| 155

1 8 o neogetb sdi oo
CHAPTER 18
OWNERSHIP
The concept of ownership denotes the relation between a person and an
object forming the subject-matter of ownership. It consists of bundle of rights
which are rights in rem (available against the whole world) and not against
specifie persons only. According to Keeton, the right of ownership is a
conception clearly easy to understand but difficultito define with exactitude.
There are two main theories with regard to the idea of ownership. The great
exponents of the two views are Austin and Salmond. According to Austin,
ONnershipis arelation, which subsists between the person anda thing,hich
isarelation
the objectbetween
of ownership. According
a person to the
and a right thatview of Salmond,
is vested ownership is
in him.enen
HIP:bsic
ATISTINS DEFINITION OF OWNERSHIP:
Austin defines ownership as a right over a determinate thing,
indefinite in the point of user, unrestricted in point of disposition
and unlimited in point of duration", If we analyse this definition, we
will find that it consists of the following ingredients:
1. INDERNITE IN POINT OF USER: 1on a citesto
It is one of the elements of ownership that tthe
bss bonwo idgir
owner can use the
io thing in as many ways as he pleases. It means that there is no
restriction on the use of the thing, which is the object of ownership.
For example, the owner of apiece of land may use it for the
construction of a house or he may use it for growing crops or he may
convert it into a park. However various restrictions have been placed
on the indefinite use of the property bythe owner by every civilized
state. Every owner must use his property in such a way SO as not to
injure or interfere with the rights of other persons. No land-owner
can so use his land as to create a nuisance to his neighbours. Officers
of justice have right to enter the premises of anyone for the execution
of legal processes. The right of using the property may be restricted by
agreement.
2.
UNRESTRICTED IN POINT OF DISPOSITION:
The second characteristic of ownership is that, the owner has
unrestricted power to dispose of his property. In other words, the own
has power to dispose of his property in the manner he likes. He mav
sell it. He may exchange it. He may give it in donation, However, in
the modern time, some restrictions are generally imposed by the State
 theory and elements of law
156 | JURISPRUDENCE- legal

Such limitations are the reslt s

on the disposal of the property. disposal of the property. In Franco
government policy in regard to the right of alienation in the interest
on the
certain restrictions are imposedGermany,
family. In the case of transfer of division of small
of the
farms is not allowed.
DURATION:
3" UNLIMITED IN POINT OF
the permanence of the right oe
The third ingredient of ownership is has got the power to enjoy it tl
ownership. denotes that
the object ofItownership the owner
exists. The right of ownership is extinguished
The property is inherited by tha
with the destruction of the thing.
his death.
SuccesSors of the owner after
OWNERSHIP,
CRITICISM AUSTIN'SVIEW REGARDING
on various grounds:
Austin's view of ownership has been criticized
pointed out that ownership is not a right but a bundle of rights. I:
1.
is is
It the aggregate or sum total of the rights of user and enjoyment.
to another person
Even if somneof the rights are removed and givenowner.
is still the For example
0L the person in whomn vests the residue the same to another person.
9W the owner of a piece of land may mortgage the owner.ibt
Although he has transferred a right,he is still
the
2. Ownership is not merely a right but also arelationship between
right owned and the person owning it.atrest9lo orit
Many limitations
The idea of theright of indefinite user is also criticized.property
3
can be put upon that user. The owner must use his in such a
others. He may have to
dt Way as not to intertere with the rights of the property.
ee pay taxes to the State in connection with the
HOLLAND'S VIEW OF OWNERSHIP:
Holland defined ownership as a plenarycontrol over an object". He
says that the owner has three rights in the subject-matter of ownership:
1. right of possessionot s5mpeluts sisono ofen busl eit soy e 8
2. right of enjoymentoeoTg st T6lH o1 idgir svs 504tau lo
3. right of disposition
However, he says that the right to possession is lost when the property 5
mortgaged or let out to some other person.
HIBBERT'S VIEW:
According to Hibbert, ownership is a comprehensive right inin rem .Itisa
bundle of four rights:tsys vaH
1. satscoxo yoL S
Using the thingISg S Anoioistaes o08
 Ownership | 157

