Legal Concepts

Legal Rights and Duties

Legal rights are, clearly, rights which exist under the rules of legal systems or by virtue of
decisions of suitably authoritative bodies within them[1].

According to positivists, legal rights are essentially those interests which have been
legally recognized and protected. John Austin made a distinction between legal rights and
other types of rights such as Natural rights or Moral rights. By legal rights, he
meant rights which are creatures of law, strictly or simply so called. He said that
other kind of rights are not armed with legal sanction and cannot be enforced judicially.

On the other hand, Salmond said that a legal right is an interest recognized and protected
by rule of law and violation of such an interest would be a legal wrong. Salmond further
said that:

1. A legal duty is an act that obliges to do something and act, the opposite of which would
be a legal wrong.
2. Whenever law ascribes duty to a person, a corresponding right also exists with the
person on whom the duty is imposed.

3. There are two kinds of duties: Moral Duty and Legal Duty.

4. Rights are said to be the benefits secured for persons by rules regulating relationships.

Salmond also believed that no right can exist without a corresponding duty. Every right or
duty involves a bond of legal obligation by which two or more persons are bound together.
Thus, there can be no duty unless there is someone to whom it is due; there can be no
right unless is someone from whom it is claimed; and there can be no wrong unless there
is someone who is wronged, that is to say, someone whose right has been violated.

This is also called as vinculum juris which means a bond of the law. It is a tie that
legally binds one person to another[2].

On the other hand, Austin said that Duties can be of two types:

a. Relative Duty There is a corresponding right existing in such duties.

b. Absolute Duty There is no corresponding right existing.

Austin conceives this distinction to be the essence of a right that it should be vested in
some determinate person and be enforceable by some form of legal process instituted by
him. Austin thus starts from the assumption that a right cannot vest in an indeterminate, or
a vague entity like the society or the people. The second assumption with which Austin
starts is that sovereign creates rights and can impose or change these rights at its will.
Consequently, the sovereign cannot be the holder of such rights.

According to Salmond, there are five important characteristics of a Legal Right[3]:

1. It is vested in a person who may be distinguished as the owner of the right, the subject
of it, the person entitled, or the person of inherence.

2. It avails against a person, upon whom lies the correlative duty. He may be distinguished
as the person bound, or as the subject of duty, or as the person of incidence.

3. It obliges the person bound to an act or omission in favour of the person entitled. This
may be termed the content of the right.

4. The act or omission relates to something (in the widest sense of that word), which may
be termed the object or subject matter of the right.

5. Every legal right has a title, that is to say, certain facts or events by reason of which the
right has become vested in its owner.

Some jurists hold that a right may not necessarily have a correlative duty. They say that
legal rights are legal concepts and these legal concepts have their correlatives which may
not necessarily be a duty.

Roscoe Pound also gave an analysis of such legal conceptions. He believed that legal
rights are essentially interests recognized and administered by law and belong to the
science of law instead of law. He proposed that such Rights are conceptions by which
interests are given form in order to secure a legal order.

Hohfelds System of Fundamental Legal Concepts or Jural Relations

1 2 3 4
Right Privilege Power Immunity
Jural
Opposites
No Duty Disability Liability
Right
Jural Right Privilege Power Immunity
Correlatives
Duty No Right Liability Disability
Jural Correlatives represent the presence of in another. Thus, right is the presence of duty
in another and liability is the presence of power in another.

Jural Opposites represent the absence of in oneself. Thus, no right is the absence of right
in oneself and disability is the absence of power in oneself.

Conclusion derived from Hohfelds System

a. As a persons right is an expression of a wish that the other person against whom the
right or claim is expressed has a duty to obey his right or claim.

b. A persons freedom is an expression of a right that he may do something against other

person to change his legal position.

c. A persons power is an expression of a right that he can alter other persons legal
position.

d. A persons disability is an expression of a wish that another person must not alter the
persons legal position.

Salmond on Rights and Duties

Salmond said that a perfect right is one which corresponds to a perfect duty and a perfect
duty is one which is not merely recognized by law but also enforced by law. In a fully
developed legal system, there are rights and duties which though recognized by law are
not perfect in nature. The rights and duties are important but no action is taken for
enforcing these rights and duties. The rights form a good ground for defence but duties do
not form a good ground for action. However, in some cases, an imperfect right is sufficient
to enforce equity.

Salmond gave following classifications of rights.

1. Positive and Negative Rights

2. Real and Personal Rights
3. Right in rem and right in personam
4. Proprietary and Personal Rights
5. Inheritable and Uninheritable Rights

Salmonds Classification of Positive and Negative Rights

Positive Rights Negative Rights

1 A positive right corresponds to a Negative rights have negative duties
corresponding duty and entitles its corresponding to them and
owners to have something done for him enjoyment is complete unless
 without the performance of which his interference takes place. Therefore,
enjoyment of the right is imperfect. majority of negative rights are
against the entire world.
2 In the case of positive rights, the Whereas, in case of negative rights,
person subject to the duty is bound to others are restrained to do
do something. something.
3 The satisfaction of a positive right Whereas in case of a negative right,
results in the betterment of the position the position of the owner is
of the owner. maintained as it is.
4 In case of positive rights, the relation Whereas in case of negative rights,
between subject and object is mediate the relation is immediate, there is no
and object is attained with the help of necessity of outside help. All that is
others. required is that others should refrain
from interfering case of negative
rights.
5 In case of positive rights, a duty is In case of negative rights, the duty is
imposed on one or few individuals. imposed on a large number of
persons.

Salmonds Classification of Real and Personal Rights

Real Rights Personal Rights

1 A real right corresponds to a duty
imposed upon persons in general.
2 A real right is available against the
whole world.
3 All real rights are negative rights.
Therefore, a real right is nothing more
than a right to be left alone by others. It
is merely a right to their passive
non-interference.
In real right, the relation is to a thing.
Real rights are derived from some
special relation to the object.
4 Real rights are right in rem.
A personal right corresponds to a duty
imposed upon determinate individuals.
A personal right is available only
against a particular person.
Most personal rights are positive rights
although in a few exceptional cases
they are negative.
In personal right, it is the relation to
other persons who owe the duties
which is important. Personal rights are
derived from special relation to the
individual or individuals under the duty.
Personal rights are right in personam.

