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. Thus, according to Hibbert
ownership includes four kinds of rights within itself.
Right to use a thing
Right to exclude others from using the thing
Disposing of the thing
Right to destroy it.
Austins definition
Austin while defining ownership has focused on the three main attributes of ownership, namely,
indefinite user, unrestricted disposition and unlimited duration.
Indefinite User
Unrestricted Disposition
Unlimited Duration
The abolition of Zamindari system India , the abolition of privy purses, nationalization of Bank
etc. are some example of the fact that the ownership can be cut short by the state for public
purpose and its duration is not unlimited.
Austins definition has been followed by Holland. He defines ownership as plenary control
over an object. According to him an owner has three rights on the subject owned
Possession
Enjoyment
Disposition
Planetary control over an object implies complete control unrestricted by any law or fact. Thus,
the criticism levelled against Austins definition would apply to that given by Holland in so far
as the implication of the term plenary control goes.
Salmonds Definition:
According to the Salmond ownership vests in the complex of rights which he exercises to the
exclusive of all others. For Salmond what constitute ownership is a bundle of rights which in
here resides in an individual. Salmonds definition thus point out two attributes of ownership:
Ownership is a relation between a person and right that is vested in him
Ownership is incorporeal body or form

MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring ownership which may be broadly
classed under two heads,viz,.
Original mode
Derivative mode
The original mode is the result of some independence personal act of the acquire himself. The
mode of acquisition may be three kinds
Absolute when a ownership is acquired by over previously ownerless object
Extinctive, which is where there is extinctive of previous ownership by an
independence adverse act on the part of the acquiring. This is how a right of easement is
acquiring after passage of time prescribed by law.
Accessory that is when requisition of ownership is the result of accession. For example,
if three fruits, the produce belongs to the owner unless he has parted with to the same. When
ownership is derived from the previous version of law then it is called derivate acquisition.
That is derived mode takes place from the title of s prior owner. It is derived either by
purchase, exchange, will, gift etc.Indian Transferee Acts of property rules for the transfer of
 immovable property, Sale of goods Acts for the transfer of property of the firm and the
companies Act for the transfer of company property.

SUBJECT MATTER OF OWNERSHIP

Normally ownership implies the following:
The right to manage
The right to posses
The right to manage
The right to capital
The right to the income

CHARACTERISTICS OF OWNERSHIP
An analysis of the concept of ownership, it would show that it has the following characteristics:
Ownership ma either be absolute or restricted, that is, it may be exclusive or limited. Ownership
can be limited by agreements or by operation of law.The right of ownership can be restricted in
time of emergency. An owner is not allowed to use his land or property in a manner that it is
injurious to others. His right of ownership is not unrestricted.The owner has a right to posses
the thing that he owns. It is immaterial whether he has actual possession of it or not. The most
common example of this is that an owner leasing his house to a tenant. Law does not confer
ownership on an unborn child or an insane person because they are incapable of conceiving the
nature and consequences of their acts. Ownership is residuary in character. The right to
ownership does not end with the death of the owner; instead it is transferred to his heirs.
Restrictions may also be imposed by law on the owners right of disposal of the thing owned.
Any alienation of property made with the intent to defeat or delay the claims of creditors can be
set aside.

KINDS OF OWNERSHIP
There are many kinds of ownership and some of them are corporeal and incorporeal ownership,
sole ownership and co-ownership, legal and equitable ownership, vested and contingent
ownership, trust and beneficial ownership, co- ownership and joint ownership and absolute and
limited ownership.

Corporeal and Incorporeal Ownership

Corporeal ownership is the ownership of a material object and incorporeal ownership is the
ownership of a right. Ownership of a house, a table or a machine is corporeal ownership.
Ownership of a copyright, a patent or a trademark is incorporeal ownership. The distinction
between corporeal and incorporeal ownership is connected with the distinction between
corporeal and incorporeal things. Incorporeal ownership is described as ownership over
tangible things. Corporeal things are those which can be perceived and felt by the senses and
which are intangible. Incorporeal ownership includes ownership over intellectual objects and
encumbrances.

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by
two persons at the same time. The relation between the two owners is such that one of them is
under an obligation to use his ownership for the benefit of the other. The ownership is called
beneficial ownership. The ownership of a trustee is nominal and not real, but in the eye of law
the trustee represents his beneficiary. In a trust, the relationship between the two owners 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. The latter is called the
beneficiary and his ownership is called beneficial ownership.

Legal and Equitable Ownership

Legal ownership is that which has its origin in the rules of common law and equitable
ownership is that which proceeds from the rules of equity. In many cases, equity recognizes
ownership where law does not recognize ownership owing to some legal defect. Legal rights
may be enforced in rem but equitable rights are enforced in personam as equity acts in
personam. One person may be the legal owner and another person the equitable owner of the
same thing or right at the same time.

The equitable ownership of a legal right is different from the ownership of an equitable right.
The ownership of an equitable mortgage is different from the equitable ownership of a legal
mortgage.

There is no distinction between legal and equitable estates in India. Under the Indian Trusts Act,
a trustee is the legal owner of the trust property and the beneficiary has no direct interest in the
trust property itself. However, he has a right against the trustees to compel them to carry out the
provisions of the trust.

Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested ownership when the title of the owner is
already perfect. It is contingent ownership when the title of the owner is yet imperfect but is
capable of becoming perfect on the fulfillment of some condition. In the case of vested
ownership, ownership is absolute. In the case of contingent ownership 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 owners of the property in question, but their
ownership is merely contingent. It must, however, be stated that contingent ownership of a
thing is something more than a simple chance or possibility of becoming an owner. It is more
than a mere spes acquisitionis. A contingent ownership is based upon the mere possibility of
future acquisition, but it is based upon the present existence of an inchoate or incomplete title.

Sole Ownership and Co-ownership

Ordinarily, a right is owned by one person only at a time. However, duplicate ownership is as
much possible as sole 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 the same time, it is called
co-ownership, of which co-ownership is a species. For example, the members of a partnership
firm are co-owners of the partnership property. Under the Indian law, a co-owner is entitled to
three essential rights, namely
Right to possession
Right to enjoy the property
Right to dispose

Co-ownership and Joint Ownership

According to Salmond, 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.

