Ownership in Jurisprudence: Meaning, Kinds, Incidents and Relevance in Contemporary Times

Introduction

The word ownership strikes the imagination with the picture of property, property without which there can be no ownership or possession. During the earliest of times when humans were nomads and did not posses the skill of cultivation and civilization the concept of ownership never crossed through the minds. However, the concept of possession was formulated before the concept of ownership and that too only when humans started to cultivate.

Property as a legal concept has been defined by the Supreme Court of India in Guru Dutt Sharma v/s State of Bihar, as ‘a sum of a bundle of rights and in case of tangible property would include the right to possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on.’ And along the clear concept of property comes the ideas of possession and ownership.

Concept of Ownership

With the growth of civilization, humans settling down to cultivate and produce their own food and staying at one place they began to develop the idea of ownership and recognized the terms ‘mine and thine’[1]. First came the concept of possession then the concept of ownership evolved. The Roman Law had two distinct terms ‘possessio’, which denotes physical control over a thing and ‘dominium’ which denotes the absolute right to a thing. Ownership as an absolute right in English Law evolved through the developments in the law of possession, according to Holdsworth and the term ‘ownership’ was first used in English Law in 1583.

Definition

Ownership has been defined by many jurists, some opine it is the relation between a person and a right vested in him and some opine that it is the relation between a person and the thing that is the object of the ownership.

Austin

According to him, ‘Ownership means a right which avails against everyone who is subject to the law conferring the right to put thing to user of indefinite nature’. And ‘a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration’ when it comes to full ownership.

Austin’s definition of ownership has three characteristics: –

1. Indefinite in point of user- it means that the owner may use the property howsoever he may desire so. For example, if a person owns a piece of land, he may build a house on it, use it as a garden or may simply leave it as it is. But at the same time, he must not use it to injure his neighbors.
2. Unrestricted in point of disposition- the owner has a right of transfer or disposition without any restriction. However legal systems impose certain restrictions on some transfer or disposition.
3. Unlimited in point of duration – the owner has the right of ownership till the object is in existence and as soon as the thing is destructed the right is extinguished.

Salmond

According to him, ‘Ownership, in its most comprehensive significance, denotes the relation between a person and the right that is vested in him. That which a man owns is in all cases a right.’ Also he states that ‘Every right is owned, and nothing can be owned except a right. Every man is the owner of the rights which are his.’

He also distinguished between corporeal and incorporeal ownership, ‘Although the subject-matter of ownership in its widest sense is in all cases a right, there is a narrow sense of the term in which we speak of the ownership of material things. We speak of owning, acquiring or transferring, not rights in land or chattels, but the commonest meaning of the ‘ownership’. We call it by the name of corporeal ownership to distinguish it from the ownership of rights which may be called ‘incorporeal ownership’.

Holland

He followed Austin’s view of ownership and according to him an owner has three kinds of powers namely; possession, enjoyment and ownership all or some of which can be lost by lease or mortgage.

Hilbert

According to him, ownership consists of four rights which are the right of using the thing, right of excluding others from using it, right to disposal of the thing and right of destruction of the thing. In this regard absolute ownership in land is not possible since land is indestructible, which is why in English Law one can have a legal interest in land.

Pollock

According to him, ’Ownership may be described as the entirety of the powers of use and disposal allowed by law.’

Nature and Incidents of Ownership

On analyzing the concept of ownership one can find certain attributes which reveal the nature or characteristics of ownership such as usage, enjoyment, disposition etc. Nature of ownership is as follows: –

1. It is indefinite in point of user i.e., the user may use the thing owned in any way he so desires and is in no obligation to not to use it. The user is at liberty to use it.
2. It is unrestricted at point of disposition. The owner may transfer or dispose of the property by conveyance either during his lifetime or even after his demise by way of will.
3. The owner has the right to possess the thing owned although if he actually possesses it or not is immaterial, only the right o possess is of material in nature.
4. The owner has the right to exhaust the thing owned while using it if the nature of the thing is so.
5. It is residuary in nature. Even if some rights to a certain property may be given to someone else in way of lease or rent, still the owner remains to be the owner due to the residuary characteristics to it.
6. The owner has the right to alienate the property as well as the right to destroy it.

Incidents of ownership

1. Right to possess – ownership entails the right to possess the thing owned even if there is no actual possession of it, only the right is of the essence.
2. Right to use – ownership implies that the owner can use or enjoy the thing owned in any manner he thinks fit without injuring others and within the limits of the law.
3. Right to manage – ownership contains within it the right to manage the property. It means that only the owner can decide what to do with it, how to do and by whom it is to be done, to transfer or to alienate or to destroy.
4. Right to income – ownership also entails the income generated out of it is owned by the owner. All benefits attached to the thing owned is the right of owner.

Modes of Acquisition of Ownership

There are two modes of acquisition of ownership and they are original and derivative. Original mode when things which had not been owned before and can be acquired by possession. The things owned before ownership over that thing is by derivative mode.

 Original mode is of three types absolute, extinctive and accession. Absolute in case where it previously belonged to no one. It can be acquired by either specification or occupation. In occupation an ownerless thing is owned and in this the physical control is essential. For example, birds, fish etc. In specification the material belonging to other when the shape given by another. For example, clay collected from someone’s land is made into a sculpture by another. Extinctive when the ownership of previous person is done with by reason of adverse possession by the acquirer. Accessary when acquired as an accession.

