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Jurisprudential Concept of Property

Question Bank

1. 1. Explain the jurisprudential concept of property.
2. 2. Explain the concept of property. State the kinds of property.
3. 3. Explain the concept of property. State the modes of acquisition of property.

SHORT NOTES.

1. Kinds of property.

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[1]. Material objects are the subject matter of property.

          In its widest sense, all animate[2] and imamate[3] things belonging to a person are called ‘property’. In such a comprehensive sense, the term ‘property’ includes property of land, buildings, cars etc., as well as rights of life and personal liberty, copyright, patient right etc.

          Thus, the term property, in its widest sense, includes both corporeal[4] and incorporeal[5] properties.

          According to Salmond, “subject matter of the law of property is proprietary right in rem”[6]. He observes that in a legal sense, the term ‘property’ refers following:-

1) All legal rights:-

          Hobbes, Blackstone and Locke support this theory. According to them, in its wisest sense, the property includes legal rights of whatsoever description. In other words, Man’s property is all that which is “his” in law[7]. This view signifies complete ownership of corporeal (material) as well as incorporeal rights.

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

2) Property rights only:-

          In its narrow sense[8], the term “property” includes only man’s proprietary rights. This view does not include personal rights such as the right to liberty, reputation, profession etc.

          According to this view, ‘Proprietary rights’ means rights related to corporeal as well as incorporeal property, which can be converted into terms of money, such as land, building, car, shares, goodwill, copyright, patent right etc.

3) Corporeal property only:-

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

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

II. Kinds of property:-

          There are the following kinds of property, viz.

1. Corporeal Property[9]:-

          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’.

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

          Corporeal property can further be divided into (i) Movable and (ii) immovable properties.

2. Incorporeal property[10]:-

          ‘Incorporeal property’ as already discussed, is either (i) ownership of an intangible object, e.g., copy right, patient right, good will etc., (re-propria), or (ii) the ownership of right in others property, such as right to way from others land, 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:-

          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’. Persons holding these rights can get a remedy for their violation. Patent rights, copyright, commercial goodwill, right in trade mark etc., are some examples of intellectual property or rights in re-propria.

          We will discuss some of the instances of these rights:-

(1) Goodwill[11]:-

Goodwill is a commercial term that signifies the value of the business in the hands of a successor. Goodwill is a “whole advantage, of reputation and connection of firm, which may have been built up by years of honest work or gained by the lavish expenditure of money”.

So, goodwill is the sum total of name, fame, reputation, and business connections earned or acquired by the business concerned through honest work done or services provided for years to its clients or customers, etc. A business’s goodwill is an intangible asset.

Goodwill is often recognised when one business acquires another business. The price of goodwill is the excess amount paid over the value of the purchased business assets. For example, if the business is sold for Rs. 1 crore and its assets are actually worth Rs. 90 lac, Rs. 10 lac is the price of goodwill.

(2) Copyright:-

   Copyright provides its owner with the exclusive right to reproduce and sell artistic works, such as books, songs, movies, lyrics, graphic designs, software, choreographic work etc.

                    However, such work should be original and should not be an exact copy of another work.

                    Granting copyright to the purchasing company allows the company to continue the creation and sale of the purchased company’s services or products. There is a copyright Act in India as well as in other countries.  The Act provides a procedure for the registration and protection of the copyright of books, software, etc.

(3) Patient right[12]:-

                    Patents protect inventions. Patents provide exclusive rights to produce or sell new inventions. However, such inventions should be novel. In other words, it must be different from all other previous inventions. Such inventions should be useful. It must also be non-obvious, i.e., it must be a significant and surprising development in that particular field.

                    In fact, a patient grants a manufacturing or research company control over the patent’s use and sale of a specific design.

(4) Trademark[13]:-

                        A trade mark is used to identify where a product or a service has come from. Trademarks and trade names include corporate logos, advertising jingles and product names that have been registered with the government and serve to identify specific companies’ products.

                    A trademark is used by a trader to distinguish his products and services from others in the marketplace. A trademark usually appears on packing or is displayed in advertisements. However, there is a difference between trademarks and trade names.

                    It is intangible property; nobody except the owner or purchaser can use the trademark. There are Trademark Acts in many countries for the registration of trademarks and for prescribing punishments for their violation.

(5) Industrial Design[14]:- ]

                    There is an Industrial Design Act for the registration of Industrial Designs. Industrial design registration may be obtained for the shape, configuration, pattern, and ornament applied to the furniture, household utensils, toys, vehicles, fabrics, etc.

