Unit IV

Legal Concepts: Right and Duty, Kinds, Meaning

of Right in its wider sense; Possession: Idea of
Ownership, kinds of Ownership, Difference
between Possession and Ownership; Nature of
Personality, Status of the Unborn, Minor, Lunatic,
Drunken and Dead Persons.
 Legal Concepts
• Law to have a practical application and to perform its
legitimate functions in a given society, will have to identify
certain legal concepts or instruments through which it
operates.
• Some of these concepts are: Rights, duties, possession,
ownership and persons.
 Wrongs

• According to Salmond “a wrong is simply an act contrary to

the rule of right and justice. A synonym of it is injury, in its
true and primary sense of injuria, though by a modern
perversion of meaning this term has acquired the secondary
sense of harm or damage whether rightful ort wrongful and
whether inflicted by human agency or not.”
• Wrongs are of 2 kinds:
1. Moral wrong: a moral or natural wrong is an act which is
morally or naturally wrong, being contrary to the rule of
natural justice.
2. Legal wrong: a legal wrong is an act which is
authoritatively determined to be wrong by a rule of law.
Therefore it is treated as a wrong in and for the purpose of
administration of justice by the State. The essence of a
legal wrong consists in its recognition as wrong in its
recognition as wrong by the law, not in the resulting
suppression or punishment or it. A legal wrong is a
violation of justice according to law.
 Duty
• A duty is an act which one is ought to do or omit.
• The an act opposite to duty will be a wrong.
• To ascribe a duty to a man is to claim that he ought to
perform a certain a act or refrain from acting.
• According to Salmond “ a duty is an obligatory act, that is
to say, it is an act opposite of which would be a wrong.
Duties And wrongs are correlatives. The commission of a
wrong is the breach of a duty and the performance of a duty
is the avoidance of wrong.”
• Duties are of two kinds:
1. Moral duties : Moral duties are those obligations which
should be observed but are not legally bound to be
observed. Eg. It is a moral duty that one should serve there
parents.
2. Legal Duties: Legal duties are the ones which are
recognised as duties by law. An individual is legally bound
to perform legal duties. If he does not perform them, he
will be punished by the state. Eg. Duty to pay taxes.
• According to Austin Duties are of two types:
1. Relative Duty – There is a corresponding right existing in
such duties.
2. Absolute Duty – There is no corresponding right
existing.
• Duties may be:
1. Positive : when law obliges us to do act.
2. Negative: when the law obliges us to forbear from doing
an act.
• Duties can also be :
1. Primary duties : duties which exist per se and
independently of any other duty. Eg. Duty to forbear from
causing injury to another.
2. Secondary duties : duties which have no independent
existence but exists only for enforcement of other duties.
Eg. Duty to pay damages for the injury caused.
 Rights
• The concept of right is of fundamental significance in legal
theory because law consists in main, certain types of rules
regulating human conduct and administration of justice
concerned with enforcement of rights and duties created by
such rules.
• According to Hibbert “a right is one person’ capacity of
obliging others to do or forbear by means not of his own
strength but by the strength of a third party. If such third
parts is God, the right is Divine. If such third parts is the
public generally acting though opinion, the right is moral. If
such third parts is the stale acting directly or indirectly, the
right is legal.”
• Rights are concerned with interests which are protected by
rulesof right, that is by moral or legal rules.
• Rights are of two kinds:
1. Moral rights: A moral or natural right is an interest
recognised and protected by a rule of morality-an interest
the violation of which would be a moral wrong , and
respect for which is moral duty.
2. Legal rights:A legal right is an interest recognised and
protected by a rule of law- an interest the violation of
which would be a legal wrong done to him whose interest
it is , and respect for which is a legal duty.
• Characteristics of a legal right:
1. It is vested in a person who may be called the owner of
the right, the subject of it, the person entitled or, the
person of inherence.
2. It avails against a person upon whom lies the correlative
duty. He may be distinguished as the person bound, or as
the subject of duty, or as the person of incidence.
3. It obliges the person bound to act or omission in favour
