OWNERSHIP – MEANING & ITS KINDS

Synopsis –
1. Introduction
2. Definitions of Ownership
3. Essentials of Ownership
4. Subject Matter of Ownership
5. Modes of Acquisition of Ownership
6. Kinds of Ownership
7. Conclusion

INTRODUCTION

 The concept of ownership is one of the fundamental juristic concepts common to all
systems of law.

 As long as the people were wandering from place to place and had no settled place of
residence, they had no sense of ownership. The idea began to grow when they started
planting trees, cultivating lands and building their homes. The transition from a
pastoral to an agricultural economy helped the development of the idea of ownership.
Thus, The idea of ownership developed by slow degrees with the growth of
civilization.

 To begin with, no distinction was made between ownership and possession in a legal
sense. It was the Ancient Roman law which first recognized the difference in both
terms. Two distinct terms were used to point out the distinction and these were
"dominium" and "possessio" where ‘Dominium’ denoted the absolute right to a thing
and ‘Possessio’ implied only physical control over a thing.

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  The English notion of ownership is similar to the conception of dominium in Roman
law. According to Holdsworth, the English law reached the concept of ownership as
an absolute right through developments in the law of possession.

DEFINITIONS OF OWNERSHIP

1. Austin

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 indefinite nature." Full
ownership is defined as "a right indefinite in duration". It is a right in rem which is
available against the whole world.

According to Austin, the attributes of ownership –

 Indefinite in point of user
 Right of transfer and unrestricted disposition
 Permanence of ownership

Criticisms –
 Ownership is not a single right but it includes a bundle of rights such as right to
use, right to enjoy, right to alienate, etc.,.
 The unrestricted disposition of ownership cannot be available at all times where it
can be curtailed by the limitations of state/sovereign.

In Crowhurst v. Burial Board of Parish of Amersham, the Burial Board was held responsible
for damages to the extent of the price of the horse which died on account of eating a portion
of a yew tree planted by the Burial Board on its own land and about four feet from its
boundary railings. The horse was grazing in a neighbouring meadow and died of the poison
in the leaves of that tree. The owner of a piece of land cannot erect a building on his land in
such a way as to interfere with the use of the adjoining property.

2. Holland

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 The view of ownership as given by Austin has also been followed by Holland.
Holland defines ownership as "a plenary control over an object". According to him, an
owner has three kinds of powers, such as., possession, enjoyment and ownership.
3. Hibbert

According to Hibbert, ownership involves four rights and those are the right of using
the thing, excluding others from using it, the disposal of the thing and the destruction
of the thing.

4. Hohfeld

According to Hohfeld, ownership is a collection of rights, privileges and powers,

some of which are frequently found to reside, either for a limited period or
perpetually, in persons other than the owner.

5. Salmond

According to Salmond, "Ownership, in its most comprehensive signification, denotes

the relation between a person and right that is vested in him. According to him,
ownership is a relation between a person and any right that is vested in him. That
which a man owns is a right and not a thing

Criticisms –
 According to Duguit, ownership is a relationship between a person and a thing
over which he is permitted, on account of this relationship, complete disposal, use
and enjoyment. What is owned is a thing and not a right.
 According to Cook, there are many rights which a person may possess and to use
the term "owner" to express the relationship between a person and a right is to
introduce unnecessary confusion.

The apologists of Salmond point out that Salmond has defined ownership in two
different senses. In the comprehensive sense, ownership denotes the relation between
a person and any right that is vested in him. In this sense, includes both corporeal and

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 incorporeal ownership. In a narrow sense, ownership is a relationship between a
person and a material thing. In this sense, corporeal ownership is included.

ESSENTIALS OF OWNERSHIP

Upon analysing of the various definition of ownership, the following essentials of ownership
can be derived as –

 Indefinite in Point of User

 Unrestricted Disposition
 The Owner has Right To Possess the Thing which he owns. (Right To Possess)
 Owner has the Right To Exhaust the Thing while using it, if the Nature of the Thing
owned is such. (Right To Exhaust)
 The Owner has Right To Destroy Or Alienate the Thing he owns. (Right To Destroy)
 Ownership has s Residuary Character.

SUBJECT MATTER OF OWNERSHIP

The Subject Matter of ownership can be categorised as things that can be owned and things
which cannot be owned –

1. Things that can be Owned –

o Material objects like Land and Chattels
o The Wealth of a Man may also consist as Interests in Land of other people,
Debts due to him by debtors, Shares in companies, Patents, Copyrights, etc.,.

2. Things that cannot be owned –

o Islands outside territory of the State
o Wild animals in the Jungle
o Living persons, corpses, other anatomical specimens (human body parts,
including bones whether obtained from surgery or deceased bodies), the air,
the sun, the moon, the sea, and the stars

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In the Bank Nationalization case 1970, Supreme Court held that property includes not only
tangible things but also intangible things, (Rustom Cavasjee Cooper v. Union Of India (1970
AIR 564, 1970 SCR (3) 530). Likewise, the Supreme Court has held privy purses as property
within the meaning of Article 19 and 31 of the constitution.

