Law of Property

Introduction -
The concept of property occupies an important place in human life because it is practically
impossible to live without the use of material object which constitutes the subject matter of
property. Property may be classified into corporeal and incorporeal property, movable and
immovable property, real and personal property, public and private property. There are four
important modes of acquisition of property - possession, prescription, agreement, inheritance.

Meaning of Property -

The term property is derived from the Latin word 'properietate' and the French equivalent
'proprius' which means a thing owned. The concept of property and ownership are very closely
related to each other. There can be no property without ownership and ownership without
property.
The term Property is not a Term of Art. It has been used in a variety of senses. In its widest
sense, Property includes all the legal rights of a Person of whatever description The property of
a man is all that is his in law. In the narrower sense, the property includes the proprietary
rights of a person and not his personal rights. Proprietary rights constitute his estate or
property and personal rights constitute his Status or personal and condition. In another
sense, the term property includes only those rights which are both proprietary and real.
In Modern Times intellectual or intangible property has become very important. Examples of
such property and copyright, patent, trademark etc.

Definition of Property -
Some important Definitions of Property are as follows -

(a) Locke -
According to Locke, " Every man has a property in his own person." every individual has
the right to preserve his property, that is his wife, liberty and estate."

(b) Bentham -
According to Bentham "property is nothing more than the basis of s certain expectation of
deriving thereafter certain advantages by a thing the reason of the relation in which we stand
towards it. There is no image, no visible lineament which can property the relation that
constitutes property. It belongs not to physics, but to metaphysics. It is altogether a conception
of Mind. To it, all or any of these physical circumstances failed to assist in conveying the idea of
property."
Kinds of property –

Property is essentially of two kinds Corporeal Property and Incorporeal Property. Corporeal
Property can be further divided into Movable and Immovable Property and real and personal
property. Incorporeal property is of two kinds-in re propria and rights in re aliena or
encumbrances.

1) Corporeal and Incorporeal Property -

(I) Corporeal Property –

Corporeal property is the right of ownership in material things.Corporeal property is always

visible and tangible. Corporeal property can be perceived by senses. It can be seen or touched.

Examples -A House, Land, Car, Bike etc

Corporeal property may be divided into two classes-

1. Movable Property (Chattels) and Immovable property. (Land and buildings)

2. Real Property and Personal Property

(II) 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.

Incorporeal property is divided into two classes-

(a) Jura in re propria Over Material things (for example patents, copyrights, trademarks etc)

(b) Jura in re Aliena encumbrances, whether over material or immaterial things, for example,
Lease, Mortgages and Servitude etc.
2) Movable Property and Immovable Property -

All Corporeal Property is either movable or immovable. In English law, these are termed as
chattels and land respectively.

(I) Movable Property -

Movable property is one, which can be transferred from one place to another place with the
human efforts.

(II) Immovable Property -

According to the General Clauses Act, 1897 "Immovable property includes land, benefits arising
out of land and things attached to the earth or permanently fastened or anything attached to
the earth."

According to the Indian Regulation Act, "immovable property includes land, building, hereditary
allowance, rights of way, lights, Ferries, Fisheries or any other benefit to arise out of land and
things attached to the earth or permanently fastened to anything attached to the earth but not
standing Timber, growing crops or grass.

Section 3 Para 2 of the Transfer of Property Act 1882 defines immovable property as
"immovable property does not include standing Timber, growing crops or grass. Movable
property includes corporeal property which is not immovable.

According to Salmond immovable property (i.e., land) has the following elements-

 A determinate portion of the surface of the earth.

 The ground beneath the surface down to the Centre of the earth
 The column of space above the surface ad infinitum.
 All objects which are on or under the surface in its natural state for example-minerals
natural vegetation, or stones lying loose upon the surface.
 An object placed by human agency on or under the surface of the land with the
intention of permanent an annexation, for example, House walls, Doors, Fences, etc.
 3) Real and Personal Property -

In English law, the property has been divided into the real and personal property. This division
is identical to a great extent with that of immovable or movable. The division into real and
personal is not based on any logical principle but is a result of the course of legal development
in England.

a) Real property -

The real property includes all rights over land with such additions and exceptions, as the law
has deemed fit.

b) Personal property -

The law of personal property includes all other proprietary rights whether they are in rem or in
personam.

4) Public property and private property -

Having regard ownership property is either public or private -

(a) Public property-

Public property is that owned by the public as such in some governmental capacity. Public
property is used as a designation of which are Public Juris and therefore, are considered as
being owned by the public. The entire state or the community and not restricted to the domain
of private person or that which belongs to a state or political constituents like provinces etc.

(b) Private property -

The private property is that which is owned by an individual or some other private person.

Types of Incorporeal Property:

1) Jura in re Aliena or Encumbrances:

It includes incorporeal rights over corporeal things. It has further three types.

Lease

Security

Servitude
A.Lease:

A lease is an implied or written agreement specifying the conditions under which a lessor accepts
to let out a property to be used by a lessee. The agreement promises the lessee use of the
property for an agreed length of time while the owner is assured consistent payment over the
agreed period. Both parties are bound by the terms of the contract, and there is a consequence if
either fails to meet the contractual obligations.

