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Legal Concepts

OWNERSHIP[1]

QUESTION BANK

Q.1. Define ownership and state its kinds.

Q.2. Critically examine the concept of ownership.

Q.3. State and explain the kinds of ownership.

Q.4. Define ownership and state its essential characteristics.

SHORT NOTES

1) Kinds of ownership

2) Difference between possession and ownership.

I. Introduction-

Ownership and possession are very important concepts relating to the property. In the primitive era, possession was only known to a human being. As human beings got knowledge of cultivation and started to settle down (i.e. shifted from nomadic[2] to agriculture), the concept of ownership emerged. At that time, individuals started to think of the right to property, which gave birth to the concept of ownership. With the advancement of civilised society, the concept of ownership began to grow.

II. Meaning and Definition-

“Own” literally means “to have or hold a thing.” The person who holds a thing as his own is said to be the owner and has the right to ownership over it.

We will discuss some of the definitions of ownership which reveal the legal meaning of “ownership”, viz.

1) Austin-

Austin defines ‘ownership’ as ‘a right indefinite in point of the user, unrestricted in point of disposition and unlimited in point of duration[3].

From the above definition, we can deduce three elements of ownership-

a) Indefinite user[4]–

The term indefinite user implies that the owner of a thing has a right to use or even misuse the thing in the manner he likes. Thus, there is no restriction on the manner of his right of use.

b) Unrestricted disposition[5]

The owner also has a right to dispose of a thing owned in the manner he likes, e.g., destroying it, alienating it, etc.

c) Unlimited duration[6]–

The third attribute of ownership is that the owner can exercise his right for an unlimited duration. The right exists so long as the ownership and the thing exist, and even after the owner’s death, his heirs can use the thing.

However, criticism against the definition provides that the above rights may be subject to certain restrictions and may not be absolute.

2) According to Salmond-

According to Salmond, “ownership denotes the relationship between a person and an object forming the subject matter of ownership. It consists of a complex of rights all in rem.”

According to Salmond, ownership has the following rights viz-

a) Right to possess the thing.
b) Right to use and enjoy the thing.
c) Right to consume, destroy or alienate the thing.
d) Right of ownership indefinite in duration.
e) Residuary rights,g., the owner may lease the property to one, the right of an easement to another and the right of profit to the third person, but the owner still owes residual rights.

However, the definition is criticised on the grounds that the owner owns the thing and not merely rights relating to the thing.

3) Holland-

According to Holland, “ownership is a plenary control over an object”.

According to him, ownership connotes the following elements.

1) Control over the material object (possession).

2) Control over an aggregate of rights.

3) Control over all those rights which the owner can use against others.

4) Pollock-

According to Pollock, “Ownership is the entirety of the powers of use and disposal allowed by law”.

Thus, from the above definitions, we may summarise the following elements of ownership-

i) The ownership is a right to possess the thing he owns.
ii) The owner has a right to use and enjoy the thing owned,

iii) The owner has a right to consume, destroy or alienate the thing owned.

iv) The rights of the owner are indeterminate in terms of duration.
vi) The owner has residuary rights.

III] Kinds of ownership-

Ownership is of the following kinds, viz-

1) Corporeal[7] and incorporeal[8]–

Ownership of a material object like a house, car, building, etc., is corporeal, whereas ownership of rights like copyright, patient right, trademark, and right of way, etc., is incorporeal.

Corporal things are tangible, whereas incorporeal rights are intangible.

2) Sole ownership[9] and co-ownership[10]–

When the ownership is vested in a single person, it is called sole ownership, whereas when the ownership is vested in two or more persons at one time, it is called ‘duplicate ownership’. ‘Co-ownership’ is the specie of duplicate ownership. The partnership is the best example of co-ownership.

3) Trust ownership and beneficial ownership-

Trust ownership and beneficial ownership are other species of duplicate ownership. In trust, ownership also includes property owned by two or more persons.

