INTRODUCTION

Ownership is a complex juristic concept which has its origin in the ancient
Roman law. Therefore, right to ownership is the most important right. The
earlier legal system did not recognise the distinction between ownership and
possession. It was with the advancement of civilisation that the two were
considered as separate and distinct concepts. In Roman law ownership and
possession were respectively termed as 'dominium' and 'possessio'. The term
'dominium' denotes absolute right to a thing while 'possessio' means implied
control over it. Romans attached more importance to ownership rather than
possession because in their view having absolute right over a thing was much
more important than merely having physical control over it.1
The earlier law gave importance to possession of land and chattels because of
the misconception that possession includes within it ownership as well. The
term ownership was used in English law for the first time in 1583 when it was
distinguished form possession. Holdsworth observed that the English law
accepted the concept of ownership as an absolute right through gradual
development in the law of possession.

Jurists have defined ownership in different ways. All of them accept the right
of ownership as the complete or supreme right that can be exercised over
anything. Thus, according to Hibbert ownership includes four kinds of rights
within itself2 :

Right to use a thing

Right to exclude others from using the thing
Disposing of the thing
Right to destroy it.

Austin’s definition
Austin while defining ownership has focused on the three main attributes of
ownership, namely, indefinite user, unrestricted disposition and unlimited
duration.
• Indefinite User
• Unrestricted Disposition

1 Paranjape, N.V., Jurisprudence and legal theory (Central law agency, Allahabad, 2016)

2 Ibid.
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 • Unlimited Duration

The term 'ownership' is used with reference to 'things' which may be corporeal
things, i.e., physical objects are incorporeal things such as goodwill, patents,
copyright etc. Incorporeal things embrace all claims.3

1. Indefinite user -This implies that the owner of a thing is free to use or even
misuse it in any manner he likes. The use of the word 'indefinite' has a special
significance because the use of land by the owner can be restricted by
agreements or by operation of law. These restrictions may include

(i) The owner of a thing cannot be allowed to use the thing in a manner which
is injurious to others. This is expressed by the maxim, "so use your property as
not to injure your neighbours".

(ii) The ownership may be subject to encumbrance in favour of others in

which case the power of user for the owner is curtailed by the rights of the
encumbrancer.

(iii) The State officials have a fight to enter the owner's premises in pursuance
of a warrant issued by a Court or for any lawful purpose.

2. Unrestricted Disposition - Austin says that an owner of a thing has

unrestricted right to dispose it of in a way he likes. Thus he regards right of
alienation as a necessary incident of ownership. However, the owner's power
of disposition may be seriously impaired by the right of an encumbrancer.
Legal restrictions may hamper the unrestricted disposition of the property.4
For instance, Hindu law does not allow alienation of ancestral immovable
property without the consent of the co-parceners except for legal necessity. In
Germany, division of small farms beyond a particular limit is not permissible.

3. Unlimited duration - The right to ownership according to Austin is

unlimited in point of duration. The right shall exist so long as the owner and
the thing exists. It is a perpetual interest which shall devolve upon the heirs of
the owner after his death, but the right shall not be extinguished.

3 https://lawnotes.wordpress.com/category/llb-part-i-jurisprudence/

4 Ibid.
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Criticism Against Austin's Definition of Ownership
Austin’s definition of ownership has been criticised by many writers. They
argue that it is fallacious to think that ownership is a single right, in fact it is a
bundle of rights including right of user and enjoyment. Even if an owner parts
with some of the rights involved in ownership, the residue are still owned by
him. For example, in case of a mortgage by the owner of a land, although he
has transferred a right, but he is still the owner of the mortgaged property.
Again, to say that an owner has an unrestricted right of disposition is not
correct.5
His right of disposition of the property can be curtailed by the State. For
instance, Article 31 (2) of the Constitution of India3 contained a provision
that the State can take away the property of any person for public purpose.
Again, an owner of property cannot dispose of his property with a view to
defeating the claims of his creditors.

Austin’s definition has been followed by Holland. He defines ownership as

plenary control over an object. According to him an owner has three rights on
the subject owned
Possession
Enjoyment
Disposition
Planetary control over an object implies complete control unrestricted by any
law or fact. Thus, the criticism levelled against Austin’s definition would
apply to that given by Holland in so far as the implication of the term “plenary
control” goes.

