Table of Contents
- Introduction
- Theories of Property
- Kinds of Property
- Mode of acquisition of property
Introduction
The term property is derived from the Latin word proprietary, meaning “a thing owned.” While jurists interpret the term differently, property essentially denotes a bundle of rights. In the case of tangible property, it includes:
- Right to possession
- Right to enjoy
- Right to retain
- Right to alienate
- Right to destroy
It also includes intangible assets such as the goodwill of a business.
Theories of Property
🌿Natural Law Theory
This theory is based on the principle of natural reason derived from nature itself. It states that land unoccupied by any person becomes the property of the first one who occupies it—known as the theory of occupancy.
Supported by: Grotius, Pufendorf, Locke, and Blackstone.
Criticized by: Sir Henry Maine and Bentham.
🛠 Labour Theory
This theory posits that property belongs to the person who produces or brings it into existence. It emphasizes the role of labour in earning and acquiring property.
Criticized by: Harold Laski, who argued that labour is only a means, not the creator of property.
🔮 Metaphysical Theory
This theory was propounded by Hegel and Kant, this theory holds that property is an object upon which a person imposes his will. It conceptualizes property as a manifestation of personal will.
Criticism: This theory is said to be too abstract and detached from real-world applications.
📜 Historical Theory
This theory was supported by Henry Maine, this theory traces the development of private property through three legal stages:
- Initial possession and control over things by individuals.
- Emergence of the juristic concept of possession—both in fact and law.
- Evolution into ownership—a purely legal concept created by law.
🧠 Psychological Theory
This theory sees property as a result of the human desire to own and control things. The acquisitive nature of individuals drives the concept of property.
Supported by: Bentham and Roscoe Pound.
🔧 Functional Theory
This theory views property as a social institution aimed at promoting the general security and protecting individual interests in personality, domestic relations, and subsistence. It emphasizes that property rights should serve societal interests, not just personal ownership.
🏛 Property as Creation of State Theory
According to this view, property comes into existence through the legal framework created by the State. It argues that property and law are born together and will perish together.
Kinds of Property
1. Corporeal Property
Corporeal property refers to property that is tangible in nature. It has a physical existence in the world. Examples: Land, buildings, etc.
(a) Immovable Property: It is defined under Section 3(26) of the General Clauses Act, 1897, it includes land, benefits arising out of land, and things attached to the earth.
(b) Movable Property: It refers to property that can be physically moved from one place to another.
2. Incorporeal Property
Incorporeal property refers to the property which intangible in nature. Although it cannot be seen or touched, it still legally exists. A common example is goodwill.
(a) Jura in re aliena (Rights in re aliena / Encumbrances)
Jura in re aliena are rights for specific use of a property without ownership.
- Lease: It is defined under Section 105 of the Transfer of Property Act, 1882, a lease transfers the right to use and possess property for a period, typically for rent or payment.
- Servitude: It grants the right to limited use of someone else’s land, like fishing rights.
- Security: It is a creditor’s right over the debtor’s property to secure debt repayment.
- Trust: A trust is an obligation tied to ownership to manage property for another’s benefit, arising from confidence in or accepted by the owner.
(b) Jura in re propria (Rights over One’s Own Things)
These rights relate to both material and immaterial things.
- Patent: It is an exclusive right granted for inventions, processes, or manufacturing methods.
- Copyright: Copyright is the protection for literary or artistic expressions like writing, photography, painting, etc.
- Goodwill: Goodwill is the established reputation of a business that helps generate revenue through brand recognition.
Modes of acquisition of Property
1. Possession
Possession is one of the major modes of acquiring property. It refers to the physical control over a property. According to Roman Law, the principle of occupatio means that a property which belongs to no one, becomes the property of the first possessor.
The possessor gains a valid title against all third parties, and even against the true owner, they can retain possession until legally evicted.
2. Prescription
Prescription refers to the acquisition or extinction of rights over property through the lapse of time.
- Positive Prescription: It is the creation of rights by continuous and uninterrupted possession over time.
- Negative Prescription: It is the extinction of rights when legal action is not taken within a prescribed time frame.
3. Agreement
This is the most common mode of acquiring property. It is done through a mutual and lawful agreement between parties, which must be enforceable by law. Consent of both parties is essential for such agreements. This method is widely used in modern transactions and property transfers.
4. Inheritance
Property can also be acquired through inheritance upon the death of the original owner. The property passes to the legal heirs or co-parceners.
- Testate Succession: When a person dies leaving a valid will then the property is transferred as per will.
- Intestate Succession: When a person dies without making a will, and property is distributed according to law.
References:
- Studies in Jurisprudence and Legal Theory by Dr. N.V. Pranjape
- Jurisprudence and Legal Theory by V.D. Mahajan
