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Ownership and Possession Lect.

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Vaishnavi Rawat
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30 views6 pages

Ownership and Possession Lect.

Uploaded by

Vaishnavi Rawat
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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SUBJECT MATTER OF OWNERSHIP

Normally ownership implies the following:

1. The right to manage;


2. The right to possess;
3. The right to manage;
4. The right to capital;
5. The right to the income.

The owner of a thing has the right to possess it, to the exclusive of all
others i.e., the owner has exclusive physical control of a thing or such
control possesses the thing but this is not necessary and always so. Thus,
to cite only a few examples, the owner may have been wrongfully
deprived of it or may has voluntarily devised himself of it. If A’s watch
is stolen by B, the latter has possession but the former remains the owner
with an immediately right to possess. In case of lease and mortgage, the
owner (i.e., the leaser and the mortgagor) owns the property without
possession lies, with the lesser and the mortgagee.

The owner has the right to use the subject matter of ownership according
to his own discretion. Here use means personal use and the enjoyment of
the thing by the owner. This right of enjoyment or use is not absolute; it
can be and is in fact, limited by law. This does not mean that an owner
cannot there by disturb the right of others. Suppose A owns a transistor,
ha cannot tune it at any time for listening music, for news or for
commentary, but in doing so he is to take care that he does not disturb
the right of others. Thus, he cannot tune it at a high pitch and at an odd
time so as to disturb the right of others. Thus, he cannot tune it at a high
pitch and at an odd time so as to disturb the sleep of others.

The owner has right to manage i.e., he has the right to decide how and
by whom the thing owned shall be used. The owner has the power
contracting the power to admit others to one’s land, to permit others to
use one’s things, to define the limits of such permission, to create a right
of easement over his land,in favour of a third person etc.

One who owns things has also the right to alienate the same or to waste,
destroy or to consume the whole or part of it. The right to consume and
destroy are straightforward liberties. The right to alienate i.e. the right to
transfer his right over object to another involves the existence of a
power. Almost all legal system provide for alienation is the exclusive
right if the owner. A non-owner may have the possession of a thing but
he cannot transfer the right of ownership of such thing to another e.g., in
case of lease, a lessee may have the possession of the leased property but
he cannot transfer it because that is the exclusive right of the leaser who
only can do so.

The ownership of the a thing has not only the right to possess the thing
but also the right to the fruit and income of the things within the limits ,
if any, laid down by the law. Suppose A’ has a land he has not only the
right to possess that the land but he can enjoy benefits resulting there
from e.g., produce, fruits, crops, etc. sometimes the use or the
occupation of a thing to possess that the land but he can enjoy benefits
resulting there from e.g., produce fruits, as the simplest way of deriving
an income from it and of enjoying it.

CHARACTERISTICS OF OWNERSHIP

An analysis of the concept of ownership, it would show that it has the


following characteristics:
Ownership ma 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 possess 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.

DIFFERENT KINDS OF OWNERSHIP

Experience shows that there are many kinds of ownership and some of
them are corporeal and incorporeal ownership, sole ownership and co-
ownership, legal and equitable ownership, vested and contingent
ownership, trust and beneficial ownership, co- ownership and joint
ownership and 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. 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.
A trustee has no right of enjoyment of the trust property. His ownership
is only a matter of form and not of substance. It is nominal and not real.
In the eye of law, a trustee is not a mere agent but an owner. He is the
person to whom the property of someone else is fictitiously given by
law. The trustee has to use his power for the benefit of the beneficiary
who is the real owner. As between the trustee and the beneficiary, the
property belongs to the beneficiary and not the trustee.

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