JAMIA MILLIA ISLAMIA

Jurisprudence-II
Concept of Ownership
Imran Ahmad Khan

Roll number 13blw0073

Enrolment number- 13-1750

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1.Introduction to the Concept of Ownership

The concept of ownership is one of the fundamental juristic concepts

common to all systems of law. It is of both legal and social interest in
nature. Not only the Courts utilized the idea in such a way as to give
effect to views of changing individual and social interest, but so great
are it's potentialities that in recent times it has become the focus of
Government policy.
Ownership consists of an innumerable number of claims,
liberties, powers and immunities with regard to the thing
owned. According to some jurist a person owns a house
means he has just those claims in respect of it. According to
them there is no point in having the concept of ownership
without these claims. Though may jurists do not agree with
this view, according to them it is undesirable to have this
concept of ownership only linked with certain claims. It is
also been said that a person may part with the claims etc. to a greater
extent, while retaining the right of ownership. Thus a person who has
ownership over a plot of land against fee simple, may grant the
leasehold of it to another with the result that his ownership is denuded
of most of its content. As long as he has the fee he is 'owner,' which
shows that his right of ownership is distinct from its contents.1
The idea of ownership developed by slow degrees with the growth of
civilization. So long as the people were wandering from place to place
and had no settled place of residence, they had no sense of ownership.
The idea began to grow when they started planting trees, cultivating
land, building their homes. The transition from a pastoral to an
11. It should also be remembered that there are such expressions as limited ownership, but these, as
will appear, refer to special types of interest

agricultrual economy helped the development of the idea of

ownership. People began to think in terms of'mine and
thine2. To begin with no distinction was used to be been made
between ownership and possession. However, with the advancement
of the civilization the distinction became clearer and clearer. This
distinction was made very clearly in Roman law. Two distinct
terms were used to point out the distinction and these were
'dominium'

and

'possessio.'3

Dominium

denoted

the

absolute right to a thing. Possessio implied only physical

control over a thing. The English notion of ownership is
similar to the concept of dominium in Roman law 4.
According to Holdsworth, the English law reached the concept of
ownership as an absolute right through development in the law of
possession.

2. Definitions of Various Thinkers

According to Keeton, "the right of ownership is a conception clearly

easy to understand but difficult to define with exactitude. There are
two main theories with regard to this idea of ownership. The great
exponents of the two viewers are Austin and Salmond.
According to one view, ownership is a relation, which subsists
between a person and a thing, which is the object of ownership.
22.V.D. Mahajan, Legal Theory and Justice, p.324 3.ibid.
4. Jurisprudence the legal theory B.N. Mani Tripathi

According to the second view, ownership is a relation between a

person and a right that is vested with him."4
According to the Austin, "ownership means a right which avails
against everyone who is subject to the law conferring the right to put
thing to user of infinite nature." According to him full ownership is
defined as "a right indefinite in point of user, unrestricted in point of
disposition and unlimited in point of duration." Therefore, it is
right in rem. i.e. against the whole world.
1. According to Austin, the first attribute ownership is that
it is indefinite in point of user because the owner in
whatever way he likes to use may use the thing that owned.
In case of complete ownership it can only be restricted by
means of operation of law. But there are two basic
principles;
a) Use your own property and not to injure your neighbour's.
b) It is not lawful to build something upon your land to the injury of
another. In the case of, Crowhurst v. Amersham Burial Board,
it was held that the burial board is responsible for damages to the
extent of price of the horse which died on account of eating a portion
of a yew tree planted by the burial board on it's own land.
2. The second attribute of the ownership is a right of transfer or
disposition without any restriction. But generally in most of the
legal system there is a reasonable restriction.

