ownership-transfer of property

7/26/2019 Ownership-TRANSFER OF PROPERTY

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CONCEPT AND FUNCTION OF OWNERSHIP

AND

DISTINCTION BETWEEN OWNERSHIP AND POSSESSION

1. INTRODUCTION:

The idea and concept of ownership is developed by slow degrees with the growth of civilization. In

primitive societies the only concept known to human mind was that of possession. It was much laterthat the concept of ownership adopted. 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 and concept of the ownership.

Thus, ownership denotes the relation between a person and an objective forming the subject matterof his/her ownership. The normal case of ownership can be epected to ehibit the incidents as

follows! "irst, the owner will have a right to possess the thing which s/he owns. Secondly, the owner

normally has the right to use and enjoy the thing owned. Thirdly, the owner has the right to

consume, destroy or alienate the thing. "ourthly, ownership has the characteristics of being

indeterminate in duration. "ifthly, ownership has a residuary character.2. MEANING AND DEFINITION OF OWNERSHIP:

The literal meaning of the term #own$ is to have or hold a thing. The one who holds a thing as his

own is said to be the owner and has right of ownership ever it. Thus in the non%legal sense

ownership may be defined as the right of eclusive control over and disposal of a thing at will.

In the legal sense the term ownership carries the meaning of right over a thing to the eclusion of all

other persons. This implies non%interference by others in the eercise of this right and must be

distinguished from mere holding of a thing in one$s possession.

&ormally ownership implies,a) the right to possess,

b) the right to use,c) the right to manage,

d) the right to capital and

e) the right to income.

The concept of the ownership is one of the fundamental juristic concept common to all

system of law. 'ifferent writers have defined ownership in different ways.

Austindefined ownership as #a right indefinite in point of user, unrestricted in point of disposition

and unlimited in point of duration.$

(ustin$s definition thus implies thee attributes viz.,

a) indefinite user,

b) unrestricted disposition and

c) unlimited duration.

Holland#s definition! (ustin$s definition of ownership has been followed by )olland. )e defines

ownership as plenary control over an object. (ccording to him an owner has thee rights on the

subject owned!%a) *ossession

b) +njoyment

c) 'isposition

(ccording to Salmond, #wnership in most comprehensive significance denotes the relation

between a person and any right that is vested in him.$ That, which a man owns, according to him, is

in all cases a right. wnership in this wider sense etends to all classes of rights, whether

proprietary or personal, in rem or in personam, in re%propria or in re%aliena. )e adds that it applies

not only to rights in the strict sense but also to liberties, powers and immunities.


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Thus, according to Salmondownership vests in the owner a comple of rights which s/he eercises

to the eclusion of all others. "or Salmondwhat constitutes ownership a bundle of rights which in

here in an individual. Salmondsdefinition thus points out two attributes of ownership!%

a) wnership is a relation between a person and rights that is vested in him-

b) wnership is incorporeal immaterial, having no material body or form.

"or Salmon a man may own a copyright or a right of way in the same way as s/he owns a piece of

land because in all the cases s/he owns only a right and not a thing.

Hohfieldepresses a similar view like that of Salmond when he says ownership is not a right but abundle of rights, privileges, powers etc.

Duguithas defined, #wnership is a relation between a person and a thing. n account of this

relation the person has the power of disposal, use and enjoyment of the thing.$

0e may conclusion say that%

a) wnership is a right which comprises of powers, claims, privileges, etc.

b) wnership is in respect of a thing which may be corporeal or incorporeal.

c) The rights relating to or in connection with ownership are subject to state regulation

i.e., can be limited or restricted by law.d) wner is he who is entitled to the residue of rights with respect to an object left after

the limitation resulting from the voluntary acts of the owner mortgage, lease or hire orthose imposed by law are ehausted,

e) wnership does not imply or indicate absolute or unlimited rights either regarding use,

disposal or duration.

