Ownership as a Social Concept

A research proposal submitted in partial fulfilment of the course Jurisprudence II for the
requirement of degree of B.A., LL. B. (Hons.) for the Academic Session 2020-21

Researched &Submitted: Accession and Supervision:

Andlib Imrose Dr.Manoranjan Kumar

B.A. LL.B. (Hons.) Faculty: Jurisprudence II

3rd Year, 6th Semester

Roll no. 1915

CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA
Ownership as a Social Concept

ACKNOWLEDGEMENT
Writing a project is one of the most significant academic challenges, I have ever faced. Though
this project has been presented by me but there are many people who remained in veil, who gave
their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher Dr. Manoranjan Kumar the kind support and
help of whom the completion of the project was a herculean task for me. He donated her valuable
time from his busy schedule to help me to complete this project and suggested me from where
and how to collect data .I am very thankful to the librarian who provided me several books on
this topic which proved beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was very useful
and could not be ignored in writing the project.

Last but not the least, I am very much thankful to my parents and family, who always stand aside
me and helped me a lot in accessing all sorts of resources.

I thank all of them!

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Ownership as a Social Concept

DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A., LL.B. (Hons.) Project Report entitles
“Ownership as a Social Concept” Submitted at Chanakya National Law University, Patna is an
authentic record of my work carried out under the supervision of Dr. Manoranjan Kumar. I have
not submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my Project Report.

(Signature of the Candidate)

Andlib Imrose

Chanakya National Law University, Patna

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Ownership as a Social Concept

Contents
1. Introduction..................................................................................................................................5

1.1 Research Methodology..........................................................................................................7

1.2 Research Questions................................................................................................................7

1.3 Aims & Objectives.................................................................................................................7

1.4 Hypothesis..............................................................................................................................7

2. Development of the idea of Ownership.......................................................................................8

2.1 Definitions of Ownership.....................................................................................................10

2.2 Ownership Under Ancient Indian Law................................................................................14

3. Characteristics of Ownership.....................................................................................................16

3.1 Subject-matter of Ownership...............................................................................................18

3.2 Distinction between Custody, Detention, Possession and Ownership.................................19

4. Modes of Acquisition of Ownership..........................................................................................20

5. Significance of Ownership in Modern Social Context..............................................................22

5.1 Social Control on Ownership...............................................................................................25

5.2 Gandhian Concept of Ownership.........................................................................................26

6. Conclusion and Suggestions......................................................................................................27

BIBLIOGRAPHY..........................................................................................................................29

Books.........................................................................................................................................29

Websites Referred......................................................................................................................29

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Ownership as a Social Concept

1. Introduction

Ownership is one of the important juristic concepts common to all legal system. Most of the
writers discussed it before that of possession. However, it is pointed out that it is not right
method. Historically, first possession came into existence then the the idea of ownership develop.

The idea of possession is followed by the idea of ownership. With the development of
civilization there has been growth in the idea of ownership. There were no such sense of
ownership when people used to wander from one place to another with no settled place of
residence. As there has been transition from pastoral to an agricultural economy development of
the idea of ownership took place. People start thinking in term of mine and thine. Initially there
were no distinction between ownership and possession but slowly and gradually with the growth
of civilization, the difference became clearer and clearer. This distinction was made very clear in
Roman law. Two different expressions were used to mark the difference and these were
Dominium and Possession. Dominium means the absolute right to a thing where as only physical
control over a thing is known as possession. The English concept of ownership is similar to the
notion of dominium in Roman law.

Indian ancient law also identifies the right of ownership. The prominent commentators, notably,
narada, Yajanvalkya, vyas etc. put empahasis on the right of ownership of property were to be
used for noble cause and good motives.1 The ancient hindu law ordained men to behave in a
particular manner in relation to person or property of another. They were cautioned that misuse
of the right of ownership would bring them public and moral indignation and invite punishment.
The ancient laws of prescription, bailment, sale, etc. were based on the difference between
possession and ownership. Seven modes of accession of ownership and possession of property
has been mentioned by ancient hindu jurists which are2:-

(a) Inheritance
(b) Gain

1
https://core.ac.uk/download/pdf/334948462.pdf
2
https://www.icsi.edu/media/webmodules/JI_&_GL_DEC_2019.pdf

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Ownership as a Social Concept

(c) Purchase
(d) Conquest
(e) Investment of wealth
(f) Employment
(g) Acceptance of gifts

In modern social context ownership is key concept because it is measure of wealth and social
position. Ownership of land was a mean to gain control over the government. Feudal system
which was based on land ownership, the feudal lords have great influence, and even
qualification to caste vote was based on ownership of land.

