Concept of Law 2-1[1].pptx

The term “Law’ denotes different
kinds of rules and Principles.
Law is an instrument which regulates
human conduct/behavior.
Law means Justice, Morality, Reason,
Order, and Righteous from the view
point of the society.
Law means Statutes, Acts, Rules,
Regulations, Orders, and Ordinances
from point of view of legislature.
Law means Rules of court, Decrees,
Judgment, Orders of courts, and
Injunctions from the point of view of
Judges.
Therefore, Law is a broader term
which includes Acts, Statutes, Rules,
Regulations, Orders, Ordinances,
Justice, Morality, Reason, Righteous,
Rules of court, Decrees, Judgment,
Orders of courts, Injunctions, Tort,
Jurisprudence, Legal theory, etc.

Names of Law
Hindu religion
law implies
“Dharma”
Muhammadean
religion (Islam)
it is “Hokum”
Roman - “Jus” French - “Droit”
Arabic-
Alqanoon
Persian and
Turkish -
Kunoon,
Latin - “Legam”
1.Italian -
“Legge”

Salmond
•“The law may be defined
as the body of principles
recognized and applied
by the state in the
administration of Justice.

Gray’s
Definition of
Law:-
•According to Gray,
“the Law of the State
or of any organized
body of men is
composed of the rules
which the courts, that
is the judicial organ of
the body lays down for
the determination of
legal rights and duties.

John Austin (1790-
1859)
According to Austin, a law, in the strict sense is a general
command of the sovereign individual or the sovereign body,
Issued to those in subjectivity and enforced by the physical
power of the state.
According to Austin “law is aggregate of rules set by men
politically superior or sovereign to men as politically subject.”
Austin says, “A law is command which obliges a person or
persons to a course of conduct.

Hans Kelsan’s definition of
Law
•According to Kelsan legal
order is the hierarchy of
the norms, every norm
derive its validity from the
superior norm and finally
there is highest norm
known as grundnorm.

H.L.A. Hart
•According to Hart Law is
the combination of
primary rules of
obligations and
secondary rules of
recognition

Dean Roscoe Pound’s
definition of law
• Pound defines law as a
social institution to satisfy
social wants.
• He says law is a social
engineering, which means
that law is a instrument to
balance between the
competing or conflicting
interests

Realist
Definition :
Holmes J.
•The realist considered the
law to be a part of judicial
process. He says, “that the
prophesies of what the
courts will do, in fact and
nothing more pretentions,
are what I mean by law.

Kinds of law by Sir Jhon Salmond
1. Imperative
law
2. Physical or
scientific law
3. Natural or
moral law
4.
Conventional
law
5.
Customarylaw
6. Practical or
technical law
7.
International
law, and
8. Civil law

Legal
System
Common
Law
UK, India,
Australia
Civil Law
Italy,
Germany
Religious
Law
Sharia,
Islamic Law

Features of Common Law : Introduction
• Common law is an unwritten body of laws based on judicial precedents. For
unusual cases where the result cannot be decided on the basis of current laws
or written law regulations, common law guides the decision-making process.
• Common law is followed in many parts of the world, including Australia,
Canada, Hong Kong, India, New Zealand, and the United Kingdom. Common
law, also known as jurisprudence, is a body of unwritten laws based on
judicial precedents.
• The concept is based on institutionalized judgments and interpretations from
the courts and the jury. Common laws also illustrate the motivation for the
implementation of new legislation.
• As compared to civil law, the common law's purpose is to produce consistent
results by applying the same definition requirements.
• In some cases, the precedent depends on the individual jurisdictions' case-by-
case procedures. As a consequence, common law elements can vary from one

Understanding Common Law
• A system of common law is less prescriptive than a system of
civil law. Therefore, a government may wish to enshrine its
citizens' protections in specific legislation related to the
proposed infrastructure program.
• For example, it may want to stop the service provider from cutting off
water or electricity supply of those who haven't paid their dues. Or, the
government may request that transaction-related records be published
under a free information act.
• Under the common law system, there are few clauses implied in a
contract. Thus, it is important to set out all the terms regulating
the relationship between the parties within the contract itself.
• Features of a Common Law System
1.There will be no codified laws or written constitution always.
2.Judicial decisions made at the highest courts can usually be reversed only by the same
court or by law.
3.Typically, all that is not specifically prohibited by law is permitted.

