Jurisprudence

Notes By Prof. Madhura Bhangle

What is Jurisprudence
• Jurisprudence, or legal theory, is the theoretical study of law.
• The word jurisprudence derives from the Latin term juris
prudentia, which means "the study, knowledge, or science of law.“
Importance
Value of jurisprudence
1. Theoretical base for practical application
2. Futuristic approach– what law should be?
3. Helps to understand fundamental principles of law
4. Explains ethics, morality and philosophy
5. Comparative study
6. Link varies aspects to law
7. Importance of precedents
8. Interpretation of legal concepts
BRANCHES OF ADMINISTRA
CRIMINAL
LAW TORT TIVE LAW
LAW

JURISPRUDENCE ( THEORIES OF LAW)

Components influencing jurisprudence ( sociology, politics, economics)

Purpose of law
1. Justice – a) Distributive b) Corrective
2. Stability and Uniformity
3. Peace and Harmony
4. Protection of Interest of Individuals and Society
 Sources of Law

1. Formal 2. Material

a. Legal b. Historical
i. Legislature i. Religion
ii. Precedent ii. Morality
iii. Customs etc
iv. Agreement
v. Treaties
Legislation
• Legislation means the process of lawmaking. Legis means law
and Latum mean “making”, and as a whole it means lawmaking
• Types of Legislation : 1. Supreme 2. Subordinate:
Executive,Judicial,Colonial,municipal,Autonomus

• According to Salmond: “Legislation is that source of law which

comprises in the assertion of lawful standards by a competent
specialist.”
Features of Legislation
1. Abrogative
2. Accessibility
3. Bulk is reduced
4. Benefits to set principles of law
5. Formulated in advance
6. General in application
7. Separate body of making law
Arguments against Legislation
• Not always futuristic
• Language is sometimes difficult to interpret
• Drafting process is time consuming
• Ambiguity in language
Precedent
• A precedent is a principle or rule established in a previous legal case .
• Stare Decisis - binding nature
• Types of Precedent-
1. Authoritative
2. Persuasive
3. Declaratory
4. Original
Doctrine of stare decisis under Art. 141 of the
Constitution of India
• Decision which have already been taken by a higher court are binding to
the lower court and at the same time stand as a precedent to the lower
court judgement, which cannot be altered by lower court. This principle is
known as Stare decisis, which is derived from the Latin phrase “stare decisis
et non quieta movere”, which basically means to stand by the decided
matters. In India it is commonly known as the concept of precedent
• Art. 141 of the Indian Constitution states that “law declared by Supreme
Court to be binding on all courts within territory of India.” Art. 141 state
that only the ratio decendi of a case is binding not the obiter dicta and the
mere facts of the cases. Therefore, while applying the decision of S.C. by
other courts, what is required is to understand the true principle lay down
by the previous decision
Merits of Stare Decisis
• Respect for opinion
• Certainty and Continuity
• No arbitrary decisions
• Convenience and referral value
Types of precedents

• Original and Declaratory precedents– original precedents refer to

those cases where there is a question of law which has not been
decided before, and then in such a case the decision of the judge
forms original An original precedent is a law for the future, which
creates and applies new rules. Declaratory precedent means those
cases where application of an existing rule of law is used. In such
cases it is seen that the rule is applied because a law already existed
on it.
• Authoritative precedent– it is also known as mandatory precedent or
as a binding authority. It means those decisions which the judges
must follow whether they approve it or not. It basically denotes the
higher courts decisions which are binding over the lower courts of
that region.
• Authority flows downwards
• Persuasive precedent– these precedents are not as binding as the
authoritative precedents. These precedents means that while making
any judgment the judge has to consider these precedent and has to
give higher weightage to it. The main concept behind considering it is
that it is relevant and can help in making a fair decision. These cases
could be of could which are put at similar level in the hierarchy of
courts. Even lower court decision can play a role of persuasive
precedent
• Authority flows horizontally
Ratio decidendi
• Ratio decidendi literally means ‘reason for deciding’.
• Legal principle are applied
• In the judicial context, it is the reason which is cited for arriving at a
decision in a case. Such reason is not the law that is getting attracted
in the contemporary case but is the necessary notion which helps the
court arrive at a particular decision. It is this part of the precedent
which has to be followed by the courts in subsequent decisions but
not the general observations of the court.
• Helps in future reference for professionals and lawyers
Obiter dictum
• Obiter dictum is defined as the opinion expressed by
the judge in the court or during pronouncement of
judgment which does not have any importance in the
decision. This is not an important constituent to arrive
at a decision but is just used to describe the
circumstances. They are the incidental remarks made
by the court while dealing with the actual conflict
between parties.
• Persuasive in nature
General rules of Precedents
1. SC and HC decision binding on all administrative tribunals
2. Higher benches of HC can overrule decisions of lesser bench of HC.
Criticism by Chief Justice Beaumont
3. Foreign Courts have persuasive effect
4. Antiquity ( time period ) of precedents increases the authority
5. Binding part of decisions are Ration Decidendi
6. Decision by SC binding on all lower Court- Art. 141
Circumstances which destroys or weaken
binding force of a precedent
• Abrogated decision- reversal, over ruling
• Reversal on different ground
• Inconsistency between decision of court of same rank
• Sub- silentio ( not fully argued)
• Changed conditions
Features of Precedent
• Certain
• Prevents Arbitrary judgments
• Bulky
• Persuasive effect of Precedent may create confusion
• by learned unbiased judges
Advantages of Legislature over Precedent
1. Abrogative
2. Declaration of law in advance
3. Futuristic
4. Legislature is definite
5. Separation of Powers
6. Principles
7. General Application
Advantages of Precedent over Legislation
1. Flexible
2. Unbiased
3. More Value and Equitable
4. Better Interpretation
5. Less time consuming
Customs
Individual behaviour

