INTRODUCTION

The concept of is one of the fundamental juristic concepts common to all

systems of law. This concept has been discussed by most of the writers before
that of possession. However, it is not the right method. The idea of possession
came first in the minds of people and it was later on that the idea of ownership
came into existence.
Ownership is a complex juristic concept which has its origin in the Ancient
Roman Law. In Roman law ownership and possession were respectively termed
as ‘dominium’ and ‘possessio’. The term dominium denotes absolute right to a
thing while possessio implied only physical control over it. They gave more
importance to ownership because in their opinion it is more important to have
absolute right over a thing than to have physical control over it.
In English law the concept of ownership developed much later than possession.
The earlier law gave importance to possession on the misconception that
possession includes within its ownership as well. Holdsworth observed that the
English law accepted the concept of ownership as an absolute right through
gradual the gradual development in the law of possession.
The concept of ownership consists of a number of claims such as liberty, power
and immunity in regard to the thing owned. Ownership is thus a sum-total of
possession, disposition and destruction which includes the right to enjoy
property by the owner. The owner has to side by side abide by the rules and
regulation of the country.

DEFINITION OF OWNERSHIP
Jurists have defined ownership in different ways. All of them accept the right of
ownership as the complete or supreme right that can be exercised over anything.
Hibbert’s definition:
According to Hibbert ownership includes four kinds of rights within itself.
 Right to use a thing
 Right to exclude others from using the thing
 Disposing of the thing
  Right to destroy it
Austin’s definition:
Austin while defining ownership has focused on the three main attributes of
ownership, namely, indefinite user, unrestricted disposition and unlimited
duration. The state can interfere in the ownership. The abolition of Zamindari
system in India, the abolition of privy purses, Nationalization of Bank and
Companies, etc. are some example of the fact that the ownership can be cut
short by the state for a public purpose and its duration is not unlimited. Austin’s
definition has been followed by Holland. He defines ownership as plenary
control over an object. According to him, an owner has three rights on the
subject owned. Planetary control over an object implies complete control
unrestricted by any law or fact. Thus, the criticism levelled against Austin’s
definition would apply to that given by Holland in so far as the implication of
the term “plenary control” goes.

Salmond’s Definition:
According to the Salmond - ownership vests in the complex of rights which he
exercises to the exclusive of all others. For Salmond what constitutes ownership
is a bundle of rights which inhere resides in an individual. Salmond’s definition
thus points out two attributes of ownership:
 Ownership is a relation between a person and right that is vested in him.
 Ownership is incorporeal body or form.
Salmond’s definition does not indicate the content of the ownership. It does not
indicate the right, powers etc. which are implied in the concept of ownership.
Again, it is not wholly correct to say that ownership is a relation between a
person and right that is vested in him. As the most popular and common idea of
ownership is a relationship between a person and a thing.
 CHARACTERISTICS OF
OWNERSHIP
An analysis of the concept of ownership brings us to the conclusion that it has
the following characteristics:
1. Ownership may either be absolute or restricted, that is, it may be
exclusive or limited. Ownership can be limited by agreements, or by
operation of law. When a land or a thing is owned by more than one
owner, they are called co-owners and the right of each co-owner is
limited to the right of other co-owners.
2. The right of ownership can be restricted in times of emergency. For
instance, building or land owned by private individuals can be
requisitioned and used for lodging army personnel during the period of
war. Allotment of accommodation to tenants by the rent controlling
authorities is yet another illustration to show that ownership can be
restricted.
3. An owner is not allowed to use his land or property in a manner that it is
injurious to others. In this sense his right of ownership is not
unrestricted.1
4. Restrictions may also be imposed by law on the owner’s right of disposal
of the thing owned. Thus, any alienation of property made with intent to
defeat or delay the claims of creditors can be set-aside. The power of
disposition can also be limited by the existence of the rights of
encumbrancer such as a mortgagee etc. The owners in India and in most
of the countries are not free to sell their land or property to aliens.
5. The owner has a right to possess the thing which he owns. It is immaterial
whether he has actual possession of it or not. The most common example
is an owner leasing his house to a tenant, where tenant is in actual
possession but the ownership still remains with the landlord. Again, when
a car is hired or stolen the possession remains with the person who has
hired it or stolen it but the ownership still remains with the owner of it.
6. Law does not confer ownership on an unborn child or an insane person
because they are incapable of conceiving the nature and consequences of
their acts.
1
Ryelands v. Fletcher (1868)
 7. Ownership is residuary in character.
8. The right to ownership does not end with the death of the owner but
instead, it is transferred to his heirs.