Salmonds Classification of Right in rem and Right in personam

Right in rem Right in personam

1 It is derived from the Roman term actio
in rem. An action in rem was an action
for the recovery of dominium.
2 The right protected by an action in
rem came to be called jus in rem.
It is derived from the Roman
term action in personam. An action
in personam was one for the
enforcement of obligato i.e.
obligation.
A right protected by action in
personam came to be called as jus
in personam.
 3 Jus in rem means a right against or in Jus in personam means a right
respect of a thing. against or in respect of a person.
4 A right in rem is available against the A right in personam is available
whole world. against a particular individual only.

Salmonds Classification of Proprietary and Personal Rights

Proprietary Rights Personal Rights

1 Proprietary rights means a persons right Personal rights are rights arising out
in relation to his own property. of any contractual obligation or rights
Proprietary rights have some economic that relate to status.
or monetary value.
2 Proprietary rights are valuable. Personal rights are not valuable.
3 Proprietary rights are not residual in Personal rights are the residuary
character. rights which remain after proprietary
rights have been subtracted.
4 Proprietary rights are transferable. Personal rights are not transferable.
5 Proprietary rights are the elements of Personal rights are merely elements
wealth for man. of his well-being.
6 Proprietary rights possess not merely Personal rights possess merely
judicial but also economic importance. judicial importance.

Salmonds Classification of Inheritable and Uninheritable Rights

Inheritable Rights Uninheritable Rights

A right is inheritable if it survives the owner. A right is uninheritable if it dies with the
owner.

Ownership
Ownership
Salmond on Ownership

Ownership denotes the relationship between a person and an object forming the
subject-matter of his ownership. It consists in a complex of rights, all of which are rights in
rem, being good against the entire world and not merely against specific persons[4].

Incidence of Ownership

1. The owner has the right to possess things that he owns.

2. The owner normally has a right to use or enjoy the thing owned, the right to manage it,
the right to decide how it shall be used and the right of income from it. However, Right to
possess is not a right strictu sensu because such rights are in fact liberties as the owner
has no duty towards others and he can use it in any way he likes and nobody can interfere
with the enjoyment of his ownership.
3. The owner has the right to consume, destroy or alienate the things. The right to
consume and destroy are again straight forward liberties. The right to alienate i.e. the right
to transfer the existing rights involves the existence of power.

4. Ownership has the characteristic of being indeterminate in duration and Ownership

has a residuary character. Salmond contrasted the rights of the owner with the lesser
rights of the possessor and encumbrancer by stating that the owner's rights are
indeterminate and residuary in a way in which these other rights are not.

Austins Concept of Ownership

Ownership or Property may be described accurately enough, in the following manner: the
right to use or deal with some given subject, in a manner, or to an extent, which,
though is not unlimited, is indefinite.

Now in this description it is necessarily implied, that the law will protect or relieve the
owner against every disturbance of his right on the part of any other person. Changing
the expression, all other persons are bound to forbear from acts which would prevent or
hinder the enjoyment or exercise of the right.

Austin further said that Ownership or Property, is, therefore, a species of Jus in rem.
For ownership is a right residing in a person, over or to a person or thing, and
availing against other persons universally or generally. It is a right implying and
exclusively resting upon obligations which are at once universal and negative.

Dias on Ownership

After referring to the views of Salmond and other Jurists, Dias came to the conclusion
that a person is owner of a thing when his interest will outlast the interests of other
persons in the same thing. This is substantially the conclusion reached by many modern
writers, who have variously described ownership as the residuary, the ultimate, or the
most enduring interest.

According to Dias, an owner may be divested of his claims, etc., to such an extent that he
may be left with no immediate practical benefit. He remains owner nonetheless. This is
because his interest in the thing, which is ownership, will outlast that of other persons, or if
he is not presently exercising any of his claims, etc., these will revive as soon as those
vested in other persons have come to an end.

In the case of land and chattels, if the owner is not in possession, ownership amounts to
a better right to obtain the possession than that of the defendant. It is 'better' in that it
lasts longer. It is apparent that the above view of Dias substantially agrees with that of
Salmond. According to Dias it is the outlasting interest and according to Salmond,
ownership has the characteristic of being indeterminate in duration and residuary in
nature[5].

Types of Ownership
Corporeal Ownership Incorporeal Ownership
1. Corporeal Ownership signifies ownership 1. Incorporeal Ownership is a right or
in a physical object. an interest.
2. Corporeal things are things which can be 2. Incorporeal things cannot be
perceived by senses. perceived by senses and are in
tangible.
Sole Ownership Co-Ownership
When an individual owns, it is sole When there is more than one person
ownership who owns the property
Trust Ownership Beneficial Ownership
1. There is no co-ownership. 1. There can be co-ownership.
2. The person on whom the responsibility 2. The person for whom the trust is
lies for the benefit of the others is called the created is called the Beneficiary.
Trustee.
3. The trustee has no right to the beneficial 3. The Beneficiary has the full rights to
enjoyment of the property. enjoy the property.
4. Ownership is limited. A trustee is merely 4. Ownership is complete.
an agent upon whom the law has conferred
the duty of administration of property.
5. Trusteeship may change hands. 5. Beneficial Owners remain the
same.
Legal Ownership Equitable Ownership
Legal ownership is that ownership which Equitable ownership comes from
has its basis in common law. equity divergence of common law.
Thus, distinction between legal and
equitable ownership is very thin.
Vested Ownership Contingent Ownership
1. Ownership is vested when the title is 1. Ownership is contingent when it is
perfect. capable of being perfect after
fulfilment of certain condition.
2. Vested ownership is absolute. 2. Contingent ownership becomes
vested when the conditions are
fulfilled.
Absolute Ownership Limited Ownership
Ownership is absolute when possession, Limited Ownership is subjected to the
enjoyment, disposal are complete and limitations of use, disposal or duration.
vested without restrictions save as
restriction imposed by law.

Ownership As A Social Concept

INTRODUCTION

The concept of ownership is one of the fundamental juristic concepts common to all
systems of law. This concept has been discussed by most of the writers before that of
possession. However, it is pointed out that it is not the right method. Historically,
speaking the idea of possession came first in the minds of people and it was later on
that the idea of ownership came into existence. The idea of ownership followed the
idea of possession.

