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Corporeal Property PDF
Corporeal Property PDF
PROPERTY
INTRODUCTION:
THE MEANING OF PROPERTY
The concept of property occupies an important place in human life, because it is virtually
impossible to live without the use of material objects which constitute the subject-matter
of property.
In its widest sense, all animate or inanimate things belonging to a person are included in
the term property; for instance, a person’s life, liberty and estate may also be considered
his property. However, it has now become obsolete to interpret the term "property“ in
this comprehensive sense.
In a limited sense, property covers only a person’s proprietary rights as opposed to his
personal rights. Thus land, chattels, shares and debts due to him constitute his property.
Thus in the most usual sense in which the term is used in modern times.
In modem times, apart from its common use, “property" is used in a wider sense also. In
its widest sense it includes all the rights which a person has. Thus, a person’s life,
liberty, reputation and all other claims which he might have against other persons is his
property.
The term “property" is used also to denote the proprietary right of a man as opposed to
his personal rights. In this sense, it means a person’s land, house, his shares in a business
concern, etc. It is used in a third sense also, that is, to mean proprietary right "in rent".
SALMOND takes the term in this sense. He says: “the law of property is the law of
proprietary rights 'in rent he law ofproprietary rights 'in pesonam ’ being distinguished
from it as the law of obligations. According to this usage, a freehold or leasehold estate
in land, or patent or copyright is property but a debt or the benefit of a contract is not”1.
939
There is also a fourth and the narrowest sense in which the term “property” is used. In
this sense it includes corporeal property only. It denotes the right of ownership in a
material object or the object itself. It is submitted that in modem times, the general use
of the term is not made in the sense in which it includes all the legal rights, nor the term
has remained confined to the sense in which it includes corporeal property only. The use
of the term in this sense will not give the idea of the practical application of it. In most of
the legal systems of the world the term is used either in the second or in the third sense.
The sense in which SALMOND takes the term “property” is also narrow. Now, things
or rights which were not called property previously have come to be included in it.
SALMOND observes that the term property may have a variety of applications but in
legal terms, it refers to the following:-
HOBBES12 and BLACKSTONE have supported the use of the term property in
this sense.
21 Proprietary Rights
It includes not all rights, but only a man’s proprietary rights as opposed to his
personal rights. Thus if I sell my land to you, the property in it shall pass to you
on your paying me the purchase money.
1 SALMOND: Jurisprudence
2 HOBBES : Legislation Chap.XXX P.329
940
BENTHAM has preferred to interpret the term property in his narrowest sense1.
AUSITN looks at property in its widest sense and suggests that property denotes the
greatest right of enjoyment known to the law excluding servitudes. Sometimes even
servitudes are described as property in the sense that there is a legal title to them.
Sometimes property means the whole of the assets of a man including both his
proprietary as well as personal rights.
MEANING EXPANDED
In the beginning, “property" included only the corporeal objects. But gradually the
meaning went on expanding.
This expansion took place due to many reasons and in course of time.
First, the jurists who propounded the contract theory of the origin of the state attempted
to give a wide meaning to the term “property". They said that the state and law came
into existence only for the protection of the property. In property they included all the
things which are necessary for he development of the individual.
LOCKE said that “every man has a property in his own person ”, and at another place he
said that “the man has the right to preserve his property, life, liberty and estate’’2.
Though its wider meaning seems never to have received legal recognition, it helped in
expanding the meaning of the term.
The second factor which helped in extending the meaning of the term was the equity
jurisdiction of English courts. There Was a maxim to define equity jurisdiction which
said that the equity will protect only the rights of property. In equity courts there were
lesser formalities and the relief that the equity courts granted was not available in any
other courts. Therefore, an attempt was made to bring more and more cases under equity
jurisdiction. Thus, meaning of "property” was stretched and sometimes, personal rights
were also included in it.
Another development which caused expansion in the meaning of the term “property” is
the constitutional protection given to property in many legal systems in modem times.
The states is restrained form arbitrary interference in the individual’s enjoyment of his
property, or taking it without payment of compensation1. To obtain this constitutional
protection attempts have been made to extend the meaning of “property". In some cases
in order to give the protection it became necessary to defined “property”2
In another case3 it was observed “there is no reason why the word 'property' as used in
article 19(1) (f) of the constitution should not given a liberal and wide connotation, and
should not be extended to those well recognized types of interests iwhich have the insignia
and characteristic ofproprietary right".
