The concept of property has an important place in the life-of human being
because it is impossible to live in this material world without using the
material objects which is the subject matter of property. In broader terms, all
animate or inanimate things which belong to a person are included within the
meaning of the term property.
Concept of Property
The term property may be described as the sum-total of a man's fortune which
includes not only the objects of which he is the owner, but also the value of
any claims which he may have against other persons. However, if we talk in
limited sense, property covers only a person's proprietary rights as opposed to
his personal rights. In another sense, property includes only those rights which
are proprietary rights in rem e.g. patent , copyright. However, a debt or
benefit of a contract is not included within the scope of the term 'property'
According to Salmond:
The substantive civil law can be divided into three major sections, namely, the
law of property, the law of obligations and the law of status. The first deals
with the proprietary rights in rem, the second with proprietary rights in
personam and the third deal with personal or non-proprietary rights, whether in
rem or in personam.
The Supreme Court of India in Guru Dutt Sharma V. State of Bihar,
property as a legal concept and 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 goodwill of a business, which is an intangible
asset. It includes not only immovable and movable object, but also patents,
copyrights, shares, claims etc. According to Salmond, ownership of corporeal
property is general, permanent and inheritable right of user of a thing.
Theories of Property
Natural Law Theory
According to this theory, property was first acquired by occupation of an
ownerless object as a result of individual labour. Blackstone, Locke, Pufendrof
and Grotius supported this theory. Kant also supported this theory in his work
'Philosophy of Law'.
According to Blackstone:
By the law of nature and reason, he who first began to use a thing acquired
therein a kind of transient property that lasted so long as he was using it and
no longer. Sir Henry Maine and Bentham criticized the natural law theory of
According to Maine:
It is erroneous to think that possession gives rise to title for there is no
reasonable ground to support this contention. According to Bentham Property has
not originated by first occupation of an ownerless thing, but it is a creation
of law. He does not believe in the existence of property without the existence
According to this theory, property can be claimed on the exclusive basis of
one's work, which produced that property. This theory recognises the role of
labour for adequate rewards. When a person acquires property, he or she is
entitled to hold it exclusively. These theory further states that, a thing (res)
is the property of the person who produces it or brings it into existence, but
this view was criticised by Laski on the basis that labour does not produce
property, it is only a means to earn property.
The Marxist theory of property is based on predominance of labour in economy of
a country, however, this theory is not significant in modern time because it has
been proved many times that property can be acquired without labour e.g.
inherited property or under a will.
The labour theory of property is also called as the positive theory which was
propounded by Spencer who founded it on the fundamental law of equal freedom of
individual. He asserted that property is the outcome of individual labour, so no
one has a moral right to property which he has not acquired by his personal
Hegel and Kant were the chief exponents of this theory. According to Hegel,
Property is the objective manifestation of the personality of an individual.
It means property is the object on which a person has the liberty to direct his
will. Kant also justified the existence of property and need for its protection.
According to Kant:
The 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 it and considers personal will of the individual more important in the
concept of property.
Henry Maine was the main supporter of the historical theory of the origin of
property. According to him, property originally did not belong to individuals,
not even to isolated families, but to large societies composed on the
According to Roscoe Pound:
the earliest form of property was group property which later disintegrated into
family property and finally the concept of individual property came into
existence. Miraglia, an Italian jurist, also supported this theory of property.
Bentham has supported psychological theory of property and has observed that
property is altogether a conception of mind. It is nothing more than an
expectation to derive certain advantages from the object according to one's
capacity. According to this theory, property came into existence on account of
the acquisitive tendency of human beings.
This theory has been criticised because it is considered to be Maine's
imaginative reconstruction based on Indian village communities and certain local
customs prevalent in ancient Indian villages, so it lacks universal application.
This theory considers property as a social interest for promoting general
security and protection of individual interests in personality, domestic
relations and in subsistence. As observed by Roscoe Pound:
Interests of personality like security of one's physical being, privacy, honour,
reputation, etc, can be realised only through some access to property.
Interests of subsistence include right to property, economic advantages, and
freedom of association and availability of employment-opportunities.
