Ownership As A Social Concept - Academike

12/16/2017 Ownership As A Social Concept - Academike
December 15, 2017
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https://www.lawctopus.com/academike/ownership-social-concept/ 1/18
Ownership As A Social Concept Do not wish to

On April 6, 2015 By admin disclose on Payment
of Gratuity Act, 1972:
Nidhi Kumari, CNLU A Critical Analysis
INTRODUCTION Nkumra on
Payment of Gratuity
The concept of ownership is one of the fundamental juristic Act, 1972: A Critical
concepts common to all systems of law. This concept has
Analysis
been discussed by most of the writers before that of
possession. However, it is pointed out that it is not the right Radhika on
method. Historically, speaking the idea of possession came Empowerment Of
rst in the minds of people and it was later on that the idea of Women In Education
ownership came into existence. The idea of ownership Sector
followed the idea of possession.
DEVELOPMENT OF THE IDEA OF OWNERSHIP

CALENDAR
The idea of ownership developed by slow degrees with the
growth of civilization. So long as the people were wandering
from place to place and had no settled place of residence, DECEMBER 2017
they had no sense of ownership. The idea began to grow
when they started planting trees, cultivating lands and M T W T F S S
building their homes. The transition from a pastoral to an
1 2 3
agricultural economy helped the development of the idea of
ownership. People began to think in terms of mine and thine. 4 5 6 7 8 9 10
To begin with, no distinction was made between ownership
11 12 13 14 15 16 17
and possession. However with the advancement of
civilization, the distinction became clearer and clearer. This 18 19 20 21 22 23 24
distinction was made very clearly in Roman law. Two distinct
25 26 27 28 29 30 31
terms were used to point out the distinction and these were
Dominium and possession. Dominium denoted the absolute Oct
right to a thing. Possessio implied only physical control over a
thing. The English notion of ownership is similar to the
conception of dominium in Roman law. According to TAGS
Holdsworth, the English law reached the concept of
ownership as an absolute right through developments in the
ADR agency
law of possession.[i]
Arbitration
OWNERSHIP UNDER ANCIENT INDIAN LAW Competition
The right to ownership was also recognized under the ancient constitution
Indian law. The great commentators, notably, narada, constitutional law
Yajnavalkya ,vyas etc. emphasized the right of ownership of contract

property was to be used for noble cause and good motives. contracts
The ancient hindu law ordained men to behave in a particular criminal law
manner in relation to person or property of another. They were death penalty
warned that misuse of the right of ownership would entail divorce
them moral and public indignation and they would be liable for education
punishment. The ancient laws of prescription, bailment, sale, evidence fair
etc. were based on distinction between ownership and trial Family Law
possession. Fundamental Rights
goods Human
The ancient hindu jurists mentioned seven modes of
Rights independence
acquisition of ownership of property, namely,
of judiciary India
1. Inheritance Indian Contract Act
2. Gain information
3. Purchase technology insider
4. Conquest trading IPC
5. Investment of wealth IPR jurisdiction
6. Employment jurisprudence
7. Acceptance of gifts law limited
liability maintenance
According to manu, only property of the king or state could be marriage minor
acquired by conquest but the king had no right to interfere or natural justice
acquire the private property of the subjects of the conquered patent
territory. As regards the property of no-ones land (i.e. res president
nullius) Manu says that it belonged to him who rst reclaimed privacy
it under cultivation. Where a thing had no previous owner such Property Property
as bird or a sh, the rule of res nullius was to apply and the Law rape Right
one who took it rst was its owner. In case of some treasure to information
was discovered, the person who found it took the whole of it if separation of powers
it was found on his land, and if it was found on some others tax Transfer Of
land, he could acquire only half of it.[ii] Property Act USA
WOMEN
DEFINITION OF OWNERSHIP
Ownership, in its most comprehensive signi cation, denotes

the relation between a person and any right that is vested in
him. That which a man owns is in all cases a right. When, as is
often the case, we speak of the ownership of a material

