THEORIES OF PROPERTY

Final Draft submitted in partial fulfilment of the course Jurisprudence II for the
requirements of the degree B.A., L.L.B. (Hons.) for the academic session 2021-2022.

SUBMITTED BY:

SIMRAN PARMAR

Roll No. –2166

B.A L. L.B (Hons.)

SUBMITTED TO:

Faculty of Jurisprudence

Dr Manoranjan Kumar Sir (Assistant Professor of Law)

February, 2022

Chanakya National Law University, Nyaya Nagar, Mithapur,

Patna-800001

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 DECLARATION BY THE STUDENT

I hereby declare that the project entitled “THEORIES OF PROPERTY” submitted to Dr

Manoranjan Kumar Sir (Assistant Professor of Law) will be my original work and the project has
not formed the basis for the award of any degrees, associate ship, fellowship or any other similar
titles, I have not submitted this work elsewhere for any other degree or diploma, I am fully
responsible for the contents of my Project Report.

(SIGNATURE OF THE STUDENT)

SIMRAN PARMAR

ROLL NUMBER- 2166

CHANAKYA NATIONAL LAW UNIVERSITY

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 ACKNOWLEDGEMENT

I am using this opportunity to express my gratitude to everyone who supported me throughout

the course of this Jurisprudence. I am thankful for their aspiring guidance, invaluable
constructive criticism and friendly advice during the project work. I am sincerely grateful to
them for sharing their truthful and illuminating views on a number of issues related to project.

First, I would like to thank our faculty Dr Manoranjan Kumar Sir for his exemplary guidance,
monitoring and constant encouragement throughout the course of this project. I would also like
to express my deep gratitude to him for his valuable and constructive suggestions. The
contributions made by my classmates and friends are, definitely worth mentioning.

I would like to thank my parents for their constant support and encouragement without which
this project would not have seen the light of the day and especially during this pandemic. Last,
but far from the least, I would express my gratitude towards the Almighty for obvious reasons.

SIMRAN PARMAR

ROLL NUMBER- 2166

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 TABLE OF CONTENTS

S. NO. TOPICS PAGE NO.

1 INTRODUCTION 5

2. KINDS OF PROPERTY 7

3. DEVELOPMENT OF RIGHT TO PROPERTY 10

IN INDIA

4. THEORIES OF PROPERTY 11

5. CONCLUSION 16

6. BIBLIOGRAPHY 17

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 CHAPTER 1: INTRODUCTION

The concept of property is very important as no human being can live without it and it is an
integral component of human survival. Property is intangible as it can be physically owned by an
individual or even group of individuals together and it can be disposed off on one’s will. With
time, the meaning of property has widened itself and now includes even incorporeal property like
liberty, equality, proprietary rights like patent, copyright which although cannot be touched but
form an integral part of one’s property.

MEANING-

In limited sense, on one hand, whenever anybody talks about property rights, the meaning limits
itself to only those rights which he has by the virtue of ownership of that property i.e. only his
proprietary rights and not his personal rights. For example, the land, chattels, debts etc which are
owned by him are said to be his property. In other sense, on the other land, some believe that
property rights are proprietary rights in rem including patents, copyrights which concerns society
at large. Salmond observes that the term ‘property’ may have a variety of applications but in
legal terms it refers to the following-

1. All Legal Rights- It means that property includes a person’s legal right in whatever form
or description. According to this, if a man is given a property by law, he retains its
complete ownership no matter that thing is material or incorporeal. Hobbes and
Blackstone have supported the use of the term property in this sense but it has become
obsolete with time.
2. Proprietary Rights- It concerns about only a man’s proprietary rights and ignores the
personal rights. A person can very well give the ownership of the property to other person
by selling the property in exchange of money.
3. Corporeal Property- In this sense, property includes nothing more than corporeal
things, i.e. right of ownership is material object such as a watch, or a land or a horse1.

