“Law Master’

“Property”

Prof. .S. D. Bhosale

105

Legal Concepts

(.. 6 e ..)

PROPERTY

QUESTION BANK.

Q. 1. Explain the meaning of propriety and describe different types of properties.

Q. 2. State the meaning of property and describe different modes of acquisition of

property.

SHORT NOTES.

1. Distinguish between Corporeal and incorporeal properties.

2. Right in re-propria.

SYNOPSIS.

I. Meaning of Property-

1) All legal rights-

2) Property rights only-

3) Corporeal property only

II) Kinds of property-

1) Corporeal property-

2) Incorporeal property-

i) Right in re-propria-

ii) Rights in re-aliena-

a) Lease-

b) Servitudes or Easement-

i) Private Servitude -

ii) Public Servitude-

c) Securities-

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d) Trust-

III) Modes of Modes of Acquisition of property-

1) Possession-

2) Prescription-

3) Agreement-

i) Assignment-

ii) Grant-

4) Inheritance-

I. Meaning of Property-

The concept of property is very important in human life. It is because no human

being can survive or develop without material objects. Material objects are the subject

matter of property.

In its widest sense, all animate and inanimate things that belong to a person are

called ‘property’. In such a comprehensive sense, the term ‘property’ includes material

things such as land, buildings, cars, etc., as well as incorporeal rights such as the right to

life and personal liberty, copyright, patient rights, etc.,

Thus, in its widest sense, the term property includes both corporeal and incorporeal

properties.

According to Salmond, “subject matter of the law of property is proprietary right in

rem”.

He observes that in a legal sense, the term ‘property’ refers to the following.

1) All legal rights-

Hobbes, Blackstone and Locke support this theory. According to them, in its widest

sense, the property includes legal rights of whatsoever description. In other words, man’s

property is all that which is ‘his’ in law. This view signifies complete ownership of

corporeal (material) as well as incorporeal rights.

Thus, in this sense, land, buildings, copyright, patient rights, as well as the right to

life and personal liberty, are property. In today’s time, the meaning of property is accepted

in the widest sense.

2) Proprietary rights only-

In its narrow sense, the term “property” includes man’s proprietary rights only. This

view does not include the personal rights of a person, such as the right to liberty, reputation,

profession etc.

Proprietary rights mean rights related to corporeal and incorporeal property that can

be converted into money, such as land, buildings, cars, shares, goodwill, copyright, etc.

3) Corporeal property only-

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“Property”

Prof. .S. D. Bhosale

107

In its very restrictive sense, the term ‘property’ includes only corporeal things, i.e.

the right of ownership in material objects such as land, buildings, cars, gold, etc. It does

not include incorporeal property. Bentham supports this theory.

In modern times, the meaning of property in its widest sense is accepted in almost

all legal systems.

IV) Kinds of property-

1) Corporeal property-

Broadly speaking, ‘properties’ can be divided into ‘corporeal’ and ‘incorporeal’.

‘Corporeal’ property is ‘the right of ownership in material thing’ whereas ‘incorporeal

property’ is ‘ownership in intangible objects or ownership of right in other’s property’.

Corporeal property includes all material things such as land, buildings, gold, etc.

‘Corporeal means ‘material things which can be seen, felt, or touched. ' In other words,

‘corporeal property’ means ‘the right in material things’.

Corporeal property can further be divided into- i) Movable and ii) Immovable

property.

2) Incorporeal property-

As discussed earlier, incorporeal property is either (i) ownership of an intangible

object, e.g., copyright, patient right, goodwill, etc. (re-propria), or (ii) ownership of a right

in another’s property, such as the right to way, right of light, right to fetch water, etc. ( re-

aliena).

In other words, material things are physical objects, whereas all other things which

are the subject matter of right are immaterial things.