Absolute and Limited Ownership

An absolute owner is the one in whom are vested all the rights over a thing to the exclusion of
all. When all the rights of ownership, i.e. possession, enjoyment and disposal are vested in a
person without any restriction, the ownership is absolute. But when there are restrictions as to
user, duration or disposal, the ownership will be called a limited ownership. For example, prior
to the enactment of the Hindu Succession Act, 1956, a woman had only a limited ownership
over the estate because she held the property only for her life and after her death; the property
passed on to the last heir or last holder of the property. Another example of limited ownership
in English law is life tenancy when an estate is held only for life.

INTRODUCTION

The concept of ownership is one of the fundamental juristic concepts common to all
systems of law. This concept has been discussed by most of the writers before that of
possession. However, it is pointed out that it is not the right method. Historically,
speaking the idea of possession came first in the minds of people and it was later on that
the idea of ownership came into existence. The idea of ownership followed the idea of
possession.

DEVELOPMENT OF THE IDEA OF OWNERSHIP

The idea of ownership developed by slow degrees with the growth of civilization. So
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. People
began to think in terms of mine and thine. To begin with, no distinction was made
between ownership and possession. However with the advancement of civilization, the
distinction became clearer and clearer. This distinction was made very clearly in
Roman law. Two distinct terms were used to point out the distinction and these were
Dominium and possession. Dominium denoted the absolute right to a thing. Possessio
implied only physical control over a thing. 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.[i]

OWNERSHIP UNDER ANCIENT INDIAN LAW

The right to ownership was also recognized under the ancient Indian law. The great
commentators, notably, narada, Yajnavalkya ,vyas etc. emphasized the right of
ownership of property was to be used for noble cause and good motives. The ancient
hindu law ordained men to behave in a particular manner in relation to person or
property of another. They were warned that misuse of the right of ownership would
entail them moral and public indignation and they would be liable for punishment. The
ancient laws of prescription, bailment, sale, etc. were based on distinction between
ownership and possession.

The ancient hindu jurists mentioned seven modes of acquisition of ownership of

property, namely,

1. Inheritance
2. Gain
3. Purchase
4. Conquest
5. Investment of wealth
6. Employment
7. Acceptance of gifts

According to manu, only property of the king or state could be acquired by conquest but
the king had no right to interfere or acquire the private property of the subjects of the
conquered territory. As regards the property of no-ones land (i.e. res nullius) Manu
says that it belonged to him who first reclaimed it under cultivation. Where a thing had
no previous owner such as bird or a fish, the rule of res nullius was to apply and the one
who took it first was its owner. In case of some treasure was discovered, the person who
found it took the whole of it if it was found on his land, and if it was found on some
others land, he could acquire only half of it.[ii]

DEFINITION OF OWNERSHIP

Ownership, in its most comprehensive signification, denotes the relation between a

person and any right that is vested in him. That which a man owns is in all cases a right.
When, as is often the case, we speak of the ownership of a material object, this is merely
a convenient figure of speech. To own a piece of land means in truth to own a particular
kind of right in the land, namely, the fee simple of it.

Ownership, in this generic sense, extends to all classes of rights, whether proprietary or
personal, in rem or in personam, in re propria or in re aliena. I may own a debt, or a
mortgage, or a share in a company, or money in the public funds, or a copyright, or a
lease, or a right of way, or the fee simple of land. Every right is owned; and nothing can
be owned except a right. Every man is the owner of the rights which are his.

ACCORDING TO KEETON,The right of ownership is a conception clearly easy to

understand but difficult to define with exactitude. There are two main theories with
regard to the idea of ownership. The great exponents of the two views are Austin and
Salmond. According to one view, ownership is a relation which subsists between a
person and a thing which is the object of ownership. According to the second to second
view, ownership is a relation between a person and a right that is vested in him.[iii]

HOLLANDS DEFINITION: Holland defines ownership as a plenary control over

an object. According to Holland, an owner has three rights on the object owned. They
are (i) Possession (ii) Enjoyment (iii) Disposition.

He says that the right of possession is inherent of ownership. However, it may be

separated as in case of mortgage or letting out. According to him, the right of enjoyment
means the right of user and of acquiring the fruits, or in increase of the thing The
right is limited only by the rights of the state or of other individuals. The power of
disposition means not only the power of alienation but it includes the power of
alteration and destruction of the property.[iv]

DUGUITS DEFINITION: According to Duguit ownership is a relation between a

person and a thing. On account of this relation the person has the power of disposal, use,
and employment of the thing according to a regle de droit.[v]

AUSTIN DEFINITION: A widely accepted definition is that of Austin, who defined

ownership as a right indefinite in point of user, unrestricted in point of disposition , and
unlimited in point of duration over a determinate thing.

Indefinite in point of user

It is practically impossible to enumerate the wide variety of ways in which the things
owned may used by the owner. However, the Austin describes ownership as
aindefinite in point of user , it may not be taken to mean that the owner has an
absolute right to use his property in whatever way he likes. All legal system impose
condition on the user of property .It is well accepted that every owner must use the
object of ownership so as not to injure the rights of other persons. For instance, the
owner cannot use his property in such a way as to cause nuisance to his
neighbours. Similarly, an owner cannot prevent the entry of officers of the state into
his property, when such entry is authorized by law as in case an officer of justice
entering the premises of anyone in pursuance of a warrant issued by a court.
Ownership is also subject to encumbrance in favour of others , in which case the
power of user enjoyed by the owner is curtailed by the rights of encumbrances.

Unrestricted in point of disposition

This denotes the absolute rights of alienation enjoyed by an owner as a necessary

incidence of ownership. However, here again limitations exist. The law governing
transfer of property may seriously interfere with the owners power of disposition. For
instance, a transfer of property made with an intent to defeat or delay creditors is not
permissible under the law. This rights of encumbrances also constitute a limitation on
the power of disposition.

