304 JURISPRUDENCE AND LEGAL THEORY

material object is he who owee

Ownership of Material [Link] owner of a
a right to the aggregate of its uses. Thus
ownership is the right of general use. This nee
a specific limited right to use sik
not be absolute or unlimited use. He who has merely
an encumbrancer of it. The right of
as right of way is not the owner of the thing but merelyownership in a material thing may he
Ownership is an inheritable right. In short, the right of 10
to the uses of a thing.
defined as the general, permanent and inheritable right
earlier, corporeal
1. Corporeal and Incorporeal [Link] stated existence in the worid
property is also called tangible property because it has a tangible
silver etc. ara
It relates to material things e.g. land, house, money, ornaments, gold,
sense-organs. Incorporeal
corporeal property the existence of which be felt by the
property is also called intangible property because its existence is neither visible nor
tangible e.g. right of easement, copyright, patent, trademark etc. In Roman law coporeal
property is termed res corporalis and incorporeal property is called as res incorporalis
Buckland, however, suggests that corporeal property under Roman law referred only to
the ownership of the right of general user and all those things which could be valued in
currency, fel under the category of incorporeal property.
2. Movable and Immovable Property.-All corporeal property is either
movable or immovable. In English law these are termed as chattels and land respectively.
According to Salmond immovable property (i.e. land) has the following elements -
(1) Adeterminate portion of the earth's sutace;
(2) The ground beneath the surftace down to the centre of the eath,
(3) The column of space above the surtace ad infinitum;
(4) All objects which are on or under the surface in its natural state e.g. minerals,
natural vegetation, or stones lying loose upon the surtace;
(5) Allobjects placed by human agency on or under the surface of the land with
the intention of permanent annexation._e.g. houses, walls,11 fences, doors,
etc. These become part of the land and lose their identity as separate movable
chattels. It must, however, be noted that physical attachment without the
intent of permanent annexation does not make change in the nature of
movable property. For example, carpets or ornaments nailed to the floor or wall
of a house or money burried in the ground are as much a chattel (movable
property) as money in the owner's pockets.
Immovable property has been defined in the General Clauses Act, 1897 to inciude
land, benefits to arise out of land, and thing attached to the earth, or permanenuy
fastened to anything attached to the earth, 12 The term is also defined in the Indian
Registration Act, 1908, thus: Immovable próperty includes land, buildings, heredlta
allowances, right to way, light, ferries, fisheries or any other benefits to arise out of la
and things attached to the earth or permanently fastened to anything which is attachedto
the earth, but not standing timber, growing crop or grass".13 The Transfer of PPropertyAct,
1882 excludes standing timber, growing corps and grass from the definition ofimmovable
property.

