CONCEPT OF PROPERTY

Property is physical or intangible entity that is owned by a person or jointly by a

group of persons or a legal entity
In legal terms, property can refer to the right of ownership or the bundle of
rights associated with the ownership of a thing. These rights may include the right
to use, enjoy, and dispose of the property
The owner of the property, can based on the nature of property consume, sell, rent,
mortgage, transfer, exchange or destroy it, or as per his choice exclude others
from doing these things

Types of Property#(Corporeal Property)

Real property- Combination of land and any improvements to or on the land made by
human effort. This is also known as immoveable property, real estate or realty
Example any buildings, machinery, wells, dams, ponds, mines, canals, roads etc.
Personal property- Physical possessions belonging to a person. In common law it is
also called as chattels. It is commonly known as 'moveable property’.
Example car, jewelry, watch, horse, dog, cattle etc.

Type of Property#(Corporeal Property)

3. Private property- Property owned by legal persons or business entities
4. Public property or collective property- Property owned by state or community or
government. This property is dedicated to the use of the public
Example public parks, roads, public transport buses, trains etc

Type of Property#(Incorporeal Property)

Incorporeal property also called as intellectual or conventional property. It
includes all those valuable interests which are protected by law. Incorporeal
property is intangible. It cannot be perceived by senses.
Examples - Patents, Copyrights, Trademarks etc

Type of Property#(Incorporeal Property)

Incorporeal property further divided into two categories depending on the right
provided by the law. viz Jura in re propia (Means right over the property) and Jura
in re aliena (Means right over the other property).

Encumbrance
An encumbrance is a third party's right to, interest in, or legal liability on
property that does not prohibit the property's owner from transferring title (but
may diminish its value)
They may be financial (for example, liens) or non-financial (for example,
easements, private restrictions)
Alternatively, they may be divided into those that affect title (for example, lien,
legal or equitable charge) or those that affect the use or physical condition of
the encumbered property (for example, restrictions, easements, encroachments)
Encumbrances include security interests, liens, servitudes (for example, easements,
wayleaves, real covenants, profits a prendre), leases, restrictions, encroachments,
and air and subsurface rights

General Characteristics of Property

Traditionally following principles are attributed to existence of a property rights
Control of the use of the property
The right to any benefit from the property (examples: mining rights and
rent)
The right to transfer or sell the property
The right to exclude 'others from the property

General Characteristics of Property

Traditional property rights however exclude uses of property that unreasonably
interfere with
The property rights of another private party (the right of quiet enjoyment).
The public property rights, including uses that interfere with public health,
safety, peace or convenience.

Attributes of Property
Possession
Possession, is defined as control over a resource based on the practical inability
of another to contradict the ends of the possessor
Title
Title is defined as the expectation that others will recognize rights to control
resource, even when it is not in possession

Possession
Salmond divides possession into 'incorporeal' and 'corporeal' and defines corporeal
possession as "the continuing exercise of a claim, there are two elements the
'corpus' and 'animus’
Corpus
Corpus means that there exist such physical contact of a person with a thing as to
give rise to a reasonable assumption that others will not interfere with it
Animus
The corpus (the physical control) alone cannot constitute the possession. Animus is
necessary. It means that there must be an intent a mental consciousness on the part
of the possessor to exclude any interference by others

Possession
Corpus
Corpus depends upon the nature of the thing. Thus whether in a particular case the
necessary physical relation exists or not depends among other things upon the
nature of the thing as well
The contract or relation has two aspects:
The relation of the possession to other persons
The relation of the possession to the thing possessed

Possession
Corpus
The relation of the possession to other person
According to Salmond, a person is in possession of a thing if it create a
reasonable expectation that he will not be interfered by anyone in the use of it.
(What is this right called? What is it’s nature?)
The relation of the possessor to the thing possessed
Salmond says that "the necessary relation between" the possessor and thing
possessed is such as to admit of his making such use of it as accords with the
nature of the thing and of his claim to it.
(Ancona v Rogers)

Possession
Animus
The important things about animus are:
a) The person having the animus is not necessarily the owner and he is also aware
of it. For e.g., a tenant and a mortgagee are not owners and they know it.
b) The animus is not necessarily based on a possessors own interest or right as in
the case of bailee. He has the possession of the object hailed although the animus
to exclude others is not on his own behalf.
c) It is not necessary that the animus should be specific, it may be a general
animus.
d) It is not necessary that the animus should be based on a legal claim to the
object.
e) The animus must be of exclusive claim to the object.