object, this is merely a convenient gure of speech. To own a
piece of land means in truth to own a particular kind of right in

the land, namely, the fee simple of it.
Ownership, in this generic sense, extends to all classes of

rights, whether proprietary or personal, in rem or in personam,
in re propria or in re aliena. I may own a debt, or a mortgage,
or a share in a company, or money in the public funds, or a
copyright, or a lease, or a right of way, or the fee simple of
land. Every right is owned; and nothing can be owned except a
right. Every man is the owner of the rights which are his.
ACCORDING TO KEETON,The right of ownership is a

conception clearly easy to understand but di cult to de ne
About
with exactitude. There are two main theories with regard to
the idea of ownership. The great exponents of the two views
Contact
are Austin and Salmond. According to one view, ownership is
a relation which subsists between a person and a thing which

is the object of ownership. According to the second to second
view, ownership is a relation between a person and a right that
is vested in him.[iii]
HOLLANDS DEFINITION: Holland de nes ownership as a

plenary control over an object. According to Holland, an
owner has three rights on the object owned. They are (i)
Possession (ii) Enjoyment (iii) Disposition.
He says that the right of possession is inherent of ownership.

However, it may be separated as in case of mortgage or
letting out. According to him, the right of enjoyment means
the right of user and of acquiring the fruits, or in increase of
the thing The right is limited only by the rights of the state or
of other individuals. The power of disposition means not only
the power of alienation but it includes the power of alteration
and destruction of the property.[iv]
DUGUITS DEFINITION: According to Duguit ownership is a

relation between a person and a thing. On account of this
relation the person has the power of disposal, use, and

employment of the thing according to a regle de droit.[v]
AUSTIN DEFINITION: A widely accepted de nition is that of

Austin, who de ned ownership as a right inde nite in point of
user, unrestricted in point of disposition , and unlimited in
point of duration over a determinate thing.
Inde nite in point of user
It is practically impossible to enumerate the wide variety of

ways in which the things owned may used by the owner.
However, the Austin describes ownership as ainde nite in
point of user , it may not be taken to mean that the owner has
an absolute right to use his property in whatever way he likes.
All legal system impose condition on the user of property .It is
well accepted that every owner must use the object of
ownership so as not to injure the rights of other persons. For
instance, the owner cannot use his property in such a way as
to cause nuisance to his neighbours. Similarly, an owner
cannot prevent the entry of o cers of the state into his
property, when such entry is authorized by law as in case an
o cer of justice entering the premises of anyone in
pursuance of a warrant issued by a court. Ownership is also
subject to encumbrance in favour of others , in which case the
power of user enjoyed by the owner is curtailed by the rights
of encumbrances.
Unrestricted in point of disposition
This denotes the absolute rights of alienation enjoyed by an

owner as a necessary incidence of ownership. However, here
again limitations exist. The law governing transfer of property
may seriously interfere with the owners power of disposition.
For instance, a transfer of property made with an intent to
defeat or delay creditors is not permissible under the law. This
rights of encumbrances also constitute a limitation on the
power of disposition.
Unlimited in point of duration
When we describe ownership as unlimited in the point of

duration, it means that a right is capable of existing so long as
a thing owned exists. The right is not extinguished even on the
death of the owner, because ownership devolves upon his
heirs who are the persons of appointed by law to succeed the
property remaining undisposed at time of his death.
This quality of ownership also cannot be taken as absolute.

