Concept of Property

Lectures by Prof. Tripti Arora Dohutia

● In Widest sense, all animate or inanimate things belonging to a person are included
within the meaning of term “Property”- for instance life, liberty estate - now become
redundant
● In limited sense, property covers only proprietary rights as opposed to personal rights
● According to Salmond, the substantive civil law, as opposed to the law of procedure
is divisible into three major parts namely the law of property, the law of obligations
and the law of status. The first deals with proprietary rights in rem, the second with
proprietary rights in personam and the third deals with personal or non proprietary
rights whether in rem or in personam.
● Defining property as a legal concept, the Supreme court in Guru Dutt Sharma v. State
of Bihar AIR 1967 SC 1684- observed that it is a bundle of rights and in the case of
tangible property it would include the right of possession, the right to enjoy , the right
to retain, the right to alienate and the right to destroy.
● Also defined in R. C. Cooper v. Union of India - “ Property means the highest right a
man can have to anything being that right which one has to lands or tenements, goods
or chattels which does not depend on other’s courtesy; it includes ownership, estates
and interests in corporeal things and rights such as trade marks, copyrights, patents and
even rights in personam capable of transfer or transmission such as debts and signifies
a beneficial right to or a thing considered as having money value especially with
reference to transfer or succession and of their capacity of being acquired”
● 44th amendment the nature of property came for consideration before SC in Julubhai
Nanubhai Khachar v. State of Gujarat - “ right to property under article 300 A is not a
basic structure of constitution. It is only a constitutional right, deprivation of property
shall be only by authority of law be it an act of Parliament or SL but not by executive
order
Kinds of Property
Property- Corporeal ( Res Corporalis) & Incorporeal ( Res Incorporalis)

Corporeal property - Movable and Immovable

Incorporeal

● Jura in re- aliena divided into lease, trust, servitude, securities divided into
mortgage and lien
● Jura in re propria- Patent, Copyright and trademark

Jura in re aliena also known as encumbrances. Encumbrances prevent the owner from
exercising some definite rights with regard to his property.
● Lease- transfer of right to possession & use by another person - either for a specified
period or in perpetuity.- Section 105 of IPC defines lease
● Lessor - competent to contract - must have title or authority
● Lessee- competent to contract
● Subject matter - IMP
● Duration- Express/ Implied / Perpetuity
● Consideration- Form of premium/ rent/ both
● Lessee must accept transfer
● Must be made through a registered deed.
Servitude
● Form of encumbrance which consist of a right to limited use of place of land w/o
possession of it. - for example - right of way, right to passage of light, right of fishing
● Right without ownership or possession
● Servitudes are of two kinds- private and public. Private means vested in a
determinate individual as in case of a right of way, of light.
● Public servitude- vested in public at large or some class of indeterminate individuals
such as public right of navigation or fishing- public right of way over land in private
ownership.
Security
● Vested in creditor over property of his debtor for purpose of securing recovery of
debt.
● Pledge- MP
● Mortgage- IMP- Section 58(a) of Transfer of property act- transfer of interest in
specific imp for purpose of securing payment of money advanced by way of loan. ,
an existing or future debt, performance of an agreement which may give rise to
pecuniary liability.
● Section 58(b) to section 58(g)- kinds - simple, mortgage by conditional sale, english
mortgage, by deposit of title deeds, anomalous, usufructuary
 Lien
Right to hold property of another person as a security for performance of an obligation

Kinds of Lien;-

1. Possessory lien- right to retain possession of chattels or other property of debtor

2. Agent’s lien - section 221 of Contract
3. Charges- Creditor has a right to receive payment out of some specific fund from
proceeds of specific property. Section 100 defines a charge - where IMP of one person is
by act of parties or by operation of law made security for payment of money &
transaction does not amount to mortgage latter is said to have charge on property.
Mortgage v. Lien
● Mortgage is an independent and principal Lien is only a security for a debt. It is merely a right
right and not merely a security for a debt. to retain possession of chattel until payment is made.
● Right of mortgagee is vested in him
conditionally and by way of security only Right of lien is vested in the lienee absolutely and
● Mortgage is created either by transfer or by not merely as security
encumbrance
● Mortgagor has an infallible right of Lien is created by way of an encumbrance only
redemption of mortgage
Nothing like redemption in case of a lien
● Encumbrance is created independent of debt
Lien duration is dependent on the debt secured
Trust is an encumbrance in which ownership of property is limited to deal with it for the
benefit of some third person.
Modes of acquisition of property
● Possession
● Prescription- effect of lapse of time in the creation & extinction of a legal right,
adverse possession, basis of prescription- found in the presumption of coincidence of
possession & Ownership.
● Agreement
● Inheritance- succession may be by testate or by inheritance