Laws of Property Under Jurisprudence

By | June 5, 2018
Recovery of Possession of Property

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The term property is commonly used to define the objects which are owned. In other words, property denotes those things in which right of ownership can be expanded. The term property includes both living and non-living things. Lands, chattels, shares, and debts are included in the property.

In a wider sense, the term includes all those rights which a person has or can be exercised. For instances, right to life, personal liberty, reputation and all those rights which he can exercise against others. Hence, in its wider sense, it can be termed as all those things or material objects without which a person cannot live.

The term property has been described by various jurists as:-

SALMOND says that the law of property is the law of proprietary rights ‘right in rem’, the law of proprietary rights ‘in personam’ is distinguished from it as the law of obligations. According to this usage, a freehold or leasehold estate in land, or patent or copyright is included in property but debt or shares or benefit arising out of a contract is not property.

According to Salmond, property has been termed in a variety of senses:

  1. Legal Rights- It includes all those rights which a person is entitled by a way of law. All those material objects which a person owns as per the law are his legal rights. These are the rights which he can exercise over others. It includes a person’s personal as well as proprietary rights.
  1. Proprietary Rights- It does not include personal rights, it only include proprietary rights. It means that land, chattels, shares or debts are his property but his right to life and reputation are not included in his property.
  1. Corporeal Property- It only includes those property which real or which can be seen i.e. land, chattels, etc. It does not include shares or debts as property.

HOBBES AND BLACKSTONE are in favour of that property which is entitled by law, i.e. legal rights.

AUSTIN suggests that property is the greatest enjoyment which a person holds. According to him, property includes whole of assets whether personal or proprietary.

Kinds of Property

  • Corporeal
  • Incorporeal
Corporeal Property

It is also termed as tangible property. It is the right of ownership over material things. It includes only those things which are real and visible. Person who has the right to use a thing is called as the owner of the object and the object is called as property. It includes only material things, i.e. land, house, chattels, money, ornaments etc.

Corporeal Property can be divided into two;

  1. Movable and Immovable Property
  2. Real and Personal property
Movable and Immovable Property

A corporeal property can be movable or immovable.

Immovable property includes land, house, walls etc. It includes that property which cannot be moved from one place to another. Objects which are physically attached to the earth and permanently fastened to anything attached to the earth are termed as immovable property.

Whereas Movable property are those properties which can be easily moved from one place to another by the help of a person. It includes chattels, ornaments, etc.

Real and Personal Property

There is no such distinction between real and personal property. Real property means all rights over the land which is recognized by law. Whereas Personal property means all other proprietary rights whether right in rem or right in personam.

Incorporeal property

Incorporeal property is other proprietary rights which are right in rem and are not tangible and real.

Incorporeal Property can be divided into two;

  1. Jura in re aliena
  2. Jura in re propria
Jura in re aliena

They are called as encumbrances. It includes property, the ownership of which is in the hand of one person and it is used by other person.

It is categorized into following:

  1. Lease;
  2. Servitude;
  3. Securities;
  4. Trusts;
Right in re propria

Proprietary rights are of both materials as well as non-material things. Material things are the physical objects and non-material things are the rights attached to the things. Right in re propria is mainly over immaterial things. The person having right over the thing which he attains due to his skill and labour.

It is categorized into following:

  1. Patent
  2. Copyright
  3. Commercial Goodwill

Theories of Law of Property

Various theories have been provided by jurist from time to time to provide better explanation and recognition to the law of property. Such theories are both in support and against the law of property.

Following are the important theories of property.

  1. The Natural Law Theory

The Natural law theory is based on the principle that one who possesses the object is the owner of the property. It provides that when an ownerless thing is being possessed by someone then that person become the owner of the property. The reason is that the law recognized the property through its owner. This theory also gets recognized by law because the priority of the ownership of property is given to that person who is in the possession of the property.

This principle is supported by various jurists.

GROTIUS says that all the things were originally without an owner and whoever occupied them became the owner.

According to BLACKSTONE, the natural law theory provides that one who starts making use of a thing acquired an interest in that thing even for a short period or last long.

This theory has been criticized by some jurist also; HENRY MAINE says that it is erroneous to think that possession gives right over the title of the property.

Where BENTHAM says that property is not originated by the occupation of an ownerless thing, but it is the creation of law. He believes that property exist only when there is an existence of law.

  1. The Labor Theory

According to this theory, the person who has used his skills and labor to produce an object is the owner of that object because it is the result of his hard work. Though this theory is not recognized in modern times because there are many situations where one can acquire property from others by a way of will or contract. The labor theory is also called as the positive theory.

SPENCER supported this theory. He holds that property is the result of labor of an individual and one who has not put any labor to produce the property cannot acquire it.

  1. Metaphysical Theory

This theory was propounded by KANT and HEGEL. Both of them justified the theory but this theory was not recognized as it is not concerned with reality.