MODES OF ACQUISITION OF OWNERSHIP

There are 2 Modes of Acquiring the Ownership such as –

1. Original Mode
2. Derivative Mode.

Original Mode : The original mode is the result of some independent personal act of the
acquirer himself. This mode of acquisition may be of three kinds :

o Absolute : When a ownership is acquired over previously ownerless object i.e. who
took it first became the owner. Example - when one shoots a bird or deer in a jungle
open to public get gets the ownership.
o Extinctive : Where there is extinction of previous ownership by an independent
adverse act on the part of the acquirer, Example - prescription. This is how a right of
easement is acquired after a passage of time prescribed by law.
o Accessory : When requisition of ownership is the result of accession. Example - if
tree bears fruits, the produce belongs to the owner unless he has parted with the right
to the same.

Derivative Mode : When ownership is derived from a previous owner it is called derivative
acquisition. This is derivative mode takes place from the title of a prior owner. It is derived
either by purchase exchange, will, gift etc. Every legal system of the world provides some
rules for the requisition of ownership by this mode. Indian Transfer of Property Act provides
rules for the transfer of immovable property, Sale of Goods Act lays down rule for the
transfer of movable property, Partnership Act for the transfer of property of the firm and the
Companies Act for the transfer of Company property. Thus, the Derivative mode of
acquisition of ownership may be :

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  Title of prior owner
 Purchase
 Will
 Gift
 Transfer of Ownership
 Succession
 Exchange
 Sale

Title of Prior Owner : Agreement is an important means for acquiring property. In

agreement a title is acquired with the consent of the previous owner. A wide connotation has
been given to agreement as the model of acquiring property.

Purchase : A contract for sale does not confer title in immovable property. Section 54 of the
Transfer of Property Act provides that a contract for the sale of immovable property is a
contract that a sale of such property shall take place on terms settles between the parties; it
does not of itself, create any interest in or charge on such immovable property. However still,
if a person has entered into possession over immovable property under a contract for sale and
is in peaceful and settled possession of the property with the consent of the person in whom
vests the title, he is entitled to protect his possession against the whole world, excepting a
person having a title better than what he or his vendor possesses.

Will : This is the one and only instrument, which allows a person to dispose his property
while he is alive and to take effect after his death.

Gift : The Hindu Succession Act has not made any provisions for making a gift by a manager
of a joint family of his interest in the joint family property and as such Section 30 does not
avail to the appellant and clearly of the opinion that the gift by the first defendant are invalid
even as regards his interest in the joint family properties. There can be a valid gift of property
in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering
constructive possession of the property to the donee. Some authorities still take the view that
a property in the possession of a usurper cannot be given away but this view appears to us to
be too right. The donor may lawfully make a gift of a property in the possession of a

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trespasser. Such a gift is valid, the donee or des all that he can to put it within the power of
the donee to obtain possession.

Transfer of Ownership : The rights of a transferee from a co-owner are regulated by Section
44 of the Transfer of Property Act which provides that whereas one or two or more co-owners
of the immovable property legally competent in that behalf transfers his share of such
property or any interest therein, the transferee acquires as to such share or interest and so far
as is necessary to give effect to the transfer, the transferor’s right to joint possession or other
common or part enjoyment of the property, and to enforce a partition of the same but subject
to the conditions and liabilities affecting at the date of the transfer, the share or interest so
transferred. According to this statutory provision also what transferee gets is the right of the
transferor to joint possession and to enforce a partition of the same irrespective of the fact
whether the property sold is fractional share of specified portion, exclusively in possession of
the transferor.

Succession : The natural way of acquiring title to property is by succession. By succession

property devolves on a person as a matter of course by operation of law, partition, custom or
usage under intestate succession and testamentary succession operates in a different way and
is dealt with hereunder.

Exchange : Section 118 of Transfer of Property Act defines exchange as “when two persons
mutually transfer the ownership of one thing for ownership of another, neither thing or both
things being money only, the transaction is called as exchange.

Sale : Sale is the most convenient mode of transfer of immovable property and consequently
purchase is the ideal mode for acquiring title.

KINDS OF OWNERSHIP

Corporeal Ownership 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,

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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 Ownership 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. 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.

‘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.

Trust Ownership and Beneficial Ownership -

Both ownerships are found in a trust involving a trust property. In the trust one is made a
trustee and given property to hold and use such property for the benefits of the beneficiary.

The ownership of the trustee is trust ownership. This is a nominal ownership and is not real as
it is only for the benefit of the beneficiary. In the eyes of law, the trustee is the representative
of the beneficiary and has no right of enjoyment of the trust property. This ownership is only
a matter of form and not of substance as the property is given fictitiously by the law and is
only deemed to be the owner of the property due to the fiction of the law.

The ownership of the beneficiary is the beneficial ownership. Although in the eyes of law
trustee is the owner but between the trustee and beneficiary the latter is the owner of the trust
property. For Example, a property is given to A on trust for B then A is trustee and B is
beneficiary. A has trust ownership, the legal owner in the eyes of law who is obligated to use
the trust property for the benefit of B who has beneficial ownership.

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Legal Ownership 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 Ownership 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 fulfilment of some condition. It is vested ownership, the property is owned
absolutely.

In contingent ownership, the property is owned conditionally. It means that the investitive
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 Ownership 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

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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.

CONCLUSION

Ownership in its nature is residual and can be said to have a bundle of rights attached to it,
but at the same time it also denotes the relation between a person and the thing to be owned.
That throughout the years the concept of ownership and possession has evolved and has been
embedded in the minds of human that may or may not be in a legal sense. It has impacted
society and even society has impacted its definition, meaning, scope and understanding.
Ownership may mean different things to different people but what does not change is the fact
that along with the rights attached comes liability, obligations, duties toward others and
society in general.

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