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The document discusses the concept of property, defining it in various contexts, including ownership and legal rights. It categorizes property into corporeal and incorporeal types, explaining the distinctions between movable and immovable property, as well as proprietary rights and encumbrances. Additionally, it covers the legal implications of ownership, easements, licenses, and securities in relation to property rights.
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0% found this document useful (0 votes)
1 views12 pages3c property jurisprudence
The document discusses the concept of property, defining it in various contexts, including ownership and legal rights. It categorizes property into corporeal and incorporeal types, explaining the distinctions between movable and immovable property, as well as proprietary rights and encumbrances. Additionally, it covers the legal implications of ownership, easements, licenses, and securities in relation to property rights.
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tiyakhurana2workCopyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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/ 12
LECTURE 21
PROPERTY
MEANING
The term ‘property’ has a variety of meanings, and uses. In some contexts It
means ownership or title, and in some other contexts it is used to mean the thing
over which ownership is exercised.
Inits widest sense, property includes all legal rights possessed by a person. A
man’s property is all that is his in law. This approach is found in earlier writings.
Blackstone speaks of the property, which a master has in the person of his
servant, and a father in the person of his child. Hobbes considers all those that are
dearest to 2 man including his life and limbs, conjugal affection, riches and
means of living as things held in property. According to Locke, every man has @
property in his own person, and a man has the right to preserve his property, ie.,
his life, liberty, and estate. Today such wide use of the term ‘property’ is not
followed.
‘The narrower sense in which the word ‘property’ is generally used today does
not include all of a person’s rights, but only his proprietary, 2° opposed to his,
personal rights. Proprietary rights constitute his estate or property. ‘Thus a man’s
Jand, chattels, shares, and the debts due to him are considered his property, but
personal rights concerned with his status oF personal condition such as his life,
liberty, or reputation are not considered as property.
na still narrower sense to mean only proprietary rights
distinguished from it as obligations,
which will be discussed in our né sense a freehold or leasehold
estate in land or a patent or copyright is property, but a debt or the benefit ofa
contract is not. Perhaps the narrowest sense in which the term ‘property’ 1s used
Property is also used i
in rem, Proprietary rights in personam ar i
ext lecture. In this
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i ship in a material obj,
; he right of ownership in joa,
inchides only corporeal property, isc t arin fnvout of using omen
OF that material object itself. Bentham who was ue a ee ; ue ine ae
harrowest possible meaning considered the extensiol .
Tights as improper.
KINDS OF PROPERTY
Property is commonly divided into corporeal and incorporeal. ore Propeny
is the right of ownership in a material thing. ‘Incorporeal Property is any othe,
Proprietary right in rem. Itis further divided into the following:
@) jura in re aliena or encumbrance, whether over cae oF immaterig)
things, for example, leases, mortgages, servitudes, ete.; an
Gi) jura in re Propria, over immaterial things, for example, Patents,
copyrights, and trademarks,
Ownership of Material Things
We have already seen that corporeal property is the right of ownership in a
material thing. We have to distinguish ownership from limited Tights to the use
of property, such as the right of way, which is merely an encumbrance, The
owner of a material object is the person who Owns a right to the aggregate of
its uses. Ownership is the right of general use. When we speak of ownership as
the right of general use, it must be clearly understood that this general use
heed not be absolute or unlimited. All lawful use of property may be either
Seneral, i.c., residuary, or specific in nature. General use is ownership, and
Specific use is encumbrance. The Beneral law may impose various limits on
Ownership so that no one uses his own Property in such a Way as to injure his
neighbour. Some restrictions imposed by the Seneral law may be in the interest
of the public. The second ‘Ype of restriction on an owner’s right of use consists
of encumbrances vested in other persons. The existence of encumbrances does
not destroy the right of Ownership. Legally, a Tight of ownership subject toa
number of encumbrances is aS good as a right of Ownership without any
encumbrance,
‘elt, which is its Subject matter, lasts. It
Fe Ving its owner. After the death of the
owner, property passes on to his legal heirs. Salmond defines the right of
Ownership in a material thing as the Seneral, permanent, and inne: ight to
use of that thing. , and inheritable tigl
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Lecture 21] Property 281
Table 1
Property
Jura in re propria Jura in re aliena
Material Things Immaterial Things [Leases Security Servitude
etc.
Land Chattels [Patents, Trademarks, Copyright|
ete.
