This article is written by Aamina Rafeek of 10^th Semester of B.Com LLB (Hons.) of Government Law College, Ernakulam, an intern under Legal Vidhiya

ABSTRACT

The paper deals with the concepts of property and possession in detail, both which are intrinsically connected to each other. As Salmond said, human life and human society as we know them would be impossible without the use and consumption of material things. We need food to eat, clothes to wear, house to live but for all this we must first get hold of these essentials. Possession of material things is therefore essential; to life; it is the most basic relationship between men and things.

KEY WORDS

Property, protection, possession, essential, ownership, acquisition, enjoyment,

INTRODUCTION

The concept of property, possession and ownership originated and developed with the growth in civilization, when nomadic man began to settle down to lead a more stable life. Today property plays a vital role in man’s life. It is a key subject matter of one’s rights and duties. The respect and protection attributed to the property rights of citizens of a country is a fundamental indicator of the country’s prosperity and progress. It reflects economic freedom, opportunity and development to an individual. As George Washington said, freedom and property rights are inseparable, you cannot have one without another. This is because property rights is a bundle of rights that affect different aspects of an individual’s life. Neither liberty nor the pursuit of happiness are secure without the right to acquire and hold prop­erty[1]. Rights over property can be exercised via possession or ownership. The possession of a thing is a good title against the whole world except the real owner[2]. Ownnership is the bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to the other[3].
To understand the nuances of this topic, it is important to understand thoroughly the legal concepts of property, possession and ownership.

PROPERTY UNDER JURISPRUDENCE

Property generally means things which are owned. It can include both living and non-living things. Phibrick says the “concept of property never has been, is not and never can be of a definite content”[4].  Salmond says in its widest sense, property includes all a person’s legal rights, of whatever description[5]. A man’s property is all that is his in law.

In a narrower sense, property is defined to constitute only his proprietary as opposed to his personal rights. This means that a man’s land, vehicles, shares, and debts due to him are his property, but not his life, liberty or reputation.

Another view with regard to property in jurisprudence is that the term property includes not even all proprietary rights but only those which are both proprietary and in rem. Thus according to this usage, a freehold or leasehold estate in land, or a patent or copyright is property but a debt or the benefit of a contract is not property.

Austin believed that property can have different meanings at different times. It could be used to denote the greatest rights of enjoyment known to law excluding servitude or it could also be life interests or sometimes even servitude[6]. It could be the whole set of assets owned by a person including both rights in-rem and rights in personam[7].

KINDS OF PROPERTY

Generally properties can be divided into two- corporeal property and incorporeal property.

Corporeal property

It is also called tangible property as they can be seen, touched and felt. They are material objects over which rights can be exercised. Land, vehicles, buildings, ornaments etc. are all corporeal properties.

Corporeal properties are further divided into two-

• Movable properties
• Immovable properties

The difference lies in their ability of physical mobility.

Movable properties are generally defined to be tangible properties of all kinds except that is attached to earth or permanently fastened to anything that is attached to earth and things attached to earth can be regarded as moveable once they are severed from earth[8]. In simple terms, anything that is transportable from one place to another is a moveable property.

Immoveable properties, as the name suggests, are things that are permanently fixed to the surface of earth. Sec 3(25) of the General Clause Act of 1897, states that immovable property includes land, benefits arising from land, and items permanently fastened to anything related to the soil[9].

Incorporeal Property

Incorporeal property is any other proprietary right in rem in abstract form of property. It is also called intangible property. Patent rights, right of way etc. are examples of incorporeal property. The need to recognise incorporeal property has increased in the modern times. The scope of the term property has widened and it has come to include virtual property as well[10].

