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Ownership and possession pdf

According to Bentham: To define possession is to recall the image which present itself to the mind when it is necessary to decide between two parties, which is in possession of a thing and which is not. But if this image is different with different me; if many do not form any image; or if they
form a different one on different occasions, how shall a definition be found to fix an image so uncertain and variable. Defining the concept of possession in law is like defining the geometric conception of roundness. Absolute roundness cannot be define and is nowhere to be found.
Ownership denotes “the relation between a person and any right that is vested in him”. (Salmond) 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. a. Pollock 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 be will be the owner even if the
immediate power or control and user is elsewhere.” b. Salmond According to Salmond, possession “is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the dejure recognition of one. A thing is owned by me when my claim to it is maintained by the
will of the state as expressed in the law; it is possessed by me when my claim to it is maintained by my own self-assertive will. Ownership is the guarantee of the law, possession is the guarantee of the facts.” “Possession, is the de facto counterpart of ownership. It is the external form in
which rightful claims normally manifest themselves. The separation of these two things is an exceptional incident, due to accident, wrong or the special nature of the claims in question. d. Possession without ownership is the body of fact Possession without ownership is the body of fact,
uninformed by the spirit of right which usually accompanies it. Ownership without possession is right, unaccompanied by that environment of fact in which it normally realizes itself. e. Possession endeavours to justify itself as ownership Ownership strives to realize itself in possession and
possession endeavours to justify itself as ownership. f. Mode of acquisition 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. g. Distinction The distinction between possession and ownership on the basis of fact and right is not tenable. Fact and right are not quite separate and independent ideas. One cannot exist without the other. The word property is used in numerous senses in general. If one looks
around in the surroundings, everything available may be categorized as Property. Every object, whether tangible or intangible having some value to human beings, may be termed as Property. The essential characteristic of Property is the value attached to it. In one way or the other, it is a
source of wealth. The value, although may be either monetary or personal. In a general sense, therefore Property consists of land, shares, buildings and debts due to another person. However, the term when used in the legal sense has a definite connotation. It is the right to enjoy and to
dispose of certain things in an absolute manner as one thinks it fit. The word property is derived from the Latin word proprietary and the French equivalent properties, which means a thing owned. The concept of property and ownership are very similar to each other. However, there is a fine
line that distinguishes the two terms. It will not be incorrect to state that humans have been aware of their rights to possess what they rightfully own for long. The term property has been widely interpreted by various jurists such as Salmond, Bentham and Austin. Close observation of the
definitions given by them will help us understand the concept in a better manner. Eminent jurist Salmond while defining the term property observed that the term might be understood in one of the three senses mentioned below: The term property includes all the legal rights of a person. That
is to say that it includes complete ownership of a man on material as well as incorporeal things. The term includes not a man’s personal rights, but only his proprietary rights. The term includes the rights of ownership in material things such as building etc. According to another jurist,
Bentham, the term property includes ownership of material objects alone. He has, in a way, interpreted the term in a narrow sense. According to Austin, Property denotes the greatest right of enjoyment known to the law, including servitudes. The Property includes both proprietaries as well
as the personal rights of a man. The honourable Supreme Court of India in the case of R.C. Cooper vs. Union of India AIR 1970 SC 564, interpreted the concept of Property in the legal regime. The court, in this case, observed that the term property includes both corporeal things such as
land, furniture and incorporeal things such as copyrights and patents. The recent trend of the Apex court, however, has changed. Court has started viewing Property in the light of Article 21 of the Indian constitution as liberties exist even reference to the Property owned and possessed.