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Ownership as a Social Concept

1.1 Research Methodology

The research is done using various primary and secondary resources of data. The method of
research is doctrinal. Some jurisprudence textbooks and authors writing are used in purpose of
doing research. Also, secondary source of data was also put in use in research.

1.2 Research Questions

 How Jurists define Ownership?

 How the ideas of ownership develop?
 What are differences between ownership and possession?

1.3 Aims & Objectives

 To define the concept of Ownership

 To know about various modes of acquisition of ownership
 To know about various characteristics of ownership
 To know the significance of ownership in Modern Social Context

1.4 Hypothesis

 With the progress in society the individualistic concept of ownership develop into
socialistic concept.

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Ownership as a Social Concept

2. Development of the idea of Ownership

With the development of civilization there has been growth in the idea of ownership. There were
no such senses of ownership when people used to wander from one place to another with no
settled place of residence. As there has been transition from pastoral to an agricultural economy
development of the idea of ownership took place. People start thinking in term of mine and
thine3.

The word owner was first used in year 1340 and the term ownership was used in 1583. It is a
very complex concept as it alike of the concept of possession; there is very thin wall of
difference between these two. Concept of ownership found its origination in the ancient Roman
law. In Roman law ownership is termed as ‘dominium’ and possession as ‘possessio’.
Dominium denotes absolute right over an object where as possessio means only a physical
control. The anomaly of English law is that it did not achieve an absolute ownership, as did
Romans, by differentiating clearly between dominium and possession. The English law reached
the conceptions of ownership as an absolute right only through the developments of the law of
possession4.

Res nullius is a Latin word which means nobody’s thing. It has been derived from the Roman
law. It is property which is not yet the object of right of any specific subject. Basically it means
ownerless properties and these are free to be conquered by means of occupation. Terra nullius
means a land which belongs to none. That is no one has right over that land. In short no man’s
land. At the time of formation of earth the whole land was terra nullius but gradually it become
to ‘mine and thine’. The growth of ownership took place gradually and it brings many changes in
people’s life. In the beginning most essential things were clothing and food, but with passage of
time even a permanent shelter has become an important part of man’s life.

Nomadic are person who roam from one place to another in quest of hunting and food. They do
not have concept of permanent ownership over a property. Earlier human beings were food
gatherers and about 12,000 years ago, human community started to function differently than in
the past. They started production of food rather than relying upon hunting or gathering.
Gradually many societies began to establish agriculture villages.
3
www.plato.standford.edu (last seen 22nd March 6:38 am)
4
Holdsworth, History of English Law, V11, pp. 458-461

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Ownership as a Social Concept

By 10,000 BC human being started agriculture and instead of migrating hunter-gather group they
started to imbue their time in cultivation in particular areas of land. Framing undoubtly
revolutionizes human history. In very short span of time it spread quickly to all over the world.
Now human being started to acquire land for cultivation especially near river banks. River
valleys were preferred for settlement as land was very fertile there and there is no scarcity of
food water. Soft clay can be extracted there which was helpful in building of huts. This gave
people good advantage and income generated through it made people wealthy. Now food supply
was assured through agriculture. Through this they got encouraged for a permanent settlement.
Gradually people begin to work in different filed like producing textile, pottery, tools etc rather
than agriculture. As there has been transition from pastoral to an agricultural economy
development of the idea of ownership took place. People start thinking in term of mine and
thine5.

5
www.plato.standford.edu

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Ownership as a Social Concept

2.1 Definitions of Ownership

Ownership in its most comprehensive sense means the relationship between a person and any
right that is vested in him. In its general it expand to all classes of rights, whether proprietary or
personal, in rem or in personam, in re propria or in re aliena. In Black’s Law Dictionary
ownership has been defined as “collection of rights to use and enjoy property, including right to
transmit it to others”6. Hence it is de jure reorganization of a claim to certain property.

Different jurist has defined ownership in different way, but one thing is common to all that, they
accept that the right of ownership is most complete or supreme right that can be exercised over
anything.

According to Hibbert ownership consists of four rights within it7:-

(a) Right to use of a thing

(b) Right to exclude others from using things
(c) Disposing of thing
(d) Right to destroy it.

A widely accepted definition is that of Austin he defined it “as a right which avails against
everyone who is subject to the law conferring the right to put thin to user of indefinite nature.”
He further says that ownership is a “right indefinite in point of user unrestricted in point of
disposition and unlimited in point of duration. Thus according to him indefinite user, unrestricted
disposition and unlimited duration are chief attributes of ownership.