Unlimited in point of duration

When we describe ownership as unlimited in the point of duration, it means that a right
is capable of existing so long as a thing owned exists. The right is not extinguished even
on the death of the owner, because ownership devolves upon his heirs who are the
persons of appointed by law to succeed the property remaining undisposed at time of
his death.

This quality of ownership also cannot be taken as absolute. There are situations, which
limit the duration of ownership. For instance, a testator may settle his property on his
widow with a condition that on her remarriage the property shall devolve upon his
children. Here the widow remains the vested owner of the property until her remarriage,
but his ownership is limited in point of duration. The rule against perpetuity is another
limitation upon the unlimited duration and power or disposition of the owner.

Finally, it is to be stated that although be speak a ownership as a right, it would be

preferable to speak of it as a collection of right, liberties,powers and immunities,
following Hohfelds analysis. We must also recognised that some of these rights,
liberties, powers and immunities are frequently found to decide either for a limited
period, or perpetually in persons other than a owner.

SALMOND DEFINITION:

According to the Salmond ownership vests in the a complex of rights which he

exercises to the exclusive of all others. For salmond what constitute ownership- a
bundle of rights which is here in an individual salmonds definition thus point out two
attributes of ownership-

1. Ownership is a relation between a person and right that is vested in him

2. Ownership is incorporeal body or form.[vi]

CHARACTERISTICS OF OWNERSHIP

There are certain characteristics as such:

1. It is absolute or restricted. An owner of a property may be its absolute owner

and nobody else may have any interest in the same. It is also possible that there
may be certain restrictions on the right of ownership and those restrictions may
be imposed by law or by volunatary agreement. An owner may lease out his
property. He may mortgage the same. Thus, he comes to have a limited
ownership. A compulsory restriction may be imposed on ownership if another
person comes to have an easement on a particular property.
2. It is also possible that certain restrictions may be imposed on the owners of
property in times of national emergency. The house of any owner may be
 requisitioned and any compensation may be fixed by the prescribed authority.
The Government may appoint some authority to control the rents charged by the
owners of property.
3. The Government may demand certain taxes from the owners of property. If
those taxes are not paid, the Government may confiscate their property of that
portion of property which is necessary to realisethe money due to the
Government.
4. The ownership of a person does not diminish with his death. He is entitled to
leave his property to his property to his successors. The owner can distribute the
property even in his own lifetime.
5. Certain disabilities have been imposed on infants and lunatics with regard to the
disposal of property. Obviously, they are not competent to enter into valid
contracts. They are not expected to understand and appreciate all the
implications of their actions.[vii]

MODES OF ACQUISITION OF OWNERSHIP

Broadly speaking there are two modes of acquiring ownership, namely, (1) Original,
and (2) Derivative.

1. Original Acquisition of ownership takes place when ownership is acquired by

some personal act on the part of the acquirer. It may by three ways:

Absolute When a thing is acquired res nullius, i.e. , which has no previous
owner.
This has been called Parigrah by Manu who stated that the first striker of an
arrow to a prey whether a bird or wild animal, becomes its owner.
Original acquisition of ownership may also be by specification which means a
person by working up on material belonging to another makes a new thing. For
example, if a sculptor makes a statue from the clay belonging to the another, he
becomes the original owner of that statue.
Extinctive Acquisition of ownership , that is when a person by some act on his
part extinguishes the ownership of the previous owner and acquires its
ownership himself, it is called extinctive acquisition. For example, acquisition
of ownership by prescription or adverse possession for a prescribed period
which is 12 years in India.

Accessio This is called accessory acquisition that is, when the ownership of
property is acquired by way of accession to some existing property. Examples
are produce of lands or animals or fruits of trees. Manu has termed this mode of
acquisition as Prayog which means acquiring by accession.

1. Derivative acquisition When ownership is derived from a previous owner, it

is called derivative acquisition of ownership. It takes place when ownership is
acquired by inheritance or gift or purchase, etc. In the Indian context, the law of
 succession , transfer of property, sales of goods, etc., regulate acquisition of
ownership of the property by derivative mode.[viii]

DISTINCTION BETWEEN CUSTODY, DETENTION, POSSESSION AND

OWNERSHIP

Custody is a relation of a person to an object in which he has no full control over the
thing, in the other words, he has no required animus to exclude others. For example, a
customer examining a piece of cloth in a shop before the shopkeeper who has custody
of that cloth.

Detention is a relation where person has in fact possession over a thing but law due to
certain reasons does not recognize it as possession. For example, a servant has the
detention over things of his master with him.

Possession is a relation of a person to an object which law recognises as possession.

Possession is the external relisation of ownership; it is a valuable piece of evidence to
show the existence of ownership. Possession does not give the right to destroy, waste
or even to alienate the property except by way of a sub- lease.

Ownership is a relation of a person to an object which is exclusive or absolute and

ultimate. The person who stands in this relation is called the owner and he has a right
of complete control and enjoyment of the object. Thus, a right of ownership is a right of
dominium over the property concerned, so as to include the available rights attached to
ownership- the right to possess the property in a de jure capacity, the right to use the
property, as also the right to alienate or even to destroy the property though all those
rights may not be present at the same time.

SIGNIFICANCE OF OWNERSHIP IN MODERN SOCIAL CONTEXT

Ownership is a socially significant concept because it is an index of wealth,and social

position. Ownership of land was means of controlling government. In a feudal system
based on land ownership, the feudal lords wielded tremendous influence,and even the
qualification to vote was based on ownership of land. The social aspect of ownership
also highlights the important principle that on owner shall enjoy his interest in a manner
compatible with the interest of others. As Lord Evershed said; Property like other
interests has a social obligation to perform. The extent of this social obligation reflects
the social policy of the legal system.[ix]

It is important to remember that ownership is not merely a bundle of rights, liberties and
powers. It is also carries with it corresponding burdens in the nature of duties,liabilities
and disabilities which prescribe and regulates how an owner should utilise his property
for the benefit of other individuals or society. Property owned by person is liable to
execution for the debts incurred by him. The liability to pay property tax,wealth tax,etc,
is also imposed in the social interest. When control legislation imposes restriction on
the way in which one may use his property.
The typical individualist approach to ownership is reflected in the definition of
Austin,which we have analysed earlier. However,gradually the emphasis began to shift
from the individual to society-from ownership as a fundamental right of property to the
wants of people and ones duty towards others. It came to be recognised that limitation
are integral to the concept of property,and not exception to an otherwise unlimited
right.

