DR RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

PROPERTY LAW-I

TOPIC-“OWNERSHIP OF THE PROPERTY IS NOT MERELY A RIGHT BUT ALSO A

RELATION SHIP BETWEEN THE RIGHT OWNED AND THE PERSON OWNING IT”

UNDER THE GUIDANCE OF: SUBMITTED BY:

MR. RADHESHYAM PRASAD PARTH CHOWDHERY

ASSISTANT PROFESSOR (LAW) ROLL NO. 82

DR.RMLNLU. V SEMESTER

B.A.L.L.B(HONS)

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ACKNOWLEDGEMENT

I want to express uncommon much obliged and appreciation to my educator Mr

RADHESHYAM PRASAD who gave me the brilliant chance to finalize this glorious research

subject.

Which helped me pick up a major viewpoint about the Project Topic. All through the

exploration period, I have been guided by my educator at whatever point I confronted any

obstacles or was in a state of daze not having the capacity to resolve the intricacies of the

subject. 

I want to thank my University, Dr. Ram Manohar Lohia National Law University, Lucknow,

for giving me the opportunity to be a part of a novel exploration turned educational program

which without a doubt helps the comprehension of the subject. 

I likewise want to thank my guardians, guides and well-wishers who have been a consistent

underpin and have sufficient energy and again looked into my work and have give their

experiences on the matter.

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INDEX

INTRODUCTION……………………………………………………………………………4

DEFINITION OF OWNERSHIP……………………………………………….…………...4

DIFFERENT KINDS OF OWNERSHIP……………………………………….……….…..6

DIFFERENCE BETWEEN TRUST AMD BENEFICIAL OWNERSHIP………………….8

TYPE OF CO-OWNERSHIP……………………………………………………….………11

CONCLUSION……………………………………………………………………………..13

BIBLIOGRAPHY……………………………………..……………………………………14

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INTRODUCTION:

Ownership is a complex juristic concept which has its origin in the Ancient Roman Law. In

Roman law ownership and possession were respectively termed as ‘dominium’ and

‘possessio’. The term dominium denotes absolute right to a thing while possessio implied

only physical control over it. They gave more importance to ownership because in their

opinion it is more important to have absolute right over a thing than to have physical control

over it.

In English law the concept of ownership developed much later than possession. The earlier

law gave importance to possession on the misconception that possession includes within its

ownership as well. Holdsworth observed that the English law accepted the concept of

ownership as an absolute right through gradual the gradual development in the law of

possession.

The concept of ownership consists of a number of claims such as liberty, power and

immunity in regard to the thing owned. Ownership is thus a sum-total of possession,

disposition and destruction which includes the right to enjoy property by the owner. The

owner has to side by side abide by the rules and regulation of the country.

DEFINITION OF OWNERSHIP:

Austin’s definition:

Austin while defining ownership has focused on the three main attributes of ownership,

namely, indefinite user, unrestricted disposition and unlimited duration which may be

analysed in detail.

1. Indefinite User:

By the right of indefinite user Austin means that the owner of the thing is free to use or

misuse the thing in a way he likes. The pawner of a land may use it for walking, for building

house or for gardening and so forth. However Austin was cautious enough to use the term

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“indefinite”. He did not use the thing owned infamy way he likes. His use if the thing is

conditioned by requirements or restrictions imposed by the law. The owned must not use the

things owned as to injure the right of others. The principle is the foundation of the well

known maxim ‘sie utere tero ut alierum non laedas’ the meaning of the maxims is that to use

your own property s not to injure your neighbour’s right. Again the use of property may be

restricted voluntarily e.g. town planning act, slum clearance act, 1955 etc.

2. Unrestricted Disposition:

What Austin implies by unrestricted disposition is that the power of disposition of the pawner

is unhampered by law meaning thereby that he is absolutely free to dispose it to remove it to

anyone This is incorrect. In case of lease of thousand years, servitudes and restricted,

covenants, plenary control of a property is not possible. Moreover, in the law of the some of

the western countries there is rule re relegitima portis which means that the person cannot

dispose of his entire property. He has to keep a certain portion of the property for the

members of his family. Under mohamdan law a similar rule prevails namely a person cannot

dispose and delaying creditors would be set aside. As under Hindu law government by

mitakashara law can’t alienate ancestral immovable property without the consent of other co

perceners except for legal necessity.

3. Unlimited Duration:

It is incorrect since almost under every legal system the state possesses the power to take over

the property of any person in public interest.

The abolition of Zamindari system India , the abolition of privy purses, nationalization of

Bank etc. are some example of the fact that the ownership can be cut short by the state for

public purpose and its duration is not unlimited.

