JURISPRUDENCE PROJECT

STUDY ON JURISPRUDENTIAL DIFFERENCES BETWEEN TYPES OF

CLAIMS TO PROPERTY

MONSOON SEMESTER 2019

AYUSH BAKSHI

217017

SECTION A

SUBMITTED TO: MR. VIJAY KISHORE TIWARI

\

TABLE OF CONTENTS

I. Introduction

II. Research Questions

III. What is Property?

IV. Types of Ownership.

V. Types of Possessions.

VI. Possession in relation with Ownership.

VII. Conclusion.
Introduction
Ownership and Possession are two different concepts but somewhat related and
similar to each other. It is believed that the concept of Possession came before the
concept of Ownership was even there. The concept of ownership came into being
as the people around the world started gradually shifting from nomadic way of life
towards agricultural way. Even HOLDSWORTH said that the ancient laws cannot
properly define the two concepts and help in analyzing the differences between
these concepts.1 Henceforth, to fully understand these concepts these concepts are
to be understood together and not separately.

Research Questions

1. Analysis of property and its types on Jurisprudential grounds.

2. Analysis of Ownership and its types.

3. Analysis of Possession and its types.

4. Differences Between Possession and Ownership based on various laws and

Jurists.

1
History of English law.
Property

According to law, anything owned by a person is considered his property and it is

his legal right to claim his property.2 Blackstone and Hobbes also agreed with this
definition given by Salmond on property.3 A person’s proprietary rights apart from
personal rights can also be said to be a property.

Salmond states that: “the law of property is the law of proprietary rights ‘in rent
the law of proprietary rights in persona’ being distinguished from it as the law of
obligations. According to this, a freehold or leasehold estate in land, or patent or
copyright is property but a debt or the benefit of a contract is not”.4

Other Jurists such as Bentham and Austin define property in their own ways.
Bentham says that property is anything that includes ownership of land, movable
items etc.5 On the other hand Austin says that anything from which a right of
enjoyment arises is to be considered as property.6

In the context with our Indian Laws Property has been defined and discussed in
various cases, an excerpt from one such case is stated below:

“Property must be comprehended both in corporeal sense with reference to all

specific things which are susceptible with private appropriation and usufruct as
well as in the judicial and legal sense of a plethora of rights that the owner
exercises under municipal law with due respect to the user and usufruct of those
things.7

In another case Judges held that the term ‘property’ mentioned in article 19(1)(f) of
the constitution should be understood in a broader perspective and shouldn’t be
only applied to matters where proprietary rights are involved.”8

2
SALMOND: Jurisprudence
3
HOBBES: Legislation Chap. XXX P.329
4
SALMOND: Jurisprudence
5
BENTHAM: Principles of legislation, P.231
6
Practical Jurisprudence, A comment on Austin
7
State of West Bengal V Subodh Gopal (1954) SCR 587
8
Conner, HRE V. Lakshmi Indira, AIR 1954, SC 282
In one of the Landmark Constitutional Cases, “property was said to be the biggest
rights a man can enjoy. It includes ownership, interests and estates in corporeal
things, and also rights such as patents, copyrights, trademark and right ‘in
personam’ which are capable of being transferred or transmitted, like debts which
signifies some beneficial right or a thing considered having monetary value,
especially when reference is made to transfer or succession, and their capacity to
be injured.”9

The historic theory believes that private property develops in three stages:

“In the first stage there is an inclination created among individuals to take things
into normal ownership and exercise control over them autonomously of the or the
state.

In the second stage the juristic origination of ownership is slowly created which
implied ownership in truth and in addition in law.

