PROPERTY

➤ Property may be described as any object which is owned.

➤ According to Bentham - Property includes nothing more than the corporal property that is the ownership of material object alone.
➤ The subject-matter of the law of property is proprietary rights.
➤ According to Austin - Property denotes the greatest right of enjoyment known to the law excluding servitudes.
➤ Jurists have given Theories about Property, the following are the major theories of Property
• Natural Law Theory
• Labour Theory
• Historical Theory

I - 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
➤ Grotius, Locke and Blackstone have supported this theory.

II - LABOUR THEORY:
➤ This theory primarily believes that property can be claimed on the exclusive basis of one’s work, which produced that property. It recognizes
the role of labour for adequate rewards. When a person acquires property, he is entitled to hold it exclusively.
➤ The labour theory of property finds recognition even in the ancient texts of the Hindu law.
➤ The labour theory of property is also sometimes called as the positive theory.

III - 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.

➜ TYPES OF PROPERTY:
➤ CORPOREAL: Corporeal property is coined for those possessions or ownerships that are materialistic or tangible in nature, including house,
car, boat or ring. Anything that can be touched and owned by someone is, therefore, a corporeal property.
➤ Types of Corporeal Property:
➜ Movable & Immovable
➜ Personal & Real

➤ INCORPOREAL: Incorporeal property is defined as the ownership of a property that cannot be touched or felt. Hence, it is intangible in nature.
For instance, shares, copyrights, patents, trademarks, stakes, among others are intangible or incorporeal properties.
➤ Types of Incorporeal Property:
➜ Security
➜ Leases
➜ Servitudes

➜ MODES OF ACQUISITION OF PROPERTY:

There are four distinct modes of the acquisition of property. It may be acquired by
(1) – Possession ➜ It has been stated earlier that possession is the objective realization of ownership. It is prima facie evidence of
ownership. The property which belongs to no one is res mullius, belongs to the first possessor of it and he acquires
a valid title to it as against the world

(2) – Prescription ➜ Prescription may be defined as the effect of lapse of time in the creation and extinction of a legal right. It is the
operation of time as a fact. It has two aspects, namely, positive or acquisitive and negative or extinctive.

(3) – Agreement ➜ Property may also be acquired by agreement which is enforceable by law. Paton defines agreement as an
expression by two or more persons communicated to each other, of a common intention to affect the legal relations
between them.

(4) – Inheritance ➜ The right of inheritance is founded on the assumption that property serves as the best means of social security.
Security of food, dwelling house, and means of living to the members in a joint family was the obligation of the
Karta which barred him from alienating the family foremost obligation property except for legal necessity and family
benefit or seeking relief from distress.
 OWNERSHIP

➜ OWNERSHIP:
➤ Ownership refers to the relation that a person has with an object that he owns.

➤ It is an aggregate of all the rights that he has with regards to the said object.

➤ In the primitive societies, there was no idea of ownership. The only concept that they identified with was that of possession. It was only after
they started settling down by building homes and cultivating land that they developed the idea of ownership.

➜ DEFINITION OF OWNERSHIP:
➤ According to Austin, ownership refers to “a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of
duration.”

➤ According to Salmond, ownership denotes the relationship between the people and the right that is vested in him, that which a man in this
sense is in all cases a right.

➜ ESSENTIALS OF OWNERSHIP:
➤ Indefinite Point of Use – The owner of the property has the right to use it and others have the duty not to use it or not to interfere with the
right of owner.

➤ Unrestricted point of disposition- The owner has the right to dispose of the property at his own will.

➤ Right to possess- The owner has the right to possess the thing which he owns.

➤ Right to exhaust- If the nature of the thing which is owned is such that it can be exhausted then the owner has the right to exhaust it at his
own will.

➤ Right to destroy or alienate- An owner has the right to destroy or alienate the thing that he owns.

➜ THERE ARE TWO MODES OF ACQUISITION OF OWNERSHIP:

➤ Firstly, ownership may be acquired over a thing which has no owner. Such things are known as res nullius and the ownership may be acquired
by possession.

➤ Secondly, there may be things which are already owned by someone else. The ownership in such cases can be acquired using the derivative
method, that is, by way of purchase, gift, inheritance, etc. The acquisition of ownership, unlike possession, has to be done strictly by lawful means

➜ KINDS OF OWNERSHIP:
1. Corporeal and Incorporeal Ownership: Corporeal ownership refers to the ownership of material objects whereas incorporeal ownership refers
to the ownership of a right. Incorporeal ownership can also be said to be the ownership of intangible things. Examples of corporeal ownership
include ownership of a house, table, car, etc. whereas those of incorporeal ownership includes ownership of trademarks, copyright, patents, etc.