According to Jenks:
The concept of property should not only be confined to private rights, but it
should be considered as a social institution securing maximum interests of the
society. According to Laski, Property is a social fact like any other and it is
the character of social facts to keep on changing. Property, therefore, has
assumed varied aspects and is further liable to changes with the changing norms
of the society.
Kinds of Property
The objects which are capable of becoming property are those over which a person
exercises a right and with reference to which another person owes a duty. These
objects may be:
- Material objects e.g. physical things (res corporales) like house,
horse, car, chair, tree etc.
- Intellectual objects which are artificial things called res incorporales
like patent, trademark, copyright etc.
So, the property is primarily of two kinds, namely corporeal and incorporeal.
Corporeal property is the right of ownership in material things whereas
incorporeal property is any other proprietary right in rem, e.g. patent right,
right of way. Corporeal property is always visible and tangible while
incorporeal property is not. Both are, however, valuable rights in as much as
they are legal rights recognised and enforced by law. Corporeal property is of
two kinds, namely, movable and immovable.
Incorporeal property can divided into two kinds, namely:
Rights in Re Propria in Immaterial Things
- Jura in re propria over immaterial things e.g. patents, copyright, trademark
- Jura in re aliena (encumbrances), whether, over material or immaterial things
e.g. lease, mortgage and servitude.
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.
Some of the immaterial forms of
property are as follows:
This right is available to writers, painters, engravers, photographers,
sculptures and dramatic personnel for their outstanding work. The subject-matter
of the right is the literary expression of facts or thought.
When a particular person does some creative work by utilizing his or her
intellect, skill and labour, then that person is entitled to exclusive copyright
which is an immaterial form of property.
Inventions like the idea of a new process, instrument or manufacture is the
subject-matter of a patent right. The person by whose skill or labour the
invention or a new process or manufacture is 'introduced' has the exclusive
right of patent in it. This is granted to the inventor by the State.
Another kind of immaterial property is commercial} goodwill, trademarks and
trade names. The goodwill of commercial business is a valuable right acquired by
the owner by his labour and skill.
Rights in Re Aliena (Encumbrances)
Rights in re aliena are also called encumbrances, which are the rights of
specific or particular user as distinguished from ownership which is right of a
general user. Encumbrances prevent the owner from exercising some definite
rights with regard to his property.
Some of the important types of rights in re aliena or encumbrances are as follows:
A lease is that form of encumbrance of property vested in one person by a right
to the possession and use of it is vested in another. So it is the transfer of
right to the possession and use of property owned by some other person. It is
the result of separation of ownership from possession.
A lease may be either for a certain specified period or in perpetuity. In this
encumbrance the lessor (owner of the property) transfers his right of possession
to the lessee. A lease may be terminated on the happening of one of the events
referred to in Section 111 of the Transfer of Property Act, 1882. Lease may be
defined as a contract between two parties for the hire of a specific asset where
in the lessor retains the ownership of the asset while the lessee has the
possession and use of the asset on payment of the specified rent over a period
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. It is basically a
right to retain possession of a chattel until the debt is paid. Security on
immovable property is called a 'mortgage' and on movable property it is called a
According to Salmond:
A security is an encumbrance the purpose of which is to ensure or facilitate the
fulfillment or enjoyment of some other right vested in the same person.
A mortgage is the transfer of interest in
specific immovable property for the purpose of securing:
- An existing or a future debt, or
- the payment of money advanced by way of loan,
- the performance of an agreement which may give rise to pecuniary
The 'transferor' is called a 'mortgagor' and the 'transferee' is called a
'mortgagee'. The instrument by which transfer is affected is called a
There are six kinds mortgage, namely:
simple mortgage, mortgage by conditional sale, English mortgage, usufructuary
mortgage, equitable mortgage and anomalous mortgage.
Modes of Acquisition of Property
Possession is the objective realisation of ownership. Possession is the
prima-facie evidence of ownership. The property which belongs to no one, (res
nullius), belongs to the first possessor of it and he acquires a valid title to
it as against the world. This mode of acquisition has been called as occupatio
in Roman law. A property 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.