Salmond’s Definition:
Salmond stated that Ownership denotes the relationship between a person and
an object forming the subject-matter of his ownership. It consists in a complex
of rights, all of which are rights in rem, being good against the entire world
and not merely against specific persons.6

In Salmonds’s view, ownership exhibits the following incidents :-

5 Paranjape, N.V., Jurisprudence and legal theory (Central law agency, Allahabad, 2016)
6 https://www.srdlawnotes.com/2017/04/definition-and-different-kinds-of.html

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• An owner shall have a right to possess the thing which he owns. He may,
however, not
be necessarily in actual possession of it.

• He has normally the right to use and enjoy the thing owned.

• The owner has a right to consumer, destroy or alienate the thing.

• Ownership has the characteristic of being indeterminate in duration.

• Ownership has a residuary character.7

DEFINITIONS BY OTHER JURISTS

Other writers, notably, Holland, Keeton, Buckland, Fredrick Pollock, Hohfeld,
Paton etc. have also defined ownership as :

Holland-According to Holland, "ownership is a plenary control over an

object". The word 'ownership' can be used to connote three different kinds of
powers. In its primary sense, it denotes control over material objects, i.e.,
possession over land.

In its secondary and conventional sense, ownership means control over

aggregate of rights, e.g., ownership of a patent right for a new invention.

In its third and widest sense, ownership implies an aggregate of all those rights
vested in a person which he can use against others.8

Holland pointed out that ownership confers three kinds of powers on the
owner, namely, possession, enjoyment and disposition. The right of possession
can, however, be lost by a lease or a mortgage. The power of enjoyment is
limited by the rights of the State. The power of disposition includes right of
alienation, alteration or destruction which is again subject to State regulations.

7 https://www.lawnotes.in/Ownership
8 supra note 5
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Thus, according to Holland, the right of ownership consists of benefits and
burdens. The former consist of claims such as liberties, powers and
immunities, but the advantage which these claims confer are curtailed by
duties, liabilities and disabilities.

Keeton - Keeton has 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 exhausted. Thus to own a piece of land really means to
own a particular kind of right over the land.
Keeton points out that ownership extends to all kinds of rights whether
proprietary, personal or in rem or in personam or in re propria or in re aliena.

Buckland.- Buckland defines ownership as "the ultimate right to the thing or

what is left when all other rights vested in various people are taken out."

Pollock - According to Pollock, "ownership is the entirety of the powers of

use and disposal allowed by law. "However, it is not necessary that all the
powers of an owner need be exercisable at once and immediately; he may
remain owner though he has parted with some of them for a time. He may
even part with his whole powers of user and enjoyment or suspend his power
of disposal, provided he reserves for himself or his successor, the right of
ultimately reclaiming the thing to be restored to his power as usually happens
in case of hiring land, goods or buildings.9

Hohfeld - 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 owner. He says that ownership
is no more to be conceived as an aggregate of rights than a bucket of water is
conceived as an aggregate of separate drops. Just as we can take one drop or
many drops from the bucket, likewise we can detach one or several rights
from ownership.

9supra note 7

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CHARACTERISTICS OF OWNERSHIP
An analysis of the concept of ownership, it would show that it has the
following characteristics :

(l) Ownership may either be absolute or restricted, that is, it may be exclusive
or limited. Ownership can be limited by agreements or by operation of law.
When a land or a thing is owned by more than one owner, they are called co-
owners and the right of each co-owner is limited to the right of other co-
owners.

(2) The right of ownership can be restricted in time of emergency. For

instance, building or land owned by private individuals can be requisitioned
and used for lodging army personnel during the period of war. Allotment of
accommodation to tenants by the Rent Controlling Authorities is yet another
illustration to show that ownership can be restricted.10

(3) An owner is not allowed to use his land or property in a manner that it is
injurious to others. In this sense, his right of ownership is not unrestricted.

(4) Restrictions may also be imposed by law on the owner's right of disposal
of the thing owned. Thus any alienation of property made with intent to defeat
or delay the claims of creditors can be set aside. The power of disposition can
also be limited by the existence of the rights of encumbrancer such as a
mortgagee etc. The owners in India and in most of the countries are not free to
sell their land or property to aliens.

(5) The owner has a right to possess the thing which he owns. It is immaterial
whether he has actual possession of it or not. The most common example is an
owner leasing his house to a tenant, where tenant is in actual possession but
the ownership still remains with the landlord. Again, when a car is hired or
stolen, the possession remains with the person who has hired it or stolen it, but
the ownership still remains with the owner of it.

(6) Law does not confer ownership on an unborn child or an insane person
because they are incapable of conceiving the nature and consequences of their
acts.

10 https://www.srdlawnotes.com/2016/11/characteristics-of-ownership.html

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(7) Ownership is residuary in character.

