3. INTRODUCTION
DEFINE PROPERTY? EXPLAIN RIGHTS IN RE-PROPRIAAND RIGHTS IN RE- ALIENA?
Right in Re-aliena is the right available against the property of another person. Example- The right of easement. It is the result of jurisprudence concept of
dominant heritage and servient heritage. Right in Re-Propria is the right available in respect of one's own property. It results in absolute ownership.
• Corporeal and Incorporeal right
• Both the rights are protected by law. The corporeal right is the rights over tangible objects or material objects. Corporeal rights are having the rights over the objects
which can be seen, touch or perceived. Example: I purchase the watch. The watch has physical existence so I have a corporeal right over it.
• The incorporeal right is the right over the object which cannot be seen or touched. Example right to reputation.
• Legal and Equitable Right
• Legal rights are protected by the common law i.e Court of England. Common law depends upon the usage and custom.
• Equitable rights are protected by the equity court or the court of chancellor. The basic principle is natural justice, equity, justice and good conscience.
4. DEFINITION
• Theories of Property
Natural Law Theory
According to this theory, property was first acquired by occupation of an ownerless object as a result of individual labour. Blackstone, Locke, Pufendrof and Grotius
supported this theory. Kant also supported this theory in his work 'Philosophy of Law'.
According to Blackstone:
By the law of nature and reason, he who first began to use a thing acquired therein a kind of transient property that lasted so long as he was using it and no longer.
Sir Henry Maine and Bentham criticized the natural law theory of property.
According to Maine:
It is erroneous to think that possession gives rise to title for there is no reasonable ground to support this contention. According to Bentham Property has not
originated by first occupation of an ownerless thing, but it is a creation of law. He does not believe in the existence of property without the existence of law.
Labour Theory
According to this theory, property can be claimed on the exclusive basis of one's work, which produced that property. This theory recognises the role of labour for
adequate rewards. When a person acquires property, he or she is entitled to hold it exclusively. These theory further states that, a thing (res) is the property of the
person who produces it or brings it into existence, but this view was criticised by Laski on the basis that labour does not produce property, it is only a means to earn
property.
5. RELEVANT CASES
• According to Salmond:
The substantive civil law can be divided into three major sections, namely, the law of property, the law of obligations and the law of status. The first deals with the
proprietary rights in rem, the second with proprietary rights in personam and the third deal with personal or non-proprietary rights, whether in rem or in personam.
The Supreme Court of India in Guru Dutt Sharma V. State of Bihar, defined property as a legal concept and observed that:
It is a bundle of rights' and in the case of tangible property, it would include the right of possession, the right to enjoy, the right to retain, the right to alienate and the
right to destroy.
The term 'property' also includes goodwill of a business, which is an intangible asset. It includes not only immovable and movable object, but also patents,
copyrights, shares, claims etc. According to Salmond, ownership of corporeal property is general, permanent and inheritable right of user of a thing.
6. ELEMENTS AND CASE LAWS.
Historical Theory
Henry Maine was the main supporter of the historical theory of the origin of property. According to him, property originally did not belong to individuals, not even to
isolated families, but to large societies composed on the patriarchal pattern.
According to Roscoe Pound:
the earliest form of property was group property which later disintegrated into family property and finally the concept of individual property came into existence.
Miraglia, an Italian jurist, also supported this theory of property.
Psychological Theory
Bentham has supported psychological theory of property and has observed that 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. According to this theory, property came into existence on account of the acquisitive tendency of
human beings.
This theory has been criticised because it is considered to be Maine's imaginative reconstruction based on Indian village communities and certain local customs
prevalent in ancient Indian villages, so it lacks universal application.
Functional Theory
This theory considers property as a social interest for promoting general security and protection of individual interests in personality, domestic relations and in
subsistence. As observed by Roscoe Pound:
Interests of personality like security of one's physical being, privacy, honour, reputation, etc, can be realised only through some access to property. Interests of
subsistence include right to property, economic advantages, and freedom of association and availability of employment-opportunities.
7. CONTINUATION..
Some of the immaterial forms of property are as follows:
Copyright
This right is available to writers, painters, engravers, photographers, sculptures and dramatic personnel for their outstanding work. The subject-matter of the right is the
literary expression of facts or thought.
When a particular person does some creative work by utilizing his or her intellect, skill and labour, then that person is entitled to exclusive copyright which is an
immaterial form of property.
Patents
Inventions like the idea of a new process, instrument or manufacture is the subject-matter of a patent right. The person by whose skill or labour the invention or a new
process or manufacture is 'introduced' has the exclusive right of patent in it. This is granted to the inventor by the State.
Commercial Goodwill
Another kind of immaterial property is commercial} goodwill, trademarks and trade names. The goodwill of commercial business is a valuable right acquired by the
owner by his labour and skill.
Rights in Re Aliena (Encumbrances)
Rights in re aliena are also called encumbrances, which are the rights of specific or particular user as distinguished from ownership which is right of a general user.
Encumbrances prevent the owner from exercising some definite rights with regard to his property.
8. CONTINUATION..
Some of the important types of rights in re aliena or encumbrances are as follows:
Lease
A lease is that form of encumbrance of property vested in one person by a right to the possession and use of it is vested in another. So it is the transfer of right to the
possession and use of property owned by some other person. It is the result of separation of ownership from possession.
A lease may be either for a certain specified period or in perpetuity. In this encumbrance the lessor (owner of the property) transfers his right of possession to the lessee.
A lease may be terminated on the happening of one of the events referred to in Section 111 of the Transfer of Property Act, 1882. Lease may be defined as a contract
between two parties for the hire of a specific asset where in the lessor retains the ownership of the asset while the lessee has the possession and use of the asset on
payment of the specified rent over a period of time.
Security
A security is an encumbrance vested in a creditor over the property of his debtor for the purpose of securing the recovery of the debt. It is basically a right to retain
possession of a chattel until the debt is paid. Security on immovable property is called a 'mortgage' and on movable property it is called a 'pledge'..
9. CONCLUSION
• We can conclude that rights and duties are co-existent. In the words of Salmond, it can be said that no right exists without the corresponding duty. Every duty of the
person must be the duty towards some person, in whom the right is vested and conversely every right must be against some persons upon whom a duty is imposed.
