Critical Examine the concept of ownership.
Salmond defined ownership as, Ownership denotes relation between a person and an object forming the subject matter of his ownership. It consist in a complex of right, all of which are right in rem, being good against all the world, and not merely against some persons.
Ownership is the relation between a person and any right that is vested in him/her. That which a person owns is, in call cases, a right. When one speaks of the ownership of a material object, this is merely a convenient and conventional figure of speech. To own a piece of land means, in law, to own a particular kind of right in the land. The concept of ownership consists of a number of claims such as liberty, power and immunity in regard to the thing owned. Ownership is thus a sum-total of possession, disposition and destruction which includes the right to enjoy property by the owner. The concept of ownership is of both legal and social interest. Ownership as an absolute right in English Law evolved through the developments in the law of possession, according to Holdsworth and the term ‘ownership’ was first used in English Law in 1583.
Ownership is essential because of many reasons such as:
1. Right of possession: The owner has the right to possession for the thing he owns. However, its immaterial whether he is in possession of the thing. The owner has the interest in the property even though he may or may not be present physically.
2. Right to use and enjoyment: According to Salmond, this right can be used when there is something he has owned, but there ownership maybe subject to hindrance in favor of others, in that case the power maybe curtailed by the rights of encumbrance.
3. Right to disposition: 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 and have restriction on the operation of law.
4. 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.
5. Right to destroy or alienate: A man can effectively dispose of his property by a conveyance during his life-time or by will after his death. This is a general right, thought in some cases, such a right may be restricted by law.
Ownership can be of different types such as:
1. Corporeal and Incorporeal Ownership – Corporeal ownership is the ownership of material object. It is the ownership of tangible things which can be perceived by the senses. For example, ownership of house, factory etc. Incorporeal ownership is the ownership of a right. It is the ownership of intangible things which cannot be perceived by the senses.
For example, ownership of shares, trademark etc.
2. Trust and Beneficial Ownership – The ownership of the trustee is trust ownership. In the eyes of law, the trustee is the representative of the beneficiary and has no right of enjoyment of the trust property. The ownership of the beneficiary is the beneficial ownership. Although in the eyes of law trustee is the owner but between the trustee and beneficiary the latter is the owner of the trust property.
For example, a property is given to A on trust for B then A is trustee and B is beneficiary. A has trust ownership, the legal owner in the eyes of law who is obligated to use the trust property for the benefit of B who has beneficial ownership.
3. Legal and Equitable Ownership – Legal ownership has its origin in the rules of common law. This is a right in rem as it can be enforced against the whole world. Equitable ownership has its origin in the laws of equity. This ownership is a right in personam as it can be enforced against a particular person. This ownership is recognized even when there is a legal defect.
4. Vested and Contingent Ownership – Vested ownership means where the title of the owner is already perfect. In this the ownership is absolute. The donee can although transfer the said property after the death of the donor. Contingent ownership implies that the ownership is not absolute but conditional. The ownership is imperfect and becomes absolute and perfect only on fulfillment of some condition.
5. Sole Ownership and Co-ownership – Sole ownership is when only one person has the whole and sole right in a property and no one else can claim any right whatsoever over the property in question. Co-ownership is when more than one person has a right that is the undivided and vested in all of them at the same time. The parties do not separately own a part but co-owners of the same property.
6. Co-ownership and Joint Ownership – Co-ownership the property in question is commonly owned by both the parties and on demise of one party the heirs of that party would inherit part of it. For example, A and B are in a coownership. On death of A, A’s heirs will get half of the property. Joint ownership is when a property is jointly owned by parties and on the death of one party the ownership dies with him and cannot be inherited.
7. Absolute and Limited Ownership – Absolute ownership means that except the owner in whom all the rights are vested there are no other person who can claim any right over that property. But there may be legal or contractual restrictions upon the usage of the said property. Limited ownership means in the ownership there are limitations on the rights of usage, duration or disposal of the property.
For example, before 1956 a Hindu woman had only limited ownership over a property and after her demise the property would be inherited by the heirs of the last holder.
In conclusion the ownership is protected right by the Constitution. Ownership in its nature is residual and can be said to have a bundle of rights attached to it. Throughout the years the concept of ownership and possession has evolved and has impacted society and even society has impacted its definition, meaning, scope and understanding. Ownership may mean different things to different people but what does not change is the fact that along with the rights attached comes liability, obligations, duties toward others and society in general