44.Supra note.2 at p. 3255. (1878) 4 Ex D 5

3. The third attribute of the ownership is the permanent nature of the

right ownership. According to Austin right extinguishes only
with the destruction of the thing, which is owned.
4. But Austin also says that this right of ownership can be
transferred by way of succession.
Holland is also the follower of same view. According to Holland,
Ownership is a plenary control over object5[6]. The right is limited
only by the rights of the state or of other individual.
According to Hibbert, ownership involves four rights and those are
the rights of using the thing, excluding others from using it,
disposing of the thing, and the destruction of it.6[7]
According to Pollock. "ownership may be described as the entirety
of the powers of use and disposal allowed by law. This implies that
there is some power of disposal, and in modern times we should
hardly be disposed to call a person an owner who had no such power
at all, though we are familiar with 'limited owners' in recent usage.
According to him we must not suppose that all the powers of an
owner need be exercisable at once and immediately; a person may
remain owner though the person has parted with some of them for a
time. In short, the owner of a thing is not necessarily the

56. Holland on Jurisprudence at p.226.7.Supra note.2 at p.327

person who had at a given time has the whole power of use
and disposal; very often there is no such person7[8].
According to the Salmond, Ownership is in its most comprehensive
signification, denotes the relation between a person and that right is
vested in him. That which a man owns is in all cases a right.
According to Salmond to own a piece of land means in
truth to own a particular kind of right in the land, namely
the fee simple of it."8[9] According to him ownership may extend to
all classes of right, whether propriety or personal in rem or in
personam, in re propria or in re aliena.

3. Essentials of ownership

1. It is indefinite in point of user9[10]. It is impossible to

definite or sum up exhaustively the wide variety of ways in which
the thing owned might be used by the person entitled to its
ownership. A person not being the owner may be entitled to
possess or use a thing for a limited period. But in case of an
owner, it is of an intermediate duration. Interest of the owner is
perpetual. Under all mature legal systems, qualifications have
78.Jurisprudence and legal essays, at pp.97-98 9. Salmond, Jurisprudence, P.328.
10.Supra note.2 at 326.

8
9

been imposed on the user of the property. It is now a settled

principle that every owner must not injure others for enjoying
the property.
2. Another important essential of ownership is that it is
unrestricted in point of disposition. The right of
alienation is considered by Austin as a necessary
incident of ownership. An owner can effectively dispose of
his property by way of conveyance during his lifetime or by will
after death. But it is not completely free from restrictions. If it is
found that the aim of this transfer is to defeat the creditors then
it can be restricted.
3. The owner has a right to possess the thing, which he
owns. It is immaterial whether he has actual possession of it or
not. But the essential thing is that he should have the right
possession.
4. An owner may part with several rights in respect of the thing
that is owned by him. In spite of that, he continues to be the
owner of the thing in view the residuary character of ownership.
5. The owner has the right to destroy or alienate the thing he owns.
Now right to destroy is no more an essential.
4. Types of ownership
There are different kinds of ownership; some of them are corporeal
and incorporeal, sole ownership and co-ownership, legal and equitable
ownership, vested and contingent ownership, trust and beneficial
ownership, absolute and limited ownership.

Corporeal and incorporeal ownership: - Corporeal ownership is

the ownership of a material object (e.g. house) and incorporeal
ownership is the ownership of a right (e.g. intellectual property)10[11].
Sole ownership and co-ownership.-When a person owns a
property in one time it is called sole ownership. If the property is
owned by more than one person then it is called joint ownership. By
means of partition one person can have co-ownership converted into
sole ownership.11[12]
Legal and equitable ownership. - Legal ownership is that which
has its origin in the rules of common law and equitable ownership is
that which proceeds from the rule of equity. There are some cases
where equity recognizes ownership where law does not recognize
ownership owing to some legal defect. First right can be enforced in
rem whereas second one is available in person.'12[13]
Vested and contingent ownership.-If the owner of a property is
having perfect title over a future property then that will be called as
property with vested interest. If the owner is having imperfect title
over such future property then that is called as a property with
contingent interest. In the first case the person is having perfect title
over such property while in the second case the person is not having
such title.
1011.Supra note.2 at p.335. Supra note.2 at p.335
13. Jurisprudence by BISWAS

