ESSENTIAL CHARACTERISTICS OF OWNERSHIP
Ownership is a similar conception of possession. It seems that historically, first the conception of the possession came into being and then the conception of ownership gradually developed, due to the economic changes in the society. The conception of ownership seems to have come into being when the society changed fro nomadic to agriculture. It is an important right in relation with property. The concept of ownership plays both a important role in legal and social interest in our society. As a concept of ownership in jurisprudence, various jurists have given different definition for ownership.
The term OWN means to have or hold a thing, or something which belongs to you. A person who holds some property or thing with him, he said to be the owner of the particular thing, he has the right to ownership.
According to them ownership is a peculiar kind of relation between a person and thing. The relation looked by the Hindu jurists is view from two sides, the person with whom the right of things vest which constitute ownership, it can be said as a special kind of control, exercised by a particular individual. Under the Hindu law, the conception of ownership and possession are mutually interdependent and one cannot be fully and clearly understood without the other. Thus, ownership according to this view is considered to inhere in persons in relation to the things in so far as they are the objects of ownership and property is defined as characterizing things in so far as they stand related to persons as the owners.
There are two views on ownership which are contrary to each other. The view given by Austin and Holland are very close to the view of Indian Jurists. According to this view, ownership is a relation which subsists between a person and a thing which is the object of ownership. Austin defined ownership as ‘a right over a determinate thing indefinite in the point of user, and is unrestricted in point of disposition and unlimited of duration. According to the view of Austin, there are three elements of ownership:
a) Indefiniteness in point of user
b) Power of disposal
c) Unlimited in a point of duration
Holland defines ownership as ‘plenary control over an object’. According to him, an owner has three rights on the object owned:
b) Enjoyment, and
‘Ownership in most comprehensive signification denotes the relation between a person and any right that is vested in him. That which a man owns in this sense is in all cases a right. Ownership in this wide sense extends to all classes or rights, whether proprietary or personal and it applies to rights in the strict sense’. According to this definition, ownership is a relation between a person and a right. It implies that the ownership is incorporeal. To speak of ownership of a physical object is a figure of speech.
By the view of different definitions given by jurists, the following essentials can be derived:
Right of possession: The owner has the right to possession for the thing he owns. However, it is immaterial whether he is in possession of the thing. The owner has the possession even in certain cases of stolen, mortgaged things; he has the interest in the thing. The owner ha the interest in the property even though he may or may not be present physically.
Right to use and enjoyment: As the owner, he has the right to use and to enjoy. According to Salmond, this right can be used when there is something he has owned. But there are certain restriction on the operation of law:
The owner cannot use the thing which he owns in a harmful way.
The ownership maybe subject to hindrance in favor of others, in that case the power maybe curtailed by the rights of encumbrance.
If the court issues a warrant then the state officials have a right to enter into the premises for any lawful purpose.
Right to disposition: The right to disposition denotes the right to exhaust, alienate the property. The owner of the property has the right to alienate or any other related work with the property. As the owner, he can do anything with the property he posses. Thus, a man having possession but not ownership cannot alienate the property. There are certain restrictions on the operation of law:
Legal restrictions hamper the unrestricted disposition of the property.
b) The owner of property does not allow disposing the property with a view to defect the creditors.
c) With regard to disposition of property there are certain restrictions on lunatics and infants.
Indeterminate disposition: One of the characteristics of ownership is indeterminate during the process. At a certain point of time, all the non- owners is determinable for the possession. This right exists as long as the owner and the thing exist. A particular person needs to have ownership in order to transfer the ownership to others.
Residuary powers: Even though the ownership has lesser rights, but the ownership is residual in nature. As they have lesser rights, they have the true ownership of the property.
Duration: There are is no certain duration for ownership. In certain cases such as lease, easement, the duration is fixed. But in ownership there is no certain limitation. If the owner dies, then the ownership will be transferred to the heirs.
The right of ownership has the exclusive rights to the owner itself and it excludes other persons.
Under various laws, the right to ownership is inflicted by various laws.
The owner of the property has the liberty to use the property in their own ways, and as others they do not have the duty to interfere in any of the matters.
As we have discussed above, ownership is said to be a relationship between a man and a thing. This can be termed as absolute and exclusive rights over an owner. Hence, the ownership is an essential topic.
Author: Saba banu,
Pendekanti law college, 3rd year BA LLB student