It may be defined as the effect of lapse of time in the creation and extinction
of a legal right. It has two aspects, namely, positive or acquisitive and
negative or extinctive. The creation of a right by the lapse of time is called
the positive or acquisitive prescription, whereas the extinction of a right by
the lapse of time is called extinctive or negative prescription.
Negative prescription is common to law of property and obligations. According
to Salmond, negative or extinctive prescription is of two kinds, namely, perfect
and imperfect. Perfect negative prescription results into destruction of
principal right itself whereas imperfect prescription destroys only an accessory
right of action.
Agreement Property can be acquired by an agreement which is enforceable by law.
According to Paton, Agreement is an expression by two or more persons
communicated to each other, of a common intention to affect the legal relations
The four essential elements of an agreement are as follows:
Agreement is of two kinds, namely, assignment and grant.
- There should be two or more parties to an agreement.
- Mutual consent of the parties.
- It should be communicated.
- There should be common intention to affect the legal relationship.
An assignment transfers the existing rights from one owner to another. Under a
grant, new rights are created by way of encumbrance upon the existing rights of
Agreement may either be formal or informal. Formal agreements are written and
require the formality of registration and attestation of the deed to be
completed before they are effective. Informal agreements are verbal and do not
require any formality.
The right of inheritance is founded on the assumption that property serves as a
best means of social security. Security of food, house and means of living to
the members in a joint family was the most important obligation of the Karta
which barred him from alienating the family property except for legal necessity
and family benefit. This in turn conferred right of inheritance to the
coparceners which included right to be maintained out of family property and to
claim partition as co-owners. The death of the owner of property could result in
two kinds of rights, namely, inheritable and un-inheritable rights.
A right is inheritable if it survives with its owner and it is uninheritable if
it dies with him. Proprietary rights are inheritable and most personal rights
Concept of Ownership
The concept of ownership has its origin in the ancient Roman law. The earlier
legal systems did not made any distinction between ownership and possession,
however, with the changes in civilization the two were considered as separate
and distinct concepts. Under Roman law, ownership and possession are termed as
'dominium' and 'possessio' respectively. The term 'dominium' denotes absolute
right to a thing whereas possessio implies only physical control over it. Romans
gave much importance to ownership rather than possession. The term 'ownership'
was used in English law for the first time in 1583, when it was distinguished
Definitions of Ownership
According to Hibbert:
Ownership includes within it four kinds of rights, namely, right to use a thing,
right to exclude others from using the thing, disposing of the thing, right to
Black's Law Dictionary defined ownership as:
Collection of rights to use and enjoy property, including right to transmit it
According to Austin, ownership is defined:
As a right which avails against
everyone who is subject to the law conferring the right to put thing to user of
indefinite nature. He further states that ownership is right indefinite in
point of user unrestricted in point of disposition and unlimited in point of
According to Salmond:
Ownership, in its most comprehensive signification, denotes the relation between
a person and right that is vested in him, that which a man owns is in all cases
Ownership signifies the relation between the person of inherence and the object
of ownership. It consists in a complex of rights, all of which are rights in rem. Cook has
characterised Salmond's definition of ownership as an 'unnecessary confusion'.
According to Holland:
Ownership is a plenary control over an object. The word
'ownership' can be used to connote three different kinds of powers. In its
primary sense, it denotes control over material objects, in secondary sense
ownership means control over aggregate of rights and in third and widest sense,
ownership implies an aggregate of all those rights vested in a person which he
can use against others.
Characteristics of Ownership
Acquisition of Ownership
- Ownership may be either absolute or restricted, which means it may be
exclusive or limited. It can be limited by operation of law or by
agreements. When a piece of land or any particular thing is owned by more
than one owner, they are called co-owners and the right of each co-owner is
limited to the right of other co-owners.
- An owner is not allowed to use his land or property in a manner that it
is injurious to others, which means right of ownership is not unrestricted.
- The right of ownership can be restricted in time of emergency. For
example, a building or land owned by private individuals can be used for
lodging army personnel during war time.
