SUBJECT:

ENGLISH JURISPRUDENCE.
TOPIC:
LAW OF PROPERTY.
SUBMITTED BY:
MUIZ AHMAD INAM.
SUBMITTED TO:
SIR HASSAN KHALIL.
ROLL NUMBER:
621.
SECTION:
A.
DATE:
30TH OF May , 2024

KHYBER LAW COLLEGE.

 TABLE OF CONTENTS.
1. INTRODUCTION.

2. ETYMOLOGY.

3. ORIGIN.

4. DEFINITIONS.

5. THEORIES OF PROPERTY.

6. KINDS OF PROPERTY.
A. CORPORAL AND INCORPOREAL PROPERTY.
B. MOVEABLE AND IMMOVEABLE PROPERTY.
C. REAL AND PERSONAL PROPERTY.

7. RIGHTS IN PROPERTY.
A. PROPERTY RIGHTS IN INTANGIBLE THINGS.
• IMMATERIAL FORM OF PROPERTY. (PATENTS, COPY RIGHT, COMMERCIAL
GOODWILL). B. RIGHTS IN RE-ALIENA (ENCUMBRANCES).
• CLASSIFICATION OF ENCUMBRANCES. ( LEASE, SERVITUDE, SECURITY, TRUST).

8. MODE OF ACQUISITION OF PROPERTY.

• POSSESSION.
• PRESCRIPTION.
• AGREEMENT.
• INHERITANCE.

9. CONCLUSION.
 LAW OF PROPERTY.

INTRODUCTION:
The concept of property occupies an important place in human life because it is
virtually impossible to live without the use of material objects which constitute the subject matter of
property.

In its widest sense, all moveable and immoveable things belonging to a person are included within the
meaning of the term property, for instance, a person’s life, liberty, and estate may also be considered as his
property.

The importance of property in the modern materialistic world hardly needs to be emphasised. Property
is absolutely necessary for the subsistance and wellbeing of human beings.

Everyone has a right to enjoy the fruits of labour and industry. Property is foremost requisite for a happy
and contented life and therefore, its preservation and protection is one of the primary objects of the State.
It is mainly the interest in property which keeps men united as members of society.

ETYMOLOGY:
The English word property derives either directly or through French propriété from Latin
proprietas, which means “the peculiar nature or quality of a thing” and (in Roman writings after the time
of Caesar Augustus) “ownership.”

The word proprietas is derived from proprius, an adjective meaning “peculiar” or “own,” as opposed
to communis, “common,” or alienus, “another’s.”

Thus, even before it comes to be a legal term, “property” in the West expresses what distinguishes
an individual or a thing from a group or from one another.

ORIGIN:
• ROME:
In classical Roman law (c. AD 1–AD 250) the sum of rights, privileges, and powers a legal
person could have in a thing was called dominium, ownership, or, less frequently, proprietas (though
frequently enough for it to be clear that the two words were synonyms as legal terms). The classical
Roman jurists did not say that their system tended to ascribe proprietas to the current possessor of the
thing, but that it did is clear enough. A number of Roman legal rules denied the label possession to the
person who was in fact, though not legally, in possession in order to keep legal possession in the
proprietas. Further, the person legally in possession was presumed to be the proprietas. This is clear
enough from the procedural rules that required a person who was not peaceably in possession of a thing to
establish affirmatively that his title to the object was better than that of the peaceable possessor.

• ENGLAND:
In medieval English law, the procedural system prevented any clear distinction
between property and obligation. It was not until the abolition of the forms of action in the 19th century
that Anglo- American law distinguished between property and obligation in the way the Romans had. It
is therefore remarkable that English law prior to the abolition of the forms of action tended at critical
junctures to move in directions similar to the Roman namely, to agglomerate property rights in a single
individual.

In England a notion of property in land emerged at the end of the 12th century from a mass of
partly discretionary, partly customary, feudal rights and obligations. The way in which this
happened was extraordinarily complex. What began as essentially an appellate jurisdiction, offered by the
king in his court
 to ensure that a feudal lord did not cheat those who were subordinate to him, ended with the free tenant
being the owner of the land, in a quite modern sense, with the lord’s rights limited to receipt of money
payments.

