PROPERTY

• The concept of property occupies an important place in human life.

• It is virtually impossible to live without the use of material objects which constitute
the subject-matter of property.
• In a limited sense, property covers only a person's proprietary rights as opposed to
his personal rights. s land, chattels, shares and debts due constitute property.
• In yet another sense, property includes only those rights which are proprietary rights
in rem - patent, copyright. A debt or benefit of a contract is not included within the
term 'property' in this sense.
• According Salmond, Property in legal terms refers to –
• All legal rights - lt includes a person's legal rights of whatever description. But
this usage has become obsolete in the present time.
• Proprietary rights - lt includes not all rights. but only a man's proprietary rights
as opposed to his personal rights.
• Corporeal Property - ln this sense, property includes nothing more than
corporeal things, that is, right of ownership in a material object.
• According to Salmond, ownership of corporeal property is general, permanent and
inheritable right of user of a thing.
• Bentham, however, preferred to interpret the term 'property' in its narrowest sense.
According to him, it includes nothing more than corporeal property, i.e., ownership
of material objects alone.
• Austin looks at property in its widest sense and suggests that property denotes the
greatest right of enjoyment known to the law excluding servitudes.
• 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 also rights such as trade-marks, copyrights, patents
and even rights in personam capable of transfer or transmission, such as debts;
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.
• Right to property had been dropped from the category of fundamental rights by
Constitution Forty-fourth (Amendment) Act, 1978 and it has now become an
ordinary legal right under Article 300-A.
• The modern judicial trend to interpret right to property in the light of Art. 21 of the
Constitution dealing with personal liberty. Therefore, a law seeking to deprive a
person of his personal liberties relating to property must not only be 'reasonable' but
must also be 'right, just and fair' and consequently it must provide for just
compensation.