(8) The right to ownership does not end with the death of the owner, instead it
is transferred to his heirs.

(9)The owner of the property has perpetual right or the right for unlimited
period over the property. Those who are not owners may be entitled to possess
or use the thing but the period for which they are so entitled is a limited
duration.11 But in case of Ownership, it is of an indeterminate duration. Thus
the interest of Bailee or lessee comes to an end when the period of bailment or
lease is over. But the owner's interest is perpetual and does not terminate even
in owner's death, because in that case the property will go to his legal heirs.

KINDS OF OWNERSHIP
(1) Corporeal and incorporeal ownership;
(2) Sole and co-ownership;
(3) Trust and beneficial ownership;
(4) Legal and equitable ownership;
(5) Vested and contingent ownership;
(6) Absolute and limited ownership.

Corporeal and Incorporeal Ownership —

The ownership may be of a physical object or of a right only. If the subject-
matter of the ownership is a physical object, for example, a piece of land or a
building, it is corporeal a ownership. If the subject-matter of ownership is a
right, for example, copyright or a patent, it is, incorporeal ownership.12
Salmond recognises this division not on the ground that the subject-matter in
one is a physical object, and in the other it is a right, but on the ground that the
(corporeal) is the narrower and the other (incorporeal) is the wider sense in
which the term ‘ownership’ is used. Corporeal things are those which are

11 supra note 10
12 http://ba-llb-handout-notes.blogspot.in/2015/10/ownership-in-jurisprudence.html

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tangible, that is, which can be perceived and felt by senses while incorporeal
things are intangible and cannot be perceived and felt by senses.

Sole ownership and co-ownership —

The general principle of ownership is that it should vest in one person only.
But, sometimes it is duplicate or, in other words, two or more person have the
right of ownership of the same property vested in them at the same time.
When the ownership is vested in one person only, it is called the sole
ownership and when it is vested in more than one it is called co-ownership. An
example of co-ownership is partnership. The members constituting partnership
are co-owners of the property of partnership. In India, the coparcenary of
Hindu law is also a co~ownership. All the lineal male descendants within three
degrees form coparcenary. They jointly hold the whole coparcenary property
and nobody has any specific share in it. After the death of a coparcener, the
co-parcenary property goes to surviving co~parceners by survivorship.Under
the Indian law, a co-owner is entitled to three essential rights, namely
Right to possession
Right to enjoy the property
Right to dispose

Trust and Beneficial Ownership —

Trust ownership is an instance of duplicate ownership. Trust property is that
which is owned by two persons at the same time. The relation between the two
owners is such that one of them is under an obligation to use his ownership for
the benefit of the other. The ownership is called beneficial ownership. The
ownership of a trustee is nominal and not real, but in the eye of law the trustee
represents his beneficiary. In a trust, the relationship between the two owners
is such that one of them is under an obligation to use his ownership for the
benefit of the other. The former is called the trustee and his ownership is trust
ownership. The latter is called the beneficiary and his ownership is called
beneficial ownership.13
According to Salmond, the purpose of trust ownership is to protect the rights
and interests of persons who for any reason are unable to protect them
effectively for themselves. The main clauses of persons in whose behalf the
protection of trust is created are as follows :

13 supra note 10
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• Unborn persons
• Persons under some kind of disability, such as lunacy etc.
• Several persons having common interest in the property, that is, co-owners
of the property.
• Persons having conflicting interest over the same property .

Legal and Equitable Ownership —

Legal ownership is that which has its origin in the rules of common law and
equitable ownership is that which proceeds from the rules of equity. In many
cases, equity recognises ownership where law does not recognise ownership
owing to some legal defect. Legal rights may be enforced in rem but equitable
rights are enforced in personam as equity acts in personam. One person may
be the legal owner and another person the equitable owner of the same thing
or right at the same time. The equitable ownership of a legal right is different
from the ownership of an equitable right. The ownership of an equitable
mortgage is different from the equitable ownership of a legal mortgage.14

There is no distinction between legal and equitable estates in India. Under the
Indian Trusts Act, a trustee is the legal owner of the trust property and the
beneficiary has no direct interest in the trust property itself. However, he has a
right against the trustees to compel them to carry out the provisions of the
trust.

