Law Student in Action: JURISPRUDENCE – UNIT V

SASI K.G.

The idea of obligation: The Gunman situation: A orders B to hand over his money & threatens to shoot him if he doesn’t comply.

According to Austin, it illustrates the notion of obligation or duty in general. A must be the sovereign habitually obeyed & the orders must be general prescribing courses of conduct & not single actions. Here, the meaning of obligation lies in the fact that B, if he obeyed, was obliged to hand over money.

B had an obligation or duty to hand over money. But there is a difference between the assertion that someone was obliged to do something & the assertion that he had an obligation to do it. The first is often a psychological statement about the beliefs & motives. Hart says that it can be said that B was obliged to hand over his purse, but it can’t be said that he had an obligation to do that.

A person had an obligation, e.g., to tell the truth or report for military service. The statement that he had an obligation is quite independent of the question whether or not he in fact reported for service; the statement that someone was obliged to do something normally carried the implication that he actually did it.

01. Definition and Nature of Obligation

01. Obligations In the Law

Every legal system contains obligation-imposing laws, but there is no decisive linguistic marker determining which these are. The term “obligation” need not be used, nor its near-synonym, “duty.” One rarely finds the imperative mood. The Canadian Criminal Code imposes an obligation not to advocate genocide thus: “Everyone who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.” The English Sale of Goods Act says that, “Where the seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of merchantable quality.” That these laws create obligations follows from the way “offence” and “implied condition” function in their respective areas of law, not from the language in which they are expressed.

On the face of it, some laws have other functions. A requirement that “a will must be signed” generally imposes no duty—not a duty to make a will, and not even a duty to have it signed if you do—it sets conditions in the absence of which the document simply does not count as a valid will. Nonetheless, some philosophers, including Jeremy Bentham and Hans Kelsen, argue that the content of every legal system can and should be represented solely in terms of duty-imposing and duty-excepting laws. Bentham asks, “What is it that every article of law has in common with the rest? It commands and by doing so creates duties or, what is another word for the same thing, obligations” (Bentham 1970, 294). (For a related contemporary view, see Harris 1979, 84–106.) They think that analyzing laws this way reveals what legislators or subjects most need to know: under what conditions the coercive power of law will ultimately be met. Others argue that even if such a reduction were possible, it would be unwieldy, uninformative and unmotivated, concealing as it does the different social functions that laws fulfil (Hart 1994: 26–49) and the different kinds of reasons for action that they create (Raz 1990). Others still, despairing of any principled way of knowing what a law is, have abandoned the problem entirely and tried to develop a theory of law that bypasses it (Honoré 1977; Dworkin 1978: 71–78). At a minimum, it does seem clear that whether or not all laws impose obligations, they can only be fully understood through their relations to those that do. Thus, a legal right is an interest that warrants holding others under an obligation to protect it, a legal power is the ability to create or modify obligations, and so forth.

What then are legal obligations? They are legal requirements with which law's subjects are bound to conform. An obligatory act or omission is something the law renders non-optional. Since people plainly can violate their legal obligations, “non-optional” does not mean that they are physically compelled to perform, nor even that law leaves them without any eligible alternative. On the contrary, people often calculate whether or not to perform their legal duties. Could it be then that obligations are simply weighty reasons to perform, even if sometimes neglected or outweighed? This cannot be a sufficient condition: high courts have important reasons not to reverse themselves too frequently, but no legal obligation to refrain. Nor is it necessary: one has an obligation, but only a trivial reason, not to tread on someone's lawn without his consent.

If their content does not account for the stringency of obligations, what does? A historically important, though now largely defunct, theory explained it in terms of penalty. Following Hobbes and Bentham, the English jurist John Austin says that to have a legal obligation is to be subject to a sovereign command to do or forbear, where a command requires an expression of will together with an attached risk, however small, of suffering an evil for non-compliance. “When I am talking directly of the chance of incurring the evil, or (changing the expression) of the liability or obnoxiousness to the evil, I employ the term duty, or the term obligation…” (Austin 1832, 18). Others conceived an indirect connection between duty and sanction. Hans Kelsen holds that what is normally counted as the content of a legal duty is in reality only part of a triggering condition for the mandatory norm which commands or authorizes officials to impose a sanction: “[A] norm: ‘You shall not murder’ is superfluous, if a norm is valid: ‘He who murders ought to be punished’”(Kelsen 1967, 55). And thus, “Legal obligation is not, or not immediately, the behavior that ought to be. Only the coercive act, functioning as a sanction, ought to be” (Kelsen 1967, 119).

None of these versions of the sanction theory survived H.L.A. Hart's criticisms (Hart 1994, 27–42; cf. Hacker 1973). First, they misleadingly represent a range of disparate legal consequences—including compensation and even invalidation—as if they all function as penalties. Second, they render unintelligible many familiar references to duties in the absence of sanctions, for example, the duty of the highest courts to apply the law. Third, they offer an inadequate explanation of non-optionality. “You have an obligation not to murder” cannot merely mean “If you murder you will be punished,” for the law is not indifferent between people, on the one hand, murdering and being jailed, and on the other hand not murdering at all. “The right to disobey the law is not obtainable by the payment of a penalty or a licence fee” (Francome v. Mirror Group Newspapers Ltd. [1984] 2 All ER 408 at 412). Such dicta are commonplace and reflect familiar judicial attitudes. Most important, the normal function of sanctions in the law is to reinforce duties, not to constitute them. It is true that one reason people are interested in knowing their legal duties is to avoid sanctions, but this is not the only reason nor is it, contrary to what Oliver Wendell Holmes supposed, a theoretically primary one. Subjects also want to be guided by their duties—whether in order to fulfil them or deliberately to infringe them—and officials invoke them as reasons for, and not merely consequences of, their decisions.

