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Meaning of Property

The term property in a looser sense may be described as the sum-total of a man’s fortune, including not only the objects of which he is the owner, but also the value of any claims which he may have against other persons, after deducting the amount of any claims which might be made good against him.

In a limited sense, property convers only a person’s proprietary rights as opposed to his personal rights. Thus land, chattels, shares and debts due to him constitute his property. This is the most usual sense in which the term is used in modem time.

In yet another sense, property includes only those rights which are proprietary rights in rem, e.g. patent copyright. But a debt or benefit of a contract is not included within the term ‘property’ n this sense.

According to Salmond, the substantive civil law, as opposed to the law of procedure, is divisible into three major parts, namely, 

  • the law of property, deals with the proprietary rights in rem
  • the law of obligations, deals with proprietary rights in personam
  • the law of status. deals with personal or non-proprietary rights, whether in rem or in personam.

Thus, the subject-matter of the law of property is proprietary rights while the subject matter of law of obligations is proprietary rights in personam.

The subject-matter of the law of status is all personal or non-proprietary rights, whether in rem or in personam.

Salmond observes that the term ‘property may have a variety of applications but in legal terms it refers to the following:

Defining property as a legal concept, the Supreme Court in Guru Dutt Sharma v. State of Bihar, observed that it is a bundle of rights and in the case of tangible property, it would include the right of possession, the right to enjoy, the right to retain ,the right to alienate and the right to destroy.

The term property also includes within its, goodwill of a business, which is an intangible asset. It includes not only immovable and movable object, but also patents, copyrights, shares, claims etc.

  1. All legal rights: It includes a person’s legal rights of whatever description. A man’s property is all that is his in law. This ordinarily implies complete ownership of all things-material as well as incorporeal, Hobbes and Blackstone have supported the use of the term ‘property’ in this sense. But this usage has become obsolete in the present time.
  2. Proprietary rights: It includes not all rights, but only a man’s proprietary rights as opposed to his personal rights. Thus if I sell my land to you, the property in it shall pass to you on your paying me the purchase money.
  3. Corporeal Property: In this sense, property includes nothing more than corporeal things, that is, right of ownership in a material object such as a watch, land, horse, etc According to Salmond, ownership of corporeal property is general, permanent and inheritable right of user of a thing.
  4. Firstly, the ownership of a material object is a right to the general or aggregate use of the thing. The owner of the material object (thing) is entitled to its use except insofar as it is restricted by natural limits or restrictions arising from the effect of encumbrances.
  5. Secondly, the right of ownership is permanent right existing so long as the material thing is in existence.
  6. Thirdly, the ownership of a material object is inheritable and the right survives after the owner’s death.

Bentham, however, preferred to interpret the term ‘property in its narrowest sense. According to him, it includes nothing more than corporeal property, i.e., ownership of material objects alone.

Austin looks at property in its widest sense and suggests that property denotes the greatest right of enjoyment known to the law excluding servitudes.

Sometimes even servitudes are described as property in the sense that there is a legal title to them. Considered from this point of view, property means the whole of the assets of a man including both his proprietary as well as personal right.

Definition of Property –

 Some important Definitions of Property are as follows 

  • Locke – According to Locke, “ Every man has a property in his own person.” Every individual has the right to preserve his property, that is his wife, liberty and estate.”
  • Bentham – According to Bentham “property is nothing more than the basis of s certain expectation of deriving thereafter certain advantages by a thing the reason of the relation in which we stand towards it. There is no image, no visible lineament which can property the relation that constitutes property. It belongs not to physics, but to metaphysics. It is altogether a conception of Mind. To it, all or any of these physical circumstances failed to assist in conveying the idea of property.
  • Austin – According to Austin, the term property is sometimes used to denote the greatest right of enjoyment known as to law excluding servitudes. Sometimes, life interests are described as property.  Even servitudes are described as property in the sense that there is a legal title to them. Sometimes property means the whole of the assets of a man including both the right in rem and right in personam

‘Property’ as interpreted by the Supreme Court of India

The Supreme Court of India, in R.C. Cooper v. Union India, gave a very comprehensive definition of property and observed-

Property means the highest right a man can have to anything being that right which one has to lands or tenements, goods or chattels which does not depend on other’s courtesy; it includes ownership, estates and interests in corporeal things, and also rights such as trade marks, copyrights, patents and even rights in personam capable of transfer or transmission, such as debts; and signifies a beneficial right to or a thing considered as having money value, especially with reference to transfer or succession, and of their capacity of being acquired.

