OWNERSHIP

The term OWN means to have or hold a thing, or something which

belongs to you. A person who holds some property or thing with him is said to
be the owner of the particular thing and he has the right to ownership.
Ownership denotes the relation between a person and object of his
ownership. It consists of rights in rem - being good against the entire world and
not merely against specified persons.
Black's Law Dictionary defined ownership as: Collection of rights to
use and enjoy property, including right to transmit it to others.
Holland defines ownership as „plenary control over an object‟.
According to him, an owner has three rights on the object owned:
a) Possession
b) Enjoyment
c) Disposition

Austin defined ownership as “a right indefinite in point of user, unrestricted

in point of disposition and unlimited in point of duration”. His definition
thus implies three attributes viz.:
a) Indefinite user – the owner of a thing is free to use or misuse the thing in
a way he likes.
b) Unrestricted disposition – the power of disposition of the owner is
unhampered by law. He is absolutely free to dispose it to anyone.
c) Unlimited duration – it relates to permanence. Ownership of a person
cannot be cut short. The owner can continue to be the owner as long as he
likes.
Criticism – the definition or theory by Austin was criticised on few points;
 The use of the property can be restricted by law in the interest of
community.
  Under Muslim law, a person cannot dispose off more than 1/3 property in
WILL.
 The property can‟t be transferred if the object is to defeat or delay the
interest of creditors.
 Sometimes the state can take over the property in public interest. (eg.
Abolition of zamindari system.)

ESSENTIAL CHARACTERISTICS:

1. Right to possess: The owner of a thing has a right to possess it. The owner
has exclusive control of a thing. It is immaterial, whether, he has actual
possession of it or not.
For example, an owner leasing his house to a tenant, where tenant is in actual
possession, but the ownership still remains with the landlord.
2. Right to use: The owner has right to use the subject-matter of ownership as
per his own discretion.
 According to Salmond, there are certain restrictions by law.
a) The owner cannot use the thing which he owns in a harmful way.
b) If the court issues a warrant then the state officials have a right to enter
into the premises for any lawful purpose.
3. Right to manage: The owner has the right to decide how and by whom the
thing shall be used.
4. Right to the capital/alienation: The owner has exclusive right of alienating
with the thing. A non-owner may possess a thing but he cannot transfer its
ownership.
5. Right to income: The owner of a thing has the right to the income arising
out of the thing with respect to the law lay down in that regard.
6. Duration: In certain cases such as lease, easement, the duration is fixed. But
in ownership there is no certain duration of time. If the owner dies, then the
ownership will be transferred to the heirs.
7. The right to ownership does not end with the death of the owner; instead it is
transferred to his heirs.
8. 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.

TYPES OF OWNERSHIP

I. SOLE OWNERSHIP AND CO-OWNERSHIP

 When the ownership is vested in a single person, it is called 'sole ownership'.
 When the ownership is vested in two or more persons at the same time, it is
called 'co-ownership'. For example, the members of a partnership firm are
co-owners of the partnership property.
As per the English law, Co-ownership may be of two kinds - ownership in
common and joint ownership.
a) In case of ownership in common, the right of the deceased passes on
to his successors like other inheritable right
b) However, in case of a joint ownership, if one of the two joint-owners
dies, his right of ownership also dies with him and the survivor
becomes the sole owner by virtue of his right of survivorship.
Thus the only difference between the „ownership in common‟ and „joint
ownership‟ relates to the effect of death of one of the co-owners.
 II. CORPOREAL AND INCORPOREAL OWNERSHIP
 Corporeal things are tangible, i.e., which can be perceived and felt by the
senses. The ownership of material objects is called corporeal ownership - For
example the ownership of a land, car, table house etc.
 Incorporeal things are intangible and cannot be felt and perceived by senses.
The ownership of a copyright, trademark, patent, right of way etc is called
incorporeal ownership.

III. LEGAL AND EQUITABLE OWNERSHIP

 Legal ownership is that which has its origin in the rules of common law.
For example, a lender who has lent money for a property - is the legal owner
of that property.
 Equitable ownership proceeds from the rules of equity. His enjoyment is
protected. This kind of ownership occurs when law does not recognise legal
ownership owing to some legal defects.
For example – when a property is given by „A‟ to „B‟ for the benefit of „C‟ –
„B‟ becomes the legal owner and „C‟ becomes the equitable owner.
This classification of ownership is recognised in England. In India, this
distinction is not recognised.