There are situations, which limit the duration of ownership.
For instance, a testator may settle his property on his widow
with a condition that on her remarriage the property shall
devolve upon his children. Here the widow remains the vested
owner of the property until her remarriage, but his ownership
is limited in point of duration. The rule against perpetuity is
another limitation upon the unlimited duration and power or
disposition of the owner.
Finally, it is to be stated that although be speak a ownership

as a right, it would be preferable to speak of it as a collection
of right, liberties,powers and immunities, following Hohfelds
analysis. We must also recognised that some of these rights,
liberties, powers and immunities are frequently found to
decide either for a limited period, or perpetually in persons
other than a owner.
SALMOND DEFINITION:
According to the Salmond ownership vests in the a complex

of rights which he exercises to the exclusive of all others. For
salmond what constitute ownership- a bundle of rights which
is here in an individual salmonds de nition thus point out two
attributes of ownership-
1. Ownership is a relation between a person and right that

is vested in him
2. Ownership is incorporeal body or form.[vi]
CHARACTERISTICS OF OWNERSHIP
There are certain characteristics as such:

1. It is absolute or restricted. An owner of a property may

be its absolute owner and nobody else may have any
interest in the same. It is also possible that there may be

certain restrictions on the right of ownership and those
restrictions may be imposed by law or by volunatary
agreement. An owner may lease out his property. He
may mortgage the same. Thus, he comes to have a
limited ownership. A compulsory restriction may be
imposed on ownership if another person comes to have
an easement on a particular property.
2. It is also possible that certain restrictions may be
imposed on the owners of property in times of national
emergency. The house of any owner may be
requisitioned and any compensation may be xed by the
prescribed authority. The Government may appoint
some authority to control the rents charged by the
owners of property.
3. The Government may demand certain taxes from the
owners of property. If those taxes are not paid, the
Government may con scate their property of that
portion of property which is necessary to realisethe
money due to the Government.
4. The ownership of a person does not diminish with his
death. He is entitled to leave his property to his property
to his successors. The owner can distribute the property
even in his own lifetime.
5. Certain disabilities have been imposed on infants and
lunatics with regard to the disposal of property.
Obviously, they are not competent to enter into valid
contracts. They are not expected to understand and
appreciate all the implications of their actions.[vii]
MODES OF ACQUISITION OF OWNERSHIP
Broadly speaking there are two modes of acquiring

ownership, namely, (1) Original, and (2) Derivative.
1. Original Acquisition of ownership takes place when

ownership is acquired by some personal act on the part
of the acquirer. It may by three ways:
Absolute When a thing is acquired res nullius, i.e. ,

which has no previous owner.
This has been called Parigrah by Manu who stated
that the rst striker of an arrow to a prey whether a bird
or wild animal, becomes its owner.
Original acquisition of ownership may also be by
speci cation which means a person by working up on
material belonging to another makes a new thing. For
example, if a sculptor makes a statue from the clay
belonging to the another, he becomes the original owner
of that statue.
Extinctive Acquisition of ownership , that is when a
person by some act on his part extinguishes the
ownership of the previous owner and acquires its
ownership himself, it is called extinctive acquisition. For
example, acquisition of ownership by prescription or
adverse possession for a prescribed period which is 12
years in India.
Accessio This is called accessory acquisition that is,

when the ownership of property is acquired by way of
accession to some existing property. Examples are
produce of lands or animals or fruits of trees. Manu has
termed this mode of acquisition as Prayog which means
acquiring by accession.
2. Derivative acquisition When ownership is derived from

a previous owner, it is called derivative acquisition of
ownership. It takes place when ownership is acquired by
inheritance or gift or purchase, etc. In the Indian context,
the law of succession , transfer of property, sales of
goods, etc., regulate acquisition of ownership of the
property by derivative mode.[viii]
DISTINCTION BETWEEN CUSTODY, DETENTION, POSSESSION

AND OWNERSHIP
Custody is a relation of a person to an object in which he has

no full control over the thing, in the other words, he has no
required animus to exclude others. For example, a customer

examining a piece of cloth in a shop before the shopkeeper
who has custody of that cloth.
Detention is a relation where person has in fact possession

over a thing but law due to certain reasons does not recognize
it as possession. For example, a servant has the detention
over things of his master with him.
Possession is a relation of a person to an object which law

recognises as possession. Possession is the external
relisation of ownership; it is a valuable piece of evidence to
show the existence of ownership. Possession does not give
the right to destroy, waste or even to alienate the property
except by way of a sub- lease.
Ownership is a relation of a person to an object which is

exclusive or absolute and ultimate. The person who stands in
this relation is called the owner and he has a right of
complete control and enjoyment of the object. Thus, a right of
ownership is a right of dominium over the property concerned,
so as to include the available rights attached to ownership-
the right to possess the property in a de jure capacity, the right
to use the property, as also the right to alienate or even to
destroy the property though all those rights may not be
present at the same time.
SIGNIFICANCE OF OWNERSHIP IN MODERN SOCIAL