CLASSIFICATION OF
OWNERSHIP
The right to ownership is generally exclusive, immediate, unconditional and
beneficial. It is, however, not necessary that all these elements must be present
in ownership. Therefore, there may be different kinds, classifications of
ownership depending on the existence or absence of any of these elements in it.
For instance, if a person does not have exclusive right of ownership over a thing
and there are more than one owners of that thing, then each of such owners
would be its co-owner. Likewise, if the ownership is dependent upon a certain
condition, then it would be called conditional ownership.
The different kinds of ownership can be classified under the following heads:
 Corporeal and incorporeal ownership.
 Sale ownership and co-ownership.
 Trust ownership and beneficial ownership.
 Absolute and limited ownership.
 Vested and contingent ownership.
 Legal and equitable ownership
 CORPOREAL AND
INCORPOREAL
OWNERSHIP

Corporeal ownership is the ownership of a material object and incorporeal

ownership is the ownership of a right. Ownership of a house, a table or a
machine is corporeal ownership. Ownership of a copyright, a patent or a
trademark is incorporeal ownership. The distinction between corporeal and
incorporeal ownership is connected with the distinction between corporeal and
incorporeal things. Incorporeal ownership is described as ownership over
tangible things. Corporeal things are those which can be perceived and felt by
the senses and which are intangible. Incorporeal ownership includes ownership
over intellectual object.
The ownership of material objects is called corporeal ownership whereas the
ownership of right is called incorporeal ownership. Thus, the ownership of a
house, table land, machinery, etc. is corporeal ownership, and the ownership of
a copy right, patent, trade-mark, right of way, etc. is incorporeal ownership.
The distinction between corporeal and incorporeal ownership is connected with
the distinction between corporeal and incorporeal things. Incorporeal ownership
is described as ownership over intangible things. Corporeal things are those
which can be perceived and felt by the senses and incorporeal things are those
which cannot be perceived by the things and which are intangible. Incorporeal
ownership includes ownership over intellectual rights and encumbrances.
For instance, if I have some rupees in my pocket, my ownership of the coins is
corporeal, for coins are material objects. If A owes money to me, I own only a
right to recover the money and my ownership is incorporeal.
 SOLE OWNERSHIP AND
CO-OWNERSHIP
When the ownership is vested in a single person, it is called sole ownership.
When it is vested in two or more persons, at the same time, it is called duplicate
ownership, of which co-ownership is a specie. For example, the member of a
partnership firm are co-owners of the partnership property. The usual
consequence of a co-ownership is the existence of reciprocal obligations and
restricted use and enjoyment.
Co-ownership may be of two kinds -i.e.
 Ownership in common
 Joint ownership
In ownership in common, two or more persons hold the land in such a manner
that they have an undivided possession, each being entitled to occupy the whole
in common with others. In the case of joint ownership, on the death of one of
the joint owners, ownership dies with him and survives to the other co-owner by
virtue of survivorship.
According to Salmond, the main difference between these relates to the effect of
death of one of the co-owners. In case of ownership in common, the right of the
deceased passes on his successors like other inheritable right; but in case of a
joint ownership, if one of the two joint-owners dies, his right of ownership also
dies with him “i.e. extinguished” and the survivor becomes the sole owner by
virtue of the right of survivorship.
In the case of Kendall v. Hamilton, it was observed that a joint ownership
occurs when two or more persons are entitled to the same obligation in respect
of a thing. A partnership property is owned by the persons constituting the firm
jointly and trustees are joint owners of the trust property. The essence of the
conception is that there is only one right and one obligation, so that anything
which extinguishes such right or obligation, releases all parties. But in case of
co-ownership, extinction of such rights does not release the remainders.
