Q. Define property. What are various kinds of property. (2003 Annual)(2002),(2000)
1. Introduction:
The concept of property is very ancient and its definition is different in various ages. The jurists have tried to give a precise and consistent meaning to the word property, but no one is fully succeed. Today the word property, is used in different senses, and it is been also classified into different kinds.
2. Meaning Of Property:
The term property is used in different senses.
I. Widest Sense:
In widest sense, property includes all the legal rights of a person of whatever description. All that vests in law is person, s property.
According to Blackstone:
The inferior hath kind of property in the company, can or assistance of the superior, as the superior is held to have in those of the inferior.
According to Locke:
“Every man has a property in his own person. Every man has a right to preserve his property, that is his wife, liberty and estate.”
II. Narrow Sense:
In narrow sense, property includes the proprietaryrights of a person and not his personal rights. Thus one’s cattle, land etc. are property but not his life, liberty or reputation.
III. Narrower Sense:
In this sense, the term property includes only those rights which are both proprietary and real. So a patent or copyright is property but not the debt or the benefit of a contract.
IV. Narrowest Sense:
In the narrowest sense, property includes nothing more than corporeal property or the right of ownership in material things.
According to Ahrens:
“Property is a material object subject to the immediate power of the person.”
V. In A Sense Used By Austin:
According to Austin, the term property is used in the following different senses:
(i) It denote the greatest right of enjoyment excluding servitudes.
(ii) Life interests are also described as property.
(iii) Servitudes are also described as property in the sense that there is a legal title is them.
(iv) It also means the whole of the assets of a man including both the rights in rem and personam.
3. Kinds Of Property:
Property is essentially of 2 kinds:
I. Corporeal
II. Incorporeal
I. Corporeal Property:
It is also called tangible property. It relaters to material things. Corporeal property is therefore rights of ownershipin material things.
According to salmond:
Corporeal property is of the following kinds:
(i) Moveable and Immoveable
(ii) Real and Personal.
(i) Moveable and Immoveable Property:
Immoveable Property:
Immoveable property means a certain portion of earth surface and sector below it down to the earth’s center. All natural objects below and above that surface.
Elements of Immoveable Property;
According tot salmond, an immoveable piece of land has many elements.
a) It is a determinate portion of the surface of the earth.
b) It includes the ground beneath the surface down to the center of the would.
c) It also includes the column of spaces above the surface and infinitum………..
d) It also includes objects which are on or under the surface in its natural state e. g., minerals and natural vegetation.
e) It also includes all objects placed by human agency on or under the surface with the intention of permanent annexation e. g., buildings, fences etc.
Moveable Property:
Moveable property means property other than immoveable. All material property which can be moved from one place to another e. g., chattels, shares etc.
(ii) Real and Personal property:
This classification is closely connected with immoveables and moveable.
Real Property:
It means all rights over land recognized by law. The law of real property is almost equivalent to the law of the land.
Personal Property:
Personal property means all other proprietary rights whether they are rights in rem or rights in personam. The law of personal property is identical with the law of moveables.
II. Incorporeal Property:
Incorporeal property is intangible property. It is also called intellectual or conventional property. It includes all those valuable interests which are protected by law e. g., shares in limited companies.
A. Kinds Of Incorporeal Property:
It is of tow kinds:
(i) Rights in re propria
(ii) Rights in re aliena
(i) Rights in Re propria:
These are those rights of ownership in one’s property as are not exercised over material objects. The most important of such rights are patents, literary copyrights, artistic copyrights, musical and dramatic copyrights, commercial goodwill, trade-markes, trade names and franchises.
(ii) Rights in re aliena:
It is also known as encumbrances. They are rights in rem over res owned by another. It prevent the owner from exercising some definite rights with regard to his property. The main kind of encumbrances are leases, servitudes, securities and trusts.
4. Modes Of Acquisition Of Property:
According to salmond, there are four modes of property.
I. By Possession:
Possession is the objective realization of the ownership. The possession of a material object is a prime facie theownership of it. If a person is in possession of a thing, he cannot be ousted except by the true owner in accordance with law. A person who claims a chattel or a piece of land as his own, makes good his claim by way of possession in fact and by way of ownership in law.
