OWNERSHIP

INTRODUCTION
The bundle of right of a person over a thing gives him ownership of the thing and the control so
exercised by the person over that thing makes the thing the property of that person. The
concept of ownership is of both legal and social interest. Not only have court utilized the idea in
such a way as to give effect to views of changing individual and social interest, bur so great are
its potentialities that in recent times it has become the focus of government policy.
Etymological and legal meaning

The earliest known use of the word ‘owner’, according to Maitland, quoting Dr. Murray,
occurred in 1340, and ‘ownership’ in 1583. ‘Early law’ says Holdsworth, ‘does not trouble itself
complicated theories as to the nature and meaning of ownership and possession.
First, the conception of the possession came into being, and then the conception of the
ownership came into being, and then ownership developed due to changes in the economic
structure of the society. In Roman law, as well as in ancient Hindu law, possession and
ownership were recognized as two separate and distinct conception.

Roman law and English Law

The Romans began with a technical concept of dominium i.e., dominion as the absolute right to
a thing, possession i.e., possession denoting rather mere physical control. English law on the
contrary ‘reached the conception of ownership as an absolute right through development in
the law of possession’. The Greeks took a relative view similar to English law- he was owner
who could prove a better right to possession than anyone else.
Holdsworth considers the development of ejectment has introduced an absolute right of
ownership- ‘a person who wishes to recover against the possessor must show, not merely a
better right than the possessor, but an absolute right.’
The idea of ownership in chattel had however a different course of growth. In the initial stages,
the rights in movable were not of such a nature that they could be called ‘ownership’. The idea
of title as a better right to possess came into being through trover and detinue, which, in turn,
came into being through the development into the idea of ownership. Thus, came the concept
of ownership into existence.

Hindu Law
 The law of prescription, bailment, and sale without ownership, under the ancient Hindu laws,
was based on the distinction of possession and ownership. The ancient Hindu lawgivers like
Manu, Yajnavalakya, Vyasa, and Narada pointed out that possession of landed property for
twenty years, and of chattels for ten years, by a person created title by prescription. Possession
was proof of ownership through pure title. As regards to the sale without ownership, Narada
and Yajnavalakya said that when an article or a chattel has been sold by a person who is not the
owner, the rightful owner should obtain it from the purchaser.

The concept of ownership which is highly developed one in the ancient laws of the Hindus has
been spoken of as a special capacity produced by the acts of purchase, acceptance, and the
inheritance, gain, purchaser, conquest, investment of Health, employment.

Definition of Ownership
Austin- “a right indefinite in point of user unrestricted in point of disposition and unlimited in
point of duration over a determinate thing.”
According to Austin, there are three elements of ownership-
Indefiniteness in point of user

He says, no one can exhaustively enumerate the various ways in which the owner may make
use of his property. Bur unrestricted user in all system of laws is qualified by the law of nuisance
in accordance with the maxim ‘sic utereturat alienum leadas’ (so use your own property as not
injure your neighbors). Again, an owner’s indefinite user is restricted by encumbrances in
favour of other persons and again limited by any restriction which the state may care to impose
in the interest of community by such statues as Town planning Acts, etc.
Unrestricted in point of disposition
He says, the owner can make any kind of alienation, whether by way of gift, sale, exchange or
lease or in any other manner permitted by the law. But it is not true in any system of law, such
as, in English law, the inheritance (family provision) Act of 1938. In India, the Marumakkathyam
law, alienation of ancestral immovable property in Mitakshra law. In Germany, division of small
farms beyond a particular limit is not permissible. Further, the Government may acquire any
property for public purposes irrespective of the owner’s dissent.

Unlimited in point of duration

He says, Ownership is perpetual and is transmissible from the owner to his heirs. But it is not
necessary that an owner’s right should be unlimited in point of duration. It may end with his
death or insolvency and or on the happenings of some other contingency as in cases where the
ownership is subject to a condition subsequent. Again, the rule against perpetuity is another
limitation upon the unlimited duration and powers of disposition of the owner.
 Salmond improves upon Austin’s definition. According to him: “the ownership of a material
object is to a right to the general or residuary uses of it after the deduction of all special and
limited rights of use vested by way of encumbrances in other persons.”