10. Fitzgerald, P.J. :Salmond On Jurisprudence, (12th ed.) p. 415.

11. Monti v. Barmes, (1901) 1 KB 205.
12. Section 3 (26) of the General Clauses Act, 1897.
13. Section 2 (6) of the Registration Act,
1908.
 PROPERTY 305
The following are judicially recognised as immovable property-(1) Right of way, (2)
httocollectrent of immovable property, (3) Aright of ferry, (4) Amortgagor's right to
Adeemthe mortgage, (5) The interest of a mortgagee in tmmovable property, (6) Right of
(7)
Fshery, Right to collect lac from trees.
ne tollowing are not iudicially recognised as immovable property(1) standing
Nmber,(2) growing crops, (3) grass, (4) Aright to recover maintenance allowance even
noughit is charged throughimmovable property, (5) right of purchaser to have the land
gJsteredin his name, (6) royalty, (7) Adecree of sale or sale of immovable property on a
nortgage.
Movable property, on the other hand, may be defined as any corporeal property which
not immovable property.
Real and Personal Property.-The distinction between real and personal
nery is closely connected with but not identical with the distinction between movable
immovable property. The aistinction , however, has no scientific basis. It is mostly
eDroduct of the history of the law of action in England. Real property means all rights
NIer land recognised by law. Personal property, on the other hand, means all other
poprietary rights whether they are rights in rem or rights in personam. Commenting on this
istinction, Salmond observed, "the law of real property is almost equivalent to the law of
and while the lawof personal property is almost identical with the law of movables."14 This
distinction between real and personal property has been drawn from the Roman law. The
nearly
real property and immovable property from intersecting circles which are very
though not quite coincident.
three different
Movable property is commonly termed as chattel which has
meanings:
etc.
(1) Any movable physical object such as, table, money, dog
and other rights in rem which
(2) Incorporeal proprietary rights such as debts, shares,
ae not rights over land.
opposed to real property.
(3) Personal property, whether movable or immovable, as
Hights in re propria in Immaterial Things
things. Material things
Proprietary rights are both in relation to material and immaterial
may be subject-matter of a right are
are physical objects and all other things which human skill and labour. These
material things. They are various immaterial products of
follows :
nmaterial forms of property are as
an invention such as the idea
(i) Patents.-The subject matter af a patent right is
person by whose skill or labour the
of a new process, instrument or manutacture. The exclusive right of patent
is introduced' has the
Invention or a new process or manutactureState.15
inventor by the
nit. This is granted to the registered a patent
TheIndian Patents & Designs Act provides that a person who has
make use or sell the patented invention for a period of tourteen
gets the exclusive right to whether
and any person who, with or without the knowledge of the existence of the
Years, the same, may be restrained by injunction and if he knowingly
right, infringesshall
patení the patents, be liable also for damages.
intringes
14.
Eitzgerald, P.J. : Salmond On Jurisprudence, (12th ed.)p. 420.
15.
The rights of a person who is responsible for a new invention are protected by the Indian Patents
and Designs Act, 1911.
306 JURISPRUDENCE AND LEGAL THEORY

(ii) Copyright.-The subject-matter of the right is the literary expression of f

or thought. Ihis right may be available to writers, painters, engravers,
photographers, musical and dramatic personnel for their outstanding work.
person does some creative work by utilising his intellect, skill and labour, he When
is such a
sculptures,
exclusive copyright which is animmaterial form of property. In short, copyrightentimay
tled tobe
literary copyright or. artistic copyright or musical and dramatic copyright.T6
(iii) Commercial Goodwill.-Yet another form of immaterial
commercial goodwil, trade marks and trade-names. The goodwill of commercialproperty is
is a valuable right acquired by the owner by his labour and skill. He has exclusive right business
used and profit from the business and anyone who seeks to make use of by
falsely
representing to the public that he is himself carrying on the business in question, shalb
violating this right.
morage os otR clan
Rights in re aliena (Encumbrances) a
Rights in re aliena are also known as encumbrances. Encumbrances are the rights of
specific or particular user as distinguished from ownership which is right of general user
Encumbrances prevent the owner from exercising some definite rights with regard to his
property. The main categories of rights in re aliena or encumbrances are-(1) Leases. (2
Servitudes, (3) Securities, and (4) Trusts.
1. Lease.-A lease is that form of encumbrance of property vested in oneperson
by a right to the possession and use of it vested in another. Thus, it is transfer of right to
the possession and use of property owned by some other person. It is an outcome of the
rightful separation of ownership from possession. A lease may either be for a certain
specified period or in perpetuity. It is an encumbrance in which the lessor i.e. the owner of
the property transfers his right of possession to the lessee. Thus, if it own a house which
is let out to a tenant, Ihave created a lease i.e. Ihave detached my possession from my,
ownership. Iam still the owner of the house but the tenant i.e. the lessee has the
possession of it and he can use it so long as the lease subsists.
A lease of immovable property is therefore, a transfer of a right to use and enjoy such
property for a certain period, express or implied or in perpetuity in consideration of () a
price paid or promised, or (ii) money, or (iii) share in crops, or (iv) service, or (v) any other
thing of value to be rendered periodically or on specified occassions to the transferor by
the transferee (i.e., lessee) who accepts the transfer on such terms.17 The price is called
the 'premium' and the money, share or produce or service rendered is called the rent the
transferor is called the lessor and the transteree the lessee.
The essentials of a lease may summarised thus :+
() The lessor must be a person competent to contract and must have ttile d
authority.
() The lessee must also be competent to contract since a lease is to be execule
both-essor and the lessee.
(ii) Subject-matter of the lease must be immovable property.
(iv) Transfer of right of possession to use and enjoy such property.
() Duration of the lease may be express, impied or in perpetuity.
suitfor
by a civil
16. Infringement of copyright is punishable under IPC or may be proceeded against
damages.
17. Section 105 of the Transfer of Property Act, 1882.
 PROPERTY
307
Consideration may be in the form of
paid or promised in premium, rent or both. As
already stated,
gemum the price
is
payment consideration
bythe lessee that is part of consideration of theoflease
a transfer
is [Link] way of lease. Any

