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Legal Concepts

PROPERTY[1]

QUESTION BANK.

1. Explain the meaning of propriety and describe different types of properties.
2. State the meaning of property and describe different modes of acquisition of property.

SHORT NOTES.

Distinguish between Corporeal and incorporeal properties.
Right in re-propria.

I. Meaning of Property-

The concept of property is very important in human life. It is because no human being can survive or develop without material objects. Material objects are the subject matter of property.

In its widest sense, all animate and inanimate things that belong to a person are called ‘property’. In such a comprehensive sense, the term ‘property’ includes material things such as land, buildings, cars, etc., as well as incorporeal rights such as the right to life and personal liberty, copyright, patient rights, etc.,

Thus, in its widest sense, the term property includes both corporeal and incorporeal properties.

According to Salmond, “subject matter of the law of property is proprietary right in rem”.[2]

He observes that in a legal sense, the term ‘property’ refers to the following.

1) All legal rights-

Hobbes, Blackstone and Locke support this theory. According to them, in its widest sense, the property includes legal rights of whatsoever description. In other words, man’s property is all that which is ‘his’ in law. This view signifies complete ownership of corporeal (material) as well as incorporeal rights.

Thus, in this sense, land, buildings, copyright, patient rights, as well as the right to life and personal liberty, are property. In today’s time, the meaning of property is accepted in the widest sense.

2) Proprietary rights only-

In its narrow sense, the term “property” includes man’s proprietary rights only. This view does not include the personal rights of a person, such as the right to liberty, reputation, profession etc.

Proprietary rights mean rights related to corporeal and incorporeal property that can be converted into money, such as land, buildings, cars, shares, goodwill, copyright, etc.

3) Corporeal property only[3]–

In its very restrictive sense, the term ‘property’ includes only corporeal things, i.e. the right of ownership in material objects such as land, buildings, cars, gold, etc. It does not include incorporeal property. Bentham supports this theory.

In modern times, the meaning of property in its widest sense is accepted in almost all legal systems.

IV) Kinds of property-

1) Corporeal property-

Broadly speaking, ‘properties’ can be divided into ‘corporeal’ and ‘incorporeal’. ‘Corporeal’ property is ‘the right of ownership in material thing’ whereas ‘incorporeal property’ is ‘ownership in intangible objects or ownership of right in other’s property’.

Corporeal property includes all material things such as land, buildings, gold, etc. ‘Corporeal means ‘material things which can be seen, felt, or touched. ‘ In other words, ‘corporeal property’ means ‘the right in material things’.

Corporeal property can further be divided into- i) Movable and ii) Immovable property.

2) Incorporeal property[4]–

As discussed earlier, incorporeal property is either (i) ownership of an intangible object, e.g., copyright, patient right, goodwill, etc. (re-propria), or (ii) ownership of a right in another’s property, such as the right to way, right of light, right to fetch water, etc. ( re-aliena).

In other words, material things are physical objects, whereas all other things which are the subject matter of right are immaterial things.

Incorporeal property can be further divided into-

i) Right in re-propria[5]–

Right in re-propria is the right in immaterial things. Such rights can be produced by human labour and skill. These properties nowadays are called ‘intellectual property’. The person holding the right can get a remedy for its violation. Patent rights, copyright, commercial goodwill, rights in trade mark -etc., are some of the intellectual property or rights in re-propria.

ii) Rights in re-aliena[6]–

Rights in re-aliena are also known as ‘incumbrances’. Rights in re-aliena are the rights in rem over the thing owned by another person. Such rights in rem run with the property and bind the property in whoever’s hand it may be, e.g. the right //on the way over other’s property, the right to draw water from other’s well, etc. We will discuss these rights in detail as follows-

a) Lease[7]–

A lease is a transfer of a right to enjoy or use the immoveable property for a specific time or in perpetuity. A lease is an agreement by which the owner transfers his right of possession to the lessee. It is the transfer of the limited right to use or enjoy the property. It is the outcome of the separation of possession and ownership.

b) Servitudes or Easement[8]–

‘Servitude’ is a right enjoyed by the owner of the land over the land of another. These rights in Indian parlance are called ‘easements’. Thus, the right of way from other’s land, the right to draw water from other’s well, the right of light etc., are easementary rights.

Servitudes are further divided into –viz-

i) Private Servitude[9] –

A private servitude is that in which the right to use is vested in a determinate individual or individuals, e.g. a right of way vested in the owner of one piece of land over an adjoining piece of land.

ii) Public Servitude[10]–

A public servitude is one in which the right is vested in the public at large, e.g., the right to a highway over another’s land, the right to bathe on a river bath, etc.

c) Securities[11]–

A ‘security’ is an encumbrance vested in a creditor over the property of his debtor for the purpose of securing the recovery of debt.