Excluding others from using it,

3 Disposing of the thing,
4" Destroying it.
pIAS' DEFINITION OF
pias has
an enumerable
OWNERSHIP:
defined ownership as" an
of claims, interest recognisedI by law, consistíng of
regard to the number
thing owned". Thusprivileges, powers and immuníties with
ingredients of Ownership: according to Dias
following are the
Ownership is a
Owner has got kind of interest recognised by law. It means that the
1.

protected by the interest in the property owned and that interest is

rules of
power which is exercisedlaw, In other words the
by the owner on the interest stands for the
2 The Ownership consists of a subject of ownership.
privileges, powers and
bundle of rights in the form of claims,
the owner exercises immunities bestowed upon the owner. It means,
various kinds of control over the object
other words, the owner has right to use and dispose of owned. In
various ways. the property in
The object or the thing, which is
matter of ownership. It means that owned by the owner, is the subject
which ownership is exercised. there must be some object upon
SALMOND'S VIEW OF OWNERSHIP: o,9d OT9i00o2
According to Salmnond, ownership denotes the
person and an object fornming the relation between a
He defines ownership as the subject-matter of his ownership".
relation between aperson and anyight
that is vested in him". Ownership
consists of a complex of rights, all of
which are rights in rem, being good against
against a specific person. According to him the whole world and not merely
0wnership vests in the owner a
complex of rights' by virtue of which the owner
subject of ownership to the exclusion of others. exercises his rights over the
Thus according to Salmon's definition Ownership is a
person and a right. It implies that Ownership is relation between a
OWn a copyright or right of way in the same way asincorporeal. A man may
In all these cases he owns only aright and not a he owns a piece of land.
land means simply to own a particular kind right thing. To oWn a piece of
in respect of that land.
NEW APPROACHES REGARDING THE
CONCEPT OF
OWNERSHIP:
It will not be out of place to point out the
new approaches made to the
Concept of ownership in recent years.
 158 JORISPRUDENCE-legal theory and elements o e

RENNER'S THEORY: this

a very valuablecontribution in
note-worthy jurist who made
Ais Renner from Austria. He has analyzed the concept of ownership from
his (Marxist) premises. He says thatin medieval times ownership consisted
respect
of the relation between man and things. After Industrial revolution,
ownership has become a relation between a man and a complex aggregate
'capital', In modern times, the ownership of capital virtat
of things termed (labourers), although in legal theory it is
means the power over men thing.le
taken to be a relation between aperson and a
Renner further says thatthe capitalist by exercising power over man usurps
Therefore, he suggests thatthe ownership in modern times
a public power. branch of public law, and the State must interfen
should be treated as a
communist countries the ownership has become a part of publi
with it. In is
and in other countries also there is a general move towards it. There
law,
possibility that in future there might not be any private ownership and
a modified.
ownership would be considerably
that stage the conception of OWNERSHIP:
CHARACTERISTICS AND INCIDENTS OF
will have the right to possess the thing which he owns, He
1. The owner possession of the thing in certain
may not. necessarily have
X has possession but
oCLcircumstances. If Ys scooter is stolen by X, thenpossession. IfY lends
immediate right to
Y remains the owner with an neither possession nor an immediate
his scooter on hire to Z, X has
possess. He is still the owner of the Scooter because he retains
right to a right to repossess it on
& areversionary interest in the scooter, that is,
the termination of the period of hire. orwo a9niob
owner normally has a right to use and enjoy the thing which he
2. The is, right to decide how it shall
owns. He has the right to manage, that
be used and the right to income from it.oA os
alienate the thing, A
3. The owner has the right to consume, destroy or the object cannot
non-owner, although he has the possession of
normally transfer the rights of ownership to another person.
But certan
4. Generally owner has absolute right over the thing owned.
law or by
b restrictions on the right of ownership may be imposedonbythe OWners
some agreement. Certain restrictions mmay beimposed saya
of national emergency. Some property,
of property in times andany
building or a house may be requisitioned by the Government warand
compensation may be paid. It is not uncommon that during w
of army
other emergency, palatial buildings are required for the use
or for other emergent purposes.
 DREObd LgstAOIOwnership | 159
The interesttof the
5 of the Owner s owner in the thing owmed lexists for ever. The interest
perpetual because the property owned can pass on to
the successors of the
OWner.
The owner has to
6. pay taxes to the
ownership is
subject to State and the exercise of his right or
property. paying taxes and other dues chargeable on the
Infants and
7
they can lunatics are under a disability in the eye of law because
neitherunderstandare,the true nature of their acts nor the
R consequences thereof,
boll of the right of They therefore debarred from the exercise
ownership over property and their guardian or next
friend act for them.
The main
8
subject-matter
as land and of ownership
chattels. But the wealth ofconsists
a
s of material objects such
his land and goods but also such man may not only consist OI
debts due to him, shares in things as interest in the land of others,
the subject matter of companies, patents, copyrights, etc. Thus
the rights in ownership is not only material objects but alsO
them.itlasotreo
MODES OF ACQUISITION OF
ooth noitieupos