The Marxist theory of ownership draws attention to the evil role it has played. It
begins with individual working with its own tools and raw materials. Later,the profit
accumulated through trading manufactured products elevates him to position to provide
the tools and raw materials, and get other people to provide the labour.The
manufactured products, however remain in his ownership,not in that of the labourer,
and he continues to trade it as his own property. It is the concept of ownership that
enables the exploitation of workers. Ownership of the means of production-tools and
raw materials-became a source of power over persons for private profit.

This promoted inequality, because using the power of dismissal and threat of
unemployment and consequent starvation,the employer was able to dictate unfair terms
of service. The owners of the means of production became industrial commanders
wielding enormous powers that strike at the fundamentals of society.

Karl Renner,following the Marxist analysis,expressed the view that law should take
account of the increasingly public character of ownership of property by investing it
with the characteristics of public law. Two concepts of ownership a public and a
private,have to be recognised. Ownership of the means of production should be
public,that is nationalised,and only ownership of consumer goods should be opened to
private individuals. The distinction lies not in the nature of ownership,but in the things
capable of being owned.

Dr. Friedmann writes that the concept of ownership has exerted considerable
influence as a source of social power in various stages of the development of society.

Professor Renner has traced the gradual evolution of ownership in its social
perspective. He pointed out that in early stages of development of society the owners of
industries had to themselves collect tools, raw materials and labour resources to run the
industry and they earned huge profits by the sale of their products. When they amassed
sufficient wealth, they could afford to hire labour and run the industry by providing
tools and raw material to them. The industrialist was still the sole owner of the goods so
produced and had complete ownership of the profits earned by the industry. Thus the
ownership of means of production become the source and symbol of power and social
status which the industrialists enjoyed on the strength of the labour working under them.
This eventually led to the development of management labour relationship in the field
of industries. The power of the employers to sack and change the service conditions of
workers arbitrarily exhibited their influence in the society as a dominant class.
However, in course of time, the labour movement raised voice against the exploitative
tendencies of indutrialists and capitalists as a result of which public ownership gained
primacy over private ownership. The policy of nationalization of industries adopted by
progressive socialist countries is directed towards the fulfillment of this objective.[x]

Dr. Friedmann attributes three main reasons for the declining influence of private
ownership in modern social order.

Firstly, the gap between employer and labour class is gradually narrowing down due to
trade union movement, nationalization of industries and national insurance schemes
and now the employers can exploit the workers by misusing their power. As a result of
this the bargaining power of both the entrepreneurs and the workers is more or less
equal.

Secondly,The profiteering by industrialists has been considerably regulated through

legislative measures and effective tax laws.

The industrialists are now required to contribute a considerable part of their income and
profit to the public fund of the state. This has helped in equitable distribution of wealth.

Thirdly, the encouragement provided to the corporate sector in recent decades has
helped in separating the power element from ownership. During the capitalistic era,
both ownership and power are centralized in the industrialists which was detrimental
for the labour class. But today the real power vests in the management comprising
experts in their respective fields and the owners are divested of this power. Thus power
has been separated from the ownership. Furthur in order to ensure that the management
does not misuse their power and authority, comprehensive company legislation and
labour and industrial laws have been enacted by almost all countries.[xi]

Dias and Hughes have observed that in order to appreciate the role of ownership in the
present social order, its formal analysis shall not serve any useful purpose, instead there
should be greater emphasis on its functional analysis.[xii]

CONCLUSION

Ownership and possession are two words, which we commonly use in our daily life
without thinking about their legal incidents or consequences. However, even when we
use these words in our ordinary conversation, we generally associate certain rights and
obligations with these words .It is surprising that a child who has not learned these two
words is capable of understanding the meaning of these words, and also the difference
between the concepts of ownership and possession.

For instance, if you give a toy as a birthday gift to a child, he/she immediately
understands that the toy belongs to him/her. He/ she considers himself/herself as the
owner of the toy,and does not permit other to touch it.

If he / she permits another child to play with the toy, he/ she expects that it will be
returned to him/her after same time. In his/her mind there is a clear knowledge that
he/she parting with the possession of the toy , but has no intention of giving up
ownership .

On the other hand, he/she may voluntarily give the toy as a gift to her dear friend. Now
he/she has no expectation of getting it back, and knows that he/she has relinquished not
only the possession of the toy, but also its ownership .

Law converts these simple ideas to legal concepts by defining their meaning with
precision and refinement. Ownership as a legal concepts denotes a legal relation
between a person who is called the owner of the right , and a things over which he can
exercise certain rights. The right of ownership is the most complete and supreme right
that can be exercised over anything.

It consist four rights, namely: 1.Using the things;2.excluding others from using it;
3.disposing of things; and4.destroying it.

Ownership is a socially significant concept because it is an index of wealth, and social

position. Ownership of land was means of controlling government. In a feudal system
based on land ownership, the feudal lords wielded tremendous influence, and even the
qualification to vote was based on ownership of land. The social aspect of ownership
also highlights the important principle that on owner shall enjoy his interest in a manner
compatible with the interest of others.

As Lord Evershed said; Property like other interests has a social obligation to perform.
The extent of this social obligation reflects the social policy of the legal system.

It is important to remember that ownership is not merely a bundle of rights, liberties and
powers. It is also carries with it corresponding burdens in the nature of duties, liabilities
and disabilities which prescribe and regulates how an owner should utilise his property
for the benefit of other individuals or society. Property owned by person is liable to
execution for the debts incurred by him. The liability to pay property tax, wealth tax, etc,
is also imposed in the social interest. When control legislation imposes restriction on
the way in which one may use his property.

