Evolution And Growth Of Ownership

Intorduction-

Ownership is a complex juristic and concept which had its origin in the ancient Roman Law. Perhaps of all the rights, right of ownership is most important right. The earlier legal systems did not recognize the distinction between ownership and possession. It was with advancement of civilization that the two were considered as separate and distinct concept. In the ancient and medieval English law also the concept of ownership developed much later than possession. The earlier law gave importance to possession of land and chattels because of the misconception that possession includes within it ownership as well. The term ownership was used in English law for the first time in 1583 when it distinguished from possession. Holdsworth observed that English law accepted the concept of ownership as an absolute right through gradual development in the law of possession. Definition of OwnershipJurist has defined ownership in different ways. All of them, however, accept that right of ownership is most complete or supreme right that can be exercised over anything. According to Hibbert ownership includes within it four kinds of rights1. 2. 3. 4. Right to use anything Right to exclude other from using the thing Disposing of the thing Right to destroy.

In Black Law Dictionary (6th Ed.), ownership has been defined as collection of rights to use and enjoy property, including right to transmit it to others. Therefore, ownership is de jure recognition of a claim to certain property. Acc. To AustinAustin defines ownership as a right which avails against everyone who is subject to the law conferring the right to put thing to user of indefinite nature. He further says that ownership is a right indefinite in point of user of unrestricted in point of disposition and unlimited in point of duration.

Ownership Under Ancient Indian Law The right of ownership was also recognized under the ancient Indian law. The great commentators, notably, Narada, Yajnavakya, Vyas etc. emphasized that right of the ownership of the property was to be used for noble causes and good motives. The ancient Hindu Law ordained men to behave in a particular manner in relation to the person or property of another. They were warned to misuse the right of ownership would entail them moral or public indignation and they would be liable for punishment. Characteristics of Ownership An analysis of the concept of ownership, it would show that it had 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. 2. The right of ownership can be restricted in time 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. 3. An owner is not allowed to use his land or property in a manner that it is injurious to others 4. Restriction may also be imposed by law on the owners right of disposal of thing owned. 5. The owner had a right to posses the things which he owns. It is immaterial whether he has actual possession or not. 6. Law does not confer ownership on an unborn child or insane person because they are incapable of conceiving the nature and consequences of their acts. 7. Ownership is residuary in character. 8. The right of ownership does not end with the death of owner, instead it is transferred to his heirs.

Subject Matter of Ownership Ordinarily, the subject-matter of ownership consist of material objects like land, chattels etc. The wealth assets of a person such as interests in the land, debts due to him, shares in a company, patents, copyrights etc. may also be subject-matter of ownership. Thus intangible rights mat also constitute subject-matter of ownership. Ownership of Material Things: The owner of a material object is who owns a right to the aggregate of its users. Thus ownership is the right of general use. This need not to be absolute or unlimited usage. The right of ownership in a material thing may be defined as the general, permanent and inheritable right to the user of a thing.

Acquisition of Ownership From the point of view of acquisition of ownership, things may be of two kinds, namely, things over which no one has ownership, they are called res bullies, and their ownership can be acquired by possession. But there are things which are already owned by someone, the ownership over them can be acquired by derivative method. According to Salmond, ownership can be acquired in two ways:1. By operation of law 2. By reason of some act or event A person can become the owner of a property be the operation of law such as the law if intestacy or bankruptcy. It can also be acquired by reason of an act or event such as taking or making a thing for the first time. Both these cases involve original acquisition of ownership since new owner derives the title from his predecessor.

Different Kinds of Ownership 1. Corporeal and Incorporeal Ownership:- The ownership of material objects is called as corporeal ownership where as ownership of right is called as incorporeal ownership. Thus the ownership of a house, table, land etc. is corporeal ownership and ownership of a copyright, patent, trade-mark, right of way etc. is incorporeal ownership 2. 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 same time it is called co-ownership, of which co-ownership is a special. 3. Trust Ownership and Beneficial Ownership:- Yet another peculiar species of duplicate ownership is trust ownership in which property is owned by two persons at same time. The relation between them is such that one of them is under an obligation to use his ownership for the benefit of the other. The former is called the trustee and his ownership is trust ownership, while latter is called as beneficiary and his ownership is beneficial ownership. The ownership of the trustee is a matter of form rather that of substance, it is nominal rather than real because he is deprived of any rights to the beneficial enjoyment of the trust property. 4. Legal and Equitable Ownership:- Closely connected but not identical with the distinction between trust and beneficial ownership is the distinction between legal and equitable ownership. Sometimes one person may be the legal owner and another equitable owner of the same thing or right at the same time. Legal ownership is that which has its origin in the rules of common law whereas equitable ownership proceeds from the rule of equity. In many cases equity recognizes ownership where law does not so recognize it owing to some legal flaw or defect. For example, when a debt is verbally

assigned by A to B, A remains the legal owner of it but B becomes the equitable owner of it. 5. Vested and Contingent ownership:- Ownership may either be vested or contingent. In vested ownership the title of the owner is already perfect while in contingent ownership his title is as yet imperfect but it is capable of becoming perfect on the fulfillment of some conditions. In the former, the ownership is absolute, in the latter, it is conditional. For instance, 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 owner of the property in question, but their ownership is merely contingent. The conditional on the death of A during the widows life-time. The distinction between vested and contingent interest can be summarized thus:a) A vested interest creates an immediate right and it does not depend on fulfillment of any condition. But contingent interest is solely dependent upon fulfillment 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 transferee before he obtains possession. But a contingent interest cannot take effect in the event of death of the transferee before fulfillment of the condition. c) A vested interest is transferable and heritable, whereas a contingent interest is not transferable or heritable. 6. Absolute and Limited Ownership:- When all the rights of ownership, i.e. possession, enjoyment and disposal are vested in a person without any restrictions, the ownership is absolute. But when there are restrictions as to user, duration or disposal, the ownership will be called as limited ownership, For example, prior to the enactment of the Hindu Succession act, 1956, a women has only a limited ownership over the estate because she held property only for her life and after her death, the property passed on to the their last holder of the property.

Modes of Acquisition of Ownership Broadly speaking there are two modes of acquiring ownership, namely, (1) Original, and (2) Derivative. 1. Original Acquisition:- Original Acquisition of ownership takes place when ownership is acquired by some personal act on the part of acquirer. It may be of three ways A. Absolute- When a thing is acquired which has no previous own. i. Occupatio ii. Specificatio B. Extinctive Acquisition:- It is kind of ownership in which a person by some act on his part extinguishes the ownership of previous owner and acquires its ownership himself.

C. Accessio:- This is called accessory acquisition that is when the ownership of property is acquired by the way of accession to some existing property. 2. Derivative Acquisition:- When the ownership is derived from a previous owner it is called derivative acquisition of a ownership. It takes place when ownership is acquired be inheritance or gift or purchase etc.

Conclusion:So from this we can conclude that what is ownership and how phenomenon of ownership came into existence. We can also see that what are different kinds of ownership and study them in detail.

Evolution and Growth of Ownership

Submitted By:Avlok Singh Sandhu B.A.LL.B 6th Sem Roll No. 41/07F