THEORIES OF PROPERTY
• Natural law Theory - s. According to this theory, property was first acquired by
occupation of an ownerless objects as a result of individual labour. Grotius, Kant,
Locke and Blackstone have supported this theory. The natural theory of property has
been criticised by Sir Henry Maine and Bentham. According to Henry Maine, it is
erroneous to think that possession gives rise to title.
 Bentham holds that property has not originated by first occupation of an ownerless
thing, but it is a creation of law. He does not believe in the existence of property
without the existence of law.
• . Labour Theory – Also called as Positive theory, this theory primarily believes that
property can be claimed on the exclusive basis of one's work, which produced that
property. It recognizes the role of labour for adequate rewards. When a person
acquires property, he is entitled to hold it exclusively. A thing (res) is the property of
the person who produces it or brings it into existence. This view has been criticized
by Harold Laski on the ground that labour does not produce property, it is only a
means to earn property. By inheritance, property can be acquired even without
labour.
• Metaphysical Theory - This theory was propounded by Hegel and Kant. Property is
the object on which a person has the liberty to direct his will. Kant says that law of
property does not merely seek to protect possession where there is an actual
physical relation between the possessor and the object, but it goes beyond it and
 considers personal will of the individual more important in the concept of property.
• . Historical Theory - This theory believes that private property has its growth in three
distinct stages. . In the first stage, a tendency developed among people to take things
into natural possession and, exercise control over them independently of the law or
the State. . In the second stage, the juristic conception of possession gradually
developed which meant possession in fact as well as in law. In the third and the last
stage, there was development of ownership which is purely a legal conception having
its origin in law. The law guarantees the owner of property, exclusive control and
enjoyment of property owned by him.
• Henry Maine was the main supporter of the historical theory. He observed that
property originally belonged not to individuals, not even to isolated families, but to
large societies composed on the patriarchal pattern. It was at a later stage that
collective property disintegrated and individual rights of property came into
existence.
• Psychological Theory - Property came into existence on account of the acquisitive
tendency of human beings. Every one desires to own things and keep them in his
possession and control. Bentham has supported this theory and pointed out that
property is altogether a conception of mind. y. Roscoe Pound also supports Bentham.
This theory has been criticized for being Maine's imaginative reconstruction based
on Indian village communities and certain local customs prevailing in ancient Indian
villages and, therefore, it lacks universal application.
• Functional Theory - The functional theory considers property as a social interest for
promoting general security and protection of individual interests in personality,
domestic relations and in subsistence.
• Interests of personality like security of one’s physical being, privacy, honour,
reputation, etc. can be realized only through some access to property. Interests in
domestic relations are protected when the interests of parents, children, husband,
wives and other dependents are well safeguarded by support and protection of the
family.
• Interests of subsistence include right to property, economic advantages, freedom of
association and availability of employment-opportunities.
• Jenks - concept of property should not only be confined to private rights but it should be
considered as a social institution securing maximum interests of the society. No one can be
allowed an unrestricted use of his property to the detriment of others. The functional theory
justifies acquisition of property by law and individual-efforts. Its distribution, however, should
be on equitable basis.
• The roots of property as a social institution are traceable in the ancient Hindu philosophy of
dharma which emphasized on just relations in economic and property matters and not to
encroach upon the right to wealth of others. The joint family system in ancient Indian inspired
members of a family with unity Of mind and heart with the result property right assumed a
functional role of service to the community as a whole.
• Property is the creation of State - Origin Of property is to be traced back to the origin of law
and the State. As per this theory, property came into existence when laws were framed by the
State.
KINDS OF PROPERTY
• Corporeal and Incorporeal - Corporeal property is also called tangible property because it has
a tangible existence in the world. It relates to material things. Incorporeal property is also
called intangible property because its existence is neither visible nor tangible.
• Movable and Immovable Property - All corporeal is either movable or immovable. Immovable
property has been defined in the General Clauses Act, 1897 to include land, benefits to arise
out of land, and thin s attached to the earth, or permanently fastened to anything attached to
the earth. Immovable property includes land, buildings, hereditary allowances, right to way,
light, ferries, fisheries or any other benefits to arise out of land and things attached to the
earth or permanently fastened to anything which is attached to the earth, but not standing
timber, growing crop or grass
• The following are judicially recognised as immovable property—(l) right of way, (2) right tc
collect rent of immovable property, (3) a right of ferry, (4) a mortgagor's right to redeem the
mortgage, (5) interest of a mortgagee in immovable property, (6) right of fishery, (7) right to
collect lac from trees.
• Movable property, on the other hand, may be defined as any corporeal property which is not
immovable property.
• Real and Personal Property - It is mostly the product of the history of the law of
action in England. Real property means all rights over land recognised by law.
Personal property, on the other hand, means all other proprietary rights whether
they are rights in rem or rights in personam. The real property and immovable
property form intersecting circles which are very nearly though not quite coincident.
The distinction between real and personal property is closely connected with but not
identical with the distinction between movable and immovable property
• Rights in re propria in Immaterial Things -
• Patents - The subject-matter of a patent right is an invention such as the idea of
a new process, instrument or manufacture. The person by whose skill or labour
the invention or a new process or manufacture is 'introduced' has the exclusive
right of patent in it. This is granted to the inventor by the State.
• Copyright - The subject-matter of the right is the literary expression of facts or
thought. This right may be available to writers, painters, engravers, sculptures,
photographers, musical and dramatic personnel for their outstanding work.
 • Commercial Goodwill - s. The goodwill of commercial business is a valuable right
acquired by the owner by his labour and skill. He has exclusive right of use and
profit from the business.
• Rights in re aliena - Rights in re aliena are also known as encumbrances. . The main
categories of rights in re aliena or encumbrances are—I) Leases, (2) Servitudes, (3)
Securities, and (4) Trusts.
• . Lease - A lease is that form of encumbrance of property vested in one person
by a right to the possession and use of it vested in another. It is transfer of right
to the possession and use of property, owned by some other person. A lease
may either be for a certain specified period or in perpetuity. The lessee gets
protection against eviction, inheritable tenancy rights, and protection against
exorbitant rent increase by the landlord. The landlord, on his part would lease
out his property with the full protection of law to ensure that he gets 'vacant
and unencumbered, possession of property upon expiry of the agreed term or
otherwise as provided under law.
• The essentials of a lease as per TPA 1882 - e lessor must be a person competent
to contract and must have title or authority; The lessee must also be competent
to contract; The lessee must accept the transfer; Subject-matter of the lease
must be immovable property; Transfer of right of possession to use and enjoy
such property; Duration of the lease may be express, implied or in perpetuity;
Consideration may be in the form of premium, rent or both; In certain cases a
lease must be made through a registered deed.
• Servitude.— consists in a right to the limited use of the place of land without
the possession of it. E.g a right of way, a right to passage of light or water across
the adjoining land, right of fishing etc. Servitudes are of two kinds—Private or
Public. A private servitude is vested in a determinate individual. A public
servitude, on the other hand, is vested in the public at large or some class of
indeterminate individuals. E.g. public right of navigation or fishing
• Security - A security is an encumbrance vested in a creditor over the property of
his debtor for the purpose of securing the recovery of the debt. . Security on
immovable property is called a 'mortgage' and on movable property it is called a
'pledge.
• A mortgage is the transfer of interest in specific immovable property for the
purpose of securing - payment of money advanced by way of loan; an existing
or a future debt; performance of an agreement which may give rise to pecuniary
liability; The instrument by which the transfer is effected is called a mortgage-
deed. They are-—(l) simple mortgage, (2) mortgage by conditional sale, (3)
usufructuary mortgage, (4) English mortgage, (5) equitable mortgage (also
known as mortgage by deposit of title deeds), and (6) anomalous mortgage.
• In simple mortgage, possession of land remains with the mortgagor. In case
mortgagor is given property on condition that he shall have right to have
property sold if loan is not by by due date, it is mortgage by conditional sale. In
usufructuary mortage, the debt is to realised from the income of property by the
Mortgagor. In English mortgage, mortgagor binds himself to deliver possession of
property to mortgagee on condition of sale in case of default but on payment of
debt, sale will become void and property will be transferred back to mortgagor.
Mortgage can also be done by depositing title deeds of property with creditor with
intent of creating security.
• Lien – A lien is the right to hold property of another person as a security for the
performance of an obligation. Lien is right to retain possession of goods and does
not include right of ownership or sale. The finder is said to have a lien upon the
goods so found. Finder of a goods has a right to retain the goods against the
owner till he receives from the owner, the compensation for trouble and
expenses incurred by him.
• Trust - A trust is an encumbrance in which the ownership of property is limited to
deal with it for the benefit of some third person. It arises out of a confidence
reposed in and accepted by the owner. The law relating to trusts is contained in
the Indian Trusts Act, 1882.
 trust has a great social importance in helping settlement of family Property by
protecting the interests of young persons and married women.