IV. TRUST OWNERSHIP AND BENEFICIAL OWNERSHIP

The relation between two or more persons is such that they are under an
obligation to use their ownership in property for the benefit of the other.
The former is called the trustee and his ownership is trust ownership,
while the latter is called beneficiary and his ownership is beneficial ownership.
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 origin of the trust ownership can be traced back
to the law of equity in England.
[ Trust is defined as an obligation attached to the ownership of the property and
is arising out of a confidence declared. The person accepting the confidence is
called “beneficiary” and the subject-matter of the trust is called “trust property”.
The person in whom the property vests is called the “trustee” ]

V. VESTED AND CONTINGENT OWNERSHIP

 In vested ownership the title of the owner is already perfect. Ownership is
absolute.
For example - two people sharing ownership of a property. If one dies, the
other gets the gain of vested ownership of the property
 In contingent ownership his title is imperfect. It is capable of becoming
perfect on the fulfilment of some conditions. Ownership is conditional.
For example – A makes a transfer in favour of B of Rs.10000/- to be paid to
him on attainting the age of 18. Here B‟s interest is vested. He would be
getting the money as soon as he attains the age of 18.

VI. ABSOLUTE AND LIMITED OWNERSHIP

 When all the rights of ownership, i.e. possession, enjoyment and disposal are
vested in a person without any restriction, the ownership is absolute.
 But when there are restrictions as to user, duration or disposal, the ownership
is known as 'limited ownership'.
For example –in Hindu law before 1956 women‟s estate was a limited
ownership. She held her property only for her life and had only a limited
power of disposal. After her death, the property went to heir of last holder of
that property.
 ACQUISITION OF OWNERSHIP

According to Salmond, ownership can be acquired in two ways, namely,

 by operation of law - e.g. the law of intestacy or bankruptcy.
 by reason of some act or event.

Under MODERN LAW, modes of acquiring ownership may be classified

under two heads:
I. ORIGINAL MODE - The said mode is the result of some independent
personal act of the acquirer himself. It is of following kinds;

1. Absolute - when it is acquired over a thing which previously belonged to

no one, i.e. which are res nullius.
Absolute ownership can be acquired either by:
a) Specification - the material belonging to one person is given a new
shape by another person, e.g. a sculptor making a statue out of clay.
b) Occupation - physical control of the thing is necessary. For example,
ownership over birds, fishes in rivers, precious stones and wild
animals etc, can be acquired in this way.

2. Extinctive - if ownership of a previous person has terminated by reason

of adverse possession by the acquirer. I.e. creation of rights by lapse of
time.
For example – if a person adversely possesses a land against its owner for
twelve years, then he becomes the real owner.

3. Accessory - if it is acquired as a result of accession, e.g. owner of an

animal has right to its off-springs or the owner of a tree has the right to
the fruits of the tree.
II. DERIVATIVE MODE.
When ownership is derived from a previous owner, it is called derivative
acquisition of ownership. It is derived by any of the following modes:
1. Sale/ Purchase: If a person has entered into a contract for sale and is in
peaceful and settled possession of the thing with the consent of the person
having the title thereto, he is entitled to protect his ownership against the
whole world.
Also Where one or more co-owners of the immoveable property transfers his
share of such property or any interest therein, the transferee acquires the
transferor‟s right (to joint possession or other common or part enjoyment of
the property, and to enforce partition of the same) subject to conditions and
liabilities stated therein.
2. Gift: As per Section 122 of the Transfer of Property Act, 1882, gift is
defined as the transfer of certain existing moveable or immoveable property
made voluntarily and without consideration.
3. Succession or inheritance or Will is another method of acquisition of
property. In respect of death of the owner, all rights belonging to the
deceased devolves on his legal representative.
4. Exchange: The Transfer of Property Act, 1882 defines exchange as a
transaction where two persons mutually transfer the ownership of one thing
for the ownership of another.

Under INDIAN LAW, ownership is contained in different statutory enactments

such as
 Transfer of property act, 1882
 Sales of goods Act, 1930
 Indian Partnership act, 1932
 Companies act 2013
 Indian registration act 1908