EXERCISE

‘A’ purchased a table in an auction and found a purse in one of its drawers.
Subsequently, ‘A’ discovered that there was some money in the secret drawer
belonging to the vendor but he appropriated the same
i. Whose purse was it?
ii. Whether ‘A’ will take it or has the right to keep it?
(Merry v. Green (1847) 7 M & W 623)

2. XYZ Corp., a company owned a pond upon their land. The company employed ‘B’ to
clean the pond. During the cleaning operation, ‘B’ found gold rings at the bottom
of the pond.
i. Who has the possession of the rings?
ii. Whether ‘B’ can take it or has the right to keep it?
(South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44)

3. A person found a bundle of notes from the stairs of a shop and gave it to the
shopkeeper and asked the shopkeeper to give it to the person to whom it belongs
(all efforts were used but couldn’t found the real owner) and the shopkeeper keeps
it and the person who found it filed a case on the shopkeeper
i. Who would possess the notes?
(Bridges v. Hawkesworth (1851) 21 LJ QB 75)

4. ‘A’ was a soldier and he was asked to stay in a house and he found a brooch from
there and kept it to himself. ‘B’ filed a suit against the soldier claiming that
the soldier did not have any rights over the brooch.
i. What do you think would be the right decision in this scenario?
(Hannah v. Peel (1945) 1 KB 509)

5. A boy found a jewel and took it to the shop of the defendant to know its value.
The defendant refused to return to the boy on the ground that the boy was not the
owner.
i. What do you think would be the right decision in this scenario?
(Armorie v. Delamince 1 Stra (1722) 505)

Doctrine of Res Nullius

The term "res nullius" is a Latin phrase that translates to "nobody's thing" or
"nobody's property."
In legal terms, it refers to things that are considered unowned or ownerless. The
concept of res nullius is often associated with the law of finders, where someone
who discovers an ownerless object may have a valid claim to ownership.
For example,
Imagine someone finds a valuable item, like a wallet, on a public street. If the
wallet is unattended, and there's no obvious owner nearby, it might be considered
res nullius. In many legal systems, the finder may have a claim to ownership of the
wallet, as it is treated as an ownerless object. The doctrine of res nullius, in
this context, allows the finder to acquire legal rights over the wallet by taking
possession of it.

Doctrine of res nullius and its operation in India

Here are a few aspects related to res nullius in India:
Treasure Trove:
The concept of treasure trove in Indian law is related to the doctrine of res
nullius. Treasure trove typically refers to valuable items (such as coins, jewelry,
or other valuable artifacts) that are hidden or buried with no apparent owner. In
India, the Treasure Trove Act of 1878 provides guidelines for dealing with such
discoveries. The person who finds a treasure trove may be entitled to a reward, but
the ownership may ultimately vest with the government.

Doctrine of res nullius and its operation in India

Unclaimed Property:
In situations where property is abandoned, unclaimed, or its ownership is unclear,
the legal system may treat it as res nullius. For example, if a piece of land is
left unattended and unused for an extended period, and there is no clear owner,
legal mechanisms may allow for the acquisition of ownership by someone who follows
the prescribed procedures.
Wild Animals:
The concept of res nullius may also apply to wild animals. Generally, wild animals
are considered res nullius until someone captures or kills them.