Vested and Contingent Ownership —

Ownership is either vested or contingent. It is vested ownership when the title
of the owner is already perfect. It is contingent ownership when the title of the
owner is yet imperfect but is capable of becoming perfect on the fulfilment of
some condition. In the case of vested ownership, ownership is absolute. In the
case of contingent ownership it is conditional. For instance, a testator may
leave property to his wife for her life and on her death to A, if he is then alive,
but if A is dead to B. Here A and B are both owners of the property in
question, but their ownership is merely contingent. It must, however, be stated
that contingent ownership of a thing is something more than a simple chance
or possibility of becoming an owner. It is more than a mere spes acquisitions.

14 supra note 10
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A contingent ownership is based upon the mere possibility of future
acquisition, but it is based upon the present existence of an inchoate or
incomplete title.

Absolute and Limited Ownership —

An absolute owner is the one in whom are vested all the rights over a thing to
the exclusion of all. When all the rights of ownership, i.e. possession,
enjoyment and disposal are vested in a person without any restriction, the
ownership is absolute.15 But when there are restrictions as to user, duration or
disposal, the ownership will be called a limited ownership. For example, prior
to the enactment of the Hindu Succession Act, 1956, a woman had only a
limited ownership over the estate because she held the property only for her
life and after her death; the property passed on to the last heir or last holder of
the property. Another example of limited ownership in English law is life
tenancy when an estate is held only for life.

MODES OF ACQUISITION
Acquisition of ownership may be either by —

(1)Original, or (2)Derivative.

1. Original acquisition of ownership takes place when ownership is

acquired by some personal act on the part of the acquirer. It is of three kinds

(a) Absolute-Where a thing is acquired which has no previous owner

(res nultius) it is absolute original acquisition.16 It is done in two ways

(i) Occupation - For a thing of which there is no owner, as a bird in the air or
fish in the water, the general rule of Roman law was that the first occupier
became the owner. Manu has also given a similar view. He says that the first
striker of an arrow to a prey becomes the owner. Regarding
the ownership of field of land, he says that it belonged to him who first
reclaimed it under cultivation. In Roman law, the property obtained by

15 Tripathi Bijai and Mani Rajiv, Jurisprudence (Allahabad law agency, Faridabad, 2016)

16 Ibid.
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conquest was treated as res nullius, and therefore, the rules of res nullius (who
took it first became the owner) were applied to it. Manu recognised conquest
as a mode of acquisition of the property obtained in conquest; but the private
property of a subject was not to be interfered with. The rules of occupatio
applied also on treasure troves when found by a person. The rule in this
respect was that if the finder of it was also the owner of the land where the
treasure was found, he took the whole, and if he was not the owner of the land,
then only the half of it he took. Regarding treasure trove, the law is that in
England it belongs to the Crown. In India, it is governed by Indian Treasure
Trove Act,1878.

(ii) Specificatio - If a person by working up on a material belonging to another

made it into something new, he became the owner of the new product. For
example, if a sculptor mark a statute from the clay belonging to another, he
becomes the owner of the statute. There are no such rules in modern times.

(b) Extinctive-When ownership is acquired by a person by some as

on his part which extinguishes the title of the previous owner, is called
extinctive acquisition.17

(c) Accessory - In accessory acquisition, the ownership of a property is

acquired which comes by way of accession to some existing property. In
Roman law, this mode of acquisition was called accessio.

2. Derivative acquisition - When ownership is derived from a previous owner

it is called derivative acquisition. This is derivative mode takes place from the
title of a prior owner. It is derived either by purchase exchange, will, gift etc.
Every legal system of the world provides some rules for the requisition of
ownership by this mode. 18Indian Transfer of Property Act provides rules for
the transfer of immovable property, Sale of Goods Act lays down rule for the
transfer of movable property, Partnership Act for the transfer of property of
the firm and the Companies Act for the transfer of Company property. Thus,
the Derivative mode of acquisition of ownership may be:
• Title of prior owner. • Transfer of Ownership
• Succession • Purchase
• Will • Exchange
• Sale • Gift

17 supra note 12
18 http://chetananand.co.in/index.php?route=product/category&path=103_107_111
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BIBLIOGRAPHY

Books :
Paranjape, N.V., Jurisprudence and legal theory (Central law agency,
Allahabad, 2016)
Tripathi Bijai and Mani Rajiv, Jurisprudence (Allahabad law agency,
Faridabad, 2016)

Websites :
https://lawnotes.wordpress.com/category/llb-part-i-jurisprudence/

http://chetananand.co.in/index.php?route=product/
category&path=103_107_111

http://ba-llb-handout-notes.blogspot.in/2015/10/ownership-in-
jurisprudence.html

https://www.lawnotes.in/Ownership

https://www.srdlawnotes.com/2017/04/definition-and-different-kinds-of.html

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