Property And Kinds Of Property

PROPERTY :

• The property is derived from the Latin term ‘properietat’ and the French equivalent ‘proprius’Which means a thing owned.
• The concept of property and ownership are very closely related to each other. There can be no property without ownership and no ownership without property.
• Theories of property :

1. Natural law theory [The theory of occupancy]:

• According to this theory, the property was first acquired by the occupation of an ownerless object as a result of individual labor.
• This theory is based on the principle of acquiring property i.e. res nullius means a thing which has no owner.
• The finder of goods becomes the owner.
• CRITICISM :

According to Bentham property has not originated by the first occupation of an ownerless thing, but it is a creation of law.

2. Labour Theory :[positive theory]:

According to this theory, a thing is the property of the person who produces it or brings it into existence.

• Criticism:

According to LASKI labor does not produce property, it is only a means to earn property.

3. State creation theory:

• According to this theory, the property is a creation of the state and achieved only after a long struggle with the clan.
• JENKS observed that property and law were born together and would die together.

4. Historical Theory:

• According to HENRY MAINE, in the beginning, the land was collectively owned by the community. Private or individual ownership is a later development.

5. Psychological Theory :

According to this theory, the property came into existence on account of the acquisitive tendency of human beings.

6. Functional theory:

The functional theory considers property as a social interest for promoting general security and protection of individual interest in personality, domestic relations and in subsistence.

Kinds of property :

1. Corporeal Property:

• Corporeal property is some material or thing.
• Ex: land, house, money, etc.
• Also known as tangible property.

2. Incorporeal Property :

• It means intangible property.
• The existence of incorporated property is neither visible nor tangible.
• Ex: copyright, patent, trademark, etc.

• Jura in re Aliena :
• Also known as encumbrances.
• Jura in re Aliena means right over other property.
• These are the right in rem over the thing owned by another.
• It includes a lease, securities, etc.

• Jura in Re propria :
• Jura in re propria means right over the property.
• These are rights of ownership in one’s own property as are not exercised over material objects.
• It includes trademark, patent, copyright.
• Modes of Acquisition of Property:

1. Possession :

• When the property which belongs to no one i.e. res nullius, belongs to the first possessor of it and he acquires a valid title to it as against the world.

EX: fish of the sea.

2. Perscription :

• Prescription is a mode of acquisition of property by operation of law.
• It is the effect of the passage of time.

3. Agreement :

• Property may also be acquired by agreement which is enforceable by law.
• The agreement has followed four essential elements:

1. There should be two or more parties.
2. Mutual consent.
3. It should be communicated.
4. There should be a common intention to affect the legal relationship.

4. Inheritance :

• This can be of the form of testamentary succession.

• Modes in which property may be divested :
• By contract
• By gift
• By acquisition by the govt. under the law.
• By giving to trust.
• By operation of law.
• Death, insolvency.