2. Legal Concepts
• Legal concepts definition- Working tool of judicial reasoning and art
of justice according to law. These include, rights duties, powers,
privileges, liability and immunity and expound the relations between
those notions.
• This definition is by Bodenheimer.
3. Legal rights
• General meaning of right- In general parlance, right means claims or titles,
liberties, power and immunity sum together. In other sense, it is permissible
action within a certain sphere. The Latin term for rights is ‘rectus’ which means
correct. Salmond has defined a right as man’s capacity of influencing the acts of
another, not by his own strength, but of the opinion of the forces of society.
• Legal wrongs- Salmond defines ‘wrong’ as an act contrary to the rule of right and
justice. A synonym of it is injury. In it’s legal sense, it is known as legal injury
which is against law.
• Wrong maybe of 2 kinds, namely, moral wrong and legal wrong.
• A moral wrong is an act which is morally or naturally wrong, being contrary to the
law of natural justice whereas, a legal wrong is an act which is legally wrong,
being contribute role of legal justice and a violation of the law. In simple words,
wrong with a violation of legal rights.
• Legal wrong may or may not be a moral wrong and conversely a moral wrong may
or may not be legal wrong. For instance, non-payment of time part debt is a
moral wrong but it is not a legal wrong since the same is not enforceable by law.
4. Duties
• A duty is in obligatory act, that is, it is an act the opposite of which would
be wrong. Thus, duties and wrongs are generally correlated. The
Commission of a wrong is a breach of duty and performance of a duty is
avoidance of wrong.
• Duties are also 2 kinds namely moral and legal.
• A duty maybe moral but not legal or it may be legal but not moral or it may
be both moral and legal at once. In England, there is a legal duty not to sell,
have for sale adulterated milk whether knowingly or otherwise and
without any question of negligence. Since this duty is irrespective of
knowledge in negligence, it is exclusively legal and not of moral duty on the
other hand, there is no legal duty in England to refrain from offensive
curiosity about one’s neighbor even if satisfaction of it does them harm.
Here, it is clearly a breach of moral duty but not of legal duty. Not to steal
is both a moral and legal duty.
5. Classification of legal duties
• 1. Positive and negative duties- a duty may either be positive or negative.
When a law obliges a person to do an act, the duties called positive duty. When
a law obliges him/her to refrain from doing an act, it is negative duty. The
illustration of negative duties that if person has a right to land others are under
a corresponding duty not to interfere with that persons exclusive use of land.
• 2. Primary and secondary duty- Duty may be primary or secondary. A
primary duties one which exists per se and is independent of any other duty.
For instance, to forbear from causing personal injury to another is a primary
duty. Secondary duty, on the other hand, is one which has no independent
existence but exist only for the enforcement of other duties. For example, a
duty to pay damages for the injury turn to a person, is the secondary duty.
Secondary duty also called a sanctioning or remedial duty.
• 3. Absolute and relative duties- Absolute duties are only owed to the State,
breach of which is generally called a crime and the remedy for it is punishment.
Relative duties are owed to any person other than the one who is imposing
them, the breach of which is called a civil injury which is redressal by
compensation or restitution to the injured party.
6. Legal rights
• Salmond defines right as an interest recognised and protected by a rule of or justice. It is
an interest in respect of which there is a duty and the disregard which is wrong. A man has
various interest but all of them are not recognised by law. Many interests exist de facto
and not de jure they receive no recognition or protection from any rule of right. The
violation of them is no wrong and respect for them is no duty. Interest are things which are
to man’s advantage. Eg: a man has interest in his freedom or reputation.
• Rights are either moral or legal. A moral or natural right is an interest recognised and
protected by rule of morality, violation of which would be a moral wrong. For example,
parent’s interest to command respect from their children is their moral right but if children
violate it, it is a moral wrong. A legal right, on the other hand, is an interest recognised and
protected by the rule of law, violation of which would be a legal wrong. Thus, everyone has
a right to privacy in in his house and if any person interferes with this right it would be a
legal wrong.
• Dean Roscoe pound in his analysis of legal rights observed that it connotes-
• 1. An interest which is secured and protected by law
• 2. Recognise claim to act or forbearance by another or by all in order to make the
interest effective
• 3. The capacity of creating or altering rights
• 4. The privileges and liberties
• 5. As an adjective, it is meant to give effect to recognise and give effect to moral rights.
