Modes of Acquisition of Ownership

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P P a a g g e e 1 1

Modes of

Acquisition of

Ownership.

Submitted

Submitted by:

by:

Submitted

Submitted to:

to:

Parneet

Parneet Kaur

Kaur Saroy

Saroy

Dr.Ajay

Dr.Ajay Ranga

Ranga

Roll no.55/13, Section: A

B.A LL.B(HONS.) II SEM.

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INDEX

Sr.no.

Sr.no. Topic Topic Page Page no.no. 1.

1. AcknowledgemAcknowledgement ent 33 2.

2. Ownership Ownership 44 3.

3. Introduction: Introduction: Modes Modes of of Acquisition Acquisition 55 4.

4. Ancient Ancient Hindu Hindu Modes Modes 66 5.

5. Ancient Ancient Western Western LawLaw 5.1 Occupation

5.1 Occupation

5.2 Finding of treasure troves 5.2 Finding of treasure troves 5.3 Conquest by war 5.3 Conquest by war 5.4 Accession 5.4 Accession 7 7 7 7 7 7 9 9 9 9 6.

6. Modern Modern LawLaw 6.1 Original

6.1 Original acquisitionacquisition 6.1.1 Absolute 6.1.1 Absolute 6.1.1.1 Occupatio 6.1.1.1 Occupatio 6.1.1.2 Specificatio 6.1.1.2 Specificatio 6.1.2 Accessory 6.1.2 Accessory 6.1.3 Extinctive 6.1.3 Extinctive 6.2 Derivative acquisition 6.2 Derivative acquisition 10 10 10 10 10 10 10 10 11 11 11 11 11 11 12 12 7. 7. Bibliography Bibliography 1313

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P P a a g g e e 3 3

ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and I take this opportunity to express my profound gratitude and deep regards to my guide Dr.Ajay Ranga for his exemplary deep regards to my guide Dr.Ajay Ranga for his exemplary

guidance, monitoring and constant encouragement throughout the guidance, monitoring and constant encouragement throughout the course of this thesis.

course of this thesis. The blessing, help and guidance given byThe blessing, help and guidance given by him time to time shall carry me

him time to time shall carry me a long way in the journey of lifea long way in the journey of life on which I am about to

on which I am about to embark.embark.

Lastly, I thank almighty, my parents, brother, sisters and Lastly, I thank almighty, my parents, brother, sisters and friends for their constant

friends for their constant encourageencouragement without which thisment without which this assignment would not be possible

assignment would not be possible . .I am grateful for theirI am grateful for their

cooperation during the period of my

cooperation during the period of my assignment.assignment.

Parneet Kaur Saroy. Parneet Kaur Saroy.

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Ownership

Ownership is a complex juristic concept which has its origin in the 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 ancient Roman law. Perhaps of all of the rights, right to ownership is the most important right . The earliest legal systems did not

the most important right . The earliest legal systems did not recognise the distinction between ownership and possession. It recognise the distinction between ownership and possession. It waswas with the advancement of civilization that the

with the advancement of civilization that the two were consideredtwo were considered as separate and distinct concepts. In roman

as separate and distinct concepts. In roman law ownership andlaw ownership and possession were respectively termed as „

possession were respectively termed as „dominium‟dominium‟ and „and „ possessio‟. possessio‟. The term

The term dominiumdominium denotes absolute right to a thing whiledenotes absolute right to a thing while possessio possessio implied only physical control over it.

implied only physical control over it.

In the legal sense the

In the legal sense the term ownership carries the connotation ofterm ownership carries the connotation of right over a thing to the exclusion of all

right over a thing to the exclusion of all other persons. This impliesother persons. This implies non-interference by others in the exercise of

non-interference by others in the exercise of this right and must bethis right and must be distinguished from mere holding of a thing in one‟s possession.

distinguished from mere holding of a thing in one‟s possession.

i.i. Dr. N.V Paranjape(2013) “ Studies in Dr. N.V Paranjape(2013) “ Studies in Jurisprudence and LegalJurisprudence and Legal T

T heory” , at/page heory” , at/page -410 -410 ii.

ii. Prof.Nomita Aggarwal(2010)”J Prof.Nomita Aggarwal(2010)”J urisprudence(legalurisprudence(legal theory)”,theory)”, at/page-231

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P P a a g g e e 5 5

Modes of acquiring ownership

The acquisition of ownership may take place either in respect of a 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 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

a previous owner. If the thing had not a previous owner, then thethe ownership of one person is transferred to another. If

ownership of one person is transferred to another. If it had ait had a

previous owner, then a new ownership is created. Thus, a bird in the previous owner, then a new ownership is created. Thus, a bird in the air would belong to one who shoots it and

air would belong to one who shoots it and take possession of it.take possession of it. However, in case of a house owned by

However, in case of a house owned by a person, the ownership can bea person, the ownership can be transferred to another person in

transferred to another person in accordance with the provisions ofaccordance with the provisions of the law.

the law.

iii.