DIFFERENT KINDS OF OWNERSHIP:

Experience shows that there are many kinds of ownership and some of them are :

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CORPOREAL AND INCORPOREAL OWNERSHIP:

Corporeal ownership is the ownership of a material object and incorporeal ownership is the

ownership of a right. Ownership of a house, a table or a machine is corporeal ownership.

Ownership of a copyright, a patent or a trademark is incorporeal ownership. The distinction

between corporeal and incorporeal ownership is connected with the distinction between

corporeal and incorporeal things. Incorporeal ownership is described as ownership over

tangible things. Corporeal things are those which can be perceived and felt by the senses and

which are intangible. Incorporeal ownership includes ownership over intellectual objects and

encumbrances.

Ownership of corporeal property:

Salmond defines the right of ownership of a material thing as the general, permanent and

inheritable right of user of the thing.

In the first place, the ownership of a material object is a right to the general or aggregate use

of the thing. The owner of a material object is entitled to its use except in so far as it is

restricted by natural limits or restrictions arising from the effect of encumbrances.

In the second place, the right of ownership is a permanent right existing so long as the

material thing is in existence.

Lastly, the ownership of a material object is inheritable and the right survives after his death

TRUST AND BENEFICIAL OWNERSHIP:

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned

by two persons at the same time. The relation between the two owners is such that one of

them is under an obligation to use his ownership for the benefit of the other. The ownership is

called beneficial ownership. The ownership of a trustee is nominal and not real, but in the eye

of law the trustee represents his beneficiary. In a trust, the relationship between the two

owners is such that one of them is under an obligation to use his ownership for the benefit of

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the other. The former is called the trustee and his ownership is trust ownership. The latter is

called the beneficiary and his ownership is called beneficial ownership. The ownership of a

trustee is in fact nominal and not real although in the eye of law, he represents his

beneficiary.

A trustee has no right of enjoyment of the trust property. His ownership is only a matter of

form and not of substance. It is nominal and not real. In the eye of law, a trustee is not a mere

agent but an owner. He is the person to whom the property of someone else is fictitiously

given by law. The trustee has to use his power for the benefit of the beneficiary who is the

real owner. As between the trustee and the beneficiary, the property belongs to the

beneficiary and not the trustee.

Example:

Trust ownership- A has certain property. He makes a declaration of trust in favor of a group

of poor students-B. A appoints C as his trustee to maintain the trust property.Here A is the

direct owner. Until the trust is formed. As soon as the trust is formed, his direct ownership

disappears. C-the trustee is placed in position of direct ownership. B are the real owners.

Purpose: a trust is an obligation annexed to ownership of property, and arising out of a

confidence resposed in and accepted by him, for the benefit of another.

Benificial ownership-B is put in beneficial ownership. If A after some time leases and

conveys the property in favor of B. then the beneficial ownership of B vanished, and the

direct ownership exists in him.

Purpose: as the beneficiaries are unable to maintain the properties, this peculiar fictitious

arrangement is made by the law. Such beneficiaries are:

(1) unborn persons;

(2) incapacity persons, viz. infants, lunatics, diseased, etc;

(3) when the number of co-owners is increased;

(4) when any disputes regarding the property aeries between the owners due to their

conflicting interests.

DIFFERENCE BETWEEN TRUST AND BENEFICIAL

OWNERSHIP:

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1. Trustee is only a nominal owner. He is a mere agent. However, in legal theory, he is

also deemed to be owner upon the property fictitiously attributed by the law whereas

Beneficiary is the real owner.

2. From the point of view of the trustee, the trust is an equitable obligation on the trustee

to use his ownership for the benefit of another, viz. the beneficial. From the point of

view of the beneficiary or the cestui que trust, it is the equitable beneficial ownership

of property of which another viz. The trustee has the bare ownership.

3. Trust ownership is also called as “bare ownership”. He is the full legal owner of the

property. The beneficial owner has only equitable obligation attached to beneficial

enjoyment of the property.

Legal and Equitable Ownership

Legal ownership is that which has its origin in the rules of common law and equitable

ownership is that which proceeds from the rules of equity. In many cases, equity recognizes

ownership where law does not recognize ownership owing to some legal defect. Legal rights

may be enforced in rem but equitable rights are enforced in personam as equity acts in

personam. One person may be the legal owner and another person the equitable owner of the

same thing or right at the same time.

The equitable ownership of a legal right is different from the ownership of an equitable right.

The ownership of an equitable mortgage is different from the equitable ownership of a legal

mortgage.

Difference between legal and equitable ownership:

1. The concept of legal ownership has arisen from the rules of common law and the

concept of equitable ownership has arisen from the rules of equity.