7. G.W. Paton also agrees that one of the essential conditions of a legal right is that it
should be enforceable by the legal process of the state. He, however, mentions 3
exceptions to this general rule-
1. It is not necessary that the State should always necessarily enforce all the legal
rights. There may be cases when instead of enforcing the right, the State may redress
the wrong by getting compensation paid to the injured party.
2. There are certain rights which are imperfect by nature. That is, they are recognised
by the law (State) but not enforceable by it. For example, in a time barred debt the
right of the creditor to recover the debt is an imperfect right because the debt
becomes legally irrecoverable after the expiry of period of limitations. But if the debtor
makes payment of borrowed money to the creditor after the period of limitation it
would be legally recognised as valid payment of debt and the debtor shall not have the
right to recover this amount from the creditor on the ground that the debt being time
barred, he was not legally bound to pay it. Again, or time barred debt can be revived
by any subsequent written consent even if no new consideration is specified in the
document.
3. There are certain laws which do not confirm right of enforcement to the courts
therefore, their enforcement is not possible though they are recognised by law. For
instance, International Court of Justice has no power to compel enforcement of its
decree under the international law.
8. Legal rights defined by the Indian Courts.
• Explaining the main attributes of a legal right, the High Court of Madras in Daniel
versus State (AIR 1968 Mad. 355) observed as follows-
1. In strict sense of the term, legal right is one which is an ascertainable claim which is
enforceable by courts and justice administration agencies
2. In its wider sense, it has to be understood as an advantage or benefit conferred
upon a person by rule of law
3. Legal rights needs to be recognised by law
4. There are rights which are recognised by the international court under the law of
nations
5. Truly speaking, or legal right is the capacity of asserting recognised interest rather
than a claim that could be asserted in the law court.
• The Supreme Court of India has defined legal right in State of Rajasthan v/s Union of
India(AIR 1977 SC 1361), were it observed-
“In a strict sense, legal rights are correlative of legal duties and are defined as interest
which law protects by imposing corresponding duties on others. But in a generic
sense, the word right is used to mean an immunity from the legal power of another.
Immunity is exemption from the power of another in the same way as liberty is
exemption from right of another. Immunity, in short, is no subjection.”
9. Case- Mr. X vs Hospital Z (1998) 8 SCC 296
• Facts- Blood of the appellant was to be transfused to another person
and for that person a sample was taken and it turned out that
appellant was HIV positive. On account of this, appellant’s wedding
was called off. He was also heavily criticised by the society.
• Argument for appellant- Information should have been kept secret as
medical ethics requires it to do so. There was a duty to care
applicable to the person in medical profession which included a duty
to maintain confidentiality.
10. Held:
• Court refused to accept appellant’s contention that respondent was
under a duty to maintain confidentiality as the marriage carried a risk
of infection with communicable disease. In fact, Sections 269 and 270
IPC requires that if a person marries with the knowledge that he/she
has a disease like AIDS then he/she shall be punishable.
Therefore, the case was dismissed.
• The court said, “Right is an interest recognised and protected by
Moral and legal rules. Respect for such interest would be a legal
duty… if there is our legal right vested in a person, he can seek
protection against a person who is bound by a corresponding duty
not to violate that right”.
11. Theories of legal rights
• 1. Will theory of legal rights.
• The will theory of legal rights has been supported by Hagel, Kant, Hume and others.
According to this theory, right is an interest inherent attribute of the human will. The
subject matter of right is derived from human will. This theory suggests that it is
through a right that the man expressed his will over an object.
• 2. Interest theory of legal rights
• Another popular theory regarding the nature of legal rights called interest theory which
was mainly propounded by the German jurist Ihering. According to this theory, a legal
right is a legally protected interest. Ihering does not emphasize on the element of will
in a legal right. He asserts that the basis of legal rights is ‘interest’ and not will. The
main object of law is protection of human interest and to avoid a conflict between their
individual interests.
• But Salmond has criticized his theory on the ground that it is incomplete since it
completely overlooks the element of recognition by the State. The legal right should
not only be protected by the State but should also be legally recognized by it. He cites
of an example to substantiate his views. The interest of a beasts is to some extent
protected by law inasmuch as cruelty to animal is a criminal offence. But beast cannot
for that reason be asked to possess a legal right of not being treated with probability.
Salmond treats the right to protection of animals from cruelty merely a moral right.