In the third stage there is an advancement of proprietorship which is completely a

lawful origination having its cause in law. The law ensures the proprietor of
property selective control and joy in property possessed by him.”10

Sir Henry Maine was the central endorser of the historical hypothesis of the origin
of property. He observed that property in the beginning had a place not with people
not indeed even to separated families but rather to extensive social orders created
on the patriarchal design. It was in later times that common property broke down
and individual privileges of property came into being.11

Roscoe Pound also agrees that the most immediate type of property was gathering
property or common property which in this manner got divided into the family
property leading to the idea of individual property being advanced. The prominent
Italian juristic Miraglia has similarly upheld the chronicled hypothesis of
property.12

9
R.C. Cooper V. Union of India, AIR 1970, SC 564
10
LORIMER Institute of Law (2nd. Ed. 1880) P. 215
11
Sir Henry Maine: Ancient Law, P.270
12
The sociological Jurisprudence of Roscoe Pound.
Corporeal V Incorporeal types of Property

Corporeal property and Incorporeal property are two different types of properties.
Corporeal Property basically is any ownable tangible material thing but on the
other hand Incorporeal property is a right in rem. There are further two types of
Incorporeal properties and those are:

i) Jura in re aliena. (a right in the property of another.)

ii) Jura in re propia. (a right in one’s own property.

Given below is a chart classifying property and its types:

PROPERTY

Corporeal Incorporeal

Movable Immovable Jus in re aliena Jus in re propia

Patents Copyright Trademark

Lease Servitude Securities Trust

Mortgage Lien
Ownership

It defines the relationship between the object and a person. Ownership is a right in
rem. and not just a right against one person or a group of individuals. The right
imparts various powers to the owner. Such as:

 The right to possess an object which an individual owns.

 The right to exercise freedom over the object owned, to use and take joy
from the thing owned and the right to earn income from it.
 The right to abandon, utilize or destroy the object owned.
 The right to own the thing for indefinite duration.13
 The right to have residuary powers which are the rights remaining when all
the misc. rights have been given away.

The collection of rights of a person over an object makes him or her the owner of
that object, and the control of the person over the object makes it a property of that
person. The idea that drives ownership and property are basically similar and
property and ownership are two aspects of similar basis. These concepts are
mutually dependent and cannot be fully and apparently be understood without the
other. The explanation of one concept explains the other concept also This process
is called mutual determination. Hence, ownership according to this perspective can
be understood as instilling in people the relation to the objects as they are the
objects of ownership and thus property is defined as “characterizing things in so far
as they stand related to persons who are their owners”.14

WESTERN JURISTS
13
Honore ownership oxford essays in jurisprudence, Salmond by pj fitz dias Jurisprudence 2nd ed. Ch 13 Paton
Jurisprudence 3rd Ed. 1964 Ch. 21
14
P.N. Sen, Hindu Jurisprudence.
Various Jurists have described and understood the concept of ownership in their
own way but all of them agree on the point that the ‘right of ownership’ is the
supreme right which one gets to enjoy as this right can be exercised over anything.

Hibbert stated that ownership gives way to four different types of rights.15 Which
are as under:

1. Right of using a thing

2. Right to allowing or refusing others to use that particular thing.

3. Right to abandoning that thing.

4. Right to destruct that thing.

Austin described ownership as “a right which can be availed against anyone who
is a subject of the law.”16

Paton in his theory states that there are rights arising out of ownership of a thing
and he also basically stated the same rights as Hibbert had stated, right to use,
allow or refuse others to use, to abandon or to destroy that thing.17

According to Hohfeld, ownership is a collection of rights, powers and benefits,

few of which as often as possible dwell, either interminably or for a constrained
period, in people other than the proprietor. Proprietorship is no more considered as
a total of independent drops. As we can take one drop or numerous drops from the
can, similarly we can withdraw one or few rights or basically give them up from
ownership.

According to Buckland, proprietorship is the pinnacle appropriate to the thing

and whatever that is left when every other right vested in other individuals are
isolated.

As per Noyes, ownership is an attractive center that is left when every single
current right of delight is isolated from it and that pulls in to itself the various
components quickly held by others when they slip by.
15
HIBBERT: Jurisprudence, PP. 157-58.
16
Supra, note 6.
17
PATON G.W: A Textbook of jurisprudence p.420
Pollock described ownership as the legally given freedom of powers of use and
dismissal. It is not mandatory that all the powers vested in the owner by the law
have to be used at once and instantly, even if the owner of the property gave up
some of his rights for a temporary period like in cases of mortgage etc., he will still
be the owner of the particular property.

