Professional Documents
Culture Documents
urisprudence
Introduction
The word ownership strikes the imagination with the picture of property,
property without which there can be no ownership or possession. During
the earliest of times when humans were nomads and did not posses the
skill of cultivation and civilization
the
concept of
ownership never
crossed
through the minds. However, the concept of possession was formulated
before the
concept of
ownership and that too only when humans started to
cultivate.
Property as a legal concept has been defined by the Supreme Court of India
in
Guru Dutt Sharma v/s
State of
Bihar, as
‘a
sum of a bundle of
rights and
in
case of tangible property would include the right to possession, the right
to enjoy, the right
to
destroy,
the
right to
retain, the right to
alienate and so
on.’ And along the clear concept of property comes the ideas of possession
andownership.
Concepto
fO
wnership
With the growth of civilization, humans settling down to cultivate and
produce their
own food and staying at
one
place they began to develop the
idea of
ownership and recognized the
terms ‘mine
and thine’[1]. First came
the concept of possession then the concept of ownership evolved. The
Roman Law had two distinct terms ‘possessio’, which denotes physical
control over a thing and ‘d
ominium’ which denotes the absolute right to a
thing. Ownership as an absolute right in English Law evolved through the
developments in the law of possession, according to Holdsworth and the
term‘ownership’wasfirstusedinEnglishLawin1583.
Definition
Ownership has been defined by many jurists, some opine it is
the
relation
between a person and a right vested in him and some opine that it
is
the
relationbetweenapersonandthethingthatistheobjectoftheownership.
Austin
Austin’sdefinitionofownershiphasthreecharacteristics:–
1. Indefiniteinpointofuser-itmeansthattheownermayusethe
propertyhowsoeverhemaydesireso.Forexample,ifapersonowns
apieceofland,hemaybuildahouseonit,useitasagardenormay
simplyleaveitasitis.Butatthesametime,hemustnotuseitto
injurehisneighbors.
2. Unrestrictedinpointofdisposition-theownerhasarightoftransfer
ordispositionwithoutanyrestriction.Howeverlegalsystemsimpose
certainrestrictionsonsometransferordisposition.
3. Unlimitedinpointofduration–theownerhastherightofownership
tilltheobjectisinexistenceandassoonasthethingisdestructed
therightisextinguished.
Salmond
Holland
He
followed Austin’s view
of
ownership
and
according to him an owner has
three kinds
of
powers namely; possession,
enjoyment and ownership all or
someofwhichcanbelostbyleaseormortgage.
Hilbert
According to him, ownership consists of four rights which are the
right of
using the thing, right of excluding
others from using
it,
right to
disposal of
the thing and right of destruction of the thing. In this regard absolute
ownership in land is
not possible
since
land is
indestructible, which is
why
inEnglishLawonecanhavealegalinterestinland.
Pollock
According to him, ’Ownership may be described as the entirety of the
powersofuseanddisposalallowedbylaw.’
Naturea
ndI ncidentso
fO
wnership
On analyzing the concept of ownership one can find certain attributes
which reveal the nature or characteristics of ownership such as usage,
enjoyment,dispositionetc.Natureofownershipisasfollows:–
1. Itisindefiniteinpointofuseri.e.,theusermayusethethingowned
inanywayhesodesiresandisinnoobligationtonottouseit.The
userisatlibertytouseit.
2. Itisunrestrictedatpointofdisposition.Theownermaytransferor
disposeofthepropertybyconveyanceeitherduringhislifetimeor
evenafterhisdemisebywayofwill.
3. Theownerhastherighttopossessthethingownedalthoughifhe
actuallypossessesitornotisimmaterial,onlytherightopossessis
ofmaterialinnature.
4. Theownerhastherighttoexhaustthethingownedwhileusingitif
thenatureofthethingisso.
5. Itisresiduaryinnature.Evenifsomerightstoacertainpropertymay
begiventosomeoneelseinwayofleaseorrent,stilltheowner
remainstobetheownerduetotheresiduarycharacteristicstoit.
6. Theownerhastherighttoalienatethepropertyaswellastherightto
destroyit.
Incidentso
fo
wnership
1. Righttopossess–ownershipentailstherighttopossessthething
ownedevenifthereisnoactualpossessionofit,onlytherightisof
theessence.
2. Righttouse–ownershipimpliesthattheownercanuseorenjoythe
thingownedinanymannerhethinksfitwithoutinjuringothersand
withinthelimitsofthelaw.
3. Righttomanage–ownershipcontainswithinittherighttomanage
theproperty.Itmeansthatonlytheownercandecidewhattodowith
it,howtodoandbywhomitistobedone,totransferortoalienateor
todestroy.
4. Righttoincome–ownershipalsoentailstheincomegeneratedout
ofitisownedbytheowner.Allbenefitsattachedtothethingowned
istherightofowner.
Modeso
fA
cquisitiono
fO
wnership
There are
two modes
of
acquisition
of ownership and
they
are original and
derivative. Original mode when things which had not been owned before
and can be acquired by possession. The things owned before ownership
overthatthingisbyderivativemode.
Original mode is of three types absolute, extinctive and accession.
Absolute in
case where it
previously belonged to no one. It can be acquired
by either specification or occupation. In occupation an ownerless thing is
owned and in
this the
physical control
is
essential. For
example, birds,
fish
etc. In specification the material belonging to other when the
shape given
by another. For example, clay
collected from someone’s land is made into a
sculpture by another. Extinctive when the ownership of previous person is
done with by reason of adverse possession by the acquirer. Accessary
whenacquiredasanaccession.