In India, property has been given constitutional protection under Article 19(1) (f) of the Constitution of India so that the State may not interfere with a person’s right to property.

The Importance of personal property is receding these days. This is why right to property had been dropped from the category of fundamental rights by Constitution Forty-fourth (Amendment) Act, 1978 and it has now become an ordinary legal right under Article 300-A.

Theories of Property

Jurists have differed in their views regarding the origin of the property. Many theories have been put forward to explain the origin of property and give justification.  The following are theories of property

  1. Natural law theory 

Grotius, Pufendorf, Locke and Blackstone are supporters of this Theory.  According to the natural law theory, Property is based on the principle of natural reason derived from the nature of things. According to Grotius, all things originally were without an owner and whosoever captured them or occupied them, became their owners. Locke says: ”Every man has a property in his own person, he has right to preserve his property, that is, his life, liberty and estate. “According to Pufendorf, originally, all things belonged to the people as a whole.

Criticism –

The natural law theory of property has been criticized by Sir Henry Maine and Bentham. According to them possession does not give rise to title nor the property is originated by the first occupation of on ownerless thing but it is a creation of law. He does not believe in the existence of property without the existence of the law.

  • The labor theory/ positive theory

The labor theory of property is also sometimes called as the positive theory. Spencer was propounder of the positive theory. According to this theory, a thing (res)  is the property of a person who produces it or brings it into existence.  However,  the labor theory has been criticized by Professor Laski key on the ground that labor does not produce the property, it is only a means to earn property. This theory has lost significance in modern times because it has been shown that there may be many situations when property can be acquired without labor, for example, property obtained by inheritance or under a will.

  • The Metaphysical theory

The metaphysical theory was propounded by Kant and Hegel. According to Kant, “A thing is rightfully mine when I am so connected with it that anyone who uses it without my consent does me an injury.” According to Hegel, “property is the objective manifestation of the personality of an individual. In other words property in an object on which person has liberty to direct his will.

Kant observed that law of property does not merely seek to protect possession where there is an actual physical relation between the possessor and the object, but it goes beyond and considers the personal will of the individual more important in the concept of the property.

This theory has been criticized on the ground that it is a little concerned with realities and is based on theoretical assumptions.

  • The historical theory 

The propounder of historical theory is Bentham.  Henry Maine was the main supporter of the historical theory of the origin of property. According to the historical theory, private property had a slow and steady growth. It has grown out of the collective group or joint property. There were many stages in the growth of individual property. The first stage was that of natural possession which existed independently of the law or state.  The second stage was juristic possession and the last stage of development was that of ownership.

  • The psychological theory 

The propounder of this theory is Bentham.. According to this theory, property came into existence on account of acquisitive tendency of human beings. Every individual desires to own things and that brings into existence property.  Bentham pointed out that property is altogether a conception of mind. There is no image,  no visible lineament which can portray the relation that constitutes property. It belongs not to Physics but to metaphysics.

  • The sociological theory 

The sociological theory was propounded by Duiguit, Laski, Karl Marx. According to the Sociological Theory, property should not be considered in terms of private rights but should be considered in terms of social functions. Property is an institution which secures a maximum of interest and satisfies the maximum of wants.

According to Laski, “property is a social fact like any other and it is the character of social facts to alter. It has assumed the most varied aspects and it is capable of yet further changes.

According to Jenks, “ The unrestricted right to use,  neglect or misuse his property can no longer be granted to any individual and the right of property should be made comfortable to rules of equity and reason.

  • The theory that property Is the creation of the state

According to this theory;  the origin of property is to be traced back to the origin of law and the state. The supporter of this theory observed that property and law born together and would die together.  In other words, the property came into existence when the laws were framed by the state.

Rousseau is the main supporter of this theory. He asserted that property was the creation of the state.