Property is basically of two categories: Corporeal Property and Incorporeal Property. Corporeal Property is visible and tangible, whereas incorporeal Property is not. Moreover, corporeal Property is the right of ownership in material things, whereas incorporeal Property is an incorporeal right
in rem. Corporeal Property is further categorized into Movable and Immovable Property. Incorporeal Property is classified into two categories: in re propria and rights in re aliena or encumbrances. Corporeal Property has a tangible existence in the world and is related to material things such
as land, house, ornaments, silver, etc. Incorporeal Property is intangible because it’s existence is neither visible nor tangible. Right of easement and copyrights are incorporeal Property All corporeal Property may either be movable or immovable in nature. The basis of this kind of
classification is the portability of the object. The two categories are discussed as follows: Section 3 of the general clauses act, 1897; Section 2(6) of the Indian Registration Act, 1908 defines the term immovable Property. It includes land, things attached and embedded in the land. On the
other, movable Property includes any corporeal property which is not immovable property. It may include furniture, stationery items, etc. The concept of immovable Property holds greater importance and has elaborately been dealt with under Indian statutes. The following mentioned are
judicially recognized as immovable Property: Right of way Right to collect the rent of immovable Property Right of ferry Mortgagor’s right to redeem the mortgage The interest of the mortgagee in immovable Property Right of fishery Right to collect lac from trees Standing timber Growing
crops Grass Royalty A decree of sale or sale of immovable property on a mortgage Right of the purchaser to have land registered in the name Right to recover maintenance allowance even though it is charged through immovable Property The above-mentioned lists are not exhaustive and
are subject to judicial interpretations from time to time. With reference to the concept of ownership, Property may be classified into public and private property. This distinction between real and personal Property basically originated from Roman law, and it still exists in England. The two
categories of Property are discussed below: Real Property means all rights over land recognized by law. Personal Property means all other proprietary rights, whether they are right in rem or in personam. Right in re aliena are also sometimes referred to as encumbrances. These are the
rights of a specific user. These prevent the owner from exercising some definite right in reference to his Property. Lease, security and trust may be included under this category. Right in re propria are immaterial forms of Property. These are a product of human skill and labour. Patents,
copyrights and commercial goodwill may be included under this category. Intellectual Property is, in simpler terms, creation of intellect or wisdom or of the human mind. It is related to intellectual innovation and innovation in the literary, scientific and artistic fields. Nations around the world are
making efforts toward protecting intellectual property. One major reason is to recognize by way of statute, the economic rights of creators of these intellectual properties. Another reason is the urge to promote creativity amongst the masses which will, in the long run, contribute towards an
environment comprising of only fair trade practices. The law related to intellectual Property aims at protecting the people who create and own the intellectual goods and services by granting them certain time-limited rights to control the use made of those productions. Those rights do not
apply to the physical object in which the creation may be embodied but instead to the intellectual creation as such. Intellectual Property may be classified into various categories. However, a few of the most widely utilized and owned intellectual properties have been discussed below: A
patent is a kind of Property that has intellectual worth attached to it. It is an exclusive right granted for an invention which is a product which is a result of a person’s ability to of doing something or offers a new technological solution to a problem. In order to obtain a patent, it is necessary
that the technological information must be disclosed to the public in a patent application. A patent so obtained remains in force for twenty years. Another widely popular form of intellectual Property is a trademark. Trademark is a sign capable of distinguishing goods and services of one
enterprise from another. These are basically a means to protect the unique identity of renowned brands. It enables a customer to recognize the brand or the product instantly without being misled. An example of a trademark would be the logos or slogans used by brands to make their
products uniquely identifiable. Copyright is available to the creators of literary, dramatic, musical, artistic, producer of cinematograph acts or sound recording. It determines whether and in what conditions the original work may be used by persons other than the owner of the unique
intellectual property. Almost every product has copyright. These include the visible symbols on the product packaging and label etc. Copyrights protect original creative work has been written down on a piece of paper, saved on electronic storage hard drive device or preserved in some other
tangible format. It is an indicator used on products having a specific geographical origin and possess qualities that exist due to their basic origin. The sign must identify a product as originating in a given place, and the quality, characteristics or reputation should be due to the place of origin.