CONTEXT
Ownership is a socially signi cant concept because it is an

index of wealth,and social position. Ownership of land was
means of controlling government. In a feudal system based
on land ownership, the feudal lords wielded tremendous
in uence,and even the quali cation to vote was based on
ownership of land. The social aspect of ownership also
highlights the important principle that on owner shall enjoy his
interest in a manner compatible with the interest of others. As
Lord Evershed said; Property like other interests has a social

obligation to perform. The extent of this social obligation
re ects the social policy of the legal system.[ix]

It is important to remember that ownership is not merely a
bundle of rights, liberties and powers. It is also carries with it
corresponding burdens in the nature of duties,liabilities and
disabilities which prescribe and regulates how an owner
should utilise his property for the bene t of other individuals
or society. Property owned by person is liable to execution for
the debts incurred by him. The liability to pay property
tax,wealth tax,etc, is also imposed in the social interest. When
control legislation imposes restriction on the way in which
one may use his property.
The typical individualist approach to ownership is re ected in

the de nition of Austin,which we have analysed earlier.
However,gradually the emphasis began to shift from the
individual to society-from ownership as a fundamental right of
property to the wants of people and ones duty towards
others. It came to be recognised that limitation are integral to
the concept of property,and not exception to an otherwise
unlimited right.
The Marxist theory of ownership draws attention to the evil

role it has played. It begins with individual working with its
own tools and raw materials. Later,the pro t accumulated
through trading manufactured products elevates him to
position to provide the tools and raw materials, and get other
people to provide the labour.The manufactured products,
however remain in his ownership,not in that of the labourer,
and he continues to trade it as his own property. It is the
concept of ownership that enables the exploitation of
workers. Ownership of the means of production-tools and raw
materials-became a source of power over persons for private
pro t.
This promoted inequality, because using the power of

dismissal and threat of unemployment and consequent
starvation,the employer was able to dictate unfair terms of
service. The owners of the means of production became

industrial commanders wielding enormous powers that strike
at the fundamentals of society.

Karl Renner,following the Marxist analysis,expressed the view
that law should take account of the increasingly public
character of ownership of property by investing it with the
characteristics of public law. Two concepts of ownership a
public and a private,have to be recognised. Ownership of the
means of production should be public,that is nationalised,and
only ownership of consumer goods should be opened to
private individuals. The distinction lies not in the nature of
ownership,but in the things capable of being owned.
Dr. Friedmann writes that the concept of ownership has

exerted considerable in uence as a source of social power in
various stages of the development of society.
Professor Renner has traced the gradual evolution of

ownership in its social perspective. He pointed out that in
early stages of development of society the owners of
industries had to themselves collect tools, raw materials and
labour resources to run the industry and they earned huge
pro ts by the sale of their products. When they amassed
su cient wealth, they could afford to hire labour and run the
industry by providing tools and raw material to them. The
industrialist was still the sole owner of the goods so produced
and had complete ownership of the pro ts earned by the
industry. Thus the ownership of means of production become
the source and symbol of power and social status which the
industrialists enjoyed on the strength of the labour working
under them. This eventually led to the development of
management labour relationship in the eld of industries.
The power of the employers to sack and change the service
conditions of workers arbitrarily exhibited their in uence in the
society as a dominant class. However, in course of time, the
labour movement raised voice against the exploitative
tendencies of indutrialists and capitalists as a result of which
public ownership gained primacy over private ownership. The
policy of nationalization of industries adopted by progressive

socialist countries is directed towards the ful llment of this
objective.[x]

