ownership

INTRODUCTION:

                       Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate, or some other kind of property (like government-granted monopolies collectively referred to as intellectual property). It is embodied in an ownership right also referred to as title.

                      Ownership is the key building block in the development of the capitalist socio-economic system. The concept of ownership has existed for thousands of years and in all cultures. Over the Trenton however, and across cultures what is considered eligible to be property and how that property is regarded culturally is very different. Ownership is the basis for many other concepts that form the foundations of ancient and modern societies such as money, trade, debt, bankruptcy, the criminality of theft and private vs. public property.

                     The process and mechanics of ownership are fairly complex since one can gain, transfer and lose ownership of property in a number of ways. To acquire property one can purchase it with money, trade it for other property, receive it as a gift, steal it, find it, make it or homestead it. One can transfer or lose ownership of property by selling it for money, exchanging it for other property, giving it as a gift, being robbed of it, misplacing it, or having it stripped from one's ownership through legal means such as eviction, foreclosure and seizure. Ownership is self-propagating in that if an object is owned by someone, any additional goods produced by using that object will also be owned by the same person.

                   In primitive society only concept known to human mind was that of possession. It was very much latter that the concept of ownership was adopted[1]. So long as men were huntsmen or herdsmen they were nomadic in character and had no setelled habitation, had no sense of ownership. Gradually with the palnting of trees and the cultivation of the land the settlement of a local home and the notion of the ownership began to grow. The synchronized with the change from a normadic to settle life. The transition from a postoral to an agriculture economy facilities the development of the idea  individual right  to property  which is the basis of the concept of ownership in a relatively development society.

Ownership basically implies two element namely will, power, capacity, faculty , etc. another one  is material element of his ownership i.e. the thing element of his ownership, while his power under the law to spend it, to gift it or to will it is the formal element of his ownership.

DEFINTION OF OWNERSHIP:

                                Austin has suggested three implies attributes viz.,

1.      Indefinite user

2.      Unrestricted disposition

3.      Unlimited duration

By the right of indefinite user Austin means that the owner of the thing is free to use or misuse the thing in a way he likes. The powner of a land may use it for walking, for building house or for gardening and so forth . however Austin was cautious enough to use the term “indefinite”. He did not use the thing owned infamy way he likes. His use if the thing is conditioned by requirements or restrictions imposed by the law.[2] The owned must not use the things owned as to injure the right of others. The principle is the foundation of the well known maxim ‘sie utere tero ut alierum non laedas’ the meaning of the maxims is that to use your own property s not to injure your neighbor’s right. Again the use of property may be restricted voluntarily e.g. town planning act, slum clearance act,1955 etc.

UNRISTRICTED DISPOSITION

 What Austin implies by unrestricted disposition is that the power of disposition of the pwner is unhampered by law meaning thereby that he is absolutely free to dispose it ot remove it to anyone.

This is incorrect. In case of lease of thousand years, servitudes and restricted, covenants, plenary control of a  property is not possible. Moreover, in the law of the some of the western countries there is rule re relegitima portis which means that the person cannot dispose of his entire property. He has to keep a certain portion of the property for the members of his family. Under mohamdan law a similar rule prevails namely a person cannot dispose and delaying creditors would be set a side.[3]

As under Hindu law government by mitakashara law cant alienation ancestral immovable property without the consent of other co perceners excepts for legal necessarily.

UNLIMITED DURATION

                It is incorrect since almost under every legal system[4] the state possesses the power to take over the property of any person in public interest.

 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.

Austin’s definition has been followed by Holland. [5] Defines ownership as plenary control over an object. According to him an owner has three rights on the subject owned:

1.      Possession

2.      Enjoyment

3.      Disposition

Planetary control over an object implies complete control unrestricted by any law or fact. Thus , the criticism leveled against Austin’s definition would apply to that given by Holland in so far as the implication of the term “plenary control” goes.

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 in here in an individual salmond’s 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

Salmond’s definition does not indicate the content of the ownership. It does nto indicate the right, powers etc. which are inplied in the concept of ownership. Again, it is not wholly correct to say that ownership is a relation between a person and right that is vested in him. As the most popular and common idea of ownership is a relationship between a person and a thing.dugit says the thing is what is owned not the right which does not really exist.

Fredrick Pollock improves upon other definition when he defines ownership as the entirety of the power of use and disposal allowed by la. Prof. Keeton expresses a similar view when he observed that ownership is the ultimate right to the enjoyment in persons other than the one entitiled to the ultimate use are exhausted.

