Ownership As A Social Concept

By Nidhi Kumari, CNLU

INTRODUCTION

The concept of ownership 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 pointed out that it is not the right method. Historically, speaking the idea of possession came first in the minds of people and it was later on that the idea of ownership came into existence. The idea of ownership followed the idea of possession.

DEVELOPMENT OF THE IDEA OF OWNERSHIP

The idea of ownership  developed by slow degrees with the growth of civilization. So long as the people were wandering from place to place and had no settled place of residence, they had no sense of ownership. The idea began to grow when they started planting trees, cultivating lands and building their homes. The transition from a pastoral to an agricultural economy helped the development of the idea of ownership.

People began to think in terms of mine and thine. To begin with, no distinction was made between ownership and possession. However with the advancement of civilization, the distinction became clearer and clearer. This distinction was made very clearly in Roman law. Two distinct terms were used to point out the distinction and these were Dominium and possession. Dominium denoted the absolute right to a thing.

Possession implied only physical control over a thing. The English notion of ownership is similar to the conception of dominium in Roman law. According to Holdsworth, the English law reached the concept of ownership as an absolute right through developments in the law of possession.[i]

OWNERSHIP UNDER ANCIENT INDIAN LAW

The right to ownership was also recognized under the ancient Indian law. The great commentators, notably, narada, Yajnavalkya ,vyas etc. emphasized the right of ownership of property was to be used for noble cause and good motives. The ancient hindu law ordained men to behave in a particular manner in relation to person or property of another.

They were warned that misuse of the right of ownership would entail them moral and public indignation and they would be liable for punishment. The ancient laws of prescription, bailment, sale, etc. were based on the distinction between ownership and possession.

The ancient hindu jurists mentioned seven modes of acquisition of ownership of property, namely,

1. Inheritance

2. Gain

3. Purchase

4. Conquest

5. Investment of wealth

6. Employment

7. Acceptance of gifts

According to Manu, only property of the king or state could be acquired by conquest but the king had no right to interfere or acquire the private property of the subjects of the conquered territory. As regards the property of no-one’s land (i.e. res nullius) Manu says that it belonged to him who first reclaimed it under cultivation. Where a thing had no previous owner such as a bird or a fish, the rule of res nullius was to apply and the one who took it first was its owner. In case of some treasure was discovered, the person who found it took the whole of it if it was found on his land, and if it was found on some other’s land, he could acquire only half of it.[ii]

DEFINITION OF OWNERSHIP

Ownership, in its most comprehensive signification, denotes the relationship between a person and any right that is vested in him. That which a man owns is in all cases a right. When, as is often the case, we speak of the ownership of a material object, this is merely a convenient figure of speech. To own a piece of land means in truth to own a particular kind of right in the land, namely, the fee simple of it.

Ownership, in this generic sense, extends to all classes of rights, whether proprietary or personal, in rem or in personam, in re propria or in re aliena. I may own debt, or a mortgage, or a share in a company, or money in the public fund’s, or a copyright, or a lease, or a right of way, or the fee simple of land. Every right is owned, and nothing can be owned except a right. Every man is the owner of the rights which are his.

ACCORDING TO KEETON:

The right of ownership is a conception clearly easy to understand but difficult to define with exactitude. There are two main theories with regard to the idea of ownership. The great exponents of the two views are Austin and Salmond. According to one view, ownership is a relation which subsists between a person and a thing which is the object of ownership. According to the second view, ownership is a relation between a person and a right that is vested in him.[iii]

HOLLAND’S DEFINITION:

Holland defines ownership as a plenary control over an object. According to Holland, an owner has three rights on the object owned. They are (i) Possession (ii) Enjoyment (iii) Disposition.

He says that the right of possession is inherent of ownership. However, it may be separated as in case of a mortgage or letting out. According to him, the right of enjoyment means the right of use and of acquiring the fruits, or in the increase of the thing – The right is limited only by the rights of the state or of other individuals.’’ The power of disposition means not only the power of alienation but it includes the power of alteration and destruction of the property.[iv]

DUGUIT’S DEFINITION:

According to Duguit ownership is a relation between a person and a thing. On account of this relation, the person has the power of disposal, use, and employment of the thing according to a regle de droit.[v]

AUSTIN DEFINITION:

A widely accepted definition is that of Austin, who defined ownership as a right indefinite in point of the user, unrestricted in point of disposition, and unlimited in point of duration over a determinate thing.

Indefinite in point of user

It is practically impossible to enumerate the wide variety of ways in which the things owned may be used by the owner. However, Austin describes ownership as indefinite in point of the user, it may not be taken to mean that the owner has an absolute right to use his property in whatever way he likes. All legal system imposes a condition on the use of the property. It is well accepted that every owner must use the object of ownership so as not to injure the rights of other persons.  For instance, the owner cannot use his property in such a way as to cause the nuisance to his neighbors.