11
12

A spes successionis13[14] or chance of succession is the expectancy of

an heir to succeed to the property of a relation on the latter's death.
In Sashi Kantha v. Pramodechandra14[15], the Calcutta High
Court has pointed out the distinction between this vested and
contingent interest over the property. In this case it was held that
in the vested ownership there is the immediate right of
present enjoyment or a present right of future enjoyment
but if the right of enjoyment is made to depend upon some
event or condition, which may or may not happen then it is
contingent ownership.
Trust and beneficial ownership. - Trust ownership is an instance
of duplicate ownership where two persons own property at the same
time. The relation between the owners is such that one of them is
under an obligation to use his ownership for the benefit of the other.
This ownership is called beneficial ownership.15[16]
Absolute and limited ownership.-An absolute owner is one in
whom are vested all the rights over a thing to the exclusion of all.
When there are limitations on the user, duration or disposal of rights,
of ownership, the ownership is limited ownership.16[17]
1314.Section 6 of Transfer of Property Act, 1882.15. AIR 1932 Cal 600
16.See Legal Theory by Biswas 5th Ed., pp.159-161
17. Ibid.

14
15
16

5. Indian concept of ownership

The scope of the right of swamitva (ownership) of property as
comprising of title to the property with bhukti or bhoga (possession)
or if not in possession the right to be in or to get possession of the
property, as also right for possession with title but with limited rights,
or even with out any right, are covered by specific persons in the
smritis17[18]. According to jurists, ownership is possession
coupled with a legitimate title18[19].
In Bramha Puran19[20] seven modes of acquisition of title are
given.20[21]

There it has been also said that the property

obtained at partition or by inheritance or by royal grant is

recognized as someone's real property. Therefore there is
no dispute about the ownership in this case. It was said
that acquisition of property by illegitimate means did not
confer right of ownership.
17
1818.Rama Jois, Legal and Constitutional History, p.287 . Ibid
20. Ibid
21. By learning, by purchase, by mortgage, by valour (Kshatriyas), through wife, by inheritance, by
succession.

19
20

In ancient time there were two types of ownership, depending upon

the power to sale. These are, a) absolute ownership, b) limited
ownership. In case of absolute ownership they had right to sale the
property because the person has acquired absolute title over it. But in
case of limited ownership, the person on possession of the property
did not have absolute right to sale or dispose of the property, e.g.
mortgage.
In ancient Indian concept the property was considered to be of two
kind, Jangama (movable) and sthavara (immovable). In the laws
relating to the purchase and sale both are considered to be Panya 21[22]
(saleable property). There it was said that a person who is the owner
of a property, whether movable and immovable, is entitled to transfer
his ownership to another person through sale. In ancient time, which
is mostly found in smrithis is that they used to consider sale as a valid
mode of transfer like present time. In smritikara time, only a person
having a proper valid title over the property could transfer it. In
Yagnabalka writings also, it could be found that the shift or sale made
by any person other than is owner is null and void. Those smritikaras
in fact gave more importance to concept of ownership than recent
time.they even said that the gift or pledge made without real
ownership should be rescinded whereas now it is voidable at the
option of the real owner.
Rama Jois has opined that the essential under the ownership
of Hindu law was the title of the property. He states that
through the ancient Hindus considered possession to be
2122. Goods as defined under Section 2(7), in so far is it relates to movable property, and the
meaning of word sale in section 4 of Sale of Goods Act, 1930, carry substantially the same meaning as
meant by panyaand kraya respectively.

one of the important attributes of ownership, they didnt

consider possession to be absolute proof of ownership.
Therefore, for a valid transfer, ownership over that property was
considered the most essential element22[23].
The ancient texts held that when it is established that if a vendor sold
the property without actual ownership then he should restore the
property to the actual owner and should pay the vendee the price
received by him, and shall also pay a fine to the kind 23[24]. In those
ancient texts it was also found that in this regard criminal justice
system was very much in force and thus in all complaints relating to
sale without ownership, it was the duty of the buyer to produce the
vendor before the Court and himself to prove that the purchase made
by him was under a honest and bona fide belief that the property
belonged to the vendor. But at the same time there were
provision, which said that if the person who is claiming his
ownership fails to prove it then he will be liable to be
punished like a thief by the king."
Katyayan24[25] in his writing has said that when the purchase of a
property has been made before a group of merchants and in frontof
the officer of the kind then the person claiming the ownership may get
back the property after paying half the price of the property and the
2223.Supra note.1824. Narada Smriti at p. 145
25. Katyayan Smriti pp.621-623
26. Sacred Books of East, Manu. VII.197, Vol.25th at p.289

