CONCEPT OF

PROPERTY
INTRODUCTION:-

The term ‘property’ that is often used to describe object owned by a person.
Property can also be described as something whose right to ownership can be
expanded. Therefore, a property can include a living as well as a non-living
thing.
 Meaning of property:-
The term property is not a term belonging to art. It has been used in a various of
senses. The property includes all the legal rights of a person,no matter what his
description is.
❏ According to Blackstone: “The inferior hath no kind of property in the
company,care or assistance of the superior,as the superior is held to have
those of the inferior”.
❏ According to Locke: “Every man has a property in his person.EVery
individual has the right to preserve his property, that is,his wife,liberty and
estate.
Meaning of property:

In a narrower sense, the property includes the proprietary rights of a

person and not his rights. Proprietary rights constitute his estate or
property,whereas,personal rights includes his status or personal
condition.
The law of property is the law of proprietary rights in rem.Going by this
interpretation,a freehold or leasehold estate or copyright also include the
meaning of property.
 Meaning of property

In the narrowest possible sense, the property includes nothing more than
corporeal property or the right of ownership for material things.
Austin believed that property can have different meaning at different times. It
could be used to denote the greatest rights of enjoyment known to law
excluding servitydes or it could also be life interests or something even
servitudes. It could be the whole set of assets owned by a person
includingnboth rights in-rem and rights in personam.
 Kinds of property

CORPOREAL PROPERTY

It relates to material things. The right of ownership of a material thing is

the general,permanent and inheritable right of the user of the property or
thing. Further corporeal property divided into two categories-
❏ MOVABLE- It simply includes all corporeal property which is not
immovable. Example chattels,vehicles,books,jewellery, etc.
 Corporeal property
Immovable property
According to salmond,an immovable piece of land has many elements
attached to it. It is inclusive of the ground beneath the surface down to the
centre of the world.Interestingly, it also includes the column of space above
the surface ad infinitum.
Real and personal property: Real property means all rights over land
recognized by law. However, personal property menas all other proprietary
rights whether rights in rem or rights in personam.
 Incorporeal property
It includes all those valuable interests which can be protected by law. The
need to recognise and protect incorporeal property has been recognised in
recent times. The scope of the term property has widened and it has come
to include virtual property as well. In modern times, a large share of a
country’s property can be found in the form of shares of a company. Further
incorporeal property is of two kinds-
Incorporeal property
RIGHTS IN RE PROPRIA: the right of ownership in one’s property is not
exercised over material objects. Generally, the law of property deals with
material objects. However there are exceptions to this in the form of non-
material things produced by human skills and labours.
Holland: “with such intangible property should probably also be classified
those royal privileges subsisting in the hands of a subject which are knwn in
English law as franchises, such as rights to habe a fair or market, a forst or
free fishery”.
Incorporeal property

Rights in aliena:The right in rem over areas of property owned by

another person. Such right run parallel to res encumbered. They
bind the res in whosoever hands it may pass. These prevent the
owner from exercising some definite rights concernining his proerty.
The main kinds of encumbrances are lease, servitude,security and
trust.
Modes of acquisition of property

possession :It is the objective realization of ownership. The possission

of a material object is a title to its ownership. The de-facto relation
between person and thing brings the de-jure relation along with it. He
who claim a piece of land as his own and is also in possession of the
same makes it good in law also by way of ownership.
Prescription

According to salmond,”Prescription may be defined as the effect of lapse of

time creating and destroying rights;it is the operation of time as a versatile
effect’.Prescription are of two types-positive and negative prescription.
Prescription is not limited to right rem. It is found within the sphere of
obligations of property. Positive prescription is possible only in the case of
rights which admit of possession. Most rights of this nature are right in rem.
Rights in personam are commonly extinguished by their exercise and cannot
be possessed or acquired by prescription.
 Prescription

Negative prescription is common to the law of property and obligations. Most

obligations are destroyed by the lapse of time. Their ownership cannot be
accompanied by their possession/
Agreement
According to paton, an agreement is an expression by two or more person
communicated to each other of a common intention to affect the legal relations
between them. IT is an outcome of a bilateral act. It may be in the nature of an
assignment or a grant. An assignment transfers existing rights from one owner
to another. A grant connotes the assurance or transfer of the ownership of the
property as distinguished from the delivery of property.
There are some agreements which require attestation and registration of the
deed. There is a general rule that the title of the transferee by agreement cannot
be better than that of the transferor.
Agreement
Two general exception to the rule:
1. The transferee gets a good title from a trustee who fraudulently sells the
trust the property, provided the transferee purchases it for value and
without notice of the equitable claim of the beneficiary.
2. Where the possession of a thing is with one man and the ownership of it is
in another the processor can transfer in certain cases a better title on the
assumption that the possessor is the owner, provided the transferee
obtains it in the good faith believing him to be the owner.
Inheritance
Another way of acquiring property is by means of inheritance. When a person
dies, certain rights survive him and pass on to his heirs and successors. The
rights which are survived by a person are called inheritable rights. Proprietary
rights are inheritable rights.Whereas, generally personal rights are not
heritable but there are also exceptions to this general rule.
Succession to the property of a person may be either testate or intestate. It
may be by means of a will or without a will. If there is a will, succession takes
place by operation of law. If there are no heirs at all, the property goes to the
state.
Theories of property
Natural theory
According to this theory, the property is based on the principle of natural reason
derived from the nature of things. The property was acquired by the occupation of an
ownerless object and as a result of individual labour. It was with time and evolution
of humankind that the need of ownership and possession arose. The theory of
occupancy thus became the ground and foundation of all property.
Theory of property
Metaphysical theory:
This theory was propounded by kant and Hegel. A particular thing rightfully
belongs to the owner when he is so connected with it that anyone who uses it
without his consent does an injury to him. But to get a better justification on
the law of property we must go beyond cases of possession where there is an
actual physical relation to the object and interference is aggression upon
personality. In simpler words, properties the object on which a person has the
liberty to direct his will.
Theories of property:
Historical theory
According to this theory,private property had slow and steady growth. It has
grown out of a collective group or joint property.There were many stages in the
growth of the private property. The first stage of natural possession existed
independently of the law. The second stage of juristic possession was a
conception of both fact and law. The last stage in the development cycle was
that of the ownership.
Theories of property
Positive theory
The founder of this theory was Spencer. He based this theory on the
fundamental law of equal freedom. According to him, property was a result of
individual labour. No man has any moral right to property which he has not
acquired by his personal labour and effort.
Psychological theory:
According to this theory, a property came into existence from the acquistive
instinct of man. Every individual desire to own things and that brings into
existence property . It hasbeen rightly said by Bentham,
Theories of property
Psychological theory
“Property is nothing more than the basis of a certain expectation of deriving
hereafter certain advantages by a thing of a reason”.
Sociological theory
According to this theory,property should not be considered in terms of private
rights but should be considered in terms of social functions. It is an institution
which secures the maximum interest.
conclusion
Property is a source of power, a source of labour and most importantly it is
regarded as the best and the safest form of investment in the modern time. The
value of a property is always appreciated. Knowing the importance of property,
it becomes all the more important to know the historical legal background
i.e jurisprudence surrounding the same. It is belived that law and property were
born together and it is a prophecy that the same would die together. These two
aspects are intertwinded mostly intriguingly. Before the law, property did not
exist; take away the laws and property will be no more.