Repetition of that behavior in society

Habit of people

Judicially noticed through decision of courts

Incorporation in a statute
Requisites of valid customs
• Immemorial antiquity
• Reasonableness
• Continuity
• Certainty
• Compulsion
• Conformity with Statute and Morality
• Peaceful enjoyment
Types of customs
• Legal Customs- General and Local
• Conventional Customs
Over view Theories of law
• Natural law – Morality
• Imperative/ Positive theory- laws framed by authority
• Legal realism- Judge made laws
• System of Rules – Rules and Principles
• Pure theory of Law – Grund Norms
Natural Law Theory
• Relates to set of principles of human conduct
• Depends on right reasoning
• Justice and Morality and Common Sense
• Founders: Plato and Aristotle

• Main idea behind Natural Law theory :

a. moral Standards
b. Man made laws should be in conformity with Natural laws
c. If the man made laws are not in conformity with natural laws thrn they
are considered as bad laws
Natural Law Theory- Merits:
• Popular and commonly adopted
• Grounds for Fundamental rights
• Ground for framing International Laws
• Easy to interpret
Natural Law Theory- Demerits
• No uniformity
• Lacks punishments
• No distinction in law and morality
Imperative Theory Law
• Founder : John Austin
• Also known as Positive Theory of Law
• Just like Natural Theory talks about Reasoning. Positive theory talks about
Command of Sovereign.
• Austin states : Every positive or every law strictly so called is directly or
indirectly command of monarch or sovereign in character of political
superiority and persons or person are subject of such command of the
authority
• Positive law is basically human-made law. It includes statutes laid down by
legislatures or rules and regulations by the human institution.
What is “Law” For Austin?

• “Law is the aggregate of rules set by men as politically superior, or sovereign, to men
as politically subject.”
• In other words, he says, laws are man-made rules by sovereign imposed upon the society
it governs. He equates a law to a “command” by a body which is politically higher.
• This twofold view, that
• (1) law and morality are separate and
• (2) that all human-made ("positive") laws can be traced back to human lawmakers, is
known as legal positivism.
• Thus we have following essentials
• Sovereign, which makes a
• Command, which imposes a
• Duty, which IF NOT followed calls for
• Legal sanction
Three Important Features of Imperative
Theory

Command Sovereign Sanction

Command
• Law is command of sovereign
• There is a supreme authority who frames or issues rules
• The rules and regulations issued by government for conducting
human affairs are in nature of commands issued by sovereign failure
to obey them may lead to penalty.
• Commands are Rules and Regulations by official law making body
directly or indirectly
Sovereign

• According to Austin, every political set up has a sovereign power

which is habitually obeyed by the people in the society. There is only
one sovereign in the society and it can be a single person or a group.
It is the sole source of power and creator of laws .
• The form and structure of sovereign depends on the political system
of state
• That depends on democratic or monarchial approach of the state
sanction

• It is implied in the theory that this sovereign has with itself a power to
punish or penalize for noncompliance of laws. This penalty or
punishment imposed is called Legal Sanction. The dread of legal
sanction, as an evil consequence in case of disobeying, is the
motivation behind one’s adherence of law and thus is a requisite part.
• Sanctions are penalty which are mandatory in nature
 C+S+S= Law
• IPC is passed by parliament and has penalties and hence considered
as law by Austin.
Merits of this theory
• Distinguishes law and morality
• Defines a supreme power
• Comparatively consistent and clear theory
Demerits
• Neglects moral and ethics
• Neglects public opinion
• International law no law as per Austin due to lack in proper sanctions
• Not all commands are laws can be mere instructions
LEGAL REALISM
• FOUNDERS:
• 1. Salmond (English)
• 2. Holmes and Gray and Frank ( American)
• Judicial Creativity
• Judge made law
• Justice Holmes “ The life of law is not logic but it is experience”
Features
• Law has roots in experience
• Law is what court decides
• Absolute belief on Natural law are rejected
• It has focus on social aspect and situation