- Owner's right of disposal of the thing owned may be restricted by the
provisions of law. Any alienation of property made with intent to defeat or
delay the claims of creditors can be set aside.
- The owner has a right to possess the thing which he owns. It is
immaterial, whether, he has actual possession of it or not. For example, an
owner leasing his house to a tenant, where tenant is in actual possession,
but the ownership still remains with the landlord.
- The right to ownership does not end with the death of the owner, instead
it is transferred to his heirs.
- Law does not confer ownership on an unborn child or an insane person
because they are incapable of conceiving the nature and consequences of
- Ownership is residuary in character.
From the point of view of acquisition of ownership, things may be of two kinds,
namely, things over which no one has ownership, they are called res nullius and
their ownership can be acquired by possession. However, there are things which
are already owned by someone, the ownership over them can be acquired by
According to Salmond, ownership can be acquired in two ways, namely, by
operation of law and by reason of some act or event. A person can become the
owner of certain property by the operation of law e.g. the law of intestacy or
bankruptcy. It can also be acquired by reason of an act or event such as taking
or making a thing for the first time. There are three general modes of
acquisition of ownership, namely, absolute, extinctive and accessory.
Ownership is said to be absolute when it is acquired over a thing which
previously belonged to no one, i.e. which are res nullius. It is extinctive if
ownership of a previous person has terminated by reason of adverse possession by
the acquirer, It is said to be accessory if it is acquired as a result of
accession, e.g. owner of an animal has right to its off-springs or the owner of
a tree has the right to the fruits of the tree. Absolute ownership can be
acquired either by 'specification' or 'occupation'.
In case of specification, the material belonging to one person is given a new
shape by another person, e.g. a sculptor making a statue out of clay collected
from other person's land. In case of occupation, physical control of the thing
For example, ownership over birds, fishes in rivers, precious stones and wild
animals etc, can be acquired in this way. In Roman law, the hidden treasure is
equally divided between the finder and owner of the place where it was found
whereas, under English law, it belongs to the 'Crown'.
Types of Ownership
Sole Ownership and Co-Ownership
When the ownership is vested in a single person, it is called 'sole ownership'.
When the ownership is vested in two or more persons at the same time, it is
called 'co-ownership'. For example, the members of a partnership firm are
co-owners of the partnership property. Co-ownership may be of two kinds, namely,
ownership in common and joint ownership.
In case of ownership in common, the right of the deceased passes on to his
successors like other inheritable right however, in case of a joint ownership,
if one of the two joint-owners dies, his right of ownership also dies with him
and the survivor becomes the sole owner by virtue of his right of survivorship.
Under the Indian law, a co-owner is entitled to three essential rights namely,
right to possession, right to enjoy the property and right to dispose of. So, if
a co-owner is deprived of property, he has a right to be put back in possession.
Corporeal and Incorporeal Ownership
The ownership of material objects is called corporeal ownership and the
ownership of a right is called incorporeal ownership. For example, the ownership
of a land, car, table house etc., is a corporeal ownership and the ownership of
a copyright, trademark, patent, right of way etc is incorporeal ownership.
Corporeal things are tangible, i.e., which can be perceived and felt by the
senses whereas incorporeal things are intangible and cannot be felt and
perceived by senses.
Legal and Equitable Ownership
Legal ownership is that which has its origin in the rules of common law whereas
equitable ownership proceeds from the rules of equity. In many cases, equity
recognises ownership where law does not so recognise it owing to some legal flaw
According to the observation of Keeton:
Equitable ownership always pre-supposes
the existence of a legal ownership, the legal owner being restrained by the
rules of equity from using his legal ownership to the detriment of the equitable
owner. Conversely, a legal ownership does not necessarily imply the existence
of an equitable owner.
Trust Ownership and Beneficial Ownership
In trust ownership, a property is owned by two persons at the same time. The
relation between them is such that one of them is under an obligation to use his
ownership for the benefit of the other. The former is called the trustee and his
ownership is trust ownership, while the latter is called beneficiary and his
ownership is beneficial ownership.