Kinds of property – 

Broadly speaking the objects which are capable of becoming property those over which a person exercises a right and with reference to which another person owes a duty. These objects maybe

  • Material objects ie physical things (res corporales) such as house tree, field, horse, table, etc
    • Intellectual objects which are artificial things called res incorporales such as trademark, copyright, patent, easement rights. These are intangible things, which are treated by law as if they were material objects for the purpose of determining their holder’s right and duty of others against him.

 Property is essentially of two kinds 

  • Corporeal Property and 
  • Incorporeal Property. 

Corporeal And Incorporeal Property –

  1. Corporeal Property – Corporeal property is the right of ownership in material things. Corporeal property is always visible and tangible. Corporeal property can be perceived by senses. It can be seen or touched. Examples -A House, Land, Car, Bike etc

Corporeal property may be divided into two classes- 

  • Movable Property (Chattels) and Immovable property. (Land and buildings): 
  • Movable property: Movable Property is one, which can be transferred from one place to another place with the human efforts.
  • Immovable Property: According to the General Clauses Act, 1897 “Immovable property includes land, benefits arising out of land and things attached to the earth or permanently fastened or anything attached to the earth.”

According to the Indian Regulation Act, “immovable property includes land, building,  hereditary allowance, rights of way, lights, Ferries, Fisheries or any other benefit to  arise  out of land and things attached to the earth or permanently fastened to anything attached to the earth but not standing Timber, growing crops or grass.

Section 3 Para 2 of the Transfer of Property Act 1882 defines immovable property as “immovable property does not include standing Timber, growing crops or grass. Movable property includes corporeal property which is not immovable.

According to Salmond immovable property (i.e., land) has the following elements-

  • A determinate portion of the surface of the earth.
  • The ground beneath the surface down to the centre of the earth
  • The column of space above the surface ad infinitum.
  • All objects which are on or under the surface in its natural state for example-minerals natural vegetation, or stones lying loose upon the surface.
  • An object placed by human agency on or under the surface of the land with the intention of permanent an annexation, for example, House walls, Doors,  Fences, etc.
  • Real Property and Personal Property 

In English law, the property has been divided into the real and personal property. This division is identical to a great extent with that of immovable or movable. The division into real and personal is not based on any logical principle but is a result of the course of legal development in England.

  1. Real property – The real property includes all rights over land with such additions and exceptions, as the law has deemed fit.
  2. Personal property – The law of personal property includes all other proprietary rights whether they are in rem or in personam.

2.  Incorporeal Property 

Incorporeal property also called as intellectual or conventional property.  It includes all those valuable interests which are protected by law. Incorporeal property is intangible. It cannot be Perceived by Senses.

Examples –  Patents, Copyrights, Trademarks etc.

Incorporeal property is divided into two classes- 

  • Jura in re propria Over Material things (for example patents, copyrights, trademarks etc)
    • Jura in re Aliena encumbrances, whether over material or immaterial things, for example, Lease, Mortgages and Servitude etc.
  • Rights in re propria in Immaterial Things

Proprietary rights are both in relation to material and immaterial things.

Material things are physical objects and all other things which may be subject matter of a right are immaterial things. They are various immaterial products of human skill and labour. These immaterial forms of property are as follows:

  1. Patents

The subject matter of a patent right is an invention such as the idea of a new process, instrument or manufacture. The person by whose skill labour the invention or a new process or manufacture is introduced’ has the elusive right of patent in it. This is granted to the inventor by the State.

The Indian Patents & Designs Act provides that a person who has registered a patent gets the exclusive right to make use or sell the patented invention for a period of fourteen years, and any person who, whether with or how the knowledge of the existence of the patent right infringes the same be restrained by injunction and if he knowingly infringes the patents, shall be liable also for damages.

  • Copyright

The subject matter of the right is the literary expression of facts or thought. This right may be available to writers, painters, engravers, sculptures, photographers, musical and dramatic personnel for their outstanding work.

When such a person does some creative work by utilising his intellect, skill, and labour, he is entitled to exclusive copyright which is an immaterial form of property. In short, copyright may be literary copyright or artistic copyright or musical and dramatic copyright.

  • Commercial Goodwill

Yet another form of immaterial property is commercial goodwill, trade marks and trade-names. The goodwill of commercial business is a valuable right acquired by the owner by his labour and skill

He has exclusive right of use and profit from the business and anyone who seeks to make use of it by falsely representing to the public that he is himself carrying on the business in question, shall be violating this right.