The typical individualist approach to ownership is reflected in the definition of Austin,

which we have analysed earlier. However, gradually the emphasis began to shift from
the individual to society-from ownership as a fundamental right of property to the
wants of people and ones duty towards others. It came to be recognised that limitation
are integral to the concept of property, and not exception to an otherwise unlimited
right.

Jurisprudential Concept of Ownership

1. Introduction to the Concept of Ownership
The concept of ownership is one of the fundamental juristic concepts common to all
systems of law. It is of both legal and social interest in nature. Not only the Courts utilized
the idea in such a way as to give effect to views of changing individual and social interest,
but so great are it's potentialities that in recent times it has become the focus of
Government policy.

Ownership consists of an innumerable number of claims, liberties, powers

and immunities with regard to the thing owned. According to some jurist a
person owns a house means he has just those claims in respect of it.
According to them there is no point in having the concept of ownership
without these claims. Though may jurists do not agree with this view,
according to them it is undesirable to have this concept of ownership only
linked with certain claims. It is also been said that a person may part with the claims
etc. to a greater extent, while retaining the right of ownership. Thus a person who has
ownership over a plot of land against fee simple, may grant the leasehold of it to another
with the result that his ownership is denuded of most of its content. As long as he has the
fee he is 'owner,' which shows that his right of ownership is distinct from its contents.[1]

The idea of ownership developed by slow degrees with the growth of civilization. So 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 land, building their homes. The transition from a pastoral to an
agricultrual economy helped the development of the idea of ownership.
People began to think in terms of'mine and thine[2]. To begin with no distinction
was used to be been made between ownership and possession. However, with the
advancement of the civilization the distinction became clearer and clearer. This
distinction was made very clearly in Roman law. Two distinct terms were used to
point out the distinction and these were 'dominium' and
'possessio.'[3]Dominium denoted the absolute right to a thing. Possessio
implied only physical control over a thing. The English notion of ownership
is similar to the concept of dominium in Roman law. According to Holdsworth,
the English law reached the concept of ownership as an absolute right through
development in the law of possession.

1. Definitions of Various Thinkers

According to Keeton, "the right of ownership is a conception clearly easy to understand

but difficult to define with exactitude. There are two main theories with regard to this
idea of ownership. The great exponents of the two viewers are Austin and
Salmond. According to one view, ownership is a relation, which subsists between a
person and a thing, which is the object of ownership. According to the second view,
ownership is a relation between a person and a right that is vested with him."[4]
According to the 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."
According to him full ownership is defined as "a right indefinite in point of user,
unrestricted in point of disposition and unlimited in point of duration." Therefore, it is
right in rem. i.e. against the whole world.

1. According to Austin, the first attribute ownership is that it is indefinite in

point of user because the owner in whatever way he likes to use may use the
thing that owned. In case of complete ownership it can only be restricted by
means of operation of law. But there are two basic principles;

a) Use your own property and not to injure your neighbour's.

b) It is not lawful to build something upon your land to the injury of another. In the case
of, Crowhurst v. Amersham Burial Board,[5] it was held that the burial board is
responsible for damages to the extent of price of the horse which died on account of eating
a portion of a yew tree planted by the burial board on it's own land.

2. The second attribute of the ownership is a right of transfer or disposition

without any restriction. But generally in most of the legal system there is a
reasonable restriction.

3. The third attribute of the ownership is the permanent nature of the right
ownership. According to Austin right extinguishes only with the destruction
of the thing, which is owned.

4. But Austin also says that this right of ownership can be transferred by
way of succession.

Holland is also the follower of same view. According to Holland, Ownership is a

plenary control over object[6]. The right is limited only by the rights of the state or of
other individual.

According to Hibbert, ownership involves four rights and those are the rights of using
the thing, excluding others from using it, disposing of the thing, and the destruction of
it.[7]

According to Pollock. "ownership may be described as the entirety of the powers of use
and disposal allowed by law. This implies that there is some power of disposal, and in
modern times we should hardly be disposed to call a person an owner who had no such
power at all, though we are familiar with 'limited owners' in recent usage. According to
him we must not suppose that all the powers of an owner need be exercisable at once and
immediately; a person may remain owner though the person has parted with some of
them for a time. In short, the owner of a thing is not necessarily the person
who had at a given time has the whole power of use and disposal; very
often there is no such person[8].

According to the Salmond, Ownership is in its most comprehensive signification,

denotes the relation between a person and that right is vested in him. That which a man
owns is in all cases a right. According to Salmond to own a piece of land means
in truth to own a particular kind of right in the land, namely the fee simple
of it."[9] According to him ownership may extend to all classes of right, whether
propriety or personal in rem or in personam, in re propria or in re aliena.

1. Essentials of ownership

1. It is indefinite in point of user[10]. It is impossible to definite or sum

up exhaustively the wide variety of ways in which the thing owned might be used
by the person entitled to its ownership. A person not being the owner may be
entitled to possess or use a thing for a limited period. But in case of an owner, it is
of an intermediate duration. Interest of the owner is perpetual. Under all mature
legal systems, qualifications have been imposed on the user of the property. It is
now a settled principle that every owner must not injure others for enjoying the
property.

2. Another important essential of ownership is that it is unrestricted in

point of disposition. The right of alienation is considered by Austin
as a necessary incident of ownership. An owner can effectively dispose of
his property by way of conveyance during his lifetime or by will after death. But it
is not completely free from restrictions. If it is found that the aim of this transfer is
to defeat the creditors then it can be restricted.

3. The owner has a right to possess the thing, which he owns. It is

immaterial whether he has actual possession of it or not. But the essential thing is
that he should have the right possession.

4. An owner may part with several rights in respect of the thing that is owned
by him. In spite of that, he continues to be the owner of the thing in view the
residuary character of ownership.