DEVELOPMENT OF THE IDEA OF OWNERSHIP

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 lands and building their homes. The transition from a pastoral
to an agricultural economy helped the development of the idea of ownership. People
began to think in terms of mine and thine. To begin with, no distinction was made
between ownership and possession. However with the advancement of 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 possession. 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 conception of dominium in Roman law. According to Holdsworth, the English
law reached the concept of ownership as an absolute right through developments in the
law of possession.[i]

OWNERSHIP UNDER ANCIENT INDIAN LAW

The right to ownership was also recognized under the ancient Indian law. The great
commentators, notably, narada, Yajnavalkya ,vyas etc. emphasized the right of
ownership of property was to be used for noble cause and good motives. The ancient
hindu law ordained men to behave in a particular manner in relation to person or
property of another. They were warned that misuse of the right of ownership would
entail them moral and public indignation and they would be liable for punishment.
The ancient laws of prescription, bailment, sale, etc. were based on distinction
between ownership and possession.

The ancient hindu jurists mentioned seven modes of acquisition of ownership of

property, namely,

1. Inheritance
2. Gain
3. Purchase
4. Conquest
5. Investment of wealth
6. Employment
7. Acceptance of gifts
According to manu, only property of the king or state could be acquired by conquest
but the king had no right to interfere or acquire the private property of the subjects of
the conquered territory. As regards the property of no-ones land (i.e. res nullius)
Manu says that it belonged to him who first reclaimed it under cultivation. Where a
thing had no previous owner such as bird or a fish, the rule of res nullius was to apply
and the one who took it first was its owner. In case of some treasure was discovered,
the person who found it took the whole of it if it was found on his land, and if it was
found on some others land, he could acquire only half of it.[ii]

DEFINITION OF OWNERSHIP

Ownership, in its most comprehensive signification, denotes the relation between a

person and any right that is vested in him. That which a man owns is in all cases a
right. When, as is often the case, we speak of the ownership of a material object, this
is merely a convenient figure of speech. 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.

Ownership, in this generic sense, extends to all classes of rights, whether proprietary
or personal, in rem or in personam, in re propria or in re aliena. I may own a debt, or a
mortgage, or a share in a company, or money in the public funds, or a copyright, or a
lease, or a right of way, or the fee simple of land. Every right is owned; and nothing
can be owned except a right. Every man is the owner of the rights which are his.

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 the idea of ownership. The great exponents of the two views 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. According to the second to
second view, ownership is a relation between a person and a right that is vested in
him.[iii]

HOLLANDS DEFINITION: Holland defines ownership as a plenary control over

an object. According to Holland, an owner has three rights on the object owned.
They are (i) Possession (ii) Enjoyment (iii) Disposition.

He says that the right of possession is inherent of ownership. However, it may be

separated as in case of mortgage or letting out. According to him, the right of
enjoyment means the right of user and of acquiring the fruits, or in increase of the
thing The right is limited only by the rights of the state or of other individuals. The
power of disposition means not only the power of alienation but it includes the power
of alteration and destruction of the property.[iv]

DUGUITS DEFINITION: According to Duguit ownership is a relation between a

person and a thing. On account of this relation the person has the power of disposal,
use, and employment of the thing according to a regle de droit.[v]
AUSTIN DEFINITION: A widely accepted definition is that of Austin, who defined
ownership as a right indefinite in point of user, unrestricted in point of disposition ,
and unlimited in point of duration over a determinate thing.

Indefinite in point of user

It is practically impossible to enumerate the wide variety of ways in which the things
owned may used by the owner. However, the Austin describes ownership as
aindefinite in point of user , it may not be taken to mean that the owner has an
absolute right to use his property in whatever way he likes. All legal system impose
condition on the user of property .It is well accepted that every owner must use the
object of ownership so as not to injure the rights of other persons. For instance, the
owner cannot use his property in such a way as to cause nuisance to his
neighbours. Similarly, an owner cannot prevent the entry of officers of the state into
his property, when such entry is authorized by law as in case an officer of justice
entering the premises of anyone in pursuance of a warrant issued by a court.
Ownership is also subject to encumbrance in favour of others , in which case the
power of user enjoyed by the owner is curtailed by the rights of encumbrances.

Unrestricted in point of disposition

This denotes the absolute rights of alienation enjoyed by an owner as a necessary

incidence of ownership. However, here again limitations exist. The law governing
transfer of property may seriously interfere with the owners power of disposition. For
instance, a transfer of property made with an intent to defeat or delay creditors is not
permissible under the law. This rights of encumbrances also constitute a limitation on
the power of disposition.

Unlimited in point of duration

When we describe ownership as unlimited in the point of duration, it means that a

right is capable of existing so long as a thing owned exists. The right is not
extinguished even on the death of the owner, because ownership devolves upon his
heirs who are the persons of appointed by law to succeed the property remaining
undisposed at time of his death.

This quality of ownership also cannot be taken as absolute. There are situations,
which limit the duration of ownership. For instance, a testator may settle his property
on his widow with a condition that on her remarriage the property shall devolve upon
his children. Here the widow remains the vested owner of the property until her
remarriage, but his ownership is limited in point of duration. The rule against
perpetuity is another limitation upon the unlimited duration and power or disposition
of the owner.
Finally, it is to be stated that although be speak a ownership as a right, it would be
preferable to speak of it as a collection of right, liberties,powers and immunities,
following Hohfelds analysis. We must also recognised that some of these rights,
liberties, powers and immunities are frequently found to decide either for a limited
period, or perpetually in persons other than a owner.

SALMOND DEFINITION:

According to the Salmond ownership vests in the a complex of rights which he

exercises to the exclusive of all others. For salmond what constitute ownership- a
bundle of rights which is here in an individual salmonds definition thus point out two
attributes of ownership-

1. Ownership is a relation between a person and right that is vested in him

2. Ownership is incorporeal body or form.[vi]

CHARACTERISTICS OF OWNERSHIP

There are certain characteristics as such:

1. It is absolute or restricted. An owner of a property may be its absolute owner

and nobody else may have any interest in the same. It is also possible that
there may be certain restrictions on the right of ownership and those
restrictions may be imposed by law or by volunatary agreement. An owner
may lease out his property. He may mortgage the same. Thus, he comes to
have a limited ownership. A compulsory restriction may be imposed on
ownership if another person comes to have an easement on a particular
property.
2. It is also possible that certain restrictions may be imposed on the owners of
property in times of national emergency. The house of any owner may be
requisitioned and any compensation may be fixed by the prescribed authority.
The Government may appoint some authority to control the rents charged by
the owners of property.
3. The Government may demand certain taxes from the owners of property. If
those taxes are not paid, the Government may confiscate their property of that
portion of property which is necessary to realisethe money due to the
Government.
4. The ownership of a person does not diminish with his death. He is entitled to
leave his property to his property to his successors. The owner can distribute
the property even in his own lifetime.
5. Certain disabilities have been imposed on infants and lunatics with regard to
the disposal of property. Obviously, they are not competent to enter into valid
contracts. They are not expected to understand and appreciate all the
implications of their actions.[vii]

MODES OF ACQUISITION OF OWNERSHIP

Broadly speaking there are two modes of acquiring ownership, namely, (1) Original,
and (2) Derivative.