Incorporeal property can be further divided into-

i) Right in re-propria-

Right in re-propria is the right in immaterial things. Such rights can be produced by

human labour and skill. These properties nowadays are called ‘intellectual property’. The

person holding the right can get a remedy for its violation. Patent rights, copyright,

commercial goodwill, rights in trade mark -etc., are some of the intellectual property or

rights in re-propria.

ii) Rights in re-aliena-

Rights in re-aliena are also known as ‘incumbrances’. Rights in re-aliena are the

rights in rem over the thing owned by another person. Such rights in rem run with the

property and bind the property in whoever’s hand it may be, e.g. the right //on the way over

other’s property, the right to draw water from other’s well, etc. We will discuss these rights

in detail as follows-

a) Lease-

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“Property”

Prof. .S. D. Bhosale

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A lease is a transfer of a right to enjoy or use the immoveable property for a

specific time or in perpetuity. A lease is an agreement by which the owner transfers his

right of possession to the lessee. It is the transfer of the limited right to use or enjoy the

property. It is the outcome of the separation of possession and ownership.

b) Servitudes or Easement-

‘Servitude’ is a right enjoyed by the owner of the land over the land of another. These

rights in Indian parlance are called ‘easements’. Thus, the right of way from other's land,

the right to draw water from other's well, the right of light etc., are easementary rights.

Servitudes are further divided into –viz-

i) Private Servitude -

A private servitude is that in which the right to use is vested in a determinate

individual or individuals, e.g. a right of way vested in the owner of one piece of land over

an adjoining piece of land.

ii) Public Servitude-

A public servitude is one in which the right is vested in the public at large, e.g., the

right to a highway over another’s land, the right to bathe on a river bath, etc.

c) Securities-

A ‘security’ is an encumbrance vested in a creditor over the property of his debtor

for the purpose of securing the recovery of debt.

In other words, it is a right to retain possession (lien) of a thing until the debt is repaid.

Security on immovable property is called a ‘mortgage’, and on a moveable property is

called a ‘pledge’.

Thus, there are two types of securities over property – viz- i) lien and ii) mortgage

d) Trust-

A trust is an encumbrance in which property ownership is restricted for the benefit

of a third person known as the beneficiary. Thus, a trust is an obligation annexed to property

ownership.

Trust is created by the confidence reposed in and accepted by the owner in the

trustee. Thus, trust is created by the person who makes an endowment in favour of the

trustee for the benefit of the beneficiary.

Trust is ordinarily created for the benefit of an unborn person, infant, minor, etc.

V) Modes of Acquisition of Property-

There are several modes of acquisition of property, viz.

1) Possession-

Possession is one of the important modes of acquisition of property. Possession is

prima faci evidence of ownership. A person in possession cannot be disturbed from his

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possession except by the true owner. Even a true owner cannot evict him without due

course of law. If anyone except the true owner takes away possession, the person so

dispossessed can recover the possession back.

The property which belongs to no one belongs to the first possessor of it. Such a finder

gets a valid title to it against the whole world. Thus, fish of the sea or birds of the air are

the property of the person who first catches them.

2) Prescription-

According to Salmond, ‘prescription’ is the effect of laps of time in creating and

destroying rights. In other words, long possession of a property creates a right, whereas

long want of possession destroys a right.

‘Prescription’ is of two types ‘positive’, which is also called ‘acquisitive’ and

‘negative’ or ‘extinction’. Positive prescription creates right, whereas negative prescription

destroys right. Thus, exercising the right of way through the land of another for more than

12 years without interruption creates a right by prescription. Similarly, if the creditor does

not sue the debtor for three years from his debt, his right to recover the debt is extinguished

by presumption.

‘Negative prescription’ is the divesting of a right by the same process by which a

title of right is created in a positive prescription.

3) Agreement-

The agreement is today's most common and popular mode of acquiring property.

By an agreement, property is transferred from one person to another by mutual consent.

An agreement can be of two types, viz.

i) Assignment-

Assignment means an agreement by which the owner's existing rights are

transferred to another person. Thus, a sale is an assignment.

ii) Grant-

‘Grant’ means ‘a grant by which new rights are created by way of an encumbrance

upon the existing rights of the actual owner such as lease, mortgage, hypothecation, pledge

etc.’

4) Inheritance-

Devolution of the property after the owner’s death upon his legal heirs is called

‘inheritance’ or ‘succession’.

Death of the owner of the property creates some rights in favour of heirs, viz. (i)

inheritable and (ii) uninheritable. A right is inheritable if the right dies with the person.

Usually, proprietary rights are inheritable, whereas personal rights, with some exceptions,

are not inheritable. Thus, proprietary rights in land, buildings, cars, gold, etc., are

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inheritable, but personal rights such as the right to reputation, the right to marriage, freedom

of speech, etc., are not inheritable.

A person may acquire property by inheritance, either by will in his favour

(testamentary succession) or by being a legal representative (intestate succession).

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