JURISPRUDENCE
PROJECT ON OWNERSHIP
& POSSESSION
Name - Karanjeet sayal
Class - SYLLB
Roll no - 127
Introduction:
Ownership is a complex legal concept with its origins in Ancient Roman Law. In Roman law,
the terms dominium and possessio were used to distinguish ownership from possession.
Dominium referred to the absolute right to a thing, while possessio only indicated physical
control over it. The Romans prioritized ownership, believing that having full legal rights over
something was more significant than simply having control over it.
In English law, the concept of ownership developed later, with early legal thought focusing
primarily on possession, assuming that possession inherently included ownership. Over time,
English law evolved to recognize ownership as a complete, absolute right. As legal scholar
Holdsworth pointed out, this development occurred through the gradual evolution of the law
of possession.
Today, ownership includes various claims, such as the liberty, power, and immunity over the
property owned. It represents a total bundle of rights, allowing the owner not only to possess
the property but also to control and manage it, including the rights to use, transfer, and even
destroy it.
Definitions of Ownership:
Different jurists have provided varying definitions of ownership, but they all agree that it
represents the supreme right over a thing. According to Hibbert, ownership includes four
primary rights:
1. Right to Use: The owner has the right to utilize or enjoy the property in any way they
choose.
2. Right to Exclude: The owner has the authority to prevent others from using the
property.
3. Right to Dispose: The owner can sell, transfer, or relinquish control of the property.
4. Right to Destroy: The owner can choose to destroy or eliminate the property if
desired.
Together, these rights form the essence of ownership, giving the owner full control over the
property in every aspect
Austin’s Definition:
Austin defines ownership by emphasizing three main characteristics: indefinite use,
unrestricted disposition, and unlimited duration. He highlights that ownership involves the
right to use something without a defined limit, the freedom to dispose of it in any way, and
the fact that ownership continues indefinitely unless otherwise terminated.
Salmond’s Definition:
Salmond defines ownership as a complex bundle of rights that are exercised exclusively by
an individual. According to Salmond, ownership is not just a right but a collection of rights
that belong to one person. His definition identifies two key attributes of ownership:
1. Ownership is a relationship between a person and the rights vested in them.
2. Ownership is an incorporeal (non-physical) right or form.
Ownership Under Ancient Hindu Law:
Ancient Hindu jurists provided several ways to acquire ownership. Manu, a key figure,
outlined seven virtuous means of acquiring wealth, which included inheritance, acquisition
through gain, purchase, conquest, application, employment of work, and acceptance of gifts
from proper persons. Gautama largely echoed Manu’s list, with minor modifications. Narada,
however, elaborated further, presenting twelve different methods of acquiring wealth, three of
which were general and accessible to all castes, while the remaining nine were specific to
particular castes.
Ownership Under Modern Law:
Modern legal systems offer several ways to acquire ownership, which can be broadly
categorized into two main groups:
Ownership can be acquired through two main modes: original and derived.
1. Original Mode: This refers to the acquisition of ownership through the personal,
independent act of the individual acquiring it. There are three kinds of original
acquisition:
○ Absolute: This occurs when ownership is acquired over an object that
previously had no owner.
○ Extinctive: This happens when previous ownership is extinguished due to an
adverse act by the acquiring party, such as acquiring an easement after the
passage of a prescribed period of time.
○ Accessory: This involves acquiring ownership through accession, such as
when the owner of a tree owns its fruits unless they have been given away.
2. Derived Mode: When ownership is transferred from a previous owner to a new one,
it is called derived acquisition. This mode involves acquiring ownership through a
transaction or action that derives from the rights of a prior owner. Examples of
derived acquisition include purchase, exchange, will, and gift. Legal frameworks such
as the Indian Transfer of Property Act, the Sale of Goods Act, and the Companies
Act provide the rules for transferring ownership of immovable property, goods, or
company property.
Characteristics of Ownership:
Ownership can be either absolute or restricted. It can be exclusive or limited based on
various factors such as agreements or the operation of law. For example:
● Ownership rights may be restricted during emergencies, such as when a person's land
or property is acquired by the state to house army personnel during wartime.
● An owner cannot use their property in a manner that causes harm or injury to others;
their ownership rights are not limitless.
Furthermore, the right of ownership includes the right to possess the owned thing, regardless
of whether the owner has actual possession. A common example is when an owner leases
their house to a tenant—the owner still retains ownership of the property even though they do
not have direct possession of it.
Ownership of an Unborn Child or an Insane Person:
Ownership cannot be fully exercised by an unborn child or an insane person, as both are
incapable of understanding the nature and consequences of their actions. Ownership is a
residuary right, meaning it does not end with the death of the owner. Instead, ownership is
transferred to the owner's heirs. However, restrictions may be imposed on an owner's ability
to dispose of the owned property. For example, if property is alienated with the intent to
defeat or delay the claims of creditors, such actions can be legally reversed.
Kinds of Ownership
Ownership can be classified into various types based on the nature of the rights involved. The
following are the primary kinds of ownership:
1. Corporeal and Incorporeal Ownership:
○ Corporeal Ownership refers to the ownership of tangible, physical objects.
Examples of corporeal ownership include a house, a table, a car, or any other
material thing.
○ Incorporeal Ownership refers to the ownership of intangible rights or things.