Similarly, an owner cannot prevent the entry of officers of the state into his property, when such entry is authorized by law as in case an officer of justice entering the premises of anyone in pursuance of a warrant issued by a court. Ownership is also subject to encumbrance in favor of others, in which case the power of user enjoyed by the owner is curtailed by the rights of encumbrances.

 Unrestricted in point of disposition 

This denotes the absolute rights of alienation enjoyed by an owner as a necessary incidence of ownership. However, here again, limitations exist. The law governing the transfer of property may seriously interfere with the owner’s power of disposition. For instance, a transfer of property made with an intent to defeat or delay creditors is not permissible under the law. This rights of encumbrances also constitute a limitation on the power of disposition.

Unlimited in point of duration

When we describe ownership as unlimited in the point of duration, it means that a right is capable of existing so long as a thing owned exists. The right is not extinguished even on the death of the owner, because ownership devolves upon his heirs who are the persons of appointed by law to succeed the property remaining undisposed at the time of his death.

This quality of ownership also cannot be taken as absolute. There are situations, which limit the duration of ownership. For instance, a testator may settle his property on his widow with a condition that on her remarriage the property shall devolve upon his children. Here the widow remains the vested owner of the property until her remarriage, but his ownership is limited in point of duration. The rule against perpetuity is another limitation upon the unlimited duration and power or disposition of the owner.

Finally, it is to be stated that although be speak ownership as a right, it would be preferable to speak of it as a collection of right, liberties, powers, and immunities, following Hohfeld’s analysis. We must also recognize that some of these rights, liberties, powers, and immunities are frequently found to decide either for a limited period or perpetually in persons other than an owner.

SALMOND DEFINITION:

According to the Salmond ownership vests in the complex of rights which he exercises to the exclusion of all others. For Salmond what constitutes ownership- a bundle of rights which is here in an individualSalmond’ss definition thus point out two attributes of ownership-

  1. Ownership is a relation between a person and the right that is vested in him
  2. Ownership is incorporeal body or form.[vi]

CHARACTERISTICS OF OWNERSHIP

There are certain characteristics as such:

1. It is absolute or restricted. An owner of a property may be its absolute owner and nobody else may have any interest in the same. It is also possible that there may be certain restrictions on the right of ownership and those restrictions may be imposed by law or by volunatary agreement.

An owner may lease out his property. He may mortgage the same. Thus, he comes to have a limited ownership. A compulsory restriction may be imposed on ownership if another person comes to have an easement on a particular property.

2. It is also possible that certain restrictions may be imposed on the owners of property in times of national emergency. The house of any owner may be requisitioned and any compensation may be fixed by the prescribed authority. The Government may appoint some authority to control the rents charged by the owners of the property.

3. The Government may demand certain taxes from the owners of the property. If those taxes are not paid, the Government may confiscate their property of that portion of the property which is necessary to realise the money due to the Government.

4. The ownership of a person does not diminish with his death. He is entitled to leave his property to his property to his successors. The owner can distribute the property even in his own lifetime.

5. Certain disabilities have been imposed on infants and lunatics with regard to the disposal of property. Obviously, they are not competent to enter into valid contracts. They are not expected to understand and appreciate all the implications of their actions.[vii]

MODES OF ACQUISITION OF OWNERSHIP

Broadly speaking there are two modes of acquiring ownership, namely, (1) Original, and (2) Derivative.

1. Original Acquisition of ownership takes place when ownership is acquired by some personal act on the part of the acquirer. It may by three ways:

1.1 Absolute – When a thing is acquired res nullius, i.e. , which has no previous owner.

1.2 This has been called Parigrah by Manu who stated that the first striker of an arrow to a prey whether a bird or wild animal, becomes its owner.

1.3 Original acquisition of ownership may also be by a specification which means a person by working upon material belonging to another makes a new thing. For example, if a sculptor makes a statue from the clay belonging to the another, he becomes the original owner of that statue.

Extinctive Acquisition of ownership , that is when a person by some act on his part extinguishes the ownership of the previous owner and acquires its ownership himself, it is called extinctive acquisition. For example, acquisition of ownership by prescription or adverse possession for a prescribed period which is 12 years in India.

Accessio – This is called accessory acquisition that is, when the ownership of property is acquired by way of accession to some existing property. Examples are the produce of lands or animals or fruits of trees. Manu has termed this mode of acquisition as Prayog which means acquiring by accession.