2. Illustration: Xhas given loan to Y, who executed a promissory note in favor of X. X

is the legal owner of loan. Whereas Y is the equitable owner of the debt..

3. Legal ownership is certain whereas Equitable ownership is uncertain.

4. Where these two rights conflict, legal ownership prevails whereas in equitable

ownership when these two rights conflict with each other equitable ownership

becomes weaker than legal ownership.

5. A legal mortgage of land must be created by deed. An equitable mortgage may be

created by a written agreement or by a deposit of title-deeds in equitable ownership.

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There is no distinction between legal and equitable estates in India. Under the Indian Trusts

Act, a trustee is the legal owner of the trust property and the beneficiary has no direct interest

in the trust property itself. However, he has a right against the trustees to compel them to

carry out the provisions of the trust.

Vested and Contingent Ownership

Section19 of the Act provides that where, on a transfer of property, an interest therein is

created in favor of a person, without specifying the time when it is to take effect, or in terms

specifying that it is to take effect forthwith or on the happening of an event which must

happen, such interest is vested, unless a contrary intention appears in the terms of the transfer.

Ownership is either vested or contingent. It is vested ownership when the title of the owner is

already perfect. It is contingent ownership when the title of the owner is yet imperfect but is

capable of becoming perfect on the fulfillment of some condition. In the case of vested

ownership, ownership is absolute. In the case of contingent ownership it is conditional.

Difference between Vested and Contingent ownership:

Vested Ownership:

Meaning:

1. An estate is said to be vested in ownership when it gives a present right to the

immediate possession and ownership of the property. While an estate which gives a

present right to the further possession of property is said to be “vested interest”.

Wheras in Contingent is that which awaits or depends on the happening of an event.

2. In a vested interest, the transferee’s is already perfect. In a contingent interest, the title

is not yet perfect. But it may become perfect. If happen certain condition annexed to

the deed.

3. The transferee owns the right absolutely. The transferee owns it merely conditionally.

4. The vested interest is heritable. The contingent interest is not heritable.

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5. A vested interest is not defeated by the death of the transferee before the obtains

possession. The property passes to his heirs. A contingent interest is defeated by the

death of the transferee before he obtains possession.

6. When an interest is vested, the transfer is complete and the transferee acquires all

rights of a full owner. When an interest is contingent, the transfer is not complete.

7. Fulfillment of condition: It does not depend upon the fulfillment of any condition. It

creates an immediate right through the enjoyment may be postponed to a future date.

It is solely depended upon the fulfillment of the condition so that if the condition is

not fulfilled, the property would not be passed.

8. The ownership is absolute. The ownership is merely conditional.

9. The investiture fact from which a person derives the right is complete. The investiture

fact from which a person derives the right is incomplete.

Sole Ownership and Co-ownership:

Ordinarily, a right is owned by one person only at a time. However, duplicate or co-

ownership is as much possible as sole ownership. When the ownership is vested in a single

person, it is called sole ownership; when it is vested in two or more persons at the same time,

it is called co-ownership, of which co-ownership is a species. For example, the members of a

partnership firm are co-owners of the partnership property. By combining two or more sole

ownerships, a co-ownership may be formed. Co-ownership may be dissolved and may form

two or more sole ownerships by a process of partition.Under the Indian law, a co-owner is

entitled to three essential rights, namely

1. Right to possession

2. Right to enjoy the property

3. Right to dispose of

Therefore, if a co-owner is deprived of property, he has right to be put back in possession.

Such co-owner has interest in every portion of the property and has a right irrespective of his

quantity of share to be in possession jointly with other co-owners.

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TYPES OF CO-OWNERSHIPS:

Tenant-in-common

When the form of co-ownership is not specifically stated, by default, a tenancyin-common

exists. Each tenant-in-common has a separate fractional interest in the entire property.

Although each tenant-in-common has a separate interest in the property, each may possess

and use the whole property. Tenants-in-common may hold unequal interests in a property but

the interests held by each are fractional interests in the entire property. Each tenant-in-

common may transfer his interest in the property. Tenants-in-common do not have the right

of survivorship. Therefore, on the death of one tenant-in-common, his interest passes through

a Will or through the laws of intestacy to another person who will then become a tenant-in-

common with the surviving co-owners.

Joint tenancy

This entails the right of survivorship. On the death of one joint tenant, his interest passes on

to the surviving joint tenants and not to the decedent's estate. Joint tenants hold a single

unified interest in the entire property. Each joint tenant must have equal shares in the

property. Each joint tenant may occupy the entire property subject only to the rights of the

other joint tenants. Joint tenancy has several requirements that must be met in order to be

properly created. For a joint tenancy to be created, specific clauses must be included in the

conveyance such as 'the grantees take the property jointly', 'as joint tenants', 'in joint tenancy',

'to them and their survivor' etc. The clauses in the instrument should show it was clearly

intended to create an estate in joint tenancy.