The earliest manifestations of the agglomerative tendency in 12th-century England seem to have
announced a fundamental change in the English social system. According to contemporary thought, the
man who was seised (i.e., put in possession) of a freehold was effectively considered the owner of the
property, and the rights of the lords of freeholders became more like those of taxing authorities.
The rights of the nonfreeholders who held land of the free tenant, however, became obscured by the
fact that they were not protected in the king’s courts.

• THE EUROPEAN CONTINENT:

The collapse of Roman and then of Carolingian power led, in most
areas on the Continent, to a situation not unlike that which prevailed in England before the emergence of
the central royal courts in the late 12th century. As in England, land was bound up in a mass of
partly discretionary, partly customary, feudal rights and obligations. England, however, was
precocious in developing central royal courts as early as it did. In most areas of Europe lords’ courts
remained a significant force for a much longer period, even for free tenants.

The Roman idea of property was revived on the Continent as an intellectual matter before it came to
have much practical force. Beginning in the 12th century, the study of Roman law in the universities
led to a renewed awareness of Roman conceptions of property, and in many areas a mixture of Roman law
and canon law, known as jus commune (“common law”), came to be authoritative in the absence of local
law. Further, Roman ideas were influential both because they were part of the equipment of every
university-trained jurist and because they were part of the jus commune. By the end of the Middle Ages
the property law of most European countries was still far from that of the Romans, but it was heading in
that direction. Civil law was thus displaying the same agglomerative tendency noted in more detail for
England.

DEFINITIONS:
• GENERAL DEFINITIONS:
A thing or things belonging to someone; possessions collectively.

OR

an attribute, quality, or characteristic of something.

• SCHOLARS DEFINITIONS:

1) LOCKE:
According to Locke, " Everyman has a property in his own person." every individual
has the right to preserve his property, that is his wife, liberty and estate.

2) BENTHAM:
According to Bentham "property is nothing more than the basis of s certain
expectation of deriving thereafter certain advantages by a thing the reason of the relation in which
we stand
towards it. There is no image, no visible lineament which can property the relation that
constitutes property. It belongs not to physics, but to metaphysics. It is altogether a conception of
Mind. To it, all or any of these physical circumstances failed to assist in conveying the idea of
property."
 3) AUSTIN:
The term property is used to denote:
a. The greatest right of enjoyment known to the law excluding servitude.
b. Sometimes life interest are described as property.
c. When compares the possession even servitude are described as property; in the sense that there
is a legal title to them.
d. Sometimes it means the whole of a man’s assets both right in rem and right in personam.

4) AHRENS:
Property means a material object, subject to immediate power of a person.

5) BLACKSTONE:
According to Blackstone: “The inferior hath no kind of property in the
company, care or assistance of the superior, as the superior is held to have those of the inferior.

THEORIES OF PROPERTY:
Jurists have differed in their views regarding the origin of property.
They have advanced their own theories in this regard None of them, however, seems to be wholly correct
but there is some truth in each one of them. These theories are discussed below:

1) NATURAL LAW THEORY:

This theory is based on the principle of natural reason derived from the
nature of things. According to this theory, property was first acquired by occupation of an ownerless
object- as a result of individual labour.

2) LABOUR THEORY:
This theory primarily believes that property can be claimed on the exclusive
basis of one’s work, which produced that property. It recognises the role of labour for adequate rewards.
When a person acquires property, he is entitled to hold it exclusively.

According to this theory, a thing (res) is the property of the person who reduces it or brings it into
existence. However, this view has been criticised by Harold Laskion the ground that labour does not
produce properly, it is only a means to earn property.

3) METAPHYSICAL THOERY:
This theory was propounded by Hegel and Kant. According to
Hegel, “property is the objective manifestation of the personality of an individual.

In other words, the property is the object on which a person has the liberty to direct his will. Kant has
also supported the metaphysical theory of property and justify its existence and need for protection.