(a) Indefinite User – It means that owner is free to use or misuse his property in any manner
he likes.
(b) Unrestricted disposition – According to Austin an owner of a thing has right unimpeded
right to dispose it in the way he likes. Thus he recognizes right of alienation as a
necessary incident of ownership.
(c) Unlimited Duration – This means ownership right exist so long as the owner and things
exists. It is perpetual interest and it shall pass on the heirs of owners after his death, but
the right shall not be douse.
6
Black’s Law Dictionary (7th Edition)
7
Hibbert : Jurisprudence, pp. 157-58

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Ownership as a Social Concept

His definition is not free from Criticism. He recived criticism from many writes. They
argue that it is erroneous to think that ownership is a single right, in fact it is a
combination of rights including right of user and enjoyment. Even if an owners parts with
some of rights involved in ownership, the remaning are still owned by him. For instance
in case of lease by owner of land, although he has transferred a right ie right of enjoyment
but he is still owner of property and after termination of lease that particular right will be
revert back to him.
Again to say that owner has an unimpeded right of disposition is not true. His right of
disposition of the property can be curtailed by the state. For example, Article 31 (2) of
Indian Constitution have a provision that the state can take away the property of any
person for public purpose8.

According to Salmond, “ownership, in its most comprehensive signification, denotes the

relation between a person and right that is vested in him, that which a man owns in this
sense is in all case of right”. Thus in general sense, ownership denotes the relation
between the person of inherence and the object of ownership. It consists in a complex of
rights, all of which are right in rem.
According to Salmond following are the chief incident of ownership:
(a) An owner shall have a right to possess the thing which he owns. However it is not
necessary be in actual possession of it.
(b) Generally, he has right to use and enjoy the thing owned by him.
(c) He has right to consume, destroy or transfer the thing.
(d) It is indeterminate in duration.
(e) Owner has residuary right. For example, if a land-owner gives a lease to his property
to A, an easement to B and a right of profit to C then his ownership shall consists of
the remaining rights.

His definition of ownership is also not free from criticism. Duguit has criticized his definition
and observed that what a person really owns is a ‘thing’ and not a right. Cook characterized
Salmomd’s definition of ownership as an ‘unnecessary confusing. Glanvile Williams asserted
that the definition of ownership as given by Salomonds suggests that from the points of time, the
8
Amended by the Constitution Forty-fourth (Amendment) Act, 1978.

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Ownership as a Social Concept

concept of ownership of right must be prior to that ownership of material objects, but historically
it appears just opposite of it9.

According to Holland, “ownership is a plenary control over an object10.

Keeton defined ownership as the ultimate right to the enjoyment of a thing, as full as the state
permits, when all prior rights in that thing vested in persons other than the one entitled to the
ultimate use, by way of encumbrance have exhausted11.

According to Buckland ownership is the ultimate right to use thing or what is left when all other
rights vested in various people are taken out12.

In the words of Pollock “ownership is the entirety of the powers of use and disposal allowed by
law13.

W.N. Hohfeld observed that ownership is a collection of rights, privileges and powers, some of
which are frequently found to reside either for a limited period or perpetually, in persons other
than the owner14.

Paton writes that the ownership of a person over a thing suggests that he has the following rights
in respect of that thing15:

(a) Right of user

(b) Possession including elimination of others from that thing.
(c) Right of alienation
(d) Disposal according to his wish.

He also observed that the above rights which are incidental to ownership can be confined by
mutual agreements or by effect of law.

9
Dias & Hughes : Jurisprudence, (1957) p.340
10
Holland : Elements of Jurisprudence. p.221
11
V.D. Mahajan’s, Jurisprudence and Legal Theory, Eastern Book Company, ed. 1987
12
Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency,  ed.2013
13
Pollock : Jurisprudence and Legal Theory, p.97
14
Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency,  ed.2013
15
Dr. S.P Dwivedi, Jurisprudence and Legal Theory, Central Law Publications, ed.2012

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Ownership as a Social Concept

To sum up, we can say that ownership is a right in itself distinct from its component jural
relations, which establishes relationships between the owner all other persons in society.