3. +SS+&TI(1S " 0&+2S)I*!

i. The first essential of ownership is that it is indefinite in point of user. It is impossible

to define or sum up ehaustively the wide variety of ways in which the thing owned may

be used by the person entitled to its ownership.

ii. (nother essential of ownership is that it is unrestricted in point of disposition. (n

owner can effectively dispose of his property by a conveyance during his lifetime or by

will after his death.iii. The owner has a right to possess the thing which s/he owns.

iv. The owner has the right to ehaust the thing while using it, if the nature of the thing

owned is such.v. (nother essential of ownership is that it has a residuary character. (n owner may part

with several rights in respect of the thing owned by him/her.

vi. 3enerally, the owner has the right to destroy or alienate the thing s/he owns.

4. CHARACTERISTICS OF OWNERSHIP:

i. wnership is absolute or restricted. It may be limited to a lesser or greater

etent, either voluntarily or under compulsion of law.

ii. 2ight of ownership may also be restricted national emergency.

iii. (n owner has to pay taes to the state and eercise of his right of ownership.

iv. (n owner must not eercise his right of ownership in such a way as to infringe

the right of other owners.

v. (n owner has not the freedom to dispose of his property in any way he likes.

S/he can not transfer the property to defraud his creditor.

vi. Infants and lunatics are under a disability in the eye of law because they can

neither understand the true nature of their acts nor the conse4uences.

vii. wnership does not generally terminate with the death of the owner. It passes to

legal heirs in case of intestacy.

5. THE SUBJECT MATTER OF OWNERSHIP:

The prime subject matter of ownership consists of material objects such as land and chattels. 5ut

ownership is by no means limited to things of this category. ( human being$s wealth may consist of


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such things as interests in the land of others, debts due to him, shares in companies, patents, designs,

trademarks, copyrights and so on. Salmondindeed took the view that the true subject matter of

ownership has to be a right in all cases.

6. CRITICISM:

I. Austinsview of ownership has been criticized on various grounds-

a. It is pointed out that ownership is not a right but a bundle of rights. It is the

aggregate or sum total of the rights of user and enjoyment.b. wnership is not merely a right but also a relationship between the right owned and

the person owning it.

c. The idea of the right of indefinite user is also attacked. 6any limitations can be put

upon that user. The owner must use his property in such a way as not to interfere with

the rights of others.

I. Salmondsview of ownership has been criticized by many writers-

a. (ccording 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. 0hat is owned is a thing and not a right.

b. (ccording to 7ook, there are many rights which a person may possess and to usethe term #owner$ to epress the relationship between a person and a right is to

introduce necessary confusion. wnership is the name given to the bundle of rights.

c. (ccording to Kocourek, ownership is a relationship of the owner and a right to a

thing which can be economically enjoyed. The right of ownership is a matter of legal

protection.

7. METHODS OF ACQUIRING OWNERSHIP:

( thing is capable of being owned, the methods of ac4uiring ownership over it will vary from legal

system to legal system. There are two modes of ac4uisition of ownership and those are original and

derivative.riginal ac4uisition can be absolute! res nullius and by occupation. 5asically, one canac4uire ownership in two ways!

i. by operation of law or

ii. by reason of some act or event.

(s to the first, a statute might provide that all ($s property should after a certain period of time vest

in 5. (s to the second this may consist in the first taking or madding a thing, both being cases of

original ac4uisition. Thirdly, the thing may fall into man$s ownership without any human act, aswould be the case if a piece of land were to break off from an island in a river and attach itself to my

land on the opposite bank.

8. CLASSIFICATION OF OWNERSHIP:

wnership may be of various kinds. 5roadly, it may be classified under the following heads%

I. Vested and Contn!ent o"ne#s$%

II. So&e and Co'o"ne#s$%

III. Co#%o#ea& and In(o#%o#ea& o"ne#s$%

IV. Le!a& and E)*ta+&e o"ne#s$%

V. T#*st and Bene,(a& o"ne#s$%

VI. A+so&*te and L-ted o"ne#s$%

I. Vested and Contn!ent o"ne#s$%

wnership is either vested or contingent. It is vested when the owner$s title already perfect, it iscontingent when his title is as yet imperfect, but is capable of becoming perfect on the fulfillment of

some condition. In the former case the ownership is absolute- in the latter it is merely conditional.

nce it is matured it automatically converts into vested type of ownership.

