LECTURE SUMMARY NOTES

OWNERSHIP

 MEANING OF OWNERSHIP
 NATURE AND INCIDENTS OF OWNERSHIP
 MODE OF ACQUISITION OF OWNERSHIP
 KINDS OF OWNERSHIP
 DIFFERENCE BETWEEN OWNERSHIP AND POSSESSION

 MEANING OF OWNERSHIP
With the growth of civilisation, humans settling down to cultivate and
produce their food and staying in one place, began to develop the idea
of ownership and recognised the terms ‘mine and thine’.First came the
concept of possession, and then the idea of ownership evolved. The
Roman Law had two distinct terms: ‘possessio’, which denotes
physical control over a thing and ‘dominium’, which represents the
absolute right to a thing—ownership is an absolute right in English
Law.
Ownership refers to the legal relationship between a person/ entity
and a specific property. It signifies the highest level of control and
rights over property, including the right to use, possess, transfer, or
destroy it. Ownership can be acquired through various means, such
as purchase, inheritance, gift, or creation.
Ownership rights can differ across legal systems. In common law
jurisdictions, ownership is typically characterised by the "bundle of
rights" theory. This theory suggests that ownership comprises a
collection of rights, including the right to possess, use, exclude others,
and dispose of the property. Civil law jurisdictions often emphasise
the concept of full ownership, which grants extensive control over the
property while recognising certain limitations imposed by the law or
society.

Austin
According to him, ‘Ownership means a right which avails against
everyone subject to the law conferring the right to put a thing to the
user of indefinite nature’. And a right indefinite in point of the 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: –
  Indefinite in point of user- it means that the owner may use the
property however 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 simply
leave it as it is. But at the same time, he must not use it to injure his
neighbours.
 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.
 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.’

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 LEGAL RIGHTS which can be lost by lease or mortgage.

Legal implications associated with ownership include the following:

Control and Use: The owner has the right to control and use the object or
property within the boundaries of the law, subject to any applicable
regulations or restrictions.

Transfer: The owner can transfer ownership rights to another party through
sale, gift, or other legal means. This includes the right to sell, lease, or
mortgage the property.

Exclusion: The owner has the right to exclude others from using or accessing
the property, except in certain circumstances defined by law (e.g.,
easements, public access rights).

Destruction and Modification: Within legal limits, the owner generally has the
authority to destroy, alter, or modify the property as they see fit, as long as
it does not violate any legal regulations or rights of others.

Legal Protection: Ownership rights are protected by the legal system, and
owners have remedies available to them if their rights are infringed upon.
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. The nature of ownership is as follows: –
 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.
 It is unrestricted at the 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 a will.
 The owner has the right to possess the thing owned although whether
he actually possesses it or not is immaterial, only the right to possess
is of material in nature.
 The owner has the right to exhaust the thing owned while using it if
the nature of the thing is so.
 It is residuary in nature. Even if some rights to a particular 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.
 The owner has the right to alienate the property as well as the right to
destroy it.Restrictions may also be imposed by law on the owner’s
right of disposal of the thing owned. Any alienation of property made
with the intent to defeat or delay the claims of creditors can be set
aside.
 Ownership ma either be absolute or restricted, that is, it may be
exclusive or limited. Ownership can be limited by agreements or by
operation of law.
 The right of ownership can be restricted in time of emergency. For
example, building or land owned by a person can be acquired by the
state for lodging army personnel during the period of war.
 An owner is not allowed to use his land or property in a manner that
it is injurious to others. His right of ownership is not unrestricted.
 Law does not confer ownership on an unborn child or an insane
person because they are incapable of conceiving the nature and
consequences of their acts.
 The right to ownership does not end with the death of the owner;
instead it is transferred to his heirs.

Incidents of ownership
Incidents of ownership are legal terms that indicate control over a property.
When an individual gives away their property but retains incident of
ownership, they maintain the right to collect rent from it. This distinction is
useful for reducing the tax burden in estate transfers.
  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.
 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.
 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.
 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 various modes of acquiring ownership over a thing. The ancient
Roman and Hindu jurists have given the following modes of acquisition of
ownership.
 Inheritance
 Gain
 Purchase
 Conquest
 Application of wealth
 Employment, and
 Acceptance of gift form proper persons.

Many of these modes of acquisition of ownership have been well

recognized and some of them exist in a modified form even today.
We shall study those methods applicable in modern days. According
to Salmond, basically a person is said to acquire ownership in two
ways:

 By operation of law, or
 By reason of some act or event.

In modem times the chief modes of acquisition of ownership may be

either original or derivative.
Original Acquisition:
 This mode of acquisition of ownership is said to have taken place
when ownership is acquired by reason of some act on part of the
acquirer or event. It is of three types, viz.
Absolute Acquisition:
When things are acquired which have not or have never had an
owner “ers nullius”. Romans termed them as cases of absolute
original acquisition. Manu has termed this mode of acquisition as
Pratigraha. The type of absolute ownership is acquired in two ways:
occupatio and specificatio.

