OWNERSHIP AND POSSESSION : PROPERTY RIGHTS

OWNERSHIP AND POSSESSION : PROPERTY RIGHTS 

In its widest sense “property includes all the legal rights of a person of whatever description including thereunder personal as well as proprietary rights. In a narrow sense, property includes the rights of a person and not his personal rights. Eg.: Land, Chattels, Stocks, Patent rights, Trade marks, Copyrights etc. are property. Broadly there are two kinds of properties. Corporeal and incorporeal (moveable and immoveable.) Real and personal come under corporeal. Right in-propria and right in re-aliena come under incorporeal property. 

Modes of Acquisition: 

1. Occupation or possession: In case of ‘Res nullius’ (a thing without an owner) anyone is at liberty to take and keep it and he makes his own by the very act of taking possession. The possession of the material object is the title to the ownership of it. Possession is the objective realisation of ownership. If a possessory owner is wrongfully deprived of the thing, he can recover it. A person in possession is deemed to be the owner until and unless proved otherwise. A person in lawful possession cannot be ousted out, even by the owner, without observing the due course of law. 

2. Prescription: It is a mode of acquiring property. May be defined as the effect of lapse of time in creating or destroying rights. It is the operation of time as a vestitive fact. It is of 2 kinds. Positive or acquisitive and negative or extinctive. In the positive prescription it is a title or right; but in a negative prescription it is a destructive fact. The rational basis of prescription is the coincidence of possession and ownership of fact and right. 

3. Agreement: Includes not merely contracts but all other bilateral acts in the law. Agreement is of 2 kinds namely. 1) Assignment and 2) Grants. By the former existing rights are transferred from one person to another, By the latter new rights are created by way of encumbrance upon the existing rights of the grantor. E.g.: Leases: Agreement is either formal or informal. 

4. Inheritance: On the death of the owner heritable rights of the deceased survive to the heirs. Personal rights are generally not heritable. Proprietary rights are usually heritable. The representative bears the personality of the deceased and has vested in him all the inheritable rights. That is, rights are vested in the heir 

Ownership-a bundle of rights:

l. Definition: ownership denotes the relation between a person and an object, forming the subject-matter of ownership(Salmond). It consists of a bundle of rights, and, all of them are rights in rem-against all the would. 

2. The incidence of ownership are :- 

(i) Right of Possession: The owner has the right to possession of his property. Hence, when this property is hired, pawned, leased, etc the owner has interest in the thing & his right continues, even though he may not be physically in possession. 

(ii) Right of Use : The owner has the right to use & to enjoy the property. 

(iii) Right to alienate or destroy :- The owner has a right to alienate, transfer or to destroy the thing or property as he wishes. 

(iv) Duration: There is no duration for ownership. It is indeterminate. In cases of lease, bailment, pledge, mortgage etc of property, the duration is for a fixed period. • But ownership has no such condition. By the death of the owner, the property cones to his heirs. 

(v) Residuary :This means, even if all the lesser rights like lease, easement etc are given away, the residuary will remain with the owner. When these are terminated, they come back to the owner. Salmond says that it is a fallacy to say the owner’s right is “absolute. The reason is the right is subject to the law of the land. The title of the owner is no doubt undisputable, but law may restrict the use of the property 

Possession in law & fact : 

1. POSSESSION :- It is very difficult to define the concept of “Possession”. “Possession is the most basic relation between man & things. (Salmond) It is prima facie evidence of ownership. In fact possession is considered as “nine-points” (out of ten) of law. The meaning is that it is an evidence of ownership, and he who interferes, must prove his better right or title, over the person in possession. Legal possession should have two elements corpus (physical) & animus (or mental element) to the exclusive use of the thing. 

POSSESSION in fact :- ‘It is a relationship between a person and a thing” (Salmond) To possess means to have physical control. Such a control is relative i.e., 

(1) it may be absolute e.g. a ring a person wears; 

(2) it may be to exclude other persons from interfering i.e., to keep a thing safe.

Two conditions are essential: 

(i) corpus i.e., to use the thing possessed and (ii) Animus (intention) to use it to oneself exclusively. Hence, what is required is that the person should have a general control over the thing & should be capable of using it, excluding others. Then there is “possession in fact”. 

Possession in Law :- Law given protection to possession. The person in possession has a right in rem. When he is wrongfully dispossessed, the court first determines whether the plaintiff was in possession, and, if so, he is protected. If A takes away B’s watch, law gives possessory remedy to B. Legal possession is different from physical possession. A’s guests at dinner are provided with spoons, forks etc, Guest has physical possession, he is not entitled to take away the spoons. Court generally decides in case of dispute, who had the better title. 

In Bridges V Hawksworth, a bundle of currency notes was found by customer C, on the floor of shop A. The owner could not not be traced. Held, Q.the finder was entitled… 

In Armory V Delamorie, the Chimney sweeper C found a golden ring when he was sweeping. He gave it to B Goldsmith’s servant for valuation. B refused to return. Held C had a better title. Possession in law or legal possession should have corpus and animus. Corpus means effective control over the thing & to exclude others. Animus has the intention to have it as the owner. However a child with a coin in its hand, may not have power to exclude others, but still it has legal possession. Possession is law is possible without knowledge. A may have a golden ring in his well; he may not know it. If ‘C’ finds it, ‘A’ is entitled as he has legal possession (Sharman’s case).