Modes Of Acquisition Of Property- Jurisprudence.docx

INTRODUCTION Property has a very wider meaning in its real sense. It not only includes money and other tangible things of value, but also includes any intangible right considered as a source or element of income or wealth. The right and interest which a man has in lands and chattels to the exclusion of others. It is the right to enjoy and to dispose of certain things in the most absolute manner as he pleases, provided he makes no use of them prohibited by law. Property may be divided into corporeal and incorporeal. The former comprehends such property as is perceptible to the senses, as lands, houses, goods, merchandise and ; the latter consists

in

legal

rights,

as

chooses

in

action,

easements,

and

the

like.

It is proper to observe that in some cases, the moment that the owner loses his possession, he also loses his property or right in the thing: animals ferae naturae, belong to the owner only while he retains the possession of them. But, in general,' the loss of possession does not impair the right of property, for the owner may recover it within a certain time allowed by law. The sea, the air, and the like, cannot be appropriated; every one may enjoy them, but no one has any exclusive right in them. When things are fully our own, or when all others are excluded from meddling with them, or from interfering about them, it is plain that no person besides the proprietor, who has this exclusive right, can have any claim either to use them, or to hinder him from disposing of them as he pleases; so that property, considered as an exclusive right to things, contains not only a right to use those things, but a right to dispose of them, either by exchanging them for other things, or by giving them away to any other person,

without

any

consideration,

or

even

throwing

them

There are four modes of acquisition of property which are of primary importance1.) Possession 2.) Prescription 3.) Agreement, and 4.) Inheritance.

away.

DEFINITIONS OF THE TERM PROPERTY

There are some Traditional principles related to property rights which includes include: 1. Control over the use of the property. 2. Right to take any benefit from the property. 3. Right to transfer or sell the property. 4. Right to exclude others from the property.

There are different definitions given in different act as per there uses and needs. But in the most important act which exclusively talks about the property and rights related to property transfer of property act 1882 no definite definition of the term property is there. But it is defined in some other act as per their use and need. Those definitions are as follows:

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as: “Property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.

Section 2 (11) of the Sale of Good Act, 1930 defines property as: “Property” means the general property in goods, and not merely a special property.

KINDS OF PROPERTY

Property may divided into:1.) Movable and Immovable property 2.) Tangible and Intangible property

1.) Movable and Immovable property

Movable property The definition of movable property is given differently in many acts. Some of the definitions are as follows:

Section 3 (36) of the General Clauses Act defines movable property as:

'Movable property shall mean property of every description, except immovable property."

Section 2 (9) of the Registration Act, 1908 defines property as:

'Movable property' includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property."

Section 22 of IPC defines property as: The words “movable property” is intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything, which is attached to the earth.

Things attached to the land may become movable property by severance from the earth, for example Cart–loaded of earth, or stones quarried and carried away from the land become movable property.

Immovable property

The Term "Immovable Property" occurs in various Central Acts. However none of those Acts conclusively define this term. The most important act which deals with immovable property is the Transfer of Property. i. According to Section 3 of that Act, "Immovable Property" does not include standing timber, growing crops or grass. Thus, the term is defined in the Act by excluding certain things. "Buildings" constitute immovable property and machinery, if embedded in the building for the beneficial use thereof, must be deemed to be a part of the building and the land on which the building is situated.

ii. As per Section 3(26) of the General Clauses Act 1897, "immovable property" "shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth". This definition of immovable property is also not exhaustive;

iii. Section 2(6) of The Registration Act,1908 defines "Immovable Property" as under:

"Immovable Property includes land, building, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth but not standing timber, growing crops nor grass". iv. As per Section 269UA(d) of the Income Tax Act, 1961, Immovable Property is defined as-

a.) Any land or any building or part of a building, and includes, where any land or any building or part of a building is to be transferred together with any machinery, plant, furniture, fittings or other things, such machinery, plant, furniture, fittings and other things also.

b.) Any rights in or with respect to any land or any building or part of building (whether or not including any machinery, plant, furniture, fittings or other things therein) which has been constructed or which is to be constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, or other association of persons or by way of any agreement or any arrangement of whatever nature, not being a transaction by way of sale, exchange or lease of such land, building or part of a building.