(vi)The
lessee must accept the transfer; and
(vi)In certain cases a lease must be made through a registered deed.
Generally speaking, alease is always with respect to
Therightinvolved in a lease is also called 'tenancy'. immovable
However, property [Link]
in jurisprudential land.a
much wider meaning and
ease'has a may also include tenancy in land, bailment of
property, all
novable encumbrances relating to incorporeal property etc. In this
omprehensive sense, every right that can be
possessed, can be made the subject of a
ease. Thus, there can be a lease of copyright, patent, right of way etc. In
ver, lease ordinar1ly reters to transter of possession by the owner (lessor)practice,
to the
for certain considerationwhich may be premium or rent.
Servitude.A servitude is that form of encumbrance which consists in a right
ihe limited use of the place of land without the possessionof it; for example, a right of
iay, aright to passage of light or water across the adjoining land, right of fishing etc. A
avitude, therefore, is a right to the limited usé of a piece of lánd without ownérship or
pSsession thereof. There is no transfer of possession in case of a servitude and this
istinguishes it from a lease. If a person seçures exclusive possession of a piece of land
without getting its ownership, he acquires a lease of that land but if he only acquires a
ght to use that piece of land without getting its ownership or possession, he acquires a
servitude on that land. Ordinarily, sevitudes exist with respect to land alone.
Servitudes are of two kinds-Private or Public. A private servitude is vested in a
eterminate individual as in case of a right of way, of light or support vested in the owner
a piece of land over and adjoining piece of land. Apublic servitude, on the other hand,
Svested in the public at large or some lass of indeterminate individuais such as the
pablic right of navigation or fishing. public right of way over land in private ownership or
ght of inhabitants of a village to use certain piece of land for recreation, cremation etc.
Salmond has further classified servitudes as () appurtenant or (ii) in gross.
AServitude appurtenant (it is also called as praedial servitude) is one which is not
Merely an encumbrance of one piece of land but is also accessory to another piece of
of a
end. It is a right of using one piece of land for the benefit of another; as in the case
is called the
ght of support for a building. The land which is burdened with such servitude
Servient tenement and the land which has the benetit of it is called the dominent tennant.
The sonitde runs with each of the tenements into the hands of successive owners and
cCupiers. 18
A servitude is
said to be in gross when it is not so attached and accessory to any
for whose benefit it exists; for example a public right of way or
dominant tenement
or dprivate right of fishing or mining etc.
Navigation;
3. Security.-A Security is an encumbrance vested in a creditor over the property
his debtor for the purpose of securing the recovery of the debt. In other words, it may
Ve said to be a right to retain possession of a chattel until the debt is paid. Security on
movable property is Calleda mogage and on movable property it is called a'pledge'