Sensitivity to such matters led Hart to defend a rule-based theory. He says that while sanctions might mark circumstances in which people are obliged to conform, they have an obligation only when subject to a practiced social rule requiring an act or omission. The fact that subjects use it as a rule marks it as normative. Three further features distinguish obligation-imposing rules: they must be reinforced by serious or insistent pressure to conform; they must be believed important to social life or to some valued aspect of it; and their requirements may conflict with the interests and goals of the subject (Hart 1994, 85–88). This account of the nature of obligations is not an account of their validity. Hart does not say that a legal duty is binding whenever there is a willingness to deploy serious pressure in its support, etc. He holds that a duty is legally valid if it is part of the legal system (i.e., if it is certified as such by the tests for law in that system), and a legal duty is morally valid only if there are sound moral reasons to comply with it. But, at least in his early work, he offers the practice theory as an explanation of duties generally—legal duties are the creatures of legal rules, moral duties of moral rules and so on. (Hart later modified this view, see 1982, 255–68; and 1994, 256.)

The constitutive role of social pressure is sometimes considered an Austinian blemish on Hart's theory, but there are in any case more serious problems with it as a general account of obligations (Dworkin 1978, 50–54; Raz 1990, 53–8). People readily speak of obligations when they are well aware that there are no relevant social practices, as might a lone vegetarian in a meat eating society. And Hart's practice conditions may be satisfied in cases where there is no obligation but only generally applicable reasons, as when victims are regularly urged to yield their wallets to a mugger. At best, Hart's theory will apply only to a special class of obligations in which the existence of a conventional practice is an essential part of the reasons for conformity, though even here, the theory is open to doubt. (See Dworkin 1978, 54–58; Green 1988, 88–121)

A third account is reason-based. On this view, what constitutes obligations is neither the social resources with which they are enforced, nor the practices in which they may be expressed, but the kind of reasons for action that they offer. Legal obligations are content-independent reasons that are both categorical and pre-emptive in force. The mark of their content-independence is that their force does not depend on the nature or merits of the action they require: in most cases, law can impose an obligation to do X or to refrain from doing X (Hart 1958; 1982, 254–55; but cf. Markwick 2000). That they are pre-emptive means that they require the subject to set aside his own view of the merits and comply nonetheless. That they are categorical means that they do not condition their claims on the subject's own goals or interests.

This view is foreshadowed in both Hobbes and Locke, but its most influential contemporary version is due to Joseph Raz (1977; 1990, 35–84). He argues that obligations are categorical reasons for action that are also protected by exclusionary reasons not to act on some of the competing reasons to the contrary. Obligations exclude some contrary reasons—typically at least reasons of convenience and ordinary preference—but they do not normally exclude all: an exclusionary reason is not necessarily a conclusive reason. The stringency of an obligation is thus a consequence not of its weight or practice features, but of the fact that it supports the required action by special normative means, insulating it from the general competition of reasons. Or at any rate this is what obligations do when they have the force the claim, i.e., when they are binding. The theory does not assume that all legal obligations actually are binding from the moral point of view, but it does suppose that the legal system puts them forth as if they were—a consequence that some have doubted. (Hart 1982, 263–67; Himma 2001, 284–97) And while this account is invulnerable to the objections to sanction-based and practice-based theories, it does need to make good the general idea of an ‘exclusionary reason’, and some philosophers have expressed doubts on that score also (Perry 1989, Regan 1987): is it ever reasonable to exclude entirely from consideration an otherwise valid reason? The account has, nonetheless, been adopted by legal philosophers with otherwise starkly contrasting views of the nature of law. (Compare, e.g., Finnis 1979, 231–59 and Marmor 2001).

02. Authority, Obligation, and Legitimacy

A competitive market is not a legal system, even though people adjust their behaviour in response to relative prices and the whole constitutes a form of social order. Neither was the system of mutual nuclear deterrence, though it guided behaviour and generated norms that regulated the Cold War. Many philosophers and social scientists agree that a social order is a legal system only if it has effective authority. An effective (or de facto) authority may not be justified, but it does stand in a special relation to justified (de jure) authority. Justified authority is what effective authorities claim, or what they are generally recognized to have.

What is legal authority, and how is it related to obligations? It is a kind of practical authority, i.e. authority over action. On one influential view, “To claim authority is to claim the right to be obeyed” (Wolff 1970, 5). There are, of course, authorities that make no such claim. Theoretical authorities, i.e., experts, are not characterized by claims to obedience—they need not even claim a right to be believed. And there are weaker forms of practical authority. To give someone authority to use your car is merely to permit him. But political authority, of which legal authority is one species, is normally seen as a right to rule, with a correlative duty to obey. On this account law claims the right to obedience wherever it sets out obligations. And to obey is not merely to comply with the law; it is to be guided by it. Max Weber says it is “as if the ruled had made the content of the command the maxim of their conduct for its very own sake” (Weber 1963, 946). Or, as Robert Paul Wolff somewhat more perspicuously puts it: “Obedience is not a matter of doing what someone tells you to do. It is a matter of doing what he tells you to do because he tells you to do it” (Wolff 1970, 9). This is not to say that one obeys only in treating the authority's say-so as an indefeasible reason for action; but one must treat as a binding content-independent reason. The question whether there is an obligation of obedience to law is a matter of whether we should act from the legal point of view and obey the law as it claims to be obeyed (Raz 1979, 233–49).