The following have been held as immovable property.

A right to collect rent, life interest in the income of the immovable property, right of way, a ferry, fishery, a lease of land.

Tangible and Intangible property:

Tangible property

Tangible property refers to any type of property that can generally be moved (i.e., it is not attached to real property or land), touched or felt. These generally include items such as furniture,

clothing,

jewellery,

art,

writings,

or

household

goods.

Intangible property

Intangible property refers to personal property that cannot actually be moved, touched or felt, but instead represents something of value such as negotiable instruments, securities, service (economics),

and

intangible

assets

including

chose

in

action

POSSESSION AND OWNERSHIP

Possession is the control and domain over a property. In particular, the term 'actual possession' refers to physical control. On the other hand, the term 'constructive possession' excludes the physical control and dominion over a property and refers to intention of exercising control over a property and the legitimate power of exercising control over the same.

Therefore, though it may seem as name of an actual condition, possession may as well be a term that indicates the legal situation (legitimate power) rather than the actual situation. In any event, possession of a property requires (1) Having actual or legitimate power to exercise control over a property, and (2) Intention to exercise the control over the property.

Ownership is not really a technically legal term. It refers to own a property, regardless of having a legal right or an actual control.

OWNERSHIP AND TITLE

Unlike ownership, the term title is a technically legal term that refers to a legal, legitimate right. It is a legally recognized ownership, by which one can exercise possession or property rights.

Modes of Acquisition of property There are four modes of acquisition of property which are of primary importance1.) Possession 2.) Prescription 3.) Agreement, and 4.) Inheritance. These four important modes of the acquisition of property may be put into two classes:A.) Acquisition inter vivos- it includes possession, prescription and agreement.

1.) Possession

According to salmond, ‘the possession of a material object is a title to the ownership of it. He who claims a chattel or a piece of land as his, and makes good his claim in fact by way of possession, makes it good in law also by way of ownership.’ By possessing a material object, the owner may acquire a legal title to it in two ways, by occupation or by possessory ownership.

a.) By Occupation When possession of any property is taken by the claimant which is not the property of any one, (in the Roman language it is called res nullius) the possessor acquires a title good against the entire world. This mode of acquisition is known occupatio or occupation in Roman law. Res nullius means a thing which does not belong to anyone and they are the things that cannot be possessed exclusively by anybody, eg, fishes in sea.

Occupatio is the taking possession of a Res nullius with a view to owning it. For example, ownership over the wild animals could be acquired by capturing them and the property of enemies taken in war, etc.

b.) By Possessory Ownership In this mode, the thing of which possession is taken may be already the property of someone else. In this case the title acquired by possession is good against third persons, but is of no validity at all against the true owner.

2.) Prescription

Salmond defined prescription as ‘the effect of lapse of time in creating and destroying rights; it is the operation of time as a vestive fact’. It is of two types:a.) Positive or Acquisitive prescription- When the right is created by lapse of time, it is called the positive prescription. For example, the acquisition of right of way by use of it for a prescribed period (in India according to the Easements Act this period is 20 years) is a positive prescription. b.) Negative or Extensive prescription- When a right already existing is destroyed due to its non-exercise for a prescribed period, it is called negative prescription. For example, the right to sue for a debt is destroyed after a prescription period (in India it is 3 years). Thus, it is a case of negative prescription. The prescription is based on a conclusive person who is not in possession or is not exercising his rights. The positive prescription is generally based on the ground of possession. Therefore it would apply on those objects only which admit of possession. The negative prescription would applied to property and obligations both. The negative prescription is of two kinds:1.) Perfect- the perfect negative prescription is that in which the principal right itself is destroyed. 2.) Imperfect- in imperfect negative prescription only the right of action is destroyed and not the principal right itself, as in case of debt, if the creditor does not exercise his right of action within a prescribed period, he loses his right of action but the principal right that is, right to debt remains unimpaired. Section 25 of the Limitation Act 1963 lays down that:- Acquisition of easement by prescription (1) Where the access and use of light or air to and for any building have been peaceable enjoyed there with as an easement, and as of right, without interruption and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to

