âLaw Masterâsâ Publication
âOwnershipâ
Prof. .S. D. Bhosale
93
Legal Concepts
(.. 6 c ..)
OWNERSHIP
QUESTION BANK
Q.1. Define ownership and state its kinds.
Q.2. Critically examine the concept of ownership.
Q.3. State and explain the kinds of ownership.
Q.4. Define ownership and state its essential characteristics.
SHORT NOTES
1) Kinds of ownership
2) Difference between possession and ownership.
I. Introduction-
Ownership and possession are very important concepts relating to the
property. In the primitive era, possession was only known to a human being. As
human beings got knowledge of cultivation and started to settle down (i.e. shifted
from nomadic to agriculture), the concept of ownership emerged. At that time,
individuals started to think of the right to property, which gave birth to the concept
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of ownership. With the advancement of civilised society, the concept of ownership
began to grow.
II. Meaning and Definition-
âOwnâ literally means âto have or hold a thing.â The person who holds a thing
as his own is said to be the owner and has the right to ownership over it.
We will discuss some of the definitions of ownership which reveal the legal
meaning of âownershipâ, viz.
1) Austin-
Austin defines âownershipâ as âa right indefinite in point of the user, unrestricted
in point of disposition and unlimited in point of duration.
From the above definition, we can deduce three elements of ownership-
a) Indefinite user-
The term indefinite user implies that the owner of a thing has a right to use
or even misuse the thing in the manner he likes. Thus, there is no restriction on the
manner of his right of use.
b) Unrestricted disposition
The owner also has a right to dispose of a thing owned in the manner he
likes, e.g., destroying it, alienating it, etc.
c) Unlimited duration-
The third attribute of ownership is that the owner can exercise his right for
an unlimited duration. The right exists so long as the ownership and the thing exist,
and even after the owner's death, his heirs can use the thing.
However, criticism against the definition provides that the above rights may be
subject to certain restrictions and may not be absolute.
2) According to Salmond-
According to Salmond, âownership denotes the relationship between a person
and an object forming the subject matter of ownership. It consists of a complex of
rights all in rem.â
According to Salmond, ownership has the following rights viz-
a) Right to possess the thing.
b) Right to use and enjoy the thing.
c) Right to consume, destroy or alienate the thing.
d) Right of ownership indefinite in duration.
e) Residuary rights, e.g., the owner may lease the property to one, the right of an
easement to another and the right of profit to the third person, but the owner still
owes residual rights.
âLaw Masterâsâ Publication
âOwnershipâ
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However, the definition is criticised on the grounds that the owner owns the
thing and not merely rights relating to the thing.
3) Holland-
According to Holland, âownership is a plenary control over an objectâ.
According to him, ownership connotes the following elements.
1) Control over the material object (possession).
2) Control over an aggregate of rights.
3) Control over all those rights which the owner can use against others.
4) Pollock-
According to Pollock, âOwnership is the entirety of the powers of use and
disposal allowed by lawâ.
Thus, from the above definitions, we may summarise the following elements
of ownership-
i) The ownership is a right to possess the thing he owns.
ii) The owner has a right to use and enjoy the thing owned,
iii) The owner has a right to consume, destroy or alienate the thing owned.
iv) The rights of the owner are indeterminate in terms of duration.
vi) The owner has residuary rights.
III] Kinds of ownership-
Ownership is of the following kinds, viz-
1) Corporeal and incorporeal-
Ownership of a material object like a house, car, building, etc., is corporeal,
whereas ownership of rights like copyright, patient right, trademark, and right of
way, etc., is incorporeal.
Corporal things are tangible, whereas incorporeal rights are intangible.
2) Sole ownership and co-ownership-
When the ownership is vested in a single person, it is called sole ownership,
whereas when the ownership is vested in two or more persons at one time, it is
called âduplicate ownershipâ. âCo-ownershipâ is the specie of duplicate ownership.
The partnership is the best example of co-ownership.
3) Trust ownership and beneficial ownership-
Trust ownership and beneficial ownership are other species of duplicate
ownership. In trust, ownership also includes property owned by two or more
persons.
In trust, the relationship between the persons is such that one of them is under
obligation to use his ownership for the benefit of the other. The person under
âLaw Masterâsâ Publication
âOwnershipâ
Prof. .S. D. Bhosale
96
obligation is called âtrusteeâ, and his ownership is the âtrust ownershipâ.
The person for whose benefit trust is created is called âbeneficiaryâ, and his
ownership is called âbeneficial ownershipâ.
The trustee is deprived of any right to the beneficial enjoyment of the trust
property for himself. He is under an obligation to use trust ownership for the
benefit of the beneficiary.
A trust may be created for the benefit of an unborn child, a minor, disabled
persons, co-owners, etc.
4) Legal and equitable owners-
The concept of legal and equitable ownership is similar to that of trust and
beneficial ownership.
The concept of legal and equitable ownership is not recognised in India; it
is recognised in England.
In England, two different courts were in existence; one was called as
âCommon law courtâ and another a âChancery or Equity courtâ.
The rights recognised by Common law courts were called âlegal rightsâ, and those
recognised by a court of equity were called âequitable rightsâ.
Common law courts were based on customs; these customs subsequently became
legal rules, whereas the Court of equity was based on equitable principles of
justice, equity and good concise.
Sometimes, one person is recognised as a legal owner and another as an
equitable owner of a right; in such circumstances, the legal owner is treated as a
trustee and the equitable owner as the beneficial owner.
5) Vested and contingent ownership-
Ownership can further be divided as vested or contingent. Ownership is said
to be vested when the ownerâs title is perfect and there requires nothing to make
his title perfect, whereas contingent ownership is an ownership where the ownerâs
âLaw Masterâsâ Publication
âOwnershipâ
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97
title is not yet perfect but is capable of becoming perfect in future on fulfilment of
some conditions.
Thus, in vested ownership, property is owned absolutely, but in contingent
ownership, property is owned conditionally.
Thus, if a testator bequeaths a fund by the will to A for his life and after his
death to B. After the death of the testator ownership of the fund vests in A, but Bâs
ownership of the fund is contingent depending upon the contingency of Aâs death.
6) Absolute ownership and limited ownership-
When all the rights of ownership are vested in one person without any
restriction, his ownership is absolute. But when there are limitations on a personâs
use, duration or disposal of the thing, it is limited ownership.
Earlier in India, women had limited interest in the property, and could not
sell the property. In this sense, her ownership was limited ownership.
IV) Difference between ownership and possession-
Possession is defacto exercise of a claim, whereas ownership is the de-jure
recognition of it. In other words, Possession is, in fact, while ownership is in the
form of a right. E.g. A tenant is in possession of a house the ownership of which is
vested in the landlord.
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