According to Salmond, if a person owns a property, it means he has indispensible rights attached
to it which are general, permanent and also inheritable in nature. Firstly, the ownership of a
material object is a right to the general or aggregate use of the thing. The owner of the material
1
Jeremy Bentham, Bentham Principles of Legislation, page 231

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object is entitled to use it insofar as it is restricted by natural limits. Secondly, the right of
ownership is permanent right existing so long as the material thing is in existence. Thirdly, the
ownership of a material object is inheritable and the right survives even after the death of the
owner.

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988, property” means property of
any kind, whether movable or immovable, tangible or intangible, and includes any right or
interest in such property. According to Section 2(11) of the Sale of Goods Act, 1930, “property”
means the general property in goods, and not merely a special property.

The Supreme Court of India, in R.C. v. Cooper Union of India2, gave a very comprehensive
definition of property and observed—

“Property means the highest right a man can have to anything being that right which
one has to lands, tenements, goods or chattels which does not depend on other’s courtesy; it
includes ownership, estates and interest in corporeal things, and also rights such as trademarks,
copyrights, patents and even rights in personam capable of transfer or transmission, such as
debts; and signifies a beneficial right to or a thing considered as having money value, especially
with reference to transfer or succession, and of their capacity of being acquired”.

CHAPTER 2: KINDS OF PROPERTY

2
AIR 1970 SC 564; also known as Bank Nationalization Case

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Broadly classifying, property is of two types- CORPOREAL and INCORPOREAL. Corporeal
Property can also be called Tangible property because they are visible and can be touched at all
times and have a tangible existence in the world. Incorporeal property, on the other hand, is
property other than corporeal property, which cannot be seen by humans. They do not have any
existence as such. Corporeal Rights can be further divided into: Movable and Immovable.
Incorporeal Property is further divisible into two kinds: jura in re aliena and jura in re propria

The detailed classification of property can be shown as:

1. COPOREAL AND INCORPOREAL PROPERTY- Corporeal Property or the

Tangible Property, as stated earlier is the property which has a tangible existence. It
concerns about all the material things that exists like the land, house, money, ornaments,
metal etc. They are called tangible as they can be felt by humans.
Incorporeal Property or Intangible Property is neither visible nor can be felt. Its
existence is intangible in nature like a person’s intellectual property rights like Patents,
Copyright, Trademark, right of easements etc which are the rights that an individual has
but cannot be seen by humans.

2. MOVABLE AND IMMOVABLE PROPERTY- Corporeal property can be divided

into two: Movable and Immovable property.
 According to Section 22 of the Indian Penal Code, 1860, “Movable property”.—
The words “movable property” are intended to include corporeal property of
every description, except land and things attached to the earth or permanently
fastened to anything which is attached to the earth.
 According to Section 2(6) of the Registration Act, “immovable property” includes
land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or
any other benefit to arise out of land, and things attached to the earth, or
permanently fastened to anything which is attached to the earth, but not standing
timber, growing crops nor grass; (6) “immovable property” includes land,
buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any
other benefit to arise out of land, and things attached to the earth, or permanently

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 fastened to anything which is attached to the earth, but not standing timber,
growing crops nor grass;"
 According to Section 3(26) of the General Clauses Act, 1897, “immovable
property” shall include land, benefits to arise out of land, and things attached to
the earth, or permanently fastened to anything attached to the earth;
 According to Section 3(36) of the General Clauses Act, 1897, “movable property”
shall mean property of every description, except immovable property;

According to Salmond, immovable property has the following elements-

1. A determinate portion of the earth surface;

2. The ground beneath the surface down to the centre of the earth;
3. The column of space above the surface ad infinitum;
4. All objects which are on or under the surface in its natural state example minerals, natural
vegetation, or stones lying lose upon the surfaces;
5. All objects placed by human agency on or under the surface of the land with the intention
of permanent annexation example houses, walls, fences, doors. These become part of the
land and lose their identity as separate movable chattels. It must, however, be noted that
physical attachment without the intent of permanent annexation does not make change in
the nature of movable property. For example, carpet or ornaments nailed to the floor or
wall of a house or money buried in the ground are as much a chattel (movable property)
as money in the owner’s pocket.

