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Juris Final
Juris Final
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 :
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.
1
• 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".
(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.
3 https://lawnotes.wordpress.com/category/llb-part-i-jurisprudence/
4 Ibid.
2
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
fi
ff
• 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.
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
4
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.
9supra note 7
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.
(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
(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.
11 supra note 10
12 http://ba-llb-handout-notes.blogspot.in/2015/10/ownership-in-jurisprudence.html
tangible, that is, which can be perceived and felt by senses while incorporeal
things are intangible and cannot be perceived and felt by senses.
13 supra note 10
8
• 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 .
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.
14 supra note 10
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MODES OF ACQUISITION
Acquisition of ownership may be either by —
(1)Original, or (2)Derivative.
(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.
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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