Incorporeal Property
Corporeal Property
Movable and Immovable Property
Corporeal property is classified into movable property, and immovable property.
English law uses the word ‘chattels’ for movable property, and ‘land’ for
immovable property. Legal systems lay down different rules for these two classes
of property.
Immovable property that is land in its legal sense includes:
(i) A determinate portion of the earth’s surface;
.d beneath the surface down to the centre of the earth;
above the surface ad infinitum. The
d includes the column of space above
te gurface ad infinitum is debatable. Even if such a right is admitted in
theory, law imposes restrictions on the right. In England, the Air
Navigation Act of 1920 provides that the flight of aircrafts at a
weonable height above the ground is not actionable in the suit of the
fr of the land. According to German Civil Code, the
owner or occupii
aimer of the land owns the space above it, but has no right fo prohibit
mts go removed from the surface that they do not affect his interests in
‘ny way. The maxim cujus est solum cjus usaue ad coelum, i.e., whose is
the soil, his is also that which is above it, means only that if one owns a
portion of the earth's surface, one also owns anything below or above
that portion which is capable of being reduced into private ownership. In
ther words, a reasonable space above the surface of the land necessary
nd sufficient for the use and beneficial enjoyment of the land and all
(ii) The groun
ii) Possibly the column of space
question whether ownership of lan
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82
ached thereto is included
which a person can own. .
ace in its natural state
; . ; the surface in i - The
iv) All 1s, which are on or under th y
(iv) i ae Sw eae for example, minerals, natural ae OF Stones
lying loose upon the surface. Here again eae mone ines on
Ownership or use, The state may, by law, ans ae fe cu
any minerals, metals or precious stones, which li Hace of
even private property.
The question whether the owner of land enjoys an absolute right tg
Sround water beneath the surface of his land was raised in Perumaty
Grama Panchayat v State of Kerala.’ A multinational Company
manufacturing bottled drinks established a factory in Kerala. When the
Fenany started extracting a huge quantity of water from their propeny,
the neighbouring areas experienced an acute scarcity of water. The gramq
Panchayat, in exercise of powers under the Kerala Panchay;
te.”" According to the court, the
(¥) The last element is ay
+ , but physical attachment to
essential. Physi poy
emmanent annexation isnot sutfcy
t to i
of immovable propert wel
(2004) 1 KLT 731,
2. Hindustan Coca Cola Beverages (P) Lid y Perumatty Grama Panchay
, (2005) 2 KLT 554.
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Lecture 21) Property 283
Movable property or chattel cannot be precisely defined. It may be described as
any corporeal property, which is not immovable property or land.
Situs of Right
Generally a right has its situs or seat at the place where it is to be exercised or
enjoyed. Thus, rights over material things, such as land or buildings have the
same situation as the things themselves. The question is where is the situs of the
goodwill of a business situated? The answer is obviously, in the place where the
business is carried on, The situs of a debt is generally the place where the deblor
resides because it is to that place that the creditor must go if he wants to get his
money back.
English Common Law also makes a distinction between real and personal
property. Real property comprises all rights over and with such additions or
exceptions recognised by Common Law. All other proprietary rights are included
sn the law of personal property, which is identical to the law of movable property.
Leasehold rights are, however, treated in English Law as personal property
Now we will examine the meaning of the word ‘chattel’, which is frequently
used in English Law. Chattel refers to any movable physical object such as a
horse, a book, a watch, a coin, a chair etc. It also refers to incorporeal proprietary
rights such as debts, shares, contracts, patents, copyrights, and other rights in
rem, which are not rights over land, Chattel refers to personal property, whether
movable or immovable, as opposed to real property. English law considers
Teaseholds as chattel, though it may appear to be illogical.
Rights in Re Propriain Immaterial Things
Earlier the emphasis was on proprietary rights over material things. With the
advancements in science and technology the importance of the products of
human intellect is being increasingly recognised. The shift in emphasis to
proprietary rights over immaterial things is a result of this recognition. What we
vow call intellectual property rights are jurisprudentially rights in re propria in
immaterial things. These rights include patents, and copyrights. ‘The subject
matter of a patent is an invention. ‘The law recognises the right of a person whose
skill or labour produces the idea of a new process, instrument, or manufacture.
Copyrights exist in literary works, artistic works, including musical and dramatic
works, It has been extended to include computer programmes also.