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Ownership as a Social Concept

2.2 Ownership Under Ancient Indian Law

Our ancient Indian law also recognizes the right of ownership. Similar to the concept of Roman
Law, ancient hindu law also recognizes ownership and possession as two distinct concepts 16. In
ancient India, the concept of ownership was highly developed legal institution and has been
spoken of as a special capacity produced by the acts of purchase, partition, acceptance and the
title17. The great commentators notably Manu, Narada, Yajnavalkya, Vyas etc pointed out that if
a person is possession of landed property for twenty years and of chattels for ten year titled by
prescription created in his favor18. The proof of ownership was possession through pure title.
Title was considered superior to possession excluding the instances where possession has
continued for generation19. For the law of sale without ownership Narada and Yajnavalkya
observed that when an article or chattel has been sold by a person who is not the owner, the
rightful owner should acquire it from the purchaser 20. Katyayana a distinguished law giver has
also observed that if a person lost his chattel (and find it in the possession of somebody else) he
should, first of all, prove by means of witness and other evidence his ownership over that chattel
and if he able to prove that he never sold or give away chattel he then establishes his ownership
and obtains the chattel21. The above discussion makes it very clear that the ancient law-givers
were mindful enough to classify ownership and possession as two different concepts. Long
possession may ripen into ownership. Only possession without proof of title could under the old
Hindu Law, hardly prove the ownership of the possessor of the property possessed by him,
except in situations where an property has been held by three generations 22, in due course the
fourth generation was entitled to keep it even without a written title23.

According to Manu by conquest only property of the king or the state could be acquired but the
king had no right to impede or acquire private property of people of the conquered territory.
Manu says the property of no-one’s land (i.e res nullius) it would be owned by him who first
16
At first, the source of ownership is gift and purchase and the rest; in the middle, it is accompanied by title : and in
the end, the only source of ownership is possession which is continued and long standing. See, Ganga Nath Jha,
Hindu Law in its sources, Vol. 1, p.122.
17
Vira Vya., p.209.
18
Aparaka, p.612
19
Yajnavalkya, 2, 29.
20
Narada in Vivadaratnakara, p.100
21
Katyayana in Vivadaratnakara, p.100
22
The period of possession by one generation has been fixed by Narada at 20 years. So possession held by three
generations, accordingly, means 60 years. Narada in Mayukha, p.30
23
Vishnu, 7, 187

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Ownership as a Social Concept

reclaimed it under cultivation. All the things which has no previous owner such as bird fish, the
rules of res nullius was to apply hence the one who took it first was its owner. In cases some
treasure discovered, it will be owned by the person on whose property it was discovered and it
was found on some other person’s land, one who found it will acquire only half of it.

The ancient Hindu jurists not only talk about the ownership rights of the commoners but they
also further discuss the nature of king’s right on land. In the sixth book of ‘Purba Mimansa’ it
has been stated that the whole earth cannot be given away by the king of world, neither the
whole mandala (dependency) by the ruler of that dependency 24. The ownership in each village,
field, and the like of the whole earth or dependency belongs only to the respective landlords. The
king could only collect taxes25.

From the above discussion we can conclude that ownership in ancient India was considered not
only as a very developed technical institution, but also as a social institution. It was a means to
achieve certain ends. In most of the aspects it is very near to the modern concept of ownership
and denotes the subtlety of thought and the broad approach of jurists of ancient times.

24
See, p. 742-743, Quoted by Mandlik, op. cit., p.35, n.1.
25
Ibid

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Ownership as a Social Concept

3. Characteristics of Ownership

a) The first essential of ownership is that it is indefinite in point of user. We cannot

define or summarize exhaustively the broad variety of ways in which the thing owned
may be used by the person entitled to its ownership. Although this is generally called
a right to possess and use such things, in reality these rights are liberties. In reality
owner has liberty to use the thing. No duty lie upon him to use it but others is under
obligation not to use it or otherwise impede with it. Those who are not owners may be
authorized to enjoy it but the period they are entitled to use is limited where as in case
of an owner, it is of an indeterminate duration. The interest of a bailee or a lessee
comes to an end when the period of hire expires or lease terminates where as the
interest of owner is perpetual. It even not terminates on death of owner rather it goes
to legatee or heir or next of kin.

Under all develop legal systems; restrictions have been imposed on the user of property.
Every owner must enjoy his ownership without harming the right of other persons. No
landowner can amass manure on his land in such a way as it causes nuisance in his
neighbors. Person who are authorized by law have right to enter on the property of
anyone in pursuance of a warrant issued by court of justice.

a) The ownership is unrestricted in point of disposition. Austin was of the opinion that right
of alienation is necessary incident of ownership. Property can easily efficaciously dispose
of by owner either by way of transfer during his lifetime or by operation of will after his
death. A person who is not the owner cannot generally convey the right of ownership,
even though he may possess the concerned subject matter. This based on legal maxim
Nemo dat quod non habet which means he who has not can give not.

However limitations are drawn by law on the power of disposal of owner. Under both
Indian and English law property which has been transferred with intention to defeat or
delay creditors can be set aside. If there is any impediment in property the power of

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Ownership as a Social Concept

disposition can be restricted. Hence in sort we can say that unrestricted power of
disposition is not an essential characteristic of ownership.

