2nd G.C.T.

NAME = MOHAMMAD DANIYAL SIRAJ

ROLL NO. = 18BALLB55

ENROLL NO. = GL0749

SUBJECT = LEGAL THEORY-II

TOPIC =JUDICIAL ASPECT OF OWNERSHIP

JUDICIAL ASPECT OF OWNERSHIP

The owner has to establish his ownership by showing title and possession if he fails to do this, he
should be made to pay the fifth part of the amount involved, as a fine to the king. The bundle of right
of a person over a thing gives him ownership of the thing and the control so exercised by the person
over that thing makes the thing the property of that person. The concept of ownership is of both legal
and social interest. Not only have court utilized the idea in such a way as to give effect to views of
changing individual and social interest, bur so great are its potentialities that in recent times it has
become the focus of government policy. 

Etymological and legal meaning

The earliest known use of the word ‘owner’, according to Maitland, quoting Dr. Murray, occurred in
1340, and ‘ownership’ in 1583. ‘Early law’ says Holdsworth, ‘does not trouble itself complicated
theories as to the nature and meaning of ownership and possession. 

First, the conception of the possession came into being, and then the conception of the ownership
came into being, and then ownership developed due to changes in the economic structure of the
society. In Roman law, as well as in ancient Hindu law, possession and ownership were recognized as
two separate and distinct conception. 

Roman law and English Law

Holdsworth considers the development of ejectment has introduced an absolute right of ownership- ‘a
person who wishes to recover against the possessor must show, not merely a better right than the
possessor, but an absolute right.’

The idea of ownership in chattel had however a different course of growth. In the initial stages, the
rights in movable were not of such a nature that they could be called ‘ownership’. The idea of title as
a better right to possess came into being through trover and detinue, which, in turn, came into being
through the development into the idea of ownership. Thus came the concept of ownership into
existence. 

Hindu Law

The law of prescription, bailment, and sale without ownership, under the ancient Hindu laws, was
based on the distinction of possession and ownership. The ancient Hindu lawgivers like Manu,
Yajnavalakya, Vyasa, and Narada pointed out that possession of landed property for twenty years, and
of chattels for ten years, by a person created title by prescription. Possession was proof of ownership
through pure title. As regards to the sale without ownership, Narada and Yajnavalakya said that when
an article or a chattel has been sold by a person who is not the owner, the rightful owner should obtain
it from the purchaser. 

The concept of ownership which is highly developed one in the ancient laws of the Hindus has been
spoken of as a special capacity produced by the acts of purchase, acceptance, and the inheritance,
gain, purchaser, conquest, investment of Health, employment. 

Definition of Ownership

Austin- “a right indefinite in point of user unrestricted in point of disposition and unlimited in point of
duration over a determinate thing.”

According to Austin, there are three elements of ownership-

Indefiniteness in point of user

He says, no one can exhaustively enumerate the various ways in which the owner may make use of
his property. Bur unrestricted user in all system of laws is qualified by the law of nuisance in
accordance with the maxim ‘sic utereturat alienum leadas’ (so use your own property as not injure
your neighbors). Again an owner’s indefinite user is restricted by encumbrances in favour of other
persons and again limited by any restriction which the state may care to impose in the interest of
community by such statues as Town planning Acts, etc.

Unlimited in point of duration 

Salmond improves upon Austin’s definition. According to him: “the ownership of a material object is
to a right to the general or residuary uses of it after the deduction of all special and limited rights of
use vested by way of encumbrances in other persons.” 

“Ownership in most comprehensive sense denotes relation between a person and a right that is
invested in him.” 

Thus, according to Salmond, ownership is, therefore, ‘incorporeal’. He then went to say that to speak
of the ownership of physical objects is a figure of speech. What is meant is that certain claims are
vested in a person. 

 Duguit has criticized Salmond’s definition and asserted that what a person really owns is a ‘thing’
and not a ‘right’. Cook has characterized Salmond’s definition of ownership as an ‘unnecessary
confusion’.

Subject Matter of Ownership

Ordinarily, the subject matter of ownership consists of material objects like land, chattels, etc. the
wealth and assets of a person such as interests in the land, debts due to his shares in a company,
patents, copyrights, etc. may also be subject matter of ownership. Thus intangible rights may also
constitute subject matter of ownership. 

Salmond also supported this view that right may also be subject matter of ownership though a man is
said ‘not to own, but to have a right.’ 

