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DEFINITION OF OWNERSHIP
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.
Austin’s definition:
Austin while defining ownership has focused on the three main attributes of ownership,
namely, indefinite user, unrestricted disposition and unlimited duration which may be
analysed in detail.
1. Indefinite User:
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 pawner 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. 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 neighbour’s right.
Again the use of property may be restricted voluntarily e.g. town planning act, slum
clearance act, 1955 etc.
2. Unrestricted Disposition:
What Austin implies by unrestricted disposition is that the power of disposition of the
pawner is unhampered by law meaning thereby that he is absolutely free to dispose it to
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 aside. As under
Hindu law government by mitakashara law can’t alienate ancestral immovable property
without the consent of other co perceners except for legal necessity.
3. Unlimited Duration:
It is incorrect since almost under every legal system 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. He 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 levelled against Austin’s definition would apply to that given by
Holland in so far as the implication of the term “plenary control” goes.
Salmond’s 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. 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 not indicate
the right, powers etc. which are implied 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.
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 he can enjoy benefits resulting there
from e.g. produce fruits, as the simplest way of deriving an income from it and of
enjoying it.
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. For example, building or
land owned by a person can be acquired by the state for lodging army personnel during
the period of war.
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 owner’s 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.
CONCLUSION
We may in conclusion say that:
1. Ownership is a right which comprise of powers, claims, privileges etc.
2. Ownership is in respect of a 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.
There is a strong necessity for possessory remedies to be recognised. The reason for this is:
Possession often amounts to evidence of ownership. A finder of goods becomes its
owner against the whole world except the true owner. This is on the ground that he is in
possession of it. If a person is in adverse possession of a property for 12 years or more he
becomes the legal owner of that property and the right of the original owner is
extinguished.
The evils of violent self help are very serious and in all civilised countries, those are
prohibited. In order that force should be avoided by the owners and that lawful means
are used there should always be protection of possessory rights.
Another reason for possessory rights is to be found in the serious imperfection of early
proprietary rights. Those were cumbersome, dilatory and efficient. The position of the
plaintiff was a very difficult one and no person was to be allowed to occupy the
advantageous position of the defendant. It was under these circumstances that it was
provided that the original state of affairs must be restored first. Possession must be
given to him who had it first and then alone the claims of other persons can be settled.
Another reason for possessory remedies is that it is always more difficult to prove
ownership than to prove possession. Hence it is unjust that a person who has taken
possession of property by violence should not be allowed to transfer the heavy burden of
proof from his own shoulders to that of the opponent. He who takes a thing by force
must restore it and he is free to prove that he is the owner.
v Code of Criminal Procedure, 1973: S.145 lays down a procedure where a dispute
concerning land or water is likely to cause breach of peace. The Supreme Court has
observed that the object of the section no doubt is to prevent breach of peace and for
that end to provide speedy remedy by bringing the parties before the court and
ascertaining who of them was in actual possession and to maintain status qup until their
rights are determined by a competent court. S. 456 of the Act provides that when a
person is convicted of an offence attended by criminal force or criminal intimidation any
person has been disposed of any immovable property the court may within one month
after the due date of conviction order that possession of the same be restored to that
person.
v Sale of Goods Act, 1930: S. 47 of the Act provides for sellers lien, lien is a right to retain
possession of goods until certain charges due in respect to them are paid. The unpaid
seller has a right to retain the goods until he reserves that price. S. 47 provides that the
unpaid seller of goods who is in possession of them is entitled to retain his position until
payment of the price in the following cases:
1) where the goods are being sold without any stipulation as to credit
2) where the goods are being sold on credit but the term of credit has expired.
3) Where the buyer becomes insolvent.
S.48 provides for part delivery where an unpaid seller has delivered a part of the goods
he may exercise his lien on the remainder.
v Indian Contract Act, 1872: S. 168 of the Act provides for right of finder of goods. Section
168 provides that the finder of goods has no right to sue the owner for compensation for
trouble and expense voluntarily incurred by him to preserve the goods and to find out
the owner but he may retain the goods against the owner until he receives such
compensation and where the owner has offered a specific reward for the return of goods
lost, the finder may claim such reward and retain such goods till the reward is given.