18. According to Salmond, an easement,inthe strictest sense, means a particular kind of servitude,
nar a and appurtenant servitude which is not a right to take any profit from the servient
308 JURISPRUDENCE AND LEGAL THEORY
is to
According to Salmond, a security is an encumbrance the purpose of which though nos
ensure or facilitate the fulfilment or enjoyment of some other right (usuallyto distinguish
necessarily a debt) vested in the same person. It will not be out of place
security from a surety. In case of security, a particular res is charged with the debt, butin
obligation to pay the debt oe
the case of surety, the person giving surety is under an
another if the latter fails to pay the debt himself.
Securities over property are of two kinds
()Mortgage; and (i) lien.
(i) Mortgage.-Where immovable property is secured to another for consideration
the transaction is called a mortgage. It is called 'pledge' if the property is movable.
Amortgage is the transter of interest in specific immovable property for the purpose
of securing -
the payment of money advanced by way of loan.
(b) an existing or a future debt, or
(c) the performance of an agreement which may give rise to pecuniany liability. |9
The transteror is called a 'mortgagor, and the transferee a 'mortgagee. The
instrument by which the transfer is effected is called a mortgage-deed. There are six
kinds of mortgages. They are--(1) simple mortgage, (2) mortgage by conditional sale, (3)
usufructuary mortgage, (4) English mortgage, (5) equitable mortgage (also known as
mortgage by deposit of title deeds), and (6) anomalous mortgage. These mortgages are
explained in Section 58 (b) to (g) of the Transfer of Property Act, 1882.
(ii) Lien.A lien is the right to hold property of another person as a security for the
performance of an obligation. In other words, lien is a right of one man to retain that which
is in his possession belonging to other until certain demands in respect of the person i
possession are satisfied. Thus a finder of a goods has a right to retain the goods against
the owner till he receives frÍm the owner, the compensation for trouble and expenses
incurred by him, and also specific reward which the cwner may have offered for the retum
of such goods. The finder is said to have a lien upon the goods so found. Lien is right to
retain possession of goods and does not include right of ownership or sale.
Liens may be of different kinds. They are :
1. Possessory lien.-A possessory lien consists in the right to retain possession of
chattels or other property of the debtor. Examples are pledges of chattels and the liens ot
inn-keepers and vendors of goods.
2. Agent's lien,-n absence of any contract to the contrary, an agent is entitled to
retain go0ds, papers and other property, whether movable or immovable, of the principal
received by him, until the amount due to himself for commission, disbursements ana
services in respect of the same has been paid or accounted for to him. This is provided
Section 221 of the Indian Contract Act.
3. Unpaid Vendor's lien.20-The unpaid seller of goods who is in possession of then
is entitied to retain possession of them until the payment or tender of the price.
4. Powers of [Link] creditor has the power of destroying some adverse right
vested in the debtor e.g. landlord's right of re-entry on his land.
fund
5. Charges.-The creditor has aright to receive payment out of some speciftic
partiesand
out of the proceeds of specific property. Acharge may be created by act
19. Section 58 (a) of the Transfer of Property Act, 1882.
20. Section 55 (4) (b) of TP. Act.
 ontráct
diWayS necessary in case ofa lien.
4. Trust.-A trust is an encumbrance in which the
ownership of property is limited
deal with it for the benefit of some third person. In other words, a trust is an obligation
atnexed to the ownership of property. It arises out of a confidence reposed in and
ocepted by the owner. According to Salmond, a trust is ordinarily created for the benefit
ens o tunborn persons, infants, minors, lunatics and persons who suffer from some legal
led to dsability.2 Itis also created for the perfection of some disputed property or safeguarding
the common interest of several persons. The law relating to trusts is contained in the
nopandian Trusts Act, 1882. Thus, in case of a trust although the property is legally vested in
S and the trustee, he keeps it for the benefit of the beneficiary.
ided in
As regards the importance of trusts, Paton comments that it has proved useful in
of them many ways. Firstly, it has been used by associations as a means whereby their property
is used for the desired purpose. Secondly, it has facilitated endowments and gifts for
charitable and religious purposes by vesting the property in trustees for purposes as
se rigt desired by the settler. Thirdly, the trust has a great social importance in helping
settlement of family property by protecting the interests of young persons and married
fund women.22
ific tuno
es andt

