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Published : September 17, 2012 | Author : Ritwik Sneha & Rishab Garg
Category : Law - lawyers & legal Profession | Total Views : 23165 | Rating :

Ritwik Sneha & Rishab Garg
Rishab Garg & Ritwik Sneha Law Students

The concept of 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 not the right method. The idea of possession came first in the minds of people and it was later on that the idea of ownership came into existence.

Ownership is a complex juristic concept which has its origin in the Ancient Roman Law. In Roman law ownership and possession were respectively termed as ‘dominium’ and ‘possessio’. The term dominium denotes absolute right to a thing while possessio implied only physical control over it. They gave more importance to ownership because in their opinion it is more important to have absolute right over a thing than to have physical control over it.

In English law the concept of ownership developed much later than possession. The earlier law gave importance to possession on the misconception that possession includes within its ownership as well. Holdsworth observed that the English law accepted the concept of ownership as an absolute right through gradual the gradual development in the law of possession.

The concept of ownership consists of a number of claims such as liberty, power and immunity in regard to the thing owned. Ownership is thus a sum-total of possession, disposition and destruction which includes the right to enjoy property by the owner. The owner has to side by side abide by the rules and regulation of the country.

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.

1. Right to use a thing
2. Right to exclude others from using the thing
3. Disposing of the thing
4. Right to destroy it.

Austin’s definition:
Austin while defining ownership has focused on the three main attributes of ownership, namely, indefinite user, unrestricted disposition and unlimited duration which may be analysed in detail.

1. Indefinite User:
By the right of indefinite user Austin means that the owner of the thing is free to use or misuse the thing in a way he likes. The pawner of a land may use it for walking, for building house or for gardening and so forth. However Austin was cautious enough to use the term “indefinite”. He did not use the thing owned infamy way he likes. His use if the thing is conditioned by requirements or restrictions imposed by the law. The owned must not use the things owned as to injure the right of others. The principle is the foundation of the well known maxim ‘sie utere tero ut alierum non laedas’ the meaning of the maxims is that to use your own property s not to injure your neighbour’s right. Again the use of property may be restricted voluntarily e.g. town planning act, slum clearance act, 1955 etc.

2. Unrestricted Disposition:
What Austin implies by unrestricted disposition is that the power of disposition of the pawner is unhampered by law meaning thereby that he is absolutely free to dispose it to remove it to anyone This is incorrect. In case of lease of thousand years, servitudes and restricted, covenants, plenary control of a property is not possible. Moreover, in the law of the some of the western countries there is rule re relegitima portis which means that the person cannot dispose of his entire property. He has to keep a certain portion of the property for the members of his family. Under mohamdan law a similar rule prevails namely a person cannot dispose and delaying creditors would be set aside. As under Hindu law government by mitakashara law can’t alienate ancestral immovable property without the consent of other co perceners except for legal necessity.

3. Unlimited Duration:
It is incorrect since almost under every legal system the state possesses the power to take over the property of any person in public interest.

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.

Austin’s 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:
1. Possession
2. Enjoyment
3. Disposition

Planetary control over an object implies complete control unrestricted by any law or fact. Thus, the criticism levelled against Austin’s definition would apply to that given by Holland in so far as the implication of the term “plenary control” goes.

Criticism Against Austin’s Definition:
Austin’s definition has been criticised by many writers.
They argue that it is fallacious to think that ownership is a single right; in fact, it is a bundle of rights including the right of enjoyment by the user. Even if the owner gives away his few rights in ownership, the residue are still owned by him. For example, mortgage of property by the owner.

Ownership is not merely a right but also a relationship between the right owned and the person owning it.
Owner having an unrestricted right of disposition has also been criticised. His right of disposition of the property can be curtailed by the state. For example, under article 31(2) of the Indian Constitution the state can take away the property of any person for public purpose.

Salmond’s 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. Salmond’s 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

Salmond’s definition does not indicate the content of the ownership. It does not indicate the right, powers etc. which are implied in the concept of ownership. Again, it is not wholly correct to say that ownership is a relation between a person and right that is vested in him. As the most popular and common idea of ownership is a relationship between a person and a thing.

Criticism against Salmond’s Definition:
Dugit says the thing is what is owned not the right which does not really exist.

According to Cook, there are many rights which a person may possess and to use the term ‘owner’ to express the relationship between a person and a right is to introduce unnecessary confusion. Ownership is the name given to the bundle of rights.