In a third case4 it was said that “property” in article 31 “must be understood both in
corporeal sense as having reference to all those specific things that are susceptible to
private appropriation and enjoyment as well as in its judicial or legal sense of a bundle
of rights which the owner can exercise under the municipal law M>ith respect to the user
and enjoyment of those things to the exclusion ofall others ”.
It was due to the reason of giving such a wide meaning to property that in one case1, it
was held that a bare contractual right unattended with any interest in property is property.
In a recent case2 the following definition of property has been quoted "property means
the highest right a man can have to anything being that right which one has to lands or
tenements, goods or chattels which does not depend on another’s courtesy. It includes
ownership, estates and interests in corporeal things, and also rights such as trade-marks,
copyrights, patents and even right 'in personam’ capable of transfer or transmission,
such as debts, and signifies a beneficial right to or a thing considered as having a money
value, especially with reference to transfer or succession, and of their capacity of being
injured”.
A fourth reason of the extension of the meaning of the term “property ” is the growth of
new forms of wealth in modem times.
As in England, the hierarchy of interest was created on land, it is now being created on
funds. Now, much of the wealth consists of documents "deed, instruments, etc. ” which
represent, in one or the other way, a claim of a right. A form of property called
"intellectual property” has come into existence and its importance is growing. Now,
there is generally a separation between ownership and possession. Both of them in their
various shapes and forms are property. Thus, in modern times "property ” has been given
a very wide meaning.
NEW DEVELOPMENTS
At one time private property was held in high esteem. A number of legal theories were
propounded3 which said that the man function of the state and law is the protection of
property
The theory of “laissez faire” also pleaded for the protection of individual’s property
rights. But, after the industrial revolution, there came a change. The state started
interfering with the private property of individuals. The new developments and changes
in political and economic thought helped in increasing the state interference. Now, in all
the developed societies there are a number of rules and regulations which impress various
restrictions on private property. There are theories which say that private property should
be abolished and they emphasis the social character of the property.
In USSR the state has taken over the ownership of land and industries and in many other
communist countries the same thing has happened. In democratic countries also there is
a move towards nationalization of the means of production.
THEORIES OF PROPERTY
Various theories have been given form time to time both in support and against private
property. These theories are called the theories of property. These theories are of two
kinds.
1) The theories about the origin of property. These theories attempt to explain how
property came to be.
2) The theories about the tenability of the institution of property. These theories can
be divided into two classes.
One class of theories justifies the institution of property and the second class
condemns it and argues for its abolition.
This theory is based on the principle of natural reason derived from the nature of
things. According to this theory property was the firsts acquired by occupation of
an ownerless object1 as a result of individual labour. Natural theory says that
According to BLACKSTONE, “by the law of nature and reason, he who first
began to use a thing acquired therein a kind of transient property that lasted so
long as he was using it and no longer; or to speak with greater precision, the
right of possession continued of the same time only that the act of possession
lasted But when mankind increased in number, craft and ambition, it became
necessary to entertain conceptions of more permanent dominion and to
individuals, not the immediate use only but the very substance of the thing to be
used. The theory of occupancy is the ground andfoundation of all property or of
holding those things in severalty which by the law ofnature, unqualified by that of
society, were common to all mankind”.
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KANT also supported this theory in his classic work "philosophy oflaw”
BLACKSTONE, "by the law of nature and reason, he who first began to use a
thing acquired therein a kind of transient property that lasted so long as he was
using it and no longer". However, all the population increased, the meaning of
property was extended not to the inordinate use only but to the substance of thing
to be used. Thus, the theory of occupancy is the ground and foundation of all
property.
Of the natural law theories, POUND has said, some proceed on ideology of
principles of natural reason deduced from the nature of things, whereas some
others proceed on conception of human nature. The theories which are founded
on the notion of nature of things constitute the ideas of the Roman lawyers. They
begin with a definite principle found as the explanation of concrete case and make
it universal basis for a general law of property. Such theories have usually
emanated either from the idea of occupation or from the idea of creation by
labour. The latter, that is, theories based on the conception of human nature are of
three kinds:
1) That which is rooted in the conception of natural rights;
2) That that is based on a social contract; and
3) That which has arisen as a result of economic natural law.