Ownership
Ownership is an akin conception of possession.
It seems historically that first the concept of possession came into being and then
the concept of ownership gradually developed out of it due to changes in the
economic structure of the society.
Ownership has a peculiar kind of relationship between a person and a thing. This
relationship can be looked from two different angles.
The rights of ownership constitute the three important rights which are:
1) The right of possession of the property owned.
2) The right of enjoyment of the property, which includes in it the power to
deal with the property as the owner likes.
3) The right to dispose the property

Difference between possession & ownership

Theories of Property
Natural law Theory
According to this theory, property was first acquired by occupation of an ownerless
object
This means that whosoever occupies a piece of land and by his toil does something
to the land becomes the owner of that property
The advocates of this theory are Grotius, Pufendrof, Locke and Blackstone
Grotius is of the above view that whosoever occupied a property becomes the owner
of that property as he thinks that all things originally do not have any owners so
the one who occupies or captures that property becomes the owner of that thing

Theories of Property
Natural law Theory
Pufendorf is of the view that the property belongs to the people as a whole and
thus there is no concept of individual ownership. He is of the view that the
concept of private ownership is the result of a pact or a private agreement
Blackstone is of the view that the one who possesses a piece of property continues
to be the owner of the property as long as he uses that property. So in case he
continues using it for perpetuity he will be the owner forever
Thus one can say that the natural theory was of the view that whosoever possesses a
property becomes the owner of that property as long as he uses it
Theories of Property
Key elements of Natural law Theory
Natural Rights
Ownership and Labour
Justice and Equity
Limits on Property Rights
Relationship to Government

Theories of Property
Metaphysical Theory
Kant and Hegel were the propounders of this theory
According to this theory ‘a property is mine if I am so connected with it in a way
that if somebody uses it against my will or direction causes the act of injury to
me’
According to Kant property is a part of the human personality and so its existence
and protection is necessary
This theory was criticized as it was not much concerned with the realities but
based on metaphysical notions

Theories of Property
Metaphysical Theory
At its core, the metaphysical theory of property asserts that individuals have
inherent or natural rights to possess and control certain resources or objects.
These rights are often considered to be derived from fundamental principles of
human existence, morality, or the nature of reality itself.
Proponents of this theory argue that property rights are not granted by
governments or social agreements but are inherent to individuals by virtue of their
humanity or their relationship to the natural world.
Hegel's philosophy posits that the development of self-consciousness and
individuality involves the externalization of one's will and personality into
objects in the external world. In this view, property ownership is essential for
individuals to realize their freedom and autonomy within society.

Theories of Property
Key Elements of Metaphysical Theory
Ontological Basis
Natural Rights
Ethical Considerations

Theories of Property
Utilitarian Theory
Utilitarianism holds that property rights should be allocated and regulated in a
way that maximizes overall social welfare or utility.
This means that property rights should be structured and enforced in a manner that
contributes to the greatest good for the greatest number of people.
Property rights are seen as instruments for promoting individual well-being while
also serving broader social goals, such as economic development, stability, and
social justice.
Jeremy Bentham, John Stuart Mill are key proponents

Theories of Property

Key Elements of Utilitarian Theory

Maximization of Utility
Balancing Individual and Collective Interests
Efficiency and Allocation
Distributional Considerations
Flexibility and Adaptation

What is a right?

According to Austin right is a 'faculty which resides in a determinate party or

parties by virtue of a given law and which avails against a party or parties (or
answers to a duty lying on a party or parties) in whom it resides.’
According to Salmond, right is an interest recognized and protected by a rule of
law. It is an interest respect for which is a duty, and disregard of which is a
wrong.

Kinds of Rights
Natural Rights
Natural rights are rights that are considered inherent to human beings by virtue of
their nature or existence. They are often seen as fundamental and inalienable,
meaning they cannot be justly taken away or violated. Examples include the right to
life, liberty, and property, as articulated by philosophers like John Locke.
Legal Rights
Rights that are recognized and protected by law within a particular legal system.
They are enforceable through legal institutions and mechanisms.

Kinds of Rights
Positive Rights
Rights that entail an obligation on others to provide or facilitate certain goods,
services, or opportunities. They typically require active intervention or
assistance from governments or other institutions to fulfill. Examples include the
right to education, the right to healthcare, and the right to housing.
Negative Rights
Rights that impose duties on others to refrain from interfering with certain
freedoms or actions of individuals. They are often characterized by non-
interference and non-violation. Examples include the right to freedom of speech,
the right to privacy, and the right to be free from torture or cruel treatment.