Characteristics of Civil Law
• Countries following a civil law system are typically those that were former French,
Dutch, German, Spanish or Portuguese colonies or protectorates, including much of
Central and South America.
• Most of the Central and Eastern European and East Asian countries also follow a civil
law structure.
• The civil law system is a codified system of law. It takes its origins from Roman law.
• Features of a civil law system include:
• There is generally a written constitution based on specific codes (e.g., civil code, codes
covering corporate law, administrative law, tax law and constitutional law) enshrining basic
rights and duties; administrative law is however usually less codified and administrative court
judges tend to behave more like common law judges;

• Only legislative enactments are considered binding for all.
• There is little scope for judge-made law in civil, criminal and commercial courts,
although in practice judges tend to follow previous judicial decisions; constitutional
and administrative courts can nullify laws and regulations and their decisions in such
cases are binding for all.
• In some civil law systems, e.g., Germany, writings of legal scholars have significant
influence on the courts;
• Courts specific to the underlying codes – there are therefore usually separate
constitutional court, administrative court and civil court systems that opine on
consistency of legislation and administrative acts with and interpret that specific code;

• Less freedom of contract - many provisions are implied into a contract by law and
parties cannot contract out of certain provisions.
• A civil law system is generally more prescriptive than a common law system.
• However, a government will still need to consider whether specific legislation is
required to either limit the scope of a certain restriction to allow a successful
infrastructure project, or may require specific legislation for a sector.

summary
Feature Common Law Civil Law
Written constitution Not always Always
Judicial decisions Binding
Not binding on 3rd parties; however, administrative and
constitutional court decisions on laws and regulations
binding on all
Writings of legal
scholars
Little influence Significant influence in some civil law jurisdictions
Freedom of contract
Extensive – only a few provisions implied by law
into contractual relationship
More limited – a number of provisions implied by law into
contractual relationship
Court system applicable
to PPP projects
In most cases contractual relationship is subject
to private law and courts that
deal with these issues
Most PPP arrangements (e.g. concessions) are seen as
relating to a public service and subject to public
administrative law administered by administrative courts

Religious
legal
systems
Religious law emanates from the sacred texts of religious traditions
and in most cases purports to cover all aspects of life as a seamless
part of devotional obligations to a transcendent, imminent, or deep
philosophical reality, either personal or cosmological.
Religion for law must be defined broadly but its truth value need not
and ought not to be addressed.
Most religious law gradually came to apply in its most institutional
form to its own organizations and to familial or contractual matters.
Application to ritual is a gray area but generally excluded from
discussion and classification.

Religious Legal Systems
Islamic Legal
System
Buddhist Legal
System
Jewish Legal
System
Christian/Canon
Legal System
Hindu Legal
System
Confucion Legal
System

Law
Substantive
Creating rights
and Duties
IPC, DV, Contract
Act, TP
Procedural
Rules, Procedures
required for
substantive laws
CPC, CrPC, Indian
Evidence Act

CLASSIFICATION OF SOURCES
Salmond, an English Jurist, has classified sources of
law into the following categories:
Formal Sources of Law: These are the sources from
which law derives its force and validity. A law enacted
by the State or Sovereign falls into this category.

CLASSIFICATION OF SOURCES
Material Sources of Law: It refers to the material of law. In simple words, it is
all about the matter from where the laws are derived. Customs fall in this
category of law.
However, if we look around and examine the contemporary legal systems, it
may be seen that most legal systems are based on legislations.
At the same time, it is equally true that sometimes customs play a significant
role in the legal system of a country. In some of the legal systems, court
decisions are binding as law.

Sources of Law
Legislation
Custom
Law
Precedent

LEGISLATION AS A SOURCE OF LAW
In modern times, legislation is considered as the most important source of law.
The term 'legislation' is derived from the Latin word legis which means 'law' and latum which
means "to make" or "set". Therefore, the word 'legislation' means the 'making of law'.
The importance of legislation as a source of law can be measured from the fact that it is backed by
the authority of the sovereign, and it is directly enacted and recognised by the State.
The expression 'legislation' has been used in various senses. It includes every method of law-
making.
In the strict sense it means laws enacted by the sovereign or any other person or institution
authorised by him.

