Concepts of Property, Ownership and Possession

Meaning in different senses (Salmond):

1. All legal rights of a person, proprietary and personal (this is the widest sense, used by Locke and in the older writers).

2. Proprietary rights only (the right of ownership, and rights in the estate, as distinguished from personal rights, rights of status).

3. Material things that are the subject-matter of proprietary rights (land and chattels).

4. Corporeal property in the sense of material things (land or goods), and incorporeal property (rights such as copyright, patents, debts, shares, goodwill).

Kinds of property:

• Movable and immovable property; real and personal property (English law distinction based on the type of action available).

• Corporeal (tangible) and incorporeal (intangible) property: intangible includes intellectual property (patent, copyright, trademark, design), goodwill and choses in action.

• Private, public, and common property. Public trust doctrine: M.C. Mehta v Kamal Nath (1997): natural resources like the rivers, forests and the seashore are held by the State as a trustee for the public.

Theories of property (important for conceptual and match-the-following questions):

Indian constitutional position on property:

• The right to property (Articles 19(1)(f) and 31) was a fundamental right until the Constitution (Forty-fourth Amendment) Act, 1978 deleted these provisions and inserted Article 300A in Part XII: no person shall be deprived of his property save by authority of law. It is now a constitutional right (not a fundamental right) and a human right (Vidya Devi v State of Himachal Pradesh, 2020).

• Article 31A, 31B and 31C protect agrarian reform and the Directive Principles (Articles 39(b) and (c)); the Ninth Schedule (inserted by the First Amendment, 1951) immunises listed laws, but I.R. Coelho v State of Tamil Nadu (2007) held that laws placed in the Ninth Schedule after 24 April 1973 (the date of Kesavananda Bharati) are open to challenge on the ground of violation of the basic structure or fundamental rights.

• Cases: Kameshwar Singh v State of Bihar (1952); State of West Bengal v Bela Banerjee (1954) (compensation must be a just equivalent); R.C. Cooper (1970) (rejected the argument that the compensation was non-justiciable); Kesavananda Bharati (1973); K.T. Plantation v State of Karnataka (2011) (Article 300A requires public purpose and authority of law, though not necessarily compensation); Jilubhai Nanbhai Khachar v State of Gujarat (1995). The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 replaced the Land Acquisition Act, 1894.

Definitions:

• Austin: a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration over a determinate thing.

• Salmond: ownership, in its most comprehensive signification, denotes the relation between a person and any right that is vested in him. A person's owner is the person in whom the right is vested; ownership of a material thing is the greatest possible interest in it, the entirety of the powers of use and enjoyment, a right in rem.

• Holland: the plenary control over an object.

• Hibbert: ownership is a bundle of rights; a plenary right of dominion over a thing.

• Hohfeld: ownership is a bundle of Hohfeldian relations (claims, privileges, powers, immunities).

• Blackstone: 'that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.'

A.M. Honore's 'Ownership' (1961) gives the modern standard incidents of ownership: (1) the right to possess, (2) the right to use, (3) the right to manage, (4) the right to the income, (5) the right to the capital (the power to alienate, consume or destroy), (6) the right to security (immunity from expropriation), (7) transmissibility, (8) absence of term (indefinite duration), (9) the prohibition of harmful use, (10) liability to execution (for debt), and (11) residuary character (the right to what remains when lesser interests lapse).

Essential characteristics of ownership (Salmond/Austin): it is indeterminate in extent (the owner has all the rights over the thing not given to others), it is residuary (rights left after lesser interests are carved out), it is permanent (it outlasts the owner by inheritance), and it is a right in rem (good against everybody).

Kinds of ownership (Salmond):

• Corporeal and incorporeal ownership: over a material thing and over an intangible right (a patent, a copyright, a debt).

• Sole ownership and co-ownership: two or more persons may own a thing together (joint tenancy with the right of survivorship; tenancy in common with undivided shares; in India, co-ownership in joint Hindu family property, and the Transfer of Property Act).

• Trust and beneficial ownership: the trustee holds legal title while the beneficiary has the equitable (beneficial) interest (Section 3 of the Indian Trusts Act, 1882).

• Legal and equitable ownership.

• Vested and contingent ownership: vested where the title is complete; contingent where it depends on a future event.

• Absolute and limited ownership; ownership limited by encumbrances (leases, easements, mortgages).

Modes of acquisition of ownership (Salmond):

• Original acquisition: by absorption (taking things not owned: occupation, finding, accession), by prescription (the long enjoyment of a right).

• Derivative acquisition: by transfer (alienation by agreement, voluntary), by inheritance (succession on death, involuntary), by execution or bankruptcy (forced transfer).