3. REAL AND PERSONAL PROPERTY- Real property is the property which is

guaranteed to a human being by virtue of recognition by law. Personal property, on the
other hand, is all the property other than Real property, It is the proprietary rights of the
person whether rights in rem or rights in personam. Salmond observed, “the laws of real
property is almost equivalent to the law of land while the law of personal property is
almost identical with the law of movables3.

The other kinds of property, although not so important, are the two kinds of Incorporeal
Property: Jura in re aliena and jura in re propria. In these two, we have further
3
Fitzgerald, P.J. : Salmond on Jurisprudence, (12th ed.) p 420

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 classifications. Jura in re aliena is divided into 4 sub- heads namely, Lease, Servitude,
Securities and Trust. Further, Jura in re propria is divided under 3 sub- heads namely,
Patents, Copyrights and Trademarks.

The detailed classification of property can be shown as:

PROPERTY

CORPOREAL PROPERTY INCORPOREAL PROPERTY

MOVABLE IMMOVABLE JURA IN RE ALIENA JURA IN RE PROPRIA

LEASE SERVITUDE SECURITIES TRUST PATENTS COPYRIGHT TRADEMARK

MORTGAGE LIEN

CHAPTER 4: DEVELOPMENT OF PROPERTY RIGHT IN INDIA

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At the time of framing of the constitution, the right to property was given a fundamental status
from Article 19(1) (f) and Article 31. But various problems came in front of the government.
Under Article 31(2), the government had to pay compensation in terms of actual market value
which was proving to be costly for the government. Hence, in 1971, by way of 44 th
Constitutional Amendment Act, Indira Gandhi government replaced the word ‘compensation’ for
‘amount’ to remove the notion of proportionality. The Supreme Court also held that the
constitutional amendment was valid but the government could not pay the amount so low that it
would seem that the property was confiscated rather than taken. Due to these difficulties,
eventually various amendments were done to dilute the status of right to property as a
fundamental right. Nehru government even ended up adding various exceptions in form of
Article 31A and Article 31B but the problems were not solved.

Finally, in 1978, by way of 44th Constitutional Amendment Act, the fundamental right of
property was taken away and was made an ordinary constitutional and legal right under Article
300-A. Now, no person could invoke the writ jurisdiction of the Supreme Court if his property
rights were violated. The nature of the right to property in the post 44 th Amendment era came for
consideration before the Supreme Court in Julabhai Nanubhai Khachar v. State of Gujarat4
wherein the court observed:

“---the right to property under Article 300-A is not a basic structure of the constitution. It is only
a constitutional right— the deprivation of the property shall be only by authority of law, be it an
Act of Parliament or State Legislature but not by executive fiat or an order. Deprivation of
property is possible by acquisition or requisition or taken possession of for the public purpose”.

Although the right to property is now merely a constitutional right but we cannot leave the aspect
of Article 21, which deals with the aspects of personal liberty, while interpreting the same.
Therefore, despite the fact that right to property has been abrogated and repealed, this right may
still be interpreted by the Court as an aspect of personal liberty under Article 21. Therefore, a
law seeking to deprive a person of his personal liberties relating to property must not only be
‘reasonable’ but must also be ‘right, just and fair’ and consequently it must provide for just
compensation5.

4
AIR 1995 SC 142 (157)
5
Bhattacharjee A.M. : Right to property after forty fourth amendment, AIR, Journal. 1980, page 5

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 CHAPTER 5: THEORIES OF PROPERTY

Jurists have differed in their views regarding the origin of property. They have advanced their
own theories in this regard. None of them, however, seems to be wholly correct but there is some
truth in each of them. These theories are discussed below-

I. NATURAL LAW THEORY-

According to this theory, property is derived by virtue of natural reasons which were derived
from the nature of things. This theory believes that, property was first acquired by occupation
of an ownerless object (res nullius) as a result of individual labour. As pointed out by
Blackstone, “by the law of nature and reason, he who first began to use a thing acquired
therein a kind of transient property that lasted so long as he was using it and no longer”.
Grotius, Pufendrof, Locke, Blackstone and Kant have supported this Natural Law Theory.
However, as the population increased, the meaning of property was extended not to the
inordinate use only but to the substance of thing to be used. Thus, according to this theory,
the property was yours if you had the occupancy.