5. The owner has the right to destroy or alienate the thing he owns. Now
right to destroy is no more an essential.

4. Types of ownership

There are different kinds of ownership; some of them are corporeal and incorporeal,
sole ownership and co-ownership, legal and equitable ownership, vested and
contingent ownership, trust and beneficial ownership, absolute and limited
ownership.

Corporeal and incorporeal ownership: - Corporeal ownership is the ownership

of a material object (e.g. house) and incorporeal ownership is the ownership of a right
(e.g. intellectual property)[11].
Sole ownership and co-ownership.-When a person owns a property in one time
it is called sole ownership. If the property is owned by more than one person then it is
called joint ownership. By means of partition one person can have co-ownership
converted into sole ownership.[12]

Legal and equitable ownership. - Legal ownership is that which has its origin in
the rules of common law and equitable ownership is that which proceeds from the rule
of equity. There are some cases where equity recognizes ownership where law does not
recognize ownership owing to some legal defect. First right can be enforced in rem
whereas second one is available in person.'[13]

Vested and contingent ownership.-If the owner of a property is having perfect

title over a future property then that will be called as property with vested interest. If
the owner is having imperfect title over such future property then that is called as a
property with contingent interest. In the first case the person is having perfect title
over such property while in the second case the person is not having such title.

A spes successionis[14] or chance of succession is the expectancy of an heir to succeed

to the property of a relation on the latter's death.

In Sashi Kantha v. Pramodechandra[15], the Calcutta High Court has pointed

out the distinction between this vested and contingent interest over the property. In
this case it was held that in the vested ownership there is the immediate
right of present enjoyment or a present right of future enjoyment but if
the right of enjoyment is made to depend upon some event or condition,
which may or may not happen then it is contingent ownership.

Trust and beneficial ownership. - Trust ownership is an instance of duplicate

ownership where two persons own property at the same time. The relation between
the owners is such that one of them is under an obligation to use his ownership for the
benefit of the other. This ownership is called beneficial ownership.[16]

Absolute and limited ownership.-An absolute owner is one in whom are vested
all the rights over a thing to the exclusion of all. When there are limitations on the user,
duration or disposal of rights, of ownership, the ownership is limited ownership.[17]

5. Indian concept of ownership

The scope of the right of swamitva (ownership) of property as comprising of title to

the property with bhukti or bhoga (possession) or if not in possession the right to be
in or to get possession of the property, as also right for possession with title but with
limited rights, or even with out any right, are covered by specific persons in the
smritis[18]. According to jurists, ownership is possession coupled with a
legitimate title[19].

In Bramha Puran[20] seven modes of acquisition of title are given.[21] There it

has been also said that the property obtained at partition or by
inheritance or by royal grant is recognized as someone's real property.
Therefore there is no dispute about the ownership in this case. It was
said that acquisition of property by illegitimate means did not confer
right of ownership.

In ancient time there were two types of ownership, depending upon the power to sale.
These are, a) absolute ownership, b) limited ownership. In case of absolute
ownership they had right to sale the property because the person has acquired
absolute title over it. But in case of limited ownership, the person on possession of the
property did not have absolute right to sale or dispose of the property, e.g. mortgage.

In ancient Indian concept the property was considered to be of two

kind, Jangama (movable) and sthavara (immovable). In the laws relating to the
purchase and sale both are considered to be Panya[22] (saleable property). There it
was said that a person who is the owner of a property, whether movable and
immovable, is entitled to transfer his ownership to another person through sale. In
ancient time, which is mostly found in smrithis is that they used to consider sale as a
valid mode of transfer like present time. In smritikara time, only a person having a
proper valid title over the property could transfer it. In Yagnabalka writings also, it
could be found that the shift or sale made by any person other than is owner is null
and void. Those smritikaras in fact gave more importance to concept of ownership
than recent time.they even said that the gift or pledge made without real ownership
should be rescinded whereas now it is voidable at the option of the real owner.

Rama Jois has opined that the essential under the ownership of Hindu law
was the title of the property. He states that through the ancient Hindus
considered possession to be one of the important attributes of
ownership, they didnt consider possession to be absolute proof of
ownership. Therefore, for a valid transfer, ownership over that property was
considered the most essential element[23].

The ancient texts held that when it is established that if a vendor sold the property
without actual ownership then he should restore the property to the actual owner and
should pay the vendee the price received by him, and shall also pay a fine to the
kind[24]. In those ancient texts it was also found that in this regard criminal justice
system was very much in force and thus in all complaints relating to sale without
ownership, it was the duty of the buyer to produce the vendor before the Court and
himself to prove that the purchase made by him was under a honest and bona fide
belief that the property belonged to the vendor. But at the same time there were
provision, which said that if the person who is claiming his ownership
fails to prove it then he will be liable to be punished like a thief by the
king."

Katyayan[25] in his writing has said that when the purchase of a property has been
made before a group of merchants and in frontof the officer of the kind then the
person claiming the ownership may get back the property after paying half the price of
the property and the reason given for this was a sort of punishment for the real owner
of the property for not being careful about the property.

Manu[26] has said that if the offender (who sells the property without
ownership) is a kinsman of the real owner, he shall be fined six hundred
panas. It was said that if the person is not a kinsman then he should be
guilty of theft.33 Further it has been said in his writing that if a sale or
gift of a property is made without real ownership then it will be
considered to be null and void. He also gave a lot of importance to the
proof of a person's ownership. According to Manu where the possession
is evident, but no title is perceived, there the title shall be a proof of an
ownership.[27]

In ancient time the king was considered to be the lord of only land and not other kind
of wealth. In fact king's right was restricted to only one-sixth of the income from the
land. Thereby that time king only had a limited ownership over land, real ownership
vested with the individuals on various modes. Though that time the ownership
over land was granted to individuals, the right to minerals and mining
was still in the domain of the kinds. Therefore the king was having
monopoly over mines and mineral.

Also after the framing of Constitution the growth with regard to the concept of
ownership continued to develop as such. In this respect the Apex Court of India took
some important initiatives.[28] In old law the concept of 'acquisition and
'requisitioning' of property referred to entry 42, List III, Sch. VII of our Constitution.