Another class of rights in re propria in immaterial things consists of
commercial goodwill, trademarks, and trade names. A person who establishes a
business and acquires goodwill has ‘exclusive right to the goodwill. Trade names
and trademarks are also similarly protected by law. ‘These rights cannot only be
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284 lures in Jurisprudence Lecture
Lectures in Jurisprudence
aged, OF SOId OF otheryig
Gained and possessed, but can also be leased, mortgaged,
dealt with,
Rights in re aliena or Encumbrances
Rights in re aliena may be described as encumbrances or eas noth a
thing owned by another. The right must run with the thing oa raayeaes a
Words, it must bind the thing, no matter into. whose hands it a beret
instance, an easement binds the servient tenement, and a purchaser will be boung
inespective of whether he was aware of the eacement, Encumbrances are no,
Confined to real property, but may extend to personal property also.
‘There are many types of encumbrances. We will discuss only the three
types
of encumbrances, which are considered the most important.
Lease
A lease is an encumbrance, which consists in a right to the possession and use of
soine other person. There is a separation of possession frog
2
Zz
8
Zz
3
2
3
3
8
&
2
-
Possession,
| belonging to E for exclusive Poss:
is a lease. When A obj
itis an easement,
session
tains a mere right of WAY over B's land to go to A's land,
‘ Serie may be Private, oF public. A private servitude is one vested in a
| leterminate individual, as in th i i
| vested in the owner of one pices of nah a olny a Suppo
ve e er an adjoining pi .
| tight of fishing granted to one person ina angi (eee of land. The
|
|
Pond belonging to another is also a
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Lecture 21) Property 285,
private servitude. A public servitude is one vested in the public at large, or in
some class of indeterminate individual, for example, a right of the public to use
private land as a pathway, the right of the inhabitants of a locality to use a piece
of private land as a playground etc.
English law divides servitudes into two categories, viz., appurtenant, and in
gross. A servitude appurtenant is not merely an encumbrance of one piece of land,
but is also accessory to another piece. Itis a right of using one piece of land for the
benefit of another, for example, a right of way, or right to support by an adjacent
owner. The land, which is burdened with the servitude, is called the servient land or
tenement and the land, which has the benefit, is called the dominant land or
tenement. In this case, the servitude runs with each of the tenement into the hands
of successive owners or occupiers. Servitude in gross, on the other hand, is not
attached or accessory to any dominant tenement, for example, public right of way,
or navigation, or a private right of fishing, mining, etc.
Easement
Law and Indian Law
‘The term ‘servitude’ is peculiar to Roman law. Engli
ement is only one class
generally use the term ‘easement’. In the strict sense, eas
of servitude. It may be positive, or negative.
A positive easement enables the owner of the dominant tenement 10 do
something upon the servient tenement. A right of way is a positive easement. A
negative easement confers a right to restrain the commission of some acts on the
see jent tenement, The easement of sunlight is a negative easement, for it enables
its owner to restrain the servient owner from erecting any construction that would
materially obstruct the passage of sunlight coming to the building of the owner or
the easement.
Distinction between Easement and Licence
not being an easement, to do or continue to do upon the
other, with the permission of its owner, something that
i, but for such permission. The following are the
A licence is a right,
immovable property of an
would be an unlawful act
distinctions:
do or continue to do some positive act on
the immovable property of another. It is not, unlike an easement, a right to
prevent an owner of immovable property from doing something on his
land. Thus, while an ‘easement is both positive and negative in character, a
licence is always positive.
es . F igl reates no more than a personal
GA ane is pened EM ce An een om
igation between the if
me ha s aright, in rem available against the entire world.
() A licence is invariably a right (0
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Away,
attached t0 dominant tenement for the beneficial enjoymen OF which i.
intended, —
Gv) Being a personal ight, a licence is not assignable except jn Certain
it inant heritage,
circumstances, but an easement passes with the domi ig
() While a ticence is generally revocable at the nee ihe grant
“asement cannot be revoked at the will of the servi :
Security
or, an
© the purpose of which is to ensure or
A security is an encumbranc
fulfilimer Some other right vested in the same
facilitate the
‘nt or enjoyment of
Person. It jg
“sually, though not necessarily, connected with a debt.
TWo kinds of securities, viz, mortgages and liens, are generalh
istingui i Fight, which in its own nature formas a security for
he shadow cast
if the lienor has in