These two definition gives relatively a more proper connotation of the term ownership. They bring out the most important fact that ownership is always subject to limitation imposed by the law, it is ultimate right to the employment of a thing subject to the condition or restriction imposed by lawas to the use of the thing owned. Keeton has added another obvious dimension to the definition of ownership when he speaks of ultimate use are exhausted. Thus the owner may mortgage his house give it to tenant after the rights of the mortgagee or tenant are exhausted.

We may in conclusion say that-

1.      Ownership is a right which comprise of powers, claims,privilrges etc.

2.      Ownership is in respect of s thing may be corporeal or incorporeal

3.      The right relating to or connection with ownership are subject to the state regulation i.e. can be limited or restricted by law

4.      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 or those imposed by law are exhausted

5.      Ownership does not imply or indicate absolute or unlimited rights either use, disposal or duration.

INCIDENTS

                   Normally ownership implies the (a) the right to manage; (b) right to posses;(c) the right to manage;(d) the right to capital;(e) the right to the income.[6]

 The owner of a thing has the right to possess it, to the exclusive of all others i.e. the owner has exclusive physical control of a thing or such control possess the thing but this is not necessary and always so.  Thus to cite only a few examples, the owner may have been wrongfully deprived of it or may has voluntarily devised himself of it. If A’s watch is stolen by B, the latter has possession but the former remains the owner with an immediately right to possess. In case of lease[7] and mortgage[8], the owner(i.e. the lessor and the mortgagor) owns the property without possession  lies , with the lesser and the mortagagee.

 The owner has the right to use the subject matter of ownership according to his own discretion. Here use means personal use and the enjoyment of the thing by the owner. This right of enjoyment or use is not absolute; it can be and is in fact, limited by law. This does not mean that an owner cannot there by disturb the right of others. Suppose A owns a transistor, ha can not  tune it at any time for listening music, for news or for commentary, but in doing so he is to take care that he does not disturb the right of others. Thus he cannot tune it at a high pitch and at an odd time so as to disturb the right of others. Thus he cannot tune it at a high pitch and at an odd time so as to disturb the sleep of others. 

 The owner has right to manage i.e., he has the right to decide how and by whom the thing ownedshall be used. The owner has the power contracting the power to admit others to ones land, to permit others to use one’s things, to define the limits of such permission, to creat a right of easement over his land in favour of a third person etc.

One who owns a things has also the right to alienate the same or to waste, destroy or to consume the whole or part of it. The right to consume and destroy are straightforward liberties. The right to alienate[9] i.e. the right to trsnsefer his right over object to another involves the existence of a power. Almost all legal system provide for alienation is the exclusive right if the owner. A non-owner may have the possession of a thing but he cannot transefre the right of ownership of such thing to another[10]e.g. , in case of lease, a lessee may have the possession of the leased property but he cannot transfer it because that is the exclusive right of the lessor who only can do so.

       The ownership of the a thing has not only the right to possess the thing but also the right to the fruit and income of the things within  the limits , if any, laid down by the law. Suppose A’ has a land  he has not only the right to possess that the land but he can enjoy benefits resulting there from e.g., produce, fruits, crops, etc. sometimes the use or the occupation  of a thing to possess that the land but hacan enjoy benefits resulting there from e.g. produce fruits ,as the simplest way of deriving an income from it and of enjoying it.[11]

TYPES OF OWNERSHIP:

1.      Vested and contingent ownership

2.      Sole and co-ownership

3.      Corporal and in corporal ownership

4.      Legal and equitable ownership

5.      Trust and beneficial ownership

6.      Absolute and limited ownership

ANCIENT HINDU[12] MODES OF ACQUISTION OF OWNERSHIP:-

     Ancient Hindu jurist have said much about the means of acquiring ownership. Manu declared that there are seven virtuous means of acquisition of wealth viz. inheritance, gain, purchase, conquest, application, employment of the work and of and acceptance of gifts from proper persons. Gautam gives almost the same seven ways of acquiring ownership but he puts some modification to the list given by manu.

Narada enters in to more details and says that  there are twelve diffirent modes of scquiring wealth of which three are general i.e. open to all caste and the rest are peculiar to several castes.

These specific modes of acquiring wealth are proper for several casts and any contravention is reprehensible unless by pressing necessity.[13]

MODERN LAW AND OWNERSHIP

                            Under modern law there are the following modes of acquiring ownership which may be be broadily classed under two heads,viz,.

1.      Original mode

2.      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

a.       Absolute when a ownership is acquired by over previously ownerless object

b.      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.

c.       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.