MODES OF ACQUISITION OF PROPERTY

FROM JURISPRUDENTIAL STANDPOINT

SWIKRITI KUTAL
SECOND SEMESTER
 Property is defined as a thing that is recognized as having some
value by the society and that which is being held by a person.

What is acquisition?

 Itis the act by which the person procures the property of a

thing.
According to Salmond, there are four modes of acquisition of
property which are of primary importance.

 Possession(कब्जा)

 Prescription(चीरभोग)

 Agreement(सम्झौता)

 Inheritance (अपुताली/उत्तराधिकार)
POSSESSION
 Possession is the state of having, owning or controlling something.
 It is the prima facie evidence of ownership.
 The two elements of possession include: animus possidendi and
corpus possessionis.
o Animus possidendi: an intention to possess something for time being; mental
attitude over things
o Corpus possessionis: the physical control or attitude over entirety,
including the right to use, enjoy, detain and if one wishes the right to destroy or
change the character of the property
* In Common law countries, the intention to possess a thing is a fact.
 When the possession of any property is taken by the claimant
which is not the property of anyone, it is called res nullius in
Roman language, and becomes the property of such claimant.

 This mode of acquisition is called occupatio in Roman language.

 A thing owned by one person and adversely possessed by another

has two owners: absolute/perfect and
relative/imperfect(possessory ownership).
PRESCRIPTION
 Derived from the Roman word- Praescriptio

 Prescription is the mode of acquisition whereby one becomes the

proprietor of a thing on the ground that he has for a long time
undisputedly possessed it as his own.

 Salmond: Property may be defined as the effect of lapse of time in

creating and destroying rights. It is the operation of the time as the
vestitive fact.

 Prescription is defined in The Indian Easement Act, Sec 15 as: “

Acquisition of title by use and time as followed by law.”
 Lapse of time could create a right or destroy a right, hence it has two
aspects:

- Positive or Acquisitive: the creation of right by lapse of time

- Negative or Extinctive: the extinction of right by lapse of time

*For e.g.: The person who possesses a piece of land for an uninterrupted period
of 12 years, has the right to acquire such land as his own and the owner loses his
ownership after the lapse of this period.
 It is a combination of possession and ownership.
-The fact that a thing is possessed is de facto evidence that it is owned de jure
ad the fact that it is not possessed raises a presumption that it is no longer
owned.

The longer a property is possessed by someone, more stronger

evidence is established for him to claim the property over the
owner.
AGREEMENT
 It is the mode of acquiring property in which the title is acquired with
the consent of the previous owner.

 It is a bilateral act and creates right.

 It is enforced by law and requires:

i. two or more than two parties
ii. The agreed interest of the parties
iii. Notice of the parties' compromise
iv. Established legal relations between the parties
 In the form of Proprietary rights in rem, agreement is of two types: assignment
and grant

 Asignment(समनुदेशन):
-Refers to the handover of the existing rights from the present owner to another
-In Roman law, this delivery of possession is referred to as Traditio
-It creates the right of jura in re aliena like leasehold, maybe confirmed by registration
and attestation.

 Grant(अनुदान):
-The creation of new rights by way of encumbrance upon the existing rights of the
grantor.
-Historically, granting something from the king to a subject, an act evidenced by royal
letters and seals.
-At present, grant can only be made by an instrument in writing under seal and is
irrevocable*.
INHERITANCE
 It means the death of the owner raises the right to attain property. For
e.g. sons and daughters are eligible of acquiring property of their parents
after their death.
*Communist law says that one cannot inherit property to their children,
state has to do it.
 When a person dies, the rights of the deceased are divisible into two
classes:
i. Inheritable right: if the right survives its owner eg. Proprietary rights are
inheritable as they possess value
ii. Uninheritable right: if the right does not survive its owner eg. Personal
rights-they possess mere status
*Hereditary titles being personal rights are inheritable.
 The inheritance of property takes place in two ways:
a. Intestate Succession: the inheritance of an ancestor’s property according to
the laws of descent and distribution that are applied when the deceased has
not executed a valid will.
b. Testamentary Succession: succession determined in accordance with the
provisions of a lawful will and the applicable rules of law.
- Limitations of testamentary succession:
* Limitation of time
* Limitation of Quantum of Property
* Limitation of Purpose