The word property is used in numerous senses in general. If one looks around in
the surroundings, everything available may be categorized as Property. Every
object, whether tangible or intangible having some value to human beings, may be
termed as Property. The essential characteristic of Property is the value
attached to it.
In one way or the other, it is a source of wealth. The value,
although may be either monetary or personal. In a general sense, therefore
Property consists of land, shares, buildings and debts due to another person.
However, the term when used in the legal sense has a definite connotation. It is
the right to enjoy and to dispose of certain things in an absolute manner as one
thinks it fit.
Evolution Of Term Property
The word property
is derived from the Latin word proprietary and the French
equivalent properties, which means a thing owned. The concept of property and
ownership are very similar to each other. However, there is a fine line that
distinguishes the two terms. It will not be incorrect to state that humans have
been aware of their rights to possess what they rightfully own for long. The
term property has been widely interpreted by various jurists such as Salmond, Bentham and Austin.
Close observation of the definitions given by them will help us understand the
concept in a better manner.
Property And Its Definition
Eminent jurist Salmond while defining the term property observed that the term
might be understood in one of the three senses mentioned below:
- The term property includes all the legal rights of a person. That is to
say that it includes complete ownership of a man on material as well as
- The term includes not a man’s personal rights, but only his proprietary
- The term includes the rights of ownership in material things such as
According to another jurist, Bentham, the term property includes
ownership of material objects alone. He has, in a way, interpreted the term in a
narrow sense. According to Austin, Property denotes the greatest right of
enjoyment known to the law, including servitudes. The Property includes both
proprietaries as well as the personal rights of a man.
Interpretation of the word Property by the Apex Court of India
The honourable Supreme Court of India in the case of R.C. Cooper vs. Union of
AIR 1970 SC 564, interpreted the concept of Property in the legal regime.
The court, in this case, observed that the term property includes both corporeal
things such as land, furniture and incorporeal things such as copyrights and
patents. The recent trend of the Apex court, however, has changed. Court has
started viewing Property in the light of Article 21 of the Indian constitution
as liberties exist even reference to the Property owned and possessed.
Kinds of properties
Property is basically of two categories: Corporeal Property and Incorporeal
Corporeal Property is visible and tangible, whereas incorporeal Property is not.
Moreover, corporeal Property is the right of ownership in material things,
whereas incorporeal Property is an incorporeal right in rem. Corporeal Property
is further categorized into Movable and Immovable Property. Incorporeal Property
is classified into two categories: in re propria and rights in re aliena or
Corporeal and Incorporeal Property
These are the two categories of properties that exist
- Corporeal Property has a tangible existence in the world and is related
to material things such as land, house, ornaments, silver, etc.
- Incorporeal Property is intangible because it’s existence is neither
visible nor tangible. Right of easement and copyrights are incorporeal
Movable and Immovable Property
All corporeal Property may either be movable or immovable in nature. The basis
of this kind of classification is the portability of the object.
categories are discussed as follows:
- Section 3 of the
general clauses act, 1897; Section 2(6) of the Indian Registration Act, 1908
defines the term immovable Property. It includes land, things attached and
embedded in the land.
- On the other, movable Property includes any corporeal property which is
not immovable property. It may include furniture, stationery items, etc. The
concept of immovable Property holds greater importance and has elaborately
been dealt with under Indian statutes. The following mentioned are
judicially recognized as immovable Property:
- Right of way
- Right to collect the rent of immovable Property
- Right of ferry
- Mortgagor’s right to redeem the mortgage
- The interest of the mortgagee in immovable Property
- Right of fishery
- Right to collect lac from trees
On the other hand, the following are not judicially recognized as immovable
- Standing timber
- Growing crops
- A decree of sale or sale of immovable property on a mortgage
- Right of the purchaser to have land registered in the name
- Right to recover maintenance allowance even though it is charged through
The above-mentioned lists are not exhaustive and are subject to judicial
interpretations from time to time.
Public Property and Private Property
With reference to the concept of ownership, Property may be classified into
public and private property.
The two kinds are discussed below:
- Public Property is owned by the public as such in some governmental
capacity. In other words, it is owned by the government and used for the
beneficial use of the public in general. A park or a government hospital is
a public property.
- Private Property is that Property which is owned by a particular
individual or some other private person. A residential house of a citizen
may be his private property.
Real and Personal Property
This distinction between real and personal Property basically originated from
Roman law, and it still exists in England.
The two categories of Property are
- Real Property means all rights over land recognized by law.
- Personal Property means all other proprietary rights, whether they are
right in rem or in personam.
Right in re aliena and Right in re propria
Right in re aliena are also sometimes referred to as encumbrances. These are the
rights of a specific user. These prevent the owner from exercising some definite
right in reference to his Property. Lease, security and trust may be included
under this category. Right in re propria are immaterial forms of Property. These
are a product of human skill and labour. Patents, copyrights and commercial
goodwill may be included under this category.