1. Original Acquisition of ownership takes place when ownership is acquired by

some personal act on the part of the acquirer. It may by three ways:

Absolute When a thing is acquired res nullius, i.e. , which has no previous
owner.
This has been called Parigrah by Manu who stated that the first striker of an
arrow to a prey whether a bird or wild animal, becomes its owner.
Original acquisition of ownership may also be by specification which means
a person by working up on material belonging to another makes a new thing.
For example, if a sculptor makes a statue from the clay belonging to the
another, he becomes the original owner of that statue.
Extinctive Acquisition of ownership , that is when a person by some act on
his part extinguishes the ownership of the previous owner and acquires its
ownership himself, it is called extinctive acquisition. For example, acquisition
of ownership by prescription or adverse possession for a prescribed period
which is 12 years in India.

Accessio This is called accessory acquisition that is, when the ownership of
property is acquired by way of accession to some existing property. Examples
are produce of lands or animals or fruits of trees. Manu has termed this mode
of acquisition as Prayog which means acquiring by accession.

1. Derivative acquisition When ownership is derived from a previous owner,

it is called derivative acquisition of ownership. It takes place when ownership
is acquired by inheritance or gift or purchase, etc. In the Indian context, the
law of succession , transfer of property, sales of goods, etc., regulate
acquisition of ownership of the property by derivative mode.[viii]

DISTINCTION BETWEEN CUSTODY, DETENTION, POSSESSION AND

OWNERSHIP

Custody is a relation of a person to an object in which he has no full control over the
thing, in the other words, he has no required animus to exclude others. For example,
a customer examining a piece of cloth in a shop before the shopkeeper who has
custody of that cloth.

Detention is a relation where person has in fact possession over a thing but law due to
certain reasons does not recognize it as possession. For example, a servant has the
detention over things of his master with him.

Possession is a relation of a person to an object which law recognises as possession.

Possession is the external relisation of ownership; it is a valuable piece of evidence to
show the existence of ownership. Possession does not give the right to destroy, waste
or even to alienate the property except by way of a sub- lease.

Ownership is a relation of a person to an object which is exclusive or absolute and

ultimate. The person who stands in this relation is called the owner and he has a
right of complete control and enjoyment of the object. Thus, a right of ownership is a
right of dominium over the property concerned, so as to include the available rights
attached to ownership- the right to possess the property in a de jure capacity, the
right to use the property, as also the right to alienate or even to destroy the property
though all those rights may not be present at the same time.

SIGNIFICANCE OF OWNERSHIP IN MODERN SOCIAL CONTEXT

Ownership is a socially significant concept because it is an index of wealth,and social

position. Ownership of land was means of controlling government. In a feudal system
based on land ownership, the feudal lords wielded tremendous influence,and even the
qualification to vote was based on ownership of land. The social aspect of ownership
also highlights the important principle that on owner shall enjoy his interest in a
manner compatible with the interest of others. As Lord Evershed said; Property like
other interests has a social obligation to perform. The extent of this social obligation
reflects the social policy of the legal system.[ix]

It is important to remember that ownership is not merely a bundle of rights, liberties

and powers. It is also carries with it corresponding burdens in the nature of
duties,liabilities and disabilities which prescribe and regulates how an owner should
utilise his property for the benefit of other individuals or society. Property owned by
person is liable to execution for the debts incurred by him. The liability to pay
property tax,wealth tax,etc, is also imposed in the social interest. When control
legislation imposes restriction on the way in which one may use his property.

The typical individualist approach to ownership is reflected in the definition of

Austin,which we have analysed earlier. However,gradually the emphasis began to
shift from the individual to society-from ownership as a fundamental right of property
to the wants of people and ones duty towards others. It came to be recognised that
limitation are integral to the concept of property,and not exception to an otherwise
unlimited right.

The Marxist theory of ownership draws attention to the evil role it has played. It
begins with individual working with its own tools and raw materials. Later,the profit
accumulated through trading manufactured products elevates him to position to
provide the tools and raw materials, and get other people to provide the labour.The
manufactured products, however remain in his ownership,not in that of the labourer,
and he continues to trade it as his own property. It is the concept of ownership that
enables the exploitation of workers. Ownership of the means of production-tools and
raw materials-became a source of power over persons for private profit.
This promoted inequality, because using the power of dismissal and threat of
unemployment and consequent starvation,the employer was able to dictate unfair
terms of service. The owners of the means of production became industrial
commanders wielding enormous powers that strike at the fundamentals of society.

Karl Renner,following the Marxist analysis,expressed the view that law should take
account of the increasingly public character of ownership of property by investing it
with the characteristics of public law. Two concepts of ownership a public and a
private,have to be recognised. Ownership of the means of production should be
public,that is nationalised,and only ownership of consumer goods should be opened to
private individuals. The distinction lies not in the nature of ownership,but in the
things capable of being owned.

Dr. Friedmann writes that the concept of ownership has exerted considerable
influence as a source of social power in various stages of the development of society.

Professor Renner has traced the gradual evolution of ownership in its social
perspective. He pointed out that in early stages of development of society the owners
of industries had to themselves collect tools, raw materials and labour resources to run
the industry and they earned huge profits by the sale of their products. When they
amassed sufficient wealth, they could afford to hire labour and run the industry by
providing tools and raw material to them. The industrialist was still the sole owner of
the goods so produced and had complete ownership of the profits earned by the
industry. Thus the ownership of means of production become the source and symbol
of power and social status which the industrialists enjoyed on the strength of the
labour working under them. This eventually led to the development of management
labour relationship in the field of industries. The power of the employers to sack and
change the service conditions of workers arbitrarily exhibited their influence in the
society as a dominant class. However, in course of time, the labour movement raised
voice against the exploitative tendencies of indutrialists and capitalists as a result of
which public ownership gained primacy over private ownership. The policy of
nationalization of industries adopted by progressive socialist countries is directed
towards the fulfillment of this objective.[x]

Dr. Friedmann attributes three main reasons for the declining influence of private
ownership in modern social order.