21. Fitzgerald, PJ.: Salmond On Jurisprudence, (12th ed) p. 434

22. Paton, G.W. :Atext Book of Jurisprudence, p. 432.
 310 JURISPRUDENCE AND LEGAL THEORY

Trust distinguished from a Mortgage

Although the relation of mortgagor and mortgagee has some analogy to
the
relation between trustee and the beneficiary, the two are not identical. A
mortgagee fiduciary
a trustee for the mortgagor and he does not hold the legal estate for the benefit isof not
mortgagor as atrustee does for the beneficiary i.e. cestui que trust. Again, the the
has not only the legal insterest in the property mortgaged, but also a beneficial morinterest
tgagesin
it adverse to the mortgagor's, which he can enforce by a suit against the mortgagor.
Ashburner points out that the mortgagee becomes a trustee only after he has been
paid his debt-money. In equity law, his rightmoney
in the due
property
to
does
him. If
not extend beyond hat
the
is necessary to secure repayment of the mortgagee has been
reimbursed by sale of mortgage property, he shall become the trustee of the
proceeds if any, for the person entitled to the equity of redemption.23 surplus
Modes of Acquisition of Property
There are four important modes of the acquisition of property. It may be acquired by
(1) possession, (2) prescription, (3) agreement, and (4) inheritance.
1. Possession.-It has been stated earlier that possession is the objective
realisation of ownership. It is prima-facie evidence of ownership. The propety which
belongs to no one i.e. res nullius , belongs to the first possessor of it and he acquires a hat
valid title to it as against the world. Thus the fish of the sea and the birds flyingin open
skybelong to one who first succeeds in obtaíning possession of them and acquires an
absolute title over them. This mode of acquisition has been called as occupatio in Roman
entor
Omr
law. A property which is already in possession of some one else, when acquired by hem
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 as possessory ownership by reason of
its origin in possession.24
If the person in adverse possession i.e. possessory owner is wrongfully deprived of
defence of
the thing by a person other than the true owner, that person cannot set up the
Gr

jus terti, that is, he cannot plead that the thing does not belong to the possessory ownr
either.25 In other words, a possessory owner's possession shall be protected against al
maintenance of peace and
except the true owner. This rule is justified on the ground of
order and to prevent misuse of force. he
effect of lapse of time in e
2. Prescription.-Prescription may be defined as the
vestitive fact.
creation and extinction of legal rights. It is the operation of time as a A
extinctive. The creaton
two aspects, namely positive or acquisitive and negative or prescription whereas
acquisitive
right by the lapse of time is called the positive or prescription. The
extinction of a right by the lapse of time is called extinctive or negative an uninterrupted
owner for
person who is in continuous long possession adverse to its his
ownership
the owner loses years
period of twelve years, acquires ownership of theland and debt after three her
for a
after the lapse of this period. Again, extinction of a right to sue negative prescription.
from the time at which it first became payable is an example of
uri
23. In Re Bell, (1886) 34 Ch.D. 262.
24. Fitzgerald, P.J. : Salmond On Jurisprudence, (12th ed.) p. 434.
25. Armory v. Delomirie, (1722) 1 Str. 504.
 PROPERTY 311

