Ownership & various kinds of ownership

Ownership & various kinds of ownership

1. Introduction:                      

Ownership is linked with possession.  Possession is the first stage of ownership. It means for ownership possession is necessary. Possession and ownership both are two sides of the same. Ownership gives the full right over the thing. Ownership is ultimate and final right for disposing the property.  It means to transfer that property in any way.  Ownership is a relationship between the person and the thing. For ownership there must be a thing and the owner of thing.  

2. Views of modern & western jurists about ownership

The western jurists like Austin, Holland and Salmond defined the concept of ownership.

Austin :- According to him ownership is the relationship which exists in between the person and the thing.” .  Austin says that in ownership a person has the following relations with the thing.    

(i)     Indefinite Use :- It means to use that thing in any way whether to use it for agriculture or for industry, residence but there is a restriction that one cannot use one’s property in such a way which destructive in the living of others.

(ii)   Un-restricted power of dispose:- Means to transfer that thing or property according to his choice.  He can sale or to mortgage even to give on lease or gift to anybody. But under art.19(2) of the Constitution reasonable restrictions can be imposed by the Govt., in the interest of public policies.

(iii) Un-limited duration of time :- means the right of transfer of his property will remain always in the name of owner.  After his death it will go to his heirs so there is no time limits.

(iv)  Domination :- It means to have control over the thing.  For this purpose both elements of possession corpus and animus should be there.  If the conditions are there between person and the thing and then the person is owner of that thing.

Holland: He defined the ownership as a plenary control of a person over a thing. The definition also contains the following conditions :-   (i) Possession                   (ii) Enjoyment                          (iii) Disposal.

Salmond :- Salmond defines ownership as a relationship between person and the right.  Right means to have a thing under possession. Thing always represents physical objects. But right always represents a thing which is not in physical existence like copy right and allowances are always thing which is called property. And which are not in physical existence. Salmond has included all those right which are property in the concept of ownership.

3. Kinds of Ownership

There are various kinds of ownership which are as under :-

(i)     Corporal and Incorporeal ownership: Corporeal  and incorporeal ownership also called material and immaterial 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 copyright a patent or a trade mark is incorporeal ownership.

(ii)   Sole and co-ownership:-  The general principal of ownership is that vested in one person only. But sometimes it vested in many persons in other words two or more person have the right of ownership. If only one person have right of ownership that known as sole ownership and where two or more persons have the right of ownership then know as co-ownership.

(iii) Vested and contingent ownership:- 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 ownership is yet imperfect.

(iv)  Absolute and Limited ownership:- means owner is one in whom are vested all the rights over a thing to the exclusion of all or when a person has an absolute right over his property known as absolute ownership.

When there are limitations on the user duration or disposal of rights of ownership the ownership is limited ownership.

      (v)Legal and Equitable ownership:- Legal ownership is that which has its origin in the rules    of common law.  Equitable ownership is that which proceeds from the rules of equity. Legal right may be enforced in rem but equitable rights are enforced in personam.

1.      Modes Of Acquisition Of Ownership:

Following are the different modes of acquisition of ownership:

 

 (i)Original: There are three modes of original acquisition.

(a)    Absolute                         (b) Extinctive                     (iii)Accessory

               (a)Absolute:

Ownership is absolute when the same is acquired over previously ownerless object. The rule is that the first occupier becomes the owner. Absolute ownership can acquired in following two ways:

1)     Occupation                                (2) Specification

1)Occupation:

The physical control of the thing is essential in the case of occupation. Such an ownership is acquired in the case of wild animals, birds, fish etc.

               2)Specification:

In the case of specification, material belonging to one person are given a new shape clay may belong to one person but the sculptor may make a statute out of it.

               (b)Extinctive:

Ownership is extinctive if the ownership of a previous person is finished on account of adverse possession by the acquire.

               (c)Accessory:

It is accessory if the ownership is acquired as a result of accession. If some land is added on account of a change in the course of the river, the same is acquired by the owner of the property adjoining it through the process of accession.

(ii)Derivative:

Ownership may consist in taking the thing form another with or without his consent both are the cases of derivative acquisition since the new owner’ s title is derived  from that of his predecessor.

4. Difference Between Possession And Ownership:

Ownership and possession have the same subject-matter. Following are the differences between these two term.

(i)     Nature:

Possession is the de facto exercise of a claim while ownership is the de jure recognition of that claim.

(ii)   As to Guarantee:

Possession is the guarantee of the facts while ownership is the guarantee of law.

(iii) As to spirit.

Possession without ownership is the body of fact uninformed by the spirit of right. While ownership without possession is right unaccompanied by that environment of fact in which it normally realizes itself.

(iv)  Effect:

Possession is a evidence of ownership while the ownership is not the evidence of possession.

(v)   Effect of Time:

Through the influence of time, possession without title ripens into ownership and ownership without possession withers away and dies.

(vi)  As to conception:

Ownership is concrete is the absolute while possession is the concrete realization of that concept.

(vii)     As to Alienation or destruction of a thing:

The owner may alienate a thing or even destroy it is such a manner that he does not disturb the rights of other people. While a possession has no such rights as regards to the thing possessed.

(viii)   Acquisition:

The transfer of possession is comparatively easier and less technical but the transfer of ownership is most cases involves a technical process of conveyance.

(ix)  Remedies:

For the protection of ownership, proprietary remedies are available while for the protection of possession, possessory remedies are available.

5. Conclusion

               The ownership is a relationship between person and the right. These rights include the right of possession enjoyment and disposal of the property. If all conditions are there then it is called Ownership.