Our great ancient hindu jurist have explained a significant feature of the concept of
ownership as fitness for free disposal. The Viramitrodaya gives the simile of a seed
which have ability to germinate and be transform into a sprout. Many causes may hinder
this capacity but it cannot be said that the capability to germinate and grow into a young
plant is not possessed by the seed. Likewise, although the power of owner to deal with his
property may be restricted with various ways but it cannot be said that ownership does
not connote fitness for free disposal.

b) Another essential of ownership is that owner has right to possess the thing he owns,
whether he has actual possession or not does not matter much. For instance if the Cycle
of A is stolen by B, B has possession of the cycle but ownership it still with A...
Likewise, if A gives his cycle to B on hire, A has neither possession of the cycle nor the
immediate right to possess it, but he is still owner as he retains reversionary interests in
the cycle. After the termination of period of hire, he has right to repossess the cycle.

c) Another essential of ownership is that owner has right to exhaust the thing while using it,
if the thing is of such nature.

d) Another essential of ownership is that it has a residuary character 26. An owner may part
with different rights associated with the things owned by him despite of this he remains
the owner of the thing in view of the residuary character of ownership. For instance A, an
owner of property may give a lease of his property to B and an easement to C. His
ownership of the land still consists of the remaining rights.

e) Generally, owner has the right to destroy or alienate the thing he owns.

26
Salmond’s defintion

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Ownership as a Social Concept

3.1 Subject-matter of Ownership

Generally, Material objects like land, chattels etc form the subject-matter of ownership. The
wealth and assets of a person such as interests in the land, debts due to him, shares in company,
patent, copyrights etc. may also be called as subject matter of ownership. In sort we can say that
intangible rights may also constitute subject-matter of ownership. Salmond was supporter of the
view that other than material objects right may also be subject-matter of ownership though a man
is said ‘not to own, but to have right’. If we consider this point of view then many rights cannot
be considered as subject matter of ownership. For instance, every person has a right of speech or
right of reputation but it is never said that he owns these rights, nor cam he alienate them. The
owner of a material object is he who owns a right to the aggregate of its use. He who has only a
particular right to use, for example right of way, is not the owner of the thing but only
encumbrances of it. This right of ownership is an inheritable right. Thus, the right of ownership
in a material thing may be defined as the general, permanent and inheritable right to the user of a
thing27. It is necessary to state that although materials objects form the subject-matter of
ownership but there are certain exceptions to this utterance. For example, wild animals living in
forests cannot be owned. Likewise, with progress of society slavery has been abolished, living
persons cannot form the subject-matter of ownership. Again, the air, the sea, the sun, the moon,
the stars, corpses etc cannot be owned.

27
Salmon on Jurisprudence (12th ed) P.415

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Ownership as a Social Concept

3.2 Distinction between Custody, Detention, Possession and Ownership

Custody is a relation of a person to an object in which he has no full command over the thing,
speaking differently; he has no required animus to exclude others. For instance, a customer
checking out a piece of cloth in a shop before the shopkeeper who has custody of that cloth.

Detention is a relation where a person has in fact possession over a thing but law due to certain
reasons does not recognize it as a possession. For illustration, a servant has the detention over
things of his master with him.

Possession is a co-relation of a person to an object which law recognizes as the possession 28.
Possession is the external realization of ownership; it is a valuable piece of evidence to show the
existence of ownership. Possession does not give the right to destroy, waste or even to set apart
the property except by way of a sub- lease.

Ownership is a co-relation of a person to an object which is ultimate and exclusive or absolute.

The person who an outlook in this relation is called the ‘owner’ and he has a right of completes
control and enjoyment of the object. Thus, a right of ownership is a right of control over the
property concerned, so as to comprise the available rights attached to ‘ownership’- the right to
possess the property in a de jure capacity, as also the right to alienate or even to destroy the
property and, the right to use the property, nonetheless all those rights may not be available at
one and the same time.

28
Fitzgerald P.J. :Salmond on Jurisprudence, (12th ed) p.293.

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4. Modes of Acquisition of Ownership

1. Original Acquisition- This mode of acquisition of ownership is observed to have taken

place, when ownership is acquired by purpose of some act or event. It is of three types,
viz., absolute, extinctive and accessory

(a) Absolute – When things are acquired which haven’t or have never had owner res
nullius. Romans labeled them as cases of absolute original acquisition. In two ways
this type of ownership is acquired.
(i) Occupatio: If a thing is in the absence of owner, anyone is at liberty to take and retain it:
he makes it his own by the very act of taking possession. To this method of acquisition,
the Romans gave the name of occupatio, which indeed signed ‘taking possession’.

