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Concepts Of Property, Ownership And Possession

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:
  1. 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 incorporeal things.
  2. The term includes not a man’s personal rights, but only his proprietary rights.
  3. The term includes the rights of ownership in material things such as building etc.
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 India 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 Property.
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 encumbrances.

Corporeal and Incorporeal Property

These are the two categories of properties that exist

  1. Corporeal Property has a tangible existence in the world and is related to material things such as land, house, ornaments, silver, etc.
  2. Incorporeal Property is intangible because it’s existence is neither visible nor tangible. Right of easement and copyrights are incorporeal Property

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.

The two categories are discussed as follows:
  1. 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.
  2. 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:
    1. Right of way
    2. Right to collect the rent of immovable Property
    3. Right of ferry
    4. Mortgagor’s right to redeem the mortgage
    5. The interest of the mortgagee in immovable Property
    6. Right of fishery
    7. Right to collect lac from trees

On the other hand, the following are not judicially recognized as immovable Property:

  1. Standing timber
  2. Growing crops
  3. Grass
  4. Royalty
  5. A decree of sale or sale of immovable property on a mortgage
  6. Right of the purchaser to have land registered in the name
  7. Right to recover maintenance allowance even though it is charged through immovable Property
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:
  1. 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.

  2. 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 discussed below:
  1. Real Property means all rights over land recognized by law.
  2. 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

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 intellectual properties.

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 discussed below:

Patent

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.

Trademark

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

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

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

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 brand.

Commercial Goodwill

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

Ownership

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 rights.
  1. Right to use a thing.
  2. Right to exclude others from using the thing.
  3. Right to dispose of the thing.
  4. 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:
  1. Owner can use in many ways or indefinite in point of user.
  2. Owner has right of transfer or unrestricted in point of disposition.
  3. Ownership is permanent or unlimited in point of duration.

Modes of acquisition of ownership: The ownership is acquired in two ways:
  1. 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.

  2. 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:

  1. Corporeal and incorporeal ownership: The ownership over a tangible or material object is called corporeal ownership
  2. Trust and Beneficial ownership: The ownership of a trustee is called trust ownership
  3. 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.
  4. 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.
  5. 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.
  6. 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

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 possession.

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

  1. 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 be continuous.

  2. 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

  1. 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.

  2. 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

  1. By taking.
  2. By delivery.
  3. By operation of law.

Types of Possession

  1. 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.

  2. 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 driver.

  3. 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.

  4. 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.

  5. 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.

  6. 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 of car.

  7. 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.

  8. 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 mutually adverse.

Distinction between Ownership and Possession

  1. It is an absolute right. 1. It is an evidence of ownership.
  2. It is de facto exercise of fact. 2. It is de jure recognition of claim
  3. It is the guarantee of the law. 3. It is the guarantee of the fact.
  4. It is related to a right. 4. It is related to a fact.
  5. It includes possession. 5. It does not include ownership.
  6. It excludes interference. 6. It excludes other except owner.
  7. It developed on possession. 7. It is developed with civilization.
  8. It provides proprietary remedies. 8. It provides possessory remedies.
  9. Its transfer is too technical 9. Its transfer is less technical.

Conclusion:
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.

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