This category of property can be further divided into-

• Rights in re propria
• Rights in re aliena

Rights in re propria are right of ownership is exercised over a non material object. It includes products of human intellect, skills and labour that is not tangible. Therefore one can have absolute legal right over a property that is incorporeal and does not have physical presence. The most important of these are-

1. Patents– it is a legal right granted to an inventor and his licensees to exclude others from making, using, or selling an invention for a limited period of time.
2. Literary copyright
3. Artistic copyright
4. Dramatic and musical copyright
5. Commercial goodwill, trademark and trade names

Rights in re aliena, also called encumbrances, includes incorporeal rights over corporeal things. They are rights in rem over properties of another person. They restrict the legal owner of the property from exercising certain rights over the property and grants certain rights in favour of another party who is not legally related to the property. These encumbrances can be in the following ways-

1. Lease- it is an encumbrance in which the owner of the property transfers the right of possession and use of his property to another person for a definite period in return of payment of some kind. The title of the property remains with the transferor (called lessor).
2. Servitude– it is a form of encumbrance which consists of a right to limited use of land without taking the possession of it, which makes it different from lease. Examples of servitudes are- right of a way across the land of somebody, the right of light and air etc.
3. Security– It refers to holding or retaining of the property of a debtor by his creditor for the purpose of securing the recovery of debt. Securities can be in the following forms- mortgage, lien and pledge.
4. Trust- An encumbrance in which ownership of a property is granted to a person  on behalf of someone else, such that the former can deal with it in a limited manner only for the benefit of the beneficiary. The persons in whose favour the trusts are advanced are infants, lunatics, unborn persons etc.

THEORIES OF PROPERTY

Natural Law Theory– According to this theory, one who possesses a property is naturally regarded as the owner of  the property. Possession is given priority here. This view was supported by various jurists. Grotious says all things existed without an owner at first and whoever occupied them later became its owner. This theory was also under criticism from jurists like Bentham and Maine. According to Bentham ownership of a property is not acquired through mere occupation of a thing, but is a creation of law.

Metaphysical Theory– Kant and Hegel were exponents of this theory. This theory suggests that there is a physical connection between owner and object. Kant says that a thing rightfully belongs to someone when the use of it without his/her consent can cause damage or loss to the said person. As per Hegel, property is an object on which a person has the right to direct his will.

Labour Theory– This is also called positive theory, according to which a property is the product of the skills and labour of an individual and therefore belongs to him only. Spencer who is a supporter of this theory holds the notion that one who has not put any effort or labor to produce a property cannot acquire the same. This theory is impractical in the modern world as people today acquire property through contracts, will etc.

Psychological Theory– according to this theory property is the result of the human instinct to possess. Everyone has this desire to own and control a thing. Bentham says that property is a conception of mind.

Historical Theory– This theory traces the slow and steady growth of private property ownership. At first things were owned collectively by a group. However later when families partitioned or split, division of property began and individual ownership came up. The first stage was the natural possession, independent of law. In the second stage came the juristic ownership which means possession in fact as well as law. Thirdly came the ownership of property recognized by legal statutes.

Sociological Theory– According to this theory, property should not be considered in terms of private rights but should be considered in terms of social functions and is an institution which secures maximum interest[11].

MODES OF ACQUISITION OF PROPERTY

There are four modes in which properties can be acquired – Prescription, Agreement Inheritance and Possession

1.Prescription– According to Salmond acquisition of property can be done by way of prescription which may be defined as effect of lapse of time in creating and destroying rights .

When by prescription a right is created, it is called positive or acquisitive prescription. For example- right of way by de facto use of it for 20 years.

When a right becomes extinct or destroyed by lapse of time, it is called negative or extinctive prescription. For example, the destruction of the right to sue for a debt after three years from the time at which it first becomes payable. Negative prescription is of two types- perfect and imperfect. Perfect prescription is the extinction of the principle right itself whereas imperfect prescription is destruction of only an accessory right while principle right remains in force. When perfect prescription completely destroys the right, imperfect prescription will only reduce its scope.