12. • Protection theory of legal rights
• The total totalitarian view completely denies the existence of legal
rights. They argue that State being omnipotent, individual has no
separate existence from it. Therefore, in fact all rights belong to the
State and the individuals do not have any independent legal right as
such. This view has, however, been rejected being far from reality in
the modern context of democratic welfare states.
13. Essential elements of a legal rights
• Every legal right has the following 5 elements-
• 1. The person of inherence- He is also called the subject matter subject of
right. A legal right is always vested in a person who may be distinguished
as the owner of the right, the subject of it or the person of inherence.
Thus, there cannot be a legal right without a subject or a person who owns
it. However, the owner of the right need not be certain or determined. For
instance, an unborn child possesses a legal right although it is not certain
whether he will be born alive or not.
• 2. The person of incidence- A legal right avails against a person upon
whom lies the co-relative duty. He is distinguished as the person of
incidence. He is a person bound by the duty and so may be described as
subject of the duty. In other words, the person whose duty is to act or
forbear for the benefit of the subject of the right.
14. • 3. Content of the right- The act or omission which is obligatory on the
person bound in favor of the person entitled. This is called the content or
substance of right.
• 4. Subject-matter of right- It is something to which the act or omission
relates, that is, the object over which a right is exercised. This may be
called the object or subject matter of the right.
• 5. Title of the right- Every legal right has a title, that is, certain facts or
events which are events by reason of which the right has become vested in
its owner.
• If A buys a piece of land from B, A is the subject or owner of the right. The
person bound by the correlative duty are persons in general, for a right of
this kind avails against the world at large. Th e content of the right consists
in non-interference with the purchaser’s exclusive use of the land. The
object or the subject matter of the right is the conveyance by which it was
acquired from the former owner.
• Eg: Suppose a testator leaves a gold ring to a legatee. In this case, legatee is
the subject or the owner of the right. The gold ring is the object of the
right, the delivery of the ring is the content of the right, the executor is the
person of incidence and the will bequeathing the ring is the title of the
right.
15. Can there be ownerless right?
• The English law does not accept the existence of ownerless right because a
right without the subject as an impossibility. It, however, accepts the that the
subject of right may be uncertain or contingent as in case of an unborn child
who’s being born alive is uncertain.
• Like a subject of right, and object of right is also essential. Right without an
object in respect of which it exists, is an impossibility. The object of right maybe
material things such as furniture, books, cards, buildings or it may also be
intangible such as right of reputation, goodwill, patent etc.
• Thus, it would be seen that there cannot be a legal right without the subject in
whom it inheres and an object or subject matter in respect of which act or
omission relates.
• It must, however, be stated that Holland and some other writers are opposed to
Salmond’s view that object includes not only material things but also
immaterial things and observed that object as an element of a legal right
includes material things only, not the things which are immaterial and, in their
opinion, there may be a right without an object. For Example, right to protect
one person, right to reputation etc.
16. Classification of rights
• 1. Perfect and imperfect rights- According to Salmond, perfect right is one
which corresponds to a perfect duty. It is not only recognised by law but
also enforced by it. And imperfect right, on the other hand, is one which
though recognised, is not enforceable by law. In other words, a perfect
right is one in respect of which an action can be successfully brought in a
court of law and the degree of the court, if necessary, enforced against the
defaulting judgment debtor. But an Imperfect right is incapable of legal
enforcement. Time barred date is a typical example of an imperfect right.
• 2. Positive and negative rights- A right is distinguished as positive or
negative according to the nature of correlative duty it carries with it. In
case of a positive right, the person subject to the duties bound to do
something whereas in case of negative right, others are restrained from
doing something. Right of ownership is a negative right.
17. • 3. Antecedents and Remedial rights- The rights dealt with by substantive
law may either be antecedent or remedial. An antecedent right is one
which exists irrespective of any wrong having been committed. It is an
exceptional advantage granted to a person who is clothed with this right.
For instance, purchaser of certain goods has an antecedent right over the
goods so purchased. On the other hand, right which accrues when a
antecedent right is violated is called a remedial right. Generally, it involves
compensation by way of relief for violation offer an antecedent right.
• 4. Right in rem and right in personam- Right in rem corresponds to a duty
imposed upon persons in general whereas a personal right(right in
personam) corresponds to a duty imposed upon determinant individuals.
