Ownership in Jurisprudence 02112020 050922pm

OWNERSHIP IN JURISPRUDENCE
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 W. Nembhard Hibbert ownership includes four kinds of rights
within itself.
• Right to use a thing
• Right to exclude others from using the thing
• Disposing of the thing
• 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.
• Indefinite User
• Unrestricted Disposition
• Unlimited Duration
The abolition of Zamindari system India , nationalization of properties and Bank etc
in Pakistan, Land Acquisition Act 1894 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.
Continued…
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
• Possession
• Enjoyment
• Disposition
Plenary control over an object implies complete control unrestricted by any law or
fact. Almost the extension of Austin's views with the addition of the concept of
plenary control.
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:
• Ownership is a relation between a person and right that is vested in him in respect
of any property, Ownership is in incorporeal body or form.
MODERN LAW AND OWNERSHIP
Under modern law there are the following modes of acquiring ownership which may
be broadly classed under two heads, viz,.
Original mode
Derivative mode
The original mode is the result of some independent personal act to acquire for
himself. The mode of acquisition may be three kinds
• Absolute when a ownership is acquired by over previously ownerless object russ
nullius
• Extinctive, which is where there is extinctive of previous ownership by an
independent adverse act on the part of the person acquiring. This is how a right of
easement (prescription) is acquiring after passage of time prescribed by law.
Continued…
•DERAVATIVE: When ownership is derived from the operation of law then it is

called derivate acquisition. It is derived either by purchase, exchange, will, gift,
inheritance etc. TPA 1882 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
The subject matter of ownership is often determined by the state legislations and may
accordingly vary. Like certain properties can not be owned in certain states for
instances Air, jungle, water but most state do acknowledge such as properties.
Normally ownership implies the following:
• The right to manage
• The right to posses
• The right to capital
• The right to the income
Essentials of ownership
 Indefinite user
 Unrestricted disposition
 Right to Possess
 Right to Exhaust
 Residuary character
 Right to destroy or Alienate
CHARACTERISTICS OF OWNERSHIP
An analysis of the concept of ownership, it would show that it has the following
characteristics: Ownership may 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. 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.
KINDS OF OWNERSHIP
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 intangible things. Corporeal things are
those which can be perceived and felt by the senses and which are tangible.
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
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.
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. Equitable
title gives the right to access the property, and – most importantly – the right to
acquire formal legal title of the land.
E.g of Equitable ownership is some kind of investment in the property which
entitle a person to the limited use and enjoyment of the property which is short
of ownership title however.
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 not
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
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 specie. For example, the members of a partnership firm are co-
owners of the partnership property. Under the common law, a co-owner is entitled to
three essential rights, namely
• Right to possession
• Right to enjoy the property
• Right to dispose
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-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.
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. Example of limited ownership in English law is life
tenancy when an estate is held only for life. E.g. Benificial ownership
END

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OWNERSHIP IN JURISPRUDENCE

According to the Salmond ownership vests in the complex of rights which he

•DERAVATIVE: When ownership is derived from the operation of law then it is

Corporeal ownership is the ownership of a material object and incorporeal ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is

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