4) HISTORICAL THEORY:
This theory believes that private property has its growth in three distinct
stages. In the first stage, a tendency developed among people to take things into natural possession and
exercise control over them independently of the law or of the State.
In the second stage, the juristic conception of possession gradually developed which meant possession
in fact as well as in law.
In the third and the last stage, there was a development of ownership which is purely a legal
conception having its origin in law. The law guarantees the owner of property, exclusive control, and
enjoyment of property owned by him.

Henry Maine was the main supporter of the historical theory of the origin of property. He observed
that property originally belonged not to individuals not even to isolated families, but to large societies
composed on the patriarchal pattern.
It was at a later stage that collective property disintegrated and individual rights of property came
into existence. Roscoe Pound also agrees that the earliest form of property was group property,
which subsequently disintegrated into a family property, and finally, the concept of individual property
evolved. The noted Italian jurist Miraglia has also supported the historical theory of property

5) PSYCHOLOGICAL THEORY:
According to this theory, property came into existence on account of
the acquisitive tendency of human beings. Everyone desires to own things and keep them in his possession
and control.

Bentham has supported this theory of property and pointed out that property is altogether conception
of mind. It is nothing more than an expectation to derive certain advantages from the object according to
one’s capacity.

6) FUNCTIONAL THEORY:
The functional theory considers property as a social interest for
promoting general security and protection of individual interests in personality, domestic relations, and
subsistence.

As pointed out by Roscoe Pound, interests of personality like the security of one privacy, honoru,
reputation, etc. can be realized only through some access to property.

As rightly suggested by Jenks the concept of property should not only be confined to private rights but
it should be considered as a social institution securing the maximum interests of the society. No one can
be allowed unrestricted use of his property to the detriment of others.

Laski also support the functional theory of property. He observes, property is a social fact like any other
and it is the character of social facts to keep on changing. Property, therefore, has assumed varied aspects
and is further liable to changes with the changing norms of the society.
The roots of property as a social institution are traceable in the ancient Hindu philosophy of dharma
which emphasized just relations in economic and property matters and not to encroach upon the right to the
wealth of others

7) THEORY THAT PROPERTY IS THE CREATION OF STATE:

According to this theory the origin of
property is to be traced back to the origin of law and the State.
Jenks observed that property and law were born together and would die together. This, in other words,
means that property came into existence when laws were framed by the State.
In this context Rousseau observed. “it was to convert possession into property and usurpation into a right
that law and State were founded”. He asserted that property was the creation of the State and it is
nothing but a systematic expression of degrees and forms of control use and enjoyment of things by
persons that are recognised and protected by law. There is, however, little truth in this theory because in
fact both the State and property have their origin in the socio-economic forces therefore, one cannot be the
source of origin of the other.
The focus has been on socialization of property rather than adopting a narrow individualist approach.
The rule against unjust enrichment, the doctrine of perpetuity marshalling, subrogation, part performance,

partition, etc. are incorporated in the property law with a view to ensuring just and fair enjoyment of
property and protecting it against all kinds of exploitation.

KINDS OF PROPERTY:
Property is of the following kinds:
1. Corporal and incorporeal property.
2. Moveable and immoveable property.
3. Real and personal property.
1) CORPORAL AND INCORPREAL PROPERTY:
A corporeal property is the right of ownership
in material things. It relates to material things. Such as land, chattel, etc. It is visible and tangible.
Incorporeal property is any other proprietary rights in rem in other abstract form of property. Such
property is invisible and intangible, for example a patent right or right of way.
In Roman law, corporeal property is termed res corporalis and the incorporeal property is called as
res incorporalis. Buckland, however, suggests that corporeal property under Roman law referred only to
the ownership of the right of general user and all those things which could be valued in currency fell
under the category of incorporeal property.

2) MOVEABLE AND IMMOVEABLE PROPERTY:

Material objects are divided into two kinds.
Movable and immovable.

a. MOVEABLE PROPERTY:
property means property other than immovable, for example all
material property which can be moved from one place to another such as chattels etc.

These become part of the land and lose their identity as separate movable chattels. It must, however, be
noted that physical attachment without the intent of permanent annexation does not make a change in the
nature of the movable property.
For example, carpets or ornaments nailed to the floor or wall of a house or money buried in the ground
are as much a chattel (movable property) as money in the owner’spockets.