Right in rem is available against the world at large, while a personal right is
available against a particular person or persons. A person’s right to a
peaceful occupation and use of his land is a right in rem because all the
world is under the duty towards him not to interfere with it but if a person
grants are lease of a land to a tenant, his right to receive rent from the
tenant is a right in personam for it is available exclusively against the
tenant and none else.
18. • 5. Proprietary and personal rights- The aggregate of a man’s
proprietary rights constitutes his estate, his assets and his property.
They have some economic or monetary significance and are elements
of wealth. For instance, money in one’s pocket or in bank, right to
debt, land, house etc are proprietary rights.
Personal rights, on the other hand, are elements in one’s well-being.
They have no monetary value whatsoever. Examples of personal right
are right of reputation, personal liberty, freedom from bodily harm
etc.
• 6. Right in re propria and rights in re aliena- Right in re propria means
right over one’s own property and right in re aliena means right over
the property of someone else. The latter may also be called as
encumbrances using the term in the widest sense.
19. • 7. Principle and accessory rights- The existence of principle rights is
independent of any other right but accessory rights are ancillary to
the principle right and have a beneficial effect on the principle right.
For example, if a debt is secured by a mortgage the recovery of debt
is the principle right while security is accessory right. Likewise, an
owner of a piece of land has a right of way on the adjoining land. The
ownership of land is principle right and right of way in in the joining
land is accessory right.
• 8. Vested and contingent rights- A vested right accrues when all the
facts have occurred which must by law occur in order that a person in
question would have the right. In case of contingent right, only some
of the events necessary to vest the right in the contingent owner have
happened. A vested right creates an immediate interest. It is
transferable and heritable. A contingent right does not create an
immediate interest and it can be defeated when the required facts
have not occurred.
20. • 9. Public and private rights- Right vested on the state are called public
rights. Example: assault is a breach of private right of the person assaulted
but avoidance of military service(where it is mandatory) is an injury to the
state and therefore a violation of a public right. Public right is possessed by
every member of the public. Private right, on the other hand, is concerned
only with private individual, that is, both parties connected with it are
private persons.
• 10. Servient and Dominent rights- A servient right is one which is subject to
an encumbrance while the encumbrance which derogates from it, may be
called dominant.
The land or immovable property for the beneficial enjoyment of which the
right exists is called dominant heritage and the owner or occupier thereof,
is called the dominant owner. The land or immovable property on which
the liability is imposed is called the servient heritage and the owner or
occupier thereof, is a servient heritage. For example: If A as the owner of a
certain house has a right of way over B’s land, A’s house is the dominant
heritage and A is the dominant owner and B’s house is the servient
heritage and B is the servient owner.
21. Legal personality
• Person- The word ‘person’ is derived from the latin word persona which
meant a mask worn by actors playing different roles in a drama.
• A person is generally defined as being a subject or bearer of a right. But
this is rather or too narrow interpretation of the term as a person is subject
to duties as well. Subjects of rights or of duties are in general individual
human being, but law also recognises certain groups of persons or of
property, which are also capable of being subjects of rights and duties by
conferring artificial personality to them.
• Thus, there are generally, 2 types of persons which the law recognizes,
namely, natural and artificial. The former refers to human beings while
latter to other than human beings which the law recognizes as having
duties and rights. One of the most recognized artificial person is
corporation.
22. Legal personality is a fiction of law
• Artificial personality conferred on certain non-living entities and
inanimate objects and treating them as person is creation by friction
of law introduced for the purpose of bestowing the character and
properties of individuality on collective body of persons. In simple
words, fiction of law is something false which law assumes or accept
as true. For example, company or corporation or an idol though not a
natural person is treated as a legal person.
23. Definition of a legal person
• Salmond defines a ‘person’ as, “any being to whom the law regards as
capable of rights and duties. Any being that is so capable, is a person
whether human being or not and nothing that is not so capable is a
person even though he be a man.
24. Legal status of unborn child
• The law attributes legal personality to unborn children. A child in
mother’s womb is by fiction treated as already born and regarded as a
person for many purposes. A gift may be made to a child who is still in
the mother’s womb.
• Ownership may be vested in a child in mother’s womb and such child
constitutes life for the purpose of the rule against perpetuity.
• Hindu law of partition requires a share to be allotted to a child in
mother’s womb along with the other living heirs. However, if a child
does not take the birth alive, his share may be equally partitioned
between the surviving hiers. The proprietary rights of an unborn child
are fully recognized by Indian law.