Kinds of Ownership 

On the basis of English law, the ownership is classified in the following ways:

Corporeal and incorporeal ownership 

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 copyright, patent, trademark, right of way, etc. is incorporeal ownership. 
Corporeal things are those which are tangible that is, which can be felt by the senses while incorporeal
things are intangible and cannot be felt by senses. 

Salmond thinks that the distinction between corporeal and incorporeal has merely a theoretical
significance because in either case, the ownership is the right vested in the owner and not the material
object.

Sole and Co-ownership 

When the ownership is vested in one person only, it is called the sole ownership and when it is vested
in more than one it is called co-ownership, ex-partnership. 

‘Tenants in common’ and ‘joint tenants’ (in English law) are co-owners of the tenancy. In India, the
coparcenary of Hindu is also a co-ownership. 

Co-ownership is possible only so far as the law makes provisions for harmonizing in some way the
conflicting claims of the different owner inner se. There is an existence of reciprocal obligation of
restricted use and enjoyment between co-owners. 

Trust and beneficial ownership 

The institution of trust and beneficial ownership was not the same as now, the institution of trust and
the rights of the trustee and the beneficiary are the special creation of English ‘equity’. The relation in
trust is that there are two or more sets of owners- one set is under an obligation to use its ownership
for the benefit of another, the former is called the ‘trustee’ and the letter is called the ‘beneficiary’,
and this is ‘beneficial ownership’. Professor Campbell suggests the term ‘bare ownership’ in place of
trust ownership. A trustee in legal theory is owner, though, he has no right to use the property for
himself. The purpose of trusteeship is to protect the rights and interests of persons, who for any
reason, are unable to protect them for themselves. That which the trustees owns, the beneficiaries
owns also. 

In agency the property is vested solely in the principal, in a trust, it vests in beneficiary and trustee.

Legal and equitable ownership

The dictation is recognized in English law, it is closely connected to the theories of trust and
beneficial ownership. In English, the ownership recognized under the rules of common law (in
common law courts) was legal ownership and ownership which was recognized under the Equity
courts on equitable principle was called equitable ownership. It is the duplicate ownership, one person
is the legal owner and another is the equitable owner of the same right at the same time. If the legal
right to a thing is in ‘A’, but the beneficial right to it is in ‘B’, then the court of Equity would decree
that ‘A’ held as trustee for ‘B’. 

Vested and Contingent Ownership 

Ownership is said to be vested when the owner’s title is already perfect. It is called contingent when
the owner’s title is as yet imperfect but is capable of becoming perfect in the future on the fulfillment
of some condition. It is vested ownership, the property is owned absolutely. 

In contingent ownership, the property is owned conditionally. It means that the investetive facts are
incomplete, but it may be completed in the future. Till then the ownership is contingent and when the
required condition is fulfilled, it becomes complete or vested. 

In India, a vested or contingent interest takes place on a transfer of property, is given in the place on a
transfer of property, is given in the ‘Transfer of Property Act (Act IV of 1882) 

In Shashi Kanta v. Pramodchandra (A.I.R. 1932 Cal. 609), their lordship of the Calcutta High Court
pointed out the distinction between a vested and contingent interest 

Absolute and limited Ownership

When in a person all the rights of ownership (i.e. possession, enjoyment, and disposal) are vested
without any restriction (except that imposed by law in the interest of society), his ownership is
absolute ownership, but when there are limitation on user, or duration or disposal, the ownership is
limited ownership. An example of limited ownership, in English law is life tenancy when an estate is
held only for life. In Hindu law (before 1956) women’s estate was a limited ownership.

Ownership and possession- distinguished

1. Speaking on the distinction between the two Salmond has stated that, possession is in fact,
what ownership is in right. Ownership is the guarantee of the law, possession is the guarantee
of facts. 
2. Ownership cannot be last without the consent of the owner whereas accident may be lost
either by accident or by the wrongful act of another.
3. There may be ownership without possession of a debt which is capable of being owned but
not possessed.
4. Possession and ownership differ in their mode of acquisition also. 

Conclusion 

Like other countries recognizes the right to ownership in property in India. It is guaranteed and
protected right by the Constitution (300A). The right of ownership is subjected to many statutory laws
and regulations e.g. sale and transfer of land, land reforms act. The town planning and slum clearance
legislation acquiring urban land for public purposes the landholding ceiling legislation which
regulates the possession laws as other laws derived from English law, although we had legacy of that
laws.