In this form of theory a general basis of property is derived from the economic
nature of man or from the nature of man as an economic entity. These are
generally known as modem theories of natural law on an economic than on the
i
ethical ground .
The natural theory of property has been criticized by Sir HENRY MAINE and
BENTHAM. According to HENRY MAINE it is erroneous to think that
1
See, POUND, Op lit PP 114-115
946
possession gives rise to title1 for there is no reasonable ordinance to support this
contention. BENTHAM holds that property has not originated by first occupation
of an ownerless thing, but it is a creation of law. He does not believe in the
existence of property without the existence of law.
According to this theory, a thing "res ” is the property of the person who produces
it or brings into existence. However, this view has been criticized by HAROLD
LASKI on the ground that labour does not produce property, it is only a means to
earn property2.
The labour theory of property is also sometimes called as the positive theory. It
was propounded by SPENCER who based it on the fundamental law of equal
freedom of individual. He asserted that property is the result of individual labour
and, therefore, no one has a moral right to property which he has not acquired y
the personal labour.
KANT, who may be said to have taken a lead set himself to justify the idea of
property, that is, an idea of "external meum and tuum ", KANT, who believed in
the inviolability of the individual human personality, said, that a thing is mine
when I am so connected with it that anyone who used it without any consent
cause an injury to me. For justification of law of property, it is necessary that one
should move for beyond tire cases of possession where there is an actual physical
relation to the object and interference therewith is a transgression of personality.
A thing may only be mine for the purchase of legal system of "meum and tuum ”,
where I shall be wronged by another’s use of it when it is not actually in my
possession. The first possessor, according to him, based upon a common innate
right of taking possession, and to disturb him is a wrong. The first taking of
possession has a title of right, behind it in the doctrine of original common claim
to possession. It results that this taker obtains a control "realized by the
understanding and independent of relations of space ” and he or those who derive
from him may possess a parcel of land through remote form it physically1. Such a
possession, is only possible in a state of civil society.
Having thus worked out a theory of ”muem and tuum”; as legal institution, KANT
then proceeded to a theory of acquisition, by distinguishing original and primary from
a derived acquisition, then proceeded to a theory of acquisition, by distinguishing
original and primary from a derived acquisition, and stated that noting is originally
mine without a judicial act2. The essential elements of this legal transaction of
' KANT, Metaphysische Anfangsgrunde der Rechisichre, 2nd, Ed., 1798, Paras: 1,6-8, 10. Also Pound,
Op.Cit. PP 117-118
2 POUND: Op. Cit. P.119
948
effect to the individual will by universal rules. This metaphysical version of the
Roman theory is, no doubt, a connecting link between the 18th century and
KANTs theory that property is a part of the human personality is little concerned
with realities, yet it manifests a truism that a person relying upon the property of
another may not live a free and happy life. Property thus is necessary for self-
realization.
HEGEL’s metaphysical theory of property has been under a severe attack from the
view point of “res extra commercium". It is in fact, very difficult to reconcile
HEGEL’s argument with the argument put behind the notion of “res extra
commercium” that certain things were not subject to private ownership.
MILLER pointed out that beyond what is required for the natural existence and
development of the person property, “can only be held as a trustfor the state .
While linking metaphysical theories with the theories based on the human nature.
LORIMER stated that the conception of property is inseparably linked “not only with
the life of man but with the organic existence in general ” that “life confers rights to
its exercise corresponding in extent to the power of which it consists”1.
Tliis theory believes that private property has its growth in three distinct stages.
Expounding the first proposition the theory says that property developed through
above three stages. In brief...
a) A mere control of the "res”.
b) Fact of control received legal recognition. It called juristic possession.
c) The concept of ownership came into being.
Sir HENRY MAINE was the chief supporter of the historical theory of the origin
of property. He observed that property originally belonged not to individuals, not
even to isolated families, but to large societies composed on the patriarchal
pattern. It was at a later stage that collective property disintegrated and individual
rights of property came into existence1.
Dean ROSCOE POUND also agrees that the earliest form of property was group
property which subsequently disintegrated into family property and finally the
concept of individual property evolved. The noted Italian juristic MIRAGLIA has
also supported the historical theory of property.
this theory says that there is a natural instinct in man to acquire and control
objects. It is this instinct that brings the property into being. The law takes
account of the instinct and confers certain rights on individuals over the objects
which they have acquired.