Movable property is commonly termed as chattel which has three different meanings
(1) Any movable physical object such as table, money, dog, etc.
(2) Incorporeal proprietary rights such as debts, shares, and other rights in rem which are not rights
over land.
(3) Personal property, whether movable or immovable, as opposed to real property.

b. IMMOVEABLE PROPERTY:
means a certain portion of the earth's surface and the sector below it
down to the earth's centre, all natural objects above or below that surface, all permanent structure built by
human agency on or under that surface and the column of space to infinity above that surface.

Immovable property has been defined in the General Clauses Act, 1897 to include land, benefits to arise
out of the land, and things attached to the earth, or permanently fastened to anything attached to the earth.
 According to Salmond, immovable property (eg: land) has the following elements:
(1) A determinate portion of the earth’s surface:
(2) The ground beneath the surface down to the center of the earth;
(3) The column of space above the surface ad infinitum;
(4) All objects which are on or under the surface in its natural state. eg: minerals, natural vegetation, or
stones lying loose upon the surface.
(5) All objects placedby human agency on or under the surface of the land with the intention of
permanent annexation. Eg: houses walls, fences, doors, etc.

The Transfer of Property Act, 1882 excludes standing timber, growing crops and grass from the
definition of immovable property.
The following are judicially recognised as immovable property-
(1) right of way,
(2) right to collect the rent of the immovable property
(3) a right of ferry,
(4) a mortgagor’s right to redeem the mortgage,
(5) the interest of a mortgagee in immovable property.
(6) right of fishery
(7) right to collect lac from trees.

3) REAL AND PERSONAL PROPERTY:

Corporeal property is divided into real and personal
property. Real property means all rights overland. recognized by law. It is equal to law of property.
Personal property means all other proprietary rights whether in rem or in person. The distinction
between real and personal property is identical with the movable and immovable property. In Roman
law real property was such property that could be recovered by a real action.

It is mostly the product of the history of the law of action in England (Real property means all rights
over land recognised by law. Personal property, on the other hand, means all other proprietary rights
whether they are rights in rem or rights in personam.

Commenting on this distinction, Salmond observed, the law of real property is almost equivalent to the
law of land while the law of personal property is almost identical with the law of movables”.

This distinction between real and personal property has been drawn from Roman law. The real property
and immovable property form intersecting circles which are very nearly though not quite coincident.

RIGHTS IN PROPERTY:
Rights in property is following:

1) PROPRIETARY RIGHTS IN INTANGIBLE THINGS:

Proprietary rights are both in relation to material
and immaterial things. Material things are physical objects and all other things which maybe subject
matter of a right are immaterial things. They are various immaterial products of human skill and
labour. These immaterial forms of property are as follows:
A) PATENTS:

The subject matter of a patent right is an invention such as the idea of a new process, instrument
or manufacture. The person by whose skill labour the invention or a new processor manufacture is
introduced’ has the elusive right of patent in it. This is granted to the inventor by the State.
B) COPYRIGHT:
The subject matter of the right is the literary expression of facts or thought. This right
may be available to writers, painters, engravers, sculptures, photographers, musical and dramatic
personnel for their outstanding work.
When such a person does some creative work by utilising his intellect, skill, and labour, he is entitled
to exclusive copyright which is an immaterial form of property. In short, copyright may be literary
copyright or artistic copyright or musical and dramatic copyright.

C) COMMERCIAL GOODWILL:
Yet another form of immaterial property is commercial goodwill,
trade marks and trade-names. The goodwill of commercial business is a valuable right acquired by the
owner by his labour and skill.
He has exclusive right of use and profit from the business and anyone who seeks to make use of it by
falsely representing to the public that he is himself carrying on the business in question, shall be violating
this right.

2) RIGHTS IN RE-ALIENA (ENCUMBRANCES):

Rights in re aliena are also known as encumbrances.
Encumbrances are the rights of specific or particular user as distinguished from ownership which is right
of general user. Encumbrances prevent the owner from exercising some definite rights with regard to
his property.

The main categories of rights in re aliena or encumbrances are:

(1) Leases, (2) Servitudes, (3) Securities, and (4) Trusts.