Modes of Acquisition of Property

• Possession - The property which belongs to no one, i.e., res nullius , belongs to the
first possessor of it. This mode of acquisition has been called as occupatio in Roman
law. A property which is already in possession of some one else, when acquired by
possession, gives a good title to the possessor against all third persons except the
true owner. Even as against the true owner, the possessor is entitled to maintain his
possession until evicted in due course by law.
• Prescription - Prescription may be defined as the effect of lapse of time in the
creation and extinction of a legal right. It has two aspects, namely, positive or
acquisitive and negative or extinctive. . The creation of a right by the lapse of time is
called the positive or acquisitive prescription whereas the extinction of a right by the
lapse of time is called extinctive or negative prescription.
• The basis of prescription is to be found in the presumption of coincidence of
possession and ownership.
• According to Salmond, negative or extinctive prescription is of two kinds, namely, (l)
Perfect, and (2) Imperfect. Perfect negative prescription results into destruction of
principal right itself whereas imperfect prescription destroys only an accessory right
of action. . The destruction of ownership of land by adversary possession for
uninterrupted period of twelve years is an illustration of perfect negative
prescription. The extinction of the right of recovery of debt after the expiry of three
years from the date it first became due is an example of imperfect negative
prescription.
• Agreement.— Property may also be acquired by agreement which is enforceable by
law. an agreement has four essential elements - , there should be two or more
parties to an agreement; mutual consent; should be communicated; common
inention to affect the legal relationship. An assignment transfers the existing rights
from one owner to another.
• Under a grant, new rights are created by way of encumbrance upon the existing
rights of the grantor, e.g., grant of a lease of land is the creation of agreement
between grantor and grantee.
• Agreements may either be formal or informal. Formal agreements are written and
require the formality of registration and attestation of the deed to be completed
before they are effective. Informal agreements are verbal and do not require any
formality.
• Also, no one can transfer a better title than what he himself possesses.
• Inheritance - The acquisition of property by living persons is possible through
possession, prescription and agreement whereas property can be acquired by
inheritance by the heirs and successors of the deceased. The right of inheritance is
founded on the assumption that property serves as a best means of social security.
• A right is inheritable if it survives its owner and it is uninheritable if it dies with him. .
Proprietary rights are inheritable and most personal rights are uninheritable
• The rights which a dead man leaves behind him vest in his representatives or
successors. But he has also to bear the liability of the deceased. This liability is,
however, limited to the amount of property which he has acquired from the
deceased.
• Succession to the property of a person may either be testate or it may be intestate. If
the deceased had made a will, succession would take place according to the terms to
the will. But if there is no will, then succession will take place by the operation of
law.
• The power of a person to dispose of his property by testament (will) is subject to the
some limitations.
• No person can be allowed to vest his property in perpetuity, that is, the testator
cannot control the devolution of the estate in property for an indefinite period. In
Indian law, the property cannot be vested by the testator beyond the period of his
life time plus eighteen years thereafter (Rule against perpetuity – Sec. 14 TPA, 1882).
• ln most legal systems, a testator cannot dispose of his entire estate, instead he has to
as wife, children etc.
• The rule under Mohammadan law that no Muslim can bequeath more than one-
third of the surplus of the estate after providing for his funeral expenses and
payment of debt unless the heir's consent to the same is based on this limitation.
Hindu law permits a person only disposition of his self-acquired property and the
ancestral property shall devolve in the heirs according to the rules of Hindu Succession
Act, 1956.
Also, a testator cannot validly leave any direction in the will which is against public
interest, nor can he withdraw the property from the use of the living persons. he
cannot leave a direction in his will that his money be buried in the grave along with his
dead body or thrown into the sea.