  • Rights in re aliena (Encumbrances)

Rights in re aliena are also known as encumbrances. Encumbrances are the rights of specific or particular user as distinguished from ownership which is right of general user. Encumbrances prevent the owner from exercising some definite rights with regard to his property.

The main categories of rights in re aliena or encumbrances are-

  1. Lease

A lease is that form of an encumbrance of property vested in one person by a right to the possession and use of it vested in another. Thus it is a transfer of right to the possession and use of property owned by some other person.

  • It is an outcome of the rightful separation of ownership from possession.
  • A lease may either be for a certain specified period or in perpetuity.

It is an encumbrance in which the lessor, ie, the owner of the property transfers his right of possession to the lessee. Thus if I own a house that is let out to a tenant, I have created a lease, i.e. I have detached my possession from my ownership.

I am still the owner of the house but the tenant i.e the lessee has the possession of it and he can use it so long as the lease subsists.

A lease of immovable property is, therefore, a transfer of a right to use and enjoy such property for a certain period, express or implied or in perpetuity in consideration of a 

  • Price paid or promised, or 
    • money, or 
    • share in crops, or 
    • service, or 
    • any other thing of value 
    • to be rendered periodically or on specified occasions to the transferor by the transferee ( lessee) who accepts the transfer on such terms.

The price Is called the premium’ and the money, share or produce or service rendered I called the rent, the transferor called the lesson and the transferee the lessee.

The Transfer of Property Act, 1882 defines a lease as a transaction in which a party owning the asset provides the asset for use over a certain period of time to another for consideration either in the form of periodic rent and/or in the form of down payment.

Since all lease agreements are governed by the Transfer of Property Act, it creates an interest in the property for the lessee for the duration of the lease. The lessee gets protection against eviction, inheritable tenancy rights, and protection against exorbitant rent increase by the landlord.

The landlord, on his part, would lease out his property with the full protection of law to ensure that he gets Vacant and unencumbered possession of the property upon expiry of the agreed term or otherwise as provided under law.

Lease may also defined as a contract between two parties for the hire of a specific asset wherein the lessor retains ownership of the asset while the lessee has the possession and use of the asset on payment of specified rent over a period of time.

A lease gets determined (terminated) on the happening of one of the events referred to in Section 111 of the T.P. Act.

  • The essentials of a lease may be summarised this –
  • The lesson must be a person competent to contract and must have title or authority:
  • The lessee must also be competent to contract since a lease is to be executed by both lessor and the lessee
  • Subject matter of the lease must be immovable property;
  • Transfer of right of possession to use and enjoy such property,
  • Duration of the lease may be express, implied or in perpetuity,
  • Consideration may be in the form of premium, rent or both.
  • Any payment by the lessee that is part of consideration of the lease is rent;
  • The lessee must accept the transfer; and
  • In certain cases, a lease must be made through a registered deed.
  • Generally speaking, a lease is always with respect to immovable property, t. land. The right involved in a lease is also called ‘tenancy, However, in jurisprudential terms a lease has a much wider meaning and may also include tenancy in the land, bailment of movable property, all encumbrances relating to incorporeal property, etc,

In this comprehensive sense, every right that can be possessed can be made the subject of a lease. Thus there can be a lease of copyright patent, right of way etc. In practice, however, lease ordinarily refers to a transfer of possession by the owner (lessor) to the lessee for certain consideration which may be premium or rent.

The Supreme Court in Pramod Kumar Jaiswal v. Bibi Husan Bano observed that lease being a transaction involving immovable property requires the attention of law for it contains issues of public interest. In this case, the Apex Court took a firm stand in protecting the rights of the landlord as against the conventional approach of showing an inclination towards the tenant’s right.

  • Servitude

A servitude is that form of encumbrance which consists in a right to the limited use of the place of land without the possession of it; for example, a right of way, a right to passage of light or water across the adjoining land, right of fishing etc.

A servitude, therefore, is a right to the limited use of a piece of land without ownership or possession thereof. There is no transfer of possession in case of servitude and this distinguishes it from a lease.

If a person secures exclusive possession of a piece of land without getting its ownership, he acquires a lease of that land but if he only acquires a right to use that piece of land without getting its ownership or possession, he acquires a servitude on that land.

