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Ownership and its kinds

14 March 2024 20:17

Ownership and possession are interconnected; possession serves as the initial stage of ownership, with
ownership necessitating possession. They are two sides of the same coin, mutually dependent.
Ownership grants complete control and the right to dispose of property as desired. It establishes a
relationship between the individual and the object owned. While ancient societies lacked the concept of
ownership and possession, these ideas evolved with societal development. As ownership concepts
progressed, individuals gained full ownership rights over their property.

ownership under different laws:

Roman Law: Under the Roman Law the concept of ownership is defined in the form of dominion that
means to have the right control of a thing. The concept of ownership developed in the form of a right
over the thing. Dominion is distinguished from possession. Possession means to have possession over a
thing but dominos means to have a right over the thing.

Hindu Law: Hindu Law defines ownership as the relationship between a person and a thing. The person
is termed the owner, and the thing is considered property, over which the person has control.

Modern Western Jurists:

Austin
According to him, ‘Ownership means a right which avails against everyone who is subject to the law
conferring the right to put thing to user of indefinite nature’. And ‘a right indefinite in point of user,
unrestricted in point of disposition and unlimited in point of duration’ when it comes to full ownership.

Austin’s definition of ownership has three characteristics: –

1. Indefinite in point of user- it means that the owner may use the property howsoever he may
desire so. For example, if a person owns a piece of land, he may build a house on it, use it as a
garden or may simply leave it as it is. But at the same time, he must not use it to injure his
neighbors.
2. Unrestricted in point of disposition- the owner has a right of transfer or disposition without any
restriction. However legal systems impose certain restrictions on some transfer or disposition.
3. Unlimited in point of duration – the owner has the right of ownership till the object is in existence
and as soon as the thing is destructed the right is extinguished.

- Holland: He defined the ownership as a plenary control of a person over a thing. The definition also
contains the following conditions :-
1. Possession
2. Enjoyment
3. Disposal.

According to Salmond :- Salmond defines ownership as a relationship between person and the right.
Right means to have a thing under possession. Thing always represents physical objects. But right always
represents a thing which is not in physical existence like copy right and allowances are always thing
which are called property. And which are not in physical existence. Salmond has included all those right
which are property in the concept of ownership. In view of the above it is learnt that Austin and Holland
definitions are not complete. But salmond is completely perfect in his definition.

Kinds of ownership:

1. Corporeal and Incorporeal Ownership:

The ownership of material objects is called corporeal ownership whereas the ownership of right is called
incorporeal ownership. Thus, the ownership of a house, table, land, machinery, etc., is corporeal
ownership and the copyright, patent, trademark, right of way, etc. is incorporeal ownership. Corporeal
things are those which are tangible that is, which can be felt by the senses while incorporeal things are
intangible and cannot be felt by senses. Salmond thinks that the distinction between corporeal and
incorporeal has merely a theoretical significance because in either case, the ownership is the right
vested in the owner and not the material object.
2. Sole Ownership and Co-ownership:

When the ownership is vested in one person only, it is called the sole ownership and when it is vested in
more than one it is called co-ownership, expartnership. ‘Tenants in common’ and ‘joint tenants’ (in
English law) are co-owners of the tenancy. In India, the coparcenary of Hindu is also a co-ownership. Co-
ownership is possible only so far as the law makes provisions for harmonizing in some way the
conflicting claims of the different owner inner se. There is an existence of reciprocal obligation of
restricted use and enjoyment between co-owners.

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3. Trust Ownership and Beneficial Ownership:
Both ownerships are found in a trust involving a trust property. In the trust one is made a trustee and
given property to hold and use such property for the benefits of the beneficiary.
The ownership of the trustee is trust ownership. This is a nominal ownership and is not real as it is only
for the benefit of the beneficiary. In the eyes of law, the trustee is the representative of the beneficiary
and has no right of enjoyment of the trust property. This ownership is only a matter of form and not of
substance as the property is given fictitiously by the law and is only deemed to be the owner of the
property due to the fiction of the law.
The ownership of the beneficiary is the beneficial ownership. Although in the eyes of law trustee is the
owner but between the trustee and beneficiary the latter is the owner of the trust property.
For example, a property is given to A on trust for B then A is trustee and B is beneficiary. A has trust
ownership, the legal owner in the eyes of law who is obligated to use the trust property for the benefit
of B who has beneficial ownership

4. Legal and Equitable Ownership:

Certain rights which were not recognized by the courts of common law in England were afterwards
recognized by the courts of equity; and the distinction between legal and equitable ownership is like the
distinction between legal and equitable rights. Ownership recognized by the Courts of common law is
called legal ownership, whereas ownership recognized by courts of equity is called equitable ownership.
One person may be the legal and another, the equitable owner of the same thing or right at the same
time. Legal ownership is that which has its origin in the rules of common law, while equitable ownership
is that which proceeds from the rules of equity.

5. Vested and Contingent Ownership:

Ownership is said to be vested when the owner’s title is already perfect. It is called contingent when the
owner’s title is as yet imperfect but is capable of becoming perfect in the future on the fulfilment of
some condition. It is vested ownership; the property is owned absolutely. In contingent ownership, the
property is owned conditionally. It means that the investitive facts are incomplete, but it may be
completed in the future. Till then the ownership is contingent and when the required condition is
fulfilled, it becomes complete or vested.

6. Co-ownership and Joint Ownership –

Co-ownership the property in question is commonly owned by both the parties and on demise of one
party the heirs of that party would inherit part of it. For example, A and B are in a co-ownership. On
death of A, A’s heirs will get half of the property.

Joint ownership is when a property is jointly owned by parties and on the death of one party the
ownership dies with him and cannot be inherited. For example, A and B are joint owners of a property.
On death of A, B becomes the sole owner of the said property.

7. Absolute and Limited Ownership –

Absolute ownership means that except the owner in whom all the rights are vested there are no other
person who can claim any right over that property. But there may be legal or contractual restrictions
upon the usage of the said property.

Limited ownership means in the ownership there are limitations on the rights of usage, duration or
disposal of the property. For example, before 1956 a Hindu woman had only limited ownership over a
property and after her demise the property would be inherited by the heirs of the last holder.

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