BENTFAM lias supported this theory of property and pointed out that property is
altogether a conception of mind. It is nothing more than an expectation to derive
certain advantages from the object according to one’s capacity.
DEAN POUND also supports BENTHAM and hold that the sole basis of
conception of property is the acquisitive instinct of individual which motives him
to assert his claim over objects in his possession and control.
The theory has been criticized for beings MAINE’S imaginative reconstruction
based on Indian village communities and certain local customs prevailing in
ancient Indian village and, therefore, it lacks universal application.
In modem times, an approach to the concept of property has been made from
functional point of view. This approach says that there should not be any "a
priori" theory for the justification of property. Any theory of property should be,
built by an analysis of the function and the social effect of the property. Property
obtained through labour or effect is justified, but if it is acquired otherwise it is
not justified. The distribution of property in the society must be on proper and
equitable principles. It will encourage the production of property and will
consequently increase the social wellbeing.
JENKS suggests that no one can be allowed an unrestricted use of his property to
the detriment of others. In his opinion, the use of property should conform to the
rules of reason and welfare of the community. The theory justifies acquisition of
property by law and individual - efforts. Its distribution, however, should be on
equitable basis.
952
Property is “a creation of the state and achieved only after a long struggle with
the clan’’1. If one regards the various rights that he enjoys in respect of his
property as the essential characteristic of property, undoubtedly, it is the state that
has provided the machinery by which these rights are enjoyed. It is submitted that
the rights in the property were gradually created, defined and regulated by the
state and the state protects and enforces these rights, but to say that the state
created the property is not a sound proposition. The emergence of the state and
the creation of private property were the results of some social and economic
forces, therefore, it is not true to say that one is the creation of the other. There
may be private property without a highly developed state.
JENKS observed that property and law were born together and would die
together.
This, in other words, means that property came into existence when laws were
framed by the state. In this context ROUSSEAU observed, “it was to convert
possession into property and Usurpation into a right that law and state were
founded". He asserted that property was the creation of the state and property is
nothing but a systematic expression of degrees and forms of control, use and
enjoyment of things by persons that are recognized and protected by law. There
is, however, little truth in this theory because in fact both the state and property
have their origin in the socio-economic forces, therefore, one cannot be the source
of origin of the other.
81 Positive Theory
times, property can no longer be stated as a result of labour when the value of a
piece of land is augmented as some mine has been discovered there.
Similarly, property may again, not be the result of labour, specially in a case
where a man has inherited a good fortune.
Professor POUND has well .remarked : “Also if, instead of looking at property
( from an ideal of a maximum of individual activity, as SPENCER did, one looks at
it from an idea of a maximum effectiveness of the economic order, a distinction
may be drawn, as in the Soviet Idw, between instruments ofproduction, which it is
assumed may be used more efficiently when socialized, and consumer’s goods
articles of personal consumption and comfort, destined only to be consumed or
1 SPENCER stated : 'ifone individual interferes with the relations ofanother ofthe natural media upon
which the latter '.v life depends, the infringes the like liberties ofothers by which his own are measured"
HERBERT, SPENCER Justice (1891), Chap 12
2 POUND : Op. Cit. P.123
954
9j Sociological Theories
Sociological theories of property are of various types. Of these some are
positivist, some psychological and some social utilitarian.
Recent socio-economic theories have turned out to the function of property in the
social welfare state. It is stated that ownership which in law mean the absolute
power of disposing of a thing, had originally been a just and adequate legal
955
institution in a society in which property, work and use went together in a simple
economic order. '
"The capitalist is not capitalist because he directs 'the work’ but he becomes an
industrial commander, because he is a capitalist. Industrial command becomes
an attribute of capital, as under feudalism the power of command was, in war and
in law, an attribute of ownership ofland"1.
RENNER who developed the thesis stated that the juristic institution is still the
same as at the time when the worker also owned the means of production but its
function has changed. The owner of certain things can use his ownership to
control other persons2. Thus, while in legal form property is an institution of
private law, a complex power of doing what one likes with the thing owned, it has
become in economic effect an institution of public law in the sense of power of
command exercised through incidental legal institutions developed from the law
of obligation3.