Intellectual Property is, in simpler terms, creation of intellect or wisdom or
of the human mind. It is related to intellectual innovation and innovation in
the literary, scientific and artistic fields. Nations around the world are
making efforts toward protecting intellectual property. One major reason is to
recognize by way of statute, the economic rights of creators of these
Another reason is the urge to promote creativity
amongst the masses which will, in the long run, contribute towards an
environment comprising of only fair trade practices. The law related to
intellectual Property aims at protecting the people who create and own the
intellectual goods and services by granting them certain time-limited rights to
control the use made of those productions. Those rights do not apply to the
physical object in which the creation may be embodied but instead to the
intellectual creation as such.
Kinds of Intellectual Property
Intellectual Property may be classified into various categories. However, a few
of the most widely utilized and owned intellectual properties have been
A patent is a kind of Property that has intellectual worth attached to it. It is
an exclusive right granted for an invention which is a product which is a result
of a person’s ability to of doing something or offers a new technological
solution to a problem. In order to obtain a patent, it is necessary that the
technological information must be disclosed to the public in a patent
application. A patent so obtained remains in force for twenty years.
Another widely popular form of intellectual Property is a trademark. Trademark
is a sign capable of distinguishing goods and services of one enterprise from
another. These are basically a means to protect the unique identity of renowned
brands. It enables a customer to recognize the brand or the product instantly
without being misled. An example of a trademark would be the logos or slogans
used by brands to make their products uniquely identifiable.
Copyright is available to the creators of literary, dramatic, musical, artistic,
producer of cinematograph acts or sound recording. It determines whether and in
what conditions the original work may be used by persons other than the owner of
the unique intellectual property.
Almost every product has copyright. These include the visible symbols on the
product packaging and label etc. Copyrights protect original creative work has
been written down on a piece of paper, saved on electronic storage hard drive
device or preserved in some other tangible format.
Geographical Indicators (GI)
It is an indicator used on products having a specific geographical origin and
possess qualities that exist due to their basic origin. The sign must identify a
product as originating in a given place, and the quality, characteristics or
reputation should be due to the place of origin. Recently, Rasgulla from Orissa
and Kadaknath chicken from Madhya Pradesh has been granted the geographical
indication tag in India.
Industrial design is related to the products which are a part of the industrial
set up. It refers to the shape, configuration, colour or pattern which may be an
ornamental or aesthetic aspect of a product. The owners of a registered
industrial design have a right to prevent third parties from making, selling,
importing articles bearing a design which is a copy. Thereby any person using
someone else’s industrial design may be liable to pay damages to the owner of
the industrial design.
Trade secret in simpler terms implies the strategy adopted by the owner of the
business. It may be any confidential business information which provides an
organization with a complete edge in the world market of the respective product
it deals with. A trade secret is an initial step for an investor. It is
essential that the idea or formula behind the unique trade opportunity remains
secretive. Any person or organization indulging in unauthorized use of trade
secrets is regarded to be guilty of unfair trade practice. For example, the
recipe of any popular noodles brand may be considered as a trade secret of that
Commercial goodwill is a prominent form of incorporeal right. The goodwill of a
commercial business is a valuable right acquired by the owner by his labour and
skill. The owner has the 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.
Thus, it is now clear that the concept of intellectual property is one that
covers within its ambit varied kinds of intangible property rights. Every
product which is a part of the world market encompasses one or more of the kinds
of intellectual property rights discussed above. The concept can be further
understood by considering the illustration of a soft drink brand. The name of
the brand would be its unique trademark. The formula of the soft drink would be
considered as a trade secret, while copyright would comprise of the way the soft
drink is packed. The shape of the bottle or tetra pack of the bottle may either
be a design patent or a trademark.
Concepts Of Ownership And Possession
According to Austin ownership means a right, which avails against everyone who
is subject to the law conferring the right to put thing to user of indefinite
nature. It is right in rem which is available to the owner against the world at
large. It includes ownership over both corporeal and incorporeal things. The
former refers to physical objects and the latter refers to all claims. According
to Hebert ownership is a comprehensive right in rem. It is a bundle of four
- Right to use a thing.
- Right to exclude others from using the thing.
- Right to dispose of the thing.
- Right to destroy the thing.
Holland ownership is a plenary control over a object
. Salmond the relation
between a person and any right that is vested and an object forming the subject
matter of his ownership. Ownership denotes the relation between a person and
right that is vested in him. Nothing can be owned except the right over a thing.
In other words a thing cannot be owned but a right over such thing can be owned.
Therefore owning a right is called ownership:
Modes of acquisition of ownership: The ownership is acquired in two ways:
- Owner can use in many ways or indefinite in point of user.
- Owner has right of transfer or unrestricted in point of disposition.
- Ownership is permanent or unlimited in point of duration.
- Original mode: In this mode the owner acquires the ownership over
the owner less objects. They are called res nullis. Such object belonged to no one. It may
be acquired by means of accession, occupation and specification.
- Derivative mode: In this mode the owner acquires the ownership by
purchasing from the original or previous owner. The purchaser becomes the
owner. It is merely a transfer of existing ownership but not a relation of
the ownership ex buyer derives ownership from seller.
