In the previous article, we have studied the meaning of the term “ownership”. In this article, we shall study the characteristics of ownership. According to Salmond, ownership denotes a relation between a person and an object forming the subject-matter of his ownership. It consists of complex of rights, all of which are rights in rem, being good against all the world, and not merely against some persons. Thus according to Salmond ownership vests in the complex of rights which he exercises to the exclusive of all others.
In Salmond’s view, ownership exhibits the following incidents:-
- An owner shall have a right to possess the thing which he owns. He may, however, not be necessarily in actual possession of it;
- He has normally the right to use and enjoy the thing owned;
- The owner has a right to consume, destroy or alienate the thing;
- Ownership has the characteristic of being indeterminate in duration;
- The owner has a residuary character.
Characteristics of Ownership:
The characteristics of ownership can be obtained from Salmond’s analysis:
Right of Possession:
The owner has a right to possess the thing he owns. It is immaterial whether he is in possession of the thing. The thing might have been stolen, it might have been given temporarily on hire, it might have been pawned, mortgaged or leased, etc. But in all these cases the owner still has an interest in the thing and a right to repossession or termination of the impediment. In some cases, he can institute suits to protect damage to his reversionary right. For example, A’s car is stolen by B, then B has the actual possession of the car but ownership remains with A. X has mortgaged his land with Y. Now Y has the possession of the land but X has the ownership of the land. X can claim possession from Y by repaying the loan for which the mortgage is made in prescribed in the time period. If Y fails to give possession back to X, even after satisfying all the conditions of the mortgage, then X can sue Y in the Court of law.
Rights of Use and of Enjoyment:
Normally the owner has the right to use and enjoy the things as he likes. According to Salmond, these are liberties to use and enjoy the owned thing. He is under no duty not to use it but every other being is under a duty not to use it or interfere with it. But the owner can be restricted by agreements or by operation of law, such as:-
- The owner of a thing cannot be allowed to use the thing in a manner which is injurious to others. This is expressed by the maxim, “sic utere tuo, ut alie-num non laedas” which means “so use your property as not to injure your neighbours’’
- The ownership may be subject to encumbrance in favour of others in which case the power of the user of the owner is curtailed by the rights of the encumbrance.
- The state officials have a right to enter the owner’s premises in pursuance of a warrant issued by a court or for any lawful purpose.
Right of Disposition:
The right of disposition implies the right of consumption, exhaustion, alteration, destruction or alienation of property. The owner has a right to consume and exhaust the thing when using it. Similarly, the owner has the right to alienate or destroy the thing over which he has ownership. Thus a man can effectively dispose of his property by a conveyance during his lifetime or by will after his death. A maxim nemo dat quod non habet meaning he who has not can give not applies here. Thus a person having possession but not ownership cannot transfer the right of ownership. However, there are well-recognized exceptions to this rule to be found in the Indian Contract act and in Sale of Goods Act.
The owner can be restricted by agreements or by operation of law, such as:-
- The owner of a thing cannot be allowed to dispose off the thing in a manner which is injurious to others. This is expressed by the maxim, “sic utere tuo, ut alie-num non laedas” which means “so use your property as not to injure your neighbours’’
- The ownership may be subject to encumbrance in favour of others in which case the power of the disposition of the owner is curtailed by the rights of the encumbrance.
- Legal restrictions may hamper the unrestricted disposition of the property.
- An owner of the property is not allowed to dispose of the same with a view to defect or delay his creditors.
- There are certain disabilities imposed on infants and lunatics with regard to the disposal of property.
Indeterminate Duration:
Ownership has the characteristic of being indeterminate in duration. All other non-owners in possession have interests which are determinable at a point of time “e.g. interest of a bailee or lessee comes to an end when the period of hire or lease comes to a close” owner’s interest is not determined even by his death, the property descending by either rule of inheritance of conditions of will. The right shall exist so long as the owner and the thing exists. It is a perpetual interest which shall devolve upon the heirs of the owner after his death, but the right shall not be extinguished.
The abolition of Zamindari system India, the abolition of privy purses, nationalization of Bank etc. are some example of the fact that the ownership can be cut short by the state for a public purpose and its duration is not unlimited.
Residuary Nature:
Ownership has a residuary character in the sense that even after all the lesser rights, e.g. lease, easements, etc. have been given away the residuary rights vest in the owner. On determination or extinction of the lesser rights, they revive all original rights in the owner. For instance, if a land-owner gives a lease of his property to A, an easement to B and a right of profit to C, then his ownership shall consist of the residual rights.