• S+P=D
Situation + Perception (of judge) = Decision (Law)
Merits
• Realistic
• Flexibility in law
• Focus on judicial process
Demerits
• Law becomes lopsided
• No accuracy
• Too much dependency on Judges
• Neglects Statutory Laws
• Creates chaos
System of Rules
• Founder : Prof Hart- The Concept of Law
• Rules having broad application and non- optional in nature
• Laws are combination of Rules
• Rules n principles forming statute make a legal system
• Legal system if combination of:

1. Primary Rules
2. Secondary Rules : a. Rule of Change b. Rules of Adjudication c. rule
of recognition
Primary Rules

• Primary rules are rules, or laws, that govern general societal conduct.
Thus, primary rules construct legal obligations and consequences
when they are disobeyed.
• They impose duties and prescribe behaviour
Secondary Rules
• Secondary rules confer power to create sovereignty; they also confer
the power to change, modify, or enforce rules.
• They are termed as Power Conferring Rules
• C.A.R.
1. Rule of change – rules that give power to change the law.
2. Rules of Adjudicating- Rules that confer officials competent to pass
judgment
3. Rule of recognition- rules that validates.
Merits
• Focuses on Obligation
• Flexible
• Practicality
• Clarity in regulation and rules
• Improvement to Austin's theory
demerits
• Formal classification of rules
• Not all have broad application
• Less focus on court laws or morals
Pure theory of law- Grund Norms
• Founder Kelsen
• Kelson’s pure theory of law is one of positive law which is based on
normative order eliminating all extra-legal and non-legal elements
from it.
• Kelson’s pure theory of law is based on the basic norm that he
called ‘grundnorm’.
• The word ‘grundnorm’ is a German word meaning fundamental
norm.
• The Grundnorm is the starting point in a legal system and from this
base; a legal system broadens down in gradation becoming more and
more detailed and specific as it progresses. This is a dynamic process.
At the top of the pyramid is the grundnorm, which is independent.
The subordinate norms are controlled by norms superior to them in
hierarchical order. The system of norms proceeds from downwards to
upwards and finally closes at grundnorm.
• Kelsen calls it grundnorm or the basic norm or Ground/ Base norms
• Grundnorm, as defined by Kelson, is used to denote the basic norm, order,
or rule which go on to form the basis for any and every legal system. This
can be regarded as the source of the validity of positive law of that legal
system.
• The Indian Constitution is the paramount source of law in our country. The
grundnorm, the basis of the legal system is the reason for validating the
Constitution and it signifies that the Constitution is accepted by the legal
system. The Constitution is the paramount source of law. All the laws made
should be in consonance with the principles enshrined in the Constitution.
The grundnorm only validates the Constitution and the norms derived from
it. Keshava Nanda Bharti, cannot change the ‘basic structure’ of the
Constitution. The amendments cannot be made to alter the framework and
basic structure of the Constitution to the extent of changing its identity.
This fact clearly indicates that the principle of grundnorm can be applied.
Merits
• Determines proper authority
• Consistent
• Systematic
• clarity
demerits
• Base laws are rigid
• Base laws neglects precedents and morals
• Base laws neglects situation
Schools of jurisprudence
1. Historical School– Deals with past laws and history- Savign and
Puchta
2. Analytical School- Real life problem solving- Bentham and Gray
3. Sociological School – Deals with Social Progress and society –Roscoe
Pound
4. Philosophical School– Deals with analyzing the purpose need of law
and its ethical origin-also called as ethical school or Metaphysical
school- Kant, Hegel
5. Comparative School- Comparison of different laws of different
countries- Bodin and Ihering
1. Realist School- practical judge made laws-Salmond , Holmes
2. Political School– Extension of Analytical and Sociological involving
focus on political society -Shapiro
3. Socialist/Economic School- Deals with Economics and laws- Marx
and Lenin
4. Natural School– Deals with Morals- Plato and Aristotle
5. Synthetic School – Mix of all factors- Dr M J Sethna in 1955
Legal rights
• Salmond – Interest Theory: A legal right is an “interest which is
protected and recognized by the rule of law. It is an interest which has
its duty and disregard of which is wrong”.
• Holmes- Will Theory : A Permission to exercise certain natural powers
, upon certain conditions.
Essential conditions of legal right