of the person entitled. This is the content of the right.
4. The act or omission relates to something which may be
termed the object or subject matter of the right.
5. Every legal right has a title, that is to say, certain facts or
events, by reason of which the right has become vested in
its owner.
• Every right therefore, involves a threefold relation in
which the owner of it stands:
1. It is a right against some person or persons.
2. It is a right to some act or omission of such person or
persons.
3. It is a right over or to some thing to which the act or
omission relates.
Legal rights in a wider sense
• Legal rights in the strictest sense must have correlatives of legal
duties. But in the wider connotation “rights” does not necessarily
correspond with duties.
• Restricted Or Popular Sense:
According to Gray:A legal is that powers which a man has to take a
person or person do or refrain form doing a certain act or certain acts,
so far as the power arises form society imposing a legal duty upon a
person or persons.
• Wider Sense:
In a wide sense, legal right include any legally recognized interest
whether it corresponds to a legal duty or not. It is an addition or
benefit conferred upon a person by a rule of law.
Kinds Of Legal Rights:
1. Perfect and Imperfect rights:
a. Perfect rights: A perfect right is one which corresponds to
a perfect duty and a perfect duty is not merely recognised
by law, but is also enforced by it. Eg. A contract specially
enforceable through the Court of law
b. Imperfect rights: An imperfect right is that which is
recognized by law but cannot be enforced by law due to
some impediment. Eg. Claims barred by lapse of time.
2. Positive and Negative rights:
a. Positive rights: A positive right corresponds positive duty
and the person subject to the duty is bound to do some
positive act on behalf of the person entitled.
b. Negative right: A negative right corresponds to negative
duty and the person subject to the duty is bound to refrain
from act which would operate to prejudice the person
entitled. The enjoyment of negative rights is complete
unless such interference takes place.
3. Rights In Rem And Rights In Personam:
a. Rights In Rem(jus in rem): A right in rem, sometimes
called a real right corresponds to a duty imposed upon
persons in general. It available against whole world. It is
an interest protected against the world at large. It is a right
against a thing. It is a relation between the owner and a
vague multitude of persons
b. Rights in Personam( jus in personam): A right in personam
, sometimes referred as a personal right corresponds to a
duty imposed upon determinate individuals. It is available
against a particular person. It is an interest protected solely
against determinate individuals. It is a right against a
person. It is a definite relatin between determinate
individuals.
4. Proprietary And Personal Rights:
a. Propriety Rights: The proprietary rights of a person
include his estate, his assets and his property in many
forms. They have some economic or monetary value. They
possess both judicial and economic importance. Eg. The
right to goodwill
b. Personal right: Personal right pertain to man, s status or
standing in the law. They promote the man, s well being.
Personal rights possess merely judicial importance. Eg.
Right to reputation
5. Rights In Re propria And Rights In Re Aliena:
a. Rights in re propria: Rights in Re propria are rights in one,
s own property. These are complete rights to which other
right can be attached. Eg. The owner of a chattel has a
right in re propria over it.
b. Right in Re aliena: Rights is Re aliena are rights over the
property of another person. These rights derogate form the
rights of another person and add to the rights of their
holder.
Eg. My right of way across the land another person is a
right re aliena.
6. Principal And Accessory Rights:
a. Principal rights: Principal rights exist independently of
other rights.
b. Accessory rights : Accessory rights are appurtenant to
other rights and they have a beneficial on the principal
rights.
Eg. ‘X’ owes money to ‘Y’ and he executes a mortgage deed
in favour of ‘Y’. the debt is the principal right and the
security in the form of mortgage is the accessory right.
7. Primary And Sanctioning Rights:
a. Primary Rights: Primary rights are also called antecedent,
sanctioned or enjoyment rights. These are those rights
which are independent of a wrong having been committed.
They exist for own sake. They are antecedent to be
wrongful act or omission.
b. Sanctioning Rights: Sanctioning rights are also called
secondary, restitutory or remedial rights. Secondary rights