The ownership of the trustee is a matter of form rather than of substance, it is
nominal rather than real because he is deprived of any right to the beneficial
enjoyment of trust property.
According to Salmond, The purpose of trust ownership is to protect the rights
and interests of persons who for any reason are unable to protect them
effectively for themselves. The origin of the trust ownership can be traced
back to the law of equity in England.
Vested and Contingent Ownership
Ownership may be either vested or contingent. In vested ownership the title of
the owner is already perfect, while in contingent ownership his title is as yet
imperfect, but it is capable of becoming perfect on the fulfillment of some
conditions. In the former, the ownership is absolute, in the latter, it is
The term 'duplicate ownership' is sometimes used in cases where two or more
persons have an interest in the same property.
For example, in case of a trust there are two owners, namely, the legal owner
(trustee) and the beneficial owner (beneficiary). Both of them have an interest
in the trust property, so the ownership may be called as 'duplicate ownership'.
Absolute and Limited Ownership
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 is known
as 'limited ownership'.
Concept of Possession
Possession is the evidence of ownership. There is a presumption that the
possessor of a thing is the owner of it and the other claimants to have it must
prove their title. The finder of a thing has a good title to it if he is in
possession of that thing. Even a person, who wrongfully possesses a property,
has a good title against the world at large except the true owner.
Possession is the most basic relation between human beings and things.
Possession of material things is necessary to life because the existence of
human life and human society is not possible without the consumption and use of
material things. Besides being a prima-facie evidence of ownership, it is also
one of the modes of transferring ownership.
Salmond observed that:
The concept of possession is as difficult to define as it is essential to
According to him, it is the most basic relationship
between men and things. Paton, however, expressed a view that English judges
have been reluctant to lay down any logical and exhaustive definition of
possession and preferred to dispose of particular cases so as to ensure justice
in every case.
As stated by Frederick Pollock, a man is said to be in possession of a thing of
which he has the apparent control or from the use of which he has apparent power
of excluding others.
Views of Jurists on Possession
According to Salmond:
The possession of a material object is the continuing
exercise of a claim to the exclusive use of it. Thus possession involves two
things, namely, claim of exclusive user and conscious or actual exercise of this
claim i.e. physical control over it. The former is mental element called as
animus possession is and the latter is physical element known as the 'corpus possidendi'.
According to Zachariae:
Possession is a relation between a person and a thing which indicates that the
person has an intention to possess that thing and has the capacity of disposing
According to Sir William Markby:
possession is defined as The determination to exercise physical control over a
thing on one's own behalf coupled with the capacity of doing so.
According to Ihering:
The element of animus possidendi is altogether immaterial and cannot serve as a
test of legal possession. The legal possession, therefore, does not depend on
the nature of the intention, but the manner or character in which the claim to
possession is made.
Types of Possession
Various types of possession are as follows
Corporeal Possession and Incorporeal Possession
Corporeal possession is the possession of material things like land, house,
buildings and movables like books etc. In case of corporeal possession, the
corpus consists firstly in confirming exclusion of other's interference and
secondly, in the enjoyment of the thing at will without external interference.
Incorporeal possession means possession of immaterial or intangible things which
we cannot touch, see or perceive. For example, possession of a copy-right or a
trademark or a right of reputation, goodwill etc.
In Roman law, corporeal possession is called as possession corporis and
incorporeal possession is known as possessio juris
. According to some jurists,
possession can only be corporeal and there is nothing like incorporeal
possession because his concept falls short of the requisites of real possession.
It is due to this reason that the Roman law calls incorporeal possession as
quasi-possession. According to Ihering, both forms of possession, namely,
corporeal and incorporeal possession in fact consist in the exercise of a right.
Mediate and Immediate Possession
Mediate possession is the possession of a thing through another person. It is
also known as indirect possession. Salmond points out three categories of
mediate possession, namely, possession acquired through an agent or servant,
possession held through a borrower or hirer to tenant where there, i.e. the
object can be demanded at will, where the property is lent for a fixed period of
time or delivered a security for these payment of a debt.