Occupatio:
“Occupatio” in Roman means taking possession. If a thing is
without owner, anyone is at liberty to take and keep it; he makes it
his own by the very act of taking possession. Manu, a celebrated
jurist in ancient India, has also given a similar view. He said that
the first strike of an arrow to prey becomes the owner of it. The
person taking possession must be able to show by some such act or
fact that the previous owner really intended to divest himself at his
ownership. Occupatio was considered as the original mode of
acquiring all ownership.
A thing might be without owner because that thing was never
possessed by anybody or because somebody who before owned it

 had voluntarily relinquished or abandoned it,

 had thrown it away or had given up exercising the rights of an owner.

Examples of Absolute Ownership by Occupatio:

 Undomesticated animals as long as they have their natural freedom

are considered as without an owner.
 If the caged bird escapes from its confinement, the owner’s right
ceases, until he can catch and confine it again. If anybody else
catches it while free, he is entitled to keep it as his own. The previous
owner cannot take it from him.
 The man who can catch a hare, may keep it and cook it. And this,
even if he caught it in his neighobour’s land, where he had no right to
go. In such a case he is liable to punishment for his poaching in
neighbour’s land but was not required to restore the hare to the
neighbor game
 Treasures or valuable which had been concealed so long that none
could tell whom they belonged, considered as being without an owner.
If a man found such treasures, on his own land whether accidentally
 or by searching for them, was entitled to make them his own. It is to
be noted that he is not allowed to search for them on his neighbour’s
land. In such a situation that would be a gross violation of his
neighbour’s rights. If he explored the lands of another for this
purpose, he could lay claim to anything that he found. But if he was
in anybody’s land for other purposes and chanced while there to come
upon such a hidden treasure, he could keep half of it for himself and
the other half going to the owner of the land.
 In England, hidden treasure belongs to the crown whereas under
Roman law; it is equally divided between the finder and the owner of
the place where it was found.

Specificatio:
Specificatio in Roman means making of new species or kind of
product. For e.g. a man making cloth from another man’s wool, or
bread from another man’s grain, a sculptor making statute out of
clay collected from other person’s land, etc. In such acquisition of
ownership, the material belonging to one person is given a new
shape by another person. Thus the right of ownership was acquired
in something which was previously without an owner. But there are
cases in which a thing that had an owner passed without his
consent into the ownership of another person. Now in such
acquisitions, there are two rights involved: first the right of the
owner of the material and the second the right of the manufacturer.
There was a difference of opinion between two great schools of
jurists. The Sabinian School maintained that the owner of the
material was entitled for ownership, whereas the Proculian School
maintains that the ownership belonged to the manufacturer. The
main point, however, with regard to the principle of specifictatio is
that it regards ownership of a thing as a result of individual labour.
Accessory:
When the ownershipf property is acquired by way of accession to
some existing property, then the acquisition of ownership is called
accessory acquisition. o Examples are the produce of lands or
animals or fruits of trees. Manu has termed this mode of acquisition
as Prayog. It was immaterial to see which party made the union; the
previous owner of the principal thing, however, became the owner of
the new whole, while the owner of the accession lost his right of
property and could only claim compensation for his loss. Let us
understand the case, by the following examples:
 X owned a piece of cloth. Y made embroidery on that cloth using his
own blue thread. In this case, embroidery with blue thread is an
accession to the principal thing the cloth. Now X, the owner of the
cloth (principal thing) is the owner of the cloth after accession. While Y
has lost is ownership of the thread.
 A man erected a building on another man’s land acting in good faith,
believing the land to be his own i.e. he believed that the title was in
his own name. In the judicial decision, it was proved that the title was
defective. In this case, the land is the principal thing and the erected
building is accession. Thus the man erecting building loses his
ownership. The owner of the land is the owner of the building. This
rule is applicable when the structure so erected is fixed and
permanent and cannot be easily detached from the soil (res soli). If the
structure is demolished, the materials of which the structure is
composed, ceased to have any close connection with the soil, they
were no longer “res soli” and could be claimed by the erector of the
building.

Extinctive
When ownership is acquired by a person by some act on his part,
which destroys the title of the previous owner, it is called extinctive
acquisition. For instance, the acquisition of ownership by
prescription is extinctive acquisition. There may be acquisitive
prescription in which, after the expiration of the necessary period,
the law gives to the adverse possessor a full legal title. In India,
adverse possession by a person of the land of another for 12 years
extinguishes the ownership of the previous owner and the person
being such adverse possession becomes the owner.
Derivative Acquisition:
A person is said to acquire derivately when he accepts a conveyance
of title from a previous owner. This type o mode may include the
acquisition of ownership by inheritance – intestate and
testamentary, and transfer inter-vivos-purchase, acceptance of gift,
etc.
Acquisition of ownership by derivative method of different types of
property can be deemed to be complete and effective only when the
formalities laid down therein in concerned statute are complied with
accordingly. In India, these formalities may be found in the Transfer
of Property Act, 1882 “for the transfer of immovable property”, the
Sale of Goods Act, 1930 “for the transfer of movable property”, the
Partnership Act, 1932 “for the transfer of firm property”, the
Companies Act, 2013 “for the transfer of company property”, the
 Registration Act, 1908, and many other acts.