are a part of the machinery provided by the state of the
redress of injury done to the primary rights. Their
necessity arises on account of the fact that primary rights
are very often violated by the persons.
8. Legal And Equitable Rights:
a. Legal Rights: Legal rights are those which were
recognized by common Law Court Eg. Right
to vote
b. Equitable Rights:Equitable rights are those which were
recognized by the Court of chancery.
Eg. The right of the mortgagor to redeem the property is
regarded as a creation of the Courts of equity and is an
equitable right knows as the equity of redemption.
9. Vested And Contingent Rights:
a. Vested Rights: A vested is a right in respect of which all
events necessary to vest it completely in the owner have
happened. No other conditions remains to be satisfied.
b. Contingent right: A right is contingent when some but not
all of the vestitive facts, as they are termed, have occurred.
10.Public And Private Rights: Public rights:
a. Public rights: A public right is possessed by every member
of the public. It is between a state and the private
individual
Eg. Right to vote
b. Private right: A private right is concerned only with the
individuals. Both the parties connected with the right are
private persons.
Eg. A contract entered into by two individuals.
 Ownership
• The concept of Ownership in Jurisprudence emerged from
the ancient Roman Law.
• The Right to Ownership is considered the most important of
all the laws related to Rights.
• RomanLaw has two terms related to it- Ownership
and Possession - dominium and possessio.
• Dominium denotes absolute right to a thing
• Possessio implies only physical control over a thing.
• Romans attached more importance to dominium over
possessio because in their view because having absolute
right over a thing was much more important than merely
having physical control over it
• Ownership denotes the relation between a person and an
object forming the subject-matter 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.
• According to Hibbert “Ownership includes four kinds of
rights within itself.
o Right to use a thing
o Right to exclude others from using the thing
o Disposing of the thing
o Right to destroy it.”
• According to Austin " Ownership means a Right which
avails against everyone who is subject to the law conferring
the right to put thing to user of infinite nature.“
• Holland : Ownership is a plenary control over an object"
According to him the owner has three rights on the object
o Possession
o Enjoyment and
o Ownership
• According to Salmond “Ownership in its most
comprehensive significance, denotes the relation between a
person and right that is vested in him.
o An owner shall have a right to possess the thing which he
owns. He may, however, not be necessarily in actual
possession of it.
o He has normally the right to use and enjoy the thing owned
o The owner has a right to consumer, destroy or alienate the
thing
o Ownership has the characteristic of being indeterminate in
duration
o Ownership has a residuary character
• The essentials or incidents of ownership are:
1. Right of possession:
o The owner has the right to possess the things he owns.
o It is immaterial whether he has actual possession of it or
not, as long as he has a right to such possession.
o Even if the thing is mortgaged, let on hire or stolen, the
owner has an interest in the thing and a right to reposition
on termination of the impediment.
2. Right of use and enjoyment:
o The owner has a right to use and enjoy the things he likes.
o The owner has a liberty to use the things but is under no
duty to use them whereas the others are under a duty not
to use it or otherwise interfere with it
3. Right of consumption, alienation or even of destruction:
o The owner has a right to consume or even exhaust the
thing owned while using it if the nature of the thing is
such.
o The owner also has the right to destroy or alienate the
thing he owns. Thus , a man can effectively dispose of his
property by a conveyance during his lifetime or even after
his death.
4. Residuary nature:
o Ownership has residuary character.
o It is possible that an owner has parted with several rights
in respect of the thing owned. Nevertheless, he continues
to be the owner of the thing in view of the residuary
character of ownership.
o Eg. In case of lease, even though the right of possession,
use and enjoyment is transferred to the lessee, the
ownership rights vests in the owner.
• Subject matter of ownership:
o Subject matter of ownership is owning of things in sense of
both owning of material objects and also rights.