II. Prescription:
It consists in the acquisition of a positive title to the property through possession for a specified time. Thepossession must be continuous and bona fide.
According to Salmond:
“Prescription may be defined as the effect of lapse of time creating and destroying rights.”
A. Kinds Of Prescription:
It is of two kinds:
(i) Positive or acquisitive prescription.
(ii) Negative or extinctive prescription.
(i) Positive or acquisitive Prescription:
Lapse of time confers a title on the person who has enjoyed the rights for the prescriptive period.
Example:
If ‘A’ was enjoying a right of way over his neighbour’s land for 20 years, then at thee end of this period, he not only possess it but also own it bye way of easement.
(ii) Negative or extinctive Prescription:
A negative prescription extinguish right. It is of two kinds;
(a) Perfect
(b) Imperfect
(a) Perfect negative Prescription:
Perfect prescription is the destruction of the principal right itself e. g., destruction of ownership of land through dispossession for 12 years.
(b) Imperfect negative Prescription:
Imperfect prescription is the destruction of the accessory right of action. The principal right is not destroyed only the remedy or right of action is lost.
Example:
A time-barred is an example of imperfect prescription. The right is not destroyed, for a part payment of acknowledgement of the debt will revive the right of action.
III. Agreement:
According to Paton:
An agreement is the expression by 2 or more persons communicated each to the other of a common intention to affect the legal relations between them.
By agreement between parties the ownership of one may be transferred to another.
IV. Inheritance:
On the death of a person, some rights die with him and some survive and pass or to his heirs and successors. Those which survive are called heritable or inheritable rights. Proprietary rights are inheritable rights.
5. Conclusion:
To conclusion, I can say, that the scope of property is quite wider according to Erle-J “the notion that nothing is property which cannot be earmarked and recovered in detenu to trover, may be true in an early stage of society when property is in its simplest from and the remedies for the violation of it are also simple, but it is not true in a move civilized state when the relation of life and the interests arising there from are complicated.
1. Introduction:
The concept of property is very ancient and its definition is different in various ages. The jurists have tried to give a precise and consistent meaning to the word property, but no one is fully succeed. Today the word property, is used in different senses, and it is been also classified into different kinds.
2. Meaning Of Property:
The term property is used in different senses.
I. Widest Sense:
In widest sense, property includes all the legal rights of a person of whatever description. All that vests in law is person, s property.
According to Blackstone:
The inferior hath kind of property in the company, can or assistance of the superior, as the superior is held to have in those of the inferior.
According to Locke:
“Every man has a property in his own person. Every man has a right to preserve his property, that is his wife, liberty and estate.”
II. Narrow Sense:
In narrow sense, property includes the proprietaryrights of a person and not his personal rights. Thus one’s cattle, land etc. are property but not his life, liberty or reputation.
III. Narrower Sense:
In this sense, the term property includes only those rights which are both proprietary and real. So a patent or copyright is property but not the debt or the benefit of a contract.
IV. Narrowest Sense:
In the narrowest sense, property includes nothing more than corporeal property or the right of ownership in material things.
According to Ahrens:
“Property is a material object subject to the immediate power of the person.”
V. In A Sense Used By Austin:
According to Austin, the term property is used in the following different senses:
(i) It denote the greatest right of enjoyment excluding servitudes.
(ii) Life interests are also described as property.
(iii) Servitudes are also described as property in the sense that there is a legal title is them.
(iv) It also means the whole of the assets of a man including both the rights in rem and personam.
3. Kinds Of Property:
Property is essentially of 2 kinds:
I. Corporeal
II. Incorporeal
I. Corporeal Property:
It is also called tangible property. It relaters to material things. Corporeal property is therefore rights of ownershipin material things.
According to salmond:
Corporeal property is of the following kinds:
(i) Moveable and Immoveable
(ii) Real and Personal.
(i) Moveable and Immoveable Property:
Immoveable Property:
Immoveable property means a certain portion of earth surface and sector below it down to the earth’s center. All natural objects below and above that surface.