23
24

reason given for this was a sort of punishment for the real owner of
the property for not being careful about the property.
Manu25[26] has said that if the offender (who sells the
property without ownership) is a kinsman of the real
owner, he shall be fined six hundred panas. It was said that
if the person is not a kinsman then he should be guilty of
theft.33 Further it has been said in his writing that if a sale
or gift of a property is made without real ownership then it
will be considered to be null and void. He also gave a lot of
importance to the proof of a person's ownership. According
to Manu where the possession is evident, but no title is
perceived, there the title shall be a proof of an ownership.26
[27]

In ancient time the king was considered to be the lord of only land and
not other kind of wealth. In fact king's right was restricted to only onesixth of the income from the land. Thereby that time king only had a
limited ownership over land, real ownership vested with the
individuals on various modes. Though that time the ownership
over land was granted to individuals, the right to minerals
and mining was still in the domain of the kinds. Therefore
the king was having monopoly over mines and mineral.

25
2626. Sacred Books of East, Manu. VII.197, Vol.25th at p.289. Sacred books of east, Manu, VII, 200,
Vol.25th at p.290.
28. Keshavananda Bharathi v. State of Kerala, AIR 1973 SC 1461

Also after the framing of Constitution the growth with regard to the
concept of ownership continued to develop as such. In this respect the
Apex Court of India took some important initiatives. 27[28] In old law
the concept of 'acquisition and 'requisitioning' of property referred to
entry 42, List III, Sch. VII of our Constitution.
The provisions in Articles 299 and 300 were results of considerable
thought and debate. In its report, Joint Parliamentary Committee 28[29]
on Indian Constitutional reform said in its report that an appropriate
provision should be made in order to
"Secure that legislation expropriating or authorizing the
expropriation of the property of particular individuals should be
lawful only if confined to expropriation for public purposes 29[30]" and
if compensation is determined, either in the first instance or in appeal,
by some independent authority. General legislation, on the other
hand, the effect of which would be to transfer to public ownership
some particular class of property, or to extinguish or modify the rights
of individual in it ought, we think, to require the previous sanction of
the Governor general or the Governor too its introduction, and in that
event he should be directed by his instrument of instructions to take
into account as a relevant factor the nature of the provisions proposed

27
28
2929.Ibid. Para 399. Genarally Annand v. Govt. of India Act, 1935 at p.501.
31. Ibid at 500.

for compensating those whose interest would be adversely affected by

the legislation ."30[31]
Therefore it can be stated from the report submitted by the
JPC that in India there was private owned property, more
accurately,

"vested

interest,"

which

require

specific

protection, namely, grants of lands or of tenure of land free

of land revenue, or subject to partial remission of land
revenue, owned under various names, of which taluk,
inam, watan, jagir, and muafi were examples, such grants
were perpetual. These grants had the authority of the British
Governemnt that on the due observance by the grantee of the specified
conditions, the rights of himself and his successor would be respected
for all time or for the duration of the grant. The sanad granted by Lord
Canning to the taluqdar of Oudh was an instance of a grant in
perpetuity, the rights conferred by the Sanad being permanent,
hereditary and transferable. In connection with this kind of property
the JPC said ....Some of the claims to protection which have been urged upon us
would be satisfied by little less than a statutory declaration which
would have the effect of maintaining-unaltered and unalterable for all
time, however, strong the justification for its modification might prove
to be in the light of changed circumstances, every promise or
undertaking of the kind made by the British Government in past. We
recommend, however, that the Constitution Act should contain an
appropriate provision requiring the consent of the Governor-general
or the Governor, as the case may be to any proposal, legislative or
30

executive, which would alter and prejudice the rights of the

predecessor of any privilege of the kind to which we have
referred."31[32]
The above mentioned rights generally belonged to individuals before.
The JPC also dealt with the rights of zamindars and others in parts of
the UP and Madras in the eighteenth century.
In Indian concept a contract for sale of immovable
property creates an enforceable obligation and not any
interest or charge on it. According to Indian concept of
ownership only legal ownership not dual ownership 32[33] is
legal as well as equitable and is recognised under the
law33[34].
The Indian law does not recognize legal and equitable estates.
Therefore there can be one 'owner.' Where the property is vested in a
trustee. The right of beneficiary is, in proper case, to call upon the
trustee to convey to him. Until conveyance he is not the .owner.34[35]