such access and use of light or air, way, watercourse, use of other easement shall be absolute and indefeasible. (2) Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein claim to which such period relates is contested. (3) Where property over which a right is claimed under sub-section (1) belongs to the Government that sub-section shall be read as if for the words "twenty years" the words "thirty years" were substituted. Explanation - Nothing is an interruption within the meaning of the section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.

Section 26 of the Limitation Act 1963 lays down the law as to acquisition of easements by prescription as followsWhere any land or water upon, over or from, which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or in terms of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the period of twenty years in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled on such determination to the said land or water.

3.) Agreement Another important mode of acquisition of property is agreement. In agreement a title is acquired with the consent of the previous owner. According to Paton, agreement is an expression by two or more persons communicated to each other, of a common intention to affect the legal relations between them. It, therefore, follows that an agreement has four essential elements, namelya.) It being a bilateral act, there should be two or more parties to an agreement; b.) Mutual consent of parties; c.) It should be communicated; and d.) There should be common intention to affect legal relationship. Agreement is of two kinds- Assignment and Grant Assignment By assignment existing rights are transferred from one owner to another, for example, assignment of a subsisting leasehold property from assignor to assignee. Grant By grant new rights are created by way of encumbrances on the existing rights, for example, grant of a lease of land is the creation of agreement between grantor and grantee. Agreements may be formal or informal. When agreement is formal all the formalities prescribed by the law should be fulfilled like that it should be written, attested and registered etc. Informal agreements are verbal and they do not require any formality to be fulfilled. A fundamental principle of Roman law was that in the voluntary transfer of dominium tradition must be present. This means that alienation made during the lifetime of persons should not be merely by an agreement between the parties but there should be delivery of possession too. English law, until the year 1845 conveyance of land was not possible without the delivery of possession and no deed of conveyance could be effective without the delivery of possession. But in actual practice, the rule was evaded for countries by taking advantage of fictitious delivery of possession under the statute of uses. The statute of the year 1845, however,

modified this rule and now the ownership of land can be legally transferred without the possession of it. According to Salmond, it is a leading principle of law that the title of a grantee or assignee cannot be better than that of his grantor or assignor. Nemo plus juris ad alium transferee potest, quam ispe haberet is the maxim which means that no man can transfer or encumber a right which is not his. To this rule, there are many exceptions. The rule is ancient but most of the exceptions are modern. These exceptions are of two kinds1.) Those due to the separation of legal from equitable ownership. In the case of a trust, the legal ownership is with the trustee and the equitable ownership is that of the beneficiary. The trustee holds the property on behalf of the beneficiary, and not for himself, and therefore, the obligation of this trusteeship is an encumbrance upon his title. If the trust property is sold to a bonafide purchaser for value and without notice, he shall acquire a better title to the property so purchased. We can say that if the third person (bonafide purchaser) purchases the trust property for value and without the knowledge of the existing trust, he shall acquire better title than the trustee according to the equitable doctrine of purchase for value without notice. 2.) The second class of exceptions to the general principle includes the cases in which the possession of the thing is in one person and the ownership of it in another. In certain cases, the possessor is enabled to give a good title to one who deals with him in good faith believing him to be the owner. In these cases, law allows people to act on presumption that the possessor of the thing is owner of it and he who honestly acts on this presumption will acquire a valid title in all events. Example can be taken of negotiable instruments. A possessor of a bank-note may have no title to it because he may have found it or may have stolen it but he can give a good title to anyone who takes it from him for value and in good faith. Similarly, mercantile agents, in possession of goods belonging to their principals, can effectively transfer the ownership of them whenever they are authorised to sell those goods or not.