Firstly, the gap between employer and labour class is gradually narrowing down due
to trade union movement, nationalization of industries and national insurance schemes
and now the employers can exploit the workers by misusing their power. As a result
of this the bargaining power of both the entrepreneurs and the workers is more or less
equal.

Secondly,The profiteering by industrialists has been considerably regulated through

legislative measures and effective tax laws.
The industrialists are now required to contribute a considerable part of their income
and profit to the public fund of the state. This has helped in equitable distribution of
wealth.

Thirdly, the encouragement provided to the corporate sector in recent decades has
helped in separating the power element from ownership. During the capitalistic era,
both ownership and power are centralized in the industrialists which was detrimental
for the labour class. But today the real power vests in the management comprising
experts in their respective fields and the owners are divested of this power. Thus
power has been separated from the ownership. Furthur in order to ensure that the
management does not misuse their power and authority, comprehensive company
legislation and labour and industrial laws have been enacted by almost all
countries.[xi]

Dias and Hughes have observed that in order to appreciate the role of ownership in
the present social order, its formal analysis shall not serve any useful purpose, instead
there should be greater emphasis on its functional analysis.[xii]

CONCLUSION

Ownership and possession are two words, which we commonly use in our daily life
without thinking about their legal incidents or consequences. However, even when
we use these words in our ordinary conversation, we generally associate certain rights
and obligations with these words .It is surprising that a child who has not learned
these two words is capable of understanding the meaning of these words, and also the
difference between the concepts of ownership and possession.

For instance, if you give a toy as a birthday gift to a child, he/she immediately
understands that the toy belongs to him/her. He/ she considers himself/herself as the
owner of the toy,and does not permit other to touch it.

If he / she permits another child to play with the toy, he/ she expects that it will be
returned to him/her after same time. In his/her mind there is a clear knowledge that
he/she parting with the possession of the toy , but has no intention of giving up
ownership .

On the other hand, he/she may voluntarily give the toy as a gift to her dear friend.
Now he/she has no expectation of getting it back, and knows that he/she has
relinquished not only the possession of the toy, but also its ownership .

Law converts these simple ideas to legal concepts by defining their meaning with
precision and refinement. Ownership as a legal concepts denotes a legal relation
between a person who is called the owner of the right , and a things over which he can
exercise certain rights. The right of ownership is the most complete and supreme right
that can be exercised over anything.
 It consist four rights, namely: 1.Using the things;2.excluding others from using it;
3.disposing of things; and4.destroying it.

Ownership is a socially significant concept because it is an index of wealth, and social

position. Ownership of land was means of controlling government. In a feudal system
based on land ownership, the feudal lords wielded tremendous influence, and even the
qualification to vote was based on ownership of land. The social aspect of ownership
also highlights the important principle that on owner shall enjoy his interest in a
manner compatible with the interest of others.

As Lord Evershed said; Property like other interests has a social obligation to
perform. The extent of this social obligation reflects the social policy of the legal
system.

It is important to remember that ownership is not merely a bundle of rights, liberties

and powers. It is also carries with it corresponding burdens in the nature of duties,
liabilities and disabilities which prescribe and regulates how an owner should utilise
his property for the benefit of other individuals or society. Property owned by person
is liable to execution for the debts incurred by him. The liability to pay property tax,
wealth tax, etc, is also imposed in the social interest. When control legislation
imposes restriction on the way in which one may use his property.

The typical individualist approach to ownership is reflected in the definition of Austin,

which we have analysed earlier. However, gradually the emphasis began to shift from
the individual to society-from ownership as a fundamental right of property to the
wants of people and ones duty towards others. It came to be recognised that
limitation are integral to the concept of property, and not exception to an otherwise
unlimited right.