“Ownership in most comprehensive sense denotes relation between a person and a right that is
invested in him.”
Thus, according to Salmond, ownership is, therefore, ‘incorporeal’. He then went to say that to
speak of the ownership of physical objects is a figure of speech. What is meant is that certain
claims are vested in a person.
Duguit has criticized Salmond’s definition and asserted that what a person really owns is a
‘thing’ and not a ‘right’. Cook has characterized Salmond’s definition of ownership as an
‘unnecessary confusion’.

Analysis of ownership
The main rights of ownership are there-
1. The right of possession of the property owned,
2. The right of enjoyment of the property; it includes the power to deal with the property
as the owner pleases (in accordance with the manner prescribes)
3. The power to dispose of the property.
There are certain restrictions upon the property; it includes the power to use it.
Article 19 of the constitution says-
All citizens shall have the right,

b) To acquire, hold and dispose of property,

The state can impose reasonable restrictions on the exercise of the right by the law in the
interests of the general public, or for the protection of the interests of any scheduled tribe.
(Article 19(5))

The state cannot deprive anyone of the property owned by him except in the manner and for
the purpose prescribed by law.
• Ownership in English law can only be vested in a person.
• Ownership is needed to give effect to the idea of ‘mine’ and ‘not mine’ or ‘thine’. One
aspect of it is that the idea becomes necessary only when there are some relations
between persons.
 • The right of ownership comprises benefits and burdens. The former consists of claims,
liberties, powers, and immunities, but the advantage these gives are curtailed by duties,
liabilities, and disabilities.

• Ownership is a social institution. The extent of the rights, privileges, powers, and
immunities that are exercisable by an owner reflect the social policy of the legal system.
• Ownership arises only in such a way as are specified by each legal system, as, in classical
Roman law for the transfer of ownership in certain kinds of things, special ceremonies
were required.
• Ownership is a source of social power. Social reformers, notably those who accept the
teaching of Karl Marx of ownership.

Subject Matter of Ownership

Ordinarily, the subject matter of ownership consists of material objects like land, chattels, etc.
the wealth and assets of a person such as interests in the land, debts due to his shares in a
company, patents, copyrights, etc. may also be subject matter of ownership. Thus, intangible
rights may also constitute subject matter of ownership.
Salmond also supported this view that right may also be subject matter of ownership though a
man is said ‘not to own, but to have a right.’

In the Bank Nationalization case 1970, Supreme Court held that property includes not only
tangible things but also intangible things, (Rustom Cavasjee Cooper v. Union Of India (1970 AIR
564, 1970 SCR (3) 530). Likewise, the Supreme Court has held privy purses as property within
the meaning of Article 19 and 31 of the constitution.

Kinds of Ownership
On the basis of English law, the ownership is classified in the following ways:

Corporeal and incorporeal ownership

The ownership of material objects is called corporeal ownership whereas the ownership of right
is called incorporeal ownership. Thus, the ownership of a house, table, land, machinery, etc., is
corporeal ownership and the copyright, patent, trademark, right of way, etc. is incorporeal
ownership.
Corporeal things are those which are tangible that is, which can be felt by the senses while
incorporeal things are intangible and cannot be felt by senses.
Salmond thinks that the distinction between corporeal and incorporeal has merely a theoretical
significance because in either case, the ownership is the right vested in the owner and not the
material object.

Sole and Co-ownership

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, ex-partnership.
‘Tenants in common’ and ‘joint tenants’ (in English law) are co-owners of the tenancy. In India,
the coparcenary of Hindu is also a co-ownership.
Co-ownership is possible only so far as the law makes provisions for harmonizing in some way
the conflicting claims of the different owner inner se. There is an existence of reciprocal
obligation of restricted use and enjoyment between co-owners.

Trust and beneficial ownership

The institution of trust and beneficial ownership was not the same as now, the institution of
trust and the rights of the trustee and the beneficiary are the special creation of English
‘equity’. The relation in trust is that there are two or more sets of owners- one set is under an
obligation to use its ownership for the benefit of another, the former is called the ‘trustee’ and
the letter is called the ‘beneficiary’, and this is ‘beneficial ownership’. Professor Campbell
suggests the term ‘bare ownership’ in place of trust ownership. A trustee in legal theory is
owner, though, he has no right to use the property for himself. The purpose of trusteeship is to
protect the rights and interests of persons, who for any reason, are unable to protect them for
themselves. That which the trustees own, the beneficiaries own also.
In agency the property is vested solely in the principal, in a trust, it vests in beneficiary and
trustee.