S. 169 provides that when a thing which is commonly the subject the sale is lost, if the owner
cannot with reasonable diligence be found or if he refuses upon demand to pay the lawful
charges of the finder, the finder may sell it:
1) When the thing is in the danger of perishing or losing the greater part of its value.
2)When the lawful charges of the finder in respect of the thing found amounts to two
thirds of its value.
Possessory Remedies And Doctrine Of Jus Tertii: Possessory remedies have been rejected by
English law but other provisions have been made to protect possession, there are three
rules in this connection, prior possession is prima facie proof of title, he who is in
possession first in time has a better title than the one who has no possession, a
defendant is always at liberty to rebut that presumption by proving that he has a better
title. A defendant who has violated the possession by the plaintiff is not allowed to set up
the defence of jus tertti, which means that he cannot plead that – though neither the
plaintiff nor he has the title, some third person is the true owner but the plaintiff is not.
English law considers jus tertii as a good defence under the following circumstances,
1) when the defendant defends the action on behalf of and by the authority of the true
owner.
2) When he committed the act he complained of, by the authority of the true owner.
3) When he has already made satisfaction to the true owner by returning the property to
him
Q.Discuss various modes of acquisition of possession. Q. Define
possession. What are various kinds of possession? Q. Discuss the
difference between possession and ownership. Q. Write a
comprehensive note on direct, indirect and duplicate possession.
Give illustrations whenever necessary.
Introduction:
Possession is one of the most important concept in the whole range of legal history. It is
a mere fact which has an enormous legal significance to which legal rights are attached
and legal consequences flow from the loss and acquisition of possession. So that topic of
acquisition of possession is very important in the study of possession. Possession is also
divided into eight different kinds.
Definition Of Possession:
I. According To Salmond:
“The possession of the material object to the continuing exercise of a claim is
the exclusive use of it.”
II. According To Pollock:
“In common speech, a man is said to possess or to be in possession of anything
which has the apparent control or from the use of which he has the apparent power of
excluding others.”
Modes Of Acquisition Of Possession:
Possession is acquired whenever the animus and corpus united. So there are there
modes of acquiring possession.
Taking
Delivery
Operation of the law
Taking:
Possession is acquired by taking with the requisite animus, and it is done without the
consent of the owner. It may be done in the following ways:
Rightful taking of possession:
A shopkeeper is entitled to get some money from a customer and the shopkeeper takes
possession of the things of the customer. This is an example of the rightful taking of
possession.
Wrongfully taking of possession:
If a thief steals something from an individual, his acquisition of possession is wrongful.
Original taking of possession:
If a person captures a wild animal which does not belong to anybody, the possession is
called original.
Delivery:
Another way of acquisition of possession is by delivery. In this case, a thing is acquired
with the consent and co-operation of the previous possessor.
Kinds Of Delivery:
It is of two Kinds:
Actual
Constructive
Actual delivery:
In Actual delivery, the union of the corpus and animus is brought about for the first time
in the transferee, as a result of the delivery by the transferor. The transferor may or may
not retain mediate possession depending on the nature of the transaction.
Example:
‘A’ lend his book to ‘B’ ‘A’ retain the mediate possession of the book but if ‘A’ sells this
Book to him, he lose mediate possession.
Constructive Delivery:
To salmond, constructive delivery is that which is not actual, that is to say there are no
physical dealings with the thing but mere change of animus intention possession is
secured.
Forms of constructive delivery:
It may take may of 3 forms or kinds.
Traditio brevi manu:
In this case, possession is surrendered to one who has already in possession of it e. g., I
lend you a book, afterwards make a presents of it to you.
Constitutum Possessorium:
In this case, mediate possession is transferred to the transferee and transferor to the
transferee and and transferor still holds the immediate possession.
Example:
I buy books from the shop. The shopkeeper agrees to holds books on my account, it is a
constructive delivery.
Attornment:
In this case, there is transfer of mediate possession from the transferor to the transferee
while the immediate possession remains outstanding in some third person.
Example:
‘A’ sells land to ‘B’ C is in possession as a tenant ‘C’ agree with the ‘B’ to hold for the
future on his account of ‘A’ Here ‘B’ secures mediate possession by constructive delivery
by way of attornment.
Operation Of Law:
The law removes goods from the control of one person to the control of another e. g., If a
person dies, the possession of his property is transferred to successors and legal
representative.
Resnullius:
According to this principal, the first finder of a thing has a good title to that thing
against all but the true owner.
