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DECLARATION BY THE CANDIDATE

I, PRASHANT KUMAR hereby declare that this project THE CONCEPT OF OWNERSHIP
submitted by me has not been copied out from any source. It is further declared that I have
developed this project under the guidance of DR. MANORANJAN KUMAR. No portion of the
work presented here has been submitted for any other degree or qualification of this or any other
University or Institute of learning, If found I shall stand responsible.

SIGNATURE OF THE CANDIDATE

NAME OF THE CANDIDATE: PRASHANT KUMAR

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA


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ACKNOWLEDGEMENT

This project consumed exorbitant amount of dedication & work, research. Still, implementation
would not have been possible if we did not have a support of many individuals. Therefore we
would like to extend our sincere gratitude to all of them.

First of all I am thankful to DR. MANORANJAN KUMAR for providing necessary guidance
concerning projects implementation.
I also acknowledge the help of library staff and my hostel mates for their consistent and cordial
support.

NAME: PRASHANT KUMAR

ROLL NO: 1749

COURSE: B.A., LL.B. (Hons.)

SEMESTER: 2020-2021 (6th)

SESSION: 2017-2022
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TABLE OF CONTENTS

S.No Topic Page


No.
Acknowledgement and Declaration 1-2
by candidate

a) Objectives
b) Hypothesis 5-6
c) Research questions
d) Research methodology
e) Sources of data
f) Limitation of the study
g) Mode of citation
h) Review of literature
1 INTRODUCTION
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2
DEVELOPEMENT OF THE IDEA 8
OF OWNERSHIP

3 DEFINITION BY VARIOUS 9
THINKERS
4 CHARACTERISTICH OF 12
OWNERSHIP
5 MODES OF ACQUISITION 13
6 DISTINCTION BETWEEN 14
CUSTODY,
DETENTION,POSSESSION AND
OWNERSHIP

7 SIGNIDICANCE OF QWNERSHIP 15
IN NODERN SOCIAL CONTEXT

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CONCLUSION 18
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9 BIBLIOGRAPHY

Method of Research

The researcher has adopted a purely doctrinal method of research. The researcher
has made extensive use of the library at the Chanakya National Law University
and also the internet sources.
Sources of Data

The following secondary sources of data have been used in the project-

1. Articles
2. Books
3. Internet

Method of Writing

The method of writing followed in the course of this research paper is primarily
analytical.

Research Questions

The researcher has formulated following research questions:


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1 – Modern sovereignty is very much different from ancient sovereignty


2 – Primary and secondary functions of state runs in smooth manner when
sovereignty is there
Aims and Objectives

1) The researcher’s prime aim is to present a detailed study of "THE


CONCEPT OF OWNERSHIP", through its development of idea,
characteristics, modes of acquisition etc.
2) The researcher aims to descriptively provide a critical overview of the
topics arising.

Hypothesis

1) The researcher presumes that ownership is very pertinent in order to own the
property in rem with the help of state.
2) Researcher further presumes that because of ownership the person is able to save
its distinct entity regarding the property or any intellectual property, or recovery of any
debt . through this concept.
3) Concept of ownership is more mature than the concept of possession

Mode of citation

The researcher has used blue book mode of citation (19th Edition).

Review of Literature

Jurisprudence and legal theory by V.D. Mahajan, attempts to explain the legal concept and
theories of law including its sources in simple and understandable language. It is a detailed
analytical work on subject giving due consideration to the recent developments and latest research
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in the field.
        The chapters in this book have been devoted to the study of nature, scope, classification and
sources of law including the concept of sovereignty and administration of justice; legal concepts
and the basic concept relating to procedural law; and legal theories containing elaborated
discussion on the various schools of law. The book is complete with full critical analytical of the
subject containing various views of the distinguished jurist arranged under appropriate heads on
all views of the basic concepts which underline most system of law.
          In addition to a very useful subject index facilitating reference, the author has taken care to
give a fairly long list of; suggested readings at the end of each chapter to enable further study on
the subject.

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.

The concept of 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 not
the right method. The idea of possession came first in the minds of people and it was later on that
the idea of ownership came into existence.