• According to Salmond, there are five essential conditions that need to be

fulfilled:
• The person of inheritance ( Owner of Rights ) :
• He shall be the person who is the owner of the right. He is the subject of
the legal right. Such a person is called a person of inheritance.
• the person of incidence:
• It is the duty of another person or persons to respect and recognize the
right of the person. Such a person who has a legal duty is called a person of
incidence.
• The obligation to do or not do something:
• It is related to do something or to refrain from doing certain acts or
forbearance.
• The object of the legal right:
• The object of the legal rights is a thing or object over which the legal
right is exercised. Example- A purchases the car for Rs 1,00,000. Here
the car is the object.
• Title of the legal right:
• The title is the process by which the right is vested or conferred on
the person. It is certain events by which right is acquired from its
previous owner. Example- By purchase or gift or will etc.
Types of Legal Right

• Right in rem and Right in Persona

• The right in rem is the right available against society at large. For
Example:- a crime committed under I.P.C because it is a crime
committed against the state.
• Right in Persona means right that is available against an individual.
Example breach of Contract. When there is a breach of contract, the
party who has performed the act files the suit against the breaching
party. Right in Persona is temporary in nature, which can be
converted into right in rem. Right in rem is a permanent in nature.
• Positive Rights and Negative Rights
• A positive right is a right when some action needs to be done by the
person who has the corresponding duty. The person on whom the
duty lies must perform some positive acts.
• The negative rights are the rights which omit the person from
performing certain acts. Negative rights correspond to negative duty.
The person on whom such duty is imposed is restrained from
performing certain acts.
• Personal and Proprietary Rights
• Personal rights are the right to respect the owner of the right. The
personal right has no economic value and this right is related to
personal status or well being. Example the right to live with dignity,
the right to freedom of speech and expression.
• The proprietary right is given in respect of the owner of the property.
These rights are rights which has some monetary value or economic
value and constitute the estate of the person. Example-patent rights,
right to land, debt etc.
• Perfect and Imperfect right
• Perfect rights are protected and recognized by law and the suit can be
instituted in the court against the wrongdoer for the breach of
it. Example: A has taken the loan from B. B has the duty to pay the
loan and A has the perfect right to claim the loan amount. If B fails to
pay then A has the right to file the suit in the court.
• Imperfect rights are those rights which are neither recognized nor
protected by law. Example: if the loan becomes time-barred, then he
can claim his money back but it cannot be enforced by law.
• Principal and Accessory Rights
• The principal right is the most important rights. They are the basic
right that is vested on an individual.
• The accessory right is the consequential or incidental right. They are
not important but they are ostensible to basic right.
• Right in Re-aliens and Right in Re-propria
• Right in Re-aliena is the right available against the property of another
person. Example- The right of easement. It is the result of
jurisprudence concept of dominant heritage and servient heritage.
• Right in Re-Propria is the right available in respect of one’s own
property. It results in absolute ownership. This is the result of
jurisprudence concept of ownership.
• Corporeal and Incorporeal right
• Both the rights are protected by law. The corporeal right is the rights
over tangible objects or material objects. Corporeal rights are having
the rights over the objects which can be seen, touch or
perceived. Example: I purchase the watch. The watch has physical
existence so I have a corporeal right over it.
• The incorporeal right is the right over the object which cannot be
seen or touched. Example right to reputation
• Public and Private Rights
• The public right is the right that is exercised by the State. Example-
right to vote, right to use road etc. The private right is exercised by an
individual for his personal benefit. Example:- right to sleep, right to
clean water.
• Vested and Contingent Rights
• A vested right is a right which is vested on the person from the very
beginning. No events are required to take place for conferring the
rights of an individual. It depends on the present situation.
• Contingent rights are rights which are conferred on the happening or
non-happening of certain acts. This right depends upon future acts. If
the act which is prescribed take place then only the right will be
conferred on the person
Are Rights and Duties Correlatives?
• YES – Salmond
• Not always – Austin and Allen
Relative rights : Duties and Rights correlatives
Absolute rights: No corresponding duty
Jural Correlatives
• Rights -----Duty
• Liberty----- No rights
• Power ----- Subjection
• Immunity---- Disability/ No Power
Title ( Chang of Ownership)
Vestitive Fact : fact which creates, destroys or transfers rights

