Jurisprudence

OWNERSHIP
In roman law as well as ancient Hindu law possession and ownership was recognised as two
separate and distinct concepts. In roman law two distinct terms were used and the distinction
were as prominium and possession. The former denoted absolute right over a thing and the
latter a physical right over a thing. Roman attached the importance to the ownership rather
than the possession and ancient Hindu law, the law of prescription bailment and say without
ownership was based on this distinction. Thus, a long possession may be called prescription,
put change into ownership. You should first proof by means of fitness and other things
ownership of that share.
In the medivial period of English law they were emphasised on season and the right to
possession. Ceasation was the tenure of land ceiling. The land was used in return of service.
This cession was a right which was relied upon to get back the possession to get back the
possession if the person seside was dispossessed so it was the right to posses. It was superior
to possession.
The idea of owner and ownership in English law has developed from this. The English law is
similar in some aspects with the roman law. There was no degree or division on roman
dominus. The power of dominus (the person having the dominum or owner) could be limited
by law but there was never any concept of limited ownership like life estate are equitable
ownership such as trust and trustees as they are in English law.
DEFINITION AND THEORIES OF OWNERSHIP
According to Keeton, the right of ownership is a conception clearly easy to understand but
difficult to define with exactitude. Ownership is a relationship of a person to an object which
is exclusive or absolute or ultimate. The person who stands in this relation is called the owner
and he has the right of complete control and enjoyment of the object.
AUSTIN:
As a right which avails against everyone, who is subject to the law conferring the right to put
thing to user of indefinite nature and further he said that ownership is the right indefinite in
point of user and unlimited in point of duration. It is right in rem which is available to the
owner against the world at large. There are three elements on the ownership.
(i) Indefinite user: He used the term indefinite instead of absolute or unlimited
therefore the owner is not absolutely free to use the things owned in any way he
likes.
(ii) Unrestricted disposition
(iii) Unlimited duration: The permanence of the right of ownership. Ownership cannot
be cut short and the owner can continue to be the owner as long as he likes. It is
perpetual interests which shall devolve upon the heirs of the owner after his death
but the right cannot be extinguished. So, the third element is not correct. Since
every state posses the power to take over the property of the any person in public
interest. Eg. Abolition of zamindari system, Privy purses and nationalisation of
bank.
His use of things is conditioned by the environment or restrictions imposed by the law or can
be conditioned by an agreement between the owner and the third person. There is no
restriction on the power, right of alienation and transfer as necessary element of ownership.
But hindu law does not allow the alienation of ancestral immovable property without the
consent of the coparceners except the legal necessity. In England, there is a rule of re legitima
protis that means a person cannot dispose of its entire property he has to keep certain portion
of it for the members of his family.

Austins definition of ownership is criticised as it is argued that it is fallacious to think that

ownership is a single right, in fact it is bundle of rights including right of the user and
enjoyment. Even if an owner parts with some of this right involved in ownership the residue
are still owned by him. In case of mortgage by owner of the land although he has transferred
right but he still the owner of the mortgaged property. The right of alienation is considered by
Austin as the necessary ingredient of ownership. A person who is not the owner cannot
normally transfer the right. Even he is in the possession he cannot transfer. The interest of the
Bailee or lease comes to an end when the period of hire of lease comes to an end. This view
of Austin is very close to Indian property rights. His doctrine of laisse faire prevails and
definition has been supported by holland. Holland defines ownership as a plenary control
over an object, which is unrestricted by law. 3 rights – (i) possession (ii) enjoyment and (iii)
disposition.

SALMOND
According to Salmon ownership in its most comprehensive denotes the relation between the
person and right that is vested in him. In other words, ownership extends to all classes of
rights whether proprietary of personal in rem or in personam; in re propria or in re aliena and
it not only applies not only in strict sense but extends to liberties, power and immunities.
Ownership is incorporeal a man may own a copywrite or right of way in the same way as he
owns the piece of land because in all these cases, he owns only the right and not the thing.
Salmon’s view is criticised by many authorities. Prof. Glen Williams has observed that
definition given by him suggest that from the time of him the concept of ownership of rights
must be prior to the ownership of material objects but historically it appears the just the
reverse of it. On this point according to Duguit what a person realty owns is the thing not a
right. The supporter of salmon pointed that he has defined ownership in different sense, the
comprehensive sense includes both corporal and incorporeal, a narrow or communist sense
includes only corporal ownership. Hofhald, he says ownership is not a right but a bundle of
rights, provides, powers etc.
According to Pollock, ownership is entirety of power of use and disposal allowed by law, he
further says that it is not necessary that all the power of an owner need be exercisable at once
and immediately, so he may remain owner. So, he may remain owner unless or until he may
be given whole power of usage or disposal.
In conclusion we can say that the complex form of social organisation and economic relation
in modern times, the term ownership should be given a wider and comprehensive meaning. In
this view Salmon’s definition appears to most acceptable.
 1. Ownership is the right which comprises of power, claims, privilege etc.
(i) Right of ownership, enjoyment and disposition

2. The rights related to or subjected to state regulation can be limited of restricted by

law.

3. Owner ship is residuary in character. Owner is he who is entitled to the ownership of

right which.
4. Ownership does not imply or indicate absolute or unlimited right either regarding use,
disposal or
5. Does not confer ownership on unborn child or insane because they are incapable of
conceiving
6. Does not end with the end of the owner but is transferred to the heirs
7. The ownership of right of incorporeal ownership describes a jural relation between a
person of right. In this sense it denotes that he is neither a possessor nor an but an
owner of the right.
8. Corporal ownership should be differentiated i.e. complex patterns of bundle of rights.
9. In case of ownership of rights it suggest that there is a particular relationship between
an ownership and right.
10. Material object from the subject matter of ownership but there are certain exception to
this general observation such as wild animals living in forest cannot be owned. The
living person cannot be owned, Air, moon and other anatomical substances not
owned.

Types of ownership, differentiation between ownership and right.