Legal
system
THE LAW
LAWS
A LAW

ARTICLE 13 OF INDIAN CONSTITUTION
• (1) All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of this Part,
shall, to the extent of such inconsistency, be void.
• (2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void.
• (3) In this article, unless the context otherwise requires,—
• (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of law;
• (b) “laws in force” includes laws passed or made by a Legislature or other
competent authority in the territory of India before the commencement of this
Constitution and not previously repealed, notwithstanding that any such law or any
part thereof may not be then in operation either at all or in particular areas.

CUSTOM AS SOURCE OF LAW
A custom, to be valid, must be observed continuously for a very long time
without any interruption. Further, a practice must be supported not only
for a very long time, but it must also be supported by the opinion of the
general public and morality. However, every custom need not become law.
For example, the Hindu Marriages Act, 1955 prohibits marriages which are
within the prohibited degrees of relationship. However, the Act still permits
marriages within the prohibited degree of relationship if there is a proven
custom within a certain community.

CUSTOM
AS
SOURCE
OF LAW
Custom can simply be explained as those long established
practices or unwritten rules which have acquired binding or
obligatory character.
Saptapadi is an example of customs as a source of law. It is the
most importantrite of a Hindu marriage ceremony. The word,
Saptapadi means "Seven steps". After tying the Mangalsutra, the
newly-wed couple take seven steps around the holy fire, which is
called Saptapadi. The customary practice of Saptapadi has been
incorporated in Section 7 of the Hindu Marriage Act, 1955

ESSENTIALS OF VALID CUSTOM
CUSTOM
ANTIQUITY
CONTINUTY
MATTER OF RIGHT
REASONABLENESS
MORALITY

Essentials of a
valid custom
Antiquity: In order to be legally valid customs should have been in existence
for a long time, even beyond human memory. In England, the year 1189 i.e.
the reign of Richard I King of England has been fixed for the determination of
validity of customs. However, in India there is no such time limit for deciding
the antiquity of the customs. The only condition is that those should have
been in practice since time immemorial.
Continuous: A custom to be valid should have been in continuous practice. It
must have been enjoyed without any kind of interruption. Long intervals and
disrupted practice of a custom raise doubts about the validity of the same.
Exercised as a matter of right: Custom must be enjoyed openly and with the
knowledge of the community. It should not have been practised secretly. A
custom must be proved to be a matter of right. A mere doubtful exercise of a
right is not sufficient to a claim as a valid custom.

Essentials of a
valid custom
Reasonableness: A custom must conform to the norms of justice and public
utility. A custom, to be valid, should be based on rationality and reason. If a
custom is likely to cause more inconvenience and mischief than convenience,
such a custom will not be valid.
Morality: A custom which is immoral or opposed to public policy cannot be a
valid custom. Courts have declared many customs as invalid as they were
practised for immoral purpose or were opposed to public policy. Bombay
High Court in the case of Mathura Naikon v. Esu Naekin, ((1880) ILR 4 Bom
545) held that, the custom of adopting a girl for immoral purposes is illegal.
Status with regard to: In any modern State, when a new legislation is
enacted, it is generally preferred to the custom. Therefore, it is imperative
that a custom must not be opposed or contrary to legislation. Many customs
have been abrogated by laws enacted by the legislative bodies in India. For
instance, the customary practice of child marriage has been declared as an
offence. Similarly, adoption laws have been changed by legislation in India.

KINDS OF
CUSTOMS
1.CUSTOMS
WITHOUT
SANCTION
1.CUSTOMS WITH
SANCTION
1.LEGAL CUSTOM
1.GENERAL
1.LOCAL
1.CONVENTIONAL
CUSTOMS

PRECEDEN
T AS A
SOURCE OF
LAW
A precedent is a statement of law found in the decision of a superior
Court, which decision must be followed by that court and by the courts
inferior to it.
Precedent is a previous decision upon which the judges have to follow
the past decisions carefully in the cases before them as a guide for all
present or future decisions.
In other words, ‘Judicial Precedent’ means a judgment of a Court of law
cited as an authority for deciding a similar set of facts, a case which
serves as authority for the legal principle embodied in its decision.
A judicial precedent is a decision of the Court used as a source for future
decision making.

ACCORDI
NG TO
SALMOND
In loose sense it includes merely
reported case law which may be
cited and followed by courts.
In strict sense, that case law
which not only has great binding
authority but must also be
followed.
In all precedents are authority of
past decisions for future cases. It
must be reported, cited and
followed by courts.