The
basis of prescription is to be found in the presumption of coincidence of
SSeSs/onandownership. The fact that athing is possessed is de facto evidence that it
jure and thefact that it is not possessed raises, a presumption that it is not
Thus want of possessionnis evidence of title. Want of pOssession for along time is
ned
moence
of wantt of title, and as the time passes the evidence in favour to title also fades
and presumption against it grows stronger26
Negative prescription is common to law of property and obligations. According to
omond, negative or extinctive prescription is of two kinds, namely. (1) perfect, and (2)
ofect. Perfect negative prescription results into destruction of príncipal right itself
The
areas imperfect prescription destroys only an accessory right of action.
alnuction of ownership of land by adversary possession for uninterrupted twelve years
recovery of
an illustration of perfect negative prescription. The extinction of the right of
due, is an example of
ht after the expiry of three years from the date it first became
creditor's right to sue for
noerfect negative prescription because it destroys the
itself.
RCOVery of the debt but not the debt
general principle
It is significant to note that the law of prescription is based on the
dormant27
tat law helps the viligant and not the
acquired by agreement which is
3. Agreement.-Property may also be expression by two or more persons
entorceable by law. Paton defines agreement as an the legal relations between
Cominunicated to each other, of acommon intention to affect elements, namely
essential
them. It,therefore, follows that an agreement has four
or more parties to an agreement;
1. It being a bilateral act, there should be two
2. Mutual consent of the parties;
3. It should be communicated; and
affect the legal relationship.
4. There should be common inention to
proprietary right in rem, agreement is of two kinds, namely, () Assignment, and
As a
j Grant.
from one owner to another e.g.
An assignment transfers the existing rights the assignee.
to
ssignment of a subsisting lease-hold from assignor
Under a grant, newrights are created by way of encumbrance upon the existing rights
lease of land is the creation of agreement between grantor
the grantor e.g. grant of a
and grantee.
and require the
Anfeerment is either formal or informal, Formal agreements are writtenbefore
completed they are
formality of registration and attestation of the deed to be Roman
effective. nformal agreements are verbal and do not require any formality. The
law, however, required that an alienation duringlife time of the person should not only be
between the parties but there should also be delivery of possession.28
by an agreement that alienation was conceived to consist of the essential
Ihis, in other words, meant
lant of transfer of possession. In English law, until the year 1845 coveyance of land
Was not oossible without the delivery of possession and no need of conveyance could be
effective without delivery of possession. But in actual practice, the rule was evaded for
Centuries by taking advantage of fictitious delivery of possession under the Statute of
312 JURISPRUDENCE AND LEGAL THEORY

Uses. The Statute2 of the year 1845, however, modified this rule and now
the
of land could be legally transferred without the possession of it.
As rightly pointed out by Salmond, it is an important principle of law ownershi
of agreement
that the title cf an assignee or a grantee cannot be better than that of
his
grantee. The general rule is that no one can transfer a better title than
possesses. This is expressed in the latin maxim nemo plus juris ad
asSIgnor
what he
alium himsel
o

trustee exceptitoransnstere
potest, quam ipse haberet. This rule is, however, subject to following two
() case of trust,
In a legal ownership
the with is the and
the
ownership is that of the beneficiary. Thus there exist two separate
Ownershion pequis duetableto
separation of legal from equitable ownership. The trustee holds the property
the beneficiary, and not for himself, and, therefore, the obligation of this behalis a
trusteeship an
encumbrance upon trustee's title. If the trust property is sold to a bona fide
value and without notice, he shall acquire a better (unencumbered) title to the purchaser
purchased. In simple words, if the third person (bona fide purchaser) purchasespropert
the y so
property for value and without the knowledge of the existence of the trust, he
acquire better title than the trustee according to the equitable doctrine of shalle
value without notice.31 for purchase
(1) The second excuption to the general rule that no one can transfer a beter the et
than what he himself possesses is where the possession of a thing is in one man and h.
ownership of it is in another. In such cases the possessor is allowed to pass a good ile
to one who deals with him in good faith believing him to be the true owner. The mos
striking example of this is the case of negotiable instruments, a possessor of a bank-note
may have no title to it; for he might have found it or stolen it; but he gives a good tile d
any one who takes it from him for value and in good faith. Likewise, merchantile agents, in rar
possession of goods of their principals, can transfer the ownership of them whether they te
are authorised to sell them or not 32
The acquisition of property by living persons is possible through possession,s
prescription and agreement whereas property can be acquired by inheritance by the heis
and successors of the deceased. Thus inheritance is also one of the modes of acquisilion
of property.
4. [Link] respect of the death of their owners all rights are divisible into
two classes, namely}inheritable and (2) uninheritable.
Aright is inheritable if it survives its owner and it is uninheritable if it dies with him.
Proprietary rights are inheritable and most personal rights are uninheritable. But there are
certain exceptions to this general rule. For example, the right of action servives the deau
case of a lease
of both parties as a general rule. Proprietary rights may be uninheritable in
for life of the lessee only or in case of joint-ownership.
The rights which a dead man leaves behind him vest in his representative
This liabilityis,
Successors. But he has also to bear the liability of the deceased. deceased.
however, limited to the amount of property which hehas acquired from the

