Introduction

How can one define something he owns? It is the term ‘property’ that is often
used to describe objects owned by a person. Property can also be described
as something whose right to ownership can be expanded. Therefore, a
property can include a living as well as a non-living thing. Although property
can have different meanings, the common thread running across various
meanings is the right of ownership. Property has become a measure of a
person’s success. Therefore, it becomes important to understand the law of
property under jurisprudence.

Meaning of Property
The term property is not a term belonging to art. It has been used in a variety
of senses.

In the widest possible sense, the property includes all the legal rights of a
person, no matter what his description is. The property of a man is all that
belongs to him following the law. Although it is becoming a fashion now, such
a usage of the term is common in old books.

According to Blackstone: “The inferior hath no kind of property in the

company, care or assistance of the superior, as the superior is held to have
those of the inferior.”

According to Locke: “Every man has a property in his person. Every individual
has the right to preserve his property, that is, his wife, liberty and estate.”

In a narrower sense, the property includes the proprietary rights of a person

and not his rights. Proprietary rights constitute his estate or property,
whereas, personal rights includes his status or personal condition. If viewed
from the lens of a narrower sense, then only land, chattels, shares, and debts
are personal property and not his life, liberty or reputation. This is the most
commonly used interpretation of property in modern times.

However, another interpretation and meaning of property include only those

rights which are both proprietary and real. The law of property is the law of
proprietary rights in rem. Going by this interpretation, a freehold or leasehold
estate or copyright also includes the meaning of property.

In the narrowest possible sense, the property includes nothing more than
corporeal property or the right of ownership for material things.

Austin believed that property can have different meanings at different times.
It could be used to denote the greatest rights of enjoyment known to law
excluding servitudes or it could also be life interests or sometimes even
servitudes. It could be the whole set of assets owned by a person including
both rights in-rem and rights in personam.

Today, intellectual or intangible property has become very important.

Instances are copyright, trademark, property in designs and patents.

Kinds of Property

Corporeal Property
The other name for the corporeal property is tangible property because it has
a tangible existence. It relates to material things. The right of ownership of a
material thing is the general, permanent and inheritable right of the user of
the property or thing. Further corporeal property can be divided into two
categories-

Movable
Chattels, for example, leases, to cows, to clothes etc are movable property. It
simply includes all corporeal property which is not immovable.

Immovable
Land, for example, is an immovable property. According to Salmond, an
immovable piece of land has many elements attached to it. It is inclusive of
the ground beneath the surface down to the centre of the world.
Interestingly, it also includes the column of space above the surface ad
infinitum. According to the German Civil Code, the owner of a particular piece
of land owns the space above it as well. The right of free and harmless
possession of space at a reasonable height over the land is secured and
governed by the Air Navigation Act, 1920.

According to the General Clauses Act 1897, “Immovable property includes

land, benefits arising out of the land and things attached to the earth.”

Real and Personal Property

The difference between real and personal property is similar to the difference
between movable and immovable property. The little connection that is, is
historical and not based on the logic. Real property means all rights over land
recognized by law. However, personal property means all other proprietary
rights whether rights in rem or rights in personam.
Incorporeal Property
Incorporeal property is intangible property. The other terms frequently used
are intellectual or conventional property. It includes all those valuable
interests which are and can be protected by law. The need to recognise and
protect incorporeal property has been recognised in recent times. The scope
of the term property has widened and it has come to include virtual property
as well. In modern times, a large share of a country’s property can be found
in the form of shares of a company. Further incorporeal property is of two
kinds- rights in re propria and rights in re aliena.

Rights in re propria
Under this form of right, the right of ownership in one’s property is not
exercised over material objects. Generally, the law of property deals with
material objects. However, there are exceptions to this in the form of non-
material things produced by human skills and labour. The most important of
these are patents, trademarks, artistic copyright, commercial goodwill etc.

Holland added a new type of intangible property to the list. To quote him:
“With such intangible property should probably also be classified those royal
privileges subsisting in the hands of a subject which are known in English law
as franchises, such as rights to have a fair or market, a forest or free
fishery.”

Rights in aliena
These rights are known by the name of encumbrances.in simpler words,
these are rights in rem over areas of property owned by another person.
Such rights run parallel to res encumbered. They bind the res in whosoever
hands it may pass. These prevent the owner from exercising some definite
rights concerning his property. The main kinds of encumbrances are lease,
servitude, security and trusts.

1. Lease- it is an encumbrance giving a right to the possession and

use of the property of another person. It is the transfer of a right to
enjoy a certain property.
2. Servitude– it is that kind of encumbrance which consists of a right
to limited use of land without having the possession of it. Examples
of servitudes are- right of a way across the land of somebody, the
right of light and air etc.
3. Security– Lord Wrenbury has defined security as “a possession
such that the grantee or holder of security holds against the grantor
a right to resort to some property or some fund for the satisfaction
of some demand, after whose satisfaction the balance of the
 property or funds belongs to the grantor.” Securities are of two
kinds- mortgage and lien.
Where a mortgage is the transfer of an interest in specific immovable
property for the purpose of securing payment of money advanced by way of
loan. A lien is the right to hold the property of another person as a security
for the performance of an obligation.

 Trust- An obligation annexed to the ownership of property. The

persons in whose favour the trusts are advanced are infants,
lunatics, unborn persons etc.