Immediate possession is also known as 'direct possession'. If the relation
between the possessor and the thing possessed is a direct one, it is called
immediate possession. The English law does not recognise the distinction
between, immediate and mediate possession because at a time one and only one
person can have exclusive possession over a thing.
The doctrine of quasi-possession also known as possessio juris extends to
control which the person exercises over certain advantages, short of ownership,
which may be derived from objects. A right of way or passage over other's land
is an example of quasi-possession.
Constructive possession means having power and intention of retaining control
over property without actual control or actual presence over it. According to
Pollock, Constructive possession is possession in law and not actual possession.
It is a right to recover possession.
For example, the delivery of keys of a building or a warehouse may give rise to
constructive possession of the contents to the transferee of the key.
Keeton, does not recognise this kind of possession because in his view the
delivery of key is more than a symbolical act, witnessing that possession has
Adverse possession implies the possession by a person initially holding the land
on behalf of some other person and subsequently setting up his own claim as a
true owner of that land. If the adverse possession continues peacefully
undisturbed for a prescribed period, the title of the true owner is extinguished
and person in possession becomes the true owner of that land.
Three essential elements for establishing adverse possession are, continuity,
adequate publicity and peaceful and undisturbed possession for a prescribed
Theories of Possession
Savigny's Theory of Possession
Savigny founded this theory of possession on the text of Roman jurist Paul and
emphasised that possession has two basic elements, namely, corpus possessions
and animus domini. By corpus he meant, effective physical control of the thing,
i.e. immediate physical power to exclude any foreign agency's interference by
The animus in possession signified mental element or conscious intention to hold
the object (thing) as owner against all others. Savigny conceived that there can
be no possession without this mental element, i.e. animus.
lhering's Theory of Possession
Ihering's theory of possession is more practical and realistic. He adopted a
sociological approach in explaining the concept of possession in his theory. He
justified protection of possession under Roman law and said, Whenever a person
looked like an owner in relation to a thing, he had possession of it, unless
possession was denied to him by rules of law based on practical convenience.
The element of animus was therefore, merely an intelligent consciousness of the
fact of possession. Thus, Ihering was more practical in approach and did not
insist on presence of animus as an element of possession. He considered animus
only as a supplemental element for possession.
Salmond's Theory of Possession
Salmond denied that conception of possession infact and possession in law are
two different conceptions and said that there is only one conception, which is
possession in fact. He distinguished between possession of physical objects,
which he called 'corporeal possession ' and possession of rights, which he
termed as 'incorporeal possession'.
According to him, corporeal possession is:
the continuing exercise of claim to
the exclusive use of it. He further stated that, animus possidendi is the
intent to exclude others which is analogous to Savigny's animus domini.
Kant's Theory of Possession
According to Emmanuel Kant,:
Men are born free and equal. Freedom of will is the essence of man. Possession
is the embodiment of the will of a man. By taking possession of a thing, a man
incorporates his will and hence his personality in that thing.
As Hegel would have said possession is the objective realisation of free-will.
The will of an individual thus exhibited in possession is entitled to respect
from every other individual.
Holmes' Theory of Possession
According to Holmes, in order to gain possession, a man must stand in a certain
physical relation to the object and to the rest of the world and must have
certain intent. These relations and this intent have been expressed by the term
Corpus and animus which are essential ingredients of possession. He supported
the Savigny's theory of possession and held that both corpus and animus are
necessary to constitute possession.
Holland's Theory of Possession
Holland's theory of possession is founded on presentation of peace in society.
According to him, the predominant motive that has induced the law to give
protection to possession was probably a concern for the preservation of peace.
Possession connotes respect for rightful claim of a person.
Pollock's Theory of Possession
Frederick Pollock laid emphasis on defacto control rather than on animus in his
theory of possession. According to him, a general intent to keep a thing under
one's physical control would suffice to constitute possession. The person in
possession of a thing should not only have a physical power over it, but also
the ability to exclude others. But this theory fails in case of possession of a
thing by a child who has no physical power to exclude those who are stronger
Modes of Acquisitions of Possession Taking
Taking means acquisition of possession without the consent of the original
owner. It may be either rightful or wrongful. It is not mandatory that the thing
taken in possession must be already in possession of any previous owner. The
taking is original when the object taken has no owner e.g. when a man catches a
wild animal or bird etc. When the possession of a thing which already has a
previous owner is taken, it is derivative taking. Derivative taking may be
rightful or wrongful.