29 Statutes 8 and 9 Vict. c. 106, Section 2.

30 Section 41 of the Transter of Property Act, 1882.
31. This is an exception to Section 63 of the Indian Trusts Act, 1882.
32. Fitzgerald, P.J.: Salmond On Jurisprudence, (12th ed.) p. 442.
 PROPERTY 313

inheritanceis some sort of legal and fictitious continuation of the personality of the

SUCcessionto the property of a person may be either be testate or it may be intestate

means of a will or without a will. Ifthe deceased had made a will, succession would
placeaccording to the terms to the will. But if there is no will, then succession will
pie
placeby the operation of law which is known as non-testamentary succession. in
Ihere are no heeirs of the deceased, his property shall goto the State.
e

The power of a person to

dispose of his property by testament (wil) is subject to the
AOKinglimitations
Hmitation of time.-No person can be allowed to vest his property in
of the estate in property for
etuity, that is, the testator cannot control the devolution
by the testator beyond
ndefinite period. In Indian law, the property cannot be vested order to destination
must so
neriodof his life time plus eighteen years thereafter.34 He
whole of it shall become vested absolutely in
his property that within this period the restrictions. Any
testamentary conditions and
one one or more persons, free from all the
stanientary devolution beyond theprescribed period mentioned above, shall render
to the
law, but in India, it shall be void only
s00S0tion wholly void under the English
of excessive period beyond life-time of the testator plus eighteen years.
atent
Limitation of Quantum Amount.-In most legal systems, a testatory
(ii) portion of it for
estate but instead he has to leave a certain
annot dispose of his entire such has wifte, children etc. In
other words
a legal duty to support
fose to whom he owes
certain portion of his estate by a will and has to set aside
Jestator can dispose of only a legally bound to support. The rule under
those whom he is surplus of the
e rest of the portion for bequeath more than one-third of the
Muslim can unless the heirs
Wohammadan law that no and pavment of debt
his funeral expenses person only
slate after providing for on this limitation.
Hidu law permits a
based in the
Consent to the same is
property and the ancestral property shall devolve
Hindu law
sposition of his self-acquired Hindu Succession Act, 1956. The old texts of
rules of concept
Teirs according to the disposition of property which are akin to modern
about sickness, for
iso contain certain rules "what a man has promised, in health or
doubtless the
states, it, his son shall
will'. Thus Katyayan dies without giving
given and if he elaborately
Bigious purpose must be concept of will gradually evolved has been 1870 which
the
Compelled to deliver it." How Initially, the Hindu Wills Act was passed in Succession
Tagore. the Hindu
scussed in Tagore v. Succession Act, 1925 and nowwe have
Indian
Was replaced by the
Act, 1956. power of testamentary
Purpose.-A person while exercising successors for
(iii) Limitation of that his estate may be used by his heirs and
provide validly leave any direction
disposition,othermaypersons who survive him. However, he cannot property fromthe use of
benofit o#
against public-interest, nor can be withdrawthe money be
is in his will that his
in the will which For example, he cannot leave a direction
persons.
he living
(1985)p. 219.
Atch
S.: Jurisprudence And Legal Theory,
33. ransfer of Property Act, 1882.
Ser
34 Vol. 57,68.
835. (1
314 JURISPRUDENCE AND LEGAL THEORY

buried in the grave along with his dead-body or thrown into the sea,36 that his estate or
land shal lie waste atter his death, Such a testamentary disposition shall be wholly void.
ln conclusion, it may be stated that the concept of property has a special
signiticance in jurisprudence because the determination of proprietary rights such as
ownership, title ete. is solely based on property. The concepts of 'ownership' and
'possession' have also originated trom the conception of property. Again, rights and
duties are also closely related to property. It is for this reason that the law relating to
property has been developed as an independent breach of law in jurisprudence. The
estate or property for which there is no heir or successor, shall vest in the State, 37