GREY -
Judicial precedent covers
everything said or done
which furnished a rule for
subsequent practice.

'precedents
are judge
made
laws’.

KEETON
Judicial
precedent is
a judicial
decision to
which
authority
has in some
measure
been
attached.

ORIGIN OF PRECEDENT : STARE
DECISIS
Precedent originates from the doctrine of stare decisis.
Stare decisis means to abide by the decisions.
The doctrine of stare decisis brings certainty and conformity to the
decisions of the court and to law.
When court settles an issue, a conflict or a controversy between
parties it becomes the law on those issues and conflicts.
Such a decision is a precedent.
A precedent is a statement of law found in decision of the superior
court. Such decisions are binding to that court and the inferior courts
have to follow.
The cases based on similar set of facts decided by a court may arise
in any future case.
Following previous decisions in similar future cases, the court may
save time and avoid conflicting decisions, bringing uniformity to law.

MERITS OF PRECEDENT: -
1)Respect for
ancestors.
2)Saving of
time.
3)Certainty in
Law.
4)Satisfy the
needs of the
society.
5)Helps people
to understand
the Law.
6)Flexibility in
Law.
7)practical in
nature.
8) Development
of Law.

DEMERITS
OF
PRECEDEN
T: -
1)Very large number.
2)Development of law depends
upon litigation
3)It is incomplete law
4)Wrong precedent may be
established
5)Overruled case may be quoted
before the court

ARTICLE 141OF
CONSTITUTION
OF INDIA
141:Law declared
by Supreme Court
to be binding on
all courts:
The law declared
by the Supreme
Court shall be
binding on all
courts within the
territory of India

CLASSIFICATION OF COURTS IN
INDIA

Judgement
Ratio Decidendi
Obiter Dicta

RATIO DECIDENDI
The ratio in the decision is its essence.
The reason and principles on which a court decides a case forms a precedent.
A Judicial decision has a binding force for subsequent cases.
However, the whole Judgment is not binding in future cases.
Ratio decidendi means the reason or the principle upon which the case has been decided by the higher Courts and only
this much is binding on the subordinate courts while applying the earlier decision.
The ratio decidendi can be ascertained by an analysis of facts.

OBITER DICTA
Obiter Dicta means all that is said by the court by the way or the statement of
law which go beyond the requirements of the particular case and which laid
down rule i.e. irrelevant or unnecessary for the purpose in hand are called
obiter dicta.
These dicta have the force of persuasive precedents only. The judges are
not bound to follow them.
However, obiter dictum of Their Lordships of the hon'ble Supreme Court is
entitled to highest respect and is binding on all the Courts of the country.

SUB SILENTIO
A DECISION IS SUB SILENTIO IF AN IMPORTANT ISSUE
IGNORED OR WAS NOT ARGUED BY COUNSEL.
THAT POINT OR ISSUE MAY TURN THE DECISION OF
THE COURT. SUCH DECISION IS NOT AN AUTHORITY
ON THE POINT WHICH IS NOT FULLY ARGUED IS SUB
SILENTIO.

When Precedents
cease to apply
Overruling Reversing Distinguishing

ORDER BY
CONSENT
OF THE
PARTIES :
The court can pass orders by consent
of the parties.
Those orders are not adjudication of
the rights and liabilities of the parties.
That decision does not lay down any
principle.
Those orders are not precedent.

KINDS OF JUDICIAL
PRECEDENT: -
1. Declaratory and Original Precedents
As John William Salmon explained,
a declaratory precedent is one where
there is only application of an already
existing rule in a legal matter.
Whereas, an original precedent is one
where a new law is created and applied
in a legal matter.
Original precedents are responsible for
the creation of new laws.

2.
PERSUASIV
E
PRECEDEN
TS
A persuasive precedent is a type of
precedent where the judge is not required to
follow the precedent in a legal matter but
will take the precedent heavily into
consideration
So a persuasive precedent is not a direct
source of law but is considered a historical
source of law. In India, the decisions of one
high court can act as persuasive precedents
in other high courts.

3.
ABSOLUTEL
Y
AUTHORITA
TIVE
PRECEDEN
TS
In an absolutely authoritative precedent, the
judges have to compulsorily follow the judicial
decision of the precedent in a case of law.
In other words, even if the judge finds the
precedent to be a wrong judgment, he is legally
bound to give the same judicial decision.
For e.g. – Every court in India is absolutely bound
by decisions of courts superior to itself because of
hierarchy.