A. Concept and Function of Ownership

1. Introduction:
The idea and concept of ownership is developed by slow degrees with the growth of
civilization. In primitive societies the only concept known to human mind was that of
possession. It was much later that the concept of ownership adopted. 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 lands and building their homes. The transition from a pastoral to an
agricultural economy helped the development of the idea and concept of the ownership.
Thus, ownership denotes the relation between a person and an objective forming the
subject matter of his/her ownership. The normal case of ownership can be expected to
exhibit the incidents as follows: First, the owner will have a right to possess the thing
which s/he owns. Secondly, the owner normally has the right to use and enjoy the thing
owned. Thirdly, the owner has the right to consume, destroy or alienate the thing.
 Fourthly, ownership has the characteristics of being indeterminate in duration. Fifthly,
ownership has a residuary character.
2. Meaning and definition of ownership:
The literal meaning of the term own is to have or hold a thing. The one who holds a
thing as his own is said to be the owner and has right of ownership ever it. Thus in the
non-legal sense ownership may be defined as the right of exclusive control over and
disposal of a thing at will.
In the legal sense the term ownership carries the meaning of right over a thing to the
exclusion of all other persons. This implies non-interference by others in the exercise of
this right and must be distinguished from mere holding of a thing in ones possession.
Normally ownership implies,
a) the right to possess,
b) the right to use,
c) the right to manage,
d) the right to capital and
e) the right to income.
The concept of the ownership is one of the fundamental juristic concept
common to all system of law. Different writers have defined ownership in different
ways.
Austin defined ownership as a right indefinite in point of user, unrestricted in point of
disposition and unlimited in point of duration.
Austins definition thus implies thee attributes viz.,
a) indefinite user,
b) unrestricted disposition and
c) unlimited duration.
Hollands definition: Austins definition of ownership has been followed by Holland.
He defines ownership as plenary control over an object. According to him an owner has
thee rights on the subject owned:-
a) Possession
b) Enjoyment
c) Disposition
According to Salmond, Ownership in most comprehensive significance denotes the
relation between a person and any right that is vested in him. That, which a man owns,
according to him, is in all cases a right. Ownership in this wider sense extends to all
classes of rights, whether proprietary or personal, in rem or in personam, in re-propria
or in re-aliena. He adds that it applies not only to rights in the strict sense but also to
liberties, powers and immunities.
Thus, according to Salmond ownership vests in the owner a complex of rights which
s/he exercises to the exclusion of all others. For Salmond what constitutes ownership a
bundle of rights which in here in an individual. Salmonds definition thus points out
two attributes of ownership:-
a) Ownership is a relation between a person and rights that is vested in
him;
b) Ownership is incorporeal (immaterial, having no material body or
form).
 For Salmon a man may own a copyright or a right of way in the same way as s/he owns
a piece of land because in all the cases s/he owns only a right and not a thing.
Hohfield expresses a similar view (like that of Salmond) when he says ownership is not
a right but a bundle of rights, privileges, powers etc.
Duguit has defined, Ownership is a relation between a person and a thing. On account
of this relation the person has the power of disposal, use and enjoyment of the thing.
We may conclusion say that-
a) Ownership is a right which comprises of powers, claims, privileges, etc.
b) Ownership is in respect of a thing which may be corporeal or incorporeal.
c) The rights relating to or in connection with ownership are subject to state
regulation i.e., can be limited or restricted by law.
d) Owner is he who is entitled to the residue of rights with respect to an object
left after the limitation resulting from the voluntary acts of the owner
(mortgage, lease or hire) or those imposed by law are exhausted,
e) Ownership does not imply or indicate absolute or unlimited rights either
regarding use, disposal or duration.
3. Essentials of ownership:
i. The first essential of ownership is that it is indefinite in point of user. It is
impossible to define or sum up exhaustively the wide variety of ways in
which the thing owned may be used by the person entitled to its ownership.
ii. Another essential of ownership is that it is unrestricted in point of
disposition. An owner can effectively dispose of his property by a
conveyance during his lifetime or by will after his death.
iii. The owner has a right to possess the thing which s/he owns.
iv. The owner has the right to exhaust the thing while using it, if the nature of
the thing owned is such.
v. Another essential of ownership is that it has a residuary character. An owner
may part with several rights in respect of the thing owned by him/her.
vi. Generally, the owner has the right to destroy or alienate the thing s/he owns.
4. Characteristics of ownership:
i. Ownership is absolute or restricted. It may be limited to a lesser or greater
extent, either voluntarily or under compulsion of law.
ii. Right of ownership may also be restricted national emergency.
iii. An owner has to pay taxes to the state and exercise of his right of
ownership.
iv. An owner must not exercise his right of ownership in such a way as to
infringe the right of other owners.
v. An owner has not the freedom to dispose of his property in any way he
likes. S/he can not transfer the property to defraud his creditor.
vi. Infants and lunatics are under a disability in the eye of law because they
can neither understand the true nature of their acts nor the consequences.
vii. Ownership does not generally terminate with the death of the owner. It
passes to legal heirs in case of intestacy.

5. The subject matter of ownership:

 The prime subject matter of ownership consists of material objects such as land and
chattels. But ownership is by no means limited to things of this category. A human
beings wealth may consist of such things as interests in the land of others, debts due to
him, shares in companies, patents, designs, trademarks, copyrights and so
on. Salmond indeed took the view that the true subject matter of ownership has to be a
right in all cases.

6. Criticism:
I. Austins view of ownership has been criticized on various grounds;
a. It is pointed out that ownership is not a right but a bundle of rights. It is
the aggregate or sum total of the rights of user and enjoyment.
b. Ownership is not merely a right but also a relationship between the right
owned and the person owning it.
c. The idea of the right of indefinite user is also attacked. Many limitations
can be put upon that user. The owner must use his property in such a
way as not to interfere with the rights of others.
II. Salmonds view of ownership has been criticized by many writers;
a. According to Duguit, ownership is a relationship between a person and
a thing over which he is permitted, on account of this relationship,
complete disposal, use and enjoyment. What is owned is a thing and not
a right.
b. According to Cook, there are many rights which a person may possess
and to use the term owner to express the relationship between a person
and a right is to introduce necessary confusion. Ownership is the name
given to the bundle of rights.
c. According to Kocourek, ownership is a relationship of the owner and a
right to a thing which can be economically enjoyed. The right of
ownership is a matter of legal protection.

7. Methods of acquiring ownership:

A thing is capable of being owned, the methods of acquiring ownership over it will vary
from legal system to legal system. There are two modes of acquisition of ownership and
those are original and derivative. Original acquisition can be absolute: res nullius and
by occupation. Basically, one can acquire ownership in two ways:
i. by operation of law or
ii. by reason of some act or event.
As to the first, a statute might provide that all As property should after a certain period
of time vest in B. As to the second this may consist in the first taking or madding a thing,
both being cases of original acquisition. Thirdly, the thing may fall into mans
ownership without any human act, as would be the case if a piece of land were to break
off from an island in a river and attach itself to my land on the opposite bank.