25. Legal status of a dead person.
• Salmond observes that generally speaking, the personality of a human
being may be set to commence with his birth and ceases with his death.
Therefore, dead men are no longer ‘persons’ in the eyes of law. They
ceased to have rights since they ceased to have an interest nor do they
have any duties. A dead man’s corpse is not property in the eyes of law.
• Salmond points out 3 things in respect of which anxieties of living men
extend beyond the period of their deaths, of which law will take notice.
They are dead-men’s body, his reputation and his estate.
• Although dead man’s corpse is the property of no one but law ensures that
it gets decent burial or cremation. The criminal law provides that any
imputation against deceased person, if it hurts the reputation of that
person had he/she been living and is intended to hurt the feeling of his
family or other near relatives, shall be an offence of defamation under
Section 499 IPC.
26. Legal status of idols and mosque
• It has been judicially recognised that idol is a juristic person and as such it
can hold property. Its position is, however, like that for minor because the
priest, that is, pujari acts as a guardian to look after the interest of the idol,
that is, deity. The Privy Council in Pramatha Nath Mullick vs. Pradyumna
Kumar Mullick held that an idol is juristic person and its will as to its
location must be fully respected. The court directed that idol be
represented by a disinterested next friend to be appointed by the court to
put up its point of view.
• Similar view has been reiterated by the Supreme Court of India in Yogendra
Nath Naskar vs Commissioner of Income Tax (1969 SC) wherein it was held
that an idol is a juristic person capable of holding property and of being
taxed through its shebaits who is entrusted with the possession and
management of its property. An idol may be treated as a unit of
assessment for assessing its liability under the Income tax Act.
27. Legal personality of a mosque
• As regards the personality of a mosque courts have expressed
conflicting views. In Maula Bux vs Hafizuddin (1925 Lahore HC), High
Court of Lahore held that a mosque was a juristic person capable of
being sued. But the Privy Council held a contrary view in Masjid
Shahid Ganj case and observed that mosque are not artificial persons
in the eyes of law and therefore no suit can be brought by or against
them. However, the Privy Council left the question open whether for
any purpose mosques can be granted as a juristic person.
28. Legal personality of Guru Granth Sahib
• The Supreme court in Siromani Gurudwara Prabandhak Committee vs
Somnath Das (2000 SC) has ruled that Guru Granth Sahib the holy
Granth of Sikhs is a legal person. The court, rejected the plea to
compare Guru Granth Sahib with that of the Hindu idol because idol
worship is contrary to religious tenants but at the same time asserted
that the Sikhs have the same regard and respect for Guru Granth
Sahib as Hindus have for an idol.
29. Kinds of legal persons
• Law recognises only 2 kinds of persons, namely (1) Natural persons and (2)
Legal persons who are artificial creation of law.
• A natural person is a living human being. But all living human beings need
not necessarily be recognised as person in law. For example, before the
abolishment of slavery, the slaves were considered as res and were devoid
of any legal personality for the could have no rights and duties. Again,
lunatics and infants, have only a restricted legal personality.
• Legal persons, on the other hand, is any subject matter to which the law
attributes legal personality. Legal personality, being creation of law, can be
conferred on entities other than human beings.
• Legal persons are artificial or imaginary beings to which law attributes
personality by way of fiction where it does not exist in fact. They are
capable of rights and duties like a natural persons.
30. Corporate personality: It’s nature
• Corporate personality is a creation of law. Legal personality of corporation is
recognised both in England and Indian law. It is an artificial person enjoying in
law capacity to have rights and duties and holding property.
• It is significant to note that a corporation is distinct from its individual
members it has the legal personality of its own and it can be sued and can
sew in its own name. It does not come to an end with the death of its
individual member and, therefore, has a perpetual existence. However, unlike
natural persons, a corporation can act only through its agents. Law provides
special procedure for winding up of a corporate body.
• Besides, corporations, the banks, railways, universities, college, church,
temples, hospitals, etc are also conferred legal personality. The union of India
and the states are also recognised as legal or juristic persons.
31. Property
• Meaning- Property may be described as a sum total of a man’s
fortune, including not only the objects of which he is the owner but
also the value of any claims which he may have against other persons,
after deducting the amount of any claims which might be made good
against him.
• In a limited sense, property consists of only the proprietary rights as
opposed to his personal rights. Thus, land, chattels, shares and debts
constitute property.