Legal and equitable ownership

The dictation is recognized in English law, it is closely connected to the theories of trust and
beneficial ownership. In English, the ownership recognized under the rules of common law (in
common law courts) was legal ownership and ownership which was recognized under the
Equity courts on equitable principle was called equitable ownership. It is the duplicate
ownership; one person is the legal owner and another is the equitable owner of the same right
at the same time. If the legal right to a thing is in ‘A’, but the beneficial right to it is in ‘B’, then
the court of Equity would decree that ‘A’ held as trustee for ‘B’.

Vested and Contingent Ownership

 Ownership is said to be vested when the owner’s title is already perfect. It is called contingent
when the owner’s title is as yet imperfect but is capable of becoming perfect in the future on
the fulfillment of some condition. It is vested ownership; the property is owned absolutely.

In contingent ownership, the property is owned conditionally. It means that the investitive facts
are incomplete, but it may be completed in the future. Till then the ownership is contingent and
when the required condition is fulfilled, it becomes complete or vested.
In India, a vested or contingent interest takes place on a transfer of property, is given in the
place on a transfer of property, is given in the ‘Transfer of Property Act (Act IV of 1882)
In Shashi Kanta v. Pramod Chandra (A.I.R. 1932 Cal. 609), their lordship of the Calcutta High
Court pointed out the distinction between a vested and contingent interest

Absolute and limited Ownership

When in a person all the rights of ownership (i.e., possession, enjoyment, and disposal) are
vested without any restriction (except that imposed by law in the interest of society), his
ownership is absolute ownership, but when there is limitation on user, or duration or disposal,
the ownership is limited ownership. An example of limited ownership, in English law is life
tenancy when an estate is held only for life. In Hindu law (before 1956) women’s estate was a
limited ownership.

Method of Ownership
Broadly speaking, there are two modes of acquiring, namely,

1. Original;
2. Derivative.
Original
Original acquisition of ownership takes place when ownership is acquired by some personal
acts on the part of the acquirer. It is of three kinds-
Absolute– when a thing is acquired which has no previous owner (res nullius), it is done in two
ways-
• Occupation – for a thing of which there is no owner, as a bird in the air and a fish in the
water, the general rule of Roman law that the first occupier became the owner. In
Roman law, the property obtained by conquest was treated as res nullius, and therefore
it rules applied. Manu recognized conquest as a mode of acquisition. And also, if anyone
found the treasure on its land, he took whole.
 • Specification- If a person by working upon a material belonging to another made it into
something new, he became the owner of the new product. For ex- if a sculptor made a
statue. There are no such rules in modern times.

Extinctive- when a person by some act on his ownership of the previous owner and acquires its
ownership himself, it is called extinctive acquisition. For example, acquisition of ownership by
prescription is 12 years in India.
Accessory- This is called accessory acquisition that is when the ownership of a property is
acquired by way of accession to some existing property. Examples are produced of land or
animals or fruits of trees. Manu has termed this mode of acquisition as ‘property’ which means
acquiring by accession.

Derivative Acquisition
when ownership is derived from a previous owner, it is called derivative acquisition of
ownership. It takes place when ownership is acquired by inheritance or gift or purchase etc.

Difference b/w Ownership and possession

1. Speaking on the distinction between the two Salmond has stated that, possession is in
fact, what ownership is in right. Ownership is the guarantee of the law, possession is the
guarantee of facts.

2. Ownership cannot be last without the consent of the owner whereas accident may be
lost either by accident or by the wrongful act of another.
3. There may be ownership without possession of a debt which is capable of being owned
but not possessed.

4. Possession and ownership differ in their mode of acquisition also.

Conclusion
Like other countries recognizes the right to ownership in property in India. It is guaranteed and
protected right by the Constitution (300A). The right of ownership is subjected to many
statutory laws and regulations e.g., sale and transfer of land, land reforms act. The town
planning and slum clearance legislation acquiring urban land for public purposes the
landholding ceiling legislation which regulates the possession laws as other laws derived from
English law, although we had legacy of that laws.