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Ancient Hindu modes of Acquisition of

Ownership.

Ancient Hindu jurists have said much about the means of acquiring Ancient Hindu jurists have said much about the means of acquiring ownership. Manu declared that, there are seven virtuous means of ownership. Manu declared that, there are seven virtuous means of acquisition of wealth,

acquisition of wealth, viz.,viz., inheritance ,gain ,purchase ,conquest,inheritance ,gain ,purchase ,conquest, application(of wealth),employment of work of and acceptance of application(of wealth),employment of work of and acceptance of gifts from proper persons. Gautama gives almost the same seven gifts from proper persons. Gautama gives almost the same seven ways of acquiring ownership but he put some modifications to the ways of acquiring ownership but he put some modifications to the list given by

list given by Manu. For hManu. For him ownership im ownership arises from arises from successionsuccession ,purchase

,purchase , partition , partition ,occupation ,occupation of unappropriaof unappropriated property ated property andnd finding of the hidden treasure or the like, to

finding of the hidden treasure or the like, to which may be addedwhich may be added acceptance of gifts in the case of Brahamans, conquest in the case acceptance of gifts in the case of Brahamans, conquest in the case of Vaisyas and wages of labour in the case of

of Vaisyas and wages of labour in the case of sudras. Narada enterssudras. Narada enters into a little more details and says that there

into a little more details and says that there are twelve differentare twelve different modes of acquiring wealth of which three are general (

modes of acquiring wealth of which three are general (i.e.,i.e., open to all open to all castes) and the rest are peculiar to several

castes) and the rest are peculiar to several castes. These specificcastes. These specific modes of acquiring wealth are proper for several castes and any modes of acquiring wealth are proper for several castes and any contravention is reprehensible unless forced by pressing necessity. contravention is reprehensible unless forced by pressing necessity.

iv.

iv. Supranote iiiSupranote iii v.

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P P a a g g e e 7 7

Ancient Western Law

Following were the modes of acquisition of ownership under ancient Following were the modes of acquisition of ownership under ancient western

western law:-a)

a) Occupation:-Occupation:- Under RUnder Roman law the term “oman law the term “occupacio” occupacio” connoted connoted that for the acquisition of ownership of or hunted animals, it that for the acquisition of ownership of or hunted animals, it was immaterial to see whether a man took wild beast or birds 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 upon his own ground or that of another. But English law did not ascribe ownership to a trespasser who killed game on another ascribe ownership to a trespasser who killed game on another person land. Under Hindu law the term

person land. Under Hindu law the term „occupacio‟„occupacio‟ was known aswas known as „Parigraha‟ which means appropriation and is explained in

„Parigraha‟ which means appropriation and is explained in thethe Viramitrodya

Viramitrodya as signifying the appropriation of previouslyas signifying the appropriation of previously

unappointed property such as straw, water, logs of wood, etc. , unappointed property such as straw, water, logs of wood, etc. , the ownership of any

the ownership of any particular individual.particular individual. b)

b) Finding of treasure troves :Finding of treasure troves :- Under Roman law, if any- Under Roman law, if any treasure was found by the owner o

treasure was found by the owner of the land where it layf the land where it lay concealed ,he could keep the whole of it, if it

concealed ,he could keep the whole of it, if it is found byis found by another person then the finder and the owner of

another person then the finder and the owner of the land takethe land take it with equal distribution.

it with equal distribution.

vi.

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Under English law neither the finder, nor the owner of the land Under English law neither the finder, nor the owner of the land had any interest in it but

had any interest in it but it belonged entirely to the crown.it belonged entirely to the crown.

Non-disclosure of it was regarded as an offence. The Hindu law Non-disclosure of it was regarded as an offence. The Hindu law relating to treasure troves has been described by

relating to treasure troves has been described by Yajnavalkya.Yajnavalkya. He said that if the king discovers the treasure troves ,

He said that if the king discovers the treasure troves , then hethen he will take half and distribute

will take half and distribute the other half among Brahmans, ifthe other half among Brahmans, if a learned Brahman finds it, then he may keep the whole himself a learned Brahman finds it, then he may keep the whole himself in other cases the king will give one-sixth to the

in other cases the king will give one-sixth to the finder andfinder and take the rest himself but if

take the rest himself but if the finder does not bring the factthe finder does not bring the fact to the notice of the king then he

to the notice of the king then he will, on coming to know of itwill, on coming to know of it extract the whole and also punish the finder. To this

extract the whole and also punish the finder. To this

Mitakshara adds, on the authority of Manu, that even in such a Mitakshara adds, on the authority of Manu, that even in such a case if the real owner comes forward and establishes his title, case if the real owner comes forward and establishes his title, the king will restore the treasure to

the king will restore the treasure to him after retaining one-him after retaining one-sixth or one-twelfth for

sixth or one-twelfth for himself, or according to Nilakanthahimself, or according to Nilakantha one-fourth for himself and one-twelfth for the finder.

one-fourth for himself and one-twelfth for the finder.

vii.

