Allahabad Law House) 2008.

o Saxena, Poonam Pradhan, Property Law (Nagpur: Lexis Nexis Butterworths Wadhwa)

o PJ Fitzgerald, Salmond on Jurisprudence

Websites:

o https://www.lexology.com/library/detail.aspx?g=e963324a-4b62-49ab-bd90-
aeddb1aee2b0#:~:text=The%20Copyright%20Act%201957%20(the,for%20copyright%20protecti
on%20in%20India.&text=India%20is%20a%20member%20of,the%20International%20Copyrigh
t%20Order%2C%201999.
o https://www.legalbites.in/property-laws-
jurisprudence/#:~:text=Property%20is%20a%20belonging%20of,or%20out%20of%20an%20agre
ement.&text=The%20concept%20of%20property%20has,rights%20based%20on%20the%0prope
rty.

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