4.
CONDITION
ALLY
AUTHORITA
TIVE
PRECEDEN
TS
A conditionally authoritative
precedent is one where
generally the precedent is
absolutely authoritative but in
certain special circumstances,
like a supreme court decision,
it can be disregarded.
The court can disregard the
decision if it is a wrong
decision, or goes against the
law and reason.

1)
DECLARAT
ORY
THEORY
According to this theory, the main function of judges only declaration of law not made the
law.
The main jurist of this theory are Black stone, Coke, Baddeley. This theory provides that,
Judges only discover law. They discover and declare.
Black Stone:-The function of judges is declaration of the law, not make the law.
Coke: Judicial decisions are not a source of law but the best proof of law is.
Baddeley: There is no such thing as judge-made law.
This theory was criticised on a number of grounds
Bentham and Austin: legislative power is not with Courts and they can not even claim it.
Salmond: both at law and in equity, however the declaratory theory must be totally rejected.

2) JUDGES
MAKE LAW:
-
According this theory judges, not only they declaration the
law but also, they make the law.
The main jurist of this theory are Lord bacon, Gray, Diecy .
Lord Bacon: the points which the judges decide in cases of
first impression is a “distinct contribution to the existing law”.
Gray: Judges alone are the makers of Law.
Diecy: -judges made law

SALIENT FEATURES OF INDIAN
CONSTITUTION
Lengthiest written
constitution
Drawn from various
sources
Preamble of the
constitution
Democratic system India is a republic
Union of states
Fundamental Rights
and duties
Directive Principles
of State Policy
Parliamentary
System
Federal structure of
government
Universal adult
franchise
Single integrated
State with Single
Citizenship
Integrated Judicial
system &
Independent
Judiciary
Amending the
Constitution of
India
Judicial Review
Basic Structure
doctrine
Three-tier
government
Emergency
provisions
Secularism

Conceptof
Property,
Ownership,
Possession

Introduction
 The term property is commonly used to define the
owned objects.
 In other words, property denotes those things in which
the right of ownership can be expanded.
 The term property includes both living and non-living
things.
 Lands, chattels, shares, and debts are included in the
property.
 In the broader sense, the term includes all the rights a
person has or can exercise.
 For instance, he can exercise the right to life, personal
liberty, reputation and all those rights against others.
 Hence, in its wider sense, it can be termed as all those
things or material objects without which a person
cannot live.

Definitions
According to Salmond, property has been termed
in a variety of senses:
 Legal Rights- It includes all those rights which a
person is entitled by a way of law. All those material
objects which a person owns as per the law are his
legal rights.These are the rights which he can
exercise over others. It includes a person’s personal as
well as proprietary rights.
 Proprietary Rights- It does not include personal
rights, it only include proprietary rights. It means that
land, chattels, shares or debts are his property but his
right to life and reputation are not included in his
property.
 Corporeal Property- It only includes those property
which real or which can be seen i.e. land, chattels, etc.
It does not include shares or debts as property.

John Locke
LOCKE said that “every man
has a property in his own
person”, and at another place
he said that “the man has the
right to preserve his property,
life, liberty and estate’’.

R.C.CooperV.Union of India,AIR 1970SC
 In R.C.CooperV. Union of India, AIR 1970 SC, the following definition of property
has been quoted
 "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 does not depend on
another’s courtesy. It includes ownership, estates and interests in corporeal 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 or succession, and of their capacity of being injured”.

HOBBES AND BLACKSTONE are in
favour of that property which is entitled by
law, i.e. legal rights.
AUSTIN suggests that property is the
greatest enjoyment which a person holds.
According to him, property includes whole
of assets whether personal or proprietary.