Types of Ownership

1) Corporeal & Incorporeal Ownership

Corporeal ownership is basically owning tangible material things whereas on the

other hand ownership of rights is known as Incorporeal ownership.

2) Sole & Co- Ownership

The rights of ownership enjoyed by a single owner is referred to as Sole

Ownership.

Co-Ownership is basically when there are multiple owners enjoying the same
rights out of a common property. It is of two types:

1. Common Ownership
2. Joint Ownership

The type of ownership where two or more people enjoy unrestricted access and
possession of a common property is referred to as Common Ownership. Whereas,
in a Joint Ownership, as soon the owner dies, ownership also gets passed to the co-
owners through the principle of Survivorship.
3) Trust Ownership and Beneficial Ownership

Trust ownership is a type of copy ownership. It is a connection between two

substances where one element is under a commitment to utilize the property for the
other element. The trustee is without any happiness regarding the property. His
title is just for namesake and doesn’t really enjoying any rights arising out of that
property. Whereas for the other body for which the trustee is working for can be
said to have beneficial Ownership.

4) Vested and Contingent Ownership

When all the rights related to a property are enjoyed upon by an individual but is
bound by the law while doing so in order to not let him misuse the property on his
whims and fancies.

5) Absolute and Limited Ownership

In absolute ownership the owner enjoys the rights under vested ownership, but in
Limited ownership the ownership is conditional. Limited Ownership has the
privilege restrictively and has a plausibility of future securing, however it is just
founded on the present presence of a deficient or inchoate title.

6) Legal and Equitable Ownership

The type of ownership which has its origin in Common law is called as Legal
ownership and the type of ownership which works according to the principles of
equity is referred to as Equitable Ownership.

Possession
Possession has been defined by many jurists in their own unique way and this term
has many interpretations and is a very broad term from jurisprudential view point.
Possessions has distinct meanings under different statues. Possession can be stated
as an evidence of ownership.18Possession can be defined as the basis of relation
between man and things.19

Possession of material things is fundamental to life in light of the fact that the
presence of human life and human culture would be fairly unthinkable without the
utilization and sue of material things. Numerous significant legal results streams
from the securing and loss of Possession. Other than being a "by all appearances"
proof of proprietorship, it is additionally one of the methods of transferring
ownership. Possession is viewed as the vast majority of purposes of law which
implies that it is a proof of ownership and any individual who meddles with the
possession of any property must show either the title or a superior possessory
directly over that property. For e.g.; a thief who steals a watch has a possession
over it which the law ensures against everybody aside from the owner or some
other individual following up for his benefit. The respondent can't take the
protection that another person other than the other individual confiscated had the
ownership of the property.20 The privilege to get ownership again is known as
"possessory remedy" as given by different statues.21

Philosophers have classified possession as per their own personal understandings

and have used as per their perspective. In Pollock’s words he said having physical
control over a product renders it in possession. As per Salmond’s view "the
possession of a material thing is the proceeding with exercise of a claim to its elite
utilization". He states that ownership includes two things -

1) Claim of exclusive enjoyment.

2) Conscious or genuine exercise of this claim, which is, having physical control
over it.

18
Section 110, Indian Evidence Act,1872.
19
SALMOND: Jurisprudence (12 Ed.) P.265
20
JAFARIES V. Great Eastern Railway. 5E & B 802 (802)
21
Section 6, Specific Relief Act, 1963.
On the other hand, Zachaiae states that the possession has to be related to a man
and a thing which signifies that the person is aiming to possess that object and has
the requires power to dispose it.

On this Savigny said that the hypothesis provided above about the possession says
that the substance or the objects is a corporeal proprietorship which is to be found
as per the physical and tangible power of prohibition and right. First the ‘Corpus’
physical capacity to possess the object in certainty. Second, having at first the
possession of the thing (Procurement); there must be a physical relationship in
which the person can hold the object and use it.

Salmond in his theory did not conform with the ideas provided by Savigny. That
the possessor must have the actual physical belonging and right to prohibit the
outsider impediment. According to him the physical material of prohibition must
lie with the holder and still the unlikelihood of disturbance by other must sustain.