2. Agreement – Legally enforceable agreements are one of the modes of acquiring property. When a property is transferred from one person to another through lawful means in exchange of a consideration, it is called Sale. On the other hand, when such transfer takes place with no consideration it is regarded as gift. An agreement has four essential elements which are as follows  –

1) There should be two or more parties to an agreement

2) Mutual consent of the parties .

3) It should be communicated .

4) There should be common intention to affect the legal relationship .

3.Inheritance– the rights which a deceased person leaves behind him vest in the representative who has been appointed to represent him either by himself or by the law on his behalf . The representative of a deceased holds the property on behalf of creditors and beneficiaries of the estate.

Succession of the property of a deceased may be testate (by means of will written by the deceased prior to his death) or intestate (without a will). When there is will, the property diversion will be done accordingly. When there is no will, the succession would take place according to the operation of law. In the absence of heirs of the deceased, the property shall go to the state.

4.Possession – Possession is prima facie evidence of ownership. It is the ability to exercise physical control over an object. Possession is said to be nine out of ten parts of ownership.

In case of a property not owned by anyone, the first possessor of it can claim a valid title over it. This is called possession by occupation.

With regard to a property owned by another person, a possessor has a good title against all third persons except the real owner. This is called possessory ownership.  If a possessory owner is deprived of its possession by a person who is other than the true owner, he has the right to recover possession of the same[12].

In the view of  Holland, law protects possession for preservation of peace, as part of the law of tort and as part of the law of property.

Legal consequences of possession

1. Possession is prima facie evidence of title of ownership
2. Transfer of possession is chief mode of transferring ownership.
3. Long adverse possession confers title confers title even to property which belonged to another.
4. The first possession of a thing which as yet belongs to no one is a good title of right.
5. With regard to a property owned by another person, a possessor has a good title against all third persons except the real owner.
6. Possession may be of such efficacy that in some cases possessor may confer a good title on another even though he has none himself.

Savigny’s Theory of Possession

According to Savigny, the essence of possession is to be found in the physical power of exclusion. He maintained that possession is consisted of two elements, namely, corpus possession is, i.e., physical control, and animus domini, i.e., an intention to hold as owner. Since, possession involved both these elements, the permanent loss of one or the other brought possession to an end. Savigny also thought that since the detentor and possessor have the same physical retention to the res, the difference between them should be detected in the mental element, and the intent which demarcates a possessor, is animus domini, i.e., a desire to hold for oneself and on behalf of others

Elements of possession

1. Corpus Possession is- it is the exclusive physical control over a thing. This can be discussed under two points- one is relation of the possessor to other persons such that the possessor has a reasonable confidence that his claim to it will be respected and is content to leave it where it is. Second is the relation of the possessor to the things possessed is such as to admit of his making use of the thing as he likes, consistent with the nature of the thing.
2. Animus Possidendi- It implies the intention to appropriate to oneself the exclusive use and enjoyment of the thing possessed. The animus or desire need not be rightful. It also need not amount to a claim or intention to use the thing as owner. The animus need not be that of the possessor himself and it need not be specific.

In Merry v. Green[13] – the plaintiff purchased a bureau at an auction. In a secret drawer there was some money belonging to vendor. He took the money and misappropriated it. He was convicted for larceny because when he took possession from vendor he had no animus with regard to the money. So, in the eyes of law money still is the possession of vendor and not plaintiff.

The three general modes of acquiring possession are taking, delivery or operation of law.

Kinds of possession

1. Corporeal and Incorporeal possession– Corporeal possession is the possession of a material object whereas incorporeal possession is the possession of anything which is intangible.
2. Immediate and Mediate possession– the possession held by a person through another person is called mediate possession while the possession which is acquired or retained directly or personally is termed immediate possession[14].
3. Concurrent possession-  When two or more persons claim to be in possession of the same object at the same time as per the civil law, provided that the claim should not be that of adverse possession.
4. Possession in fact and Possession in law– Possession in fact is the relation between a person and a thing which he possess. Possession in law provides protection to possession in two ways. First possessor is given certain legal rights. Secondly possession protected by listing out criminal penalties for wrongful interference or dispossession.

