PROPERTY

Introduction
How can one define something he owns? It is the term ‘property’ that is often
used to describe objects owned by a person. Property can also be described as
something whose right to ownership can be expanded. Therefore, a property
can include a living as well as a non-living thing. Although property can have
different meanings, the common thread running across various meanings is the
right of ownership. Property has become a measure of a person’s success.
Therefore, it becomes important to understand the law of property under
jurisprudence.

Meaning of Property
The term property is not a term belonging to art. It has been used in a variety
of senses. 

In the widest possible sense, the property includes all the legal rights of a
person, no matter what his description is. The property of a man is all that
belongs to him following the law. Although it is becoming a fashion now, such a
usage of the term is common in old books. 

According to Blackstone: “The inferior hath no kind of property in the company,

care or assistance of the superior, as the superior is held to have those of the
inferior.” 

According to Locke: “Every man has a property in his person. Every individual
has the right to preserve his property, that is, his wife, liberty and estate.”

In a narrower sense, the property includes the proprietary rights of a person

and not his rights. Proprietary rights constitute his estate or property, whereas,
personal rights includes his status or personal condition. If viewed from the lens
of a narrower sense, then only land, chattels, shares, and debts are personal
property and not his life, liberty or reputation. This is the most commonly used
interpretation of property in modern times. 

However, another interpretation and meaning of property include only those

rights which are both proprietary and real. The law of property is the law of
proprietary rights in rem. Going by this interpretation, a freehold or leasehold
estate or copyright also includes the meaning of property. 

In the narrowest possible sense, the property includes nothing more than
corporeal property or the right of ownership for material things. 

Austin believed that property can have different meanings at different times. It
could be used to denote the greatest rights of enjoyment known to law
excluding servitudes or it could also be life interests or sometimes even
servitudes. It could be the whole set of assets owned by a person including both
rights in-rem and rights in personam. 

Today, intellectual or intangible property has become very important. Instances

are copyright, trademark, property in designs and patents. 

Kinds of Property

Corporeal Property
The other name for the corporeal property is tangible property because it has a
tangible existence. It relates to material things. The right of ownership of a
material thing is the general, permanent and inheritable right of the user of the
property or thing. Further corporeal property can be divided into two
categories- 
Movable 

Chattels, for example, leases, to cows, to clothes etc are movable property. It
simply includes all corporeal property which is not immovable.

Immovable

Land, for example, is an immovable property. According to Salmond, an

immovable piece of land has many elements attached to it. It is inclusive of the
ground beneath the surface down to the centre of the world. Interestingly, it
also includes the column of space above the surface ad infinitum. According to
the German Civil Code, the owner of a particular piece of land owns the space
above it as well. The right of free and harmless possession of space at a
reasonable height over the land is secured and governed by the Air Navigation
Act, 1920. 

According to the General Clauses Act 1897, “Immovable property includes land,
benefits arising out of the land and things attached to the earth.” 

Real and Personal Property

The difference between real and personal property is similar to the difference
between movable and immovable property. The little connection that is, is
historical and not based on the logic. Real property means all rights over land
recognized by law. However, personal property means all other proprietary
rights whether rights in rem or rights in personam. 

Incorporeal Property
Incorporeal property is intangible property. The other terms frequently used are
intellectual or conventional property. It includes all those valuable interests
which are and can be protected by law. The need to recognise and protect
incorporeal property has been recognised in recent times. The scope of the term
property has widened and it has come to include virtual property as well. In
modern times, a large share of a country’s property can be found in the form of
shares of a company. Further incorporeal property is of two kinds- rights in re
propria and rights in re aliena. 

Rights in re propria

Under this form of right, the right of ownership in one’s property is not
exercised over material objects. Generally, the law of property deals with
material objects. However, there are exceptions to this in the form of non-
material things produced by human skills and labour. The most important of
these are patents, trademarks, artistic copyright, commercial goodwill etc. 

Holland added a new type of intangible property to the list. To quote him: “With
such intangible property should probably also be classified those royal privileges
subsisting in the hands of a subject which are known in English law as
franchises, such as rights to have a fair or market, a forest or free fishery.” 

Rights in aliena 

These rights are known by the name of [Link] simpler words, these
are rights in rem over areas of property owned by another person. Such rights
run parallel to res encumbered. They bind the res in whosoever hands it may
pass. These prevent the owner from exercising some definite rights concerning
his property. The main kinds of encumbrances are lease, servitude, security and
trusts.