Exceptions:
This rule is subject to the following exceptions:
The rule does not apply if the owner of the property on which the thing itself and the
property.
If the finder finds the thing as the servant or agent of another person.
If the possession of the thing was got through trespass or other wrongful, act.
Immediate And Mediate:
Immediate possession:
Immediate possession is also called direct possession. If the relation between the
possessor and the thing possessed is a direct one it is a case of immediate possession.
Example:
If ‘A’ go to the bazaar and buy thing personally, it is a case of immediate possession.
Mediate possession:
Mediate possession is also knows as indirect possession. When the relation between the
possessors and the thing is through the intervention or agency of some other person, it
is called mediate possession.
Example:
If ‘A’ send his agent to the bazaar to buy something and he does make the purchase, the
possession of ‘A’ is mediate.
Categories of Mediate Possession:
There are three categories of mediate possession.
First category:
In it, the owner has possession through an agent or servant who acquires and retails
possession of a thing entirely on behalf of the owner without claiming any interest for
himself e. g., buying a book on behalf of owner.
Criticism:
It is pointed out that in case of an agent or servant, he dose not possess the thing but has
merely the custody of the thing. The animus possidendi is lacking.
Second category:
In the second category, the immediate possession is whit a person who holds the thing
on his behalf and the behalf of some other person and who is bound to hand over the
thing whenever that other person desire e. g., where someone borrows a book from
someone.
Criticism:
It is pointed out that two persons cannot be in possession of the same thing at the same
time adversely to each other. The reason is that if one person has both the corpus of
possession and the animus possidendi he has full possession of the thing.
Third category:
In the case of third category, the immediate possession is with one person but he is
bound to return the same after a certain period or on the fulfillment of certain
conditions.
Example:
If ‘A’ owe some money to ‘B’ and pledge certain things to him ‘B’ has immediate
possession of the thing pledged but is bound to return the same to the ‘A’ on payment of
the debt.
Corporeal And Incorporeal Possession:
Corporeal Possession:
Corporeal possession is the possession of a material object e. g., possession of a car,
books etc.
Incorporeal Possession:
Incorporeal possession is the possession of anything other than material object. It is the
possession of a right e. g., possession of a copyright etc.
Representative Possession:
Representative possession is that in which the owner has possession of a thing through
an agent or servant. The essence lies in a fact that the master has the animus (intent) to
exercise control over the thing in the hands of his servant or agent.
Concurrent Possession:
In the case of concurrent possession, the possession of a thing may be in the hands of
two or more persons at the same time but heir claims are to adverse or destructive to
each other.
Example:
I am possess a piece of land and another person may have the right of way on the same
land.
Derivative Possession:
In derivative possession, the holder of the thing combines in himself both the physical
and mental elements which constitute legal possession e. g., creditor has derivative
possession of the thing pledged to him.
Constructive Possession:
It is not an actual possession. It is a possession in law and not in fact.
Example:
Giving of key of a building is the giving constructive possession of the building.
Adverse Possession:
The possession of property by a person is adverse to every other person, having or
claiming to have right to the possession of the same, by virtue of a different title when
adverse possession is established, it extinguishes the title of true owner.
Condition for Adverse Possession:
Possession must be an invasion of the ownership of another i. e., ownership must belong
to some other person.
Possession should be actual exclusive and adequate in continuity and publicity.
Possession must be exercised without violence.
It should be exercised openly i. e., without stealth.
The act of possession must be without permission.
Duplicate Possession:
Claims to possession which admit of concurrent realization give rise to duplicate
possession.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to the nation and are
applicable on the country’s people.
2. Local Customs :- Those customs which are related with a particular locality.
3. Family Customs :- Those customs which are related with a family and have
application on a particular family.
4. Conventional Customs :- These customs based upon conventions e.g. a bigger
part of English Law based on customs and conventions.
ESSENTIALS OF CUSTOMS
Following are the essential elements of a custom:
1. Antiquity:
A custom must be in existence from time immemorial. English law fixed the year 1189 to test the antiquity of a custom. A custom must
be in existence prior to 1189, only then it can prove the consideration of antiquary. Under Hindu law also immemorial customs are
transcendental law. However India law does not fix any particular year to test the antiquity of custom.