Investitive Fact Divestitive Fact

 Derivative Title
Original Title ( Creation)
(Transfer)
Alienation Fact ( Transfer) Extinctive Fact ( Destruction)
Obligation
• The Term "Obligation" means to do or not to do an act, or to perform
some work or an act.
• Obligation = latin word “obligare” which means to bind
• In lay man language obligation is a duty
• Salmond says obligation comes with both duty and right. It is an act
one has to do.
BUYER  Obligation  SELLER
Sources of Obligation
There are four sources of an obligation which are as follows -
(1) Contractual obligation (obligations arising from contract) -
Contractual obligations are those which are created by contracts or
agreements
(2) Delictual Obligation (obligations arising from tort) -
Delictual obligations arises from tortious liability. According to Salmond,
" A Tort may be defined as a civil wrong for which the remedy is an action for
damages and which is not solely a breach of contract or the breach of Trust
or other merely equitable obligations. Delictual obligations are those in
which a sum of money to be paid as compensation for a tort
(3) Quasi-contractual obligations (obligations arising from quasi-
contract) -
The term "Quasi" is a Latin word which, which means "as if" or
"similarly". Quasi-contract is not a real contract entered into by the
parties intentionally. It resembles a contract, in which law imposes
an obligation on a person to perform an obligation on the ground of
equity. Quasi-contract is based on the principle of equity that "A person
shall not be allowed to enrich himself unjustly at the expense of
another".In other words, A person should not receive or accept any
benefit unjustly. If so, he has an obligation it back to the right owner.
Such obligations is called Quasi-contractual obligation.
(4) Innominate obligation -

Innominate obligations- Innomited obligations are all the

obligations which are other than those falling under the heads of
contractual obligation, delictual obligations and Quasi-contractual
obligation.
Types :
Kinds of obligations -

(a) Sole Obligation - Sole obligation is one in which there is one

creditor and one debtor. e.g. A promise to B to pay Rs.100. In this
example, there is only one creditor and one debtor.

(b) Solidary Obligation - In case of Solidary Obligation there are two

or more debtors owe the same thing to the same creditor. There are
three kinds of solidary obligation see kinds of solidary obligation.
What is Solidary Obligation -

In solitary obligation, there are two or more debtors owe the

same thing to the same creditor. that means there are two or more
creditors entitled to the same obligation or two or more debtors under
the same liability.
Kinds of solidary obligations -
(a) Several solidary obligations -

“X” OR “Y” has obligation

Example: Creditor  Principal Debtor OR Surety

(b) Joint solidary obligation -

“X” AND “Y” has obligation

Example : Rent payable by two joint tenants

(c) Joint and several solidary obligations -

“X” AND/ OR “Y” has obligation

Example: Partner
Persons
• In the words of Salmond Person means: “So far as legal theory is
concerned, a person is any being whom the law regards as capable of
rights and duties. Any being that is so capable is a person, whether a
human being or not, and no being that is not so capable is a person
even though he be a man.”
• Salmond further explains that the extension of the conception of
personality beyond the class of human beings is one of the most
noteworthy achievements of the legal imagination.
Types of Persons
• A) Natural
• B) Legal
Natural Persons
• A natural person is a human being possessing natural personality.
According to Holland, a natural person is a human being as is
regarded by the law as capable of rights and duties. Requisite of
normal human being is that he must be born alive moreover , he
must possess essentially human characteristics. Generally a
person/human being who has a capacity to sue and be sued is
person.
Legal persons / Artificial persons :

A legal person has a real existence but it's personality is fictitious. A

fictitious thing is that which does not exist in fact but which is deemed
to exist in the eye of law.

Example : Company or corporation

Corporates Personality
Advantages of incorporation
Disadvantages of incorporation
Distinct Personality of Company
Legal Status:
Dead person - Someone who is no longer alive is called dead.
Legal status of Dead Person:
Dead persons have no legal personality and hence, cannot sue and
be sued. Dead men are no longer persons in the eye of law. Legal personality
of a person dies with his person. They do not remain the owners of their
property until their successors enter upon their inheritance. When a person
dies leaving Will, his property is distributed according to the Will. Law
recognises and takes account after the death of the person of his desires and
interest when alive. There are three things in respect of which the anxieties
of living men extend even after their death. Those are his body, his
reputation and his property
• 1) His Body:
A living person is interested in the treatment to be given to his own body. A person is interested in
a decent funeral and good burial. Criminal law secures a decent burial for all dead persons and
the violation of a grave is a criminal offence. It is because to the respect the feelings of the
relatives of a dead person, not in protection of dead person's right.
2) His reputation:
Everyone is interested in maintaining reputation even after death. The reputation of a dead
person receives some degree of protection from the criminal law. Defamation suit can be filed for
loss of reputation of a dead person.
3) His Property/ Estate:
A man is dead but his hand may continue to regulate and determine the enjoyment of the
property he owned while he was alive. He can dispose of his property by WILL. when a person
dies intestate ( dies living will) the property is distributed according to the WILL.
• Lower Animals:
• Animals have no legal personality. Animals are not persons in the eye of
law and therefore, they are not subjects of legal right and duties. In ancient
times, animals for some purposes were treated as persons. In ancient
Greek law, animals and trees were tried in courts for their wrongful acts. In
Middle Ages also, we find instances of the trial of the birds and animals.