The theory that pre-existing rights were pulled down by capture in war was pertained even to the
property of Romans. If the flock of a Roman citizen was banished, or the furniture of his house
moved away, by the enemy, he lost not only his possession, but even his right of ownership, so
that if the things taken were subsequently recaptured from the enemy, he could not recover them
as his own.

If a new island was devised in the middle of a river, it belonged to the owners of the banks
between which it lay.29 On this point, the law in modern days is not very inconsistent what it was
in the days gone by. With respect to, wild animals and fish etc., the law in modern times is that
they are regarded to be in possession of that person upon whose land they happen to be and when
captured or killed they belong to the landowner and not to the captor.

(ii) Specificatio: In the cases thus far regarded, the right of ownership was acquired in
something which was previously without an owner. But there are cases in which a thing that had
an owner passes without his consent into the ownership of different person. Consequently, where
a man working on material that belonged to someone else made a new thing out of it, the new
thing became the property of the maker, who in this way acquired ownership of the material.
This was termed as specification, the making of kind of product or new species.

29
James Hadley, Introduction to Roman Law, pp. 169-172.

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Ownership as a Social Concept

The main point, nevertheless, with respect to the principle of specificatio is that it regards
ownership of a thing as a result of individual labour. In modern times of society, it is impossible
to imagine in more than a few cases what the outcome of the labour is at all, but of some
fortunate accident, e.g., the hike in the value of land on which coal or oil is found.

(a) Accessory- This is a suitable example of original acquisition. 30In this kind of acquisition,
ownership was often given rise to aa union or mixture of things which belonged to two
different persons. Of the two things united, one was a mere accession to the other, a mere
secondary or subordinate part.

(b) Extinctive- When ownership is obtained by a person by some act on his part, which
destroys the title of the previous owner, it is called extinctive acquisition. In India,
adverse possession by a person of the land of another for 12 years quenches the
ownership of the previous owner and the person having such adverse possession gets
entitled as the owner.

(2) Derivative Acquisition: A person is said to acquire slavishly when he accepts a conveyance
of title from a former owner. In this type of mode may comprise the acquisition of ownership by
inheritance-intestate and testamentary, acceptance of gift etc. In every legal system and transfer
inter-vivos-purchase there are certain rules and formalities which manage and govern this mode
of acquisition of ownership. In modern days, these formalities and rules to be complied with for
the transfer and acquisition of ownership are enumerated down in various statues. In India,
however, these formalities may be found in the Registration Act, 1908, Sales of Goods Act,
1930, Partnership Act 1932, the Companies Act, 1956,Transfer of Property Act,1882 and in
various other Acts.

30
W.W. Buckland, Text Book of Roman Law, 2nded.,p.215

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Ownership as a Social Concept

5. Significance of Ownership in Modern Social Context

The conception of ownership is socially significant as it is measure of wealth and social position.
Having ownership over a land was one of the methods to control the government. In a feudal
system based on ownership of land, the feudal lords exercises great influence and even right to
vote was based on ownership of land. The social aspect of ownership also draws our attention
towards one of the significant social principle that one should enjoy its ownership in such a
manner that it is compatible with the interests of others.

As observed by Lord Evershed “Like other interest property also has to perform a social
obligation. Social Policy of a particular legal system put out the extent of this social obligation.31

It is important to keep in mind that ownership is not only bundle of rights, liberties and power
but it also has burden of corresponding duties, liabilities and disabilities which prescribe and lay
down regulations how an owner should use his property for the benefit of other person or
society. The definition given of ownership given by Austin reflects the orthodox individualistic
approach towards ownership; however with the growth of society emphasis start to shift from the
individual to society-form ownership as a fundamental right of property to the wants of people
and one’s duty towards other. Now it has been recognized that restrict are intrinsic to the concept
of property and not an exception to an otherwise unlimited right. Karl Marx theory of ownership
draws our attention towards the evils of individualistic approach towards property. As observed
by him it all start with individual working with its own tools and raw material, later yield
generated through trading and manufacturing uplifted him to position to supply tools and raw
material and get other people to provide the labor. Marx in his Communist Manifesto evaluates
the two social classes that have been result of historical change. He believes that the bourgeoisie
are the modern capitalist who excersie control over the means of production and who employees
wage-laborers32. On the other hand proletariats which constitute the majority of people are the
laborers that work very hard to earn wage and to survive 33. He uses the term alienation to express
how laborers are neglected of the development of their human skill by being reduced to sell their
labor in order to survive, as he observed that the laborers becomes “ a cheaper commodity the