II. Sole and 7o%ownership


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Sole ownership indicates the singular control over the property. In this concept an individual only

entertains all sorts of rights of ownership over his owned property. 7o%ownership is a concept of

plural or multiple owners holding right over the particular property. ( single person cannot entertain

the rights of ownership in group.

III. 7orporeal and Incorporeal ownership

wnership over any material object which can be movable or immovable but tangible objects is

called corporeal ownership. Incorporeal wnership means ownership over the immaterial things

such as right over patent, design, trademark, copyright etc. IV. 1egal and +4uitable ownership

The distinct between legal and e4uitable ownership is limited in +nglish common law only. 1egal

ownership is a legally defined and protected property. 3enerally, ownership is understood as a legal

ownership. In other words, legal ownership is that which has its origin in the rules of the common

law.

+4uitable ownership is basically carried out from the 7hancery courts of 89. +4uity courts protect

the rights of property. +4uity law granted rights were the concept of e4uitable ownership. +4uity

law is a concept of natural law philosophy. It does have no practicability to rest of the world.

V. Trust and 5eneficial ownership

Trust ownership is also known as duplicate or dual types of ownership. It is well defined right thatone should use the right to favor other. This kind of ownerships looks like ceremonial having no

powers.

5eneficial ownership is relating to rights over the trust to use the authority in favor of the trust itself.

This type of ownership is taken as a real ownership because it is powerful and using right to favor

the trust is to benefit all trustees. 6oreover user is none other than a trustee.

VI. (bsolute and 1imited ownership

(bsolute ownership is a concept of right having no any conditions. *articular property is totally

under the control of owner. 1imited ownership is a conditional approach of the rights over the

property. It is basically based on contract law or dependency and various defined limitations

towards the entertainment of right relating to ownership.9. FUNCTION OF OWNERSHIP:

"rom the above mentioned definition, characteristic and classification etc.function of the ownership

is itself clear. (ccording to 'ias, the function of the ownership is as follows!

The ownership has been stated that as right in itself, distinct from its component jurally relations,

has always been usefully for identifying certain groups of interests and for distinguishing them from

others. This is because ownership of these special groups was originally an inde not merely to

wealth, but to social position, and it was socially significant in other ways as well. *ossession, as

has been seen, is a judicial concept and an instrument of judicial policy.

In the words of LordEvershed#property like other interests has a social obligation to perform$. In

+nglish law the various forms of land holding designated a man$s social standing, where as chattels,being fungible, did not have this function. wnership of land was also a means of controlling

government in so far as the 4ualification to vote was based upon it. 'ominium in 2oman law

connected sovereignty, which is essentially a social concept and something more than just

ownership, things of ownership the earliest forms of roman property, were precisely the things that

were important to a primitive agricultural community.

B. DISTINCTION BETWEEN POSSESSION AND OWNERSHIP:

(ccording to Ihering, :*ossession is the objective realization of ownership.; It is the eternal

realization of ownership. It is a valuable piece of evidence to show the eistence of ownership. It is

in fact what ownership is in right. It is the de facto eercise of a claim while ownership is the de jure

recognition of that claim. *ossession is the de facto counterpart of ownership. It is the eternal formin which rightful claims normally manifest themselves. "or eample, a rented house is actually in

possession of the tenant but the ownership of it is vested in the landlord.


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(ccording to Salmond, :ownership in its widest sense implies :the relation between a person and

any right that is vested in him. *ossession is in fact what ownership is in right. 5ringing out

distinction between possession and ownership Salmondpointed out that a person is said to be the

owner of a thing when his claim receives the recognition and protection from the law of the state,

but possession may be eercised and realized even without such recognition or protection from the

law. Thus ownership has the guarantee of law but possession has some measure of security and

value from the facts, without any possibility of support from land.