B.) Succession on death

4.) Inheritance On the death of a person, his property devolves upon his legal representatives. It is considered to be a continuation of the personality of the deceased because in law his representatives are identified with him. However, all the rights of the deceased do not devolve upon his representatives. With very few exceptions, it is the proprietary right of the deceased that devolves. With very few exceptions the personal right extinguish with the death of the deceased. As the proprietary rights of the deceased survive him and devolve upon his legal representative, the debts and other obligations of the deceased also survive him and the property left by him in the hands of his representatives is liable for the payment of such debts and discharge of the obligations. The devolution takes place in two ways:a.) intestate succession- in intestate succession the property devolves according to the law, or custom by which the deceased is governed. The person on whom the property devolves are called the heirs of the deceased. Heirs are always prescribed by law, or custom. The principles on which the heirs have been prescribed are different in different societies. b.) testamentary succession- by testamentary succession we mean that the law empowers a person to determine during his life-time the disposition of the property which he leaves behind him after his death. The law respects the will of the deceased of his property in this way is said to have made a ‘will’. The devolution of property according to the direction given in the will is said to be testamentary succession. In the absence of the heirs of the deceased, his property shall go to the state.

RESTRICTIONS UPON POWER OF DISPOSAL

There are certain restrictions, however, on the power of a person to make a will:1.) Limitations of Time The directions of a testator as to the disposition of his property are held valid only for a limited period after his death. According to the transfer of property act 1882, in India, the property cannot be vested by the testator beyond the period of his life time plus eighteen years thereafter. He must so order the destination of his estate that within this period the whole of it shall become vested absolutely in some one or more persons, free from all testamentary conditions and restrictions. 2.) Limitation of Amount A second limitation imposed by most legal system is that a testator can deal with a certain proportion of his estate only, the residue being allotted by the law to those whom he owes a duty of support, namely, his wife and children. Hindu Law permits a person only the disposition of his self-acquired property while his ancestral property shall devolve on the heirs according to the rules of Hindu Succession Act 1956. Muslim Law says that no Muslim can bequeath more than one-third of the surplus estate after providing for his funeral expenses and payment of debts unless his heirs consent to the same. 3.) Limitation of Purpose The power of testamentary disposition is given to a man that he may use it for the benefit of other men who survive him; and to this end only it can be validly exercised. No person can validly leave any direction in the will which is against public-interest, nor can he withdraw the property from the use of the living persons. In Brown v Burdett, a testator left a direction in his will that all his money be buried in the grave along with his dead body or thrown into the sea, so that his estate or land shall lie waste after his death. Such a testamentary disposition was held to be wholly void.

CONTENTS INTRODUCTION DEFINITIONS OF THE TERM PROPERTY KINDS OF PROPERTY POSSESSION AND OWNERSHIP OWNERSHIP AND TITLE MODES OF ACQUISITION OF PROPERTY 1.) Possession 2.) Prescription 3.) Agreement, and 4.) Inheritance. RESTRICTIONS UPON POWER OF DISPOSAL BIBLIOGRAPHY

ACKNOWLEDGEMENT

I have taken efforts in this project but it wouldn't have been possible without the support of many individuals. I would like to extend my sincere thanks to all of them. I am highly indebted to Dr. Asad Malik for his guidance and constant supervision as well as for providing necessary information regarding the project and also for his support in completing the project. My thanks and appreciations also go to my friends in developing the project and people who have willingly helped me out with their abilities.

- SHAHRUKH AHMAD

Modes of acquisition of property

SUBMITTED BY NAME- shahrukh ahmad Subject- jurisprudence ii BALLB (Hons.) Vth semester

BIBLIOGRAPHY 1. An Introduction to Jurisprudence and Legal Theory – Dr. B.N. Mani Tripathi 2. Studies in Jurisprudence and legal theory- Dr Avtar Singh 3. Jurisprudence and legal theory- Dr. S.P. Dwivedi 4. www.vakilno1.org 5. www.google.com 6. www.wikipedia.com 7. www.openlibrary.org