3132.Ibid. at 500
3233.Dual Ownership If an open site is leased out and the lesse build on the said site site leased
out to him. By vitue of the doctrine of sual ownership, the lesse is the owner of the building apart from
the site and if he lets out the building, he cannot be said to have sub-lat the same. The doctrine would,
however, be not applicable if the lease permitted the lesse to build but prohibited the transfer of the
building by sale or sub-lease Wests Patent Press v. Govindnaik AIR 1984 NOC 27434. Bai
Dosabai v. Mathuradas Govind Das AIR 1980 SC 1334
35. Chhatra Kumari v. Mohan Bikaram, AIR 1931 PC 774
36. Inder Sein v. Naubt (1885) ILR All 553

33
34

The 'transfer of ownership' marks the difference between a sale and a

mortgage. In case of mortgage, the mortgagee holds the property as a
security or debt, and not absolutely, and therefore is having limited
interest on the property35[36].
In

Indian

law,

relinquishment

does

not

pass

ownership36[37]. In a case further it was stated that title to land

couldn't pass by admission with regard to relinquishment of it. 37[38]
In Krishna Tanhaji v. Aba Shetta, It has been stated that
compromise with regard to a property Is only an acknowledgment of
the existing rights and there is no transfer of property and, therefore,
by way of a compromised decree no valid sale can be entered into38[39].
In Indian law the concept of co-ownership was also well
recognized; according to Indian laws co-owner is not
allowed to cause prejudice to other co-sharers by putting
up a substantial construction during the pendency of a
suit. Thus it can be said that in Indian law the concept of
co-ownership is still well recognized. But in case of dwelling
house if the co-owner is not in actual possession of the property, then
35
3637.Jadu Nath v. Rup Lal, (1906) ILR 33 Cal 96738. Mathura Mohan v. Ram Kumar, AIR
1916 Cal 136.
39. (1910) ILR 34 Bom 139
40. Baldev v. Darshani Devi AIR 1993 HP 141

37
38

it cannot be transferred39[40]. But a co-owner will have a right to resist

sale of a property owned by him jointly, when the property is going to
be sold to a third party.
In Indian law co-owner is entitled to have three essentials
of ownership, right to possession, right to enjoy, and right
to dispose. Therefore if an owner is deprived of his
property, he has right to be put in possession thereof. All
the three' essentials are satisfied in thee case of co-owner of
a land. Such co-owner has an interest` in every infinitesimal portion
of the subject-matter and each has the right, irrespective of the
quantity of his interest, to be in possession of every part and parcel of
the property, jointly with others. Therefore, it can be said that
jurisprudentially it is not correct to say that co-owner of a property is
not its real owner.

6. Western concept of ownership

The term "ownership" is often used to describe generally
the position of any person who has a right or right over
thing. That is any person who has a right over a thing (j us
in re) is called the owner of that right40[41]. Some writers
deprecate the use of the term in such cases and restrict the term to
material objects only, but we must admit that between the ownership
of a thing and the ownership of a right there is much similarity. Both
39
4041.Biswas, Modern Jurisprudence, P.53942.Salmond on Jurisprudence at p.300

owners have jus in re and in rem. Both deal with the object of
their right as they please. Salmond treats it as a relation
between a person and any right vested in him.41[42] Jurists like
Cook have severely criticized the idea, which says that a man owns a
land or any peace of a material object means he owns a particular
right.
Ownership

in

English

law

has

to

be

approached

historically, for its evolution is bound with the remedies

that used to be available. The piecemeal development
through actions prevented the formation of a clear cut
development. The reason for such argument is that unlike
Roman law it did not have anything like absolute
ownership.
According to Maitland, quoting Dr. Murrary, the term 'owner'
occurred in 1340, and the term 'ownership' in 1583. 42[43] A further step
in the differentiation of seisin and possession came with the tenant of
years. Whereas seisin was protected by the writ of right, the termors
interest was protected by a form of trespass. de ejection firmae. A
man's interest was not seisin, it was styled possession, which
sharpened the contrast between seisin and possession. In modern
law there are many cases, which show that ownership of
land is only a question of the 'better right' to retain or
obtain possession relative to other party to the dispute.
The development of the law relating to chattels took different line.
There was nothing resembling a doctrine of estates. Land holding, not
41
4243.Pollock and Maitland History of English Law II, at p.153n