Ordinarily, servitude exist with respect to land alone Servitude are of two kinds-

  • Private: A private servitude is vested in a determinate individual as in case of a right of way, of light or support vested in the owner of a piece of land over and adjoining piece of land.
  • Public. A public servitude, on the other hand, is vested in the public at large or some class of indeterminate individuals such as the public right of navigation or fishing public right of way over land in private ownership or right of inhabitants of a village to use certain piece of land for recreation, cremation, etc.

Salmond has further classified servitudes as 

  • Appurtenant: A Servitude appurtenant (it is also called as praedial servitude) is one which is not merely an encumbrance of one piece of land but is also accessory to another piece of land. It is a right of using one piece of land for the benefit of another; as in the case of a right of support for a building. The land which is burdened with such servitude is called the servient tenement and the land which has the benefit of it is called the dominant parent. The servitude runs with each of the tenants into the hands of successive owners and occupiers.The land which is burdened with such servitude is called the servient tenement and the land which has the benefit of it is called the dominant parent. The servitude runs with each of the tenants into the hands of successive owners and occupiers.
  • in gross: A servitude Is said to be in gross when it is not so attached and accessory to any dominant tenement for whose benefit it exists, for example, a public right of way or navigation; or a private right of fishing or mining, etc.
  • Security

A Security is an encumbrance vested in a creditor over the property of his debtor for the purpose of securing the recovery of the debt in other words, it may be said to be a right to retain possession of a chattel unit the debt is paid.

Security on immovable property is called a mortgage’ and on movable property it is called a pledge.

According to Salmond, a security is an encumbrance the purpose of which is to ensure or facilitate the fulfilment or enjoyment of some other right (usually though not necessarily a debt) vested in the same person.

It will not be out of place to distinguish security from a surety. In case of security, a particular res is charged with the debt, but in the case of surety, the person giving surety is under an obligation to pay the debt of another if the latter fails to pay the debt himself.

  • Securities over property are of two kinds:
    • Mortgage

Where immovable property is secured to another for consideration, the transaction is called a mortgage. It is called pledge if the property is movable.

A mortgage is the transfer of interest in specific immovable property for the purpose of securing:

  • the payment of money advanced by way of loan,
    • an existing or future debt, or 
    • the performance of an agreement which may give rise to a pecuniary liability

The transferor is called a mortgagor, and the transferee a mortgagee.

The instrument by which the transfer is effected is called a mortgage-deed.

  • There are six kinds of mortgages.

These mortgages are explained in Section 58 (b) to (6) of the Transfer of Property Act, 1882, which reads as follows:

  1. Simple Mortgage

Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money and agrees, expressly or impliedly, that in the event of his failure to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property sold and the proceeds of the sale to be applied so far may be necessary, in payment of mortgage money, the transaction is called a simple mortgage and the mortgagee as a simple mortgagee.

  • Mortgage by Conditional Sale

Where the mortgagor ostensibly sells the mortgaged property on condition that on default of payment of the mortgage money on a certain date, the sale shall become absolute or on condition that on such payment being made, the sale shall become void, or on condition that on such payment being made, the buyer shall transfer the property to the seller. Such a transaction is called Mortgage by conditional sale.

  • Usufructuary Mortgage

Where mortgagor delivers possession expressly or by implication and binds himself to deliver possession of the mortgaged property to the mortgagee and authorises him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property in view of interest, or in payment of mortgage money, or partly in lieu of interest or partly in payment of mortgage money, the transaction is called an usufructuary mortgage.

  • English Mortgage

Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee but subject to the proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.

  • Mortgage by deposit of title-deeds

Where a person delivers to a creditor or his agent, documents of the title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.

  • Anomalous Mortgage

A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of Section 58 of the Transfer of Property Act, 1882, is called an anomalous mortgage.

B. Lien

A lien is the right to hold property of another person as a security for the performance of an obligation. In other words, lien is a right of one man to retain that which is in his possession belonging to other until certain legitimate demands in respect of the person in possession are satisfied.

Thus a finder of a goods has a right to retain the goods against the owner till he receives from the owner, the compensation for trouble and expenses incurred by him, and also specific reward which the owner may have offered for the return of such goods. The finder is said to have a lien upon the goods so found.