MODES IN WHICH PROPERTY MAY BE DIVESTED

A person may divest his property in the following ways-

1. By contract- by sale, assignment to someone, by loss of equity of redemption of a mortgage, by exercise of right of lien.
2. By giving in trust
3. By operation of law- by death or insolvency, or by adverse possession after prescribed time period, or by limitation etc.
4. By forfeiture or attachment or acquisition under law.

CONCLUSION

Possession is no longer considered a relationship between men and things, it has more to do now with relations between people[15].  Where those relations are in dispute there will be various values, sometimes competing, to be considered[16]. Properties are a source of power and is on of the best forms of investment in modern times. It is believed that property and law were born together. Ownership and possession as such were recognized with the evolution of law. Therefore, it is important to study the jurisprudence of these concepts to acquire clarity on the claims we put forward.

REFERENCES

1. William Tolischus, Private Property and Freedom, FOUNDATION FOR ECONOMIC FREEDOM, https://fee.org/articles/private-property-and-freedom/
2. Prof.T.Sita Kumari & Dr. G. Indira Priyadarsini, Concept of Property- Jurisprudential Perspective, 1, GLS LAW JOURNAL, 7,8 (2019)
3.  Dr. AVATAR SINGH, Dr. HARPREET KAUR, INTRODUCTION TO JURISPRUDENCE, (4^th ed. 2016)
4.  Anam Khan, Laws of Property under Jurisprudence, IPLEADERS, https://blog.ipleaders.in/laws-of-property-under-jurisprudence/
5. Property- Meaning, Definitions and Modes of Acquisition, SRD LAW NOTES, (oct 24, 2023, 8:09 AM) https://www.srdlawnotes.com/2018/03/property-meaning-definitions-and-modes.html#:~:text=According%20to%20Salmond%2C%20there%20are,%2C%20prescription%2C%20agreement%20and%20inheritance.
6. Khushal Suryawnshi. Protection of Possession in India. RESEARCH J. HUMANITIES AND SOCIAL SCIENCES, 5(1): January-March, 2014, 29-31.

 

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[1]William Tolischus, Private Property and Freedom, FOUNDATION FOR ECONOMIC FREEDOM, (Oct 23, 2023, 6:12 PM) https://fee.org/articles/private-property-and-freedom/

[2] Dr. AVATAR SINGH, Dr. HARPREET KAUR, INTRODUCTION TO JURISPRUDENCE, (4^th ed. 2016)

[3] https://www.scconline.com/blog/post/2021/02/27/ownership/ 

[4] Prof.T.Sita Kumari & Dr. G. Indira Priyadarsini, Concept of Property- Jurisprudential Perspective, 1, GLS LAW JOURNAL, 7,8 (2019)

[5] Id at 2

[6] Anam Khan, Laws of Property under Jurisprudence, IPLEADERS, (Oct 23,11:00 AM) https://blog.ipleaders.in/laws-of-property-under-jurisprudence/

[7]  Id at 6

[8] Section 22 , Indian Penal Code, 1860.

[9] Section 3(25), General Clauses Act 1897

[10] Id at 2

[11] Id at 2

[12] Property- Meaning, Definitions and Modes of Acquisition, SRD LAW NOTES, (oct 24, 2023, 8:09 AM) https://www.srdlawnotes.com/2018/03/property-meaning-definitions-and-modes.html#:~:text=According%20to%20Salmond%2C%20there%20are,%2C%20prescription%2C%20agreement%20and%20inheritance.

[13] Merry v. Green (1841) 7 M&W 623

[14] Id at 2

[15] Khushal Suryawnshi. Protection of Possession in India. RESEARCH J. HUMANITIES AND SOCIAL SCIENCES, 5(1): January-March, 2014, 29-31.

[16] Id at 22

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