the possession of chattels, was the index to a person's public and

private position. Chattels were of comparatively little significance and
there was, no ownership in them. They had a fungible character, that
is to say, transfer or restoration of equivalent chattels sufficed and
later money. This was because, in the nature of things, the interest of a
person in a particular chattel was neither so important nor so
permanent as his interest in the land. Maitland doubts 'whether there
was any right in movable goods that deserves the name of ownership.
To ascertain ownership over a property the concept of trespass was
also introduced. The idea of 'better right' to obtain or retain
possession evolved through trover and detinue: the plaintiff could
succeed if he could have established a 'better right' over that property.
Once again, this enabled the defendant to raise the jus tertii as a
defence and as in the case of land, there has been dispute as to how far
this required a plaintiff to prove an absolute right." The Sale of Goods
Act 1979 refers to 'the property' in goods, which in this context means
ownership' In this regard Sir Raymond Evershed MR has made certain
very important observation.43[44]
There are few other points where the researcher thinks
that he should focus discussion.

The term 'ownership' is used with reference to things. It

can be of two types (a) 'corporeal' with reference to certain
objects, (b) 'incorporeal things' with respect to certain
rights. The use of the phrase 'corporeal ownership' with reference to
physical objects is simple, and had the term 'incorporeal ownership'
embraced all claims that too would have been simple. The term
4344.Although it is no doubt, true in a sense, and certainty in its original medival conception, that
one speaks of property in chattels is now well understood

incorporeal ownership applies only to some claims as far as 'things'

are concerned not to others, as then it may appear that ownership is
incorporeal.44[45]

Ownership is needed to give effect to the idea of 'mine' and

'not mine' or 'thin.' One aspect of it is that the idea becomes
necessary only when there is some relation between
persons. It is at least one other person joins him that it becomes
necessary to distinguish between things that are his and those that are
not his, and also to determine what he may do with his and also to
determine what he may do with his things so as not to interfere with
his companion. Therefore without the society there is no need of
'ownership.'

The right of ownership comprises of benefits and burdens.

The claims, which compromise the content of ownership,

may be vested in person other than the owner.

An owner may be divested of his claims to such extent that he may be

left with no immediate practical benefit.

The ways in which the ownership arises differ in different

systems. These variations depends upon historical and policy
consideration. In English law that a contract for sale of specific goods
can in certain circumstances pass immediate ownership without the
need for any further conveyance. In civil law for the transfer of civil
law ownership in certain kinds of things known as resmancipi.
Lastly it may be said that a person is owner under English law
when a person becomes entitled in specified ways to
44

something designated as such, the scope of which is

determined by policy; and his interest, constituted in this
way, will outlast the interests of other persons in the same
thing.

8. Conclusion
While analyzing this paper the research has come to certain
conclusions. Those are as follows,

Ownership consists of an innumerable number of claims, liberties,

powers and immunities with regard to the thing owned.

According to some jurist a person owns a house means he has just

those claims in respect of it. According to them there is no point in
having the concept of ownership without these claims. But many
jurists have disagreed on this idea of ownership. According to them
ownership means a bundle of right.

In fact this right includes complete control over a property, this gives
the owner a power to alienate and even destroy the property.