It is an interesting feature of this account that it supposes that one can tell what the authority requires independent of whether the requirement is justified on its merits. Richard Friedman argues: “[I]f there is no way of telling whether an utterance is authoritative, except by evaluating its contents to see whether it deserves to be accepted in its own right, then the distinction between an authoritative utterance and advice or rational persuasion will have collapsed” (Friedman 1973, 132). An idea of this sort is developed by Raz into one of the leading arguments for the “sources thesis”, the idea that an adequate test for the existence and content of law must be based only on social facts, and not on moral arguments. (See the entry on legal positivism.) Authority's subjects “can benefit by its decisions only if they can establish their existence and content in ways which do not depend on raising the very same issues which the authority is there to settle” (Raz 1994, 219). If law aims to settle disputes about moral issues, then law must be identifiable without resolving these same disputes. The law is therefore exhausted by its sources (such as legislative enactments, judicial decisions, and customs, together with local conventions of interpretation). This kind of argument has been generalized (see Shapiro 1998), but also subjected to criticism. It is uncertain what sort of constraint is posed by the idea that it should not involve “the very same issues”—perhaps if morality is a necessary condition only there could be moral tests for authority that leave the relevant dependent reasons untouched (Coleman 2001, 126–7). And while law does indeed serve as a scheme for guiding and appraising behaviour, it may also have other functions, such as educating its subjects about right and wrong, and this may be ill-served the attitude that the rules are to be obeyed in part because they are the rules (Waluchow 1994).

The obligation-correlative view of authority is not universally accepted. Some argue that legal authority involves no claim right, but only a set of liberties: to decide certain questions for a society and to enforce their decisions. (Soper 2002, 85 ff; cf. Ladenson 1980; Greenawalt 1987; 47–61; and Edmundson 1998, 7–70). The liberty conception must answer two questions. First, is it not a feature of a right to decide that it requires subjects to refrain from acting on competing decisions? If the law says that abortion is permissible and the Church says that it is not, what does the denial of the Church's right to decide amount to if not that public policy should be structured by the former decision and not the latter, even if the latter is correct? Second, does the right to enforce include a duty of subjects to pay the penalty when required? If it does, then this is only a truncated version of the obligation-correlative theory—one that holds that punitive and remedial obligations, but not primary obligations, are binding. If not, it is starkly at variance with the actual views of legal officials, who do not think that subjects are at liberty to evade penalties if they can.

This reaches a methodological issue in the philosophy of law. Some consider that the character of law's authority is a matter for descriptive analysis fixed by semantic and logical constraints of official language and traditions of argument. Others maintain that such analysis is impossible or indeterminate, and that we are therefore driven to normative arguments about what legal authority should be (see Soper 2002; Finnis 1979, 12–15). Crudely put, they think that we should understand law to claim only the sort of authority it would be justifiable for law to have. Such is the motivation for Friedrich Hayek's suggestion that ‘The ideal type of law … provides merely additional information to be taken into account in the decision of the actor’ (Hayek 1960, 150). Hayek favours the free market, and concludes that the nature of legal authority should be understood analogically. The most radical position of this sort is Ronald Dworkin's. He prefers what he calls a “more relaxed” understanding of legal authority (Dworkin 1986: 429). Others have argued that the pre-emptive notion of authority is unsatisfactory because it is too rigid (e.g., Perry 1989). Dworkin's objection runs much deeper. His position is not that law communicates only a weaker form of guidance; it is that law is not to be understood as trying to communicate anything at all. A subject considering his legal duties is not listening to the law; he is engaged in “a conversation with oneself,” and is “trying to discover his own intention in maintaining and participating in that practice” (Dworkin 1986, 58). On this view there is no fact of the matter about what law claims that is independent of what each does well to regard it as claiming.

However we resolve the methodological question, there are two parallel normative questions:

The problem of obligation: What if anything justifies the duty to obey the law, and how far does that obedience properly extend?

The problem of legitimacy: What if anything justifies the coercive power of law, and how far may that power properly extend?

What is the relationship between these? Some maintain that obligation comes first: “[T]hough obligation is not a sufficient condition for coercion, it is close to a necessary one. A state may have good grounds in some special circumstances for coercing those who have no duty to obey. But no general policy of upholding the law with steel could be justified if the law were not, in general, a source of genuine obligations” (Dworkin 1986, 191). The idea is that merely having justice on one's side is an inadequate ground for coercing others; one also needs a special title flowing from the moral status of the law. (Contrast, for example, Locke's view that everyone has an “executive power of the law of nature,” at least outside political society (§ 13).)

Others contend that this gets the relationship backwards. First, it is doubtful whether one could have an obligation to obey an illegitimate regime. As Rawls says, “Acquiescence in, or even consent to, clearly unjust institutions does not give rise to obligations” (Rawls 1971, 343; but cf. Simmons 1979, 78–79). If so, at least some conditions of legitimacy precede an obligation of obedience. Second, there are substantive reasons for thinking we would not have obligations to obey if the law were not already justified in upholding its requirements “with steel.” A legal system that could not justifiably coerce could not assure the law-abiding that the recalcitrant will not take them for suckers. Without being able to solve this assurance problem it would be unjust to impose obligations on them, and unjust to demand their obedience. Underlying this suggestion is that idea that familiar idea that effectiveness is a necessary—but certainly not sufficient—condition for justified authority. (See Kelsen 1967, 46–50; cf. Finnis 1979, 250)

3. Obligations to the Law

It may affirm our confidence in the obligation-correlative view to know that from earliest times philosophical reflection on political authority has focussed on the obligation to obey. The passive obligation of obedience is certainly not all we owe the law (Parekh 1993, 243; Green 2003, 543–47) but many have taken it to be law's minimum demand. This gives rise to a puzzle. As Wolff puts it: “If the individual retains his autonomy by reserving to himself in each instance the final decision whether to co-operate, he thereby denies the authority of the state; if, on the other hand, he submits to the state and accepts is claim to authority then … he loses his autonomy” (Wolff 1970, 9). Wolff resolves the dilemma in favour of autonomy, and on that basis defends anarchism.