But this theory had its criticisms by Sir Henry Maine and Bentham. According to Henry
Maine, it is erroneous to think that possession gives rise to title for there is no reasonable
ground to support this contention. Bentham holds that property has not originated by first
occupation of an ownerless thing, but it is the creation of law. He does not believe in the
existence of property without the existence of law.

II. LABOUR THEORY-

According to this theory, a person has a right to the property exclusively based on one’s
labour that he has put in it in result of which the property was produced. It recognises the role
of labour for adequate rewards. And when a person acquires property, it is his exclusive right
to hold it.

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 So, when a person put his labour into the property, he brings that thing into existence or
generates that property and because he has brought the land into existence by his labour, that
property belongs to him. But this is criticized by Harold Laski as according to him a property
cannot just be produced rather it is earned. And also this theory is criticised on the ground
that no always labourers work for themselves, sometimes they are working for somebody
else and then that property cannot be called his just because he is putting his labour in that
property. The labour theory is also sometimes called as positive theory. It was propounded by
Spencer who founded it on the fundamental law of equal freedom of individual. He asserted
that property is the result of the individual labour and therefore, no one has a moral right to
property which he has not acquired by his personal labour.

III. STATE CREATED THEORY-

According to this theory, the law and the State came first and then the concept of property
emerged. Jenks observed that property and law were born together and would die together. In
other words, it means that property came to exist with the existence of laws which were
framed by the state. State is the one which recognized the property and gave validity to it
through the laws. From Protection to Recognition, state did it all. Rousseau asserted that
property was the creation of the State and it is nothing but a systematic expression of degrees
and forms of control use and enjoyment of things by persons that are recognized and
protected by law.

But this theory is criticised as both state and property have their different origins from socio-
economic factors and therefore, one cannot be the source of origin of the other.

IV. METAPHYSICAL THEORY-

This theory was propounded by Hegel and Kant. According to Hegel, “property is the
objective manifestation of the personality of an individual”. Kant has also supported
metaphysical theory and justified its existence and need for protection. He observed that law
of property does not merely seek to protect possession where there is an actual physical
relation between the possessor and the object, but it goes beyond it and considers personal
will of the individual more important in the concept of the property. It is merely because

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 property affects human developments and personality. Therefore, it is a necessity for humans
and the will of individual, thus, becomes important.

This theory was criticized on the basis that it is little concerned with realities and is based on
theoretical assumptions.

V. HISTORICAL THEORY-

According to this theory, the private property had its growth in three stages:

FIRST STAGE- In the first stage, people held property in natural possession independently
of the law and the state. SECOND STAGE: The juristic conception of possession gradually
developed which meant possession in fact as well as in law. THIRD/LAST STAGE: There
was a development in ownership which was purely a legal conception having its origin in
law. And now the law guarantees a person exclusive control and enjoyment.

Control Recognition Ownership

Henry Maine was the main supporter of the historical theory. He observed that property
originally belonged not to the individuals, not even to isolated families, but to large societies
composed on the patriarchal pattern. It was at a later stage that collective property
disintegrated and individual rights of property came into existence6. Roscoe Pond also agrees
that the earliest form of property was group property which subsequently disintegrated into
family property and finally the concept of individual property evolved. The noted Italian
jurist Miraglia also supported the historical theory of property.

