The Concept of Ownership

The Concept of Ownership

The first term that comes to our mind on hearing the word “Ownership” is property, i.e. he/she is the owner of so and so property. The concept of Ownership is indeed closely related to the concept of Property. Austin talked more about ownership with respect to property while Salmond highlighted the relationship between Ownership and Right. Before, proceeding to understand the Concept of Ownership we should understand the various dimensions of Property. Property can be used in various dimensions. Property can be used for the purpose of private affairs i.e. constructing a house for residing. Secondly, it can be used for public use which is also known as res publica. (For example, construction of bridge). Lastly, property can be used for sacred purposes (Example- Construction of temple, mosque).

Essentials of Ownership

Indefinite User

Indefinite User means the owner of the land has the right to use his land in whichever way he likes. However, there are certain limitations to this rule. It means the Owner cannot do something in his property which is injurious to others. Also, if someone commits any mischief or crime, the Police can enter the property in pursuance of a warrant issued by the Court.

Unrestricted Disposition

Unrestricted Disposition means if a person purchases certain land, he gets absolute right over that particular piece of land. This means he has the power to use, gift, sell, transfer, destroy or even alienate his land.
However, there are certain exceptions to this rule. In Mitakshara School of Hindu Law, one cannot alienate his ancestral property without the consent of other co-sharers.
Example- Mr. A has two sons Mr. B & Mr. C. Mr. A owns a piece of land. And if suppose after the death of his father Mr. C wants to alienate the land, he cannot do so without the consent of his co-sharer (Mr. B).

Unlimited Duration

Unlimited Duration signifies once someone has acquired a property, he has it for lifelong and even after his death, in case he has not transferred or sold it. After the death of the Owner a “perpetual interest” will evolve upon the heirs but the right will not be extinguished.

However, this rule also has certain restrictions. It includes that a State can have the property for public interest (Example- for laying railway tracks). Another such example will be the seizing of Zamindari properties when the concept ceased to exist.

Modes of Acquisition of Ownership

The modes of acquisition of property is divided into major heads: –

1. Original Ownership– Original Ownership means ownership which is acquired by Personal Act and act on part of the Owner.

2. Derivative Ownership– Derivative Ownership is ownership which is derived from previous owner through inheritance, gift or purchase. This type of Ownership is more prevalent in today’s age.

Original Ownership is further divided into three heads: –
1. Absolute Ownership– It means ownership of property which did not have any previous owner. Manu termed it “Parigrah”.
Example- If Mr. X makes a vessel from mud, the structure absolutely belongs to him as it had no previous owner.
2. Accessory Ownership– Accessory Ownership is ownership which is acquired by accession. Manu termed it as “Prayog”.
Example- Mr. Y has a piece of land. He grew mango trees on it. The mangoes belong to him because of Accessory right, i.e., land belongs to Mr. Y, therefore, the fruit also belongs to him.
3. Extinctive Ownership– It refers to ownership which is acquired by the present owner after extinguishing the right of the previous owner.
Example- Mrs. D is illegally residing in Mr. E’s house for 21 years. Mr. E had the full knowledge of this but still he did not take any action against this. If so happens then after a certain period Mrs. D will be the owner of the house.

Kinds of Ownership

The various kinds of Ownership are: –

1. Corporeal & Incorporeal Ownership
Corporeal Ownership means ownership of material objects, i.e. objects which can be perceived by senses (physical existence).
Example- Bottle, Land.
Incorporeal Ownership means ownership of intangible objects i.e. objects which cannot be perceived by senses.
Example- Patent, Copyright.

2. Sole & Co Ownership
Sole Ownership means ownership which is vested in a single person.
Co Ownership means property owned by two or more persons.
Example- Co-personal property

3. Trust & Beneficial Ownership
Trust & Beneficial Ownership has three parties i.e. who made the trust, Trustee for administration and a third party i.e. the Beneficiary.
Example- A father made a trust for his son and appointed his brother to look after administration. Here, the father is the one who made the trust, the son is the beneficiary and the brother is the trustee who is supposed to look after administration.

Salmond gives a reason for the appointment of trustee for administration. Often the beneficiaries are persons who cannot protect their own rights. (Example- Unborn person, lunatics, disabled person). So, the task of the trustee is to protect the rights of the beneficiary.

4. Absolute & Limited Ownership
When all rights including alienation, possession, usage etc. lies with a person, it is called Absolute Ownership.
Limited Ownership is one in which there are restrictions to the rights of the owner that is his rights are not absolute.
Example- Before 1956, women enjoyed limited Ownership because they only had the right of usage and not alienation.

5. Vested & Contingent Ownership
Vested Ownership is ownership that is inheritable, absolute and does not depend upon fulfilment of condition.
Example- Mr. F transferred a deed to Mr. G but declared that he cannot enjoy the property unless Mr. F dies. Here, the transfer is already done and only the enjoyment is postponed. Even if Mr. G dies before Mr. F, the property won’t go back to Mr. F, rather legal heirs of Mr. G will still get the property.

Contingent Ownership is ownership which is not transferable or inheritable. In Contingent Ownership the “title” is imperfect but capable of being made perfect after fulfilling certain conditions. In such ownership a condition is generally attached, the fulfilment of which leads to transfer.
Example- Mr. F declared that he would transfer his land to Mr. G after he attains the age of 25. Therefore, it is implied that if Mr. G dies before the said age, his legal heirs won’t be able to claim the property rather it will remain with Mr. F. Unlikely, Vested Ownership, in contingent Ownership the transfer is also pending along with the enjoyment.

Relationship between Ownership & Possession

The terms “Ownership” & “Possession” is closely related to each other. The two most important terms in respect to ownership are: –
1. Dominium- Absolute right over a property.
2. Possessio- Physical Control over a property.
According to the Ancient Romans, the former is more important because an owner at times might not have physical control over his property but that does not mean he loses ownership of the property. Example- Rent. Therefore, it should be kept in mind that though the terms “Ownership” and “possession” are closely related, they are not inter-dependent.

 

Author- Dishani Bakshi
Intern at Law Portal
Email- dishanibakshi@gmail.com

Author: DISHANI BAKSHI,
1st Year, MNLU, Nagpur.