Property

1. Introduction:-
The concept of property occupies an important role in
human life because it is virtually impossible to live without the use of
material objects which constitute the subject matter of property.
The word property is derived from the Latin term ‘properietate’ which
means a thing owned. The concept of property and ownership are very
closely related to each other. There can be no property without ownership
and ownership without property.
Generally, laws are divided into two groups, substantive laws and
procedural laws. Broadly speaking, substantive laws lay down the rights
and obligations and the Procedural laws lay down the procedures for their
enforcement.
Substantive civil laws are further divided into 3 categories:-
(a) The Law of Property:- it deals with the proprietary rights in rem, i.e.
rights available against the world at large. E.g. TPA, 1882
(b) The Law of Obligation:- it deals with the proprietary rights in
personam, i.e. rights available against particular persons. E.g. contract
law or a debt.
(c) Law of Status:- it deals with personal or non-proprietary rights
whether in rem or in personam.

2. Meaning and Definitions:-

In a strict sense, property means a persona’s proprietary rights as
opposed to his personal rights. Thus, land, chattels, shares and debts due
to him constitute property.
Salmond observes that the term property may have a variety of
applications but in legal sense it refers to the following:-
(a) All legal rights:-
It includes a person’s legal rights of whatever
description. This ordinarily, implies complete ownership of all things,
material as well as immaterial. Thus, master’s rights over his servant,
man’s right to his own life etc. But this sense is obsolete today.
Hobbes and Blackstone have supported the use of the term
property in this sense.
(b) Proprietary Rights:-
 It includes not all rights, but only a man’s proprietary rights
as opposed to his personal rights. Thus, if I shall my house to you, the
property in it shall pass to you on your paying me the purchase
money.

(c) Corporeal Property:-

In this sense, property includes nothing more than
corporeal things. E.g. right of ownership is a material object such as
house, watch, land etc.
Bentham has supported the term property in this sense.

3. Right to Property in India:-

In India, the right to property was a fundamental right
under Article 19(1)(f) of the Constitution. However, later on it was
deleted from the list of fundamental rights by Constitutional 44 th
Amendment Act, 1978 and inserted as a Constitutional right under Article
300A.
The effect of the constitutional amendment which took away the right to
property from the category of fundamental rights and made it a
constitutional right or (an ordinary legal right) under Article 300A is that
a person can’t invoke the Writ jurisdiction of the Supreme Court under
Article 32 in case of his right to property is violated.
In the case of Judubhai Nanubhai Khachar v. State of Gujarat (1995
SC), the Supreme Court observed:-
“the right to property under Art. 300A is not a basic structure of the
Constitution. It is only a constitutional right. The deprivation of the
property shall be only by authority of law, be it an Act of Parliament or
State Legislature but not be executive order. Deprivation of property is
possible by acquisition for the public purpose”.
The Supreme Court in the case of R.C. Cooper v. Union of India (1970
SC) gave a very comprehensive definition of the property and observed:-
“property means the highest rights a man can have to anything being that
right which one has to lands or 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, such as debts and
 signifies a beneficial right to or a thing considered as having money
value”.

4. Theories of Property:-
Jurists have different views regarding the origin of property. So
generally, they have advanced their views on property by considering the
origin of the property.
(a) Natural Law Theory:-
This theory is based on the principle that one who
possesses the object is the owner of the property.
Supporters of this theory: Grotius, Locke, and Blackstone.
According to this theory, when an ownerless thing is being possessed
by someone then that person becomes the owner of the property. The
reason is that the law recognises the property through its owner.
Grotius says that all the things were originally without an owner and
whoever occupied them became the owner.
According to Blackstone, he who first began to use a thing acquired
therein a kind of interest in that property and that lasted so long as he
was using it and no longer.
Thus, according to this theory occupancy was the foundation of all
property.

(b) Labour Theory:-

The basis of this theory is labour, i.e. whoever
produced the property (object or thing) by his skill, labour or work is
the owner of it because it is the result of hard work.
This theory recognises the role of labour in acquiring property. When
a person acquires property, he is entitled to hold it exclusively.
According to this theory, a thing (res) is the property of the person
who produces it or brings it into existence.
This theory has lost significance in modern time because it has been
shown that there may be many situations when property can be
acquired without labour, e.g. property obtained by inheritance or
under a will.
 The labour theory of property is also sometimes called as the positive
theory.
It was propounded by Spencer who founded it on the fundamental
law of equal freedom of individual. He asserted that property is the
result of labour of an individual and one who has not put any labour to
produce the property can’t claim it.