2. Continuance:
A custom must be practiced without interruption; continuity is an essential feature of the custom. Continuity does not mean that it
should be in operation all the time. It means that there should be a continuous availability of the terms of the customs to deal with
particular rule of conduct with which it deals. Presence 6f custom if fact and its enforceability both are essential to prove antiquity. If a
custom becomes legally unenforceable even for a short time it would not the recognized as a valid' custom.
3. Peaceable enjoyment:
It is essential that custom must have been enjoyed peacefully by the concerned people.
4. Matter of right:
Custom must have been enjoyed as a matter of right. This right should be enforceable. Thus custom must result in creating obligatory
force at the one hand and related claim on the other hand. If a practice is observed as a courtesy and not as a matter of right then it can
be termed a "custom" in legal sense.
5. Certainty:
Custom must be certain. If the nature of the custom is not certain then it loses its validity. Custom originate from general consent, it is
hard to determine existence of consent, on something which is not certain.
6. Consistency:
A custom must not be in conflict with other prevailing customs. The customs must be in consistency with other custom. Difference or
inconsistency in custom will amount to different rule of conduct for a given situation; it will negotiate the general consent.
7. Conformity with statute law:
Custom should be conformity with statute law. A legislative enactment can abrogate a custom. In case of inconsistency between custom
and statutory provision, former must give way to the latter. Thus, custom yield legislative enactment.
WHEN DOES A CUSTOM BECOME LAW.
ANALYTICAL VIEW:- Austin and Gray are the supporters of analytical school. They
say that a custom becomes law when it is recognized by the sovereign in the sense of
positive law only.
It means that if a custom has been accepted or adopted or recognized by the
sovereign then it will become a law otherwise there will be no value of the custom in
judicial system of the society.
HISTORICAL SCHOOL:- Sovereign as the supporter of Historical school says that
custom is a main source or base of law He says that “ consciousness of the volkgiest is
the main source of law.”
Custom is superior to Judge made law or legislation. The legislation while
making a law recognizes the customs of the society. The courts also while giving the
decisions recognized the customs prevailing in the society.
CONCLUSION
Custom occupies an important place as a source of law even to these days because most
of the material contents of developed system of law have been drawn from ancient
customs. Custom is one of most fruitful sources of law. According to Analytical school a
custom when recognized by State or sovereign becomes law. According to Historical
school when state or courts make law they give importance to the customs. So both of
the view are combining to each other and are correct for a custom as source of law.
DEFINE AN OBLIGATION. BRING OUT THE SOURCES OF
OBLIGATIONS WITH EXAMPLES.
According to Salmond, ̳an obligation may be defined as a proprietary right in
personam or a duty which corresponds to such a right‘. Obligations are merely one class
of duties, namely, those which are the correlatives of rights in personam. An obligation
is the vinculum juris, or bond of legal necessity, which binds together two or more
determinate individuals. It includes the duty to pay a debt, to perform a contract, or pay
damages for tort, but not the duty to refrain from interference with the person, property
or reputation of others.
In general sense the term obligation is synonym to duty. We must know one thing about
duty that it is only part of the broader term obligation.
H.L.A.Hart observes that obligation exists by virtue of rule. According to him
obligations can be moral as well as legal. He identifies the following differences between
moral and legal obligations:
Every moral rule is treated as being important, but this not so with every legal rule.
Moral rules are not changed by deliberate single acts, while legal rules can be so
changed.
Breach of moral rules requires voluntary and blameworthy conduct, but many legal
rules can be broken without fault.
Moral pressure is applied mainly to appeal to the morality of the conduct, whereas legal
rules are applied mainly by coercion.
According to Holland, ̳an obligation, as its etymology denotes, is a tie whereby
one person is bound to perform some act for the benefit of another. In some cases, the
two parties agree thus to be bound together; in other cases, they are bound without their
consent. In every case, it is the law that ties the knot and its untying, solution, is
competent only to the same authority‘
Obligation is a synonym for duty.
Obligations may mean one class of duties corresponding to rights in personam. E.g.: To
collect rent.
Obligation may be vinculum-juris (bond of legal necessity). It binds together two or
more individuals. Duty to pay a debt, to perform a contract, to pay damages for torts etc.
Obligation is not merely a duty but it is also a right. Further, an obligation belongs to the
group of proprietary rights i.e., the right forms part of the estate of the owner.