Dr. Friedmann attributes three main reasons for the declining
in uence of private ownership in modern social order.
Firstly, the gap between employer and labour class is

gradually narrowing down due to trade union movement,
nationalization of industries and national insurance schemes
and now the employers can exploit the workers by misusing
their power. As a result of this the bargaining power of both
the entrepreneurs and the workers is more or less equal.
Secondly,The pro teering by industrialists has been

considerably regulated through legislative measures and
effective tax laws.
The industrialists are now required to contribute a

considerable part of their income and pro t to the public fund
of the state. This has helped in equitable distribution of
wealth.
Thirdly, the encouragement provided to the corporate sector in

recent decades has helped in separating the power element
from ownership. During the capitalistic era, both ownership
and power are centralized in the industrialists which was
detrimental for the labour class. But today the real power
vests in the management comprising experts in their
respective elds and the owners are divested of this power.
Thus power has been separated from the ownership. Furthur
in order to ensure that the management does not misuse their
power and authority, comprehensive company legislation and
labour and industrial laws have been enacted by almost all
countries.[xi]
Dias and Hughes have observed that in order to appreciate

the role of ownership in the present social order, its formal
analysis shall not serve any useful purpose, instead there
should be greater emphasis on its functional analysis.[xii]
CONCLUSION
Ownership and possession are two words, which we

commonly use in our daily life without thinking about their
legal incidents or consequences. However, even when we use
these words in our ordinary conversation, we generally
associate certain rights and obligations with these words .It is
surprising that a child who has not learned these two words
is capable of understanding the meaning of these words, and
also the difference between the concepts of ownership and
possession.
For instance, if you give a toy as a birthday gift to a child,

he/she immediately understands that the toy belongs to
him/her. He/ she considers himself/herself as the owner of
the toy,and does not permit other to touch it.
If he / she permits another child to play with the toy, he/ she
expects that it will be returned to him/her after same time. In
his/her mind there is a clear knowledge that he/she parting
with the possession of the toy , but has no intention of giving
up ownership .
On the other hand, he/she may voluntarily give the toy as a gift
to her dear friend. Now he/she has no expectation of getting it
back, and knows that he/she has relinquished not only the
possession of the toy, but also its ownership .
Law converts these simple ideas to legal concepts by

de ning their meaning with precision and re nement.
Ownership as a legal concepts denotes a legal relation
between a person who is called the owner of the right , and a
things over which he can exercise certain rights. The right of
ownership is the most complete and supreme right that can
be exercised over anything.
It consist four rights, namely: 1.Using the things;2.excluding

others from using it; 3.disposing of things; and4.destroying it.
Ownership is a socially signi cant concept because it is an

index of wealth, and social position. Ownership of land was
means of controlling government. In a feudal system based

on land ownership, the feudal lords wielded tremendous
in uence, and even the quali cation to vote was based on

ownership of land. The social aspect of ownership also
highlights the important principle that on owner shall enjoy his
interest in a manner compatible with the interest of others.
As Lord Evershed said; Property like other interests has a

social obligation to perform. The extent of this social
obligation re ects the social policy of the legal system.
It is important to remember that ownership is not merely a

bundle of rights, liberties and powers. It is also carries with it
corresponding burdens in the nature of duties, liabilities and
disabilities which prescribe and regulates how an owner
should utilise his property for the bene t of other individuals
or society. Property owned by person is liable to execution for
the debts incurred by him. The liability to pay property tax,
wealth tax, etc, is also imposed in the social interest. When
control legislation imposes restriction on the way in which
one may use his property.
The typical individualist approach to ownership is re ected in

the de nition of Austin, which we have analysed earlier.
However, gradually the emphasis began to shift from the
individual to society-from ownership as a fundamental right of
property to the wants of people and ones duty towards
others. It came to be recognised that limitation are integral to
the concept of property, and not exception to an otherwise
unlimited right.
ENDNOTE
[i]Paranjape, N.V, Studies in jurisprudence and Legal Theory,