Kinds of
Property
 Corporeal
 It is also termed as tangible property. It is
the right of ownership over material
things. It includes only those things
which are real and visible. Person who
has the right to use a thing is called as
the owner of the object and the object is
called as property. It includes only
material things, i.e. land, house,
chattels, money, ornaments etc.
 Corporeal Property can be divided into
two;
 Movable and Immovable Property
 Real and Personal property

Kinds of
Property
 Incorporeal
 Incorporeal property is other proprietary
rights which are right in rem and are not
tangible and real.
 Incorporeal Property can be divided into
two;
 Jura in re aliena
 Jura in re propria

Property
Corporeal
Movable and
Immovable
Property
Real and
Personal
property
Incorporeal
Jura in re aliena
Lease servitude Securities
Mortgage
Lien
Trust
Jura in re
propria
Patent
Copyright
Trademark

Theories of
Law of
Property
The Natural Law
The Labor
Metaphysical
Historical
Psychological

The Natural
LawTheory
The Natural law theory is based on the principle that one who possesses the object is the owner of the
property. It provides that when an ownerless thing is being possessed by someone then that person
become the owner of the property.The reason is that the law recognized the property through its owner.
This theory also gets recognized by law because the priority of the ownership of property is given to that
person who is in the possession of the property.
GROTIUS says that all the things were originally without an owner and whoever occupied them became
the owner.
According to BLACKSTONE, the natural law theory provides that one who starts making use of a thing
acquired an interest in that thing even for a short period or last long.
This theory has been criticized by some jurist also; HENRY MAINE says that it is erroneous to think that
possession gives right over the title of the property.
Where BENTHAM says that property is not originated by the occupation of an ownerless thing, but it is
the creation of law. He believes that property exist only when there is an existence of law.

The Labor
Theory
SPENCER supported this theory. He holds that property is the result of
labor of an individual and one who has not put any labor to produce the
property cannot acquire it.
The labor theory is also called as the positive theory.
Though this theory is not recognized in modern times because there are
many situations where one can acquire property from others by a way of
will or contract.
According to this theory, the person who has used his skills and labor to
produce an object is the owner of that object because it is the result of
his hard work.

Metaphysical
Theory
This theory was propounded by KANT and HEGEL. Both of
them justified the theory but this theory was not recognized
as it is not concerned with reality.
According to KANT, a thing rightfully belongs to someone
when he is connected with it in such manner that when
someone else uses it without consent, it causes damage to the
owner also. He provides that as per this theory, there is
physical connection between the owner and the object.
HEGEL holds that property is the objective manifestation of
the personality of an individual. In other words, property is an
object in which person has a right to direct his will.

Historical
Theory
 This theory talks about private property and
its slow and steady growth.This theory is
propounded by BENTHAM and got support
from HENRY MAINE.
 The growth of property has three distant
stages.
 First Stage- It provides that a tendency is
developed among people to take things in
natural possession and exercise it independently
of the law of state.
 Second Stage-This provides for juristic
possession which means possession in fact and
as well as in law.
 Third Stage-This is based on the ownership of
the property recognized by law.The law
guarantees the owner of property exclusive right
and control over the property.

Psychological
Theory
This theory provides that the property came into existence based
on the tendency of a human being.
Every one desires to own thing and to exercise control over
them. BENTHAM has supported this theory and hold that property
is a conception of mind.
It is nothing but an expectation to own a property and make use of
it to the fullest.
DEAN POUND also supported BENTHAM and asserted that the
conception of property is the acquisitive instinct of an individual
who desires to have control and possession over the property.

Modes of
Acquisition of
Property -
Salmond
• Possession means physical control or acquisition of property by a
person. Ownership of a property is based on the possession of the
property. Possession is the prima facie evidence of ownership. For
any proprietary matter, law gives first priority to a person who is in
possession of the property
• Corpus Possessionis
• Animus Possidendi
Possession
• According to SALMOND, “prescription is the effect of lapse of time in
creating and destroying right.”
• It is of two kinds.
• Positive or acquisitive prescription
• Negative or extinctive prescription
Prescription
Agreement
Inheritance

Ownership
Ownership refers to the relation that
a person has with an object that he
owns.
It is an aggregate of all the rights
that he has with regards to the said
object.
These rights are in rem, that is, they
can be enforced against the whole
world and not just any specific
person.

 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 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.

Holland’s
definition of
ownership
Ownership is an absolute
control over the object, it
confers three rights, namely,
possession,
enjoyment and
disposition.
Right to possession is inherent
of ownership and right of
enjoyment means the right of
user and of acquiring the fruits
or an increase of the thing.

Salmond’s
definition of
ownership
According to him,
Ownership is a relationship
between the person and his
right that are vested in his
property.
Ownership in its wider sense
extends to all classes of rights
and in its strict sense applies
not only to the rights but to
liberties, powers and
immunities as well.