VI. PSYCHOLOGICAL THEORY-

According to this theory, human beings have an acquisitive tendency to own a property and
property came into existence on account of this tendency of human beings. Every person
desires to own or possess things and exercise control over them. It is purely a conception of
mind to hold things to ourselves. Bentham has supported this theory of property and pointed
out that property is altogether a conception of mind. It is nothing more than an expectation to
derive certain advantages from the object according to one’s capacity. Roscoe Pond also

6
Sir Henry Maine, Ancient law, page 270

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 supports Bentham and holds that the sole basis of conception of property is the acquisitive
instinct of individual which motivates him to assert his claim over objects in his possession
and control.

VII. FUNCTIONAL THEORY-

According to Functional Theory, property is a social interest for promoting general security
and protection of individual interests in personality, domestic relations and in subsistence.
This theory recognises the implications that are attached with the property of a human being.
One cannot survive without the access to some property. As pointed out by Roscoe Pond,
interests of personality like security of one’s physical being, privacy, honour, reputation, etc,
can be realised only through some access to property. Just like interests in domestic relations
are protected when the interests of parents, children, husband, wives and other dependants
are well safeguarded by support and protection of the family, the interests of subsistence
include right to property, economic advantages, freedom of association and availability of
employment opportunities.7

There are some economic and social aspects attached to the right to property. As rightly
suggested by Jenks the concept of property should be considered as a social institution
securing maximum interests in the society. In his opinion the use of property should conform
to the rules of reason and welfare of the community. The distribution should be based on
equitable basis.

Laski also supports the functional theory of property. He observes, “Property is a social fact
like any other and it is the character of social facts to keep on changing. Property, therefore,
has assumed varied aspects and is further liable to changes with the changing norms of the
society”.

There are various ways through which property can be acquired lawfully like gifts,
donations, payment of prices in case of purchase, seizure of property in war, lending of
money on interest, etc. Any unjust acquisition of property was strictly prohibited and

7
Julius Stone: Province and functions of law, page 565-566

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 considered as a sinful act.8 Also, there is difference in your status and do and don’t have
property. There should be equal distribution of property and a chance of increment.

CONCLUSION

We have seen throughout the project that the concept of property occupies an important place
in human life because it is virtually impossible to live without the use of material objects
which constitute the subject- matter of property. Now, with the advancement of the society,
property has included within its meaning all animate as well as all inanimate things
8
Yajanavalkya Smriti II, 168

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 belonging to a person. For example, a person’s life, liberty and estate may also be considered
as his property. We also saw variety of meanings of property. Various jurists like Salmon,
Austin gave their own definitions. Then we talked about the Right to Property in India and
how the right to property was decreased from a Fundamental Right to being just a Legal or
Constitutional Right. And also, the Apex Court in a number of cases has expressed a view
that Article 21 in its widest magnitude covers a variety of rights which constitutes the liberty
of man9.

Then there were 7 Theories of Property- Natural law theory; Labour Theory; Metaphysical
Theory; Historical Theory; Psychological Theory; Functional Theory; and Theory that
property is the creation if the State. We talked about the kinds of property which comprises
of Corporeal and Incorporeal Property; Movable and Immovable Property etc.

In conclusion, it may be stated that the concept of property has a special significance in
jurisprudence because the determination of proprietary rights such as ownership; title etc, is
solely based on property. The concepts or ‘ownership’ and ‘possession’ have also originated
from the concept of property. It is for this reason that the law relating to property has been
developed as an independent branch of law in jurisprudence. The estate of property for which
there is no heir or successor, shall vest in the state, which means bona vacantia in law.

BIBLIOGRAPHY

PRIMARY SOURCES-

1. CONSTITUTION OF INDIA, 1950

9
Julubhai Nanubhai v. State of Gujarat AIR 1996 SC 142 (157)

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2. THE CONSTITUTION (44TH AMENDMENT ACT)

SECONDARY SOURCES-

1. STUDIES IN JURISPRUDENCE AND LEGAL THEORY, 6 TH EDITION- DR. N. V.

PARANJAPE (CENTRAL LAW AGENCY)
2. LAW OF PROPERTY UNDER JURISPRUDENCE- IPLEADERS BLOG
3. THEORIES OF PROPERTY- SRD LAW NOTES

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