Lien is right to retain possession of goods and does not include right of ownership or sale. 

  • Liens may be of different kinds. 
  • Possessory lien.– A possessory lien consists in the right to retain possession of chattels or other property of the debtor. Examples are pledges of chattels and the lens of inn-keepers and vendors of goods.
  • Agent’s lien– In absence of any contract to the contrary, an agent is entitled to retain goods, papers and other property, whether movable or immovable, of the principal received by him, until the amount due to himself tor commission, disbursement and services in respect of the same has been paid or accounted for to him. This is provided in Section 221 of the Indian Contract.
  • Unpaid Vendor’s lien.-The unpaid seller goods who is in possession of them is entitled to retain possession of them until the payment or tender of the price 
  • Power of forfeiture-The creditor has the power of destroying some adverse right vested in the debtor, eg, landlord’s right of re-entry on his land.
  • Charges.- The creditor has a right to receive payment out of some specific fund from the proceeds of a specific property. A charge may be created by an act of parties and it may also arise by the operation of law. 

In India, ‘charge is a right which in many respects resembles a mortgage but it is a lesser right than a mortgage. Section 100 of the Transfer of Property Act, 1882, defines a charge thus: “where an immovable property of one person is by an act of parties or by operation of law, made security for the payment of money to another and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property–“.

A charge may either be fixed or floating. When a charge pertains to some specific fixed property, it is called ‘fixed charge, but a floating charge is not so fixed; it may become fixed on the happening of some future event.

  • Trust

A trust is an encumbrance in which ownership of property is limited to deal with it for the benefit of some third person. In other words, a trust is an obligation annexed to the ownership of property.

It arises out of confidence reposed in and accepted by the owner. According to Salmond, a trust is ordinarily created for the benefit of unborn persons, infants, minors, lunatics and persons who suffer from some legal disability.

It is also created for the perfection of some disputed property or safeguarding the common interest of real persons. The law relating to trusts is contained in the Indian Trusts Act, 1882.

Thus in case of a trust although the property is legally vested in the trustee, he keeps it for the benefit of the beneficiary.

As regards the importance of trusts, Paton observed that it has proved useful in many ways.

  • Firstly, it has been used by associations as a means whereby their property is used for the desired purpose.
  • Secondly, it has facilitated endowments and gifts for charitable and religious purposes by vesting the property in trustees for purposes as desired by the settler.
  • Thirdly, the trust has great social importance in helping settlement of family property by protecting the interests of young persons and married women.

2. Public property and private property –

Having regard ownership property is either public or private –

  1. Public property– Public property is that owned by the public as such in some governmental capacity. Public property is used as a designation of which are Public Juris and therefore, are considered as being owned by the public. The entire state or the community and not restricted to the domain of private person or that which belongs to a state or political constituents like provinces etc
    1. Private property – The private property is that which is owned by an individual or some other private person.

Modes of Acquisition of Property– 

According to Salmond, there are four kinds of acquisition of property those are possession, prescription, agreement and inheritance.

  1. Possession –

A possession is the objective realization of ownership  Possession means Physical Control over a thing or an object. It is Prima facia evidence of ownership. The property which belongs to no one i.e. Res nullius, belongs to the first possessor of it and he acquires a valid title to it against the world. A property which is already in possession of someone else, when acquired by possession, gives a good title to the possessor against all third persons except the true owner. Even as against the true owner, the possessor is entitled to maintain his possession until evicted in due course by law. In such a case of adverse possession, there are in fact two owners the ownership of one is absolute and perfect, while that of the other is relative and imperfect and often called possessory ownership by reason of its origin possession.

  • 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.
  • If Property belongs to nobody, the person who captures and possesses it has a good title against the whole world. In this way, the birds of the air and the fish of the sea are the property of that person who first catches them.
  • Prescription –

According to Salmond: “Prescription may be defined as the effect of lapse of time in creating and destroying rights; it is the operation of time as a vestitive fact.   

Prescriptions are of two kinds-

  • Positive or Acquisitive Prescription: Positive Prescription means the creation of a right by the lapse of time. For example, right of way is acquired by continued de facto use of it, undisputedly and openly for a period Prescribed by law. Under Indian Easement Act, this period is 20 years.