Some of Wolff's worries flow from the “surrender of judgment” itself—how can it ever be rational to act against reason as one sees it? Others flow from the fact that it is a surrender to the law. On the first point, it is relevant to notice that promises and contracts also involve surrender of judgment and a kind of deference to others (see Soper 2002, 103–39), yet a rational anarchist needs such voluntary commitments to substitute for authoritative ordering. A principled objection to every surrender of judgment is thus self-defeating. Moreover, there seem to be cases in which by surrendering judgment on some matters one can secure more time and resources for reflection and decision on things that are more important, or with respect to which one has greater capacity for self-direction. A partial surrender of judgment may therefore enhance the agent's autonomy overall.

This suggests that Wolff's concern is better understood as skepticism about whether it is justifiable to surrender one's judgment wholesale to the law. Some philosophers have queried the intelligibility of this doubt; they say that it is of the nature of law that there is an obligation to obey it, at least in its central case (Fuller 1958, 100; Finnis 1979, 14–15). Some go so far as to conclude that it is therefore absurd to ask for any ground of the duty to obey the law: law is that which is to be obeyed (McPherson 1967, 64). We need a way into this circle, and the best entrance is in specifying the nature of law in a way compatible with various theories of its nature. Three features are especially important (drawing on Hart 1994, 193–200; Raz 1990, 149–54; and Lyons 1984, 66–68.) First, law is institutionalized: nothing is law that is not connected with the activities of institutions such as legislatures, courts, administrators, police, etc. Second, legal systems have a wide scope. Law not limited to the affairs of small face-to-face groups such as families or clans, nor does it only attend to a restricted domain of life such as baseball. Law governs open-ended domains of large, loosely structured groups of strangers and it regulates their most urgent interests: life, liberty, property, kinship, etc. But although law necessarily deals with moral matters, it does not necessarily do so well, and this is its third central feature: law is morally fallible. This is acknowledged by both positivists and natural lawyers, whose slogan “an unjust law is not a law” was never intended to assert the infallibility of law.

The question of political obligation, then, turns on whether there is are moral reasons to obey the mandatory requirements of a wide-ranging, morally fallible, institutionalized authority. This obligation purports to be comprehensive in that it covers all legal obligations and everyone whose compliance the law requires. It is not assumed to bind come what may, though it is to be one genuine obligation among others. Some philosophers also consider that it should bind people particularly to their own states, i.e., the states of which they are residents or citizens, and that an argument that could not show that one had more stringent duties to obey one's own country than a similarly just foreign one would be in that measure deficient (Simmons 1979, 31–35; Green 1988, 227–28). Finally, it is common ground the obligation exists only when a threshold condition of justice is met.

02. Sources of Obligation

Obligations arising out of the will of the parties are called voluntary, and those imposed by operation of law are called involuntary. Sometimes these are called conventional and obediential. The events giving rise to obligations may be further distinguished into specified categories.

01. Voluntary

1. unilateral promise (pollicitatio) - undertaking by promisor only to perform, not requiring the agreement of the beneficiary

02. contract

A contract can be broadly defined as an agreement that is enforceable at law. Gaius classified contracts into four categories which are: contracts consensu, verbal contracts, contracts re, and contracts litteris. But this classification cannot cover all the contracts, such as pacts and innominate contracts; thus, it is no longer used.

03. quasi-contract

i. negotiorum gestio - duty to repay someone (gestor) who has managed the affairs or property of another who was unable

ii. solutio indebiti - undue payment or delivery of a thing to another, who is then obligated to return the thing

Quasi-contract is one of the four categories of obligation in Justinian's classification. The main cases are negotiorum gestio (conducting of another person's affairs without their authorisation), unjust enrichment, and solutio indebiti.

04. Quasi-delicts

The designation comprised a group of actions of no obvious similarity, classified by Justinian as analogous to delictual obligations. It includes res suspensae, things poured or thrown, shippers/innkeepers/stablekeepers, and erring judges.

05.. Involuntary

1. delicts and quasi-delicts (equivalent to the common-law tort).

2. unjust enrichment (condictio indebiti)

3. Contracts

Quasi-contracts

Quasi-delicts

06. Subject matter

Obligations are classified according to the nature of the performance (prestation):

real obligations - undertakings to give or deliver property, possession, or enjoyment ^[4]

specific real obligation - delivery of a determinate thing when it is particularly designated or physically separated from all others of the same class

generic real obligation - delivery of a generic thing

personal obligations - undertakings either to do or not do all kinds of work or service

positive personal obligation - performance

negative personal obligation - forbearance

03. Kinds of Obligation

01. As to Sanction

Civil or perfect obligation. It is an obligation whose sanction is law. Natural Obligation or naturalis obligatio is one enforceable by law but nevertheless binding on the obligor by dictate of his conscience and the basic postulates of natural law, justice and equity. Moral Obligation is a duty imposed by ethical or religious belief.

02. As to Subject Matter

Real Obligation. The obligation to give Personal Obligation . The obligation to do or not to do.