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P P a a g g e e 9 9 C)

C) Conquest by war:-Conquest by war:- According to Roman and English law theAccording to Roman and English law the property of the enemy was regarded as

property of the enemy was regarded as res nulliusres nullius so theso the victorious party could deal with it in any way they

victorious party could deal with it in any way they liked. Evenliked. Even the property of private individuals in the conquered country the property of private individuals in the conquered country could be freely disposed of by

could be freely disposed of by the conquering state and tOothe conquering state and tOo private rights can be set up against it. Hindu law did not

private rights can be set up against it. Hindu law did not

recognise this rule. Under Hindu law conquest is an independent recognise this rule. Under Hindu law conquest is an independent source of acquisition of ownership. According to it conquest did source of acquisition of ownership. According to it conquest did not take away all the private rights- the o

not take away all the private rights- the only effect was tonly effect was to invest the victorious kings with all

invest the victorious kings with all the rights which defeatedthe rights which defeated king had- so the former might claim full ownership of the king had- so the former might claim full ownership of the property of the latter but

property of the latter but his right so far property of thehis right so far property of the

subjects were concerned did not extend to anything more than subjects were concerned did not extend to anything more than to collect revenue from them.

to collect revenue from them. D)

D) Accession :-Accession :- Accession or application of already existingAccession or application of already existing property was a mode

property was a mode of acquiring ownership, which was knownof acquiring ownership, which was known both under roman and English law. Thus,

both under roman and English law. Thus, if a field producesif a field produces crops or a

crops or a domestic animal bears offspring, the produce in edomestic animal bears offspring, the produce in eachach case belongs to the owner of the

case belongs to the owner of the field or the animal unlessfield or the animal unless

there has been some previous agreement modifying the general there has been some previous agreement modifying the general rule. This rule was known as Proyago under Hindu law. Thus,

rule. This rule was known as Proyago under Hindu law. Thus, according to Hindu law, if a river which flows between two according to Hindu law, if a river which flows between two villages and forms the boundary

villages and forms the boundary between them encroachesbetween them encroaches upon one bank and attaches newly formed land to another then upon one bank and attaches newly formed land to another then the owner of the bank on which the formation takes place

the owner of the bank on which the formation takes place becomes entitled to it as an accretion to

becomes entitled to it as an accretion to his property.his property.

viii.

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Modern law

Under modern law there are the following modes of acquiring Under modern law there are the following modes of acquiring ownership which may be broadly

ownership which may be broadly classed under two heads,classed under two heads, viz.,- viz.,-1.

1. Original aOriginal acquisitioncquisition:-:- This mode of acquisition of ownershipThis mode of acquisition of ownership is said to have taken place, when ownership is acquired by is said to have taken place, when ownership is acquired by reason of some act or event. It

reason of some act or event. It is of three types,is of three types, viz.,viz., absolute, accessory and extinctive.

absolute, accessory and extinctive. a)

a) Absolute:Absolute:-- When things are acquired which have not When things are acquired which have not or haveor have never had an owner

never had an owner res nullius(who took it first became theres nullius(who took it first became the owner)

owner) . Romans termed them as cases of absolute original. Romans termed them as cases of absolute original acquisition. This type of ownership acquired in

acquisition. This type of ownership acquired in two ways:two ways: Occupatio:

Occupatio:- - If a thing is without owner, anyone is at If a thing is without owner, anyone is at liberty toliberty to take and keep it : he

take and keep it : he makes it his own by the very makes it his own by the very act of takingact of taking possession.

possession.

The real interest, however, which attaches to acquisition of The real interest, however, which attaches to acquisition of ownership by occupation of a res nullius is not in

ownership by occupation of a res nullius is not in connection with itsconnection with its modern application, which is rare, but in

modern application, which is rare, but in connections with the originconnections with the origin of ownership. Until recently it was almost always assumed that the of ownership. Until recently it was almost always assumed that the acquisition of ownership by occupancy so simple, so obvious and so acquisition of ownership by occupancy so simple, so obvious and so universal, as to be deemed natural, and that it was, in fact, original universal, as to be deemed natural, and that it was, in fact, original mode of acquiring all

mode of acquiring all ownership. That assumption is not nowownership. That assumption is not now

accepted. Nevertheless occupancy and ownership are historically accepted. Nevertheless occupancy and ownership are historically connected and the history of that connection is not without its connected and the history of that connection is not without its significance in modern controversies.