2. Derivative acquisition – When ownership is derived from a previous owner, it is called derivative acquisition of ownership. It takes place when ownership is acquired by inheritance or gift or purchase, etc. In the Indian context, the law of succession , transfer of property, sales of goods, etc., regulate the acquisition of ownership of the property by derivative mode.[viii]

DISTINCTION BETWEEN CUSTODY, DETENTION, POSSESSION AND OWNERSHIP

Custody is a relation of a person to an object in which he has no full control over the thing, in  the other words, he has no required animus to exclude others. For example, a customer examining a piece of cloth in a shop before the shopkeeper who has custody of that cloth.

Detention is a relation where a person has in fact possession over a thing but law due to certain reasons does not recognize it as a possession. For example, a servant has the detention over things of his master with him.

Possession is a relation of  a person to an  object which law recognises as the possession. Possession is the external relisation of ownership; it is a valuable piece of evidence to show the existence of ownership. Possession  does not give the right to destroy, waste or even to alienate the property except by way of a sub- lease.

Ownership is a relation of a person to an object which is exclusive or absolute and ultimate. The person who stands in this relation is called the ‘owner’ and he has a right of complete control and enjoyment of the object. Thus, a right of ownership is a right of dominium over the property concerned, so as to include the available rights attached to ‘ownership’- the right to possess the property in a de jure capacity, the right to use the property, as also the right to alienate or even to destroy the property though all those rights may not be present at the same time.

SIGNIFICANCE OF OWNERSHIP IN MODERN SOCIAL CONTEXT

Ownership is a socially significant concept because it is an index of wealth and social position. Ownership of land was a means of controlling the government. In a feudal system based on land ownership, the feudal lords wielded tremendous influence, and even the qualification to vote was based on ownership of land.

The social aspect of ownership also highlights the important principle that on owner shall enjoy his interest in a manner compatible with the interest of others.

As Lord Evershed said; ‘ Property like other interests has a social obligation to perform’. The extent of this social obligation reflects the social policy of the legal system.[ix]

It is important to remember that ownership is not merely a bundle of rights, liberties and powers. It is also carries with it corresponding burdens in the nature of duties, liabilities and disabilities which prescribe and regulates how an owner should utilise his property for the benefit of other individuals or society. Property owned by a person is liable to execution for the debts incurred by him. The liability to pay property tax, wealth tax, etc, is also imposed in the social interest. When control legislation imposes a restriction on the way in which one may use his property.

The typical individualist approach to ownership is reflected in the definition of Austin, which we have analysed earlier. However, gradually the emphasis began to shift from the individual to society-from ownership as a fundamental right of property to the wants of people and one’s duty towards others. It came to be recognised that limitation are integral to the concept of property, and not an exception to an otherwise unlimited right.

The Marxist theory of ownership draws attention to the evil role it has played. It begins with individual working with its own tools and raw materials. Later, the profit accumulated through trading manufactured products elevates him to position to provide the tools and raw materials, and get other people to provide the labour.

The manufactured products, however, remain in his ownership, not in that of the labourer, and he continues to trade it as his own property. It is the concept of ownership that enables the exploitation of workers. Ownership of the means of production-tools and raw materials-became a source of power over persons for private profit.

This promoted inequality, because using the power of dismissal and threat of unemployment and consequent starvation, the employer was able to dictate unfair terms of service. The owners of the means of production became industrial commanders wielding enormous powers that strike at the fundamentals of society.

Karl Renner, following the Marxist analysis, expressed the view that law should take account of the increasingly public character of ownership of property by investing it with the characteristics of public law. Two concepts of ownership a public and a private, have to be recognised. Ownership of the means of production should be public, that is nationalised, and only ownership of consumer goods should be opened to private individuals. The distinction lies not in the nature of ownership, but in the things capable of being owned.

Dr. Friedmann writes that the concept of ownership has exerted considerable influence as a source of social power in various stages of the development of society.

Professor Renner has traced the gradual evolution of ownership in its social perspective. He pointed out that in early stages of development of society the owners of industries had to themselves collect tools, raw materials and labour resources to run the industry and they earned huge profits by the sale of their products. When they amassed sufficient wealth, they could afford to hire labour and run the industry by providing tools and raw material to them.

The industrialist was still the sole owner of the goods so produced and had complete ownership of the profits earned by the industry. Thus the ownership of means of production become the source and symbol of power and social status which the industrialists enjoyed on the strength of the labour working under them. This eventually led to the development of management – labour relationship in the field of industries. The power of the employers to sack and change the service conditions of workers arbitrarily exhibited their influence in the society as a dominant class.

However, in course of time, the labour movement raised voice against the exploitative tendencies of indutrialists and capitalists as a result of which public ownership gained primacy over private ownership. The policy of nationalization of industries adopted by progressive socialist countries is directed towards the fulfillment of this objective.[x]

Dr. Friedmann attributes three main reasons for the declining influence of private ownership in the modern social order.