2. Trust and Beneficial Ownership: The subject-matter of such ownership consists of property owned by two persons wherein one person is
obligated to use it to the benefit of the other. The person under such an obligation is called the trustee and his ownership is known as trust
ownership. The person to whose benefit the property is to be used is called the beneficiary and his ownership is known as beneficial ownership.
Trust ownership is only a matter of form and not a matter of substance. This means that a trustee’s ownership of the property is only nominal in
nature. He is given someone else’s property fictitiously by law and thereby obligating him to use it to the real owner’s benefit.

3. Legal and Equitable Ownership: Legal ownership refers to the ownership as recognized by the rules of a legal system whereas equitable
ownership refers to the ownership as recognized by the rules of equity. There may be cases wherein law does not recognize the ownership due
to some effect but equity does. In such situations, the ownership is said to be equitable ownership. Legal ownership is a right in rem whereas
equitable ownership is a right -in personam since equity acts are in personam. A person may be the legal owner of a thing and another may be
the equitable owner of the same thing at the same time.

4. Vested and Contingent Ownership: All kinds of ownership may either be vested or contingent. Ownership is vested ownership when the title
of the person is perfect. On the other hand, ownership can be said to be contingent if it is imperfect and can be perfected subject to the fulfilment
of certain conditions. Thus, contingent ownership is conditional in nature.

5. Sole Ownership and Co-ownership: Under ordinary circumstances, a right can be owned by only one person at a time. Such ownership is
known as sole ownership. However, in certain cases, same right may be vested in two individuals at the same time. This is known as co-ownership.
For instance, partners of a firm are co-owners of the partnership property.
 POSSESSION
➜ MEANING:
➤ It expresses the closest relation of fact that can exist between a thing and the person, who possess it. In law, possession means it includes not
only physical control over a thing Example: A has an article in his hand. In other words, he is in possession of that article.
➤ The person who is in possession is called a 'Possessor'. In human life, consumption of material things is very essential and it would be
Impossible without the position of the material things.
➤ Possession is the prime evidence of Ownership.
➤ Usually the presumption is that the possessor of a thing is the owner of it and other claimants to have it must prove their title.

➜ DEFINITION:
John Salmond: Salmond defines Possession as, "possession is the continuing exercise of a claim to the Exclusive use of an object."
Savigny: Savigny defines Possession as, "intention coupled with physical power to exclude others from the use of material object.”

➜ ELEMENTS OF POSSESSION:
It becomes sufficiently clear from the above-mentioned definitions that there are two elements of possessions, namely:

Corpus - Physical control or power over the object possessed

Animus - The intention or will to exercise that power

➜ CORPUS OR PHYSICAL CONTROL:

1. The possessor’s physical relation to the rest of the object;

2. The relation of the possessor to the rest of the world.

➤ Corpus means that the existence of such physical contact of a person with thing as to give rise to a reasonable assumption that the others will
not interfere with it. There may be an actual physical contact, (a coin in my hand or in my purse in the pocket) or there may be the cases when
there is no physical contact e.g., when a person takes out the purse and drops by mistake coin in the gutter; he walks ahead without noticing the
loss– here the corpus remains with him until someone else picked it up.
➤ The second element of the corpus is that the possessor must have the ability to exclude others. There is no hard and fast rule regarding the
amount of power to exclude others.

➜ ANIMUS OR INTENTION:
Animus means an intention to hold possession again all others except the true owner. That is to say, the animus is the conscious of the intention
of an individual to exclude the others from the control of an object. The mental element in the possession may conceivably be manifested in the
following ways:
➤ The person holding the property need not be the owner and may exercise animus to exclude others on behalf of the owners.
➤ Animus to exclude others need not be in the interest of the processor or on his own behalf.
➤ Animus to exclude others need not be specific.
➤ The animus to exclude others need not be based on the legally enforceable claim. It may be the result of a wrongful act.
➤ The animus to exclude others need not be absolute. A person possesses a piece of land notwithstanding the fact that some other person or
even the public at large possesses a right of way over it.
➤ The animus to exclude others must be wide enough to include the actual thing considered.

➜ KIND OF POSSESSIONS
1. Corporeal possession: Objects which have physical or materialistic manifestation, and which our senses can perceive are corporeal possession.
Thus, it is the persistent exercise of a claim on the use of material or tangible objects. Example: House, car, cycle, etc

2. Incorporeal Possession: Objects which don’t have any physical or materialistic manifestation, and which our senses cannot perceive are
incorporeal objects. Thus, it is the persistent exercise of a claim on the use of immaterial or intangible objects. Example Trademark, goodwill,
patent, copyright, etc.