In other words, it is a right to retain possession (lien) of a thing until the debt is repaid. Security on immovable property is called a ‘mortgage’, and on a moveable property is called a ‘pledge’.

Thus, there are two types of securities over property – viz- i) lien and ii) mortgage

d) Trust[12]–

A trust is an encumbrance in which property ownership is restricted for the benefit of a third person known as the beneficiary. Thus, a trust is an obligation annexed to property ownership.

Trust is created by the confidence reposed in and accepted by the owner in the trustee. Thus, trust is created by the person who makes an endowment in favour of the trustee for the benefit of the beneficiary.

Trust is ordinarily created for the benefit of an unborn person, infant, minor, etc.

V) Modes of Acquisition of Property-

There are several modes of acquisition of property, viz.

1) Possession[13]–

Possession is one of the important modes of acquisition of property. Possession is prima faci evidence of ownership. A person in possession cannot be disturbed from his possession except by the true owner. Even a true owner cannot evict him without due course of law. If anyone except the true owner takes away possession, the person so dispossessed can recover the possession back.

The property which belongs to no one belongs to the first possessor of it. Such a finder gets a valid title to it against the whole world. Thus, fish of the sea or birds of the air are the property of the person who first catches them.

2) Prescription[14]–

According to Salmond, ‘prescription’ is the effect of laps of time in creating and destroying rights. In other words, long possession of a property creates a right, whereas long want of possession destroys a right.

‘Prescription’ is of two types ‘positive’, which is also called ‘acquisitive’ and ‘negative’ or ‘extinction’. Positive prescription creates right, whereas negative prescription destroys right. Thus, exercising the right of way through the land of another for more than 12 years without interruption creates a right by prescription. Similarly, if the creditor does not sue the debtor for three years from his debt, his right to recover the debt is extinguished by presumption.

‘Negative prescription’ is the divesting of a right by the same process by which a title of right is created in a positive prescription.

3) Agreement[15]–

The agreement is today’s most common and popular mode of acquiring property. By an agreement, property is transferred from one person to another by mutual consent. An agreement can be of two types, viz.

i) Assignment-

Assignment means an agreement by which the owner’s existing rights are transferred to another person. Thus, a sale is an assignment.

ii) Grant-

‘Grant’ means ‘a grant by which new rights are created by way of an encumbrance upon the existing rights of the actual owner such as lease, mortgage, hypothecation, pledge etc.’

4) Inheritance[16]–

Devolution of the property after the owner’s death upon his legal heirs is called ‘inheritance’ or ‘succession’.

Death of the owner of the property creates some rights in favour of heirs, viz. (i) inheritable and (ii) uninheritable. A right is inheritable if the right dies with the person. Usually, proprietary rights are inheritable, whereas personal rights, with some exceptions, are not inheritable. Thus, proprietary rights in land, buildings, cars, gold, etc., are inheritable, but personal rights such as the right to reputation, the right to marriage, freedom of speech, etc., are not inheritable.

A person may acquire property by inheritance, either by will in his favour (testamentary succession) or by being a legal representative (intestate succession).

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[1] मालमत्ता [संपत्ति]

[2] मिळकती संबंधि संपूर्ण जगाविरुध्दचा अधिकार [आय के मामले में पूरी दुनिया के खिलाफ अधिकार ]

[3] भौतिक स्वरुपाची मिळकत [भौतिक रूप में आय]

[4] अभौतिक मिळकत [अमूर्त आय ]

[5] अभौतिक मिळकतीतील अधिकार [अमूर्त आय में अधिकार ]

[6] छुस-याच्या मिळकतीतील सुविधा अधिकार [अभियुक्तों की आय में सुविधा अधिकार ]

[7] भाडे तत्वावर देणे[किराये पर दे रहा है ]

[8] वहीवाटीचा अधिकार [स्थानांतरण का अधिकार ]

[9] खाजगी वहीवाटीचा अधिकार [निजी रिकॉर्ड का अधिकार ]

[10] सार्वजनिक वहीवाटीचा अधिकार [सार्वजनिक रिकॉर्ड का अधिकार ]

[11] तारण [मोक्ष ]

[12] विष्वस्त [ज़रूर ]

[13] कब्जाने [कब्जे से ]

[14] जुनि वहिवाट [पुराना पेशा ]

[15] हस्तांतरण [स्थानांतरण करना ]

[16] वारसा [विरासत ]