31
Fitzgerald, P.J. “Salmond on Jurisprudence”,Universal Books Publications, 12th Edition, 2013. Pg. 256.
32
Karl Marx, Selected Writings. Trans. and Ed. Lawrence Simon. (Indiana: Hackett Publishing Company, 1994),
158
33
Ibid. , 159

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Ownership as a Social Concept

more he produces34”. He asserted that proletarians have been used as a commodity in order to
increase the wealth of the bourgeoisie. By this way using labourers as commodities the
bourgeoisie has created a divison of labour where the proletarians are working for the
bourgeosise as Marx put “they are daily and hourly enslaved by the machine, by the overlooked,
and above all, by the individual bourgeoisie manufacturer himself 35” The consequence of divison
of labour has different effect on workers but the nature of private property is hampering
individuals to be free as they would be in other circumstances.

Karl Renner following the approach of Marx observed that law need to take account of the
increasingly public character of ownership of property by investing it with the features of public
law. There is need to recognize both concepts ie Public and Private Ownership. Ownership of
means of production need to be public and that should be nationalized and private indivuals
should allow ownership only over consumer goods. This difference lies not in the nature of
ownership but in all the things which can be owned.

The progressive evolution of ownership in its social dimension has been traced by Professor
Renner. According to him in early stages of development of society the owners of industries had
to themselves collect tools, raw materials and labor resources to run the industry and they gain
huge wealth by selling there finished goods. When they collected sufficient wealth, they start
hiring labor and providing tools and raw materials to them. The industrials were still undisputed
owner of the finished products. Thus ownership over means of production becomes the source
and symbol of despotic power and social status enjoyed by the industrialist. Employers have
despotic power to remove workers to change the terms of services. This displays their influence
in the society as a dominant class. However in course of time the labor moment gain momentum
and they start raising their voice against this exploitation as result public ownership gained
supremacy over private ownership. Progressive socialist countries started the policy of
nationalization of industries which is another step towards fulfillment of this objective36.

34
Karl Marx, Selected Writings. Trans. and Ed. Lawrence Simon. (Indiana: Hackett Publishing Company, 1994), 59
35
bid. , 165
36
Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency,  ed.2013 Pg. no. 426.

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Ownership as a Social Concept

Dr. Friedman observed that the concept of ownership has exercise great influence as a source of
social power in different stages of the development of society. He pointed out three main reasons
of decreasing influence of private ownership in the modern social order37.

First, There has been decline in the gap between employer and labour class due to the trade union
movement, nationalization of industries and national insurance scheme. Consequently now both
entrepreneurs and the workers have more or less same bargaining power, as a result of this
employers cant misuse there power and exploit the workers.

Secondly, Legislative measures and taxation policy significantly regulate profiteering by

industrialists. Now they also have to contribute a part of there profit to public fund of state, this
basically helped in just distribution of wealth.

Thirdly, the motivation given to the corporate sector in recent decades has been very helpful to
cut down the power element from ownership. During capitalistic era, power and ownership both
are vested in industrialists thus it was really inimical for the labour class. But at present the real
power is vested in the management which consists of experts of different fileds and owners are
divested of this power. Hence this we called element of power has been separated from
ownership. Further various company legislation and labor & industrial laws have been enacted
by almost all countries to check the power of management authority.

Dias and Hughes pointed out that in order to acknowledge the role of ownership in the present
social order, only its formal analysis will not serve the purpose rather greater emphasis should be
given to its functional analysis38.

37
Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency,  ed.2013 Pg. no. 427.
38
Ibid

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Ownership as a Social Concept

5.1 Social Control on Ownership

Social control over property is a modern idea introduced by modern jurisprudence. With the
emergence of this new idea and prior thereto, the notional absolute ownership was hedged round
by numerous obligations. Since social, many form of limitations come upon ownership. One of
the obvious forms is compulsory public acquisition and requisitions. To prohibit not using land
and allowing it to remain vacant is another type of social control. Control also exist in respect of
management and enjoyment of owned property either by controlled distribution of resources or
by control of the use of to which the thing owned is put. Another form of social control is
regulation and restriction on the use of building in municipal areas, such as their uses as
shopping places and cinema halls. A latest statutory innovations in different parts of the world is
to put a ceiling on the numbers of real properties to be owned, whose ownership is controlled by
one individual either by numbers or by area or size or by both39.