Other Eminent Jurists
1. Fredrick Pollock improves upon other definition when he defines ownership as the entirety of the power of use and disposal allowed.
2. Prof. Keeton expresses a similar view when he observed that ownership is the ultimate right to the enjoyment in persons other than the one entitled to the ultimate use are exhausted.

These two definitions give relatively a more proper connotation of the term ownership. They bring out the most important fact that ownership is always subject to limitation imposed by the law; it is ultimate right to the employment of a thing subject to the condition or restriction imposed by law as to the use of the thing owned. Keeton has added another obvious dimension to the definition of ownership when he speaks of ultimate use is exhausted. Thus the owner may mortgage his house give it to tenant after the rights of the mortgagee or tenant are exhausted.

Ancient Hindu jurist have said much about the means of acquiring ownership. Manu declared that there are seven virtuous means of acquisition of wealth viz. inheritance, gain, purchase, conquest, application, employment of the work and of and acceptance of gifts from proper persons. Gautama gives almost the same seven ways of acquiring ownership but he puts some modification to the list given by Manu.

Narada enters in to more details and says that there are twelve different modes of squiring wealth of which three are general i.e. open to all caste and the rest are peculiar to several castes.

These specific modes of acquiring wealth are proper for several casts and any contravention is reprehensible unless by pressing necessity.

Under modern law there are the following modes of acquiring ownership which may be broadly classed under two heads,viz,.

1. Original mode
2. 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

a. Absolute when a ownership is acquired by over previously ownerless object

b. 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.

c. 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.

Normally ownership implies the following:
1. The right to manage;
2. The right to posses;
3. The right to manage;
4. The right to capital;
5. The right to the income.

The owner of a thing has the right to possess it, to the exclusive of all others i.e. the owner has exclusive physical control of a thing or such control possesses the thing but this is not necessary and always so. Thus to cite only a few examples, the owner may have been wrongfully deprived of it or may has voluntarily devised himself of it. If A’s watch is stolen by B, the latter has possession but the former remains the owner with an immediately right to possess. In case of lease and mortgage, the owner (i.e. the leaser and the mortgagor) owns the property without possession lies, with the lesser and the mortgagee.

The owner has the right to use the subject matter of ownership according to his own discretion. Here use means personal use and the enjoyment of the thing by the owner. This right of enjoyment or use is not absolute; it can be and is in fact, limited by law. This does not mean that an owner cannot there by disturb the right of others. Suppose A owns a transistor, ha cannot tune it at any time for listening music, for news or for commentary, but in doing so he is to take care that he does not disturb the right of others. Thus he cannot tune it at a high pitch and at an odd time so as to disturb the right of others. Thus he cannot tune it at a high pitch and at an odd time so as to disturb the sleep of others.

The owner has right to manage i.e., he has the right to decide how and by whom the thing owned shall be used. The owner has the power contracting the power to admit others to ones land, to permit others to use one’s things, to define the limits of such permission, to create a right of easement over his land in favour of a third person etc.

One who owns things has also the right to alienate the same or to waste, destroy or to consume the whole or part of it. The right to consume and destroy are straightforward liberties. The right to alienate i.e. the right to transfer his right over object to another involves the existence of a power. Almost all legal system provide for alienation is the exclusive right if the owner. A non-owner may have the possession of a thing but he cannot transfer the right of ownership of such thing to another e.g. , in case of lease, a lessee may have the possession of the leased property but he cannot transfer it because that is the exclusive right of the leaser who only can do so.

The ownership of the a thing has not only the right to possess the thing but also the right to the fruit and income of the things within the limits , if any, laid down by the law. Suppose A’ has a land he has not only the right to possess that the land but he can enjoy benefits resulting there from e.g., produce, fruits, crops, etc. sometimes the use or the occupation of a thing to possess that the land but he can enjoy benefits resulting there from e.g. produce fruits, as the simplest way of deriving an income from it and of enjoying it.

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. For example, building or land owned by a person can be acquired by the state for lodging army personnel during the period of war.
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 owner’s 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.

Experience shows that 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. The ownership of a trustee is in fact nominal and not real although in the eye of law, he represents his beneficiary. If property is given to X on trust for Y, X would be the trustee and Y would be the beneficiary or cestui que trust. X would be the legal owner of the property and Y would be the beneficial owner. X is under an obligation to use the property only for the benefit of Y.

