LECTURE VIII OWNERSHIP AND POSSESSION This lecture covers - A) OWNERSHIP: 4, Ownership : Meaning and Definition 2. Characteristics of ownership 3. Kinds of Ownership i) Corporal and Incorporal Ownership ii) Sole and Co-ownership a) Joint Tenancy b) Tenancy in common ili) Trust and Beneficial Ownership iv) Legal and Equitable Ownership v) Vested and Contingent Ownership 8) POSSESSION : 14. Possession : Meaning and Definition 2. Elements of Possession and, yaaa ‘ / JURISPRUDENCE 3. Kinds of Possession i) Corporeal Possession ii) Incorporeal Possession, ili) | Mediate Possession Immediate Possession v Constructive Possession vw) Adverse Possession vil) De facto Possession and viii) De jure Possession. 1. Ownership : Meaning and Definition Meaning : The institution of Property has great significan human life. There are two important rights over the property Ownership and Possession. The term ownership is emerged the word ‘own’, which means "to have or to hold a thing”. who holds a thing as his own is called owner and will have According to Salmond, ownership is a relation between Person and a right. The right is with reference to an object v2 & house, land, debt, trade name ete This relationship exists in different forms vz, ii) A Mortgagee iii) A Tenant. When @ person owns and possesses an having title i) A PossessorOWNERSHIP D POSSESSIO jne is called ‘OWNER’. In ownership, the owner will have pert peolute right over a determinate thing. The nature of right On reference to the following combination. is i) Right to have, ii) Right to destroy, iii) Right to dispose off, iv) Right to possess, v) Right to use and Vi) Right to enjoy the thing. According to Roman law, if all these rights are vested in a person, he is considered as the ‘Owner’ of the thing. In ownership the right of owner over the thing is absolute. Definition : Different writers have defined the term ‘ownership’ in different ways. Prominent among them are detailed below - )) Austin : Austin defines ownership as, " a right availing against the world indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration over a determinate thing”. According to this view, ownership is a relation which subsists between a person and a thing which is the object of ownership. His definition conveys the comprehensive and all embracing nature of ownership considered with reference to the object over which that right is exercised. According to Austin, there are four elements/characteristics/ constituents of ownership namely - a) Indefinite in point of user : The owner can make use of his property in any way of his choice. Eg. An open land may be utilized for cultivation or garden or even housing plots (subject to fulfillment of certain conditions). b) Unrestricted Dispositive power : The owner of the property has unrestricted power to dispose off or alienate the property as he likesithinks fit, subject to certain regulations by the law. He Chelan OF sift it or mortgage it, transfer it in any way of hisJURISPRUDENCE ~~ ¢) Unlimited in point of duration : The owner co a of his property for unimited period $0 tong as he wan the property (until and unless it is transferred o, deg fa Criticism ; Austin's definition is criticized on the ground ‘owner cannot have abundant and unlimited exercise of Power the property since the use or enjoyment of property is sulle So many regulations by the state. Eg. construction of g ‘on one's own land, which is an agricultural land, ii) Salmond : According to Salmond “Ownership jp comprehensive signification denotes the relation between a and any rights that is vested in him. That which a man in this sense is in all cases a right. Ownership, in this wide ¢ extends to all classes of rights, whether proprietary or pe, in rem or in personam, in re propria, or in re aliena; and it aj not only to rights in the strict sense, but to liberties, powers immunities.” @ person and a right. Thus for Salmond, ownership is al @ right and not a thing. According to Salmond, to speak Ownership of a physical object is a figure of speech. What ™eant is that the certain claims etc, are vested in a person. “ identify by way of metonymy, the fight with the material thing whi is its object” aeed carers definition is criticized by Duguit on gr at relation between the owner and property is Property, not right as opined by Salmond, Further, Cook criticiz ree” has abomg the concept Of ownership by combini . Cook says that ownership | ation of the bundle of rights, ip in fact is the combinto the ultimate use are exhausted, & : Describing ‘ownership’, Pollock says, "Ownership may wv) Po as the entirety of the powers of use and disposal be by law. The owner of a thing is not necessarily the person who at 8 given time has the whole power of use and disposal, very often there is no such person. We must look for the person raving the residue of all such power when we have accounted for every detached and limited portion of it; and he will be the owner even if the immediate power of control and use is Thus, Pollock gave a comparatively correct definition of He has not only emphasized, that ownership is an exclusive right but has also pointed out one of the most important aspects of this concept, namely, that the owner's right is always subject to limitations imposed by law. 2. Characteristics of ownership Following are the characteristic features of ownership - i) Right to Possess ii) Right to use and enjoy iti) Right to alienate iv) Perpetual Right and y) Heritable Right. l) Right to possess : Possession means “physical control over a thing or an object". To constitute ownership, the owner must be entitled to the possession of the property. ll) Right to use and enjoy : The owner of the property has @ fight to use and enjoy the property he owns subject to certain festrictions/regulations by law/state.