32. Definition of property by Supreme Court
• Supreme Court in Guru Dutt Sharma vs State of Bihar (1967 SC) 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 of alienation and the
right to destroy.
• The term ‘property’ also include within it, goodwill of a business, which is an
intangible asset. It includes not only immovable and movable object, but also
patents, copyrights, shares, claims etc.
• In R.C Cooper vs Union of India (1970 SC), a very comprehensive definition of
property was given-
• “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 rights 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 to their capacity of being acquired.
33. Theories of property
• 1. Natural law theory- This theory is based on the principle of natural
reason derived from the nature of things. According to this theory,
property was first acquired by occupation of an ownerless object as a
result of individual labour.
• Grotius, Locke, Blackstone have supported this theory.
• 2. Labour theory- This theory believes that the property can be
claimed on the exclusive basis of one’s work, which produced that
property. It recognizes the role of labour for adequate rewards. When
a person acquires property, he is entitled to hold it exclusively.
According to this theory, a thing(res) is the property of the person
who produces it or brings it into existence.
34. • 3. Metaphysical theory- This theory was propounded by Hagel and Kant.
Property is the object on which a person has the liberty to direct his will.
Kant has also supported metaphysical theory of property and justified its
existence and need for protection.
• 4. Historical theory- This theory believes that private property has its growth
in three distinct stages. In the first stage, a tendency developed among
people to take things into natural possession and, exercise control over them
independently of the law or the State. In the second stage, the juristic
conception of possession gradually developed which meant possession in
fact as well as in law. In the third and last stage, there was development of
ownership which is purely a legal conception having its origin in law. The law
guarantees the owner of property, exclusive control and enjoyment of
property owner by him.
Henry Maine was the main supporter.
35. • 5. Psychological theory- According to this theory property came into
existence on account of acquisitive tendencies of human beings. Everyone
desires to own things and keep them in his possession and control.
Bentham has supported this theory of property and pointed out that
property is altogether a conception of mind.
• 6. Functional theory- The functional theory considers property as a social
interest for promoting general security and protection of individual
interests in personality, domestic relations and in substance. As pointed
out by Roscoe pound, interest of personality like security of one’s physical
being, privacy, honour, reputation etc can be realised only through some
access to property.
36. Modes of acquisition of property
• There are four distinct modes of the acquisition of property. It may be
acquired by (1) Possession (2) Prescription (3) Agreement (4) Inheritance.
• 1. Possession- It is the prima facie evidence of ownership. A property which
is already in possession of someone else, when acquired by possession
gives a good title to the possessor against all third persons except the true
owner. Even as against the true owner, the possessor is entitled to maintain
his possession and until evicted in due course by law.
Even in case of adverse possession, there are in fact two owners, the
ownership of one is absolute and perfect while that of the other is relative
and imperfect and often called possessory ownership by reason of its origin
in possession.
37. • 2. Precription- Prescription may be defined as the effect of lapse of time in the
creation and extension of legal right. The person who is in continuous long
possession adverse to its owner for an uninterrupted period of 12 years
acquires ownership of the land and the owner loses ownership after the lapse
of this period.
• The law of prescription is based on the principle that law helps the vigilant and
not the dormant.
• 3. Agreement- Property may also be acquired by agreement which is
enforceable by law. Paton defines agreement as an expression by two or more
persons communicated to each other, of a common intention to affect the legal
relations between them. It, therefore, follows that an agreement has 4
essential elements, namely-
(1) It being a bilateral act there should be two or more parties to an agreement
(2) Mutual consent of the parties
(3) It should be communicated
(4) There should be common intention to effect the legal relationship.
38. • 4. Inheritance- Right of inheritance is founded on the assumption that
property serves as a best means of social security. Security of food,
dwelling house and means of living to the members in a joint family was
the foremost obligation of the Karta which barred him from alienating the
family property except for legal necessity and family benefit or seeking
relief from distress.
• The death of the owner of the property could result in 2 kinds of rights
namely-
• (1) Inheritable and
• (2) Uninheritable rights.
• Right is inheritable if it survives its owner and it is uninheritable if it dies
with him. Property rights are inheritable and most personal right are
uninheritable. But there are certain exceptions to the general rule. For
example, the right of action survives the death of both the parties as a
general rule.
39. Possession
• Possession- Possession is the prima facie evidence of ownership. Usually, the
presumption is that the possessor of the thing is the owner of it and other claimant
must prove their title.