The provisions in Articles 299 and 300 were results of considerable thought and
debate. In its report, Joint Parliamentary Committee[29] on Indian Constitutional
reform said in its report that an appropriate provision should be made in order to

"Secure that legislation expropriating or authorizing the expropriation of the

property of particular individuals should be lawful only if confined to expropriation
for public purposes[30]" and if compensation is determined, either in the first
instance or in appeal, by some independent authority. General legislation, on the
other hand, the effect of which would be to transfer to public ownership some
particular class of property, or to extinguish or modify the rights of individual in it
ought, we think, to require the previous sanction of the Governor general or the
Governor too its introduction, and in that event he should be directed by his
instrument of instructions to take into account as a relevant factor the nature of the
provisions proposed for compensating those whose interest would be adversely
affected by the legislation ."[31]

Therefore it can be stated from the report submitted by the JPC that in
India there was private owned property, more accurately, "vested
interest," which require specific protection, namely, grants of lands or
of tenure of land free of land revenue, or subject to partial remission of
land revenue, owned under various names, of which taluk, inam, watan,
jagir, and muafi were examples, such grants were perpetual. These grants
had the authority of the British Governemnt that on the due observance by the grantee
of the specified conditions, the rights of himself and his successor would be respected
for all time or for the duration of the grant. The sanad granted by Lord Canning to the
taluqdar of Oudh was an instance of a grant in perpetuity, the rights conferred by the
Sanad being permanent, hereditary and transferable. In connection with this kind of
property the JPC said -

....Some of the claims to protection which have been urged upon us would be
satisfied by little less than a statutory declaration which would have the effect of
maintaining-unaltered and unalterable for all time, however, strong the justification
for its modification might prove to be in the light of changed circumstances, every
promise or undertaking of the kind made by the British Government in past. We
recommend, however, that the Constitution Act should contain an appropriate
provision requiring the consent of the Governor-general or the Governor, as the case
may be to any proposal, legislative or executive, which would alter and prejudice the
rights of the predecessor of any privilege of the kind to which we have referred."[32]

The above mentioned rights generally belonged to individuals before. The JPC also
dealt with the rights of zamindars and others in parts of the UP and Madras in the
eighteenth century.

In Indian concept a contract for sale of immovable property creates an

enforceable obligation and not any interest or charge on it. According to
Indian concept of ownership only legal ownership not dual
ownership[33] is legal as well as equitable and is recognised under the
law[34].

The Indian law does not recognize legal and equitable estates. Therefore there can be
one 'owner.' Where the property is vested in a trustee. The right of beneficiary is, in
proper case, to call upon the trustee to convey to him. Until conveyance he is not
the .owner.[35]

The 'transfer of ownership' marks the difference between a sale and a mortgage. In
case of mortgage, the mortgagee holds the property as a security or debt, and not
absolutely, and therefore is having limited interest on the property[36].

In Indian law, relinquishment does not pass ownership[37]. In a case

further it was stated that title to land couldn't pass by admission with regard to
relinquishment of it.[38]

In Krishna Tanhaji v. Aba Shetta, It has been stated that compromise with regard
to a property Is only an acknowledgment of the existing rights and there is no transfer
of property and, therefore, by way of a compromised decree no valid sale can be
entered into[39].
In Indian law the concept of co-ownership was also well recognized;
according to Indian laws co-owner is not allowed to cause prejudice to
other co-sharers by putting up a substantial construction during the
pendency of a suit. Thus it can be said that in Indian law the concept of
co-ownership is still well recognized. But in case of dwelling house if the
co-owner is not in actual possession of the property, then it cannot be transferred[40].
But a co-owner will have a right to resist sale of a property owned by him jointly, when
the property is going to be sold to a third party.

In Indian law co-owner is entitled to have three essentials of ownership,

right to possession, right to enjoy, and right to dispose. Therefore if an
owner is deprived of his property, he has right to be put in possession
thereof. All the three' essentials are satisfied in thee case of co-owner of
a land. Such co-owner has an interest` in every infinitesimal portion of the
subject-matter and each has the right, irrespective of the quantity of his interest, to be
in possession of every part and parcel of the property, jointly with others. Therefore, it
can be said that jurisprudentially it is not correct to say that co-owner of a property is
not its real owner.

6. Western concept of ownership

The term "ownership" is often used to describe generally the position of

any person who has a right or right over thing. That is any person who
has a right over a thing (j us in re) is called the owner of that right [41].
Some writers deprecate the use of the term in such cases and restrict the term to
material objects only, but we must admit that between the ownership of a thing and
the ownership of a right there is much similarity. Both owners have jus in re and
in rem. Both deal with the object of their right as they please. Salmond treats it as
a relation between a person and any right vested in him.[42] Jurists like
Cook have severely criticized the idea, which says that a man owns a land or any peace
of a material object means he owns a particular right.

Ownership in English law has to be approached historically, for its

evolution is bound with the remedies that used to be available. The
piecemeal development through actions prevented the formation of a
clear cut development. The reason for such argument is that unlike
Roman law it did not have anything like absolute ownership.

According to Maitland, quoting Dr. Murrary, the term 'owner' occurred in 1340,
and the term 'ownership' in 1583.[43] A further step in the differentiation
of seisin and possession came with the tenant of years. Whereas seisin was protected
by the writ of right, the termors interest was protected by a form of trespass. de
ejection firmae. A man's interest was not seisin, it was styled possession, which
sharpened the contrast between seisin and possession. In modern law there are
many cases, which show that ownership of land is only a question of the
'better right' to retain or obtain possession relative to other party to the
dispute.

The development of the law relating to chattels took different line. There was nothing
resembling a doctrine of estates. Land holding, not the possession of chattels, was the
index to a person's public and private position. Chattels were of comparatively little
significance and there was, no ownership in them. They had a fungible character, that
is to say, transfer or restoration of equivalent chattels sufficed and later money. This
was because, in the nature of things, the interest of a person in a particular chattel was
neither so important nor so permanent as his interest in the land. Maitland doubts
'whether there was any right in movable goods that deserves the name of ownership.

