Ownership
1. Introduction
The concept of ownership is one of the fundamental concepts which is common in all systems of law. This is a legal relation between people and things. These things may be corporeal or incorporeal and may be moveable and immovable. Concept of ownership began when people started planting tree, cultivating lands and constructing buildings. They began to think in terms of “Mine” that is called ownership. The ideal of ownership followed the idea of possession
2. Literal meaning of ownership
The literal meaning of the term “own” is “to have or hold a thing”
3. Definition of ownership
In the legal sense the term ownership carries the meaning of right over a thing to the exclusion of all other persons.
4. Essentials elements of ownership
Following are the essential elements of ownership
1. Right to use
The owner has full liberty to use it there is no restriction on the owner about usage of things. But legal system impose a duty on an owner that owner must use his right of ownership without disturbing other persons
2. Right to disposition
The owner has the right to dispose of things or property. Every owner can dispose of his property during his lifetime or by will after his death
3. Right to possess
The owner has a right to possess the thing which he owns. Whether he has actual possession of it or not
4. Right to Exhaust
Owner has a right to exhaust the thing while using it. It is not concern that thing is material or immaterial in nature
5. Right to destroy
Generally, Owner has the right to destroy the thing he owns. There is no legal objection on it as well as he will not be charged against this destruction
6. Right of benefit
Owner has full right to gain different types of benefits, by selling or giving the thing on rent in order to earn money from property
7. Residual character
Ownership has residual (Baqia) character. Owner can use things in different ways but his ownership will not be disturbed in any situation.
Example
If A, give his land on lease to B and easement to C, His ownership of the land still consists of the residual rights
5. Modes of acquisition of ownership
Following are the modes of acquisition of ownership. Details are as under.
1. Original acquisition
Original acquisition means an acquisition of a property or estate which has never been the property of another. This is original acquisition because such things may have not been used commonly by someone before this. Such acquisition is called original acquisition
2. By Transfer
Transfer of ownership is frequent mode of acquisition and ownership of a property is transferred from one person to another
It only can be possible only by contract in the form of sale, gift etc.
3. By Succession
It belongs to the family Law and after someone’s death property passes to his legal heirs and they become owner by succession
4. By Prescription
It belongs to property Law. It means continued occupation by someone over a thing from a long period. In Islamic legal system such kind of Ownership can’t be acquired by prescription. But In modern age in English system, such acquisition is allowed and can be acquired which is illegal exercise
6. Kinds of ownership
Following are the kinds of ownership
1. Corporeal and incorporeal ownership
a. Corporeal
Ownership of a material object. Corporeal things are those things which are touchable things e.g. ownership of house, car etc.
b. Incorporeal
Ownership of immaterial things. Incorporeal things are those things which are untouchable e.g. ownership of copyright, ownership of trademark etc.
I. Trust and beneficial ownership
a. Trust ownership
A trust ownership is such ownership which is owned by one party for the benefit of another. The ownership of trustee in not real. He is under an obligation to use his ownership for the benefit of other
b. Beneficial ownership
In which one who is under an obligation to use ownership for the benefits to others because right of ownership belongs to him though the legal title is belongs to another one
Example
If property is given to X, on trust for Y. X would be trustee and his ownership would be trust ownership and Y would be the beneficiary and his ownership would be beneficiary ownership
II. Legal and equitable ownership
a. Legal ownership
Legal ownership is such ownership which is recognized by the common law. A person who have full control over a thing to use or sale it or has a power to convey rights to others , is called legal owner
b. Equitable ownership
Equitable ownership is such ownership which is taken by rules of equity. In many cases equity recognizes ownership where common law does not recognize ownership due to having some defects in legal rules. Equitable ownership always implied as legal ownership
III. Sole ownership and co ownership
a. Sole ownership
Sole ownership is such ownership where only one person is the owner of a property at a time. It is called sole ownership.
b. Co ownership
When two or more persons have a right of ownership on a same property at a same time, is called Co-ownership
A. Forms of co ownership
Following are the two forms of co ownership
Ownership in common
In common ownership, after the death of a person, rights transfer to his successors like inheritable rights
Joint ownership
In joint ownership, on the death of one owner, the ownership dies with the dead person and it transfers to other co-owner while heirs of deceased person are not eligible for inheritance
Illustration
If a property belongs to X and Y in equal shares. And X dies, its ownership in common half of the property passess to the heirs of the X. And if the ownership is joint, Y would be entitled to the whole property and heirs of the X would get nothing
IV. Absolute and limited ownership
1. Absolute ownership
Absolute owner is one who has full rights over a thing to the exclusion of all , and where no one can interfere in rights of ownership
2. Limited ownership
When some limitations have been imposed on the owner, limitations can be related to disposal of things or destruction of things etc.
V. Vested and contingent ownership
1. Vested ownership
To give particular legal authority, power or rights of possession and use, of land or other property, is called vested ownership
Example
Property is given to A for life and remainder to B.
B cannot enjoy the rights until A dies
2. Contingent ownership
Contingent ownership dependent upon the possible occurrence of a future happening, the happening of which is not guaranteed that it may happens or not
Example
A executes a deed in favour of B. according to which he entitled to the possession of certain property when he attains the age of 21 , the rights is contingent right and it will be vested only when he attains the age of 21
A. Difference between vested and contingent ownership
Following are the differences between the vested and contingent ownership
1. As to title
In vested ownership the right of the owner is perfect
In contingent ownership the right of the owner is imperfect
2. As to nature
In vested ownership of the owner is absolute
In contingent the ownership of the owner is conditional
3. Necessary element
There is no chance of missing of some conditions because there are no certain
conditions for fulfilment of this ownership
In contingent there is a chance of missing of some conditions
4. As to right
In vested ownership, owner has immediate right of enjoyment
In contingent ownership, owner has not immediate right of enjoyment
5. Death of transferee
Vested ownership never gets hurt even by the death of a transferee Contingent ownership cannot take effect by the death of transferee
7. Conclusion
The concept of ownership is a very ancient concept. When a person starts a business or constructs a building only one word moves in the minds of all people which is “mine. Law of the state has defined a lot of rules and regulations to give protection to the property of people which have different modes. Implementation of those rules is being made by the court of law according to common law rules