In moderntimes, the modes OWNERSHIP:

can be discussed as follóws: ofacquisition of ownershipwhich are recognised
Acquisition of ownership may be- (A) ORIGINAL erUgaVITAVILRA (E)
or (B)
DERIVATIVE
(A) ORIGINAL
ACQUISITION OF OWNERSHIP:
It takes place when ownership is
acquired by some personal act on the part
of the acquirer. It is of three kinds-(1) Absolute (2) Extinctive and (3)
Accessory
(1) ABSOLUTE ACQUISITION:
Where a thing is acquired which had no previous owner, it is
called original acquisition. It is done in two ways:
(a) oCCUPATIO:
ta LOai t For a thing of which there is no owner, as a bird in the air
atiao or fish in the water, the general rule of Roman law was
o that the first striker of an arrow to a prey becomes the
lla owner. The rules of occupation applied also to treasure
yse troves when found by a person. Regarding treasure trove
ooo the law is that in England it belongs to Crown,In India it
obi is governed by Indian Treasure Trove Act, 1878.
 JORISPRUDENCE.legal theory and elements of law

(b) SPECIFICATIO:9rliaotwo ar to
If a person by working up on a material
another made it intosomething new, he became belotngihe nownerg to
of the new product. For example, if assculptor made a
from the clay belonging toanother,
are no
of the Statute. There such
he became
rules in he
modern eastaownÇrtue
(2) EXTINCTIVE ACQUISITION: otaosl
times,
When ownership is acquired by a person by some act on his part
which extinguishes the title of the previous owner, it is
extinctive acquisition. For example acquisition of ownershicalpled
prescription is extinctive acquisition. Adverse possession byby
ateefoorc person of the land of another for 12 years
1aletoo Ownership of the previous owner and the person
extiinguishes thea
tooto adverse possession becomes theowner. having such
(3) ACCESSORY ACQUISITION: o 9118a toold
In accessory acquisition the ownership of a property
is acquired
which comes by way of accession to some existing property. Fruits
of trees already owned, produce of land or animals belong to the
boaiggo owner of the tree, land or animal respectively.a
(B) DERIVATIVE ACQUISITION:
aVIANISKICL ED30.LAOHQ: oblatyo
When ownership is derived from a previous owner, it is called
'derivative acquisition'. It includes the acquisition of ownership by
inheritance, intestate and testamentary, and transfer inter-vivos-sale.
gift etc. In every legal system there are prescribed rules which regulate
and govern this mode of acquisition of ownership. The law of succession
and the law of transfer of property are the rules of this kind.
KINDS OF OWNERSHIP:
Ownership may be classified into following categories:- bollso
SOLE AND CO-0WNERSHIP:
Where the right of ownership is vested in one person only, it is known3
sole ownership. Generally, a thing is owned by one person
time. But, duplicate ownership is also possible. When two orexclusively
more persO
a4
at the same time have the Ownership of the same thing, it is called co-
Ownership. In other words, when athing is jointly owned by several perso
it is known as co-ownership. Partnership is an example of co-ownership.
Co-ownership is dissolved into sole-ownership by way of partition.
 Ownership | 161
coownership may be
divided
into two
OWNERSHIP IN COMMON:
1
In this kind of
classes:3
succesSOrs
ownership
like any other the right of dead thismankinddescends to his
an undivided persons holdintheheritable
two Or more
land right. Ina manner that
in
of ownership,
commOn with possessi
others. on, each being ent itled to occupy thetheywholhave
such e in
JOINT OWNERSHIP: aldatiups nd
In case ofjoint Ee
dies with him
icht of his
ownership, on the
and the survivor th
death of
of the i
the joint owners, ownership
CORPOREAL survivorship.iere becomes the sole oWner by virtue of
