Modes of Acquisition of Ownership.
Submitted by:
Submitted to:
Parneet Kaur Saroy
Dr.Ajay Ranga
Roll no.55/13, Section: A B.A LL.B(HONS.) II SEM.
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INDEX Sr.no. 1. 2. 3. 4. 5.
6.
7.
Topic Acknowledgement Acknowledgement Ownership Introduction: Modes of Acquisition Ancient Hindu Modes Ancient Western Law 5.1 Occupation 5.2 Finding of treasure troves 5.3 Conquest by war 5.4 Accession Modern Law 6.1 Original acquisition 6.1.1 Absolute 6.1.1.1 Occupatio 6.1.1.2 Specificatio 6.1.2 Accessory 6.1.3 Extinctive 6.2 Derivative acquisition Bibliography
Page no. 3 4 5 6 7 7 7 9 9 10 10 10 10 11 11 11 12 13
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ACKNOWLEDGEMENT I take this opportunity to express my profound gratitude and deep regards to my guide Dr.Ajay Ranga for his exemplary guidance, monitoring and constant encouragement throughout the course of this thesis. The blessing, help and guidance given by him time to time shall carry me a long way in the journey of life on which I am about to embark. Lastly, I thank almighty, my parents, brother, sisters and friends for their constant encouragement encouragement without which this assignment would not be possible . I am grateful for their cooperation during the period of my assignment.
Parneet Kaur Saroy.
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Ownership Ownership is a complex juristic concept which has its origin in the ancient Roman law. Perhaps of all of the rights, right to ownership is the most important right . The earliest legal systems did not recognise the distinction between ownership and possession. It was with the advancement of civilization that the two were considered as separate and distinct concepts. In roman law ownership and possession were respectively termed as „dominium‟ and possessio‟. „ The term dominium denotes absolute right to a thing while possessio while possessio implied only physical control over it.
In the legal sense the term ownership carries the connotation of right over a thing to the exclusion of all other persons. This implies non-interference by others in the exercise of this right and must be distinguished from mere holding of a thing in one‟s possession.
i. ii.
Dr. N.V Paranjape(2013) “ Studies in Jurisprudence and Legal heory” , at/page -410 T heory” -410 Prof.Nomita Aggarwal(2010)”J urisprudence(legal urisprudence(legal theory)”, at/page-231
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Modes of acquiring ownership The acquisition of ownership may take place either in respect of a thing which had no previous owner or in respect of a thing which had a previous owner. If the thing had not a previous owner, then the ownership of one person is transferred to another. If it had a previous owner, then a new ownership is created. Thus, a bird in the air would belong to one who shoots it and take possession of it. However, in case of a house owned by a person, the ownership can be transferred to another person in accordance with the provisions of the law.
iii. supranote ii page-242
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Ancient Hindu modes of Acquisition of Ownership. Ancient Hindu jurists have said much about the means of acquiring ownership. Manu declared that, there are seven virtuous means of acquisition of wealth, viz., inheritance ,gain ,purchase ,conquest, application(of wealth),employment of work of and acceptance of gifts from proper persons. Gautama gives almost the same seven ways of acquiring ownership but he put some modifications to the list given by Manu. For him him ownership arises from succession ,purchase , partition ,occupation of unappropriated unappropriated property and and finding of the hidden treasure or the like, to which may be added acceptance of gifts in the case of Brahamans, conquest in the case of Vaisyas and wages of labour in the case of sudras. Narada enters into a little more details and says that there are twelve different modes of acquiring wealth of which three are general (i.e., ( i.e., open open to all castes) and the rest are peculiar to several castes. These specific modes of acquiring wealth are proper for several castes and any contravention is reprehensible unless forced by pressing necessity.
iv. v.
Supranote iii Id (243)
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Ancient Western Law Following were the modes of acquisition of ownership under ancient western law:a) Occupation:- Under Roman Roman law the term “occupacio” connoted connoted that for the acquisition of ownership of or hunted animals, it was immaterial to see whether a man took wild beast or birds upon his own ground or that of another. But English law did not ascribe ownership to a trespasser who killed game on another person land. Under Hindu law the term „occupacio‟ was known as „Parigraha‟ which means appropriation and is explained in the Viramitrodya as signifying the appropriation of previously unappointed property such as straw, water, logs of wood, etc. , the ownership of any particular individual. b) Finding of treasure troves :- Under Roman law, if any treasure was found by the owner of o f the land where it lay concealed ,he could keep the whole of it, if it is found by another person then the finder and the owner of the land take it with equal distribution.
vi.
Supranote ii page-243
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Under English law neither the finder, nor the owner of the land had any interest in it but it belonged entirely to the crown. Non-disclosure of it was regarded as an offence. The Hindu law relating to treasure troves has been described by Yajnavalkya. He said that if the king discovers the treasure troves , then he will take half and distribute the other half among Brahmans, if a learned Brahman finds it, then he may keep the whole himself in other cases the king will give one-sixth to the finder and take the rest himself but if the finder does not bring the fact to the notice of the king then he will, on coming to know of it extract the whole and also punish the finder. To this Mitakshara adds, on the authority of Manu, that even in such a case if the real owner comes forward and establishes his title, the king will restore the treasure to him after retaining onesixth or one-twelfth for himself, or according to Nilakantha one-fourth for himself and one-twelfth for the finder.
vii.