(c) Metaphysical Theory:-

Propounders: Hegel and Kant.
According to Hegel, “property is the objective manifestation of the
personality of an individual”, meaning thereby that property is the
object on which a person has liberty to direct his will.
Kant also supported Metaphysical theory of property and justified its
existence and need for protection. He observed 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 does
beyond it and considers personal will of the individual more important
in the concept of property.

(d) Historical Theory:-

The basis of this theory was that it believes that property
has its growth in 3 different stages.
1st Stage:- a tendency developed among the people to take things into
natural possession and exercise control over them independently of the
law or the State.
2nd Stage:- the juristic conception of the possession developed which
meant possession in fact as well as possession in law.
3rd Stage:- there was development of ownership which is purely a
legal conception having its origin in law. In this stage, law guarantees
the owner of property, exclusive control and enjoyment of property
owned by him.
Supporter of this theory: Henry Maine. According to him, property
originally belonged not to individuals, not even to isolated families,
but to large societies composed on the particular pattern. It was at a
later stage that collective property disintegrated and individual rights
of property came into existence.
 (e) Psychological Theory:-
The basis of this theory is the belief that property
came into existence on account of the acquisitive tendency of human
beings. Everyone desires to own things and keep them in his
possession and control.
Main supporter: Bentham. According to him, property is altogether
a conception of mind. It is nothing more than an expectation to derive
certain advantages from the object according to one’s capacity.

(f) Functional Theory:-

This theory is based on the belief that property is a social
interest for promoting general security and protection of individual
interests in personality, domestic relations and in subsistence.
Supporter: Roscoe Pound: He asserted that
Interests of personality like security of one’s physical being, privacy,
honour, reputation etc. can be realised only through some access to
property.
Interests in domestic relations are protected when the interests of
parents, children, husband, wives and other dependants are well
safeguarded by support and protection of the family.
Interests of subsistence include right to property, economic
advantages, and freedom of association.

(g) Theory that Property is the creation of State:-

The basis of this theory is that it
believes that the origin of property is to be traced back to the origin of
law and the State. The property came into existence when laws were
framed by the State.
Jenks observed that property and law were born together and would
die together.
Rosseaue observed, property was the creation of the State and it is
nothing but a systematic expression of degrees and forms of control
use and enjoyment of things by persons that are recognised and
protected by law.

5. Kinds of Property:-
 Property is mainly of two kinds:- corporeal property and
incorporeal property. Corporeal property is further divided into two
kinds, movable and immovable. Incorporeal property is further divided
into two kinds, i.e. jura in re aliena and jura in re propria.