03. As to Number of Persons

Obliged - Unilateral Obligation . Is one where only one party is bound. Only one party undertakes a performance. Bilateral Obligation . Is one where both parties are bound, as in the contract of sale.

04. As to Mode of Performance

Positive Obligation. Is an obligation to give and to do, the essence is affirmative action Negative Obligation . Is an obligation not to give or not to do, the essence is inaction or non-action.

05. As to Sequence of Performance

Primary Obligation. The principal object of the contract. Secondary Obligation . One which is contracted and is to be performed in case the primary obligation cannot be performed.

06. As to Object

Principal Obligation. One which arises from the principal object of the engagement of the contracting parties. Accessory Obligation . One which depends upon or peripheral or collateral to the principal

07. Kinds of Obligations Under the Civil Code

Pure and Conditional Obligation.

Obligation with a Period

Alternative Obligation

Joint and Solidary Obligation

Divisible and Indivisible Obligation

Obligation with a Penal Clause

Pure Obligation

Every obligation whose performance does not depend upon a future or uncertain event, or a past event unknown to the parties, is demandable at once and is called a pure obligation.

08. Conditional Obligation

Conditional obligation is one the fulfillment of which is dependent upon the happening of an event.THE CONDITION MAY BE;

1. Suspensive or Condition Precedent – wherein the happening of the condition gives rise to the obligation. The obligation is not to take effect until the event happens, it is a suspensive condition Resolutory Condition or Condition Subsequent – wherein the happening of the condition extinguishes the obligation, obligation with resolutory condition take effect at once, but terminate upon the happening of the event. Potestative – wherein the condition depends upon the will of the debtor. (Invalid Condition, Art. 1182) Casual – wherein the condition depends upon chance, or on the will of the third person Impossible Conditions – those contrary to good customs or public policy and those prohibited by law, shall annul the obligation which depends upon them.

2. Obligations with a Period or Term Obligations for whose fulfillment a day certain has been fixed is called an obligation with a period or term and is demandable only when that day comes.In obligation with a period , the general rule is that it is presumed that the period has been established for the benefit of both creditor and debtor

3. In the following instances, the court may fix the period. If the obligation does not fix a period but from its nature and circumstances it can be inferred that a period was intended When it depends on the will of the debtor When the debtor binds himself to pay when his means will permit him to do so.

4. Alternative Obligation An alternative obligation is one where out of two or more prestations which may be given or performed, only one is due and the complete performance of one of them extinguishes the obligation. The Obligee or creditor cannot be compelled to receive part of one and part of the other undertaking or prestation.

5. As a general rule, the right to choose the alternative belongs to the debtor. However, there are four limitations to this right of choice of alternative by the debtor. When the right of choice of the alternative is expressly granted to the creditor by mutual agreement of the parties. The debtor has no right to choose those prestations which are impossible, unlawful or which could not have been the object of the obligation. The choice cannot produce any legal effect until it has been communicated to the other party. The debtor loses the right of choice among the prestations whereby he is alternatively bound when only one alternative is left that is practicable of performance

6. Facultative Obligation When only one prestation has been has been agreed upon, but the obligor may render another in substitution, the obligation is facultative

7. Joint and Solidary Obligation A joint obligation may be defined as an obligation where there is a concurrence of several creditors or several debtors, by virtue which each of the creditors has a right to demand, while each of the debtors is bound to render the compliance with his proportionate part of the prestation which constitute the object of obligation.

8. The Right of the Creditors in Solidary Obligation The right to demand entire payment of the debt or the entire compliance with the prestation from any one of the debtors. If the debt has not been fully collected from one debtor, the creditor has the right to demand payment from the remaining debtors. The right to file an action for compliance with the obligation against one, some all of the debtors simultaneously. The right to receive payment or compliance with the entire prestation, from one, some or all of the debtors. The right to do whatever may be useful to the other creditors. The right to assign his rights with the consent of the other creditors. The right to make a novation, compensation, confusion or remission of the debt.

9. Obligations of a Solidary Debtor To pay the entire debt or fulfill the entire prestation when so demanded by creditors. Payment made by one of the solidary debtors extinguishes the obligation. If two or more solidary debtors offer to pay, the creditor may choose which offer to accept. To pay his corresponding share in the debt in case one of the solidary debtors made full payment of the obligation, with the interest for the payment already made. If payment is made before the debt is due, no interest for the intervening period may be demanded. To pay for the share of the insolvent co-debtor in proportion to the debt of each when one of the solidary debtors cannot, because of his insolvency, reimburse his share to the debtor paying the obligation. If the solidary debtor makes payment after the obligation has prescribed or become illegal, he losses the right to reimbursement from his co debtors.

10. Divisible and Indivisible Obligation An obligation to give definite things and those which are not susceptible of partial performance is deemed an indivisible obligation. When the obligation gives rise for its object the execution of certain number of days work, the accomplishment of work by metrical units, or analogous things which by their nature are susceptible of partial performance, such obligation is called divisible obligation.

11. Obligation with a Penal Clause An obligation with a penalty is one where if the obligation is not complied with, the penalty imposed shall substitute for damages and the payment of interests, unless otherwise stipulated

12. A penalty imposed for the breach of contract shall be enforced if the agreement is violated, whatever the obligee has suffered from damages or not, inasmuch as one of the primary purposes in fixing a penalty is to avoid damage. Proof of actual damages suffered by the creditor is not necessary in order to demand penalty.

13. As a general rule is that the penalty takes place of indemnity for damages and for the payment of interest, except: when there is express agreement to the effect that damages or interest may still be recovered, despite the presence of the penalty clause when the debtor refuses to pay the penalty imposed in the obligation.