• In modern times, Animals are treated as things. They don not have any
rights and duty
• However protection of animals are considered important in recent times.
• We have provision regarding:
• Cruelty to animals
• Charitable trust for animals
• Unborn Child
• A child in mother’s womb is by legal fiction regarded as already born. If he
is born alive, he will have a legal status. Though law normally takes
cognizance of living human beings yet the law makes an exception in case
of an infant
• Indian Succession Act, 1925 provides for the creation of prior interest
before the unborn person may be made the owner of property – corporeal
or incorporeal, but no property will be deemed to be vested in the unborn
person unless and until he is born alive
• Criminal Procedure Code provides that if a woman sentenced to death is
found to be pregnant, the High Court shall order the execution of the
sentence to be postponed, and may if it thinks fit, commute the sentence
to imprisonment for life
• Transfer of Property Act, property can be transferred for the benefit of an
unborn person by way of trust.
Ownership
• Jurists have defined ownership in different ways. All of them accept the
right of ownership as the complete or supreme right that can be exercised
over anything

• Definition of Ownership :

According to Austin " Ownership means a Right which avails

against everyone who is subject to the law conferring the right to put thing
to user of infinite nature.“

• Relation of Person and Object.

• Salmond’s Definition:
According to the Salmond ownership vests in the complex of rights
which he exercises to the exclusive of all others. For Salmond what
constitute ownership is a bundle of rights which in here resides in an
individual.
• Ownership is a relation between a person and right that is vested in
him
• Hilbert Definition includes
• Right to :
• USE
• EXCLUDE OTHERS
• DISPOSE
• DESTROY (DDUE)
CHARACTERICTIC OF OWNERSHIP
• RIGHT TO USE
• RIGHT TO MANAGE
• RIGHT TO TRANSFER
• RIGHT TO ALIENATE
• RIGHT TO POSSESS
• RIGHT TO INCOME
TYPES OF OWNERSHIP
• Corporeal and Incorporeal Ownership
• Corporeal ownership is the ownership of a material object and
incorporeal ownership is the ownership of a right. Ownership of a
house, a table or a machine is corporeal ownership. Ownership of a
copyright, a patent or a trademark is incorporeal ownership. The
distinction between corporeal and incorporeal ownership is
connected with the distinction between corporeal and incorporeal
things. Incorporeal ownership is described as ownership over tangible
things. Corporeal things are those which can be perceived and felt by
the senses and which are intangible. Incorporeal ownership includes
ownership over intellectual objects and encumbrances
• Trust and Beneficial Ownership
• Trust ownership is an instance of duplicate ownership. Trust property
is that which is owned by two persons at the same time. The relation
between the two owners is such that one of them is under an
obligation to use his ownership for the benefit of the other. The
ownership is called beneficial ownership. The ownership of a trustee
is nominal and not real, but in the eye of law the trustee represents
his beneficiary. In a trust, the relationship between the two owners is
such that one of them is under an obligation to use his ownership for
the benefit of the other. The former is called the trustee and his
ownership is trust ownership. The latter is called the beneficiary and
his ownership is called beneficial ownership.
• Legal and Equitable Ownership
• Legal ownership is that which has its origin in the rules of common
law and equitable ownership is that which proceeds from the rules of
equity. There is no distinction between legal and equitable estates in
India.
• Vested and Contingent Ownership
• Ownership is either vested or contingent. It is vested ownership when
the title of the owner is already perfect. It is contingent ownership
when the title of the owner is yet imperfect but is capable of
becoming perfect on the fulfillment of some condition. In the case of
vested ownership, ownership is absolute. In the case of contingent
ownership it is conditional.
• Sole Ownership and Co-ownership
• Ordinarily, a right is owned by one person only at a time. However,
duplicate ownership is as much possible as sole ownership. When the
ownership is vested in a single person, it is called sole ownership;
when it is vested in two or more persons at the same time, it is called
co-ownership, of which co-ownership is a species.
Possession
• "Possession" literary means physical control over a thing or an object.
It expresses the closest relation of fact that can exist between a thing
and the person, who possess it. In law, possession means it includes
not only physical control over a thing but also an intention to exercise
that physical control. Example: A has an article in his hand. In other
words, he is in possession of that article. The person who is in
possession is called a 'Possessor'.
Definition:
• Salmond defines Possession as, "possession is the continuing exercise
of a claim to the Exclusive use of an object.“
• Holmes defines Possession as, "To gain Possession a man must stand
in a certain physical relation to the object and to the rest of the
world, and must have certain intent.
• Sir Frederick Pollock defines Possession as, "In common speech a
man is said to possess to be in possession of anything of which he has
the apparent control from the use of which he has apparent power
for excluding others."
Elements of Possession