Kinds of ownership:
- Corporeal and incorporeal ownership: The ownership over a tangible or
material object is called corporeal ownership
- Trust and Beneficial ownership: The ownership of a trustee is called
- Legal and Equitable ownership: The ownership which originated from the
rules of common law is called legal ownership. A assigned a debt to B. A is
the legal owner and B becomes an equitable owner.
- Vested and Contingent ownership: The ownership which comes into
existence immediately is called vested ownership. A transfer his property to
B an unmarried daughter for life and to C, an unborn make child. C's
ownership is contingent because C's birth is uncertain.
- Sole and Co-ownership: An exclusive ownership of an individual as
against the whole world is called sole ownership single owner. The ownership
of two or more persons having interest in the same property or thing is
called co ownership.
- Absolute and limited ownership: The ownership which vests all the rights
over a thing to the exclusion of all is called absolute ownership. Ownership
which imposes limitations on user duration or disposal of rights of
ownership is called limited ownership.
Possession means custody or control. The idea of ownership developed slowly with
the growth of civilization. According to Salmomd possession establishes the
relationship between men and the material things. It is a mere fact. According
to Pollock possession is a physical control over a thing. According to Savigny possession
is the physical power of exclusion. Protection of possession is a branch of
protection to the person. Freedom of will is the ground for the protection of
According to Ihering possession is de facto exercise of a claim over
a thing. According to Roman law possession is a prima facie evidence of
ownership. It supports the title of ownership. The possessor of a thing is
presumed to be the owner. Long enjoyment of a property creates ownership. This
is known as prescription hence possession in nine points in law.
Kinds of Possession
- Possession in fact: The actual or physical possession of a thing is
called Possession in fact. Also known as de facto possession. It indicates
physical control of a person over a thing. There may be a physical relation
with the object and the person. That physical relation or control need not
- Possession in law: Possession which is recognized and protected by law
is called Possession in law. It is also known as de jure possession it is a
possession in the eye of law.
Elements of possession
- Animus possidendi: Means intention to possess a thing. It deals
with subjective and mental intention to possess a thing. It deals with
subjective and mental element. It denotes a strong desire to possess a
thing. Here the possessor must have strong intention to possess a thing he
must have an exclusive claim, Animus Possidendi need not be a claim or right
and need not be a own claim and it need not be specified.
- Corpus possessionis: Corpus Possession is means physical
possession of a thing it deals with objective element. According to Savigny
the actual physical control over a thing is called corpus possessionis. The
physical control gives to an assumption that others will not interfere with
it. Possessor must present personally and physically possess. The possession
of a thing extends to accessories too. Possession includes protection and
secrecy of thing.
Acquisition of possession
- By taking.
- By delivery.
- By operation of law.
Types of Possession
- Corporal and incorporeal possession: The possession of a material object
is called corporeal possession. Actual use or control over such material
object is not necessary e.g. possession of car. The Possession of other than
a material object is called incorporeal possession. Actual use and enjoyment
of right is necessary.
- Immediate and Mediate Possession: The direct or primary possession of a
material object is called immediate possession. The possessor holds thing
personally without any intermediary e.g. possession of a car owner.
Indirect or secondary possession of a material object is called mediate
possession the possessor of a material object is called mediate possession.
The possessor holds the thing on behalf of another. E.g. possession of a car
- Representative Possession: The Possession of a thing through an agent or
a servant is called Representative Possession. The representative is not the
real possessor e.g. master's money in the servant pocket.
- Concurrent Possession: Two or more persons may jointly possess a thing
at the same time. This is known as Concurrent possession e.g. B may have
right of way on the A land.
- Derivative Possession: The possession of the holder of a thing is called
Derivative possession. He derives title from the person who entrusts the
thing. e.g. a watch repairer. He need not return the watch until the repair
charges are paid.
- Constructive possession: The possession in law is called constructive
possession. It is not an actual possession. It is a possession in law and
not a possession in fact. Possession of keys of a car implies the possession
- Adverse possession: The possession against every other person having or
claiming to have a right to the possession of that property is called
adverse possession. It is a possession of a thing without the permission of
its real owner. Lessee possession after expiry of lease period.
- Duplicate possession: The possession of a thing by two persons is called
Duplicate possession. The possession of one person is compatible with the
possession of another person. It is possible only when two claims are not
Distinction between Ownership and Possession
- It is an absolute right. 1. It is an evidence of ownership.
- It is de facto exercise of fact. 2. It is de jure recognition of claim
- It is the guarantee of the law. 3. It is the guarantee of the fact.
- It is related to a right. 4. It is related to a fact.
- It includes possession. 5. It does not include ownership.
- It excludes interference. 6. It excludes other except owner.
- It developed on possession. 7. It is developed with civilization.
- It provides proprietary remedies. 8. It provides possessory remedies.
- Its transfer is too technical 9. Its transfer is less technical.
The concept of Property has been in existence since the existence of human
civilization. Over the years, the concept of Property has witnessed a vast
transition. The reason behind this transition may be the jurisprudential aspect
of the concept. Thus, from a piece of brick to an idea behind a product,
Property as a concept has developed in an unanticipated manner. The research
being done in the field of property law makes it a dynamic concept which will
continue to evolve in the years to come in the near future.
Authentication No: JL02089756106026-720