04. Meaning of Property

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.

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 away.

Basically Property is divided into real property, and personal property. Property is also divided, into absolute and qualified, when it consists of goods and chattels.

Absolute property is that which is our own, without any qualification whatever; as when a man is the owner of a watch, a book, or other inanimate thing: or of a horse, a sheep, or other animal, which never had its natural liberty in a wild state.

Qualified property consists in the right which men have over wild animals which they have reduced to their own possession, and which are kept subject to their power; as a deer, a buffalo, and the like, which are his own while he has possession of them, but as soon as his possession is lost, his property is gone, unless the animals, go animo revertendi.

Property is again divided into corporeal and incorporeal. The former comprehends such property as is perceptible to the senses, as lands, houses, goods, merchandise and the like; 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, as mentioned above, 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.

In general sense, property is any physical or virtual entity that is owned by an individual or jointly by a group of individuals. An owner of the property has the right. Human life is not possible without property. It has economic, socio-political, sometimes religious and legal implications. It is the legal domain, which institutes the idea of ownership. The basic postulate of the idea is the exclusive control of an individual over some ‘thing’. Here the most important aspect of the concept of ownership and property is the word ‘thing’, on which a person has control for use. To consume, sell, rent, mortgage, transfer and exchange his property. Property is any physical or intangible entity that is owned by a person or jointly by a group of people. Depending on the nature of the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to exclude others from doing these things. [1]

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.

01. Definition of property

There are different definitions are 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 has no definite definition of the term property. 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.

Theories behind concept of property:-

There are many theories which have been evolved for the purpose of understanding the concept of property properly.

Those theories are as follows:

1. Historical Theory of Property:

2. Labour Theory (Spencer):

3. Psychological Theory (Bentham):

4. Functional Theory (Jenks, Laski):

5. Philosophical Theories–

(i) Property as a means to Ethnical Ends

(ii) Property as an End in itself

Historical Theory of Property

According to the Historical theory, the concept of private property had grown out of collective group or joint property. In the words of Henry Maine, “Private property was chiefly formed by the gradual disentanglement of the separate rights of individual from the blended rights of the community.
Earlier property did not belong to individuals, not even to isolated families, but the larger societies composed on patriarchal mode. Later with the disintegration of family- individual rights came into being.
Roscoe Pound also pointed out that the earliest form of property was group property. It was later on that families were partitioned and individual property came into being.

Labour Theory (Spencer)

The theory is also known as ‘positive theory’. This theory insists on the fact that labour of the individual is a foundation of property. This theory says that, a thing is the property of a person, who produces it or brings it into existence. The main supporter of this theory is Spencer, who developed it on the principle of equal freedom. He says that property is the result of individual labour. Therefore, no person has a moral right to property which he has not acquired by his personal effort.

Psychological Theory (Bentham)

According to this theory, property came into existence on account of acquisitive instinct of man. Every individual desires to own things and that brings into being property.

According to Bentham, Property is altogether a conception of mind. It is nothing more than an expectation to derive certain advantages from the object according to one’s capacity.

Roscoe Pound also supports Bentham and observed that the sole basis of conception of property is the acquisitive instinct of individual which motivates him to assert his claim over objects in his possession and control.

Functional Theory (Jenks, Laski)

The theory is sometimes also known as ‘sociological theory of property’. It implies that the concept of property should not only be confined to private rights but it should be considered as a social institution securing maximum interests of society. Property is situated in the society, has to be used in the society.

According to Jenks, no one can be allowed an unrestricted use of his property, to the detriment to others. He said that the use of property should conform to the rules of reason and welfare of the community.

According to Laski, Property is a social fact like any other, and it is the character of social facts to alter. Property has further assumed varied aspects and is capable to further change with the changing norms of society.

02. Property is the creation of the State

The origin of property is to be traced back to the origin of law and the state. Jenks observed that property and law were born together and would die together. It means that property came into existence when the state framed laws. Property was nowhere before law.

According to Rousseau, “It was to convert possession into property and usurpation into a right that law and state were founded”.

The first who enclosed a piece of land and said- ‘this is mine’- he was the founder of real society.

He insisted on the fact that property is nothing but a systematic expression of degrees and forms of control, use and enjoyment of things by persons that are recognized and protected by law. Thus the property was the creation of the state.

Philosophical Theories –

Property as a means to Ethnical Ends

In the opinion of Aristotle, Hegel and Green, Property has never been treated as an end, but always as a means to some other end. According to Aristotle, it may be a means to the end of good life of the citizens, further in the opinion of Hegel and Green, it may be a means to the fulfillment of the will without which individuals are not full human. According to Rousseau, Jefferson, Friedman, it may be a means as a pre-requisite of individual freedom seen as a human essence.

Similarly the outstanding critics of property like Winstanley, Marx have denounced it as destructive of human essence, a negative means in relation an ontological end.

In all the above cases, property is taken as a means not as an end.

03. Property as an End in itself

The supporters of liberal Utilitarian model, from Locke to Bentham, recognize property as an end. It is maximization of utilities. According to Bentham, the command of utilities is measured by the material wealth. The maximization of material wealth is indistinguishable from the ethical end; property is virtually an end in itself. In the words of Locke, the unlimited accumulation is a natural right of the individual that is an end in itself. Aristotle and Aquinas have considered, ‘’property as a means, concluded for a limited property right. Hegel and Green, treats property, as a means, concluded for an unlimited right’. The supporters of utilitarian tradition treat, accumulation of property, as an end, always meant a right of unlimited accumulation.