• 1) Actual power over the object possessed. i.e. corpus

possessionis and

2) Intention of the possessor to exclude any interference from others.

i.e. animus possidendi.
• According to John Salmond, both corpus and animus must be present
to constitute Possession.
• The term CORPUS and the term ANIMUS, both the terms borrowed
from the Roman Law
Modes of acquiring possession: TAKING AND
DELIVERY
LEGAL

ORIGINAL

ILLEGAL
1.TAKING:
(WITHOUT
CONSENT)
LEGAL

DERIVATIVE

ILLEGAL
 ACTUAL
2. DELIVERY
( WITH CONSENT)
CONSTRUCTIVE
Possessory Remedies
• Possessory Remedies are those which exists the protection of
Possession even against ownership. Proprietary remedies are those
which are available for the protection of ownership. In many legal
systems, possession is provisional or temporary title even against the
true owner.
kinds of possession.

• 1) Corporeal Possession :

Those things, which are having physical or material existence,

wherein direct relationship with the thing, are possible. for
example, House has physical existence which can be perceived by our
senses. The possession in the house therefore is Corporeal
Possession. Therefore corporeal possession is the possession of
material things, movable as well as immovable such as the Car , book
, pen, wristwatch, etc.
• 2) Incorporeal Possession :

It means Possession of immaterial or intangible things. These are the

things, which do not have physical existence and therefore cannot be
perceived by our senses. Therefore possession in respect of this thing is
known as incorporeal possession. for example - Copyright, Trademark,
Patent, Goodwill etc.
• 4) Immediate Possession :

It is also called as Direct Possession. Direct or primary

possession by a person over a particular object, which acquires or
gets directly or personally. In immediate possession, as the thing is in
possession of the possessor directly, he has higher degree of control
over such thing. It means that there is no other person holding the
thing.
• 5) Constructive Possession :

Constructive possession is not actual possession it is a

possession in law and not possession in fact.
Property
• The concept of property occupies an important place in human life
because it is practically impossible to live without the use
of material object which constitutes the subject matter of
property. Property may be classified into- corporeal and incorporeal
property, movable and immovable property, real and personal
property, public and private property.
• I) Meaning and definition of property -
• The word 'property' is derived from the Latin
term 'properietate' and the French equivalent 'proprius' which means
a thing owned. The concept of property and ownership are very
closely related to each other. There can be no property without
ownership and ownership without property. There are two Kinds of
Property namely, Corporeal and Incorporeal Property. The concept of
property occupies an important place human life because it is
impossible to live without property.
I. Complete ownership of thing- thing can be tangible or intangible :
Broader Sense
II. Proprietary Rights – anything that has a monetary value : Narrow
Sense
II) Kinds of property -

Property is essentially of two kinds Corporeal Property and

Incorporeal Property. Corporeal Property can be further divided into
Movable and Immovable Property and real and personal property.
• 1) Corporeal Property -

• Corporeal property is the right of ownership in material

things. Corporeal property is always visible and tangible. Corporeal
property can be perceived by senses. It can be seen or touched.

• Examples -A House, Land, Car, Bike etc

Incorporeal Property –
Incorporeal property also called as intellectual or conventional
property. it includes all those valuable interests which are protected by
law.Incorporeal property is intangible. It cannot be Perceived by
Senses.

• Examples - Patents, Copyrights, Trademarks etc.

Movable Property -

Movable property is one, which can be transferred from one place to another place
with the human efforts.