• As stated by Pollock, a man is said to be in possession of a thing of which he has the
apparent control or from the use of which he has apparent power to exclude others.
• The SC of India has elaborately explained the concept of possession in B. Gangadhar vs
Ramalingam (1995 SC), as follows-
• “Possession is the objective realisation of ownership. It is the de facto exercise of a
claim to certain property and a de facto counterpart of ownership. Possession of a
right is the de facto relation of continuing exercise and enjoyment as opposed to the
de jure relation of ownership. Possession is the de facto exercise of a claim to certain
property. It is the external form in which claims normally manifest themselves.
Possession is in fact what ownership is in right enforceable at law to or over the thing.”
• Possession is protected by law in following 2 ways-
• 1. By conferring certain legal rights on the possessor.
• 2. By penalizing the person who interfere with the possession of a person or by making
him pay damages to the possessor.
40. Possession in fact
• The relation between a person and a thing which he possesses is called
possession in fact or defacto possession. It indicates physical control of a person
over a thing. For instance, if a person has caged a parrot, he will be deemed to
have physical possession of it so long as the parrot is in the cage but as soon as
the parrot escapes from the cage or set free, he would lose possession over it.
Certain points regarding possession must be kept in mind-
• 1. There are certain things over which a person cannot have physical control eg:
moon, sun etc.
• 2. Physical control over the object need not be continuous. Physical control may
continue even if a person relinquishes actual control temporarily.
• 3. In order to constitute possession in fact, merely having physical control of a
thing is not enough but it must be accompanied by capacity to exclude others
from the possession of it.
• 4. The distinctive feature is the desire of the person whether he desires to retain
possession or not.
41. Possession in law
• Possession in law is also termed as de jure possession.
• Whenever a person brings a suit for possession, the first thing that the court
ascertains is whether the plaintiff was formerly in real possession of the thing in
dispute. Actual or factual possession testifies legal possession yet there are many
situations when a persons does not have possession in law although he is in
actual possession of the object.
• Case- R vs Harding (1929)
Facts: Accused was convicted of stealing a rain coat from a maid servant who, as
against the master, had mere custody of the rain coat and could herself have
been convicted of larcency had she dishonestly made-off with it.
Held: In the eyes of law, she had possession as against the thief but not as against
her employer.
• Case: Boynton-wood vs Trueman(1961) It was held that the handing over of the
keys to the landlord to carry out repairs was not surrender of possession.
Similarly, the possession of keys to a room in a house was held not to give
exclusive possession amounting to a sub-tenancy.
42. Elements of possession
• According to Holland, legal possession has two essential elements,
namely, (1) corpus and (2) animus.
• Savigny also supports this view and considers corpus possessionis and
animus domini as the two essential requisites of possession. In his
view, corpus possessionis means effective control over the thing,
which in other words means, exclusive use of the thing with the
capacity to eliminate the interference of others.
• By animus domini, Savigny contends intention to hold the thing as an
owner of it. Both these elements are considered necessary for legal
possession.
43. Relation between possession and ownership
• Possession may mean that possession which is recognized and protected as
such by law. Legal possession is ordinarily associated by de facto possession;
but legal possession may exist even without de facto possession in law.
• A person who, although have no de facto possession is deemed to have
possession in law is said to have constructive possession.
• Ownership chiefly imports the right of exclusive possession and enjoyment of
the thing owned. The owner in possession of the thing has the right to exclude
all others from the possession and enjoyment of it. If he is wrongly deprived of
what he owns, the owner has a right to recover possession of it from the
person who wrongfully gets into possession of it.
• The right to maintain or recover possession of a thing as against all others is an
essential part of ownership. Therefore, ownership implies not so much the
physical relation between the person and the thing as the relation between the
person owning the thing owned.
44. Ownership
• The concept of is one of the fundamental juristic concepts common to all
systems of law. This concept has been discussed by most of the writers before
that of possession. However, it is not the right method. The idea of possession
came first in the minds of people and it was later on that the idea of
ownership came into existence.
• Ownership is a complex juristic concept which has its origin in the Ancient
Roman Law. In Roman law ownership and possession were respectively
termed as ‘dominium’ and ‘possessio’. The term dominium denotes absolute
right to a thing while possessio implied only physical control over it. They gave
more importance to ownership because in their opinion it is more important
to have absolute right over a thing than to have physical control over it.