Firstly, the gap between employer and labour class is gradually narrowing down due to the trade union movement, nationalization of industries and national insurance schemes and now the employers  can exploit the workers by misusing their power. As a result of this, the bargaining power of both the entrepreneurs and the workers is more or less equal.

Secondly, the profiteering by industrialists has been considerably regulated through legislative measures and effective tax laws.

The industrialists are now required to contribute a considerable part of their income and profit to the public fund of the state. This has helped in the equitable distribution of wealth.

Thirdly, the encouragement provided to the corporate sector in recent decades has helped in separating the power element from ownership. During the capitalistic era, both ownership and power  are centralized in the industrialists which was detrimental for the labour class.

But today the real power vests in the management comprising experts in their respective fields and the owners are divested of this power. Thus power has been separated from the ownership. Furthur in order to ensure that the management does not misuse their power and authority, comprehensive company legislation and labour and industrial laws have been enacted by almost all countries.[xi]

Dias and Hughes have observed that in order to appreciate the role of ownership in the present social order, its formal analysis shall not serve any useful purpose, instead, there should be greater emphasis on its functional analysis.[xii]

CONCLUSION

Ownership and possession are two words, which we commonly use in our daily life without  thinking about their legal incidents or consequences. However, even when we use these words in our ordinary conversation, we generally associate certain rights and obligations with these words . It is surprising that a child  who has not learned these two words is capable of understanding the meaning of these words, and also the difference between the concepts of ownership and possession.

For instance, if you give a toy as a birthday gift to a child, he/she immediately understands that the toy belongs to him/her. He/ she considers himself/herself as the owner of the toy, and does not permit other to touch it.

If he / she permits another child to play with the toy, he/ she expects that it will be returned to him/her after the same time. In his/her mind there is a clear knowledge  that he/she parting with the possession of the toy , but has no intention of giving up ownership .

On the other hand, he/she may voluntarily give the toy as a gift to her dear friend. Now he/she has no expectation of getting it back, and knows that he/she has relinquished not only the possession of the toy, but also its ownership .

Law converts  these simple ideas to legal concepts by defining   their meaning with precision and refinement. Ownership as a legal concepts denotes a legal relation between a person who is called the owner of the right , and a things over which he can exercise certain rights. The right of ownership is the most complete and supreme right that can be exercised over anything.

It consist of four rights, namely:

1. Using the things;

2.excluding others from using it;

3.disposing of things; and

4.destroying it.

Ownership is a socially significant concept because it is an index of wealth, and social position. Ownership of land was the means of controlling government. In a feudal system based on land ownership, the feudal lords wielded tremendous influence, and even the qualification to vote was based on ownership of land. The social aspect of ownership also highlights the important principle that on owner shall enjoy his interest in a manner compatible with the interest of others.

As Lord Evershed said; ‘Property like other interests has a social obligation to perform’. The extent of this social obligation reflects the social policy of the legal system.

It is important to remember that ownership is not merely a bundle of rights, liberties and powers. It is also carries with it corresponding burdens in the nature of duties, liabilities and disabilities which prescribe and regulates how an owner should utilise his property for the benefit of other individuals or society. Property owned by a person is liable to execution for the debts incurred by him. The liability to pay property tax, wealth tax, etc, is also imposed in the social interest. When control legislation imposes a restriction on the way in which one may use his property.

The typical individualist approach to ownership is reflected in the definition of Austin, which we have analysed earlier. However, gradually the emphasis began to shift from the individual to society-from ownership as a fundamental right of property to the wants of people and one’s duty towards others. It came to be recognised that limitation are integral to the concept of property, and not an exception to an otherwise unlimited right.

Formatted on February 18th, 2019.

ENDNOTE

[i]Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency,  ed.2013 p.410.

[ii]Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency,  ed.2013 Pg. no. 415.

[iii]Ibid, Pg. 411.

[iv] ibid

[v] ibid

[vi]Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency,  ed.2013 Pg. no. 413.

[vii]Mahajan’s, V.D. “Jurisprudence and Legal Theory”, Eastern Book Company, Fifth Edition, Pg. no.290.

[viii] Fitzgerald, P.J. “Salmond on Jurisprudence”,Universal Books Publications, 12th Edition, 2013. Pg. 259.

[ix] Fitzgerald, P.J. “Salmond on Jurisprudence”,Universal Books Publications, 12th Edition, 2013. Pg. 256.

[x]Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency,  ed.2013 Pg. no. 426.

[xi]Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency,  ed.2013 Pg. no. 427.

[xii] Ibid

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