B.Security:

It is said to be a right to retain possession of a chattel unit the debt is paid.

According to Salmond:

A security is an encumbrance the purpose of which is to ensure or facilitate the fulfilment or

enjoyment of some other right (usually though not necessarily a debt)vested in the same person.

There are further two types of security.

Mortgage

Pledge Or Lien

 Mortgages:

A mortgage is a type of loan used to purchase or maintain a home, land, or other types of real
estate. The borrower agrees to pay the lender over time, typically in a series of regular payments
that are divided into principal and interest. The property then serves as collateral to secure the
loan.

 Pledge Or Lien:

A pledge is a bailment that conveys possessory title to property owned by a debtor (the pledgor)
to a creditor (the pledgee) to secure repayment for some debt or obligation and to the mutual
benefit of both parties.

C. Servitude:

A servitude is described as a limited real right over immovable property. This right is registerable
and allows the holder of the servitude to exercise some right over another person’s property.

2)Jura in re Propria or Intellectual Property:

The second kind of incorporeal right is jura in re propria, which refers to the ownership of
intangible property. This type of right includes trademarks, copyrights, patents, and other types
of intellectual property. In this way, one can have full ownership of property that is incorporeal
(or intangible) and does not have a physical presence.

Trademark:

A trademark can be any word, phrase, symbol, design, or a combination of these things that
identifies your goods or services. It’s how customers recognize you in the marketplace and
distinguish you from your competitors.

Patent:

A patent is an example of intellectual property that grants the owner exclusive rights to a product,
process, or invention for a specific duration of time.

Patent:

A patent is an example of intellectual property that grants the owner exclusive rights to a product,
process, or invention for a specific duration of time.
Modes of Acquisition of Property-

According to Salmond, there are four kinds of acquisition of property those are possession,
prescription, agreement and inheritance.

I) Possession -

A possession is the objective realization of ownership Possession means Physical Control over a
thing or an object. It is Prima facie evidence of ownership. The property which belongs to no
one i.e. Res nullius, belongs to the first possessor of it and he acquires a valid title to it against
the world. A property which is already in possession of someone else, when acquired by
possession, gives a good title to the possessor against all third persons except the true owner.
Even as against the true owner, the possessor is entitled to maintain his possession until evicted
in due course by law. In such a case of adverse possession, there are in fact two owners the
ownership of one is absolute and perfect, while that of the other is relative and imperfect and
often called possessory ownership by reason of its origin possession.

If a possessory owner is deprived of its possession by a person who is other than the true
owner, he has the right to recover possession of the same.

If Property belongs to nobody, the person who captures and possesses it has a good title
against the whole world. In this way, the birds of the air and the fish of the sea are the property
of that person who first catches them.

II) Prescription -

According to Salmond: "Prescription may be defined as the effect of lapse of time in creating
and destroying rights; it is the operation of time as a vestitive fact. Prescriptions are of two
kinds-Positive or acquisitive prescription and negative or extinctive prescription.

(a) Positive or Acquisitive Prescription

Positive Prescription means the creation of a right by the lapse of time. For example, right of
way is acquired by continued de facto use of it, undisputedly and openly for a period Prescribed
by law. Under Indian Easement Act, this period is 20 years.

(b) Negative or Extinctive Prescription.

Negative prescription is the destruction of a right by the lapse of time. Example, the right to sue
for non- payment of a debt within a prescribed period is extinguished after the lapse of that
Period. In India, limitation Act prescribes three years period for extinction of the right.
III) Agreement -

Property may also be acquired by agreement which is enforceable by law. The owner of a right
can transfer his rights in property to another with or without consideration. If it is for
consideration it is called a sale and if it is without consideration it is called a gift. It is one of the
important principles of law based on the Maxim "Nemo dat quad habet legime', that is no one
can convey a better title than he himself has, as a general rule.

According to Paton, an agreement is an expression by two or more persons communicated each

other to the other of a common intention to affect the legal relation between them.

An agreement has four essential elements which are as follows -

1) There should be two or more parties to an agreement

2) Mutual consent of the parties

3) It should be communicated;

4) There should be common intention to affect the legal relationship

IV) Inheritance

Another method of acquiring property is by means of inheritance. When a person dies certain
rights survive him and pass on to his heirs and successors. There are others which die with him.
Those rights which survive him are called heritable or inheritable rights. Those rights which do
not survive him are called un-inheritable rights. Proprietary rights are inheritable as they
possess value. Personal rights are not inheritable as they constitute merely his status. However,
there are certain exceptions to the general rule. Personal right may not die in case of
hereditary titles. Proprietary rights maybe un- heritable in the case of lease for the life of lessee
only or in case of joint ownership.

Succession of the property of a person may be either tested it or it may be intestate i.e. by
means of a will or without a will. If the deceased has made a will, then succession would take
place according to the term to the will. But if there is not will, then succession will take place by
the operation of law which is known as non-testamentary succession. In case there are no heirs
of the deceased, his property shall go to the State.