FRIEDMANN has remarked th&t in the economic order of the day ownership and
control have become increasingly divorced, “where the management of a vast and
complex corporate enterprise can either govern undisturbed because of the
dispersal of shareholdings among multitudes of small owners or because it can, if
KINDS OF PROPERTY
Property is mainly of two kinds, namely,
1) Corporeal, and i
2) Incorporeal
Both are, however, valuable rights in as much as they are legal rights recognized and
enforced by law.
ii) “Jura in re propria" over immaterial things such as a) patents, b) trade marks, c)
copy rights, etc.
ownership in a material thing may be defined as the general, permanent and inheritable
right to the uses of a thing1.
11 Corporeal Property
It is called tangible property also, because it has a tangible existence. It includes
all material things. The person who has the right to the aggregate use of an object
is called the owner of the object and the object is called his property. But the
right means a right of general use only. It does not mean that the right is absolute
or unlimited. Generally, there are two kinds of restrictions on one’s use of his
property.
1) The first kind of restrictions are those that are imposed by law, and it is
done in the interest of society.
2) The second kind of restrictions are those that are encumbrances on the
property.
fences, doors, et.c These become part of the land and lose their
identity or separate movable chattels. It must, however, be noted
that physical attachment without the intents of permanent
annexation does not make change in the nature of movable
property. For example, carpets or ornaments nailed to the floor
wall of a house or money buried in the ground are as much a
chattel “movable property” as money in the owner’s pocket.
1
Moti V. Barnes (1901) KB 205
960
Immovable property has been defined in the general clauses act, 1897 to
include land, benefits to arises out of land, and thin attached to the earth,
or permanently fastened to anything attached to the earth1. The term is
also defined in the Indian registration act, 1908, thus immovable property
includes land, buildings, hereditary allowances, right to way, light, ferries,
fisheries or any other benefits to arise out of land and things attached to
the earth or permanently fastened to anything which is attached to the
earth, but not standing timber, growing crop or grass.
The transfer of property act, 1882 excludes standing timber, growing crops
and grass from the definition of immovable property.
Personal property, on the other hand, means all other proprietary rights
whether they are right “in rem ” or right “in personam Commenting on
this distinction, SALMOND observed, “the law of real property is almost
equivalent to the law of land while the law ofpersonal property is almost
identical with the law ofmovables .
The distinction between real and personal property has been drawn from
the Roman law. The real property and immovable property form
intersecting circles which are very nearly though not quite coincident.
962
21 Incorporeal Property
Material things are physical objects and al other things which may be subject-
matter of a right are immaterial things.
They are various immaterial products of human skill and labour. These
immaterial forms of property are as follows-
i) Patents
ii) Copy right
iii) Commercial goodwill “trademarks and trade names ”
fl Patents
The Indian patents & designs act provides that a person who has registered
a patent gets the exclusive right to make use or sell the patented invention
1 the rights of a person who is responsible for a new invention are protected by the Indian patents and
Designs act, 1911
963
for a period of fourteen years, and any person who whether with or
without the knowledge of the existence of the patent right, infringes the
same, may be restrained by injunction and if he knowingly infringes the
patents, shall be liable also for damages.
ijl Copyright
The subject-matter of the right is the literary expression of facts or
thought. The right may be available to writer, pointers, engravers,
sculptures, photographers, musical and dramatic personnel for their
outstanding work. When such a person does some creative work by
utilizing his intellect, skill and labour, he is entitled to exclusive copyright
which is an immaterial form of property. In short, copyright may be
literary copyright or artistic copyright or musical and dramatic copyright1.
It is thus right which enables them to earn their livelihood and also make
provision for their successors. The copyright exists not only during the
life-time of the author and the co-author, but even after their death.
1 Infringement of copyright is punishable under IPC or may be proceeded against by a civil suit for
damages
964
Tradenames and trademarks are also the property of persons who own
them. They protect the public from the cheaters. They guarantee a
particular quality of goods.
prevent the owner from exercising some definite rights with regard to his property. The
main categories of rights in “re aliena” or encumbrances are:-
i) Leases;
ii) Servitudes;
iii) Securities, and
iv) Trusts
ll Leases
In other words, a lease is an encumbrance giving a right to the possession and use
of the property of another person.
Thus it is transfer of right to the possession and use of property owned by some
other person. It is an outcome of the rightful separation of ownership from
possession. A lease may either be for a certain specified period or in perpetuity.
