Ownerhip

JAMIA MILLIA ISLAMIA

“Ownership”

Project Submission as the Partial Fulfillment of Periodic Evaluation

of Jurisprudence

Submission To: Submitted By:

Prof. Eqbal Hussain

FACULTY OF JURISPRUDENCE

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TABLE OF CONTENTS

1. Acknowledgment........................................................................................... iii
2. Research Methodology.......................................................................... iv
3. Case list........................................................................................................ v
4. Abstract................................................................................................. vii
5. Introduction................................................................................................... 1
6. The Concept of Best Judgement
Assessment.......................................................................................... 2
7. The Basis for Best Judgement
assessment..............................................,…………………….............. 3
8. Key Aspects of Best Judgement
Assessment......................................................................................... 5
 Conditions precedent are alternative and not cumulative...............................
 Opportunity must be given to the assessee.....................................................
 Assessment on rejection of account...............................................................
 Reasonable nexus...........................................................................................
 Sum payable as tax must be determined........................................................
 Considerations in making Best Judgement assessment.................................
 Assessment can be made even where return is incomplete, unsigned, or unverified
return.............................................................................................................
 Best Judgement assessment can be made for non-compliance of notice under
section 142(1)/section 143(2)..........................................................................
 Refusal of Chartered Accountant to undertake audit under section 142(2A) cannot
lead to best Judgement assessment................................................................
 Power is not arbitrary...............................................................................
 Remedies available assesee ......................................................................
9. Object of Best Judgement Assessment.................................................................
10. Conclusion & Suggestions.................................................................................
11. Bibliography.......................................................................................................

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ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to Prof.
Eqbal Hussain for inspiring me and guiding me during the course of this project work and also
for his cooperation and guidance from time to time during the course of this project work on the
topic.

Thankyou

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RESEARCH METHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study of the topic “Ownerhip” forming a
concrete informative capsule of the same with an insight into its relevance in the Indian Society.

Research Plan
The researchers have followed Doctrinal method.

Scope and Limitations:

In this project the researcher has tried to include different aspects pertaining to the
concept of ownership, Special attention is also provided on Criticise Analysis and lastly
conclusion.
.
Sources of Data:
The following secondary sources of data have been used in the project-
 Case Study
 Websites
 Case Laws
 Books

Method of Writing and Mode of Citation:

The method of writing followed in the course of this research project is primarily analytical.
The researcher has followed Uniform method of citation throughout the course of this research
project.

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ABSTRACT

This project aims at introducing the Basic Comparative study of Schools of Hindu Law and
critically analyzing it. It deals with the application of this assessment in the present times and
the recent developments by the Indian judiciary with respect to this concept

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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 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.

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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
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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.

Criticism Against Austin’s Definition:

Austin’s definition has been criticised by many writers.
They argue that it is fallacious to think that ownership is a single right; in fact, it is a
bundle of rights including the right of enjoyment by the user. Even if the owner gives
away his few rights in ownership, the residue are still owned by him. For example,
mortgage of property by the owner.

Ownership is not merely a right but also a relationship between the right owned and the
person owning it.
Owner having an unrestricted right of disposition has also been criticised. His right of
disposition of the property can be curtailed by the state. For example, under article
31(2) of the Indian Constitution the state can take away the property of any person for
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public purpose.

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.

Criticism against Salmond’s Definition:

Dugit says the thing is what is owned not the right which does not really exist.

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
unnecessary confusion. Ownership is the name given to the bundle of rights.

Other Eminent Jurists

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

These two definitions give 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 law as to the use of the thing owned. Keeton has
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added another obvious dimension to the definition of ownership when he speaks of

ultimate use is exhausted. Thus the owner may mortgage his house give it to tenant
after the rights of the mortgagee or tenant are exhausted.

OWNERSHIP UNDER ANCIENT HINDU LAW

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. Gautama 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 different modes of
squiring 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.

MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring ownership which may be
broadly 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

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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:
1. The right to manage;
2. The right to posses;
3. The right to manage;
4. The right to capital;
5. The right to the income.

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 possesses 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 and mortgage, the owner (i.e. the
leaser and the mortgagor) owns the property without possession lies, with the lesser
and the mortgagee.

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 cannot 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.

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The owner has right to manage i.e., he has the right to decide how and by whom the
thing owned shall 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 create a right of easement over his land in favour of a third person etc.

One who owns 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 i.e. the right to transfer 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 transfer the right of ownership of such thing to another 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 leaser 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 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.

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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.

DIFFERENT KINDS OF OWNERSHIP

Experience shows that 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
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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. The ownership of a trustee is in fact nominal
and not real although in the eye of law, he represents his beneficiary. If property is
given to X on trust for Y, X would be the trustee and Y would be the beneficiary or cestui
que trust. X would be the legal owner of the property and Y would be the beneficial
owner. X is under an obligation to use the property only for the benefit of Y.

A trustee has no right of enjoyment of the trust property. His ownership is only a matter
of form and not of substance. It is nominal and not real. In the eye of law, a trustee is
not a mere agent but an owner. He is the person to whom the property of someone else
is fictitiously given by law. The trustee has to use his power for the benefit of the
beneficiary who is the real owner. As between the trustee and the beneficiary, the
property belongs to the beneficiary and not the trustee.

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. When a debt is
verbally assigned by X to Y, X remains the legal owner of it but Y becomes its equitable
owner. There is only one debt as before though it has now two owners.

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.
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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

1. Right to possession
2. Right to enjoy the property
3. Right to dispose of

Therefore, if a co-owner is deprived of property, he has right to be put back in

possession. Such co-owner has interest in every portion of the property and has a right
irrespective of his quantity of share to be in possession jointly with other co-owners.

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-
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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.”

A joint ownership occurs when two or more persons are entitled to the same right or
bound by the same obligation in respect of a thing. For example, a partnership property
is owned by the persons constituting the firm jointly and trustees are the joint owners
of the trust property. The essence of the conception is that there is only one right and
one obligation, so that anything which extinguishes such right or obligation, releases all
parties.

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.

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

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