It is significant to note that tire Hindu law generally recognizes common
ownership and the members of Hindu joint family have a right to acquire the
property of the deceased by succession. Joint ownership is also called tenancy
in-common where the property devolves by the rule of survivorship.
In India, the co-parcenery of Hindu law is also a co-ownership. It includes only
those who acquire by birth an interest in the join or co-parcenery property2,
these being the sons, grandsons and great grandsons of the holder of the joint
property for the time being.
 TRUST OWNERSHIP AND
BENEFICIAL
OWNERSHIP
A trust is a curious instance of duplicate ownership. It is a property owned by
two persons at the same time. One of them is under an obligation to use it for
the benefit of another. The former is trustee having trust ownership whereas the
latter is beneficiary with his beneficial ownership. The trustee is destitute of any
right of beneficial enjoyment of trust property. His ownership is more a matter
of form than of substance; more nominal than real.
In legal theory, a trustee is not a mere agent, but an owner. The property in law
belongs to beneficiary; as between trustee and beneficiary. But as between
trustee and third persons, the fiction prevails and the trustee is clothed with the
rights of his beneficiary. The origin, as stated above, relates to equity. The
common law refused to recognize the interests of a "cestful que trust’’. His right
to property had no legal sanction. A remedy was found for the enforcement of
his rights by the chancery courts.
The chancery courts recognized him as the trust owner. The ownership of the
trustee, recognized by the common law courts and the equity courts, was
destitute of beneficial enjoyment and came to be called trust ownership.
The chief purpose of trusteeship, according to Salmond, is to protect the rights
and interests of persons who for any reason are unable effectively to protect
them for themselves. The chief classes of persons for whose benefit the trusts
are created are four in number:
 Unborn persons.
 Infants, lunatics or other disqualified persons.
 Where large persons are interested in common.
 When persons have conflicting interests in the same property.
In all such cases it is safer to vest the property in trustees so as to safeguard the
interests of the above persons. The interest in trust ownership and also in the
beneficial ownership can be transferred. The trustee can alienate the trust
property even without the consent of the beneficiary provided such an alienation
is in the interest of the beneficiary. The creation of a trust separates the trust
ownership of the property from the beneficial ownership of it and vests them in
different persons. The extinction or revocation of a trust, however, reunites both
these ownership in the same person.

TRUST AND CONTRACTUAL RELATIONS

Salmond distinguishes a trust from a mere contractual obligation though there is
a close resemblance between the two. In the first place, a trust is different from
a mere contractual obligation to deal with one’s property on behalf of someone
else. A trust is more than an obligation to use one’s property for the benefit of
another. The beneficiary has more than a mere personal right against the trustee
to the performance of the obligations of the trust. He is himself an owner of the
property and, therefore, he also owns what the trustee owns in the trust.

TRUST AND AGENCY

In the second place, a trust has to be distinguished from the relation in which the
an agent stands towards the property which he administers on behalf of his
principal. Though in substance, the two relations appear to be similar but they
differ in form and legal consequence. In case of an agency, the property is
vested solely in the principal on whose behalf the agent acts but in trusteeship it
is vested in the trustee as well as in the beneficiary. Both are owners of the trust
property. That apart, a trustee stands on a better footing than an agent so far as
third persons are concerned.2
Trust mainly comes into existence for four classes of persons:
 Persons not yet born.
 Lunatics, infants, or those that are absent for a time.
 Where very large number of persons are having "same interest", a trust
 does always with all complexities, it is a good device of a duplicate
 ownership.
In case of "conflicting interests” it is advisable to create a trust.