Kinds of Ownership

Corporeal and Incorporeal Ownership –

Corporeal ownership is the ownership of material object. It is the ownership of tangible things which can be perceived by the senses. For example, ownership of house, factory, machines, etc.

Incorporeal ownership is the ownership of a right. It is the ownership of intangible things which cannot be perceived by the senses. It also includes intellectual property and encumbrances. For example, ownership of shares, trademark, copyright, etc.

Trust and Beneficial Ownership –

Both ownerships are found in a trust involving a trust property. In the trust one is made a trustee and given property to hold and use such property for the benefits of the beneficiary.

The ownership of the trustee is trust ownership. This is a nominal ownership and is not real as it is only for the benefit of the beneficiary. In the eyes of law, the trustee is the representative of the beneficiary and has no right of enjoyment of the trust property. This ownership is only a matter of form and not of substance as the property is given fictitiously by the law and is only deemed to be the owner of the property due to the fiction of the law.

The ownership of the beneficiary is the beneficial ownership. Although in the eyes of law trustee is the owner but between the trustee and beneficiary the latter is the owner of the trust property.

For example, a property is given to A on trust for B then A is trustee and B is beneficiary. A has trust ownership, the legal owner in the eyes of law who is obligated to use the trust property for the benefit of B who has beneficial ownership.

Legal and Equitable Ownership –

Legal ownership has its origin in the rules of common law. This is a right in rem as it can be enforced against the whole world.

Equitable ownership has its origin in the laws of equity. This ownership is a right in personam as it can be enforced against a particular person. This ownership is recognized even when there is a legal defect.

For example, A sells his shares to B but a transfer deed is not made. The company refuses to acknowledge B as the owner and law gives no relief. Rule of equity helps here as A is the legal owner but he holds the shares as a trustee of B. B here is the equitable owner.

Vested and Contingent Ownership –

Vested ownership means where the title of the owner is already perfect. In this the ownership is absolute. For example, in a gift deed a donee (to whom the gift is gifted) cannot take possession of the gift property but he has vested interest till the death of the donor and his wife. The donee can although transfer the said property after the death of the donor.

Contingent ownership implies that the ownership is not absolute but conditional. The ownership is imperfect and becomes absolute and perfect only on fulfillment of some condition. For example, A leaves his property to B and on B’s death to C. The ownership of C is contingent ownership as he will get the property only after the death of B.

Sole Ownership and Co-ownership –

Sole ownership is when only one person has the whole and sole right in a property and no one else can claim any right whatsoever over the property in question.

Co-ownership is when more than one person has a right that is the undivided and vested in all of them at the same time. The parties do not separately own a part but co-owners of the same property.

Co-ownership and Joint Ownership –

Co-ownership the property in question is commonly owned by both the parties and on demise of one party the heirs of that party would inherit part of it. For example, A and B are in a co-ownership. On death of A, A’s heirs will get half of the property.

Joint ownership is when a property is jointly owned by parties and on the death of one party the ownership dies with him and cannot be inherited. For example, A and B are joint owners of a property. On death of A, B becomes the sole owner of the said property.

Absolute and Limited Ownership –

Absolute ownership means that except the owner in whom all the rights are vested there are no other person who can claim any right over that property. But there may be legal or contractual restrictions upon the usage of the said property.

Limited ownership means in the ownership there are limitations on the rights of usage, duration or disposal of the property. For example, before 1956 a Hindu woman had only limited ownership over a property and after her demise the property would be inherited by the heirs of the last holder.

Role of Ownership in Modern Times

Ownership as a concept has evolved since long and has developed as a sign of power, wealth and social standing. Individual ownership is a more recent idea and ownership within the community was a concept during the initial stages of society formation. In his book Physics and Politics, Mr. Bagehot had brought out that in order to bind the society in its forming stages ‘everything which tended to individualism would naturally be discouraged by the tribal feeling of self-preservation.’[2]

Ownership was only for the monarchs and in some instances for the church, apart from them no one had any right over any property. Concept of private property came into existence only after feudalism was done with and dissolved and the military heads had absolute power over his domain which gave way to modern private ownership. Feudal lords held land and other properties and labours were the ones who although worked on the said land but had no rights in it whatsoever.

Later with the advent of machines and the industrial revolution came in the rights of the labours and they now had equal rights to negotiate with the owners of the property. In this era the owner was not the only one with power, wealth or social standing. New legislations in industries and labour sector forced the industrialists to share their profits with not only the labour force but also to be paid as taxes and in more recent time as corporate social responsibility.

In the current times ownership is neither absolutely with the government nor the power the ownership provides is with the industries. The labour and industrial laws enacted has impacted the social and economic conditions of the nation as a whole. Ownership now distributes power, wealth and status among all.

Conclusion

Ownership in its nature is residual and can be said to have a bundle of rights attached to it, but at the same time it also denotes the relation between a person and the thing to be owned. That throughout the years the concept of ownership and possession has evolved and has been embedded in the minds of human that may or may not be in a legal sense. It has impacted society and even society has impacted its definition, meaning, scope and understanding. Ownership may mean different things to different people but what does not change is the fact that along with the rights attached comes liability, obligations, duties toward others and society in general.

[1] Jurisprudence and Legal Theory by Vidya Dhar Mahajan, 5^th edition,Pg. 285

[2] Political Science Quarterly Vol. 1 no. 4 Pg. 596

Author Details: Asmita Chatterjee [Student, K.L.E. Society’s Law College]