According to Keeton, Where an inn-keeper seizes the goods of his guest, who has
failed to pay his bill, there is an acquisition of possession against the will
of the previous possessor, but it is rightful taking of possession. But when a
thief steals a gold ring, it is still an acquisition of possession against the
will of the previous owner, but it is wrongful.
When a person acquires possession with the consent or co-operation of the
previous owner, it is known as acquisition of possession by delivery. Delivery
is of two types, namely, actual and constructive. Actual delivery is the
transfer of immediate possession. It involves transfer of a thing from the hands
of one possessor to another, e.g. Sale.
In constructive delivery, there is no change in the position of immediate
possession. There is only transfer of mediate possession. Constructive delivery
is of three kinds, namely, Traditio Symbolica, Traditio Longa and Traditio Brevi.
Operation of Law
Possession may be obtained by operation of law, e.g. if a person dies, the
possession of his property is transferred to his successors and legal heirs. The
long, continuous and uninterrupted adverse possession for a period of twelve
years extinguishes the claim of title of the true owner and adversary's adverse
claim is established.
This effect of lapse of time on titles is called 'prescription' which is
acquisitive or positive in respect of the person in whose favour the right is
created and extinctive or negative in respect of the person whose right is lost
Concept of Liability
The rights and duties of individuals are regulated by the provisions of law. Any
kind of breach of these rights and duties is called as wrong. A person who
commits wrong is said to be liable for it. So the liability may be for a
wrongful act or omission. Salmond defines liability as Vinculum Juris, i.e. a
bond of necessity that exists between the wrongdoer and the remedy of the wrong.
A man's liability consists of those things which he must do or suffer because he
has failed to do what he ought to have done. Liability is different from
obligations. In liability the wrongdoer is under a duty to redress the person
According to Austin, liability consists in those things which a wrongdoer must
do or suffer. It is the ultimatum of law and has its source in the supreme will
of the State. Liability arises from a breach of duty which may be in the form of
an act or omission. Austin prefers to call liability as 'imputability'.
Distinction between Civil and Criminal Liability
Civil liability consists in enforcement of the right of the plaintiff against
the defendant in civil proceedings whereas in the case of penal or criminal
liability, the purpose of law is to punish the offender or wrongdoer. Civil
liability may either be remedial or penal, but criminal liability is necessarily
The liability of the debtor to repay the debt money is remedial while that of a
publisher of libel to pay damages to the person injured is civil, but if
criminal proceedings are initiated against him under Sections 499/500 of Indian
Penal Code (IPC), then it shall be penal as he may be punished with
Liability may be civil or criminal according to the nature of wrong committed by
According to Salmond:
The distinction between criminal and civil wrong is base, not on any difference
in the nature of the right infringed but on a difference in the nature of remedy
applied. The important differences between civil and criminal liability are as
Remedial and Penal Liability
- Civil liability entails damages but criminal liability, results into
- In case of civil liability, it is the act and not the intention, which
is taken into consideration, but in case of criminal liability it is the mens rea
which is the deciding factor.
- Civil liability comes into a picture when a wrong is against a private
individual, but criminal liability arises in case of an offence which is a
wrong against the society.
- The civil liability in case of a civil wrong is determined by civil
proceedings in a civil court, but criminal liability is imposed by criminal
proceedings instituted by the State against the offender.
Liability may be penal or remedial, the former involving the idea of punishment
while the latter consisting in the specific enforcement of the plaintiff's right
without any element of punishment in it. For example, liability to pay a fine is
penal while liability to repay a debt is remedial.