For example when a gift of an immovable property is made, the

transfer must be effected by a registered instrument signed by or on
behalf of the donor and attested by atleast two witnesses. In case of
a gift of movable property, transfer may be effected either by a
registered instrument signed as aforesaid or by delivery of
possession.

Kinds of Ownership

subject of ownership is of two types material and immaterial things.

Material ownership is that which is tangible like property, land, car, book,
etc. Immaterial ownership is that which is intangible like patent, copyright,
trademark, etc.

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.
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.

Trust and Beneficial Ownership

Both ownerships are found in a trust involving a trust property. 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. The ownership
of a trustee is in fact nominal and not real although in the eye of law, he
represents his beneficiary. If property is given to X on trust for Y, X would be
the trustee and Y would be the beneficiary or cestui que trust. X would be
the legal owner of the property and Y would be the beneficial owner. X is
under an obligation to use the property only for the benefit of Y.

A trustee has no right of enjoyment of the trust property. His ownership is

only a matter of form and not of substance. It is nominal and not real. In the
eye of law, a trustee is not a mere agent but an owner. He is the person to
whom the property of someone else is fictitiously given by law. The trustee
has to use his power for the benefit of the beneficiary who is the real owner.
As between the trustee and the beneficiary, the property belongs to the
beneficiary and not the trustee.

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.
In many cases, equity recognizes ownership where law does not recognize
ownership owing to some legal defect. Legal rights may be enforced in rem
but equitable rights are enforced in personam as equity acts in personam.
One person may be the legal owner and another person the equitable owner
of the same thing or right at the same time. When a debt is verbally
assigned by X to Y, X remains the legal owner of it but Y becomes its
equitable owner. There is only one debt as before though it has now two
owners.

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.

The equitable ownership of a legal right is different from the ownership of an

equitable right. The ownership of an equitable mortgage is different from the
equitable ownership of a legal mortgage.
There is no distinction between legal and equitable estates in India. Under
the Indian Trusts Act, a trustee is the legal owner of the trust property and
the beneficiary has no direct interest in the trust property itself. However, he
has a right against the trustees to compel them to carry out the provisions
of the trust.

Vested and Contingent Ownership

Ownership is either vested or contingent.
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.
For instance, a testator may leave property to his wife for her life and on her
death to A, if he is then alive, but if A is dead to B. Here A and B are both
owners of the property in question, but their ownership is merely
contingent. It must, however, be stated that contingent ownership of a thing
is something more than a simple chance or possibility of becoming an
owner. It is more than a mere spes acquisitionis. A contingent ownership is
based upon the mere possibility of future acquisition, but it is based upon
the present existence of an inchoate or incomplete title.

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. 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.For example, the members of a partnership firm are co-
owners of the partnership property. Under the Indian law, a co-owner is
entitled to three essential rights, namely

1. Right to possession
2. Right to enjoy the property
3. Right to dispose of

Therefore, if a co-owner is deprived of property, he has right to be put back

in possession. Such co-owner has interest in every portion of the property
and has a right irrespective of his quantity of share to be in possession
jointly with other co-owners.

Co-ownership and Joint Ownership

According to Salmond, “co-ownership may assume different forms. Its two
chief kinds in English law are distinguished as ownership in common and
joint ownership. The most important difference between these relates to the
effect of death of one of the co-owners. If the ownership is common, the right
of a dead man descends to his successors like other inheritable rights, but
on the death of one of two joint owners, his ownership dies with him and the
survivor becomes the sole owner by virtue of this right of survivorship.”

A joint ownership occurs when two or more persons are entitled to the same
right or bound by the same obligation in respect of a thing. For example, a
partnership property is owned by the persons constituting the firm jointly
and trustees are the joint owners of the trust property. The essence of the
conception is that there is only one right and one obligation, so that
anything which extinguishes such right or obligation, releases all parties.

Absolute and Limited Ownership

An absolute owner is the one in whom are vested all the rights over a thing
to the exclusion of all. When all the rights of ownership, i.e. possession,
enjoyment and disposal are vested in a person without any restriction, the
ownership is absolute. But when there are restrictions as to user, duration
or disposal, the ownership will be called a limited ownership. For example,
prior to the enactment of the Hindu Succession Act, 1956, a woman had
only a limited ownership over the estate because she held the property only
for her life and after her death; the property passed on to the last heir or last
holder of the property. Another example of limited ownership in English law
is life tenancy when an estate is held only for life.

CONCLUSION
We may in conclusion say that:
1. Ownership is a right which comprise of powers, claims, privileges etc.
2. Ownership is in respect of a thing may be corporeal or incorporeal
3. The right relating to or connection with ownership are subject to the state
regulation i.e. can be limited or restricted by law
4. Owner is he who is entitled to the residue of rights with respect to an
object left after the limitation resulting from the voluntary acts of the owner
or those imposed by law are exhausted
5. Ownership does not imply or indicate absolute or unlimited rights either
use, disposal or duration.