Subject matter of ownership

Rights over non-material

Owning of material objects
things
Eg. Land, goods
Eg. Debts due to him, IPR
o Air, sea, the stars , the moon, the sun are not the subject
matter of ownership.
• Classification of ownership:
1. Sole ownership: When the ownership is vested in a single
person, it is called sole ownership.
2. Co- ownership: When the ownership is vested in two or
more persons at the same time, it is called co-ownership.
Co-ownership involves the undivided integrity of what is
owned.
o Eg. The partners of a partnership firm are co-owners of the
partnership property.
o Co-ownership may assume different forms. Its two chief
kinds in English law are distinguished as ownership in
common and joint ownership. The most important
difference between these relates to the effect of death of one
of the co-owners. If the ownership is common, the right of a
dead man descends to his successors like other inheritable
rights, but on the death of one of two joint owners, his
ownership dies with him and the survivor becomes the sole
owner by virtue of this right of survivorship.
• Fragmentation of ownership in respect of time:
o Property may be owned by more than one person at a time
but in different capacities.
1. Trust and beneficial ownership
2. Legal and equitable ownership
3. Vested and contingent ownership
1. Trust and beneficiary ownership:
o A trust is an instance of duplicate ownership where the
powers of management and rights of enjoyment are
separated.
o The trust property is owned by 2 persons at the same time:
a. The trustee
b. The beneficiary
o The trustee is an agent who has the power and duty of
administering the property of another person.
o Between the trustee and beneficiary, the beneficiary is the
owner; but between the trustee and 3 rd persons, the legal
fiction is that the trustee is the owner of the property.
o Trust arise to protect the rights and interests of persons who
are incapable of effectively protecting them.
o Trusts may also arise without any intention ; in case where
property comes into the hands of a person and where
circumstances make it inequitable to disregard the claims of
others, he holds the property in trust. These are called as
constructive trusts.
o A trust is created by any act or event which separates the
trust-ownership of any property from the beneficial
ownership of it and vests them in different persons.
o It may come to end where both the interests vests in one
person. Eg the trustee transfers the property to the
beneficiary.
o Trust ownership and beneficial ownership are independent
of each other in their destination an disposition. Either of
them may be transferred, while the other remains
unaffected.
2. Legal and equitable ownership:
o Legal ownership is that which had its origin in the rule of
common law in England.
o Equitable ownership is that which proceeds from rules of
equity .
o The ownership which is recognized by the law is legal
ownership
o The ownership recognized by equity is called equitable
ownership where the law does not recognize it owing to
some legal defect in such ownership.
3. Vested and contingent ownership:
o Ownership is either vested or contingent.
o Ownership is vested when the owner’s title is already
perfect and he owns the thing absolutely.
o Ownership is contingent when the owner’s title is
imperfect but is capable of being perfect on fulfilment of
some condition. Contingent ownership is based not upon
the mere possibility of future acquisition, but upon the
present existence of an incomplete title
 Possession
• Possession of material things is essential to life. Possession
is the most basic relation between man and things.
• In law, possession includes not only physical control over a
thing but also an intention to exercise that physical control.
In other words possession is the control a person
intentionally exercises toward a thing.
• According to Salmond, “possession is the continuing
exercise of a claim to the Exclusive use of an object.”
• According to Savigny , “possession is the intention coupled
with physical power to exclude others from the use of
material object.”
• According to Pollock , “to be in possession of anything of
which he has the apparent control from the use of which he
has apparent power for excluding others.”
• Categories of possesion:
I. Possession in fact
II. Possession in law
I. Possession in fact: Possession in fact is actual or
physical possession. It is physical relation to a thing.
• Essentials of possession in fact:
1. Corpus possessionis:
o “The physical aspect of possession”
o “The corpus possessions consists in the existence of
physical power to exclude foreign interference and secure
the thing to one self ”
2. Animus possidendi:
o Animus possidendi is the intention of using the thing
oneself and of excluding the interference of other persons.
II. Possession in law:
o Possession in law is the protection given by law. The
possessor is given certain rights, such as a right to
continue possession without interference.
o This legal right is a primary right or a right in rem which
is protected by sanctioning rights or rights in personam
which allows the possessor civil and criminal remedies
against those who violate the primary rights
• Kinds of possession
1. Corporeal and incorporeal possession
2. Immediate and mediate possession
3. Concurrent possession
1. Corporeal and incorporeal possession:
o Corporeal possession is the possession of a material
object. The actual possession or corpus possessionis is not
essential.
o Incorporeal possession is the possession of anything other
than a material object. Actual continuous use and
enjoyment of the thing is essential as it is the only mode of
exercise.
2. Immediate and mediate possession:
o Immediate possession means the direct or primary
possession by a person over a particular object which he
acquires or gets directly. It also implies necessarily a direct
and actual hold over the corpus of the thing.
o Mediate possession means the possession held by one
person through another. There are 3 kinds of mediate
possession:
a. Which is acquired through an agent or servant
b. Which the direct possession is in one who holds it for such
person.
c. Where the immediate possession is in a person who claims
it for some time period or some condition has been
fulfilled.
3. Concurrent possession:
o As a general proposition of civil law, it is true to say that
two persons cannot be in possession of the same thing at
the same time.
o For two adverse claims of exclusive use cannot be
effectually realized at the same time. However the claims
which are not adverse and therefore are not mutually
destructive, admit of concurrent realization.
o Hence there are several possible cases of concurrent
possession:
a. Immediate and mediate possession may co-exist in respect
of the same thing.
b. Two or more persons may possess the same thing in
common, just as they may own it in common. This is
called compossesio.
Eg. in case of coparceners in Hindu Joint Family who hold
property in common.
• Modes of acquiring possession:
1. Taking: Taking is acquisition of possession without the
consent of the previous possessor. The thing taken may or
may not have been already in possession of someone else,
and in either case the taking may be rightful or wrongful.
2. Delivery: Delivery is the acquisition of possession with
the consent and co-operation of the previous possessor. It
may be actual delivery or constructive deliver.
• Difference between ownership and possession:

Ownership Possession
1. When an individual has legal rights over a Possession” literally means ‘physical control
property, he is said to own it. Ownership is over a thing or an object’
a right that grants a thing or an object to a
person in such a manner that the thing is
said to belong to that person. If a person
owns something in the eyes of law, the
thing belongs to him to the exclusion of
others.
2. Ownership is the relation of the person Possession is the most basic relation between
with an object forming the subject matter man and a thing.
on ownership.
3. The transfer of ownership in most cases The Transfer of possession is comparatively
involves a technical process of easier and less technical
conveyance
4. Ownership signifies permanence possession is mostly temporary.
 Persons
• The term Person is derived from the Latin word 'Persona'
it means those who are recognised by law as being capable
of having legal rights and duties.
• According to Salmond " A person is any being whom the
law regards as capable of rights and bound by legal duties.

• According to Gray “a person is an entity to which rights

and duties may be attributed”.

• According to Austin 'person' includes physical or natural

person including every being which can be deemed human.
• Kinds of Persons :
1. Natural Person: A natural person is a human being
possessing natural personality. According to Holland, a
natural person is a human being as is regarded by the law
as capable of rights and duties. Requisite of normal human
being is that he must be born alive moreover , he must
possess essentially human characteristics. Generally a
person/human being who has a capacity to sue and be sued
is person.
2. Legal persons / Artificial persons : A legal person has a
real existence but it's personality is fictitious. A fictitious
thing is that which does not exist in fact but which is
deemed to exist in the eye of law. Eg : Company or
corporation, idol etc.
Status of an unborn child
• Generally an unborn person has no legal status in the eyes
of law.
• However it has to be distinguished from the one who is
living but not yet born, i.e., a child in womb of its mother
and an unborn child in the sense of future generations.
• A child in the uterus is regarded as a person in law in
accordance with the maxim Nascitures Pro Ham Nato
Habetur i.e. One who is to be born is deemed to have been
born.
• The rights of an unborn person, whether personal or
proprietary, are all contingent on his birth as a living human
being.
• Right in the inherent property can be given to such a child if
the child is born alive. A posthumous child may inherit, but
if he dies in the womb, or still born, his inheritance fails to
take effect and no one can claim through him. But if the
child is born alive even for seconds, his heirs may claim his
share through inheritance.
Status of Dead Man
• Dead person in general have no rights because they have no
interests.
• Their legal personality is extinguished by death. It is said
that the legal personality is created from birth & ends with
death but sometimes desire of a dead person is protected by
law.
• Basically the dead person gets three types of rights:
1. Relating to his body (burial) :The legal system recognises
decent burial of dead person.
2. Relating to reputation
3. Related to his estate
2. Relating to reputation : the legal system protects the
reputation of the dead person to some extent. This is mainly
true in, cases of defamation-it is said that even a dead
person has a right to safeguard his reputation. Any
defamatory statement which affects the reputation of the
family of dead person or the dead person himself is
protected by the legal system under the civil as well as
criminal liability.
3. Related to his estate: by way of testamentary succession, a
man can after his death, may continue to regulate and
determine the disposition and enjoyment of his property
which he owed while living.