8. Classification of ownership:
Ownership may be of various kinds. Broadly, it may be classified under the
following heads-
I. Vested and Contingent ownership
 II. Sole and Co-ownership
III. Corporeal and Incorporeal ownership
IV. Legal and Equitable ownership
V. Trust and Beneficial ownership
VI. Absolute and Limited ownership
I. Vested and Contingent ownership
Ownership is either vested or contingent. It is vested when the owners title already
perfect, it is contingent when his title is as yet imperfect, but is capable of becoming
perfect on the fulfillment of some condition. In the former case the ownership is
absolute; in the latter it is merely conditional. Once it is matured it automatically
converts into vested type of ownership.
II. Sole and Co-ownership
Sole ownership indicates the singular control over the property. In this concept an
individual only entertains all sorts of rights of ownership over his owned property.
Co-ownership is a concept of plural or multiple owners holding right over the particular
property. A single person cannot entertain the rights of ownership in group.
III. Corporeal and Incorporeal ownership
Ownership over any material object which can be movable or immovable but tangible
objects is called corporeal ownership. Incorporeal Ownership means ownership over
the immaterial things such as right over patent, design, trademark, copyright etc.
IV. Legal and Equitable ownership
The distinct between legal and equitable ownership is limited in English common law
only. Legal ownership is a legally defined and protected property. Generally,
ownership is understood as a legal ownership. In other words, legal ownership is that
which has its origin in the rules of the common law.
Equitable ownership is basically carried out from the Chancery courts of UK. Equity
courts protect the rights of property. Equity law granted rights were the concept of
equitable ownership. Equity law is a concept of natural law philosophy. It does have no
practicability to rest of the world.
V. Trust and Beneficial ownership
Trust ownership is also known as duplicate or dual types of ownership. It is well
defined right that one should use the right to favor other. This kind of ownerships looks
like ceremonial having no powers.
Beneficial ownership is relating to rights over the trust to use the authority in favor of
the trust itself. This type of ownership is taken as a real ownership because it is
powerful and using right to favor the trust is to benefit all trustees. Moreover user is
none other than a trustee.
VI. Absolute and Limited ownership
Absolute ownership is a concept of right having no any conditions. Particular property
is totally under the control of owner. Limited ownership is a conditional approach of the
rights over the property. It is basically based on contract law or dependency and various
defined limitations towards the entertainment of right relating to ownership.
9. Function of Ownership:
From the above mentioned definition, characteristic and classification etc.function of
the ownership is itself clear. According to Dias, the function of the ownership is as
follows:
The ownership has been stated that as right in itself, distinct from its component jurally
relations, has always been usefully for identifying certain groups of interests and for
distinguishing them from others. This is because ownership of these special groups was
originally an index not merely to wealth, but to social position, and it was socially
significant in other ways as well. Possession, as has been seen, is a judicial concept and
an instrument of judicial policy.
In the words of Lord Evershed property like other interests has a social obligation to
perform. In English law the various forms of land holding designated a mans social
standing, where as chattels, being fungible, did not have this function. Ownership of
land was also a means of controlling government in so far as the qualification to vote
was based upon it. Dominium in Roman law connected sovereignty, which is
essentially a social concept and something more than just ownership, things of
ownership the earliest forms of roman property, were precisely the things that were
important to a primitive agricultural community.

B. Distinction between Possession and Ownership:

According to Ihering, Possession is the objective realization of ownership. It is the
external realization of ownership. It is a valuable piece of evidence to show the
existence of ownership. It is in fact what ownership is in right. It is the de facto exercise
of a claim while ownership is the de jure recognition of that claim. Possession is the de
facto counterpart of ownership. It is the external form in which rightful claims normally
manifest themselves. For example, a rented house is actually in possession of the tenant
but the ownership of it is vested in the landlord.
According to Salmond, ownership in its widest sense implies the relation between a
person and any right that is vested in him. Possession is in fact what ownership is in
right. Bringing out distinction between possession and ownership Salmond pointed out
that a person is said to be the owner of a thing when his claim receives the recognition
and protection from the law of the state, but possession may be exercised and realized
even without such recognition or protection from the law. Thus ownership has the
guarantee of law but possession has some measure of security and value from the facts,
without any possibility of support from land.
According to Austin, ownership in its wider sense is a right indefinite in point of user,
unrestricted in point of disposition and unlimited in point of duration. The right of
alienation of property is a necessary incident to the right of ownership, but there are
many restrictions with regard to the alienation of property today.
According to Pollock, Ownership may be described as the entirety of the powers of
use and disposal allowed by law. The owner of a thing is not necessarily the person who
at a given time has the whole power of use and disposal; very often, there is no such
person. We must look for the person having the residue of all such power when we have
accounted for every detached and limited portion of it, and s/he will be the owner even
if the immediate power or control and user are elsewhere.
Possession and ownership differ in their mode of acquisition. The transfer of possession
is comparatively easier and less technical but the transfer of ownership in most cases
involves a technical process of convincing.
On the basis of above discussion, we can compare ownership and possession in this
way in brief:
 Ownership Possession

i. Ownership is an absolute i. Possession is relative authority holding physical

authority over the property. control over the property.
ii. Ownership is perfectly legal ii. Possession is possessory right only. It shows real
right. It shows legal situation. situation.
iii. Ownership is a de jure concept. iii. Possession is a de facto concept.
iv. Ownership right is wider iv. Possession is a right of consumption only.
concept. v. Possession right is limited concept of right.
v. Ownership holds unlimited and vi. Possession is comparatively easy and practically
uncontrolled rights. no need to register and such formalities.
vi. Transfer of ownership is not vii. Possession faces the technical obstacles for
easy and it needs to legal or transfer.
formal procedures, prerequisites viii. Possession is a single concept giving no right of
of registration. ownership.
vii. Ownership has no technical ix. Possession may create ground for the ownership
obstructions to transfer. as well.
viii. Ownership is a union of x. Possession is the real and basis of priority for the
ownership and possession. situation of equal rights.
ix. Ownership only does not carry
practical use in the absence of
possession.
x. Ownership does not get priority
if there is an equal right over the
same property.
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. Ihringobserved 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 non-legal
and pre-legal concept, so they have basic different but closely co-related with each
other.
References:
i. Dr. V.D. Mahajan (reprinted 2007), Jurisprudence and legal theory (5th edition),
Estern book company Lucknow.
ii. Dr. Bal Bahadur Mukhiya (2011), Comparative Jurisprudence, (1st edition)Mrs.
Malati & Tamanna Mukhiya, Kathmandu.
iii. Prof. Nomita Agrawal (2010), Jurisprudence (Legal Theory) (8th edition), Central
Law Publications, India.
iv. R.W.M. Dias (1994), Jurisprudence (5th edition), Aditya books Private limited,
New Delhi.
v. Salmond on Jurisprudence (2004), by P.J. Fitzgerland (12thedition), Universal
Law Publishing co. pvt. ltd.
vi. Dr.N.V. Paranjape (reprint 2010) Studies in Jurisprudence & Legal Theory,
(5th edition), Central law Agency, Allahabad.

