INTRODUCTION

Property has a very wider meaning in its real sense. It not only includes money and other
tangible things of value, but also includes any intangible right considered as a source or
element of income or wealth. The right and interest which a man has in lands and chattels to
the exclusion of others. It is the right to enjoy and to dispose of certain things in the most
absolute manner as he pleases, provided he makes no use of them prohibited by law.

The sea, the air, and the like, cannot be appropriated; every one may enjoy them, but no one
has any exclusive right in them. When things are fully our own, or when all others are
excluded from meddling with them, or from interfering about them, it is plain that no person
besides the proprietor, who has this exclusive right, can have any claim either to use them, or
to hinder him from disposing of them as he pleases; so that property, considered as an
exclusive right to things, contains not only a right to use those things, but a right to dispose of
them, either by exchanging them for other things, or by giving them away to any other
person, without any consideration, or even throwing them away.

Basically Property is divided into real property, and personal property. Property is also
divided, into absolute and qualified, when it consists of goods and chattels.

Absolute property is that which is our own, without any qualification whatever; as when a
man is the owner of a watch, a book, or other inanimate thing: or of a horse, a sheep, or other
animal, which never had its natural liberty in a wild state.

Qualified property consists in the right which men have over wild animals which they have
reduced to their own possession, and which are kept subject to their power; as a deer, a
buffalo, and the like, which are his own while he has possession of them, but as soon as his
possession is lost, his property is gone, unless the animals, go animo revertendi.

Property is again divided into corporeal and incorporeal. The former comprehends such
property as is perceptible to the senses, as lands, houses, goods, merchandise and the like; the
latter consists in legal rights, as chooses in action, easements, and the like.

It is proper to observe that in some cases, the moment that the owner loses his possession, he
also loses his property or right in the thing: animals ferae naturae, as mentioned above,
belong to the owner only while he retains the possession of them. But in general the loss of
possession does not impair the right of property, for the owner may recover it within a certain
time allowed by law.
Meaning of property
In general sense, property is any physical or virtual entity that is owned by an individual or
jointly by a group of individuals. An owner of the property has the right. Human life is not
possible without property. It has economic, socio-political, sometimes religious and legal
implications. It is the legal domain, which institutes the idea of ownership. The basic
postulate of the idea is the exclusive control of an individual over some ‘thing’. Here the
most important aspect of the concept of ownership and property is the word ‘thing’, on which
a person has control for use. To consume, sell, rent, mortgage, transfer and exchange his
property. Property is any physical or intangible entity that is owned by a person or jointly by
a group of people. Depending on the nature of the property, an owner of property has the
right to consume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to
exclude others from doing these things.

There are some Traditional principles related to property rights which includes include:
1. Control over the use of the property.
2. Right to take any benefit from the property.
3. Right to transfer or sell the property.
4. Right to exclude others from the property.

Definition of property
There are different definitions are given in different act as per there uses and needs. But in the
most important act which exclusively talks about the property and rights related to property
transfer of property act 1882 has no definite definition of the term property. But it is defined
in some other act as per their use and need. Those definitions are as follows:

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as:

“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 defines property as:

“Property” means the general property in goods, and not merely a special property.

Theories behind concept of property:-

There are many theories which have been evolved for the purpose of understanding the
concept of property properly.

Those theories are as follows:

1. Historical Theory of Property:

2. Labour Theory (Spencer):

3. Psychological Theory (Bentham):

4. Functional Theory ( Jenks, Laski):

5. Philosophical Theories–
(i) Property as a means to Ethnical Ends

(ii) Property as an End in itself

Historical Theory of Property

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)

According to this theory, property came into existence on account of acquisitive instinct of
man. Every individual desires to own things and that brings into being property.

According to Bentham, Property is altogether a conception of mind. It is nothing more than

an expectation to derive certain advantages from the object according to one’s capacity.

Roscoe Pound also supports Bentham and observed that the sole basis of conception of
property is the acquisitive instinct of individual which motivates him to assert his claim over
objects in his possession and control.
Functional Theory ( Jenks, Laski)

The theory is sometimes also known as ‘sociological theory of property’. It implies that the
concept of property should not only be confined to private rights but it should be considered
as a social institution securing maximum interests of society. Property is situated in the
society, has to be used in the society.

According to 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.

According to 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.
Kinds of property

Broadly Property is divided into three kinds those are as follow:

Movable and Immovable property:

Movable property

The definition of movable property is given differently in many acts. Some of the definitions
are as follows:

Section 3 (36) of the General Clauses Act defines movable property as:

'Movable property shall mean property of every description, except immovable property."

Section 2 (9) of the Registration Act, 1908 defines property as:

'Moveable property' includes standing timber, growing crops and grass, fruit upon and juice
in trees, and property of every other description, except immovable property."