Later the concept changed and the utilitarian Bentham held that the ultimate end to which all social arrangements should be directed was the maximization of the aggregate utility (Pleasure minus pain) of the members of the society. While listing out the kinds of pleasures, including non material one, he held that wealth, the possession of material goods was so essential to the attainment of all other pleasures that it could be taken as the measure of pleasure or utility as such.
04. Property Theories

Efficiency Theory

Most laws exist to protect property, to give people enforceable expectations of using good.

Tragedy of the commons

Refers to the proven observation that, when property is open t use by all, each person overuses it, thus depleting

Example: Pollution: each factory has incentives to pollute rather than spend money to clean its emissions, because the cost/harm of each one’s pollution is spread to others

Occupation Theory

He who seizes the land/property owns it

Labor Theory

Whoever labors to create property should own it

Natural Rights Theory

The right to own property is a natural right

Legal Theory

Private property is whatever the law recognizes as property

Social Utility Theory

Society allows private property because doing so benefits the social welfare.

05. Kinds of Property

Broadly Property is divided into three kinds those are as follow:

01. 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:

'Moveable 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 “moveable 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 moveable 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 Act (T.P.Act). Even in the T.P.Act this term is defined in exclusive terminology.

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".
The definition of the term "Immovable Property" under the Registration Act 1908, which extends to the whole of India, except the State of Jammu and Kashmir, is comprehensive. The above definition implies that building is included in the definition of immovable property.

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.

iv. The term "Immovable Property" is defined in other Acts for the purpose of those Acts. As per Section 269UA(d) of the Income Tax Act, 1961, Immovable Property is defined as under :

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.

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.

02. 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

06. Intellectual Property

Intellectual property is a term referring to a number of distinct types of creations of the mind for which property rights are recognized—and the corresponding fields of law.

Property does not just comprise of tangible things like houses, cars, furniture, currency, investments etc and such assets are not the only kind that can be protected by law. There are many other forms of intangible property known as intellectual property that have been recognized under the law and granted protection against infringement

Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Patents, trademarks and copyrights, designs are the four main categories of intellectual property.

01. Patents

Patents are used to protect new product, process, apparatus, and uses providing the invention is not obvious in light of what has been done before, is not in the public domain, and has not been disclosed anywhere in the world at the time of the application. The invention must have a practical purpose. Patents are registrable nationally; the patent granted by European Patent Office is a “bundle” of national patents. No EU-wide single patent system exists to date, although the Community Patent is in the final stages of enactment. Registration provides a patentee the right to prevent anyone making, using, selling, or importing the invention for 20 years. Patents are enforced by court proceedings. In addition, the Regulation on Supplementary Protection Certificates (SPCs), grants “patent extensions” of up to 5 years to pharmaceutical and plant products, providing as much as 25 years of patent life for originator medicines.
02. Trade Marks

A symbol (logo, words, shapes, a celebrity name, jingles) used to provide a product or service with a recognisable identity to distinguish it from competing products. Trademarks protect the distinctive components which make up the marketing identity of a brand, including pharmaceuticals. They can be registered nationally or internationally, enabling the use of the symbol ®. Trade mark rights are enforced by court proceedings in which injunctions and/or damages are available. In counterfeiting cases, authorities such as Customs, the police, or consumer protection can assist. An unregistered trade mark is followed by the letters ™. This is enforced in court if a competitor uses the same or similar name to trade in the same or a similar field.

Copyright
Copyright is used to protect original creative works, published editions, sound recordings, films and broadcasts. It exists independently of the recording medium, so buying a copy does not confer the right to copy. Limited copying (photocopying, scanning, downloading) without permission is possible, e.g. for research. Publication of excerpts or quotes needs acknowledgement. An idea cannot be copyrighted, just the expression of it. Nor does copyright exist for a title, slogan or phrase, although these may be registered as a trade mark. Copyright applies to the Internet with web pages protected by many different copyrights, so that permission should be asked to copy or print a page, or insert a hyperlink to it. Material cannot be posted on a Web site (Intranet included) without permission from the copyright holder.
Copyright is not registrable because it arises automatically on creation. Copyright is protected in the EU for 70 years after the author’s death for creative works, 50 years for broadcasts, etc and 25 years for published editions. Use of © is not required in most of Europe. Copyright is enforced by court proceedings.
03. Design Registration

Design registrations are used to protect products distinguished by their novel shape or pattern. They are available for one-off items. The design itself must be new, although a 1 year grace period is allowed for test-marketing. Registration is not possible where the new form is dictated by function. The design is registrable either nationally or under an EU-wide single right. It can also be protected by copyright.

07. Modes of Acquisition of Property

Property is defined as a thing that is recognized as having some value by the society and that which is being held by a person.

Salmond defined four modes of acquiring property. They are

· Possession

o Possession of a material object on which the title to the ownership of it exists in a person.

o In general, the first possessor of it will acquire a valid and good title over the object against the world.

· Prescription

o It is the vesting of rights by reason of lapse of time.

o Lapse of time could create a right or destroy a right. Hence this mode can be positive or negative.

o It is a combination of possession and ownership.

· Agreement

o It is a legal ownership on the property to the transferee.

o The agreement could be in oral or written form

· Inheritance

o This can be of the form of testamentary succession or interstate [i]

08. Concept of Possession and Ownership

01. Salmond on Ownership

Ownership denotes the relationship between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against the entire world and not merely against specific person.