2
Salmond: Jurisprudence, (12th Ed) P.256
 ABSOLUTE AND
LIMITED OWNERSHIP
An absolute owner is the one in whom are vested all the rights over a thing to
the exclusion of all. When all the rights of ownership, i.e. possession,
enjoyment and disposal are vested in a person without any restriction, the
ownership is absolute. But when there are restrictions as to user, duration or
disposal, the ownership will be called a limited ownership. For example, prior
to the enactment of the Hindu Succession Act, 1956, a woman had only a
limited ownership over the estate because she held the property only for her life
and after her death; the property passed on to the last heir or last holder of the
property. Another example of limited ownership in English law is life tenancy
when an estate is held only for life.
When all the rights of ownership including the right of possession, enjoyment
and disposal are vested in a person without any restriction except that improved
by law in the society, it is called absolute ownership. This means in other
words, that where all the rights over a thing are centered in a person, no one else
has any rights over that thing except he himself. But this should not be taken to
mean that he may exercise his ownership in accordance with his uncontrolled
fancy.
In modern times, we know very little of absolute ownership but more of limited
ownership, which means that right of ownership is limited by its use, duration
and disposal. An example of limited ownership in English law is life tenancy
when an estate is held for life only.
In India, before 1956, women’s estate was a limited ownership3. It was limited
one in the sense that she could enjoy it for life without power of alienation,
except for legal necessity and on her death the property passed to her husband’s
heir who are known as reversioners.

3
Section 14 of the Hindu Succession Act, 1956
 VESTED AND
CONTINGENT
OWNERSHIP
Ownership may either be vested or contingent. In contingent ownership his tile
is as yet imperfect but it is capable of becoming perfect on the fulfillment of
some conditions. Contingent ownership is based not upon the mere possibility
of future acquisition but upon the present existence of an incomplete title.
For instance, if I am the owner of a house on the condition that I shall pay a
specific amount of money annually to the government, my ownership is
conditional.
The right of a Hindu widow over the property of her husband is conditional on
her continuing to be a widow. Her right finishes if she gets remarried. A
property may be transferred to a person on the condition that he marries a
particular woman. The ownership of the property does not vest in him until he
fulfils that condition.
As in the case of Shashi kantha v. Pramod Chandra AIR 1933, a testator may
leave property to his wife for her life, and on her death to A, if he is then alive
but if A is dead, to B. Here A and B are both owners of the property in question
but their ownership is merely contingent. The ownership of A is conditional on
his surviving the testator’s widow and that of B is conditional on the death of A
during the widow’s life-time.
It must, however, be stated that contingent ownership of a thing is something
more than a simple chance or possibility of becoming an owner. It is more than
a mere “spes acquisitions ". A contingent ownership is based not upon the mere
In vested ownership, the ownership is absolute. Vested owner owns the right
absolutely. In contingent, it is conditional. Contingent owner owns the right
conditionally possibility of future acquisition, but it is based upon the present
existence of an inchoate or incomplete title.
The distinction between vested and contingent interest can be summarized thus:
 a) A vested interest creates an immediate right and it does not depend upon
fulfilment of any condition. But a contingent interest is solely dependent
upon the fulfilment of a condition. If the condition is not fulfilled, the
interest comes to an end.
b) A vested interest is not defeated by the death of the transferee before he
obtains possession. But a contingent interest cannot take effect in the
event of the death of the transferee before the fulfilment of the condition.
c) A vested interest is transferable and heritable, whereas a contingent
interest is not transferable or heritable.
d) A vested interest is an existing immediate right, even though its
enjoyment may be postponed. A contingent interest is not a present right
since it is dependent upon a condition which, if not fulfilled, shall render
the interest null and valid. Thus, for instance, if a Hindu widow adopts a
son but there is an agreement postponing the estate of the son during the
lifetime of the widow, the interest created in favour of the adopted son is
a vested right. It does not depend upon any condition precedent,
therefore, the adopted son has a present proprietary right in the estate,
though the right of possession and enjoyment may be deferred until the
death of the widow.

