2 - What Is Property
2 - What Is Property
2 - What Is Property
PROPERTY ACT,
1882
-EKTA ROSE
ASSITANT PROSFESSOR (ALS)
• The word “property” has not been defined in the Transfer of Property Act, 1882 but has
been used in its widest and most generic sense. Property is a legal term to denote
every kind of interest or right which has an economic content. Thus, it includes an
actionable claim and a right to reconveyance of land, but not a power of appointment.
Property is broadly classified into movable and immovable property. The transfer of
the two entails different forms and procedures.
WHAT IS PROPERTY
• Meaning- Property is any physical or virtual entity that is owned by an individual or jointly
by a group of individuals (Enjoy/Disburse/Destroy)
Salmond
• Law of Property – in rem - Against the whole world
• Law of Obligation in personam- Against the persons only
• Property's variety of sense as per Salmond
a. Legal Rights (Personal / Proprietary Rights-Rights given by law)
b. Proprietary Rights (Land /Chattles/Shares/Debts. Life, liberty, reputation etc not included)
c. Corporeal Property- Things included. Intangibles like shares etc not included
Austin-Property denotes right of enjoyment, life interests, the whole of a man's assets,
including both rights in personam and rights in rem
• Jurisprudence – Property means only proprietary rights in rem
• Blackstone- "The sole and full dominion which a man claims over the things of the
world to the exclusion of others”
• Supreme Court of India- "Property means the highest right a man can have to anything
being that right which one has to lands or tenements, goods or chattels which do not
depend on another's courtesy. It includes ownership of estates and interests
incorporeal things, and also rights such as trade-marks, copyrights, patents and even
right ‘in personam’ capable of transfer or transmission, such as debts and signifies a
beneficial right to or a thing considered as having a money value, especially with
reference to transfer of succession, and of their capacity of being acquired“
• Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 – Property" means
property of any kind, whether movable or immovable, tangible or intangible, and
includes any right or interest in such property.
• Section 2 (11) of the Sale of Good Act, 1930- "Property" means the general property in
goods, and not merely a special property
THEORIES OF PROPERTY
1.Natural Law Theory
– Grotius-All the things were originally without an owner and whoever occupied them became the
owner
– Blackstone – One who starts making use of a thing acquired an interest in that thing even for a
short period or last long
2.Historical Theory (Bentham /Henry Maine)-Concept of private property had grown out of collective
group or joint property
– Henry Maine -Private Property was chiefly formed by the gradual disentanglement of the separate
rights of individual from the blended rights of the community
• 3 Stages
First Stage- Tendency among people to take things in natural possession and excersise it
independently
Second Stage-Juristic Possession- defacto & dejure
Third Stage – Ownership of Property recorgnized by law -Right and Control
3. Labor Theory/ Positive Theory (Spencer) – a thing is the property of a person, who produces it or
brings it into existence. Property is the result of labor of an individual and who produces only can acquire
it.
4. Psychological Theory (Bentham)
• Bentham-Property is altogether a conception of mind. It is nothing more than an
expectation to derive certain advantages from the object according toone's capacity
• Dean Pound- Property is the acquisitive instinct of an individual who desires to have
control and possession over the property
5. Philosophical Theories
• Property as a means to Ethnical Ends (Aristotle/Green / Hegel)-Itis an end but always a
mean to some other end
• Property as an End in itself
6. Functional Theory/Sociological Theory (Jenks, Laski)
• Jenks-No one can be allowed an unrestricted use of his property, to the detriment to
others. He said that the use of property should conform to the rules of reason and
welfare of the community (Property is the creation of the State- Property and Law born
together and they will die together)
• Laski-Property is a social fact like any other, and it is the character of social facts to
alter Property has further assumed varied aspects and is capable to further change with
the changing norms of society
7. Metaphysical Theory (Kant/ Hege)
– Kant-A thing rightfully belongs to someone when he is connected with it in
such a manner that when someone else uses it without consent, it cause
damages to the owner also (Physical connection between the owner and the
object).
– Hegel- Property is an object in which person has a right to direct his will.
FEW THEORIES IN DETAIL
• According to the Historical theory, the concept of private property had grown out of
collective group or joint property. In the words of Henry Maine, "Private property was
chiefly formed by the gradual disentanglement of the separate rights of individual
from the blended rights of the community”.
• Earlier property did not belong to individuals, not even to isolated families, but the
larger societies composed on patriarchal mode. Later with the disintegration of
family-individual rights came into being.
• Roscoe Pound also pointed out that the earliest form of property was group property. It
was later on that families were partitioned and individual property came into being.
LABOUR THEORY (SPENCER)
• The theory is also known as 'positive theory, This theory insists on the fact that labour
of the individual is a foundation of property. This theory says that, a thing is the
property of a person, who produces it or brings it into existence. The main supporter of
this theory is Spencer, who developed it on the principle of equal freedom. He says
that property is the result of individual labour. Therefore, no person has a moral right
to property which he has not acquired by his personal effort.
PSYCHOLOGICAL THEORY (BENTHAM)