Immovable Property -

• According to the General Clauses Act, 1897 "Immovable property includes land,
benefits arising out of land and things attached to the earth or permanently
fastened or anything attached to the earth."
• Section 3 Para 2 of the Transfer of Property Act 1882 defines immovable property
as "immovable property does not include standing Timber, growing crops or
grass. Movable property includes corporeal property which is not immovable.
• Public property-
Public property is that owned by the public as such in some
governmental capacity. Public property is used as a designation of which
are Public Juris and therefore, are considered as being owned by the
public. the entire state or the community and not restricted to the domain
of private person or that which belongs to a state or political constituents
like provinces etc
• Private property -
The private property is that which is owned by an individual or some
other private person.
Modes of acquiring property
1. PRESCRIPTION
2. AGREEMENT
3. IHERITANCE
4. GIFT
5. TRUST
Interpretation of statute
• The term has been derived from the Latin term ‘interpretari’, which means
to explain, expound, understand, or to translate. Interpretation is the
process of explaining, expounding and translating any text or anything in
written form. This basically involves an act of discovering the true meaning
of the language which has been used in the statute.
• Interpretation of statutes is the correct understanding of the law. This
process is commonly adopted by the courts for determining the exact
intention of the legislature. Because the objective of the court is not only
merely to read the law but is also to apply it in a meaningful manner to suit
from case to case. It is also used for ascertaining the actual connotation of
any Act or document with the actual intention of the legislature.
• According to Salmond, “Interpretation” is the process by which the
court seeks to ascertain the meaning of the legislature through the
medium of authoritative forms in which it is expressed
Need for Interpretation
• Multiple meaning
• Ambiguity
• Statutory language
• Uncertainty
 INTERPRETATION
OF STATUTES

LOGICAL
INTERPRETATION
LITERAL
INTERPRETATION

Rule Of
Rule Of Ejusdem Expression Unis
The Golden Rule The Mischief Rule
Generis Est Exclisio
Alterius
Literal or Grammatical Rule

• It is the first rule of interpretation. According to this rule, the words used in this
text are to be given or interpreted in their natural or ordinary meaning. After the
interpretation, if the meaning is completely clear and unambiguous then the
effect shall be given to a provision of a statute regardless of what may be the
consequences.
• The basic rule is that whatever the intention legislature had while making any
provision it has been expressed through words and thus, are to be interpreted
according to the rules of grammar. It is the safest rule of interpretation of statutes
because the intention of the legislature is deduced from the words and the
language used.
• According to this rule, the only duty of the court is to give effect if the language of
the statute is plain and has no business to look into the consequences which
might arise. The only obligation of the court is to expound the law as it is and if
any harsh consequences arise then the remedy for it shall be sought and looked
out by the legislature.
The Golden Rule

• It is known as the golden rule because it solves all the problems of interpretation. The
rule says that to start with we shall go by the literal rule, however, if the interpretation
given through the literal rule leads to some or any kind of ambiguity, injustice,
inconvenience, hardship, inequity, then in all such events the literal meaning shall be
discarded and interpretation shall be done in such a manner that the purpose of the
legislation is fulfilled.
• The literal rule follows the concept of interpreting the natural meaning of the words used
in the statute. But if interpreting natural meaning leads to any sought of repugnance,
absurdity or hardship, then the court must modify the meaning to the extent of injustice
or absurdity caused and no further to prevent the consequence.
• This rule suggests that the consequences and effects of interpretation deserve a lot more
important because they are the clues of the true meaning of the words used by the
legislature and its intention. At times, while applying this rule, the interpretation done
may entirely be opposite of the literal rule, but it shall be justified because of the golden
rule. The presumption here is that the legislature does not intend certain objects. Thus,
any such interpretation which leads to unintended objects shall be rejected.
Rule Of Ejusdem Generis

• Ejusdem generis is latin for "of the same kind." When a law lists
classes of persons or things, this concept is used to clarify such a list.
• For example, if a law refers to automobiles, trucks, tractors,
motorcycles, and other motor-powered vehicles, a court might
use ejusdem generis to hold that such vehicles would not include
airplanes, because the list included only land-based transportation.
The Mischief Rule

• The mischief rule is a rule of statutory interpretation that attempts to

determine the legislator’s intention. Originating from a 16-century case in
the United Kingdom, its main aim is to determine the “mischief and defect”
that the statute in question has set out to remedy, and what ruling would
effectively implement this remedy.
• The mischief rule is a certain rule that judges can apply in statutory
interpretation in order to discover Parliament’s intention. It essentially asks
the question: By creating an Act of Parliament what was the “mischief”
that the previous law did not cover?
•/

It was stated that there were four points to be taken into consideration when
interpreting a statute:

1. What was the common law before the making of the act?
2. What was the “mischief and defect” for which the common law did not
provide?
3. What remedy the Parliament had resolved and appointed to cure the disease
of the commonwealth?
4. What is the true reason for the remedy?
Expressio Unius Est Exclusio Alterius

• It is a Latin phrase that says ‘Express Mention and Implied Exclusion’

that means express mention of one thing excludes all other things.
Here it is considered that the items which are not on the list are not
covered by the statute. When something is expressly mentioned in
the statute it leads to the presumption that the things which are not
specified in the statute are excluded.