According to KANT, a thing rightfully belongs to someone when he is connected with it in such manner that when someone else uses it without consent, it causes damage to the owner also. He provides that as per this theory, there is physical connection between the owner and the object.

HEGEL holds that property is the objective manifestation of the personality of an individual. In other words, property is an object in which person has a right to direct his will.

  1. Historical Theory

This theory talks about private property and its slow and steady growth. This theory is propounded by BENTHAM and got support from HENRY MAINE. The growth of property has three distant stages.

First Stage- It provides that a tendency is developed among people to take things in natural possession and exercise it independently of the law of state.

Second Stage- This provides for juristic possession which means possession in fact and as well as in law.

Third Stage- This is based on the ownership of the property recognized by law. The law guarantees the owner of property exclusive right and control over the property.

  1. Psychological Theory

This theory provides that the property came into existence based on the tendency of a human being. Every one desires to own thing and to exercise control over them. BENTHAM has supported this theory and hold that property is a conception of mind. It is nothing but an expectation to own a property and make use of it to the fullest.

DEAN POUND also supported BENTHAM and asserted that the conception of property is the acquisitive instinct of an individual who desires to have control and possession over the property.

Modes of Acquisition of Property

There are various modes of acquisition of property. SALMOND has described four modes of acquisition of property.

  • Possession
  • Prescription
  • Agreement
  • Inheritance

Possession means physical control or acquisition of property by a person. Ownership of a property is based on the possession of the property. Possession is the prima facie evidence of ownership. For any proprietary matter, law gives first priority to a person who is in possession of the property.

There are many situations where a person is in the possession of the property but he is not the real owner of the property. The title of property belongs to someone else. The owner of the title of the property enjoys absolute right over the property. But the person having possession of the property does not have an absolute right, he has an only relative title.

According to SALMOND, a person having possession of a property enjoys a good title against the third person except for the true owner. The possessor is entitled to possession until getting evicted by the true owner by force of law. In such case, there are two owners, one have absolute title over the property while another one will have a relative title.

Armony vs. Delomine [(1722) Istr.504]

If the person is in adverse possession i.e. possessory owner is wrongfully deprived of the thing by a person other than the true owner, that person cannot take the defence of ‘jus tertii’ that the thing does not belong to the possessory owner either.


According to SALMOND, “prescription is the effect of lapse of time in creating and destroying right.”

It is of two kinds.

  1. Positive or acquisitive prescription
  2. Negative or extinctive prescription

Positive or acquisitive prescription

When the right over property is acquired by lapse of time, it is called positive prescription. For instance, when a person makes a continuous use of a well located in someone else land, he automatically acquired a right over the well as prescribed under the Indian Easement Act.

Negative or extinctive prescription

Negative prescription is when a person destroys his right by the effect of lapse of time. It occurs when the person’s right already exists. For instance, right to sue for the non- payment of debt is destroyed after a period of time.


Property can also be acquired by an agreement enforceable by law. A person having ownership of a property has a right to transfer the ownership of the property to another person with or without consideration.

According to PATON, agreement is an expression by two or more persons communicated to each other, of a common intention to affect the legal relation between them.

PATON follows that an agreement should fulfill four conditions:

  • There should be two or more parties.
  • Mutual consent of the parties.
  • It should be communicated.
  • There should be common intention to communicate a legal relationship.

Miller vs. Collins [(1896) I Ch. 573]

Property is to be treated as belonging of any person who is having custody and control of it or having any proprietary right or interest, not being an equitable interest arising only from an agreement to transfer or grant an interest or having a charge on it.


Another method of acquisition is inheritance. When a person dies, there are some of his rights which are transferred to his heirs and successors. Whereas there are some other rights also which cannot be transferred. The rights which can be transferred are called heritance or inheritable rights.

Proprietary rights are inheritable rights as it can be transferred after the death of its owner. But personal rights such as the right to life or reputation are not inheritable.

However, there are certain exceptions to it. Some proprietary rights are also not inheritable. For instance, lease for the life of lessee only or in the case of joint ownership.

In case of succession of proprietary rights, if a person has made a will then succession will take place according to the will. But if the person dies without making a will then succession will take place as per the law.


Property is a belonging of a person who acquired it either through his hard work or through succession or out of an agreement. Property can be treated as proprietary rights as well as personal rights. Every individual is entitled to personal as well as proprietary rights. The term property is explained in Jurisprudence by various eminent Jurists. Some jurists have supported the concept of the property while some are against it. The concept of property has a special significance in jurisprudence. As jurisprudence also provides a description of other proprietary rights based on the property.

Anusha Vijayvargiya

New Law College, BVDU, Pune


  • An Introduction to Jurisprudence- B.N.M. Tripathi
  • Studies in Jurisprudence and legal theory- Dr. N.V. Paranjape

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