Ownership refers to the relation that a person has with an object that he owns. It is an aggregate of all the rights that he has with regard to the said object. These rights are in rem, that is, they can be enforced against the whole world and not just any specific person.
The concept of ownership flows from that of possession. In primitive societies, there was no idea of ownership. The only concept that they identified with was that of possession.
It was only after they started settling down by building homes and cultivating land that they developed the idea of ownership.
According to Austin, ownership refers to “a right indefinite in point of the user, unrestricted in point of disposition and unlimited in point of duration.” Concurring with Austin’s view, Holland defines ownership as the right of absolute control over an object.
According to him, ownership is an aggregate of all rights pertaining to the possession, enjoyment and disposition of an object. According to Salmond, “ownership, in its most comprehensive signification, denotes the relation between a person and right that is vested in him.”
Upon analyzing the various definitions of ownership, the following essentials of ownership can be derived:
1. Indefinite point of user- The owner of a property has the liberty to use it. Others have the duty not to use it or to not interfere with the owner’s right to use it.
2. Unrestricted point of disposition- The owner has the right to dispose of the property at his own will. A person needs to have the ownership of a thing in order to transfer that ownership to someone else. Mere possession does not give the power to dispose of the ownership.
3. Right to possess- The owner has the right to possess the thing which he owns.
4. Right to exhaust- If the nature of the thing which is owned is such that it can be exhausted then the owner has the right to exhaust it at his own will.
5. Residuary character- The owner may part with several rights with regards to the thing he owns. This does not take away the ownership from him.
6. Right to destroy or alienate- An owner has the right to destroy or alienate the thing that he owns.
One of the subject matters of ownership is material objects. Salmond is of the view that the real subject matter of ownership is rights. This particular view of Salmond is supported by the common law system.
However, it has also received some amount of criticism. It has been argued that law generally recognizes ownership of land and chattels and not of any right. A person is said to have certain rights and not own rights.
The subject-matter of ownership is essentially determined by the legal system of a state. There are certain objects which, by their very nature, are incapable of being owned such as jungles, air, water, etc.
However, the legal system of a country may recognize the ownership of such objects thereby making them a subject matter of ownership.
Ownership may be acquired in two ways. Firstly, ownership may be acquired over a thing which has no owner. Such things are known as res nullius and the ownership may be acquired by possession. Secondly, there may be things which are already owned by someone else.
The ownership in such cases can be acquired using the derivative method, that is, by way of purchase, gift, inheritance, etc. The acquisition of ownership, unlike possession, has to be done strictly by lawful means.
Ownership may be of the following kinds:
Corporeal and Incorporeal Ownership
Corporeal ownership refers to the ownership of material objects whereas incorporeal ownership refers to the ownership of a right. Incorporeal ownership can also be said to be the owner of intangible things.
Examples of corporeal ownership include ownership of a house, table, car, etc. whereas those of incorporeal ownership includes ownership of trademarks, copyright, patents, etc.
Trust and Beneficial Ownership
The subject-matter of such ownership consists of property owned by two persons wherein one person is obligated to use it to the benefit of the other. The person under such an obligation is called the trustee and his ownership is known as trust ownership.
The person to whose benefit the property is to be used is called the beneficiary and his ownership is known as beneficial ownership. Trust ownership is only a matter of form and not a matter of substance.
This means that a trustee’s ownership of the property is only nominal in nature. He is given someone else’s property fictitiously by law and thereby obligating him to use it to the real owner’s benefit.
Legal and Equitable Ownership
Legal ownership refers to the ownership as recognized by the rules of a legal system whereas equitable ownership refers to the ownership as recognized by the rules of equity. There may be cases wherein law does not recognize the ownership due to some effect but equity does.
In such situations, the ownership is said to be equitable ownership. Legal ownership is a right in rem whereas equitable ownership is a right- in personam since equity acts are in personam.
A person may be the legal owner of a thing and another may be the equitable owner of the same thing at the same time.
Vested and Contingent Ownership
All kinds of ownership may either be vested or contingent. Ownership is vested ownership when the title of the person is perfect.
On the other hand, ownership can be said to be contingent if it is imperfect and can be perfected subject to the fulfilment of certain conditions. Thus, contingent ownership is conditional in nature.
Sole Ownership and Co-ownership
Under ordinary circumstances, a right can be owned by only one person at a time. Such ownership is known as sole ownership. However, in certain cases, the same right may be vested in two individuals at the same time.
This is known as co-ownership. For instance, partners of a firm are co-owners of the partnership property.
Common ownership and Joint Ownership
Co-ownership is of two kinds. It may be owned in common or joint ownership. In case of common ownership the owners’ share in the property can be inherited by their respective heirs whereas in case of joint ownership, in case of death of any one of the owners, his or her share is transferred to the other owner. This is the fundamental point of difference between the two.
Absolute and Limited Ownership
Absolute ownership is one wherein the owner is vested with all the rights with regards to the property which he owns. Such rights are exclusively vested in the owner. It must be noted here that absolute use of the property implies general use since the property can only be used by lawful means and for lawful purposes.
When there are limitations imposed upon the owner’s rights with regards to his property, the ownership is known as limited ownership. The concept of life tenancy under English law is a classic example of limited ownership.
Hindu law too recognizes limited ownership. When a Hindu widow is made the owner of her husband’s property so long as she remains alive after which the property shall pass on to the legal heirs, the ownership of the widow is limited ownership.
1. Fitzgerald, P.J., ‘Salmond on Jurisprudence’, Twelfth Edition, N.M. Tripathi Pvt. Ltd., 1999.
2. D. Mahajan, ‘Jurisprudence and Legal Theory’, Eastern Book Company (M.D.A. Freeman, ed.)