• Prescription (positive and negative): under Indian law, Section 27 of the Limitation Act, 1963, extinguishes the right to property when the limitation period for suing for possession has expired. Adverse possession: Article 65 of the Schedule to the Limitation Act, 1963 (12 years for private property and 30 years for property of the Government, Article 112). Landmark cases: Karnataka Board of Wakf v Government of India (2004); Hemaji Waghaji Jat v Bhikhabhai Khengarbhai Harijan (2009) (the Court expressed unease with adverse possession); Ravinder Kaur Grewal v Manjit Kaur (2019) (a person claiming adverse possession may use it as a sword as well as a shield, with a plaintiff able to seek a declaration of title).

Modern limitations on ownership: planning and zoning laws, environmental regulations, land ceiling laws, rent control, eminent domain (compulsory acquisition), taxation, and the public trust doctrine.

Meaning: possession is the de facto relationship between a person and a thing, the effective control over a thing with the intention to hold it to the exclusion of others. It is a notoriously elusive concept in law.

Definitions and theories:

• Salmond: possession is the continuing exercise of a claim to the exclusive use of a thing. He distinguishes possession in fact and possession in law.

• Savigny (subjective theory): possession has two elements: corpus possessionis (the physical control, or the power to deal with the thing) and animus domini (animus possidendi) (the intention to hold the thing as an owner, to the exclusion of all others). If there is corpus without animus, the person only has detention (detentio), as in a tenant, servant or bailee who recognises another's ownership.

• Ihering (objective theory): animus is not an independent element; it is merely the intention to deal with the thing as an ordinary man would deal with his own (corpus alone is enough, subject to the law's exceptions). Possession is protected by law as the 'outpost' (outer defence) of ownership, and its protection serves ownership.

• Pollock and Holmes: possession is power to exclude others with the intention to do so. Holmes (The Common Law, 1881): the protection of possession follows from the idea of preventing breaches of the peace and of the person's will; Pollock emphasises effective control. Pollock and Wright's Possession in the Common Law (1888) is the standard work.

• Kant and Hegel: the 'intelligible possession' arises from will and is connected to right and not just to physical control.

Elements in Salmond's view: an intention (animus) and a corpus (a degree of physical power or control).

Kinds of possession:

• Corporeal (possession of things) and incorporeal (possession of rights, such as an easement or a way, sometimes called quasi-possession).

• Mediate and immediate possession: an owner who lets another hold the thing for him (a bailee, a tenant) retains mediate possession, while the bailee has immediate possession.

• Possession in fact and in law (constructive possession).

• Concurrent possession: different persons have possession of the same thing in different ways (a pledgor and pledgee).

• Adverse possession: possession that is hostile to the true owner's title, with the intention to claim ownership.

• Joint and sole possession.

Acquisition of possession: by taking (with or without the consent of the previous possessor), by delivery (actual or constructive), and by operation of law.

Leading cases on possession and finders (frequent MCQs):

• Armory v Delamirie (1722): a chimney-sweep's boy who found a jewel acquired a title good against everybody except the true owner; the jeweller was liable for refusing to return it.

• Bridges v Hawkesworth (1851): a customer who found banknotes on the floor of a shop was entitled to them against the shopkeeper, since the notes were never in the shopkeeper's possession.

• South Staffordshire Water Co v Sharman (1896): the owner of land has a better claim than the finder to things found embedded in the land (the rings found in a pool); the occupier, having a greater degree of control, has possession.

• Hannah v Peel (1945): the finder of a brooch in a requisitioned house was entitled to it against the occupier who had never lived there.

• Parker v British Airways Board (1982): the occupier's superior claim exists only if he manifested an intention to control the premises and things on them; the finder's rights were set out.

• Merry v Green (1841): the buyer of a bureau with a secret drawer who found money in it was guilty of larceny, as the property had not passed to him.

• Indian statutes: Sections 71 and 168 of the Indian Contract Act, 1872 (the finder of goods is a bailee and has a right to retain and to sue for reward only in some conditions); Section 6 of the Specific Relief Act, 1963 (a person dispossessed of immovable property otherwise than in due course of law can recover possession by a summary suit within six months, regardless of title, and no appeal lies from the order); Section 110 of the Indian Evidence Act, 1872 (possession as prima facie proof of ownership), now carried into the Bharatiya Sakshya Adhiniyam, 2023.

Importance of possession: possession is prima facie evidence of ownership (the maxim possession is nine points of law), possession is protected even against the true owner who takes the law into his own hands, a person in possession can sue trespassers, and possession is a root of title for prescription and adverse possession.

Ihering's remark: possession is the outer fortress of ownership. Savigny: possession is a mere fact, but with legal consequences. The two are separate concepts that usually coincide, hence the usual case of an owner in possession; Salmond treats ownership as an ideal and possession as the visible relationship.