Modes of acquisition of property

Salmond refers to four modes of acquisition of property- possession,
prescription, agreement, and inheritance.

Possession
It is the objective realization of ownership. The possession of a material
object is a title to its ownership. The de-facto relation between person and
thing brings the de-jure relation along with it. He who claims a piece of land
as his own and is also in possession of the same makes it good in law also by
way of ownership. If a person is in possession of a thing, he cannot do so
forcibly. He has also to seek the help of law to vindicate his own right. But if a
certain property belongs to nobody, the person who captures it and
possesses it has a good title against the whole world. It is similar to how the
birds in the air and fishes in the water belong to the person who catches it.

Prescription
According to Salmond, “Prescription may be defined as the effect of lapse of
time creating and destroying rights; it is the operation of time as a versatile
effect.” Prescriptions are of two types- positive acquisitive prescription and
negative or extinctive prescription.

Prescription is not limited to rights in rem. It is found within the sphere of

obligations and of property. Positive prescription is possible only in the cases
of rights which admit of possession. Most rights of this nature are rights in
rem. Rights in personam are commonly extinguished by their exercise and
cannot be possessed or acquired by prescription. Negative prescription is
common to the law of property and obligations. Most obligations are
destroyed by the lapse of time. Their ownership cannot be accompanied by
their possession.

Agreement
According to Paton, an agreement is an expression by two or more persons
communicated to each other of a common intention to affect the legal
relations between them. It is an outcome of a bilateral act. It may be in the
nature of an assignment or a grant. An assignment transfers existing rights
from one owner to another. A grant connotes the assurance or transfer of the
ownership of property as distinguished from the delivery of property.

There are some agreements which require attestation and registration of the
deed. There is a general rule that the title of the transferee by agreement
cannot be better than that of the transferor. This is primarily because of the
fact that no man can transfer a better title than what he possesses.

However, there are two general exceptions to the rule-

1. The transferee gets a good title from a trustee who fraudulently sells
the trust property, provided the transferee purchases it for value
and without notice of the equitable claim of the beneficiary.
2. Where the possession of a thing is with one man and the ownership
of it is in another, the processor can transfer in certain cases a
better title on the assumption that the possessor is the owner,
provided the transferee obtains it in good faith believing him to be
the owner.

Inheritance
Another way of acquiring property is by means of inheritance. When a person
dies, certain rights survive him and pass on to his heirs and successors. The
rights which are survived by a person are called inheritable rights. Proprietary
rights are inheritable rights. Whereas, generally personal rights are not
inheritable but there are also exceptions to this general rule.

Succession to the property of a person may be either testate or intestate. It

may be by means of a will or without a will. If there is a will, succession takes
place by operation of law. If there are no heirs at all, the property goes to the
State.

Theories of property
Many theories have been put forward to explain the origin of property and its
justification.

Natural Theory
According to this theory, the property is based on the principle of natural
reason derived from the nature of things. The property was acquired by the
occupation of an ownerless object and as a result of individual labour.
According to Grotius, all things originally were without owner and whosoever
acquired or captured it became its owner. According to Pufendorf, originally
things belonged to people as a whole. There was no concept of individual
ownership. It was with time and evolution of humankind that the need of
ownership and possession arose. The theory of occupancy thus became the
ground and foundation of all property.

Metaphysical Theory
This theory was propounded by Kant and Hegel. A particular thing rightfully
belongs to the owner when he is so connected with it that anyone who uses it
without his consent does an injury to him. But to get a better justification on
the law of property we must go beyond cases of possession where there is an
actual physical relation to the object and interference is aggression upon
personality. In simpler words, properties the object on which a person has the
liberty to direct his will.

Historical Theory
According to this theory, private property had slow and steady growth. It has
grown out of a collective group or joint property. There were many stages in
the growth of the private property. The first stage of natural possession
existed independently of the law. The second stage of juristic possession was
a conception of both fact and law. The last stage in the development cycle
was that of ownership. Ownership became a purely legal concept. According
to Dean Roscoe Pound, the earliest form of property was a group property. It
was a matter of time that families partitioned and individual property came
into being.

Positive Theory
The founder of this theory was Spencer. He based his theory on the
fundamental law of equal freedom. According to him, property was a result of
individual labour. No man has any moral right to property which he has not
acquired by his personal labour and effort.

Psychological Theory
According to this theory, a property came into existence from the acquisitive
instinct of man. Every individual desires to own things and that brings into
existence property. It has been rightly said by Bentham, “Property is nothing
more than the basis of a certain expectation of deriving hereafter certain
advantages by a thing of reason.”

Sociological Theory
According to this theory, property should not be considered in terms of
private rights but should be considered in terms of social functions. It is an
institution which secures maximum interest.

Conclusion
Property is a source of power, a source of labour and most importantly it is
regarded as the best and the safest form of investment in the modern time.
The value of a property is always appreciated. Knowing the importance of
property, it becomes all the more important to know the historical legal
background i.e jurisprudence surrounding the same. It is believed that law
and property were born together and it is a prophecy that the same would die
together. These two aspects are intertwined most intriguingly. Before the
laws, property did not exist; take away the laws and property will be no more.
Hence, the property has been regarded with special significance in
jurisprudence. Owing to the reasons listed above, this article tries to help the
reader develop a better understanding of property and its aspects.