It is an encumbrance in which the lessor i.e. the owner of property transfers his
right of possession to the lessee... Thus, if I own a house which is let out to a
tenant, I have created a lease i.e. I have detached my possession from my
ownership. I am still the owner of the house but the tenant i.e. the lessee has the
possession of it and he can use it so long as the lease subsists.
Servitudes
A servitudes is that form of encumbrance which consists in a right to the limited
use of the piece of land without the possession of it; for example,
- a right of way
- a right to passage of light, o water across the adjoining land
- right of fishing, etc.
A public servitude, on the other hand, is vested in the public at large or some class
of indeterminate individuals such as the public right of navigation or fishing,
public right of way over land in private ownership or right of inhabitants of a
village to use certain piece of land for recreation.
SALMOND has further classified servitudes as
i) Appurtenant, or
ii) In gross
968
iij) Securities
A security is an encumbrance vested in a creditor over the property of his debtor
for the purpose of securing the recovery of the debt. In other words, it may be
said to be a right to retain possession of a chattel until the debt is paid. Security
on immovable property is called a “mortgage ” and on movable property. It is
called a “pledge
1 According to SALMOND, an easement, in the strictest sense, means a particular kind of servitude;
namely private and appurtenant servitude which is not a right to take any profit from the servient land.
969
!l Mortgages
They are-
a) Simple mortgage
b) Mortgage by conditional sale
c) Usufructuary mortgage
d) English mortgage
e) Equitable mortgage “also known as mortgage by deposit of title
deeds ” and
f) Anomalous mortgage.
ijl Lien
A lien is the right to hold property of another person as a security for the
performance of an obligation.
In other words, lien is a right of one man to retain that which is in his
possession belonging to other until certain demands in respect of the
person in possession are satisfied. Thus, a finder of a goods ahs a right to
retain the goods against the owner till he receives from the owner, the
compensation for trouble and expenses incurred by him, and also specific
reward which the owner may have offered for the return of such goods.
The finder is said to have a lien upon the goods so found. Lien is right to
retain possession of goods and does not include right of ownership or sale.
Df Power of Forfeiture
The creditor has the power of destroying some adverse right vested
in the debtor e.g. landlord’s right of re-entry on his land.
E)_ Charges
41 Trusts
A trusts is an encumbrance in which the ownership of property is limited to deal
with it for the benefit of some third person.
As regards the importance of trusts, PATON comments that it has proved useful
in many fields:-
1) It has been used by associations as a means whereby their property is used
for the desired purpose,
2) It has facilitated endowment and gift for charitable and religious purposes
by vesting the property in trustees for purposes as desired by the settler.
3) The trust has a great social importance in helping settlement of family
property by protecting the interests of young persons and married women1.
A mortgagee is not a trustee for the mortgagor and he does not hold the legal
estate of the benefit of the mortgagor as a trustee does the beneficiary i.e. “cestui
que trust’’.
Again, the mortgagee has not only the legal interest in the property mortgaged,
but also a beneficial interest in it adverse to the morgagor’s, which he can enforce
by a suit against the mortgagor.
ASHBURNER points out that the mortgagee becomes a trustee only after he has
been paid his debt-money.
In equity-law, his right in the property does not extend beyond what is necessary
to secure repayment of the money due to him. If the mortagee has been
reimbursed by sale of mortgage property, he shall become the trustee of the
surplus proceeds, if any, for the person entitled to the equity of redemption2.
H Possession
It has been stated earlier that possession is the objective realization of ownership.
“Occupalio " and “accessio " in Roman law and similar provisions of Hindu law.
Title was first acquired by possession.
“Occupalio" and acquisition of title in a “res nullis”. The person was first
reduced into possession an ownerless object acquired title in it. This title was
good against the whoe world.
In modern times, there is little scope for acquisition of property in this way except
in very limited kinds of cases, such as the birds in the air and fish in the water.
The “accessio" was the acquisition of title in those objects of which there was a
previous owner.
For example, “ifI adorn my sock with wool which is not mine the wool 'codes to ’
or is merged in my socks and thereby I become owner of it".
Agent from “occupation" and “accessio” the possession of any other kind also
“including a wrongful possession ” gives right over the object and title also which
is good against the whole world except the owner.