Corporeal Property/Tangible Incorporeal Property/Intangible

Property Property
Corporeal property is the right of Incorporeal property is any other
ownership in material things. It is proprietary right in rem.
always visible and tangible so it is also It is also called intangible property
called tangible property. because its existence is neither visible
Ingredients:- nor tangible e.g. right of way, patent,
(a) It is the right of ownership copyright, trademark etc.
(b) Over material things. It is also called intellectual property.
e.g. land, house, ornaments, money
etc. are corporeal property the In Roman law, incorporeal property
existence of which can be felt by the is termed res incorporalis.
sense-organs.
I own a house. House is a material
object. So it is a corporeal property. Incorporeal property (Proprietary
rights are both in relation to material
In Roman law, corporeal property is and immaterial things.) is further
termed res-corporalis. divided into two types:- (a) Jura in
aliena (whether over material
(material things are those physical
Corporeal property can further be objects) or immaterial things (all
divided into two classes:- (a) other things except material things)
immovable property and movable and Jura in propria (over
property and (b) real property and immaterial things).
personal property.
(a) Jura in Aliena:-
(a) Immovable and Movable It means ‘right over other
Property:- property’. They are called as
encumbrances. It includes property,
 Immovable Property:- the ownership of which is in the hand
Immovable property has of one person and it is used by other
been defined in the General Clauses person. It is of following types:-
Act, 1897 under Section 3(26) to
include land, benefits to arise out of Lease:-
land and things attached to the earth or In this, right to possession and
permanently fastened to anything use of land vests in another person. It
attached to the earth. is an encumbrance in which the lessor,
Further, Indian Registration Act 1908 i.e. the owner of the property transfers
under Section 2(6) defines immovable his right of possession to the lessee.
property as – immovable property e.g. If I own a house which is let out to
includes land, buildings, hereditary a tenant for 5 years, I have created a
allowances, right to way, light, ferries, lease and thus I have lost the
or any other benefits to arise out of possession of the house but I am still
land and things attached to the earth or the owner of the house and the tenant,
permanently fastened or anything i.e. the lessee has the possession of it
which is attached to the earth, but not and he can use it so long as the lease
standing timber, growing crops or subsists.
grass.
The Transfer of Property Act, 1872 Servitude:-
under Section 3 defines immovable It means the right to limited
property as – immovable property does use of land but not accompanied by
not include standing timber, growing possession or ownership. There is no
crops or grass. transfer of ownership in servitude as it
So, if take note of the above is in the case of lease. E.g. a right to
definitions of immovable property, the way, a right to passage of light or
immovable property may be defined water across the adjoining land.
properly as follows:- A is the owner of two lands X and Y.
Immovable property includes:- A sells land X to B and B also has a
(a) Land; (means surface of the right of way over land Y to reach a
earth. It includes everything public road. This right of way is
upon the surface of land, under servitude.
the surface of land and also
above the surface of land). Security:-
e.g. soil, rivers and space A security is an encumbrance
(b) Benefits arising out of land;(one vested in a creditor over the property
may get a benefit from a land of his debtor for the purpose of
under some right. A right which securing the recovery of his debt. In
is exercised over a land simple terms, it may be said to be a
(immovable property) and by right to retain possession of a material
the exercise of which a person thing until the debt is paid.
gets certain benefit, would be Security on immovable property is
his immovable property e.g. a called a mortgage.
 right of a tenant to live in the Security on movable property is called
house of his landlord is an a pledge.
immovable property of tenant) e.g. a mortagages his house to B to
and secure a repayment of debt of Rs. 10
(c) Things attached to the earth, lakh to be repaid within 5 years. What
i.e.- it means:-
• Things embedded in the B has a basic right to recover Rs. 10
earth, (those things which lakh from A within 5 years; and
are fixed firmly in the In order to facilitate B in recovering
earth and become part of the debt, an encumbrance is created
the land). E.g houses, over A’s house and he is given the
buildings, walls, etc. right to cause the house to be sold in
• Things attached to what is order to realize the debt;
so embedded in the earth, Here encumbrance is on A’s house is
(for its permanent the security for repayment of debt.
enjoyment like doors,
windows, or shutters of a Trust:-
house are attached to the It is an encumbrance where
walls for the permanent there is an obligation annexed to the
enjoyment of the house). ownership of property i.e. to deal with
• Things rooted in the the property for the benefit of someone
earth,(trees, planats etc.) else.
except:- standing
timber,(the tree whose (b) Right in re propria:-
woods are generally used Right in re propria is
for timber purposes) mainly over material things.
growing crops (crops They are various products of
standing in the field and human skill and labour. These
to be cut in near immaterial forms of property are
future)and grass (it is not as follows:-
immovable because it is
bound to be cut down or Patents:-
be grazed by some The subject matter of a
animal). patent right is an invention such
as the idea of a new process,
Movable Property:- instrument or manufacture. The
A property which is person by whose skill and
not immovable is movable. labour the invention is
The General Clause Act, 1897 defines introduced has the exclusive
movable property as ‘property of every right of patent in it.
description except immovable
property’. Copyright:-
The Registration Act, 1908 under The subject matter of
section 2(9) says movable property the right is the literary
includes standing timber, growing expression of facts or thoughts.
crops, and grass. This right may be available to
The TPA, 1872 under section 3 writers, painters, sculptures,
excludes standing timber, growing photographers, musical and
crops, and grass from the definition of dramatic personnel for their
immovable property. outstanding work. When such a
person does some creative work
Thus, the combined reading of all by using his intellect, skill and
these provisions provide that:- labour, he is entitled to
Movable property is that corporeal exclusive copyright which is an
property which is not immovable immaterial form of property.
property and which can be transferred
from one place to another with the Commercial Goodwill, Trade
human efforts and which includes mark:-
standing timber, growing grass and Another form of
crops. immaterial property is
commercial goodwill, trademark
(b) Real and Personal Property:- and trade names. The goodwill
In English law, the property of commercial business is
has been divided into the real earned through hard work,
and personal property. This integrity, honesty and it can be
division is identical to a great sold and purchased like any
extent with that of immovable or other property.
movable. This division is the
result of the course of legal
development in England.