                    Rights in industrial design are similar to those of patients and copyright. Registration of industrial design provides absolute protection to the designer.

ii) Right in re:-aliena[15]:-

          Rights in re-alena are also known as ‘encumbrances’. Rights in re-alena are the rights in rem over the thing owned by another person. Such right in rem runs with the property and binds the property in whosoever’s hand that property may be, e.g., the right on the way over others’ property, the right to draw water from other’s well, etc. We will discuss these rights in detail as follows:-

a) Lease[16]:-

          A lease is a transfer of a right to enjoy or use immovable property for a specific time or in perpetuity. It is an agreement by which the owner transfers his right of possession to the lessee. A lease 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[17]:-

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

c) Securities:-

          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 movable property is called a ‘pledge’.

          Thus, there are two types of securities over property, viz. i) lean and ii) mortgage.

d) Trust[18]:-

          A trust is an encumbrance in which the ownership of a property is restricted for the benefit of a third person known as a ‘beneficiary.[19]’. 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.[20] in favour of the trustee[21] Trust is ordinarily created for the benefit of the beneficiary. It is also created for the benefit of the unborn person, infant, minor, deity, etc.

III. Modes of acquisition of property:-

          There are the following modes of acquisition of property:-

1). Possession:-

          Possession is one of the important modes of acquisition of property. Possession is a 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 a possessor without due course of law. If anyone except the true owner takes away possession, the person so dispossessed can recover the possession.

          The property that belongs to no one belongs to the first possessor of it; such 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[22]:-

          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 it.[23].

          ‘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, the exercise of 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, his right to recover debt is extinguished by prescription.

          ‘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:-

          The agreement is the most common and popular mode of acquiring property today. By an agreement, the 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, the sale is an assignment.

ii) Grant:-

          A grant is a grant by which new rights are created by encumbrance to the existing rights of the owner, e.g., lease, mortgage, hypothecation, pledge, etc.

4) Inheritance[24]:-

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

          After the death of the property owner, the rights to the property devolve upon heirs; this is called inheritance.

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[1] भौतिक / दृश्य वस्तुएं [HkkSfrd @ n`”; oLr]q

[2] भौतिक / दृश्य वस्तुएं [HkkSfrd @ n`”; oLr]

[3] अभौतिक / अदृश्य वस्तु [vn`”; अभौतिक / अदृश्य वस्तु]

[4] भौतिक/ दृश्य संपत्ति

[5] अभौतिक / अदृश्य संपत्ति

[6] पूरी दुनिया के खिलाफ अधिकार [feGdrh lacaf/k laiq.kZ txkfo:/npk vf/kdkj]q

[7] मनुष्य की संपत्ति वह सब है जो कानून में “उसकी” है [euq”;kph laIiRrh Eg.kts loZdkgh dh ts R;kps vlrs]

[8] अपने संकीर्ण अर्थ में [e;kZnhr n`”Vhus]q

[9] भौतिक संपत्ति [HkkSfrd Lo:ikph feGdr]q

[10] अमूर्त संपत्ति [vHkkSfrd Lo:ikph feGdr]q

[11] ख्याति- व्यवसाय मूल्य/ व्यवसाय dh ख़्याति [O;olk;kpk ukoykSdhd]

[12] एकस्व अधिकार- ये अधिकार नए आविष्कारों को बनाने या बेचने का विशेष अधिकार प्रदान करता है।  [आविष्कार vf/kdkj] [ vfHkuo ladYiusrhy vf/kdkj]q

[13] व्यापार चिन्ह – ट्रेडमार्क का उपयोग एक व्यापारी द्वारा अपने उत्पादों और सेवाओं को बाजार में दूसरों से अलग करने के लिए किया जाता है

[14] औद्योगिक रचना [vkSn;ksxhd jpuk@ vjk[kMk]q

[15] बोझ- दुसरे कि सम्पत्ती पर सुविधाधिकार  [nql&;kps feGdrhoj cks>k]q

[16] पट्टे पर देना  [HkkMs RkRokoj ns.k]

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[18] न्यास

[19] लाभार्थी

[20] न्यास उस व्यक्ति द्वारा बनाया जाता है जो दान करता है [ns.kxh]

[21] न्यासी

[22] निरंतर उपयोग से प्राप्त होणे वाला अधिकार

[23] किसी संपत्ति पर लंबे समय तक कब्जा करने से अधिकार पैदा होता है, जबकि कब्जे की लंबी चाह उसे नष्ट कर देती है| [tqfu oghokV]q

[24] विरासत [ okjlk]q उत्तराधिकार