By Aashank Dwivedi
The Author is a 2nd-year student at Amity Law School .
The concept of ownership is one of the fundamental elements common to all the system of law. Historically speaking the idea of possession came first in the mind of people and later it was the idea of ownership.
The idea of ownership developed by slow degrees with the growth of civilization. The transition from the pastoral economy to an agriculture economy helped the development of the idea of ownership.
Definition of the ownership:
According to Keeton: “ The right of ownership is a concept clearly to understand but difficult to define with exactitude. There are two main theories with regard to the idea of ownership. The great exponents of 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 view, ownership is a relation between a person and a right that is vested in him.”
Essentials of ownership
The following are the essentials of the ownerships are:
- It is unrestricted in point of disposition.
- The right to possess the thing which he owns.
- Owner has the right to exhaust the thing while using it.
- The ownership has a residuary character.
Right of ownership or ownership of a right
Right of ownership or corporeal ownership is the right to the entirety of the lawful uses of corporeal things. The corporeal thing is not so much one right as a bundle of rights, liberties, power and immunities. According to Pollock ownership may be defined as the entirety of the powers of use and disposal allowed by law.
The incorporeal ownership or ownership of right described the jural relation between a person and right. It denoted neither a possessor nor an encumbrancer but the owner of the right. In case of ownership of right it suggests a particular legal relationship between a person and a right.
Kinds of ownership
- Corporeal and incorporeal ownership
|Corporeal ownership||Incorporeal ownership|
|It is the ownership of material objects.||It is the ownership of a right.|
|It is the ownership of those things which can be perceived or felt.||2. It is the ownership of the intangible things.|
|Examples: ownership of house, table, etc.||3. Example: ownership of copyright, a patent or trademark.|
2. Legal and Equitable ownership
|Legal ownership||Equitable ownership|
|Legal ownership is that which has its origin in the rules of common law.||Equitable ownership is that which proceeds from the rulers of equity.|
|Legal rights may be enforced in rem.||2. Equitable rights may be enforced in personam|
|The right rights recognized and protected by common laws are legal rights.||3. The rights recognised by equity courts were called equitable rights.|
3. Vested and contingent ownership
|Vested ownership||Contingent ownership|
|It is vested ownership when the title of ownership is already perfect.||It is vested when the title of owner is yet imperfect but is capable of being perfect on the fulfillment of some condition.|
|Vested ownership is absolute.||2. Contingent is conditional.|
|The investitive fact from which it drives the right is complete in all its parts.||3. It is incomplete on the account of the absence of some necessary element which will never be incable .|
Broadly speaking, there are two modes of acquiring, namely,
Original acquisition of ownership takes place when ownership is acquired by some personal acts on the part of the acquirer. It is of three kinds-
- Absolute– when a thing is acquired which has no previous owner (res nullius), it is done in two ways-
- Occupation – for a thing of which there is no owner, as a bird in the air and a fish in the water, the general rule of Roman law that the first occupier became the owner. In Roman law, the property obtained by conquest was treated as res nullius, and therefore its rules applied. Manu recognized conquest as a mode of acquisition. And also if anyone found the treasure on its land, he took it whole.
- Specification– If a person by working upon a material belonging to another made it into something new, he became the owner of the new product. For ex- if a sculptor made a statue. There are no such rules in modern times.
- Extinctive– when a person by some act on his ownership of the previous owner and acquires its ownership himself, it is called extinctive acquisition. For example, acquisition of ownership by prescription is 12 years in India.
- Accessory– This is called accessory acquisition that is when the ownership of a property is acquired by way of accession to some existing property. Examples are produce of land or animals or fruits of trees. Manu has termed this mode of acquisition as ‘property’ which means acquiring by accession.
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.
Like other countries recognizes the right to ownership in property in India. It is guaranteed and protected right by the Constitution (300A). The right of ownership is subjected to many statutory laws and regulations e.g. sale and transfer of land, land reforms act. The town planning and slum clearance legislation acquiring urban land for public purposes, the landholding ceiling legislation which regulates the possession laws as other laws derived from English law, although we had legacy of those laws.