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P P a a g g e e 1 1 1 1

Specificatio-Specificatio- Original acquisition of ownership may also be by Original acquisition of ownership may also be by specification

specification which means a person by working up on material which means a person by working up on material

belonging to another makes a new thing. For example, if a sculptor belonging to another makes a new thing. For example, if a sculptor makes a statue from the clay belonging to another, he becomes makes a statue from the clay belonging to another, he becomes thethe original owner of that statue.

original owner of that statue. b)

b) Accessory-Accessory- This is an example of original acquisition. In this This is an example of original acquisition. In this type of acquisition , ownership was often occasioned by a type of acquisition , ownership was often occasioned by a union or mixture of things which belonged to two different union or mixture of things which belonged to two different persons. To this type of acquisition of ownership, the

persons. To this type of acquisition of ownership, the Romans gave the name of

Romans gave the name of accession . The ancient Indianaccession . The ancient Indian jurists, like Manu,

jurists, like Manu, used the termused the term Prayog Prayog , which means, which means acquiring by accession. Examples are produce of

acquiring by accession. Examples are produce of land orland or animals

animals or or fruits fruits of of trees.trees. c)

c) Extinctive-Extinctive- When ownership is acquired by a person byWhen ownership is acquired by a person by some act on his part, which destroys the title of the some act on his part, which destroys the title of the

previous owner, it is called extinctive acquisition. There may previous owner, it is called extinctive acquisition. There may be acquisitive prescription in which, after the expiration of be acquisitive prescription in which, after the expiration of the necessary period, the law gives to the adverse possessor the necessary period, the law gives to the adverse possessor a full legal title. In I

a full legal title. In India, adverse possession by a person ofndia, adverse possession by a person of the land of another for 12 years

the land of another for 12 years extinguishes the ownershipextinguishes the ownership of the previous owner and the person having such adverse of the previous owner and the person having such adverse possession becomes the owner.

possession becomes the owner.

xi.

xi. Supranote-i at/page-427Supranote-i at/page-427 xii.

xii. Supranote-ix at/page-234Supranote-ix at/page-234 xiii.

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2.

2. Derivative acquisition-Derivative acquisition- A person is said to acquireA person is said to acquire

derivatively when he accepts a conveyance of title from a derivatively when he accepts a conveyance of title from a previous owner. This type of mode may include the

previous owner. This type of mode may include the acquisition of ownership by inheritance-intestate and acquisition of ownership by inheritance-intestate and testamentary, and transfer

testamentary, and transfer inter-vivosinter-vivos – – purchase, purchase,

acceptance of gist etc. in every legal system, there are acceptance of gist etc. in every legal system, there are certain rules and formalities which regulate

certain rules and formalities which regulate and govern thisand govern this mode of acquisition of ownership. In modern times, these mode of acquisition of ownership. In modern times, these rules and formalities to be compiled with for the

rules and formalities to be compiled with for the transfertransfer and acquisition of ownership (in

and acquisition of ownership (in case of derivativecase of derivative acquisition) are laid down in

acquisition) are laid down in various statutes. In India,various statutes. In India,

however, these formalities may be found in the transfer of however, these formalities may be found in the transfer of Property Act, 1882(for the transfer of immovable

Property Act, 1882(for the transfer of immovable property), Partnership Act,1932(for the transfer of

property), Partnership Act,1932(for the transfer of firmfirm property), The Companies Act, 1956(for the transfer of property), The Companies Act, 1956(for the transfer of company pr

company property), Registratoperty), Registration ion Act,1908, Act,1908, and many and many otherother acts. Acquisition of ownership of different types of

acts. Acquisition of ownership of different types of property can be deemed to be

property can be deemed to be complete and effective onlycomplete and effective only when the formalities laid down therein are complied with when the formalities laid down therein are complied with accordingly. For example, when a gift of

accordingly. For example, when a gift of an immovablean immovable property is made, the transfer must be affected by property is made, the transfer must be affected by aa

registered instrument signed by or on behalf of the donor registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. In case of a gift and attested by atleast two witnesses. In case of a gift ofof movable property, transfer may be effected either by a movable property, transfer may be effected either by a registered instrument signed as aforesaid or by delivery of registered instrument signed as aforesaid or by delivery of possession.

possession. xiv.

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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 and Legal Theory, Central