CONDITION PRECEDENT AND CONDITION SUBSEQUENT

Contingent ownership may either depend on condition precedent or condition
subsequent. A condition precedent is one of the fulfilments of which an
inchoate title is completed. In condition precedent, a person acquires absolutely
what he has acquired absolutely what he has acquired conditionally. A condition
precedent delays the vesting of a right until the happening of an event. A
condition subsequent, on the other hand, is one on the fulfilment of which a title
already completed is extinguished. A person loses absolutely what he has
already lost conditionally. The condition subsequent always follows the vesting
of an interest which is already compete. A condition subsequent destroys a right
on the happening of an event.
 LEGAL AND EQUITABLE
OWNERSHIP
Legal ownership is that which has its origin in the rules of common law and
equitable ownership is that which proceeds from the rules of equity. The rights
recognized and protected by the common law courts were called legal rights and
the rights recognized and protected by the equity courts were called equitable
rights. Thus, the ownership which was recognized as such under the rules of
common law “in the common law” was legal ownership and the ownership
which was recognized only in equity courts on equitable principle was called
equitable ownerships.
The distinction between legal and equitable ownership is closely connected with
the distinction between trust and the beneficial ownership but as has already
been noted, they are not identical. One person may be said to be the legal and
the other the equitable owner of the same thing at the same time. Legal
ownership has its origin in the rules of the common law, whereas equitable
ownership proceeds from equitable ownership proceeds from equitable rules
quite divergent from the common law. The common law courts did not
recognize equitable ownership and denied that equitable owner is an owner at
all.
Legal ownership is that which has its origin in the rules of common law and
equitable ownership is that which proceeds from the rules of equity. In many
cases, equity recognizes ownership where law does not recognize ownership
owing to some legal defect. Legal rights may be enforced in rem but equitable
rights are enforced in personam as equity acts in personam. One person may be
the legal owner and another person the equitable owner of the same thing or
right at the same time.
For information, in English law recognises two forms of ownership—legal and
equitable. In England before the passage of Judicature Acts of 1873, and 1875
there existed two kinds of Courts with two quite distinct jurisdictions. These
two Courts were known as the Common Law Courts and the Equity Courts. The
rights recognised and protected by the Common Law Courts were called legal
or Common Law Rights and the rights enforced by Equity Courts were known
as equitable rights. Legal ownership is, therefore, that ownership which was or
recognised by the rules of Common Law, while equitable ownership is that
which originated from the rules of equity. Equitable ownership was thus not
recognised by the Common Law Courts. The Chancery or Equity Courts
recognised legal ownership as well as the equitable ownership.
There is no distinction between legal and equitable estates in India. Under the
Indian Trusts Act, a trustee is the legal owner of the trust property and the
beneficiary has no direct interest in the trust property itself. However, he has a
right against the trustees to compel them to carry out the provisions of the trust.
 CONCLUSION
Ownership refers to the relation that a person has with an object that he owns. It
is an aggregate of all the rights that he has with regard to the said object. These
rights are in rem, that is, they can be enforced against the whole world and not
just a specific person. The concept of ownership flows with that of possession.
Ownership may be classified as corporeal and incorporeal ownership, sole
ownership and co-ownership, legal and equitable ownership, vested and
contingent ownership, trust and beneficial ownership, co- ownership and joint
ownership and absolute and limited ownership.
It is important to remember that ownership is not merely a bundle of rights,
liberties and powers. It is also carrying with its corresponding burdens in the
nature of duties, liabilities and disabilities which prescribe and regulates how an
owner should utilise his property for the benefit of other individuals or society.
Property owned by a person is liable to execution for the debts incurred by him.
The liability to pay property tax, wealth tax, etc, is also imposed in the social
interest. When control legislation imposes a restriction on the way in which one
may use his property.