When Is A Co-Owner Legally Competent To Make A Transfer?

Section 7 of the Transfer of Property Act, 1882 provides that every person competent to

contract i.e. a major and of sound mind or is not disqualified by law for contracting.

Therefore even the interest of a co-owner or co-sharer can be sold, mortgaged, leased to

another co-sharer or to a stranger. The fact that the partition has not taken place by metes and

bounds , does not stand in the way of the interest of a co-owner.1

1 Section 7 of the Transfer of Property Act, 1882

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According to the law prevailing in some areas, a coparcener of a Hindu Joint Family can

alienate his share in the Joint Family Property for consideration. Such a coparcener is a

legally competent person. But in some cases of Mitakshara coparcenary, the consent of other

coparceners is required before any such transfer.

Also, where one co-owner is in exclusive possession of a plot of a joint land and lets it out to

a tenant without the consent of other co-sharer landlords, such a tenancy will not bind the

latter. The lease in such a case will only be confined to the interest and share of the lessor.

In Baldev Singh v. Darshani Devi 2it was held by the Court that a co-owner who is not in

actual physical possession over a parcel of land cannot transfer a valid title of that portion of

the property. The remedy available to the transferee would be to get a share out from the

property allotted after the partition or to get a decree for joint possession or can claim

compensation from the co-owner.

Absolute and limited ownership

An absolute owner is the one in whom are vested all the rights over a thing to the exclusion

of all. When all the rights of ownership, i.e. possession, enjoyment and disposal are vested in

a person without any restriction, the ownership is absolute. But when there are restrictions as

to user, duration or disposal, the ownership will be called a limited ownership. For example,

prior to the enactment of the Hindu Succession Act, 1956, a woman had only a limited

ownership over the estate because she held the property only for her life and after her death;

the property passed on to the last heir or last holder of the property.

CONCLUSION:

Property is the highest form of right in a thing and it is the proprietary right over a thing that

makes it unique and provides the holder with the characteristics of durability, alienability,

2 AIR 1993 HP 141

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and above all the exigibility over the thing, which binds the entire world without their notice.

As the topic of the project says that property is not merely a right but also comprise

relationship between the right owned and the person owning it.

The aforementioned relationship is one important aspect of property rights, which not only

creates obligation against the world but also provides guarantee, which every property right

holder requires. The purpose of ownership would never have been served had the sacred

relationship between the right and the right holder is not protected.

The early concept of property was different and there were fewer restraints placed upon the

right-holder. Austinian concept places property in a position where the owner can use or

misuse it any way or anyhow. He talked about three main attributes of ownership, namely,

indefinite user, unrestricted disposition and unlimited duration. However, this did not help

solve issues arising out of property, especially when the obligations and liabilities of the third

parties. It had become imperative to place certain restrictions or rather clearly define the

boundaries of property rights. This gave rise to numerous forms of ownerships and rights and

obligations.

The change in the concept of ownership gave rise to different types of ownership like

corporeal and incorporeal ownership, vested and contingent ownership, sole-ownership and

co-ownership, legal and equitable ownership etc. These types of ownership have come up to

re-define relationship between rights and rights holder and each type travels different

contours. When we assess these categories, we can trace the development trajectory of

ownership rights and hence, we can emphatically conclude from the above arguments and the

case laws that property is not merely the thing itself but the right over the thing.

BIBLIOGRAPHY

BOOKS:

Dr. V.D.Mahajan,Jurispudence and legal theory (5th edn,2011)

Dr.N.V.Paranjape,Jurisprudence and legal theory(6th edn,2011)

Mr, Vepa P. Sarthi,Law of transfer of property(5th edn,2011)

Mr. Naveen Sharma, Right to property in India(

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Dr. Avtar Singh, Transfer of property Act (3rd edn,2012)

Dr.B.N.Mani Tripathi, Jurisprudence16th edn,2005)

WEBSITES:

http://www.legalserviceindia.com/articles/plaw.htm

http://trnjlaw.com/faqs-types-of-co-ownership-in-real-estate-toms-river-attorney/

http://www.legalservicesindia.com/article/print.php?art_id=1281

http://articles.economictimes.indiatimes.com/2010-10-10/news/27577938_1_joint-

ownership-joint-tenancy-property

http://www.lawteacher.net/free-law-essays/property-trusts/hindu-law-and-the-

transfer-of-property-act-law-essays.php

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