In ancient Indian concept the property was considered to be of two

kind. Jangama (movable) and sthavara (immovable). In the laws
relating to the purchase and sale both are considered to be Panya
(salable property). There it was said that a person who is the owner of
a property, whether movable and immovable, is entitled to transfer his
ownership to another person through sale. In ancient time, which is
mostly found in smrities is that they used to consider sale as a valid
mode of transfer like present time. In fact in India the right of
swamitva (ownership) of property as comprising of title to the

property with bhakti or bhoga (possession). In Indian concept of

ownership the researcher found out that there was a development of &
criminal jurisprudence as he has found out that in case of transfer
without ownership or fraudulent transfer there was instances where
the person was fined. In ancient time property was largely held by
major holders like taluk, inam, watan, jagir, and muafi. In India the
concept of co-ownership is still well recognized. According to Indian
laws co-owner is not allowed to cause prejudice to other co-sharers by
putting up a substantial construction during the pendency of a suit.
But in case of dwelling house if the co-owner is not in actual
possession of the property, then it cannot be transferred. Therefore, it
may be concluded that In case of co-owner in India there is no
absolute ownership.

In western concept there are both corporeal and incorporeal

properties. There ownership comprises of benefits and burdens. In
western concept of ownership the owner may be divested of his claims
to such extent that he may be left with no immediate practical benefit.
Though a person who holds any property without owner's concept was
considered to be a trespasser. Also in western concept of ownership in
some cases there can be a transfer of property without a valid
execution of deed.
Therefore Indian and Western concept of ownership can be
distinguished in certain points. In India we had concept of movable
and immovable property from the ancient time. In western
countries they had corporeal and incorporeal property.
Though subsequently there has been recognition for both
these concepts in other places. But in India there was no

valid transfer till today without a proper executed deed,

even in Indian concept there has been no recognition of a
valid transfer of ownership in case of a settlement deed.
But in certain cases in western countries ownership could
have been transferred without proper execution of a deed.
Also in ancient Indian concept there was a presence of a limited
amount of punishment for a fraudulent transfer. Western countries
are now adopting this concept of punishment also. The researcher
thinks that there should have been a development of new
jurisprudence where there is presence of both western and Indian
concept of ownership.
Lastly the researcher thinks that with the recognition of intellectual
property right there has been a requirement of redefining the concept
of ownership because in case of intellectual property the idea of
assignment is a sort of transfer of limited ownership, and also the
concept of moral right thus required to be revised, as it can be
transferred only in certain cases.

7.Ownership and Possession

Ownership
i.

Ownership

is

Possession
an

absolute

i.

authority over the property.

holding physical control over the

ii. Ownership is perfectly legal right.

It shows legal situation.

property.
ii. Possession is possessory right only. It

iii. Ownership is a de jure concept.

shows real situation.

iv. Ownership right is wider concept.

v.

iii. Possession is a de facto concept.

Ownership holds unlimited and iv. Possession is a right of consumption

uncontrolled rights.

only.

vi. Transfer of ownership is not easy

v. Possession right is limited concept of

and it needs to legal or formal

procedures,

prerequisites

right.

of vi. Possession is comparatively easy and

registration.
vii.

practically no need to register and

Ownership has no technical

obstructions to transfer.

viii.

Ownership

is

such formalities.
vii.

union

of

ownership and possession.

ix.

Possession is relative authority

Possession

faces

the

technical

obstacles for transfer.

viii. Possession is a single concept giving

Ownership only does not carry

no right of ownership.

practical use in the absence of ix. Possession may create ground for the
possession.
x. Ownership does not get priority if

ownership as well.
x.

Possession is the real and basis of

there is an equal right over the

priority for the situation of equal

same property.

rights.

Relation between Possession and Ownership

We have already adverted to the chief differences between possession and ownership.
Speaking generally, ownership and possession have the same subject matter.
Possession has been treated as an external evidence of ownership. A person in
possession of a thing may be presumed to be the owner of it. The person in
possession need not prove his ownership; instead, the burden of disproving
ownership of the possessor is on the person who disputes his ownership. A long
continuous and uninterrupted possession is an effective method of realization of
ownership.