45. Definition of ownership?
• The concept of ownership consists of a number of claims such as liberty,
power and immunity in regard to the thing owned. Ownership is thus a
sum-total of possession, disposition and destruction which includes the
right to enjoy property by the owner. The owner has to side by side abide by
the rules and regulation of the country.
• 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-
• 1. Right to use a thing
• 2. Right to exclude others from using the thing
• 3. Disposing of the thing
• 4. Right to destroy it.
46. Definition of ownership
• In Black’s law dictionary (7th Edition), ownership has been defined as “collection of right to
use and enjoy the property, including right to transmit it to others”. Therefore, ownership is
de jure recognition of a claim to certain property.
• Austin’s definition:
Austin while defining ownership has focused on the three main attributes of ownership,
namely, indefinite user, unrestricted disposition and unlimited duration which may be
analysed in detail.
• 1. Indefinite User:
• By the right of indefinite user Austin means that the owner of the thing is free to use or
misuse the thing in a way he likes. The pawner of a land may use it for walking, for building
house or for gardening and so forth. However Austin was cautious enough to use the term
“indefinite”. He did not use the thing owned infamy way he likes. His use if the thing is
conditioned by requirements or restrictions imposed by the law. The owned must not use
the things owned as to injure the right of others. The principle is the foundation of the well
known maxim ‘sie utere tero ut alierum non laedas’ the meaning of the maxims is that to
use your own property s not to injure your neighbour’s right. Again the use of property may
be restricted voluntarily e.g. town planning act, slum clearance act, 1955 etc.
47. • 2. Unrestricted Disposition:
• What Austin implies by unrestricted disposition is that the power of
disposition of the pawner is unhampered by law meaning thereby that
he is absolutely free to dispose it to remove it to anyone This is incorrect.
In case of lease of thousand years, servitudes and restricted, covenants,
plenary control of a property is not possible. Moreover, in the law of the
some of the western countries there is rule re relegitima portis which
means that the person cannot dispose of his entire property. He has to
keep a certain portion of the property for the members of his family.
Under mohamdan law, a similar rule prevails namely a person cannot
dispose and delaying creditors would be set aside. As under Hindu law
government by mitakashara law can’t alienate ancestral immovable
property without the consent of other co-perceners except for legal
necessity.
48. • 3. Unlimited duration
• The right of ownership as per Austin is unlimited in point of duration. The
right shall exist so long as the owner and the thing exists. It is perpetual
interest which shall devolve upon the heirs of the owner after his death, but
the right shall not be extinguished.
• Salmond’s Definition:
• According to the Salmond, ownership vests in the complex of rights which he
exercises to the exclusion 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:
• 1. Ownership is a relation between a person and right that is vested in him
• 2. Ownership is incorporeal body or form
49. Characteristics of ownership
• 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. For example, building or land owned by
a person can be acquired by the state for lodging army personnel during the period of war.
• 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.
50. Different types of 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. 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. The ownership of a trustee is in fact nominal and not real although in the
eye of law, he represents his beneficiary. If property is given to X on trust for Y, X would be the trustee
and Y would be the beneficiary or cestui que trust. X would be the legal owner of the property and Y
would be the beneficial owner. X is under an obligation to use the property only for the benefit of Y.
51. • 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. When a debt is
verbally assigned by X to Y, X remains the legal owner of it but Y becomes its equitable owner. There is
only one debt as before though it has now two owners.
The equitable ownership of a legal right is different from the ownership of an equitable right. The
ownership of an equitable mortgage is different from the equitable ownership of a legal mortgage.
There is no distinction between legal and equitable estates in India. Under the Indian Trusts 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. 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
based upon the mere possibility of future acquisition, but it is based upon the present existence of an
inchoate or incomplete title.
52. • Sole Ownership and Co-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
1. Right to possession
2. Right to enjoy the property
3. Right to dispose of
Therefore, if a co-owner is deprived of property, he has right to be put back in possession. Such co-
owner has interest in every portion of the property and has a right irrespective of his quantity of share
to be in possession jointly with other co-owners.
• 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.”
A joint ownership occurs when two or more persons are entitled to the same right or bound by the
same obligation in respect of a thing. For example, a partnership property is owned by the persons
constituting the firm jointly and trustees are the joint owners of the trust property. The essence of the
conception is that there is only one right and one obligation, so that anything which extinguishes such
right or obligation, releases all parties.