A. LEASE:
The Transfer of Property Act, 1882: defines a lease as a transaction in which a party owning the
asset provides the asset for use over a certain period of time to another for consideration either in the
form of periodic rent and/or in the form of down payment.

A lease of immovable property is a transfer of a right to enjoy such property made for certain time. It is
an agreement between the lesser and lessee by which the lesser transfers his right of possession to the
lessee. It is partial transfer, not absolute.

For example, I let out my house to tenants. I have my own rights but as long as the tenants pay rent etc.
They have the right to use my house in return for the rent.
The potential elements of the lease are:
1. Lesser: The person who gives the property on lease.
2. Lessee: The person who gets the property on lease.
3. Subject matter of lease: Mostly immovable property.
4. Transfer of possession: But on hire when the property is movable.
5. Duration of lease and time limit prescribe for the use of property.
6. Consideration: Rent, money or exchange for the enjoyment of a right.

B. SERVITUDE:
It is that form of encumbrance which consists in a right to the limited use of a piece of
land without the possession of it. According to Paton the holder of a servitude has a right in rem which
gives him the power either to put ares belonging to another to a certain class of definitely limited use or
else to present the owner of the res from putting it to a certain class of definitely determined uses for
instance, a right of way over it. The characteristics of servitude are that it does not involve possession of
the land over which it exists and so it differs from lease. Servitude is known as easements.
CLASSIFICATION OF SERVITUDE:
According to Salmond servitude are of two kinds:

1. Servitude appurtenant and Servitude in gross.

2. Public and private.

1. APPURTENANT SERVITUDE AND SERVITUDE IN GROSS:

APPURTENANT SERVITUDE:
It is one which is not only an encumbrance of one piece of land but is
also accessory to another piece of land. It is a right of using one piece of land for the benefit of
another. For example a right of way over another's land, right of support of a building by the adjoining soil,
right of access of light from windows etc.

SERVITUDE IN GROSS:
Servitude is said to be in gross when it is not attached and accessory to
any dominant tenement for whose benefit it exists. For example a public right of way over a particular
piece of land is not attached to the benefit of any other piece of land or Navigation or fishing.

2. PUBLIC AND PRIVATE SERVITUDE:

PUBLIC SERVITUDE:
There are vested in the public at large or in some class of determinate
individuals, e.g. the right of the public to pass over the private land of another.

PRIVATE SERVITUDE:
It is that which is vested in a determinate individual or individuals e.g. a
right of way, of light, or support vested in the owner of one building over the land of a neighbouring
owner, or a right of fishing granted to one in the pond of another.

C. SECUIRTY:
A security is an encumbrance vested in a creditor over the property of his debtor, for
the purpose of securing the recovery of the debt. A right for example, to retain possession of a chattel
until the debt is paid. Security of immovable property is called a "mortgage" of movable property, it is
called pledge.

A right of one man to retain that which is in his possession belonging to another until certain demands
in respect of the person in possession are satisfied is called lien. A lien is a right to hold the property of
another person as a security for the performance of an obligation.

D. TRUST:
A trust is an encumbrance in which the ownership of a property is limited to deal with it for
the benefit of someone else. The owner of the encumbered property is the trustee and the owner of
the encumbrance is the beneficiary. It is an obligation annexed to the ownership of property and arising out
of a confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of
another, or of another and the owner.
MODE OF ACQUISITON OF PROPERTY:
There are four distinct modes of the acquisition of property.
It maybe acquired by:
(1) possession, (2) prescription, (3) agreement, and (4) inheritance.
1. POSSESSION:
By possessing a material object the owner may acquire a legal title to it in two ways.

A. BY OCCUPATION:
A property which belongs to none or cannot be possessed by anybody is called
res- nullius. For example fishes in the sea, animal in forest etc. Occupation is the taking possession of
such property with a view to own it.The ownership could be acquired by occupation only. For
example the ownership of wild animals could be acquired when captured.

B. BY POSSESSORY OWNERSHIP:
When the property of which possession is taken, is already the
property of someone, the ownership acquired by possession is good against all persons but is of no
validity against the true owner. This is called acquiring property by possessory ownership.