Central Law agency, ed.2013 p.410.
[ii]Paranjape, N.V, Studies in jurisprudence and Legal Theory,

Central Law agency, ed.2013 Pg. no. 415.
[iii]Ibid, Pg. 411.
[iv] ibid
[v] ibid
[vi]Paranjape, N.V, Studies in jurisprudence and Legal Theory,

[vii]Mahajans, V.D. Jurisprudence and Legal Theory, Eastern

Book Company, Fifth Edition, Pg. no.290.
[viii] Fitzgerald, P.J. Salmond on Jurisprudence,Universal

Books Publications, 12th Edition, 2013. Pg. 259.
[ix] Fitzgerald, P.J. Salmond on Jurisprudence,Universal

Books Publications, 12th Edition, 2013. Pg. 256.
[x]Paranjape, N.V, Studies in jurisprudence and Legal Theory,

[xi]Paranjape, N.V, Studies in jurisprudence and Legal Theory,

[xii] Ibid
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12/16/2017 Ownership As A Social Concept - Academike

December 15, 2017

Home > Jurisprudence > Ownership As A Social Concept

Moral Rights Of Author

Ownership As A Social Concept Do not wish to

DEVELOPMENT OF THE IDEA OF OWNERSHIP

OWNERSHIP UNDER ANCIENT INDIAN LAW Competition

Indian law. The great commentators, notably, narada, constitutional law

Yajnavalkya ,vyas etc. emphasized the right of ownership of contract

manner in relation to person or property of another. They were death penalty

warned that misuse of the right of ownership would entail divorce

punishment. The ancient laws of prescription, bailment, sale, evidence fair

possession. Fundamental Rights

1. Inheritance Indian Contract Act

3. Purchase technology insider

4. Conquest trading IPC

5. Investment of wealth IPR jurisdiction

7. Acceptance of gifts law limited

Ownership, in its most comprehensive signi cation, denotes

often the case, we speak of the ownership of a material

Ownership, in this generic sense, extends to all classes of

ACCORDING TO KEETON,The right of ownership is a

a relation which subsists between a person and a thing which

HOLLANDS DEFINITION: Holland de nes ownership as a

He says that the right of possession is inherent of ownership.

DUGUITS DEFINITION: According to Duguit ownership is a

relation the person has the power of disposal, use, and

AUSTIN DEFINITION: A widely accepted de nition is that of

Inde nite in point of user

It is practically impossible to enumerate the wide variety of

Unrestricted in point of disposition

This denotes the absolute rights of alienation enjoyed by an

Unlimited in point of duration

When we describe ownership as unlimited in the point of

This quality of ownership also cannot be taken as absolute.

Finally, it is to be stated that although be speak a ownership

According to the Salmond ownership vests in the a complex

1. Ownership is a relation between a person and right that

There are certain characteristics as such:

1. It is absolute or restricted. An owner of a property may

MODES OF ACQUISITION OF OWNERSHIP

Broadly speaking there are two modes of acquiring

1. Original Acquisition of ownership takes place when

of the acquirer. It may by three ways:

Absolute When a thing is acquired res nullius, i.e. ,

Accessio This is called accessory acquisition that is,

2. Derivative acquisition When ownership is derived from

DISTINCTION BETWEEN CUSTODY, DETENTION, POSSESSION

Custody is a relation of a person to an object in which he has

Detention is a relation where person has in fact possession

Possession is a relation of a person to an object which law

Ownership is a relation of a person to an object which is

SIGNIFICANCE OF OWNERSHIP IN MODERN SOCIAL

Ownership is a socially signi cant concept because it is an

Lord Evershed said; Property like other interests has a social

The typical individualist approach to ownership is re ected in

The Marxist theory of ownership draws attention to the evil

This promoted inequality, because using the power of

service. The owners of the means of production became

Dr. Friedmann writes that the concept of ownership has

Professor Renner has traced the gradual evolution of

policy of nationalization of industries adopted by progressive

Firstly, the gap between employer and labour class is