Recently, Rasgulla from Orissa and Kadaknath chicken from Madhya Pradesh has been granted the geographical indication tag in India. Industrial design is related to the products which are a part of the industrial set up. It refers to the shape, configuration, colour or pattern which may be an
ornamental or aesthetic aspect of a product. The owners of a registered industrial design have a right to prevent third parties from making, selling, importing articles bearing a design which is a copy. Thereby any person using someone else’s industrial design may be liable to pay
damages to the owner of the industrial design. Trade secret in simpler terms implies the strategy adopted by the owner of the business. It may be any confidential business information which provides an organization with a complete edge in the world market of the respective product it deals
with. A trade secret is an initial step for an investor. It is essential that the idea or formula behind the unique trade opportunity remains secretive. Any person or organization indulging in unauthorized use of trade secrets is regarded to be guilty of unfair trade practice. For example, the recipe
of any popular noodles brand may be considered as a trade secret of that brand. Commercial goodwill is a prominent form of incorporeal right. The goodwill of a commercial business is a valuable right acquired by the owner by his labour and skill. The owner has the exclusive right of use
and profit from the business and anyone who seeks to make use of it by falsely representing to the public that he is himself carrying on the business in question shall be violating this right. Thus, it is now clear that the concept of intellectual property is one that covers within its ambit varied
kinds of intangible property rights. Every product which is a part of the world market encompasses one or more of the kinds of intellectual property rights discussed above. The concept can be further understood by considering the illustration of a soft drink brand. The name of the brand
would be its unique trademark. The formula of the soft drink would be considered as a trade secret, while copyright would comprise of the way the soft drink is packed. The shape of the bottle or tetra pack of the bottle may either be a design patent or a trademark. According to Austin
ownership means a right, which avails against everyone who is subject to the law conferring the right to put thing to user of indefinite nature. It is right in rem which is available to the owner against the world at large. It includes ownership over both corporeal and incorporeal things. The
former refers to physical objects and the latter refers to all claims. According to Hebert ownership is a comprehensive right in rem. It is a bundle of four rights. Right to use a thing. Right to exclude others from using the thing. Right to dispose of the thing. Right to destroy the thing. Holland
ownership is a plenary control over a object. Salmond the relation between a person and any right that is vested and an object forming the subject matter of his ownership. Ownership denotes the relation between a person and right that is vested in him. Nothing can be owned except the
right over a thing. In other words a thing cannot be owned but a right over such thing can be owned. Therefore owning a right is called ownership: Owner can use in many ways or indefinite in point of user. Owner has right of transfer or unrestricted in point of disposition. Ownership is
permanent or unlimited in point of duration. Modes of acquisition of ownership: The ownership is acquired in two ways: Original mode: In this mode the owner acquires the ownership over the owner less objects. They are called res nullis. Such object belonged to no one. It may be acquired
by means of accession, occupation and specification. Derivative mode: In this mode the owner acquires the ownership by purchasing from the original or previous owner. The purchaser becomes the owner. It is merely a transfer of existing ownership but not a relation of the ownership ex
buyer derives ownership from seller. Corporeal and incorporeal ownership: The ownership over a tangible or material object is called corporeal ownership Trust and Beneficial ownership: The ownership of a trustee is called trust ownership Legal and Equitable ownership: The ownership
which originated from the rules of common law is called legal ownership. A assigned a debt to B. A is the legal owner and B becomes an equitable owner. Vested and Contingent ownership: The ownership which comes into existence immediately is called vested ownership. A transfer his
property to B an unmarried daughter for life and to C, an unborn make child. C's ownership is contingent because C's birth is uncertain. Sole and Co-ownership: An exclusive ownership of an individual as against the whole world is called sole ownership single owner. The ownership of two or
more persons having interest in the same property or thing is called co ownership. Absolute and limited ownership: The ownership which vests all the rights over a thing to the exclusion of all is called absolute ownership. Ownership which imposes limitations on user duration or disposal of
rights of ownership is called limited ownership. Possession means custody or control. The idea of ownership developed slowly with the growth of civilization. According to Salmomd possession establishes the relationship between men and the material things. It is a mere fact. According to