A trustee has no right of enjoyment of the trust property. His ownership is only a matter of form and not of substance. It is nominal and not real. In the eye of law, a trustee is not a mere agent but an owner. He is the person to whom the property of someone else is fictitiously given by law. The trustee has to use his power for the benefit of the beneficiary who is the real owner. As between the trustee and the beneficiary, the property belongs to the beneficiary and not the trustee.

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. When a debt is verbally assigned by X to Y, X remains the legal owner of it but Y becomes its equitable owner. There is only one debt as before though it has now two owners.

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

1. Right to possession
2. Right to enjoy the property
3. Right to dispose of

Therefore, if a co-owner is deprived of property, he has right to be put back in possession. Such co-owner has interest in every portion of the property and has a right irrespective of his quantity of share to be in possession jointly with other co-owners.

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.”

A joint ownership occurs when two or more persons are entitled to the same right or bound by the same obligation in respect of a thing. For example, a partnership property is owned by the persons constituting the firm jointly and trustees are the joint owners of the trust property. The essence of the conception is that there is only one right and one obligation, so that anything which extinguishes such right or obligation, releases all parties.

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.

We may in conclusion say that:
1. Ownership is a right which comprise of powers, claims, privileges etc.
2. Ownership is in respect of a thing may be corporeal or incorporeal
3. The right relating to or connection with ownership are subject to the state regulation i.e. can be limited or restricted by law
4. Owner 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 or those imposed by law are exhausted
5. Ownership does not imply or indicate absolute or unlimited rights either use, disposal or duration.
# Dr. V.D.Mahajan,Jurispudence and legal theory (5th edn,2011)
# Dr.N.V.Paranjape,Jurisprudence and legal theory(6th edn,2011)
# Dias and Hughes: Jurispudence(1957 edn)
# Hibbert : Jurispudence
# IN India under section 91 of the civil procedure code
# In England the principle has been introduced by the inheritance act,1938
# Dr.N.V.Paranjape,Jurisprudence and legal theory(6th edn,2011)
# Dr. V.D.Mahajan,Jurispudence and legal theory (5th edn,2011)
# Dr.N.V.Paranjape,Jurisprudence and legal theory(6th edn,2011)
# Dr. V.D.Mahajan,Jurispudence and legal theory (5th edn,2011)
# Pollock: Jurispudence and Legal Theory
# Ganga Nath Jha: Hindu Law and its Sources, Vol.7, Oxford 1880.
# Sectionc105 of Indian transfer of property act deal with the lease property
# Section 58-76 of Indian transfer of property act deal with the mortgaged property
# Dr.N.V.Paranjape,Jurisprudence and legal theory(6th edn,2011)
# Dr. V.D.Mahajan,Jurispudence and legal theory (5th edn,2011)
# Hannah v. Peel,(1945) 1 KB 509
# Crowhurst v. Amersham Burial Board, (1878) 4 Ex .D.5
# Ryland v. Fletcher, (Q1868) 3 HL 330.
# Salmond, Jurispudence (7th edn)
# Dr.N.V.Paranjape,Jurisprudence and legal theory(6th edn,2011)
# Dr. V.D.Mahajan,Jurispudence and legal theory (5th edn,2011)
# Dr.N.V.Paranjape, Jurisprudence and legal theory(6th edn,2011)
# Shashikantha v. Pramod Chandra AIR 1933 Cal 609
# Right of survivorship is called jus accrescendi
# Kendall v. Hamilton 4 AC 504

Authors contact info - articles The  author can be reached at: ritwiksneha@legalserviceindia.com

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Article Comments

Posted by Shailesh kotak on October 28, 2012
I have purchased flat in co op housing society,when submmitted all the documents to the society office after registration,they inform me about certain issues pending with the transferor.and till the time all isuues are not over they will not transfer the share certificate in my favour,and they return all the documents back to me.i have registered flat with registrar in accordance with N O C not required to registered the flat.(as per the bylaws) Now,society intent to EXPAL the transferor from the membership. My question is 01, What will be my statues if they expel?? 02, what action i am suppose to take,since,they have problem with transferor and he was chairman before 1 year,during his tenure he has misappropriated societies fund worth Rs.10,000.00. 03, I am in possetion of flat and after ceasation of his share will i be able to hold the possetion of flat?? 04, How do i cover my intrest with my family since all of us are staying in the same house. 05, what about my investment,i do not have any money to go and stay at rental house even.

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