Kindso
fO
wnership
Corporeala
ndI ncorporealO
wnership–
Corporeal ownership is the ownership of material object. It is the ownership
of tangible things which can be perceived by the senses. For example,
ownershipofhouse,factory,machines,etc.
Incorporeal ownership is the ownership of a right. It is the ownership of
intangible
things
which
cannot be
perceived by the
senses. It also includes
intellectual property
and
encumbrances. For example, ownership of shares,
trademark,copyright,etc.
Trusta
ndB
eneficialO
wnership–
The ownership of the trustee is trust ownership. This is a nominal
ownership and is not real as it is only for the benefit of
the beneficiary. In
the eyes of
law,
the
trustee is the representative of
the
beneficiary and has
no
right of
enjoyment of
the trust property. This
ownership is
only a matter
of
form and not
of
substance as
the property is given fictitiously by the law
and is
only deemed to be the owner of the property due to the fiction of the
law.
The ownership of the beneficiary is the beneficial ownership. Although in
the eyes of law trustee is the owner but between the trustee and beneficiary
thelatteristheownerofthetrustproperty.
For example, a property is given to A on trust for B then A is trustee and B is
beneficiary. A has trust ownership, the legal owner in the eyes of law who is
obligated to use the trust property for the benefit of B who
has
beneficial
ownership.
Legala
ndE
quitableO
wnership–
Equitable ownership
has its
origin in
the laws of equity. This ownership is a
right in personam as it can be enforced against a particular person. This
ownershipisrecognizedevenwhenthereisalegaldefect.
For example, A sells his shares to B but a transfer deed
is
not
made.
The
company refuses to acknowledge B as the owner and law gives no relief.
Rule of
equity
helps here as
A is the legal owner but he holds the shares as
atrusteeofB.Bhereistheequitableowner.
Vesteda
ndC
ontingentO
wnership–
Contingent ownership implies that the ownership is not absolute but
conditional. The
ownership is
imperfect and becomes absolute and perfect
only on fulfillment of
some condition. For
example, A leaves his property to
B
and on B’s death to
C.
The ownership of
C is contingent ownership as he
willgetthepropertyonlyafterthedeathofB.
SoleO
wnershipa
ndC
o-ownership–
Co-ownership is when more than one person has a right that is the
undivided and vested in all of them at the same time. The parties do not
separatelyownapartbutco-ownersofthesameproperty.
Co-ownershipa
ndJ
ointO
wnership–
Co-ownership the property in question is commonly owned by both the
parties and on
demise of one party the heirs of that party would inherit part
of it. For example, A and B are in a co-ownership.
On
death
of
A,
A’s heirs
willgethalfoftheproperty.
Joint ownership is when a property is jointly owned by
parties and on
the
death of one party the ownership dies with him and cannot be inherited. For
example, A and
B are
joint
owners
of a property. On death of A, B becomes
thesoleownerofthesaidproperty.
Absolutea
ndL
imitedO
wnership–
Absolute ownership means that except the owner in whom all the rights are
vested there are no other person who can claim any right over that property.
But there may be legal or contractual restrictions upon the usage of the
saidproperty.
Limited ownership means in the ownership there are limitations on the
rights of usage, duration or disposal of the property. For example, before
1956 a Hindu woman had
only limited
ownership over
a property
and after
herdemisethepropertywouldbeinheritedbytheheirsofthelastholder.
Roleo
fO
wnershipinM
odernT
imes
Ownership as a concept has evolved since long and has developed as a
sign of power, wealth and social standing. Individual ownership is a more
recent idea
and ownership within the
community was a concept during the
initial stages of society formation. In his book Physics and Politics, Mr.
Bagehot had brought out that in order to bind the society in its forming
stages ‘everything which tended to individualism would naturally be
discouragedbythetribalfeelingofself-preservation.’[2]
Ownership was only for the monarchs and in some instances for the
church, apart
from them no one had any right over any property. Concept of
private property came into existence only after feudalism was done with
and dissolved and the military heads had absolute power
over
his
domain
which gave way to modern private ownership. Feudal lords held land and
other properties and labours were the ones who although worked on the
saidlandbuthadnorightsinitwhatsoever.
Later
with the
advent of
machines and the industrial revolution came in the
rights of the labours and they now had equal rights to negotiate with the
owners of the property. In this era the owner was not the only one with
power, wealth or social standing. New legislations in
industries and labour
sector forced the industrialists to share their profits with not only the labour
force but also to be paid as taxes and in more recent time as corporate
socialresponsibility.
In the current times ownership is neither absolutely with the government
nor the
power
the ownership provides is with the industries. The labour and
industrial laws enacted has impacted the social and economic conditions
of the nation as a whole. Ownership now distributes power, wealth and
statusamongall.
Conclusion
Ownership in its nature is residual and can be said to have a bundle of
rights attached to it, but at the same time it also denotes the relation
between a person and the thing to be owned. That throughout the years the
concept of ownership and possession has evolved and has been
embedded in
the
minds of
human that
may
or
may not be
in a legal sense.
It has impacted society and even society has impacted its definition,
meaning, scope and understanding. Ownership may mean different things
to different
people
but
what
does not
change is the fact that along with the
rights attached comes liability, obligations, duties toward others and
societyingeneral.