The basis of remedial liability is to be found in the maxim 'ubi jus ibi
' which means where there is a right there must be a remedy. When law
creates a duty, it ensures its fulfillment also. Where there is a breach of
duty, there must be some remedy prescribed by law and enforced by law. The
purpose of remedial liability is ensuring the specific enforcement of plaintiff
right. It aims at protecting the right of the plaintiffs rather than punishing
According to the theory of remedial liability, whenever law creates a duty it
should enforce the fulfillment of such duty. The law imposes remedial liability
on one who fails to perform such duty.
The primary aim of penal liability is either directly indirectly, to punish a
wrongdoer. The basic principle underlying penal liability is contained in the
maxim 'actus non facit reum, nisi mens sit rea, which means that 'act alone
does not amount to crime', unless it is accompanied by guilty mind'. So, two
elements, i.e. act and guilty mind are essential requirements to constitute a
crime. No person can be punished merely because his act resulted into some crime
unless it was accompanied by mens rea or guilty mind.
Conversely, mere presence of mens rea shall not constitute a crime or an offence
unless it is accompanied by some act. Thus act
is the physical element of the
crime and mens rea is its mental element. Generally, a person is held criminally
liable only for those wrongful acts which he does either willfully or
The criminal law exempts certain categories of cases from penal
ability, they are commonly known as defences or general exceptions. They include
mistake of fact, accident, infancy, minority, necessity, self defence,
involuntary intoxication etc. According to Austin, intention and negligence are
the alternative forms in which mens rea can exhibit itself. It is a condition
precedent for the existence of guilt.
Measure of Liability
Primarily the liability is of two types, namely, criminal liability and civil
The measure of criminal liability is mainly based on three major considerations,
namely, motive for commission of the offence, the magnitude of the offence and
the character of the offender.
Motive of the Offence
The motive of the offence is an important factor in determining penal liability
and sentencing of the offender. There may be cases when improper motive may make
an act illegal though it is otherwise a legal act.
For example, where the defendant, a barber started a hair cutting shop,
regardless of any profit for him, but merely to ruin the plaintiff's business.
The defendant was held liable for damages. On the other hand, first offenders,
juveniles and persons who have committed an offence under compelling
circumstances may be leniently dealt with and lesser punishment may serve a
useful purpose in their cases. For example, when a person is compelled to steal
in order to feed his starving children, the law generally considers such
temptation to be an extenuating circumstance for inflicting the punishment.
Magnitude of the Offence
The measure of punishment also varies with the evil consequences of the criminal
act and gravity of the offence. According to Salmond, greater the mischief of
the offence, a proportionately greater punishment is inflicted so as to prevent
its recurrence. He further pointed out that if punishments were not to vary with
the magnitude of the offence, the offenders would choose that act which entails
a lesser form of punishment. Thus, if rape and rape with murder involved the
same punishment the offender would prefer to cause death and avoid detection of
crime rather than committing only rape.
Character of the Offender
The court at the time of awarding punishment to the accused also takes into
consideration his character and antecedents. As stated by Salmond, 'Worse the
character or disposition of offenders, the severe is his, punishment.
this reason, the habitual offenders are generally punished more severely than
the first offenders. The Probation of Offenders Act, 1958 also provides that in
certain cases, if it appears to the court, regard being had to the age,
character, antecedents or physical or mental condition of the accused, that it
is expedient to release the offender on probation of good conduct, the court may
order his release on probation rather than sentencing him.
- The purpose of civil liability is to award compensation to the injured
party. The quantum of damages depends on the actual loss suffered by the
plaintiff. It is important to note that neither the character nor motive of
the defendant is relevant in determining the liability in civil cases.
- Law takes into consideration only the actual consequences that follow a
wrongful act and not the probable or intended ones.
- In certain cases higher damages may be awarded where defendant's conduct
has aggravated the plaintiff's sufferings. In others, higher damages may be
justified in view of the defendant's behaviour. Thus, the court will award
higher damages to a woman plaintiff in a defamation case in comparison to
the male plaintiff because law expects greater respect for woman in the
- Civil liability may arise either from breach of a contract or from
'wrongs independent of a contract'. The damages which are immediate
consequence of the wrong are called 'direct' or 'general' damages while
damages in respect of remote consequences of the wrongful act are known as
'indirect' or 'special damages'.