Criticism of
Salmond’s
definition of
ownership
Coke: ownership defining in terms of
rights will cause confusion. It is a kind of
enjoyment.
GlanvileWilliams: according to Salmond,
ownership of rights exists prior to the
ownership of object and both are
completely opposite to each other.
Duguit: one can own a thing and not the
right.

Renner’s
Modern
theory of
Ownership
A person who provides for the raw
material, equipment, etc. in order to
produce a product to earn profit and then
hires labour to do so, still he will be the
owner of the goods and the person so
providing the aid continues to trade with it
for his own profits.
Ownership of means of production came to
be a source of power over persons for
private profit.
After industrial revolution, ownership is the
relation between the man and the capital.
Renner suggested that ownership, as per
the modern times, must be considered as
the part of public law and state must
interfere in it.

Modes of
Acquiring
Ownership
Under modern law there
are the following modes of
acquiring ownership which
may be broadly classed
under two heads,viz,.
1. Original mode
The original mode is the
result of some
independence personal act
of the acquire himself.
2. Derivative mode

Normally ownership
implies the following
The right to manage
The right to posses
The right to capital
The right to the
income

CHARACTERI
STICSOF
OWNERSHIP
 Ownership can 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
Trust and
Beneficial
Ownership
Legal and
Equitable
Ownership
Vested and
Contingent
Ownership
Sole
Ownership
and Co-
ownership
Co-
ownership
and Joint
Ownership
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
tangible things.
 Corporeal things are those which can be perceived and
felt by the senses and which are intangible.
 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.

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
There is no distinction between legal and
equitable estates in India. Under the
IndianTrusts Act, a trustee is the legal
owner of the trust property and the
beneficiary has no direct interest in the
trust property itself. However, he has a
right against the trustees to compel them
to carry out the provisions of the trust.

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.

Sole
Ownership
andCo-
ownership
Ordinarily, a right is owned by one person only at
a time. However, duplicate ownership is as much
possible as sole 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 species.
 For example, the members of a partnership firm
are co-owners of the partnership property.
Under the Indian 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.
 For example, prior to the enactment of the Hindu
SuccessionAct, 1956, a woman had only a limited
ownership over the estate because she held the property
only for her life and after her death; the property passed on
to the last heir or last holder of the property.
 Another example of limited ownership in English law is life
tenancy when an estate is held only for life.

Concept of
Possession
Regarding possession, as Salmond says,
it is the most basic relation between a
man and a thing.
Possession of material things is
necessary because human life and
human society would rather be
impossible without the use and
consumption of material things.
As civilization began to progress, the
straggle for existence was so bitter that
people began to take possession of
certain objects and considered them as
their own.

 From the legal point of view also it is a very
important concept.
 Innumerable legal consequences flow from the
acquisition and loss of possession and thus, it is
said that there is no concept in the field of law as
difficult as that of possession.
 Firstly, it the prima facie evidence of ownership,
called as nine out of ten points of law, meaning
that there is a presumption that the possessor of a
thing is the owner of it and the other claimants in
order to have that thing must prove their title or
better possessory right.

TheprinciplehasalsobeenincorporatedunderSection110oftheIndianevidence
Act,1872also,asfollows:
 Burden of proof as to ownership- when the question is whether any person is the
owner of anything of which he is shown to be in possession, the burden of proving
that he is not the owner is on the persons who affirms that he is not the owner.

Salmond
As Salmond also says, Possession is
the objective realization of
ownership, it is in fact what
ownership is in right. It is the de
facto exercise of a claim while
ownership is the de jure recognition
of that claim.

Explaining the relation between possession and
ownership the Supreme Court of India in the case of
B. Gangadhar v. B.R. Rajalingam stated, possession
is the external form in which claims normally
manifest themselves. It is in fact, what ownership is
in right enforceable at law to or over the thing.

Even a person who wrongfully possesses a property, like a
thief, has a good possessory right over it against the
world at large except the true owner.
This means that a person cannot interfere with the
possession of another person by setting up a defence of
jus tertii, that is, the title of a third person.
Also, dispossessing or ejecting a person from one’s own
land and re- entering forcibly is wrongful act even though
the possession of the person turns out to be wrongful.
Thus, simply, it can be said that law protects possession.

Meaning of
Possession
Salmond-
The possession of a material object is
the continuing exercise of a claim to the
exclusive use of it.
Thus, possession involves two things:
(1) claim of exclusive user; and
(2) conscious or actual exercise of this
claim, that is, physical control over it.
The former is the mental element called
as animus possessionis and the later is
the physical element called as corpus
possidendi.