Section 22 of IPC defines property as:

The words “moveable property” is intended to include corporeal property of every

description, except land and things attached to the earth or permanently fastened to anything,
which is attached to the earth.

Things attached to the land may become moveable property by severance from the earth for
example Cart–loaded of earth, or stones quarried and carried away from the land become
movable property.

Immovable property
The Term "Immovable Property" occurs in various Central Acts. However none of those Acts
conclusively define this term. The most important act which deals with immovable property
is the Transfer of Property Act (T.P.Act). Even in the T.P.Act this term is defined in
exclusive terminology.

i. According to Section 3 of that Act, "Immovable Property" does not include standing
timber, growing crops or grass. Thus, the term is defined in the Act by excluding certain
things. "Buildings" constitute immovable property and machinery, if embedded in the
building for the beneficial use thereof, must be deemed to be a part of the building and the
land on which the building is situated.
ii. As per Section 3(26) of the General Clauses Act 1897, "immovable property" "shall
include land, benefits to arise out of land and things attached to the earth, or permanently
fastened to anything attached to the earth". This definition of immovable property is also not
exhaustive;

iii. Section 2(6) of The Registration Act,1908 defines "Immovable Property" as under:

"Immovable Property includes land, building, hereditary allowances, rights to ways, lights,
ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or
permanently fastened to anything which is attached to the earth but not standing timber,
growing crops nor grass".

The definition of the term "Immovable Property" under the Registration Act 1908, which
extends to the whole of India, except the State of Jammu and Kashmir, is comprehensive. The
above definition implies that building is included in the definition of immovable property.

The following have been held as immovable property.

A right to collect rent, life interest in the income of the immovable property, right of way, a
ferry, fishery, a lease of land.

iv. The term "Immovable Property" is defined in other Acts for the purpose of those Acts. As
per Section 269UA(d) of the Income Tax Act, 1961, Immovable Property is defined as
under :

a. Any land or any building or part of a building, and includes, where any land or any
building or part of a building is to be transferred together with any machinery, plant,
furniture, fittings or other things, such machinery, plant, furniture, fittings and other things
also.

Any rights in or with respect to any land or any building or part of building (whether or not
including any machinery, plant, furniture, fittings or other things therein) which has been
constructed or which is to be constructed, accruing or arising from any transaction (whether
by way of becoming a member of, or acquiring shares in, a co-operative society, or other
association of persons or by way of any agreement or any arrangement of whatever nature,
not being a transaction by way of sale, exchange or lease of such land, building or part of a
building.

Tangible and Intangible property:

Tangible property
Tangible property refers to any type of property that can generally be moved (i.e., it is not
attached to real property or land), touched or felt. These generally include items such as
furniture, clothing, jewellery, art, writings, or household goods.
Intangible property:
Intangible property refers to personal property that cannot actually be moved, touched or felt,
but instead represents something of value such as negotiable instruments, securities, service
(economics), and intangible assets including chose in action

Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind
for which property rights are recognized—and the corresponding fields of law.

Property does not just comprise of tangible things like houses, cars, furniture, currency,
investments etc and such assets are not the only kind that can be protected by law. There are
many other forms of intangible property known as intellectual property that have been
recognized under the law and granted protection against infringement

Under intellectual property law, owners are granted certain exclusive rights to a variety of
intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and
words, phrases, symbols, and designs. Patents, trademarks and copyrights, designs are the
four main categories of intellectual property.

Patents
Patents are used to protect new product, process, apparatus, and uses providing the invention
is not obvious in light of what has been done before, is not in the public domain, and has not
been disclosed anywhere in the world at the time of the application. The invention must have
a practical purpose. Patents are registrable nationally; the patent granted by European Patent
Office is a “bundle” of national patents. No EU-wide single patent system exists to date,
although the Community Patent is in the final stages of enactment. Registration provides a
patentee the right to prevent anyone making, using, selling, or importing the invention for 20
years. Patents are enforced by court proceedings. In addition, the Regulation on
Supplementary Protection Certificates (SPCs), grants “patent extensions” of up to 5 years to
pharmaceutical and plant products, providing as much as 25 years of patent life for originator
medicines.