In such cases, there are two persons who have the title in the object - the real
owner and the possessor. The person who is the real or legal owner of the object
has an absolute title in it. The" possessor has only a relative title - it is good
against the whole world except the owner. The person who acquires title by
possession is called the possessory owner. If he is wrongly deprived of the thing
by a person other than the true owner, he can recover it from him. The reasons
for giving these rights to the posesssory owner are discussed earlier in the chapter
"Possession
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21 Prescription
SALMOND defines prescription as “the effect of laps of time in creating and
destroying rights; it is the operation of time as a vestive fact”1.
It is of two kinds:
a) Positive or acquisitive prescription
b) Negative or extinctive prescription
For example, the right to sue for debt is destroyed after a prescribed
period “in India it is 3 years ”,
SALMOND : Jurisprudence
977
H Agreement
The third mode of acquisition of property is agreement, which is enforceable by
law.
Under a "grant” new rights are created by way of encumbrance upon the existing
rights of the granter e.g. grant of a lease of land is the creation of agreement
between grantor and grantee.
Formal agreements are written and require the formality of registration and
attestation of the deed to be completed before they are effective.
The Roman law, however, required that an alienation during life time of the
persons should not only be by an agreement between the parties but there should
also be delivery of possession1.
Thus, in other words meant that alienation was conceived to consist of the
essential element of transfer of possession.
In English law, until the year T845 conveyance of land was not possible without
the delivery of possession and no deed of conveyance could be effective without
delivery of possession. But in actual practice, the rule was evaded for centuries
by taking advantage by fictitious delivery of possession under the statute of uses.
The statute of the year 1845, however, modified this rule and now the ownership
of land could be legally transferred without the possession of it.
1) In case of trust, the legal ownership is with the trustee and the equitable
ownership is that of the beneficiary. Thus there exist two separate
ownership due to separation of legal from equitable ownership. The
trustee holds the property on behalf of the benefiairy and not for himself,
and therefore, the obligation of the trusteeship is an encumbrance upon
trustee’s title. If the trust property is sold to a “bonafide purchaser for
value ” and without notice, he shall acquire a better "unencumbered” title
to the property so purchased.
ii) The second exception to the general rule that no one can transfer a better
title than what he himself possesses is where the possession of a thing is in
one man and the ownership of it is in another.
In such cases, the possessor is allowed to pass a good title to one who
deals with him in good faith believing him to be the true owner.
41 Inheritance
In respect of the death of their owners all rights are divisible into classes, namely,
i) Inheritable and
ii) Uninheritable
For example, the right of action survives the death of both parties as a general
rule. Proprietary rights may bd uninheritable in case of a lease for life of the
leasee only or in case of joint - ownership.
The rights which a dead man behind him vest in his representatives or successors.
But he has also to bear the liability of the deceased. This liability is, however,
limited to the amount of property which he has acquired from the deceased. Thus,
inheritance is some sort of legal and fictious continuation of the personality of the
dead man1. 2
i± Limitation of Time
No person can be allowed to vest his property in perpetuity, that is, the
testator cannot control the devaluation of the estate in property for an
indefinite period.
In Indian law, the property cannot be vested by the testator beyond the
period of his life time plus eighteen years thereafter . He must so order to
destination of his property that within this period the whole of it shall
become vested absolutely in some one or more persons, free from all free
from all testamentary conditions and restrictions. Any testamentary
devolution beyond the prescribed period mentioned above, shall render the
disposition wholly void under the English law, but in India, it shall be void
In other words, a testator can dispose of only a certain portion of his estate
by a will and has to set aside the rest of the portion for those whom he is
legally bound to support.
The rule under Mohammadan law that no Muslim can bequeath more than
one third of the surplus of the estate after providing for his funeral
expenses and payment of debt unless the heirs consent to the same, is
based on this limitation.
The old texts of Hindu law also contain certain rules about disposition of
property which are akin to modern concept of “will”.
replaced by the Indian succession act, 1925, and now we have the Hindu
succession act, 1956
For example, he cannot leave a direction in his will that his money be
buried in the grave alongwith his dead-body or thrown into the sea1, that
his estate or land shall lie waste after his death. Such a testamentary
disposition shall be wholly void.
Again, rights and duties are also closely related to property. It is for this
reason that the law relating to property has been developed as an
independent branch of law in jurisprudence. The estate or property for
which there is no heir or successor, shall vest in the state .