According to Salmond, the subject matter of possession and ownership is more or

less the same, a thing which may be owned, may also be possessed. Likewise, a thing
which may be taken into possession may also be owned. Salmond held that whatever
may be owned may be possessed, and whatever may be possessed may be owned.
Salmond further pointed out that the law of prescription determines the process by
which through the influence of time, possession without title ripens into ownership
and ownership without possession withers away and dies.
According to Sethna, the relationship between ownership and possession is same as
that of body with soul. Just as existence of body is necessary for the realization of
soul, likewise possession is necessary and useful for the expression of the ownership
because it (possession) is external and formal.
Sir Henry Maine suggested that historically, the concept of possession is prior to that
of ownership. In fact, right of possession has evolved out the right of ownership.
Possession is the de facto exercise of a claim while ownership is the de jure
recognition of it. Possession is the guarantee of fact whereas ownership is the
guarantee of law. A claim to possession is maintained by ones own self asserting will
but a claim to ownership is legally protected by the will of the State. Ihring observed
that possession is the objective realization of ownership. Possession in fact, is what
ownership is in right. The distinction between possession and ownership on the basis
of fact and right is not tenable. Fact and right are not quite separate and independent
ideas. One cannot exist without the other.
Conclusion,
The way of ownership, philosopher Salmond, had indicated the ownership
cooperates with person and right. Austin quoted right to user of indefinite nature,
Holland concerned for power to the possession, enjoyment and ownership.
Basically, ownership functions according to its definition and characteristics. In the
functionally, it has social position and significant. It has the judicially as well as
social control and policy. Ownership of land was also means of controlling
government. By the way ownership is depends on according to the nations
government. Although, philosopher defined its nature, definition, acquisition, kinds
and function related with possession, owner, right and so on but it has naturally right
with the nation about property, citizens and power.

At last, we can say that ownership is strictly a legal concept and possession is nonlegal and pre-legal concept, so they have basic different but closely co-related with
each other.

Serial
Name of cases with citations
Number
1.
Crowhurst v. Amersham Burial Board (1878) 4 Ex D 5
2.

Sashi Kantha v. Pramodechandra AIR 1932 Cal 600

3.

Keshavananda Bharathi v. State of Kerala, AIR 1973 SC 1461

4.

Wests Patent Press v. Govindnaik AIR 1984 NOC 274

5.

Bai Dosabai v. Mathuradas Govind Das AIR 1980 SC 1334

6.

Chhatra Kumari v. Mohan Bikaram, AIR 1931 PC 774

7.

Inder Sein v. Naubt (1885) ILR All 553

8.

Jadu Nath v. Rup Lal, (1906) ILR 33 Cal 967

9.

Mathura Mohan v. Ram Kumar, AIR 1916 Cal 136

10.

Baldev v. Darshani Devi AIR 1993 HP 141

11.

Tanhaji v. Aba Shetta(1910) ILR 34 Bom 139

Table of cases

References
Books
1. Salmond, Jurisprudence, 4th Edn. Butterworths Publications, New Delhi.
2. V.D. Mahajan, Legal Theory and Justice, Orient Longman Pub., New
Delhi (1991).
3. Holland, Jurisprudence, 4th edn. Sweet & Maxwell Publishers (London).
4. Rama Jois, Legal and Constituional History, Universal Law Publishers,
New Delhi (1986).
Articles
1. Kunal Chatterjee, Indian Concept of ownership, AIR 2004 Journal 222
2. Ownership, Great Books.
3. Articles on Jurisprudential concept of property, Course material on
Property LawI, National Law Institute University, Bhopal.
Statutes
1. Constitution of India
2. Transfer of Property Act, 1882
3. Sale of Goods Act, 1930
Websites
1. www.manupatra.com
2. www.courtnic.nic.in
3. www.lawmin.nic.in
4. www.infochangenews.com

Index

Chapter 1- Introduction to the concept of ownership

Chapter 2- Definition of various thinkers
Chapter 3- Essentials of ownership
Chapter 4- Types of ownership
Chapter 5- Indian concept of ownership
Chapter 6 Western concept of ownership
Chapter 7- Ownership and Possession
Chapter 8- Conclusion

Acknowledgement
It is my imperative duty to thank the following people for the successful
completion of my Jurisprudence project,
- Dr. Hakim Yasir Abbas for the clarity he brings into teaching
thus enabling us to have a better understanding of his subject. I
also feel obliged to thank him for providing us with such
wonderful topics to choose from.
- The very cooperative and friendly staff members in the Central
and Law Library who were instrumental in our finding the
necessary books without wasting much time. It has to be noted
that their contribution is essential as our University is yet to get a
fully functional centralized database for its libraries.

Imran Ahmad Khan