3. Mediate possession: Mediate possession of an object is the possession of a thing through a mediator (middleman) like an agent, friend or
servant. It is also called indirect possession. Example: If a landlord let his house to a tenant. The tenant is bound to hand over the house to the
landlord whenever he decides. So that landlord has the mediate possession of the house through the tenant.

4. Immediate possession: When the possessor himself possesses the property or thing, we call it immediate possession or direct possession.
Example: when I buy a pen from a shop and keep it for myself. The pen is in the immediate possession of mine.

5. Constructive possession: Constructive Possession is the authority over an object without having actual possession or charge of that material.
In other words, we can say that constructive possession is not actually a possession but it is a possession in law and not possession in fact.
Example: The delivery of my key by my car driver. Here my driver was the constructive possessor of my car until he delivers me the key.

6. Adverse possession: Adverse possession means the possession of some property or object, without legal title, for a certain time period,
sufficient to become acknowledged legal owner. Sometimes, we also define it informally as “squatter’s rights”. In actual adverse possession of
some property, the possessor is required to prove an intention to keep it absolutely for oneself. Just claiming the property or paying liabilities for
it, without actually possessing it, is not sufficient.
 LEGAL PERSONALITY

➜ WHAT IS LEGAL PERSON?

➤ Legal Personality is a fiction of law.
➤ The word “Person” is derived from Latin word “Persona” which meant a mask worn by actors playing different roles in Drama.
➤ In law, a person is generally defined as being a subject of bearer of Rights.

➜ LEGAL PERSON: A legal person is any subject-matter other than a human being to which law attributes personality. It includes an object, a
mass of property, an institution, a group of human beings etc. Law treats them as right and duty bearing units or entities like a natural person.
Companies, associations and many other kinds of groups are legal persons. They have been expressly so recognized in a number of statutes.

➤ A Legal personality is also called as Corporate Personality or A Juristic Person.

➤ Legal Person includes those things which are treated in the same way as human beings for legal purposes.
➤ Legal persons have rights and co-relative duties; they can sue and be sued, can possess and transfer property.
➤ Since they’re voiceless, this is mostly done through guardians and representatives.
➤ Gods, corporations, rivers, and animals, have all been treated as juristic persons by courts
➤ In Law there are generally Two Types of Persons:
Natural Person – Consist of living human beings.
Legal Person – Consist of artificial person created by law.

➜ CHRACTERSTICS OF LEGAL PERSON:

➤ Juristic person is a legal entity that has a distinct existence.
➤ independent from its members or shareholders.
➤ It possesses property in its own name, acquires rights, assumes obligations and responsibilities, signs contracts and agreements.
➤ It can be sued or institute legal proceedings exactly like a natural person.

➜ DEFINITION:

According to Salmond – He defined a Person “As any being to whom the law regard is capable of Rights and Duties”.
According to Paton – A legal personality is a medium through which such units are created in whom Rights can be vested.

➜ THEORIES OF CORPORATE PERSONALITY:

1.The Fiction Theory:

➤ This theory posits that legal personality is a legal fiction created by the law to achieve specific social, economic, or political goals. It means
that the law treats certain entities as if they were legal persons, even though they may not possess inherent human-like qualities.
➤ For example, corporations are granted legal personality to function as legal entities, separate from their shareholders.
Salmond also supports the view that a corporation has a fictious existence.

2.The Realistic Theory:

➤ This theory says that corporation has a real personality not a fictitious.
➤ Gierke was the exponent of this theory and tried to criticize the fiction theory. His opinion was that, corporate has a real & recognized
personality and it is not created by law.
➤ This theory also known as sociological theory.
➤ The realist theory argues that legal personality is not the result of a legal fiction but rather a recognition of real-world entities with interests
and purposes that the law seeks to protect

3.The Concession Theory:

➤ This theory is much similar with the fiction theory but not asserts exactly what fiction theory says.
➤ It says that any legal personality can take birth from law itself. It is concession or grant from the side of law that legal personality is created
and recognized.
➤ At certain point this theory is correct because any right or any recognition to any personality would flow from the law. So in order to validate
or recognize any personality, recognition of law is must.

4.The Symbolist Theory or The Bracket Theory:

➤ This theory is somewhat similar to the fiction theory in which human involvement is needed and it also asserts that only human beings are
subjected to legal rights and certain obligations.
➤ According to Ihering, the concept of corporate personality is essential because it is that instrument which makes any objective clear and less
complicated.
➤ And to know the actual position of any business it is important to look behind the corporate veil. So it is with consonance of principle called
lifting of corporate veil.
➤ The bracket theory is often acknowledged for its approachability to justify corporate personality though it was not recognized under common
law jurisdiction because it resists law by concluding that the legal relation could only be detected by removing the brackets of corporation and
analysis the relation of human.