Federick
Pollock-
He pointed out that in common
parlance a man is said to possess or
to be possession of anything of
which he has apparent control, or
from the use of which he has the
apparent power of excluding others.
So, he also talks about the two
elements: corpus possidendi and
animus possession is.

Savigny-
He in his theory of possession says, the
pith of corporeal possession is to be
found in the physical power of exclusion.

Ihering-
 He takes a sociological view of the concept of possession and is of
the opinion that the element of animus possidendi is not material
and cannot serve as test of legal possession.
 But if the view of Ihering is accepted it would provide no answer to
the question as to why a thief can claim possession of a thing
which he has stolen but not a servant who is possession of his
master’s goods.
 Thus, simply, intention is also a material element of legal
possession.

Elements of
possession
(a) Corpus of
Possession
(b) Animus
Possidendi-

Distinction
between
possession in
fact and
possession in
law
Possession in fact or de facto possession is
the actual or physical possession. And
possession in law or de jure possession is
possession in the eye of law, that is,
recognized and protected by law.
They both most often exist together must
not always. For example, a servant holds a
bicycle on behalf of his master, he has actual
possession of it, but in the eye of law the
possession is with the master.The Roman
Law also recognizes the distinction between
possession in fact and possession in law as
possession naturalis and possession civilis.

Kinds of
Possession
(a) Corporeal
and
Incorporeal
Possession-
(b) Mediate
and
Immediate
Possession-
(c)
Concurrent
or duplicate
possession- (d)
Constructive
Possession-
(e) Adverse
Possession-

Modes of
Acquiring
Possession
(a) By
Taking
(b) By
Delivery
(c)
Operation
of law

Justinian's definition:
 "The obligation is a legal bond that compels us to provide certain things according to the
laws of our country”

According toAccording toSirJohnSalmond
" An obligation, therefore, may be defined as a
proprietary right in personam or a duty which
corresponds to such a right.”
 Obligations are all in one class of duties, namely
those which are co-relatives of rights in personam.

According to
Holland,
 An obligation as its entomology
denotes is a tie by one person is bound
to perform some act for the benefit of
another.
In some cases, the two parties agree
thus to be bound together; in other
cases as they are bound without their
consent.

 an obligation is the control over
another person, yet not over his
person in all respects (in which
case his personality would be
destroyed), but over single acts
of his which must be conceived
of subtracted from his free will
and subjected to our will
According to
Savigny

The obligation is a legal
relationship between two
parties, one of which is a
creditor and the other
debtor .

Sources of
Obligation -
 There are four sources of an obligation which are as follows -
(1) Contractual obligation (obligations arising from contract) -
 Contractual obligations are those which are created by contracts
or agreements.
 These obligations create rights in personam between the parties.
 The rights so created are generally proprietary rights.
 Sometimes a contract creates rights which are not proprietary
though they are in personam.

(2) Delictual
Obligation
(obligations
arising from
tort) -
 Delictual obligations arises from tortious liability.
 According to Salmond, " ATort may be defined as a civil wrong for
which the remedy is an action for damages and which is not solely
a breach of contract or the breach ofTrust or other merely
equitable obligations.
 Delictual obligations are those in which a sum of money to be paid
as compensation for a tort

(3) Quasi-
contractual
obligations
(obligations
arising from
quasi-
contract) -
 The term "Quasi" is a Latin word which, which means "as if" or "similarly".
 Quasi-contract is not a real contract entered into by the parties
intentionally.
 It resembles a contract, in which law imposes an obligation on a person to
perform an obligation on the ground of equity.
 Quasi-contract is based on the principle of equity that "A person shall not
be allowed to enrich himself unjustly at the expense of another".
 In other words,A person should not receive or accept any benefit unjustly.
 If so, he has an obligation it back to the right owner. Such obligations is
called Quasi-contractual obligation.
 Example - "X" leaves his Bag atY's house by mistake. "Y" has Quasi-contract
obligation to return it to "X"

(4) Innominat
e obligation -

Innominate obligations- Innomited
obligations are all the obligations which are
other than those falling under the heads of
contractual obligation, delictual obligations
and Quasi-contractual obligation.
Examples - Obligations of trustees towards
their beneficiaries

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