Trade Marks
A symbol (logo, words, shapes, a celebrity name, jingles) used to provide a product or service
with a recognisable identity to distinguish it from competing products. Trademarks protect
the distinctive components which make up the marketing identity of a brand, including
pharmaceuticals. They can be registered nationally or internationally, enabling the use of the
symbol ®. Trade mark rights are enforced by court proceedings in which injunctions and/or
damages are available. In counterfeiting cases, authorities such as Customs, the police, or
consumer protection can assist. An unregistered trade mark is followed by the letters ™. This
is enforced in court if a competitor uses the same or similar name to trade in the same or a
similar field.
Copyright
Copyright is used to protect original creative works, published editions, sound recordings,
films and broadcasts. It exists independently of the recording medium, so buying a copy does
not confer the right to copy. Limited copying (photocopying, scanning, downloading) without
permission is possible, e.g. for research. Publication of excerpts or quotes needs
acknowledgement. An idea cannot be copyrighted, just the expression of it. Nor does
copyright exist for a title, slogan or phrase, although these may be registered as a trade mark.
Copyright applies to the Internet with web pages protected by many different copyrights, so
that permission should be asked to copy or print a page, or insert a hyperlink to it. Material
cannot be posted on a Web site (Intranet included) without permission from the copyright
holder.

Copyright is not registrable because it arises automatically on creation. Copyright is protected

in the EU for 70 years after the author’s death for creative works, 50 years for broadcasts, etc
and 25 years for published editions. Use of © is not required in most of Europe. Copyright is
enforced by court proceedings.

Design Registration
Design registrations are used to protect products distinguished by their novel shape or pattern.
They are available for one-off items. The design itself must be new, although a 1 year grace
period is allowed for test-marketing. Registration is not possible where the new form is
dictated by function. The design is registrable either nationally or under an EU-wide single
right. It can also be protected by copyright.
 DIFFERENCE BETWEEN LIVING AND JURISTIC

Two kinds of persons are recognised by law and those are natural person and legal
persons. Legal persons are also known as artificial, juristic or fictitious persons.

(1) According to Holland, a natural person is “such a human being as is regarded by the law
as capable of rights and duties—in the Language of Roman law, as having a status.
According to another writer, natural persons are “living human beings recognised as persons
by the state. The first requisite of a normal human being is that he must be recognised as
possessing a sufficient status to enable him to possess rights and duties. A slave in Roman
law did not possess a personality sufficient to sustain legal rights and duties. In spite of that,
he existed in law because he could make contracts which under certain circumstances were
binding on his master. Certain natural rights possessed by him could have legal consequences
if he was manumitted. Likewise in Roman law, an exile or a captive imprisoned by the enemy
forfeited his rights. However, if he was pardoned or freed, his personality returned to him. In
the case of English Law, if a person became an outlaw, he lost his personality and thereby
became incapable of having rights and duties. The second requisite of a normal human being
is that he must be born alive. Moreover, he must possess essentially human characteristics.

(2) Legal persons are real or imaginary beings to whom personality is attributed by law by
way of fiction where it does not exist in fact. Juristic persons are also defined as those things,
mass of property, group of human beings or an institution upon whom the law has conferred a
legal status and who are in the eye of law capable of having rights and duties as natural
persons.

Law attributes by legal fiction a personality of some real thing. A fictitious thing is that
which does not exist in fact but which is deemed to exist in the eye of law. There are two
essentials of a legal person and those are the corpus and the animus. The corpus in the body
into which the law infuses the animus, will or intention of a fictitious personality. The animus
is the personality or the will of the person. There is a double fiction in a juristic person. By
one fiction, the juristic person is created or made an entity. By the second fiction, it is clothed
with the will of a living being. Juristic persons come into existence when there is in existence
a thing, a mass of property, an institution or a group of persons and the law attributes to them
the character of a person. This may be done as a result of an act of the sovereign or by a
general rule prescribed by the government.

A legal person has a real existence but its personality is fictitious. Personification is essential
for all legal personality but personification does not create personality. Personification is a
mere metaphor. It is used merely because it simplifies thought and expression. A firm, a Jury,
a bench of judges or a public meeting is not recognised as having a legal personality. The
animus is lacking in their case.
Following are the differences between natural person and legal person:
Natural Person
1. A natural person is a human being and is a real and living person.

2. He has characteristics of the power of thought speech and choice.

3. Unborn, dead man and lower animals are not considered as natural persons.

4. The layman does not recognize idiot, company, corporation, idol etc. as persons.

5. He is also a legal person and accordingly performs their functions

6. Natural person can live for a limited period i.e. he cannot live more than 100 years.

Legal Person
1. Legal person is being, real or imaginary whom the law regards as capable of rights or
duties.

2. Legal persons are also termed “fictitious”, “juristic”, “artificial” or “moral”.

3. In law, idiots, dead men, unborn persons, corporations, companies, idols, etc. are treated as
legal persons.

4. The legal persons perform their functions through natural persons only.

5. There are different varieties of legal persons, viz. Corporations, Companies, Universities,
President, Societies, Municipalities, Gram panchayats, etc.

6. Legal person can live more than 100 years. Example: (a) the post of “American President”
is a corporation, which was created some three hundred years ago, and still it is continuing.
(b) “East India Company” was established in sixteenth century in London, and now still is in
existence.