Pollock possession is a physical control over a thing. According to Savigny possession is the physical power of exclusion. Protection of possession is a branch of protection to the person. Freedom of will is the ground for the protection of possession. According to Ihering possession is de
facto exercise of a claim over a thing. According to Roman law possession is a prima facie evidence of ownership. It supports the title of ownership. The possessor of a thing is presumed to be the owner. Long enjoyment of a property creates ownership. This is known as prescription hence
possession in nine points in law. Possession in fact: The actual or physical possession of a thing is called Possession in fact. Also known as de facto possession. It indicates physical control of a person over a thing. There may be a physical relation with the object and the person. That
physical relation or control need not be continuous. Possession in law: Possession which is recognized and protected by law is called Possession in law. It is also known as de jure possession it is a possession in the eye of law. Animus possidendi: Means intention to possess a thing. It
deals with subjective and mental intention to possess a thing. It deals with subjective and mental element. It denotes a strong desire to possess a thing. Here the possessor must have strong intention to possess a thing he must have an exclusive claim, Animus Possidendi need not be a
claim or right and need not be a own claim and it need not be specified. Corpus possessionis: Corpus Possession is means physical possession of a thing it deals with objective element. According to Savigny the actual physical control over a thing is called corpus possessionis. The
physical control gives to an assumption that others will not interfere with it. Possessor must present personally and physically possess. The possession of a thing extends to accessories too. Possession includes protection and secrecy of thing. By taking. By delivery. By operation of law.
Corporal and incorporeal possession: The possession of a material object is called corporeal possession. Actual use or control over such material object is not necessary e.g. possession of car. The Possession of other than a material object is called incorporeal possession. Actual use and
enjoyment of right is necessary. Immediate and Mediate Possession: The direct or primary possession of a material object is called immediate possession. The possessor holds thing personally without any intermediary e.g. possession of a car owner. Indirect or secondary possession of a
material object is called mediate possession the possessor of a material object is called mediate possession. The possessor holds the thing on behalf of another. E.g. possession of a car driver. Representative Possession: The Possession of a thing through an agent or a servant is called
Representative Possession. The representative is not the real possessor e.g. master's money in the servant pocket. Concurrent Possession: Two or more persons may jointly possess a thing at the same time. This is known as Concurrent possession e.g. B may have right of way on the A
land. Derivative Possession: The possession of the holder of a thing is called Derivative possession. He derives title from the person who entrusts the thing. e.g. a watch repairer. He need not return the watch until the repair charges are paid. Constructive possession: The possession in law
is called constructive possession. It is not an actual possession. It is a possession in law and not a possession in fact. Possession of keys of a car implies the possession of car. Adverse possession: The possession against every other person having or claiming to have a right to the
possession of that property is called adverse possession. It is a possession of a thing without the permission of its real owner. Lessee possession after expiry of lease period. Duplicate possession: The possession of a thing by two persons is called Duplicate possession. The possession of
one person is compatible with the possession of another person. It is possible only when two claims are not mutually adverse. It is an absolute right. 1. It is an evidence of ownership. It is de facto exercise of fact. 2. It is de jure recognition of claim It is the guarantee of the law. 3. It is the
guarantee of the fact. It is related to a right. 4. It is related to a fact. It includes possession. 5. It does not include ownership. It excludes interference. 6. It excludes other except owner. It developed on possession. 7. It is developed with civilization. It provides proprietary remedies. 8. It
provides possessory remedies. Its transfer is too technical 9. Its transfer is less technical. Conclusion: The concept of Property has been in existence since the existence of human civilization. Over the years, the concept of Property has witnessed a vast transition. The reason behind this
transition may be the jurisprudential aspect of the concept. Thus, from a piece of brick to an idea behind a product, Property as a concept has developed in an unanticipated manner. The research being done in the field of property law makes it a dynamic concept which will continue to
evolve in the years to come in the near future. Authentication No: JL02089756106026-720 Law Article in India Ask A Lawyers You May Like Online Copyright Registration LawArticles The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...
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