39
See, P.B. Mukharji, The New Jurisprudence, pp. 9-10

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5.2 Gandhian Concept of Ownership

Mahatma Gandhi, the father of the Indian Nation, expound the concept of trusteeship to the right
of ownership and negated the individualistic approach of ownership. According to him
ownership does not exist for the individual owner’s benefit alone, but he (owner) holds it as a
trustee of property or thing owned , for benefit of society as whole. Thus, it is for the benefit of
the society at large that the owners hold the property as a trustee. Right of ownership which is
vested in owner should be used for doing well to public. In other words we can say that he was
of the opinion to refrain the owner to use property for selfish motive rather extend the benefit of
it to society at large by making its use for public purposes. Unfortunately, the Gandhian concept
of ownership could not see the light of the day due to then prevailing circumstances. As of now,
Indian Constitution recognize and protect the right to ownership of property but now it is mere a
legal right not a fundamental right40.However, at present time this ownership right is subject to
various statutory regulations and now no one can assert an absolute right of ownership over a
chattel or property. As there has been nationalization of private undertakings and public
institution, the concept of trusteeship to right of ownership has been recognized to a great extent.

40
Prior to the Constitution (44th Amendment) Act, 1978, right to ownership of property was a fundamental right
under Art.31, but consequent to this amendment it has now ceased to be a fundamental right and made a legal right
under Article 300-A of the Constitution.

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Ownership as a Social Concept

6. Conclusion and Suggestions

All over the globe there were number of discussions among the scholars and other wise persons
regarding the concept of ownership and property. The ancient authors give theories in relation
between the property and virtue for instance Plato was of opinion that collective ownership is
essential to promote common pursuit of common interest. Aristotle stated that private ownership
promotes virtues like responsibilities and prudence. During medieval Era, the idea of Aristotle
was again discussed by Thomas Aquinas that virtue might be expressed in the use that makes
one’s property. In early modern period, philosophers change their position to the way in which
property might have been instituted. Hobbes asserted that there is no ‘mine’ or ‘thine’ and the
property must be understood as the creation of sovereign state.

As we go through the evolution of concept of ownership and owners in various texts, we can
easily observe that it took place as result of civilization. People began to believe that they need to
own something for different reasons like social status etc. We also come across how land
ownership plays a important role in the qualification for voting. We also observe that how typical
individualistic approach of ownership that is reflected in the definition of Austin gradually
shifted from the individual to society-form ownership. We have to always remember that
ownership it not only a bunch of right, liberties and powers but at the same time it also carries
corresponding burden in the nature of duties, liabilities and disabilities which provide how an
owner use his property for the benefit of society at large.

In brief, it may however be noted that the whole concept of ownership in orthodox jurisprudence
is overlaid with many social responsibilities of the new age. Property, its ownership and use
carries tax under fiscal jurisprudence. In a sense absolute and unqualified right of ownership and
possession do not exist and such right can be restricted for social control. Legislative controls
now exist as to profit, interests and rents. Imposition of different kind of taxes are means to
persuade people to put their profit to public use, scaled taxation has helped to level the unequal
distribution of wealth, on the other hand duties of different types compel people to discriminate
in the national interests between essential and non essential commodities.

To sum up, ownership has ceased to be what it was. While remaining, in legal form, an
institution of private law implying the total power of doing with the thing what one likes, it has

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Ownership as a Social Concept

in fact become an institution of public law (Power of command) and its main functions are
exercised by complementary legal institution, developed from the law of obligations41.

41
Friedmann, W., Legal Theory, 4th ed., (1960) p. 331.

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Ownership as a Social Concept

BIBLIOGRAPHY

Books

 R.W.M Dias, Jurisprudence, (5th edn,1994) p.462, Butterworths & Co. (publishers) Ltd.
1985, Aditya books Pvt Ltd. New Delhi.
 Raymond Wacks, Understanding Jurisprudence, An introduction to legal theory, (2005,
Oxford University press).
 Salmond on Jurisprudence, (12th Edition), Universal Law Publishing Co Ltd.
 V.D. Mahajan’s, Jurisprudence & Legal Theory, (5th Edition), Eastern Book Company.
 Studies Jurisprudence & Legal Theory, (9th Edition), Central Law Agency.

Websites Referred

 https://www.legalbites.in/ownership-definition-concept-and-kinds/#:~:text=The
%20subject%2Dmatter%20of%20such,is%20known%20as%20trust
%20ownership.
 https://lawnotesforstudents.blogspot.com/2017/05/jurisprudence-ownership.html
 https://blog.ipleaders.in/jurisprudential-aspect-of-ownership/
 http://www.legalservicesindia.com/article/1281/Ownership.html
 https://culanth.org/fieldsights/ownership-changing-concepts-and-practices
 https://journals.sagepub.com/doi/abs/10.1177/002204267500500403?
journalCode=joda

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