Negative or Extinctive Prescription.: Negative prescription is the destruction of a right by the lapse of time. Example, the right to sue for non-payment of a debt within a prescribed period is extinguished after the lapse of that Period. In India, limitation Act prescribes three years period for extinction of the right.

  • Agreement – 

Property may also be acquired by agreement which is enforceable by law. The owner of a right can transfer his rights in property to another with or without consideration. If it is for consideration it is called a sale and if it is without consideration it is called a gift. It is one of the important principles of law based on the Maxim “Nemo dat quad habet legime’,  that is no one can convey a better title than he himself has,  as a general rule.

According to Paton, an agreement is an expression by two or more persons communicated each other to the other of a common intention to affect the legal relation between them.

An agreement has four essential elements which are as follows –

  1. There should be two or more parties to an agreement
    1. Mutual consent of the parties
    1. It should be communicated;
    1. There should be common intention to affect the legal relationship
  2. Inheritance

Another method of acquiring property is by means of inheritance. When a person dies certain rights survive him and pass on to his heirs and successors. There are others which die with him. Those rights which survive him are called heritable or inheritable rights. Those rights which do not survive him are called uninheritable rights. Proprietary rights are inheritable as they possess value. Personal rights are not inheritable as they constitute merely his status. However, there are certain exceptions to the general rule. Personal right may not die in case of hereditary titles. Proprietary rights maybe unheritable in the case of lease for the life of lessee only or in case of joint ownership.

Succession of the property of a person may be either tested it or it may be intestate i.e by means of a will or without a will.  If the deceased has made a will, then succession would take place according to the term to the will. But if there is not will, then succession will take place by the operation of law which is known as non-testamentary succession. In case there are no heirs of the deceased, his property shall go to the State.

The Rule Against unjust Enrichment

A person is said to have unjustly enriched himself when he takes or is some economic benefit to himself at the cost of another in contractual or party relations. Adverse possession is the best illustration of unjust itching.

In the English common law, the rule against unjust enrichment was oped as a principle of equity and good conscience in the realm of quasi contract.

Explaining the principle G.W. Paton observed that a person holding title to property is under an equitable duty to restore or convey it to another on the round that he would be unjustly enriched if he were permitted to retain it.

French law also forbids a man to enrich himself at the cost of another. The rule against unjust enrichment is also accepted in the Indian legal stem in order to remove imbalances in economic relations and ensure fair utilization of property as an instrument of social justice.

It seeks to ensure fairness in economic relations. The deletion of property right from Part II of the Constitution and placing it under Article 300-A as a legal right has also been done in the larger interests of social justice adopting a functional conscious approach to the law of property.

Right to Property in India

After the Indian independence when the Constitution of India came into force on 26th January 1950, the right to property was included as a ‘fundamental right’ under Article 19 (1) (t) and Article 31 in Part III, making it an enforceable right.

However, during the first decade of the independence era, it was felt that right to property as a fundamental right was a great impediment in ushering a just socio-economic order and a source of conflict when the State was to acquire private property for public purposes, particularly the expansion of railroad and industries, etc.

In order to get rid of this hurdle, the Supreme Court in the historic Kesavananda Bharti’s case held that right to property is no part of the basic structure of the Constitution and therefore, Parliament can acquire or take away private property of persons for concerning good and in the public interest.

Thereafter, the Parliament passed the Constitution (44th Amendment) Act, 1978 which repealed the right to property enshrined in Article 19 (1) (f) and Article 31 taking it away from the category of fundamental rights and made it as an ordinary legal right to be regulated by other law.

However, the Supreme Court in Bishamber Dayal Chandra Mohan v. State of Uttar Pradesh has made it clear that the executive cannot deprive a person of his right to property without the authority of law.

The State can acquire a person’s property for public purpose on payment of compensation, which need not be necessarily just equivalent of the value of the property so acquired, but such compensation must not be illusory and irrationally disproportionate.

The latest position with regard to property in India is well expressed by the Supreme Court of India in Indian Handicraft Emporium v. Union of India wherein the Court observed that “right to property is a human right as an also constitutional right under Article 300-A, but it is not a fundamental right, It indeed a statutory right but each and every claim to the property would not be property rights


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