It is the objective realization of ownership. The possession of a material object is a title to its ownership.
The de-facto relation between person and thing brings the de-jure relation along with it. He who claims a
piece of land as his own and is also in possession of the same makes it good in law also by way of
ownership. If a person is in possession of athing, he cannot do so forcibly. He has also to seek the help of
law to vindicate his own right. But if a certain property belongs to nobody, the person who captures it and
possesses it has a good title against the whole world. It is similar to how the birds in the air and fishes in
the water belong to the person who catches it.

2. PRESCRIPTION:
The second mode of acquisition of property is prescription. Prescription is the
vesting of rights by reason of lapse of time. It is the effect of lapse of time which in law creates or destroys
rights. It results in acquisition of a right or title by user or possession for such period as maybe recognized
by law as sufficient for the purpose. The laws of limitation are based on the principles that the law aids
the diligent and not the indolent.

According to Salmond: “Prescription may be defined as the effect of lapse of time creating and
destroying rights; it is the operation of time as a versatile effect.” Prescriptions are of two types- positive
acquisitive
prescription and negative or extinctive prescription.
Prescription is of two kinds: Positive and Negative.

POSITIVE PRESCRIPTION:
creates rights. Thus a right of way acquired by constant user for twenty years is
positive prescription.
NEGATIVE PRESCRIPTION:
destroys rights. Thus a right to sue for a debt after the lapse of three years
from the date it became due is lost by negative prescription.
Prescription is not limited to rights in rem. It is found within the sphere of obligations and of
property. Positive prescription is possible only in the cases of rights which admit of possession. Most
rights of this nature are rights in rem. Rights in personam are commonly extinguished by their exercise
and cannot be possessed or acquired by prescription. Negative prescription is common to the law of
property and
 obligations. Most obligations are destroyed by the lapse of time. Their ownership cannot be accompanied
by their possession.

3. AGREEMENT:
Agreement is the third method by which proprietary rights are acquired.

According to Paton, an agreement is an expression by two or more persons communicated to each other of
a common intention to affect the legal relations between them. It is an outcome of a bilateral act. It may be
in the nature of an assignment or a grant. An assignment transfers existing rights from one owner to
another. A grant connotes the assurance or transfer of the ownership of property as distinguished from the
delivery of property. There are some agreements which require attestation and registration of the deed.
There is a general rule that the title of the transferee by agreement cannot be better than that of the
transferor. This is primarily because of the fact that no man can transfer a better title than what he possesses.

Agreement is of two kinds.

A. Assignment.
B. Grant.
ASSIGNMENT:
In the assignment the existing rights are transferred from one owner to another.
GRANT:
In grant new rights are created by way of encumbrance upon the existing rights of the grantor.
4. INHERITANCE:
The last method of acquiring property is inheritance.When a person dies, certain
rights survive him and pass on to his heirs and successors. The rights which are survived by a person are
called inheritable rights. Proprietary rights are inheritable rights. Whereas, generally personal rights
are not inheritable but there are also exceptions to this general rule.

In respect of the death of their owner all rights are divisible into two classes:

A. INHERITABLE.
B. UN-INHERITABLE.
INHERITABLE:
A right is inheritable if it survives the owner.

UN-INHERITABLE:

un-inheritable if it dies with him.

• Proprietary rights are inheritable while personal rights are uninheritable.
• Succession to the property of a person may be either testate or intestate. It may be by means of
a will or without a will. If there is a will, succession takes place by operation of law. If there are
no heirs at all, the property goes to the State.
CONCLUSION:
Property is a source of power, a source of labour and most importantly it is
regarded as the best and the safest form of investment in the modern time. The value of a property
is always appreciated. Knowing the importance of property, it becomes all the more important to know
the historical legal background i.e jurisprudence surrounding the same. It is believed that law and
property were born together and it is a prophecy that the same would die together. These two aspects
are intertwined most intriguingly. Before the laws, property did not exist; take away the laws and property
will be no more. Hence, the property has been regarded with special significance in jurisprudence. Owing
to the reasons listed above, this article tries to help the reader develop a better understanding of property
and its aspects.