1) Introduction -
The concept of property occupies an important place in human life because it is practically impossible to live without the use of material object which constitutes the subject matter of property. Property may be classified into- corporeal and incorporeal property, movable and immovable property, real and personal property, public and private property. There are four important modes of acquisition of property - possession, prescription, agreement, inheritance.
2) Meaning of Property -
The term property is derived from the Latin word 'properietate' and the French equivalent 'proprius' which means a thing owned. The concept of property and ownership are very closely related to each other.There can be no property without ownership and ownership without property.
The term Property is not a Term of Art. It has been used in a variety of senses. In its widest sense, Property includes all the legal rights of a Person of whatever description The The property of a man is all that is his in law. In the narrower sense, the property includes the proprietary rights of a person and not his personal rights. Proprietary rights constitute his estate or property and personal rights constitute his Status or personal and condition. In another sense, the term property includes only those rights which are both proprietary and real.
In Modern Times intellectual or intangible property has become very important. Examples of such property and copyright, patent, trademark etc.
3) Definition of Property -
Some important Definitions of Property are as follows -
(a) Locke -
According to Locke, " Every man has a property in his own person." every individual has the right to preserve his property, that is his wife, liberty and estate."
(b) Bentham -
According to Bentham "property is nothing more than the basis of s certain expectation of deriving thereafter certain advantages by a thing the reason of the relation in which we stand towards it. There is no image, no visible lineament which can property the relation that constitutes property. It belongs not to physics, but to metaphysics. It is altogether a conception of Mind. To it, all or any of these physical circumstances failed to assist in conveying the idea of property."
(c) Austin -
According to Austin, the term property is sometimes used to denote the greatest right of enjoyment known as to law excluding servitudes. Sometimes, life interests are described as property. Even servitudes are described as property in the sense that there is a legal title to them. Sometimes property means the whole of the assets of a man including both the right in rem and right in personam
4) Kinds of Property -
Property is essentially of two kinds Corporeal Property and Incorporeal Property. Corporeal Property can be further divided into Movable and Immovable Property and real and personal property. Incorporeal property is of two kinds-in re propria and rights in re aliena or encumbrances.
See in detail..... Kinds of Property
5) Modes of Acquisition of Property-
According to Salmond, there are four kinds of acquisition of property those are possession, prescription, agreement and inheritance.
I) Possession -
A possession is the objective realization of ownership Possession means Physical Control over a thing or an object. It is Prima facia evidence of ownership.The property which belongs to no one i.e. Res nullius, belongs to the first possessor of it and he acquires a valid title to it against the world. A property which is already in possession of someone else, when acquired by possession, gives a good title to the possessor against all third persons except the true owner. Even as against the true owner, the possessor is entitled to maintain his possession until evicted in due course by law. In such a case of adverse possession, there are in fact two owners the ownership of one is absolute and perfect, while that of the other is relative and imperfect and often called possessory ownership by reason of its origin possession.
If a possessory owner is deprived of its possession by a person who is other than the true owner, he has the right to recover possession of the same.
If Property belongs to nobody, the person who captures and possesses it has a good title against the whole world. In this way, the birds of the air and the fish of the sea are the property of that person who first catches them.
See also...Why Law protects Possession?
II) Prescription -
According to Salmond: "Prescription may be defined as the effect of lapse of time in creating and destroying rights; it is the operation of time as a vestitive fact. Prescriptions are of two kinds-Positive or acquisitive prescription and negative or extinctive prescription.
(a) Positive or Acquisitive Prescription
Positive Prescription means the creation of a right by the lapse of time. For example, right of way is acquired by continued de facto use of it, undisputedly and openly for a period Prescribed by law. Under Indian Easement Act, this period is 20 years.
(b) Negative or Extinctive Prescription.
Negative prescription is the destruction of a right by the lapse of time. Example, the right to sue for non-payment of a debt within a prescribed period is extinguished after the lapse of that Period. In India, limitation Act prescribes three years period for extinction of the right.
III) Agreement -
Property may also be acquired by agreement which is enforceable by law. The owner of a right can transfer his rights in property to another with or without consideration. if it is for consideration it is called a sale and if it is without consideration it is called a gift. It is one of the important principles of law based on the Maxim "Nemo dat quad habet legime', that is no one can convey a better title than he himself has, as a general rule.
According to Paton, an agreement is an expression by two or more persons communicated each other to the other of a common intention to affect the legal relation between them.
An agreement has four essential elements which are as follows -
1) There should be two or more parties to an agreement
2) Mutual consent of the parties
3) It should be communicated;
4) There should be common intention to affect the legal relationship
Another method of acquiring property is by means of inheritance. When a person dies certain rights survive him and pass on to his heirs and successors. There are others which die with him. Those rights which survive him are called heritable or inheritable rights. Those rights which do not survive him are called uninheritable rights. Proprietary rights are inheritable as they possess value. Personal rights are not inheritable as they constitute merely his status. However, there are certain exceptions to the general rule. Personal right may not die in case of hereditary titles. Proprietary rights maybe unheritable in the case of lease for the life of lessee only or in case of joint ownership.
Succession of the property of a person may be either tested it or it may be intestate i.e by means of a will or without a will. If the deceased has made a will, then succession would take place according to the term to the will. But if there is not will, then succession will take place by the operation of law which is known as non-testamentary succession. In case there are no heirs of the deceased, his property shall go to the State.
Methods of Transfer of possession
Distinction/ Difference between Possession and ownership
Receiving Stolen Property (Section 410 to Section 414 of the Indian Penal Code 1860)