Elements of Immoveable Property;
According tot salmond, an immoveable piece of land has many elements.
a) It is a determinate portion of the surface of the earth.
b) It includes the ground beneath the surface down to the center of the would.
c) It also includes the column of spaces above the surface and infinitum………..
d) It also includes objects which are on or under the surface in its natural state e. g., minerals and natural vegetation.
e) It also includes all objects placed by human agency on or under the surface with the intention of permanent annexation e. g., buildings, fences etc.
Moveable Property:
Moveable property means property other than immoveable. All material property which can be moved from one place to another e. g., chattels, shares etc.
(ii) Real and Personal property:
This classification is closely connected with immoveables and moveable.
Real Property:
It means all rights over land recognized by law. The law of real property is almost equivalent to the law of the land.
Personal Property:
Personal property means all other proprietary rights whether they are rights in rem or rights in personam. The law of personal property is identical with the law of moveables.
II. Incorporeal Property:
Incorporeal property is intangible property. It is also called intellectual or conventional property. It includes all those valuable interests which are protected by law e. g., shares in limited companies.
A. Kinds Of Incorporeal Property:
It is of tow kinds:
(i) Rights in re propria
(ii) Rights in re aliena
(i) Rights in Re propria:
These are those rights of ownership in one’s property as are not exercised over material objects. The most important of such rights are patents, literary copyrights, artistic copyrights, musical and dramatic copyrights, commercial goodwill, trade-markes, trade names and franchises.
(ii) Rights in re aliena:
It is also known as encumbrances. They are rights in rem over res owned by another. It prevent the owner from exercising some definite rights with regard to his property. The main kind of encumbrances are leases, servitudes, securities and trusts.
4. Modes Of Acquisition Of Property:
According to salmond, there are four modes of property.
I. By Possession:
Possession is the objective realization of the ownership. The possession of a material object is a prime facie theownership of it. If a person is in possession of a thing, he cannot be ousted except by the true owner in accordance with law. A person who claims a chattel or a piece of land as his own, makes good his claim by way of possession in fact and by way of ownership in law.
II. Prescription:
It consists in the acquisition of a positive title to the property through possession for a specified time. Thepossession must be continuous and bona fide.
According to Salmond:
“Prescription may be defined as the effect of lapse of time creating and destroying rights.”
A. Kinds Of Prescription:
It is of two kinds:
(i) Positive or acquisitive prescription.
(ii) Negative or extinctive prescription.
(i) Positive or acquisitive Prescription:
Lapse of time confers a title on the person who has enjoyed the rights for the prescriptive period.
Example:
If ‘A’ was enjoying a right of way over his neighbour’s land for 20 years, then at thee end of this period, he not only possess it but also own it bye way of easement.
(ii) Negative or extinctive Prescription:
A negative prescription extinguish right. It is of two kinds;
(a) Perfect
(b) Imperfect
(a) Perfect negative Prescription:
Perfect prescription is the destruction of the principal right itself e. g., destruction of ownership of land through dispossession for 12 years.
(b) Imperfect negative Prescription:
Imperfect prescription is the destruction of the accessory right of action. The principal right is not destroyed only the remedy or right of action is lost.
Example:
A time-barred is an example of imperfect prescription. The right is not destroyed, for a part payment of acknowledgement of the debt will revive the right of action.
III. Agreement:
According to Paton:
An agreement is the expression by 2 or more persons communicated each to the other of a common intention to affect the legal relations between them.
By agreement between parties the ownership of one may be transferred to another.
IV. Inheritance:
On the death of a person, some rights die with him and some survive and pass or to his heirs and successors. Those which survive are called heritable or inheritable rights. Proprietary rights are inheritable rights.
5. Conclusion:
To conclusion, I can say, that the scope of property is quite wider according to Erle-J “the notion that nothing is property which cannot be earmarked and recovered in detenu to trover, may be true in an early stage of society when property is in its simplest from and the remedies for the violation of it are also simple, but it is not true in a move civilized state when the relation of life and the interests arising there from are complicated.
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