Ownership is a complex juristic concept which has its origin in the Ancient Roman Law. In
Roman law ownership and possession were respectively termed as ‘dominium’ and ‘possessio’.
The term dominium denotes absolute right to a thing while possessio implied only physical
control over it. They gave more importance to ownership because in their opinion it is more
important to have absolute right over a thing than to have physical control over it.

In English law the concept of ownership developed much later than possession. The earlier law
gave importance to possession on the misconception that possession includes within its
ownership as well. Holdsworth observed that the English law accepted the concept of ownership
as an absolute right through gradual the gradual development in the law of possession.

The concept of ownership consists of a number of claims such as liberty, power and immunity in
regard to the thing owned. Ownership is thus a sum-total of possession, disposition and
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destruction which includes the right to enjoy property by the owner. The owner has to side by
side abide by the rules and regulation of the country.

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.

1. Right to use a thing

2. Right to exclude others from using the thing

3. Disposing of the thing

4. Right to destroy it.

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’. In the very begining, 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.

Possession implies only physical control over a thing. The English concept 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.1

1
Mahajan’s, V.D. “Jurisprudence and Legal Theory”, Eastern Book Company, Fifth Edition, Pg.
no.290.
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DEFINITION BY VARIOUS JURIST

Ownership, in its most comprehensive signification, denotes the relationship 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 debt, or a mortgage, or a share in a
company, or money in the public fund’s, 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 view, ownership is a relation between a person and a right that is vested in him.”

HOLLAND’S DEFINITION:
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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 a mortgage or letting out. According to him, the right of enjoyment means the “right of
use and of acquiring the fruits, or in the 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]

DUGUIT’S 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 the 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
be used by the owner. However, Austin describes ownership as indefinite in point of the 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 imposes a condition on the use of the 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 the nuisance to his
neighbors.

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 favor 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 the transfer of property
may seriously interfere with the owner’s 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.
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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 the 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 ownership as a right, it would be preferable to


speak of it as a collection of right, liberties, powers, and immunities, following Hohfeld’s
analysis. We must also recognize 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 an
owner.

SALMOND DEFINITION:

According to the Salmond ownership vests in the complex of rights which he exercises to the
exclusion of all others. For Salmond what constitutes ownership- a bundle of rights which is here
in an individualSalmond’ss definition thus point out two attributes of ownership-

1. Ownership is a relation between a person and the right that is vested in him
2. Ownership is incorporeal body or form.2

2
Mahajan’s, V.D. “Jurisprudence and Legal Theory”, Eastern Book Company,
Fifth Edition, Pg. no.290.
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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 the property.

3. The Government may demand certain taxes from the owners of the property. If those taxes are
not paid, the Government may confiscate their property of that portion of the property which is
necessary to realise the 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.
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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.3

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:

1.1 Absolute – When a thing is acquired res nullius, i.e. , which has no previous owner.

1.2 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.

1.3 Original acquisition of ownership may also be by a specification which means a person by
working upon 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 the produce of lands or
animals or fruits of trees. Manu has termed this mode of acquisition as Prayog which means
acquiring by accession.
3
Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law
agency,  ed.2013 Pg. no. 415.
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2. 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 the 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 a person has in fact possession over a thing but law due to certain
reasons does not recognize it as a 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 the 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.
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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 a means of controlling the 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.4

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 a 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 a 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 one’s duty
towards others. It came to be recognised that limitation are integral to the concept of property,
and not an 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

4
Fitzgerald, P.J. “Salmond on Jurisprudence”,Universal Books Publications, 12th Edition, 2013.
Pg. 256.
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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.5

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

Firstly, the gap between employer and labour class is gradually narrowing down due to the 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 the 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.

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.6

6
Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law
agency,  ed.2013 Pg. no. 426.
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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 the 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 of four rights, namely:

1. Using the things;

2.excluding others from using it;

3.disposing of things; and

4.destroying it.
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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.

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.
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BIBLIOGRAPHY

BOOKS
 Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency, 
ed.2013 Pg. no. 426.
 Fitzgerald, P.J. “Salmond on Jurisprudence”,Universal Books Publications, 12 th Edition,
2013. Pg. 256.
 Mahajan’s, V.D. “Jurisprudence and Legal Theory”, Eastern Book Company, Fifth
Edition, Pg. no.290.

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