Therefore, an obligation is defined as a
proprietary right in personam or a duty which corresponds to such a right.
"Person entitled" is called a creditor and the person who is bound, is the debtor in a
narrow sense. The technical equivalent of an obligation is choses in actionor thing in
action.
E.g.: Debt, a share in a company, claim for damages for tort etc.
The normal type of obligation is between a creditor and a debtor.
There may be two or more creditors or debtors, but in such a case, there may beco-
owners or persons jointly bound.
Eg.: 1) Debts by a partnership firm.
2) Debts by principle debtor, guaranteed by one or more sureties.
3) Liability of two or more tort-feasors.-
Hence, the creditor is not obliged to divide his claim into as many different parts
as there are debtors. He may recover the entire amount from one debtor and leave that
debtor to recover from the co-debtors. If A and B partners of a firm owe Rs.1000 to
creditor C,it does not mean that A and B are under an obligation to pay Rs.500/- each.
The debt is single and therefore can be recovered from any person A or B. If the debt is
one or single, it is called solidary obligation. That is,
each debtor is bound is solidum instead of proparte. (Proportionate part).
Hence a solidary obligation may be defined as an obligation in which two or more
debtors owe the same things to the same creditor.
There are three distinct types:
1. Several
2. Joint and
3. Joint and several.
1. Several: It is several where the thing owed is the same but there are many
obligations as there are debtors. Each debtor is bound to the creditor by a distinct and
independent Vinculum juris. But the obligation is the same. Hence, performance by one
debtor discharges
all debtors.
2. Joint: Here, there are two or more debtors but there is only one debt. If one is
discharged, all others get discharged.
3. Joint and several: Law treats this for some purposes joint and for other
purposes several.
In order to find out the class to which an obligation belongs, it is necessary to find out
the origin.
Examples:
1) Several:
Principal debtor and surety-where the suretyship is in a separate agreement. But, if it is
in the same agreement it becomes a joint obligation.
2) Joint:
Debts of partners.
3) Joint and several :
(i) Joint tort feasors (ii) Contracts where the obligation is joint and several, i.e., all
together & each is individually liable.
The various sources of obligation may be :
1. Contractual.
2. Delictual E.g. Joint tort feasors.
3. Quasi Contractual.
4. In-nominate:
Eg. Obligation of trustee towards beneficiary.
A quasi-contract is a juridical relation that the law creates on the basis of certain voluntary, unilateral and lawful acts of a
person, to avoid unjust enrichment at the expense of another. In the Lopez case, the airline was made liable for damages as a result of a
breach of their contractual obligations. In 1966, the award imposed was a huge sum of money. The airline’s liability ballooned due to
the finding of bad faith on their part. As a consequence, plaintiffs were awarded moral and exemplary damages, as well as attorney’s
fees.
While the law does not exhaustively list down all quasi-contracts, it provides for two general examples.
First, in a negotiorum gestio, any person who voluntarily takes charge of the agency or management of the business or
property of another, without any power from the latter, is obliged to continue the same until the termination of the affair and its
incidents, or to require the person concerned to substitute him, if the owner is in a position to do so.
For example, if a business owner leaves and did not provide for any arrangements, the manager may voluntarily take charge despite not
being authorized to do so. Once that is done, the manager will be obligated to run the business until its termination or any pending
incident, as well as require any person concerned to be the manager’s substitute.
Best Legal Practices:
Document quasi-contractual obligations – For the interest and protection of the obligor subjected to quasi-contractual
obligations, the latter should document all expenses that he made in order to recover them as reimbursements from the obligee.
For example, if a shop owner receives payment when it is not owing from a supplier, the shop owner is required to return the sum of
money.Second, in a solutio indebiti, any person who receive something when there is no right to demand it, and it was unduly delivered
through mistake, the obligation to return it arises.
In either of the above case, as well as in any quasi-contract, unjust enrichment is not allowed resulting the reimbursement or return of
payment.
Acts or omissions punished by law as a source of obligation –
An obligation arising from an act or omission punishable by law either refers to: (a) a felony punishable under the Revised
Penal Code, or (b) a crime punishable under special laws.
For instance, administrative fines or imprisonment are imposed for violations of business laws, including but not limited to, the Labor
Code, National Internal Revenue Code, Corporation Code, Intellectual Property Code.