AND
Corporeal
1ownership is INCORPOREAL
the ownership of OWNERSHIP:
pencil, house material objects such aschair, table
building, etc. It is
can be seen and the ownership of the tangible things, which
ltouched.
movable or immovable. This kindof ownership
nership iis related to corporeal things,
Incorporeal the idex letsnwo lsiotonod ai qiclensrwo in
ownership
neither be seen nor
is the
ownership of intangible things which can
touched, such as the Ownership of a right in respect of
iebt, patent, goodwill,
incorporeal ownership iscopyright, trademark,
the ownership etc.
of all kindsAccording to Salmond,
of rights.rs9woaint
TRSTED AND CONTINGENT Isgt bne fsitnstedue
a. It is vested ownership when theOWNERSHIP:
contingent owner's title is already perfect and it is
ownership when his
sos of becoming perfect on the title is of as yet imperfect, but is capable
fulfilment some condition,
b. In the vested ownership, the
contingent ownership, it is merelyownership is absolute while in the
testator may leave property to his wifeconditional. For example, X, a
for her life and on her death to
dZifhe is alive, but if Z is then dead, to Y. Z and Yboth are owners of
o the property in question but their ownership is merely
ol ownership of Z is conditional on his surviving the testator'scontingent. The
noi while that of Y is conditional on the death of X in the widow
time.
widow's life
LEGAL AND EQUITABLE OWNERSHIP:L SATUIc8
Legal and equitable ownership are closely connected with each other but
te not identical. One person may be the legal owner and another the
qutable owner of the same thing or the same right at the same time. Legal
OWnership is that which proceeds from the rule of equity. The courtsof
Ommon law in England refused to recognise equitable ownership and denied
 elements of law
theory and
162 | JURISPRUDENCE - legal aa
at all. The court of chancery
equitable owner was an ownercourt, the legal owner wasa recognised
tnat the attitude. In this treated as
a very different
owner, but the former was trustee
for the
less thanthe equitable
latter. ebe Y, X remains the legal owner of it.
assigned by X to that whenever
Where a debt is orally it. It is true
equitable owner ofestate is in another, there is a the legal
but Y becomes the
in one man and the equitable
equitable owner, trust.
if there is one.
A
estate is
is always a trusteefor the
legal owner OWNERSHIP:
BENEFICIAL
TRUST AND
institution of trust. A Trust is a very
based on the allows for the
This classification is duplicateownership which enjoyment. Trust
separation
of
significant examplemanagement andthe rights of
time. The
property
of the powers of
by two persons
at the same
them is under an
reelationship
is that which is oWned
is such that one of obligation
called the tre
to
between the two Owners benefit of the other. The former isthe
the
use owmership for trust ownership. Thelatter is
called beneficiaryand
and his ownership is ownership.
his ownership is beneficial beneficial enjoyment of the trust
deprived of any right of form rather than of
The trustee is ownership, therefore, is a matter of
other words the
property. His nominal rather than real. In
substance. His ownership is nominal while the beneficial ownership js
trust-ownership is formal and TaT0D CHA aaTar
substantial and real. HSIaAWO
rights and interests ofthe persons who
The purpose ofTrustisthemto protect the The law vests those rights and
for themselves.
are unable to protect for safe custody as they are considered to be capable
interests in the trustees placed under a legal obligation to use them for
guarding them. They are
of
the beneficiary to whom they actually belong.
the benefit of
beneficial ownership are independent to each other in