Henry Maine on the other hand states that the possession is Bodily confinement of
the zeal to possess the object or thing as one’s own belonging. Kant states that the
possession must be something which could be observed as per the reality of the
holding or ownership in association with the zeal to possess as the good as his
own.

Kinds of possession

Corporeal
Corporeal possession is a type of possession in which the material and important
things such as House, Car, etc. are included. Initially. This is the actual possession.
Firstly, there has to be a confirming demarcation of good’s belonging as against an
outsider and secondly, the enjoyment of the property at will without any
interference from other people.
Incorporeal
Incorporeal possession is the possession of something which is immaterial.
Anything other than material thing. Right of Repute in a society, Trademark,
Copyright, Good Samaritan, etc. In this the case continuous use and enjoyment is
required mandatorily to assert the possession under his power. Reason behind this
could be the right to exercise freedom on your possession at will is not something
absolute reason behind this could be its intangible nature.

Mediate
Possession enjoyed or used by one person which flows from some other person
could be said to be mediate possession. Can be also said to be indirect possession
not directly accessible and enjoyable. The relationship could be established by
interreference or by agency as well.

Possession in relationship with Ownership

Ownership is the most related and interchangeably used word for possession. But
there is actually minute difference between them. They are recognized as two
distinct and separate concepts and could be said to be a result of an
underdeveloped and immature system.

ROMAN LAW- under Roman law ruled regarding property and ownership could
be derived and dated back to history. Ownership and Possession could be
differentiated and said to be distinct. In Roman Law, they tried to define
possession and domination. Dominium as per Roman law was an absolute right
over a particular object. Possession only means the right or the power over a object
and has no legal consequences in the ancient law. Roman law regarding property
rights has also influenced the English Law.

HINDU LAW- The concepts of possession and ownership are separate and
distinct under ancient Hindu law. Under ancient Hindu law as well as the law of
Para Materia India. The rights were differentiated wherein the right of possession
and ownership is different. Concepts like bailment, prescription, sale without
ownership were based upon these differences. In Ancient Law it is stated that the
law makers such as Manu and Yajnavalkya provided a contract as possession of an
immovable property runs for 20 years and of movable 10 Years gives the valid
dominant ownership over that particular property. Texts from these ancient books
and theories clearly state that the concepts of ownership and possession are distinct
and this can also be observed from the theories given by Ancient Indian Jurists
about Ownership.

ENGLISH LAW- English law is fundamentally in charge of development of

ownership. As indicated by Holdsworth, English law perceived the idea of
ownership as a flat out ideal, through advancements in the possession laws. The
possibility of ownership as for land and regarding assets had developed through
two unmistakable ways. The idea of responsibility for was a consequence of the
odd highlights of land residencies during the period of feudal framework. Under
feudal system the property was held in kind for some administration as insurance.
The holding came to be known as 'seisin'. Seisin was a right that depended after
getting back the possession. The owner succeeded just on the off chance that he
demonstrates a superior right of possession than the holder. In this way, it
advanced as ideal to have as complexity to unrivaled of ownership. In the old
occasions, the rights over movables are not of a nature that it is called 'ownership'.
Conclusion
So, at last it can be said that possession and Ownership are related to each other,
because possession is basically the exercising of your claim on your property
whereas on the other hand Ownership is the recognition of that particular property
in accordance to the law. However, Salmond believed that this distinction as
mentioned above is not enough and the discussion regarding this is vast.

The most central distinction between the two is that ownership can't be detracted
from the owner without his authorization yet possession may be taken without his
assent either by an unjust lead or an accident. Another distinction lies in rights and
responsibility, where the owner can practice every one of the rights over his
property and is responsible to none but on the other hand, in cases of possession,
the possessor is responsible for his activities and the rights are likewise not
absolute.22

possession is an outside connection of ownership, as per SALMOND, a thing is

"owned" by a person when his case to it is kept up through the desire of the
legislature as communicated by law. It is "possessed" by a person when his case to
it is kept up by his own self-self-assured will.

22
Holmes on Jurisprudence.