In trust, the relationship between the persons is such that one of them is under obligation to use his ownership for the benefit of the other. The person under obligation is called ‘trustee’, and his ownership is the ‘trust ownership’. The person for whose benefit trust is created is called ‘beneficiary’, and his ownership is called ‘beneficial ownership’.

The trustee is deprived of any right to the beneficial enjoyment of the trust property for himself. He is under an obligation to use trust ownership for the benefit of the beneficiary.

A trust may be created for the benefit of an unborn child, a minor, disabled persons, co-owners, etc.

4) Legal and equitable owners[11]–

The concept of legal and equitable ownership is similar to that of trust and beneficial ownership.

The concept of legal and equitable ownership is not recognised in India; it is recognised in England.

In England, two different courts were in existence; one was called as ‘Common law court” and another a “Chancery or Equity court”.

The rights recognised by Common law courts were called ‘legal rights’, and those recognised by a court of equity were called ‘equitable rights’.

Common law courts were based on customs; these customs subsequently became legal rules, whereas the Court of equity was based on equitable principles of justice, equity and good concise.

Sometimes, one person is recognised as a legal owner and another as an equitable owner of a right; in such circumstances, the legal owner is treated as a trustee and the equitable owner as the beneficial owner.

5) Vested and contingent ownership[12]–

Ownership can further be divided as vested or contingent. Ownership is said to be vested when the owner’s title is perfect and there requires nothing to make his title perfect, whereas contingent ownership is an ownership where the owner’s title is not yet perfect but is capable of becoming perfect in future on fulfilment of some conditions.

Thus, in vested ownership, property is owned absolutely, but in contingent ownership, property is owned conditionally.

Thus, if a testator bequeaths a fund by the will to A for his life and after his death to B. After the death of the testator ownership of the fund vests in A, but B’s ownership of the fund is contingent depending upon the contingency of A’s death.

6) Absolute ownership and limited ownership-

When all the rights of ownership are vested in one person without any restriction, his ownership is absolute. But when there are limitations on a person’s use, duration or disposal of the thing, it is limited ownership.

Earlier in India, women had limited interest in the property, and could not sell the property. In this sense, her ownership was limited ownership.

IV) Difference between ownership and possession-

Possession is defacto exercise of a claim, whereas ownership is the de-jure recognition of it. In other words, Possession is, in fact, while ownership is in the form of a right. E.g. A tenant is in possession of a house the ownership of which is vested in the landlord.

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[1] मालकी [स्वामित्व ]

[2] भटके [ पथिक एस ]

[3] मालकी म्हणजे असा अधिकार जो (हक्क) वापरनेचे दृश्टीने अमर्याद प्रकारे, विल्हेवाटीचे दृश्टीने बंधनमुक्त व कालमर्यादेच्या दृष्टीने अमर्याद असतो.[ स्वामित्व एक ऐसा अधिकार है जो उपयोग की दृष्टि से असीमित, निपटान की दृष्टि से अप्रतिबंधित और समय की दृष्टि से असीमित है। ]

[4] अमर्याद प्रकारे वापर [असीमित तरीकों से प्रयोग करें ]

[5] विल्हेवाट लावण्याचा अधिकार [निस्तारण का अधिकार ]

[6] अमर्याद वेळेसाठी [असीमित समय के लिए ]

[7] भौतिक साधनांची मालकी [भौतिक साधनों का स्वामित्व ]

[8] अभौतिक / अदृश्य साधनांची मालकी [अमूर्त/अमूर्त संपत्ति का स्वामित्व ]

[9] व्यक्तीगत / एकत्रीत मालकी [व्यक्तिगत / संयुक्त स्वामित्व ]

[10] सहमालकी [सह-स्वामित्व ]

[11] कयदेशिर व न्याय मालकी [क्षेत्राधिकार और सही स्वामित्व ]

[12] पुर्ण अधिकार मालकी व घटनेवर अवलंबुन मालकी [ संविधान के आधार पर पूर्ण अधिकार स्वामित्व और स्वामित्व ]