Trust-ownership and Either of them may be transferred but the
their destination and disposition. another who thereupot
trustee may assign to
other remains unaffected. The while the beneficiary remains the same. Tne
becomes a trustee in his place, the trust-ownership remains
wher
beneficiary may assign to another, while
it was.
OWNERSHIP:EEUOH A
ABSOLUTE AND LIMITED
rights of ownership, that enjoyby
is possession,imposed
When in person
a all the
restriction except which is Ownership.
and dísposal are vested without anyownership
law in the interest of society, his
is called absolute Ownership
But when there are limitations on user, or duration or
disposal, the
is limited ownership.
 Ownership | 163
An example oflimited
'imited
held only
estate is
ownership, for ownership,
life. In
She held such Hindu
in English law
law is life tenancy when an
imited power of before 1956, Women's estate was
disposal.
the last holder of the
eproperty.
After property
her only for her life and had only a
death the property went to the heirs of
pISTINCTIONS
The right of
BETWEEN OWNERSHIP AND POSSESSION:
ownership is superior and comprehensive because it includes
the right of possession.
each other and they are Generally, ownership and possession coincide with
eery separated due to
akin to each other and some specific reasons. They are
itself into possess1on and are of same species, Ownership tends to realise
cannot be divorced
from possession
the
tends to become ownership. The one
Iong time ripens into other for a very long time. Possession fora
long time is witheredownership and ownership without
away. ( B.N Tripatihi, An possession for a
jurisprudence and legal introduction to
between ownership and theory) However there are following distinctíons
possession:
1
Historically speaking, the idea of possession came first in the minds of
the people and it was later that the idea of
existence. ownership came into
2 Possession is the objective realization of ownership. Possession is the
external form in which ownership manifests itself.
3 According to Salmond, Possession is in fact what ownership is in right.
4. Possession is the de facto exercise of claim while ownership is the de
jure recognition of the claim.
5 Possession is the guarantee of fact while Ownership is the guarantee
of law.
6. There are some rights which can be owned and not possessed. For
example a copyright can beowned but it cannot be possessed. Acreditor
oWns a debt but he cannot possess it.
7. Right in rem can be both owned and possessed but a right in personam
can be owned but it cannot be possessed.
8. Right of Ownership is superior and comprehensive because it incudes
the right of possession. Right of possession does not include right of
ownership.
9. Athing is owned by me, when my claim to it is maintained by the wil
of the State as expressed in the law. It is possessed by me, when my
claim to it is maintained by my own self-assertive will.
 law
04 JURISPRUDENCE. legal theory andelements of

CONCLUSION:
the concept of ownership has
With the advancement of the society,
drastic changes. Duringthe era of individualism, the emphasis was laid
undergone
the rights of the individual, which was reflected in the form of"Laissez faire
It means that during this period the owner had absolute right in the thing
owned. Subsequently, during the period of collectivism, the emphasis was
shifted from individual to the society. However, in the modern time, no
right is absolute. Almost tevery right is subject to limitations and restrictions
take awav
imposed by the government, which is empowered to
individual's property for the public purposes. Consequently, in the mode
time,emphasis is on the social welfare and the concept of private ownershi
is withering away.

atiok