These are non-physical assets, such as trademarks, copyrights, patents, or the
right to collect royalties. Essentially, this is ownership of a right rather than a
material object.
2. Trust and Beneficial Ownership:
○ In this type of ownership, property is owned by two persons with different
roles and obligations:
■ Trust Ownership: The person holding the property, known as the
trustee, is obligated to use the property for the benefit of another
person, called the beneficiary. The trustee's ownership is considered
nominal, as it is only a matter of form, and their role is to manage the
property on behalf of the real owner.
■ Beneficial Ownership: This refers to the ownership enjoyed by the
beneficiary, who benefits from the property’s use, even though they
may not hold the title to it.
3. Legal and Equitable Ownership:
○ Legal Ownership refers to the ownership recognized by the legal system and
backed by the law. It is a right that can be enforced in court.
○ Equitable Ownership arises when the ownership is recognized by the
principles of equity, even if it is not acknowledged by the law. In some cases,
equity may recognize ownership where the legal system does not. For
instance, a person may be the legal owner of property, while another may be
the equitable owner (such as in cases of trust law).
■ Legal ownership is a right in rem (a right against the world), whereas
equitable ownership is a right in personam (a right against a specific
person).
■ It is possible for one person to hold legal ownership, while another
person may hold equitable ownership over the same property.
4. Vested and Contingent Ownership:
○ Vested Ownership refers to ownership that is perfect, where the title to the
property is established and secure.
○ Contingent Ownership refers to ownership that is conditional upon the
fulfillment of certain conditions. It is not certain until these conditions are met.
Contingent ownership is based on the idea that ownership will be perfected if
specific criteria are satisfied.
5. Sole Ownership and Co-ownership:
○ Sole Ownership occurs when a single person owns a right or property. In this
case, only one individual holds the title and has control over the property.
○ Co-ownership happens when two or more individuals share ownership of the
same property. This can occur in various forms, such as joint tenancy or
tenancy in common. For example, partners in a business firm may co-own the
partnership property.
Possession:
Possession is a central concept in property law and is closely linked to ownership, though
they are distinct legal concepts. There are three key terms often used interchangeably:
possession, the right of possession, and ownership.
● In civil law systems, possession is not considered a right, but rather a legal fact that is
protected by law. While possession can serve as evidence of ownership, it does not in
itself prove ownership.
● In common law systems, possession is treated as a property right. The owner of a
property has the right to possess it and may transfer this right, either wholly or
partially, to another person. The new possessor can also transfer the right of
possession to a third party.
Characteristics of Possession:
1. The concept of possession originated with human civilization and has been
fundamental throughout legal history.
2. Possession refers to the de facto (actual) exercise of a claim over property, meaning it
involves physical control or use of the property.
3. Possession is the objective manifestation of ownership, serving as the external
evidence that a person owns or controls a property.
4. Possession does not automatically confer the legal rights associated with ownership.
For example, a possessor may not have the full rights to sell, consume, or destroy the
property.
5. The concept of possession is narrower than ownership, as it only grants limited
rights—such as to use, destroy, or transfer—depending on the context.
Additional Characteristics of Possession:
6. The residuary power is not given to the possessor: A possessor does not have the
residual powers that come with full ownership. Their rights are limited compared to
those of the owner.
7. Possession is the guarantee of the facts: Possession serves as tangible evidence of
control over property. It can provide proof of facts related to property control or
ownership.
8. Possession without ownership is a body of fact, unformed by the spirit of right:
Possession, in the absence of ownership, is merely a physical reality without the legal
or moral rights that typically accompany ownership.
9. Possession endeavors to justify itself as ownership: Possessors often seek to justify
their control over property as if it were ownership, even though possession alone
doesn't confer ownership.
10.The possessor is left with “possessory remedies”: A possessor, in the absence of
ownership, has limited legal remedies available, known as possessory remedies,
which are typically concerned with retaining or regaining possession.
11.The law of prescription determines the process by which possession without title
ripens into ownership: Over time, under certain conditions (such as continuous,
uninterrupted possession), the law allows possession to evolve into legal ownership, a
concept known as "prescription."
12.Possession, comparatively, can easily be transferred. It does not require
conveyancing: Unlike ownership, which often requires formal legal processes like
conveyancing, possession can be transferred more easily and informally.
13.A right in personam can only be owned, and it cannot be possessed: A right in
personam (a right against a specific person, not in relation to a thing) can only be
owned but cannot be physically possessed.
14.Possession is singular, but stronger: Possession is a singular act, but it can be
stronger in terms of immediate control or influence over property, even though it may
not imply full ownership.
15.Possession is both a legal and a non-legal or pre-legal concept: Possession can
exist as a non-legal concept, such as when someone physically holds property without
any legal rights to it. However, it becomes a legal concept when it is protected by law.
Conclusion:
The concept of ownership is a fundamental legal principle found in all legal systems, though
it is typically discussed after possession. The idea of possession came first in the
development of legal thought, and only later did the more abstract concept of ownership
emerge. Ownership involves not only the right to possess a thing but also the right to the
fruits and income derived from it, within the limits imposed by law. Therefore, while
possession is the physical control or use of property, ownership encompasses a broader set of
rights, including the legal and financial benefits derived from the property.
BIBLIOGRAPHY
1. Authority of law - Joseph Rawls
2. Concept of law - HLA Hart
3. Jurisprudence - John William Salmond
4. [Link]
