Ownership

Ownership

Author: Zainul Rizvi

 Introduction.                                   

The concept of ownership relates to the title of the property like who will have the better title over the property at present. Ownership is the best title of the property and if the owner is not present then the possession will be considered as the second-best title over the property and law cannot discriminate against it.

Ownership includes all the things that are the subject matter of the property and the rest are not considered as the subject of ownership. For e.g- Human beings at present are not the subject matter of buying and selling but earlier that was not so Human beings were too considered as property and that is the reason they were the subject of ownership.

There may be some property of which there is no owner and such property is known as Ownerless property and in Latin word, it is said as “ Res Nullius”. For example – Sea, the property under the high sea is ownerless property. A parrot when it gets out of the possession it becomes ownerless property. The title of the owner is decided by possession. So, one who will get the possession will get the ownership. Ownership is a matter of law whereas possessions is a matter of right therefore ownership is easy to define and understandable. There is no diversity or dispute on the topic or concept of ownership. All the jurist accepts the concept of ownership i.e. the concept of ownership depends upon rights. Eg pen you can redeem to give such pen to another person so ownership is the bundle, aggregate or collection of the rights.

Austin definition of Ownership

According to Austin ownership is a “right indefinite in point of user unrestricted in point of disposition and unlimited in point of duration”. It is a right in rem which is available to the owner against the world at large. He defines ownership “as a right which avails against everyone who is subject to the law conferring the right to put things to the user of indefinite nature”. So, according to this definition, Austin talked about 3 types of rights:-

  1. Right to use.
  2.  Right to dispose of.
  3. Right to retain the property i.e duration.

This definition was right but the adjectives used in the definition were not correct like there is a right to use but this is not intact, there is a right to dispose but this is not unrestricted, there is duration but not unlimited. This is the subject of criticism

Disposition – means ‘ transfer’ So the owner has the right to transfer the property but not any other person. Transfer of property is governed by the specific law, there are 5 types of property in which under Sale, Exchange, and gift, there was the transfer of ownership. But under section 53  i.e Fraudulent Transfer. If you are transferring the property this intends to defeat and delay the interest of the creditor. He cannot do so, It becomes voidable so, there is a limitation

E.g.Land belong to Schedule Caste and Scheduled Tribe can only transfer the property to other person of SC /ST’s person

Duration – Owner can retain the property throughout his life but he cannot transfer the property which creates the perpetuity. The perpetual transfer is prohibited. It is a transfer that makes the further transfer impossible. E.g- Transfer of property to the unborn child under section 13 of the TPAct 1882. Perpetuity does not arise between a living child but can be so between a living person and an unborn person. However, this rule is with the exception of e.g- Trust for the benefit of the public.

Salmond’s Definition of Ownership-

According to Salmond, “ownership, in its most comprehensive signification denotes the relation between a person and right that is vested in him, “that which a man owns in this sense is in all cases a right”. It consists of a complex of rights, all of which are right in rem.[1] According to his view “we do not own the thing we owned the right”.

Hibbert Definition of Ownership

Like Austin, Hibberd specified certain rights in ownership. According to him “ in case of ownership, there is

1. A right to use,

2. Right to dispose of the property

3.  Right to destroy the property,

4. Right to exclude others from unreasonable interference.

Hibberd’s point is justified in the concept of currency as you cannot destroy the currency because you are not the owner but just a bearer. 

The right to exclude others means there is unreasonable interference that is trespass so bring an owner you have the right to exclude the trespass physically and if not possible then legally.

Kinds of Ownership

  1. Corporeal and Incorporeal Ownership-

This kind of ownership depends upon the nature of the property where the property is corporeal, It means property that can be seen or touched. The ownership is corporeal and it is found generally in movable and immovable property. On the other hand, incorporeal ownership is over the incorporeal property means, the property that cannot be seen or touched. Property that is not in a tangible form is in intangible form. Incorporeal property is in the form of right, Right is itself a property like patent, goodwill, etc are examples of incorporeal property.

It is quite possible sometimes that two persons get the ownership over a single property, one has corporeal and another have incorporeal ownership. E.g. – Easement

  b.)   Absolute Ownership and Limited Ownership

Absolute ownership means all the rights related to the property are vested in one person and the person is said to be the absolute owner and when all the rights are not vested, Ownership is known as limited ownership.

E.g- Before 1956, ownership given to the women under the Hindu Succession Act was limited. After this act, it became absolute. As earlier she does not have the right to dispose of or transfer the property she can only enjoy.

Example of limited ownership – Gift.

c.) Legal and Equitable Ownership –

Legal ownership is the ownership in the eye of law whereas Equitable Ownership is not recognized by law but it is recognized by equity. Law and equity are interrelated with each other because the law is rigid and in different conditions, we cannot apply the same law and if we apply it then such law will create unjustly so, where there is the possibility that law will do injustice, equity comes before the law and make it flexible and avoid the law from doing any injustice.

d.) Trust and Beneficial Ownership

Trust is an example of double ownership When the trust is created, owner loss the ownership and ownership is vested with two-person namely-

i. Trustee

Ii. Beneficiary.

Trust is an exception to the rule against perpetuity through trust perpetual transfer is possible. It means if a person is making the trust, He can restrict the further transfer of it. Trust is the settlement of property and when the settlement of property is for the benefit of another person it is called Trust. Such a person may be any single individual, group of people, or for people at large.

Trust cannot be created for animals because they are not within the definition of a person. After the creation of term trust, whosoever is taking the care after the property is called Trustee and the person for the benefit of whom, the trust is created is known as Beneficiary. Ownership of the trustee is limited to the management of the property, To take the property and do whatever is necessary to fulfill the object of trust.

Beneficiaries only have the right of enjoyment over the property since the trust is made for the enjoyment of the property but he cannot interfere in the management of trust and he can claim for his right only when he is deprived of his right of enjoyment.

e.) Joint Ownership and Co- Ownership

Nature is the same because both are the example of ownership of more than one person. The difference lies not in the nature of property but in the effect of death.

When one of the co-owner dies consequence is different and the same in the case of joint ownership. In case of the death of the co-owner, the share of the deceased passes on to the legal heir of the deceased. It is not given to the survivor but when one of the joint owners dies the interest of the deceased goes to the survivor, Legal representatives of the heir get nothing.

Example of Joint Owner-  Account in Bank

Example of Co- Owner- Hindu Undivided Family.

Conclusion

Before summing up I want to state that ownership simply means “collection of rights to use and enjoy the property, including the right to transmit it to others.” Therefore ownership is de jure recognition of a claim to certain property. Thus Hibbert suggests that no one can have absolute ownership in the land as land is not capable of being destroyed. One can merely have an estate in it.

At last, I want to throw light on the dispute between Austin and Salmond regarding ownership which  is known as a Subject matter of ownership (whether it is a thing or right)

Austin said that we owned the thing and Salmond said that we owned the right and he justified it in reference to the intellectual property so, in case of intellectual property., We do not own the thing and we owned the right as in copyright, trademark, etc. This is just for academic debate and this controversy is purely academic and depends upon the subject matter of the owner. If it is a tangible thing then you own the thing but if it is an intangible thing then you own the right.

It depends upon the nature of the property whether you are the owner of the property or not.


[1] Salmond :Jurisprudence (7th Ed) p.277.

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