1. Lease- it is an encumbrance giving a right to the possession and use

of the property of another person. It is the transfer of a right to enjoy
a certain property. 
2. Servitude– it is that kind of encumbrance which consists of a right to
limited use of land without having the possession of it. Examples of
 servitudes are- right of a way across the land of somebody, the right of
light and air etc.
3. Security– Lord Wrenbury has defined security as “a possession such
that the grantee or holder of security holds against the grantor a right
to resort to some property or some fund for the satisfaction of some
demand, after whose satisfaction the balance of the property or funds
belongs to the grantor.” Securities are of two kinds- mortgage and lien.

Where a mortgage is the transfer of an interest in specific immovable property

for the purpose of securing payment of money advanced by way of loan. A lien
is the right to hold the property of another person as a security for the
performance of an obligation. 

 Trust- An obligation annexed to the ownership of property. The

persons in whose favour the trusts are advanced are infants, lunatics,
unborn persons etc.

Modes of acquisition of property

Salmond refers to four modes of acquisition of property- possession,
prescription, agreement, and inheritance. 

Possession
It is the objective realization of ownership. The possession of a material object
is a title to its ownership. The de-facto relation between person and thing brings
the de-jure relation along with it. He who claims a piece of land as his own and
is also in possession of the same makes it good in law also by way of
ownership. If a person is in possession of a thing, he cannot do so forcibly. He
has also to seek the help of law to vindicate his own right. But if a certain
property belongs to nobody, the person who captures it and possesses it has a
good title against the whole world. It is similar to how the birds in the air and
fishes in the water belong to the person who catches it. 

Prescription
According to Salmond, “Prescription may be defined as the effect of lapse of
time creating and destroying rights; it is the operation of time as a versatile
effect.” Prescriptions are of two types- positive acquisitive prescription and
negative or extinctive prescription.

Prescription is not limited to rights in rem. It is found within the sphere of

obligations and of property. Positive prescription is possible only in the cases of
rights which admit of possession. Most rights of this nature are rights in rem.
Rights in personam are commonly extinguished by their exercise and cannot be
possessed or acquired by prescription. Negative prescription is common to the
law of property and obligations. Most obligations are destroyed by the lapse of
time. Their ownership cannot be accompanied by their possession. 

Agreement
According to Paton, an agreement is an expression by two or more persons
communicated to each other of a common intention to affect the legal relations
between them. It is an outcome of a bilateral act. It may be in the nature of an
assignment or a grant. An assignment transfers existing rights from one owner
to another. A grant connotes the assurance or transfer of the ownership of
property as distinguished from the delivery of property. 

There are some agreements which require attestation and registration of the
deed. There is a general rule that the title of the transferee by agreement
cannot be better than that of the transferor. This is primarily because of the fact
that no man can transfer a better title than what he possesses. 
However, there are two general exceptions to the rule- 

1. The transferee gets a good title from a trustee who fraudulently sells
the trust property, provided the transferee purchases it for value and
without notice of the equitable claim of the beneficiary. 
2. Where the possession of a thing is with one man and the ownership of
it is in another, the processor can transfer in certain cases a better title
on the assumption that the possessor is the owner, provided the
transferee obtains it in good faith believing him to be the owner. 

Inheritance
Another way of acquiring property is by means of inheritance. When a person
dies, certain rights survive him and pass on to his heirs and successors. The
rights which are survived by a person are called inheritable rights. Proprietary
rights are inheritable rights. Whereas, generally personal rights are not
inheritable but there are also exceptions to this general rule. 

Succession to the property of a person may be either testate or intestate. It

may be by means of a will or without a will. If there is a will, succession takes
place by operation of law. If there are no heirs at all, the property goes to the
State. 

Conclusion
Property is a source of power, a source of labour and most importantly it is
regarded as the best and the safest form of investment in the modern time. The
value of a property is always appreciated. Knowing the importance of property,
it becomes all the more important to know the historical legal background i.e
jurisprudence surrounding the same. It is believed that law and property were
born together and it is a prophecy that the same would die together. These two
aspects are intertwined most intriguingly. Before the laws, property did not
exist; take away the laws and property will be no more. Hence, the property
has been regarded with special significance in jurisprudence. Owing to the
reasons listed above, this article tries to help the reader develop a better
understanding of property and its aspects.