Supranote ii page-244
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C) Conquest by war:- According to Roman and English law the property of the enemy was regarded as res nullius so the victorious party could deal with it in any way they liked. Even the property of private individuals in the conquered country could be freely disposed of by the conquering state and tOo private rights can be set up against it. Hindu law did not recognise this rule. Under Hindu law conquest is an independent source of acquisition of ownership. According to it conquest did not take away all the private rights- the only o nly effect was to invest the victorious kings with all the rights which defeated king had- so the former might claim full ownership of the property of the latter but his right so far property of the subjects were concerned did not extend to anything more than to collect revenue from them. D) Accession :- Accession or application of already existing property was a mode of acquiring ownership, which was known both under roman and English law. Thus, if a field produces crops or a domestic animal bears offspring, the produce in each e ach case belongs to the owner of the field or the animal unless there has been some previous agreement modifying the general rule. This rule was known as Proyago under Hindu law. Thus, according to Hindu law, if a river which flows between two villages and forms the boundary between them encroaches upon one bank and attaches newly formed land to another then the owner of the bank on which the formation takes place becomes entitled to it as an accretion to his property.
viii. Supranote ii page-244
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Modern law Under modern law there are the following modes of acquiring ownership which may be broadly classed under two heads, viz.,heads, viz.,-
a cquisition::- This mode of acquisition of ownership 1. Original acquisition is said to have taken place, when ownership is acquired by reason of some act or event. It is of three types, viz., absolute, accessory and extinctive. a) Absolute:- When things are acquired which have not or have never had an owner res nullius(who took it first became the owner) . Romans termed them as cases of absolute original acquisition. This type of ownership acquired in two ways: If a thing is without owner, anyone is at liberty to Occupatio:- If take and keep it : he makes it his own by the very act of taking possession. The real interest, however, which attaches to acquisition of ownership by occupation of a res nullius is not in connection with its modern application, which is rare, but in connections with the origin of ownership. Until recently it was almost always assumed that the acquisition of ownership by occupancy so simple, so obvious and so universal, as to be deemed natural, and that it was, in fact, original mode of acquiring all ownership. That assumption is not now accepted. Nevertheless occupancy and ownership are historically connected and the history of that connection is not without its significance in modern controversies. ix.
S.P Dwivedi(2003) “Jur isprudence heory” isprudence and Legal T heory” at/page-231
x.
Id 233
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Specificatio- Original acquisition of ownership may also be by which means a person by working up on material specification which belonging to another makes a new thing. For example, if a sculptor makes a statue from the clay belonging to another, he becomes the original owner of that statue. b) Accessory- This is an example of original acquisition. In this type of acquisition , ownership was often occasioned by a union or mixture of things which belonged to two different persons. To this type of acquisition of ownership, the Romans gave the name of accession . The ancient Indian jurists, like Manu, used the term Prayog , which means acquiring by accession. Examples are produce of land or animals or fruits of trees. c) Extinctive- When ownership is acquired by a person by some act on his part, which destroys the title of the previous owner, it is called extinctive acquisition. There may be acquisitive prescription in which, after the expiration of the necessary period, the law gives to the adverse possessor a full legal title. In India, I ndia, adverse possession by a person of the land of another for 12 years extinguishes the ownership of the previous owner and the person having such adverse possession becomes the owner.
xi. Supranote-i at/page-427 xii. Supranote-ix at/page-234 xiii. Id 235
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2. Derivative acquisition- A person is said to acquire derivatively when he accepts a conveyance of title from a previous owner. This type of mode may include the acquisition of ownership by inheritance-intestate and testamentary, and transfer inter-vivos – purchase, purchase, acceptance of gist etc. in every legal system, there are certain rules and formalities which regulate and govern this mode of acquisition of ownership. In modern times, these rules and formalities to be compiled with for the transfer and acquisition of ownership (in case of derivative acquisition) are laid down in various statutes. In India, however, these formalities may be found in the transfer of Property Act, 1882(for the transfer of immovable property), Partnership Act,1932(for the transfer of firm property), The Companies Act, 1956(for the transfer of company property), property), Registration Registration Act,1908, and many other acts. Acquisition of ownership of different types of property can be deemed to be complete and effective only when the formalities laid down therein are complied with accordingly. For example, when a gift of an immovable property is made, the transfer must be affected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. In case of a gift of movable property, transfer may be effected either by a registered instrument signed as aforesaid or by delivery of possession. xiv. Supranote-ix at/page-235
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Bibliography
Paranjape, Dr.N.V, Studies in Jurisprudence and Legal Theory, Central Law Agency,2013.
Aggarwal, Prof.Nomita, Jurisprudence (Legal Theory), Central Law Publications, 2010.
Dwivedi,S.P, Jurisprudence Jurisprudence and Legal Theory, Central Law Publications, Allahabad, 2003.
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