Real Property:-
The real property
includes all rights over land
recognised by law.

Personal Property:-
It means all other
proprietary rights whether right
in rem or right in personam.

6. Modes of Acquisition of Property:-

 There are 4 modes of acquisition of property, i.e.
(a) Possession;
(b) Prescription;
(c) Agreement; and
(d) Inheritance.

(a) Possession:-
Possession means physical control or acquisition of property by a
person. Ownership of a property is based on the possession of the
property. Possession is the prima facie evidence of ownership. By
possessing a material object, the owner may acquire a legal title to it in
two ways:-
• By Occupation:-
When the claimant takes the possession of a property
which didn’t belong to anyone before (res nullius), the possessor
acquires a good title against the whole world.

• By possessory ownership:-
The thing of which possession is taken may be
already the property of someone else. The title so acquired is good
against the whole world except the true owner who shows a prior
better title in himself.
e.g. If I have possession of house and I have deprived from the
possession by X then I can recover it back. X can’t set up the
defence that I am not the true owner of the house because my
possessory ownership is good against the third persons but not
against the true owner.

(b) By Prescription:-
A property may be acquired by prescription. Prescription may
be defined as the effect of lapse of time in creating and destroying rights.
Prescriptions are of two kinds:-

• Positive or Acquisitive Prescription:-

 Positive prescription means the creation of a
right by the lapse of time. E.g. right of way over the land of
another person is acquired by continuous use of way, undisputedly
and openly for a period prescribed by law. Under the Indian
Easement Act, this period is 20 years.

• Negative or extinctive prescription:-

Negative prescription means destruction or
extinguishment of a right by the lapse of time. E.g. right to sue for
non-payment of debt with in a prescribe period is extinguished
after the lapse of period prescribed by law. Under the Indian
Limitation Act, this period is 3 years.

Negative prescriptions are of 2 kinds:-

➢ Perfect prescription:-
It destroys the principal right itself. E.g. A
dispossesses B of his property for 12 years. B becomes the
owner of property by adverse possession.

➢ Imperfect prescription:-
The principal right remains and the accessory
(relative) right is destroyed. E.g. Time barred debt. The debt
remains even after the lapse of period but the remedy to
recover the debt is barred.

(c) By Agreement:-
Property can also be acquired by an agreement provided that
agreement is enforceable by law. A person having ownership of property
has a right to transfer the ownership of property to another person with or
without consideration.
According to Paton, “an agreement is an expression by two or more
persons communicated to each other, of a common intention to affect the
legal relations between them”.
Thus, it follows that an agreement should fulfil 4 conditions:-
➢ There should be two or more persons;
 ➢ Mutual consent of parties;
➢ It should be communicated; and
➢ There should be common intention to affect the legal
relationship.

(d) By Inheritance:-
Another method of acquisition of property is by inheritance.
When a person dies certain rights survive him and pass on to his heir and
successors. There are other rights which die with him. Those rights which
survive him are called heritable or inheritable rights and those rights
which don’t survive him are called un-inheritable rights.
Proprietary rights are generally inheritable as they possess value and
personal rights are un-inheritable as they constitute merely his status.
However, there are certain exceptions to this general rule. Personal rights
may not die in case of hereditary titles. Proprietary rights may be un-
inheritable in case of a lease for the life of lessee and joint ownership.
Succession of the property of a person may be either testamentary i.e. by
means of a will or non-testamentary i.e. without a will. If the deceased
has made a will, then succession would take place according to the terms
of the will. But if there is not a will, then succession will take place by
operation of law which is known as non-testamentary succession. In case
there are no heirs of the deceased, his property shall go to the State
(Escheat).