Jurists have defined ownership in different ways. All of them accept the right of ownership as
the complete or supreme right that can be exercised over anything. Thus, according to Hibbert
ownership includes four kinds of rights within itself.
Right to use a thing
Right to exclude others from using the thing
Disposing of the thing
Right to destroy it.
Austins definition
Austin while defining ownership has focused on the three main attributes of ownership, namely,
indefinite user, unrestricted disposition and unlimited duration.
Indefinite User
Unrestricted Disposition
Unlimited Duration
The abolition of Zamindari system India , the abolition of privy purses, nationalization of Bank
etc. are some example of the fact that the ownership can be cut short by the state for public
purpose and its duration is not unlimited.
Austins definition has been followed by Holland. He defines ownership as plenary control
over an object. According to him an owner has three rights on the subject owned
Possession
Enjoyment
Disposition
Planetary control over an object implies complete control unrestricted by any law or fact. Thus,
the criticism levelled against Austins definition would apply to that given by Holland in so far
as the implication of the term plenary control goes.
Salmonds Definition:
According to the Salmond ownership vests in the complex of rights which he exercises to the
exclusive of all others. For Salmond what constitute ownership is a bundle of rights which in
here resides in an individual. Salmonds definition thus point out two attributes of ownership:
Ownership is a relation between a person and right that is vested in him
Ownership is incorporeal body or form

MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring ownership which may be broadly
classed under two heads,viz,.
Original mode
Derivative mode
The original mode is the result of some independence personal act of the acquire himself. The
mode of acquisition may be three kinds
Absolute when a ownership is acquired by over previously ownerless object
Extinctive, which is where there is extinctive of previous ownership by an
independence adverse act on the part of the acquiring. This is how a right of easement is
acquiring after passage of time prescribed by law.
Accessory that is when requisition of ownership is the result of accession. For example,
if three fruits, the produce belongs to the owner unless he has parted with to the same. When
ownership is derived from the previous version of law then it is called derivate acquisition.
That is derived mode takes place from the title of s prior owner. It is derived either by
purchase, exchange, will, gift etc.Indian Transferee Acts of property rules for the transfer of
immovable property, Sale of goods Acts for the transfer of property of the firm and the
companies Act for the transfer of company property.

SUBJECT MATTER OF OWNERSHIP

Normally ownership implies the following:
 The right to manage
The right to posses
The right to manage
The right to capital
The right to the income

CHARACTERISTICS OF OWNERSHIP
An analysis of the concept of ownership, it would show that it has the following characteristics:
Ownership ma either be absolute or restricted, that is, it may be exclusive or limited. Ownership
can be limited by agreements or by operation of law.The right of ownership can be restricted in
time of emergency. An owner is not allowed to use his land or property in a manner that it is
injurious to others. His right of ownership is not unrestricted.The owner has a right to posses
the thing that he owns. It is immaterial whether he has actual possession of it or not. The most
common example of this is that an owner leasing his house to a tenant. Law does not confer
ownership on an unborn child or an insane person because they are incapable of conceiving the
nature and consequences of their acts. Ownership is residuary in character. The right to
ownership does not end with the death of the owner; instead it is transferred to his heirs.
Restrictions may also be imposed by law on the owners right of disposal of the thing owned.
Any alienation of property made with the intent to defeat or delay the claims of creditors can be
set aside.

KINDS OF OWNERSHIP
There are many kinds of ownership and some of them are corporeal and incorporeal ownership,
sole ownership and co-ownership, legal and equitable ownership, vested and contingent
ownership, trust and beneficial ownership, co- ownership and joint ownership and absolute and
limited ownership.

Corporeal and Incorporeal 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 a copyright, a patent or a trademark is incorporeal ownership. The distinction
between corporeal and incorporeal ownership is connected with the distinction between
corporeal and incorporeal things. Incorporeal ownership is described as ownership over
tangible things. Corporeal things are those which can be perceived and felt by the senses and
which are intangible. Incorporeal ownership includes ownership over intellectual objects and
encumbrances.

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by
two persons at the same time. The relation between the two owners is such that one of them is
under an obligation to use his ownership for the benefit of the other. The ownership is called
beneficial ownership. The ownership of a trustee is nominal and not real, but in the eye of law
the trustee represents his beneficiary. In a trust, the relationship between the two owners 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. The latter is called the
beneficiary and his ownership is called beneficial ownership.

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 rules of equity. In many cases, equity recognizes
ownership where law does not recognize ownership owing to some legal defect. Legal rights
may be enforced in rem but equitable rights are enforced in personam as equity acts in
personam. One person may be the legal owner and another person the equitable owner of the
same thing or right at the same time.

The equitable ownership of a legal right is different from the ownership of an equitable right.
The ownership of an equitable mortgage is different from the equitable ownership of a legal
mortgage.

There is no distinction between legal and equitable estates in India. Under the Indian Trusts Act,
a trustee is the legal owner of the trust property and the beneficiary has no direct interest in the
trust property itself. However, he has a right against the trustees to compel them to carry out the
provisions of the trust.

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 owner is yet imperfect but is
capable of becoming perfect on the fulfillment of some condition. In the case of vested
ownership, ownership is absolute. In the case of contingent ownership it is conditional. For
instance, a testator may leave property to his wife for her life and on her death to A, if he is then
alive, but if A is dead to B. Here A and B are both owners of the property in question, but their
ownership is merely contingent. It must, however, be stated that contingent ownership of a
thing is something more than a simple chance or possibility of becoming an owner. It is more
than a mere spes acquisitionis. A contingent ownership is based upon the mere possibility of
future acquisition, but it is based upon the present existence of an inchoate or incomplete title.

Sole Ownership and Co-ownership

Ordinarily, a right is owned by one person only at a time. However, duplicate ownership is as
much possible as sole ownership. When the ownership is vested in a single person, it is called
sole ownership; when it is vested in two or more persons at the same time, it is called
co-ownership, of which co-ownership is a species. For example, the members of a partnership
firm are co-owners of the partnership property. Under the Indian law, a co-owner is entitled to
three essential rights, namely
Right to possession
Right to enjoy the property
Right to dispose

Co-ownership and Joint Ownership

According to Salmond, co-ownership may assume different forms. Its two chief kinds in
English law are distinguished as ownership in common and joint ownership. The most
important difference between these relates to the effect of death of one of the co-owners. If the
ownership is common, the right of a dead man descends to his successors like other inheritable
rights, but on the death of one of two joint owners, his ownership dies with him and the survivor
becomes the sole owner by virtue of this right of survivorship.

Absolute and Limited Ownership

An absolute owner is the one in whom are vested all the rights over a thing to the exclusion of
all. 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 will be called a limited ownership. For example, prior
to the enactment of the Hindu Succession Act, 1956, a woman had only a limited ownership
over the estate because she held the property only for her life and after her death; the property
passed on to the last heir or last holder of the property. Another example of limited ownership
in English law is life tenancy when an estate is held only for life.