To ascertain ownership over a property the concept of trespass was also introduced.
The idea of 'better right' to obtain or retain possession evolved
through trover and detinue: the plaintiff could succeed if he could have established a
'better right' over that property. Once again, this enabled the defendant to raise the jus
tertii as a defence and as in the case of land, there has been dispute as to how far this
required a plaintiff to prove an absolute right." The Sale of Goods Act 1979 refers to
'the property' in goods, which in this context means ownership' In this regard Sir
Raymond Evershed MR has made certain very important observation.[44]

There are few other points where the researcher thinks that he should
focus discussion.

The term 'ownership' is used with reference to things. It can be of

two types (a) 'corporeal' with reference to certain objects, (b)
'incorporeal things' with respect to certain rights. The use of the
phrase 'corporeal ownership' with reference to physical objects is simple, and
had the term 'incorporeal ownership' embraced all claims that too would have
been simple. The term incorporeal ownership applies only to some claims as
far as 'things' are concerned not to others, as then it may appear that
ownership is incorporeal.[45]

Ownership is needed to give effect to the idea of 'mine' and 'not

mine' or 'thin.' One aspect of it is that the idea becomes necessary
only when there is some relation between persons. It is at least one
 other person joins him that it becomes necessary to distinguish between
things that are his and those that are not his, and also to determine what he
may do with his and also to determine what he may do with his things so as
not to interfere with his companion. Therefore without the society there is no
need of 'ownership.'

The right of ownership comprises of benefits and burdens.

The claims, which compromise the content of ownership, may be

vested in person other than the owner.

An owner may be divested of his claims to such extent that he may be left with
no immediate practical benefit.

The ways in which the ownership arises differ in different

systems. These variations depends upon historical and policy consideration.
In English law that a contract for sale of specific goods can in certain
circumstances pass immediate ownership without the need for any further
conveyance. In civil law for the transfer of civil law ownership in certain kinds
of things known as resmancipi.

Lastly it may be said that a person is owner under English law when a
person becomes entitled in specified ways to something designated as
such, the scope of which is determined by policy; and his interest,
constituted in this way, will outlast the interests of other persons in the
same thing.

7. Conclusion

While analyzing this paper the research has come to certain conclusions. Those are as
follows,
 Ownership consists of an innumerable number of claims, liberties, powers
and immunities with regard to the thing owned.

According to some jurist a person owns a house means he has just those
claims in respect of it. According to them there is no point in having the
concept of ownership without these claims. But many jurists have disagreed
on this idea of ownership. According to them ownership means a bundle of
right.

In fact this right includes complete control over a property, this gives the
owner a power to alienate and even destroy the property.

In ancient Indian concept the property was considered to be of two kind.

Jangama (movable) and sthavara (immovable). In the laws relating to the
purchase and sale both are considered to be Panya (salable property). There it
was said that a person who is the owner of a property, whether movable and
immovable, is entitled to transfer his ownership to another person through
sale. In ancient time, which is mostly found in smrities is that they used to
consider sale as a valid mode of transfer like present time. In fact in India the
right of swamitva (ownership) of property as comprising of title to the
property with bhakti or bhoga (possession). In Indian concept of ownership
the researcher found out that there was a development of & criminal
jurisprudence as he has found out that in case of transfer without ownership
or fraudulent transfer there was instances where the person was fined. In
ancient time property was largely held by major holders like taluk, inam,
watan, jagir, and muafi. In India the concept of co-ownership is still well
recognized. According to Indian laws co-owner is not allowed to cause
prejudice to other co-sharers by putting up a substantial construction during
the pendency of a suit. But in case of dwelling house if the co-owner is not in
actual possession of the property, then it cannot be transferred. Therefore, it
may be concluded that In case of co-owner in India there is no absolute
ownership.

In western concept there are both corporeal and incorporeal properties. There
ownership comprises of benefits and burdens. In western concept of
ownership the owner may be divested of his claims to such extent that he may
be left with no immediate practical benefit. Though a person who holds any
property without owner's concept was considered to be a trespasser. Also in
western concept of ownership in some cases there can be a transfer of property
without a valid execution of deed.

Therefore Indian and Western concept of ownership can be distinguished in certain

points. In India we had concept of movable and immovable property from the ancient
time. In western countries they had corporeal and incorporeal property.
Though subsequently there has been recognition for both these concepts
in other places. But in India there was no valid transfer till today
without a proper executed deed, even in Indian concept there has been
no recognition of a valid transfer of ownership in case of a settlement
deed. But in certain cases in western countries ownership could have
been transferred without proper execution of a deed. Also in ancient Indian
concept there was a presence of a limited amount of punishment for a fraudulent
transfer. Western countries are now adopting this concept of punishment also. The
researcher thinks that there should have been a development of new jurisprudence
where there is presence of both western and Indian concept of ownership.

Lastly the researcher thinks that with the recognition of intellectual property right
there has been a requirement of redefining the concept of ownership because in case
of intellectual property the idea of assignment is a sort of transfer of limited
ownership, and also the concept of moral right thus required to be revised, as it can be
transferred only in certain cases.

References

Books

1. Salmond, Jurisprudence, 4th Edn. Butterworths Publications, New

Delhi.

2. V.D. Mahajan, Legal Theory and Justice, Orient Longman Pub., New
Delhi (1991).

3. Holland, Jurisprudence, 4th edn. Sweet & Maxwell Publishers

(London).

4. Rama Jois, Legal and Constituional History, Universal Law

Publishers, New Delhi (1986).

Articles

1. Kunal Chatterjee, Indian Concept of ownership, AIR 2004 Journal 222

2. Ownership, Great Books.

3. Articles on Jurisprudential concept of property, Course material on

Property LawI, National Law Institute University, Bhopal.

Statutes

1. Constitution of India

2. Transfer of Property Act, 1882

3. Sale of Goods Act, 1930