(ccording to Austin, ownership in its wider sense is a right :indefinite in point of user, unrestrictedin point of disposition and unlimited in point of duration;. The right of alienation of property is a

necessary incident to the right of ownership, but there are many restrictions with regard to the

alienation of property today.

(ccording to Pollock, :wnership may be described as the entirety of the powers of use and

disposal allowed by law. The owner of a thing is not necessarily the person who at a given time has

the whole power of use and disposal- very often, there is no such person. 0e must look for the

person having the residue of all such power when we have accounted for every detached and limited

portion of it, and s/he will be the owner even if the immediate power or control and user are

elsewhere;.

*ossession and ownership differ in their mode of ac4uisition. The transfer of possession iscomparatively easier and less technical but the transfer of ownership in most cases involves a

technical process of convincing.

2elation between *ossession and wnership

0e have already adverted to the chief differences between possession and ownership. Speaking

generally, ownership and possession have the same subject matter. *ossession has been treated as an

eternal evidence of ownership. ( person in possession of a thing may be presumed to be the owner

of it. The person in possession need not prove his ownership- instead, the burden of disproving

ownership of the possessor is on the person who disputes his ownership. ( long continuous and

uninterrupted possession is an effective method of realization of ownership.(ccording to Salmond, the subject matter of possession and ownership is more or less the same, a

thing which may be owned, may also be possessed. 1ikewise, a thing which may be taken into

possession may also be owned. Salmondheld that whatever may be owned may be possessed, and

whatever may be possessed may be owned. Salmondfurther pointed out that :the law of

prescription determines the process by which through the influence of time, possession without title

ripens into ownership and ownership without possession withers away and dies;.

(ccording to Sethna, the relationship between ownership and possession is same as that of body

with soul.


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i. wnership is an absolute authority

over the property.

ii. wnership is perfectly legal right. It

shows legal situation.

iii. wnership is a de jure concept.

iv. wnership right is wider concept.

v. wnership holds unlimited and

uncontrolled rights.

vi. Transfer of ownership is not easy and

it needs to legal or formal procedures,

prere4uisites of registration.

vii. wnership has no technical

obstructions to transfer.

viii. wnership is a union of ownership

and possession.

ix. wnership only does not carry

practical use in the absence ofpossession.

x. wnership does not get priority if

there is an e4ual right over the same

property.

i. *ossession is relative authority holding

physical control over the property.

ii. *ossession is possessory right only. It

shows real situation.

iii. *ossession is a de facto concept.

iv. *ossession is a right of consumption only.

v. *ossession right is limited concept of

right.

vi. *ossession is comparatively easy and

practically no need to register and such

formalities.

vii. *ossession faces the technical obstacles

for transfer.

viii. *ossession is a single concept giving no

right of ownership.ix. *ossession may create ground for the

ownership as well.

x. *ossession is the real and basis of priority

for the situation of e4ual rights.

*ossession is the de facto eercise of a claim while ownership is the de jure recognition of it.

*ossession is the guarantee of fact whereas ownership is the guarantee of law. ( claim to possession

is maintained by one$s own self asserting will but a claim to ownership is legally protected by the

will of the State.Ihringobserved that possession is the objective realization of ownership.*ossession in fact, is what ownership is in right. The distinction between possession and ownership

on the basis of fact and right is not tenable. "act and right are not 4uite separate and independent

ideas. ne cannot eist without the other.

7onclusion,

The way of ownership, philosopher Salmond,had indicated the ownership cooperates with person

and right. (ustin 4uoted right to user of indefinite nature, )olland concerned for power to the

possession, enjoyment and ownership.

5asically, ownership functions according to its definition and characteristics. In the functionally, it

has social position and significant. It has the judicially as well as social control and policy.

wnership of land was also means of controlling government. 5y the way ownership is depends on

according to the nation$s government. (lthough, philosopher defined its nature, definition,

ac4uisition, kinds and function related with possession, owner, right and so on but it has naturally

right with the nation about property, citizens and power.

(t last, we can say that ownership is strictly a legal concept and possession is non%legal and pre%

legal concept, so they have basic different but closely co%related with each other.

ownership-transfer of property

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