02. Incidence of Ownership

1. The owner has the right to possess things that he owns.

2. The owner normally has a right to use or enjoy the thing owned, the right to manage it, the right to decide how it shall be used and the right of income from it. However, Right to possess is not a right strictu sensu because such rights are in fact liberties as the owner has no duty towards others and he can use it in any way he likes and nobody can interfere with the enjoyment of his ownership.

3. The owner has the right to consume, destroy or alienate the things. The right to consume and destroy are again straight forward liberties. The right to alienate i.e. the right to transfer the existing rights involves the existence of power.

4. Ownership has the characteristic of being ‘indeterminate in duration’ and Ownership has a residuary character. Salmond contrasted the rights of the owner with the lesser rights of the possessor and encumbrancer by stating that “the owner's rights are indeterminate and residuary in a way in which these other rights are not”.

03. Austin’s Concept of Ownership

Ownership or Property may be described accurately enough, in the following manner: ‘the right to use or deal with some given subject, in a manner, or to an extent, which, though is not unlimited, is indefinite’.

Now in this description it is necessarily implied, that the law will protect or relieve the owner against every disturbance of his right on the part of any other person. Changing the expression, all other persons are bound to forbear from acts which would prevent or hinder the enjoyment or exercise of the right.

Austin further said that “Ownership or Property, is, therefore, a species of Jus in rem. For ownership is a right residing in a person, over or to a person or thing, and availing against other persons universally or generally. It is a right implying and exclusively resting upon obligations which are at once universal and negative”.

Dias on Ownership

After referring to the views of Salmond and other Jurists, Dias came to the conclusion that a person is owner of a thing when his interest will outlast the interests of other persons in the same thing. This is substantially the conclusion reached by many modern writers, who have variously described ownership as the ‘residuary’, the ‘ultimate’, or ‘the most enduring interest’.

According to Dias, an owner may be divested of his claims, etc., to such an extent that he may be left with no immediate practical benefit. He remains owner nonetheless. This is because his interest in the thing, which is ownership, will outlast that of other persons, or if he is not presently exercising any of his claims, etc., these will revive as soon as those vested in other persons have come to an end.

In the case of land and chattels, if the owner is not in possession, ownership amounts to a better right to obtain the possession than that of the defendant. It is 'better' in that it lasts longer. It is apparent that the above view of Dias substantially agrees with that of Salmond. According to Dias it is the outlasting interest and according to Salmond, ownership has the characteristic of being indeterminate in duration and residuary in nature.

04. Types of Ownership

Corporeal Ownership	Incorporeal Ownership
1. Corporeal Ownership signifies ownership in a physical object. 2. Corporeal things are things which can be perceived by senses.	1. Incorporeal Ownership is a right or an interest. 2. Incorporeal things cannot be perceived by senses and are in tangible.
Sole Ownership	Co-Ownership
When an individual owns, it is sole ownership	When there is more than one person who owns the property
Trust Ownership	Beneficial Ownership
1. There is no co-ownership. 2. The person on whom the responsibility lies for the benefit of the others is called the Trustee. 3. The trustee has no right to the beneficial enjoyment of the property. 4. Ownership is limited. A trustee is merely an agent upon whom the law has conferred the duty of administration of property. 5. Trusteeship may change hands.	1. There can be co-ownership. 2. The person for whom the trust is created is called the Beneficiary. 3. The Beneficiary has the full rights to enjoy the property. 4. Ownership is complete. 5. Beneficial Owners remain the same.
Legal Ownership	Equitable Ownership
Legal ownership is that ownership which has its basis in common law.	Equitable ownership comes from equity divergence of common law. Thus, distinction between legal and equitable ownership is very thin.
Vested Ownership	Contingent Ownership
1. Ownership is vested when the title is perfect. 2. Vested ownership is absolute.	1. Ownership is contingent when it is capable of being perfect after fulfilment of certain condition. 2. Contingent ownership becomes vested when the conditions are fulfilled.
Absolute Ownership	Limited Ownership
Ownership is absolute when possession, enjoyment, disposal are complete and vested without restrictions save as restriction imposed by law.	Limited Ownership is subjected to the limitations of use, disposal or duration.

05. Possession

Salmond on Possession

Salmond said that in the whole of legal theory there is no conception more difficult than that of possession. The legal consequences which flow from the acquisition and loss of possession are many and serious. Possession, for example, is evidence of ownership; the possessor of a thing is presumed to be the owner of it, and may put all other claimants to proof of their title. The transfer of possession is one of the chief methods of transferring ownership.

Salmond also said that possession is of such efficacy that a possessor may in many cases confer a good title on another, even though he has none himself.

He also made a distinction between possession in fact and possession in law.

1. Possession may and usually does exist both in fact and in law. The law recognizes as possession all that is such in fact, and nothing that is not such in fact, unless there is some special reason to the contrary.

2. Possession may exist in fact but not in law. Thus the possession by a servant of his master’s property is for some purposes not recognized as such by the law, and he is then said to have detention or custody rather than possession.

3. Possession may exist in law but not in fact; that is to say, for some special reason the law attributed the advantages and results of possession to someone who as a matter of fact does not possess. The possession thus fictitiously attributed to him is termed constructive.

In Roman law, possession in fact is called possessio naturalis, and possession in law as possessio civilis.

06. Corporeal and Incorporeal Possession

Corporeal Possession is the possession of a material object and Incorporeal Possession is the possession of anything other than a material object.

Corporeal possession is termed in Roman law possessio corporis. Incorporeal possession is distinguished as possessio juris, the possession of a right, just as incorporeal ownership is the ownership of a right.

Salmond further said that “corporeal possession is clearly some form of continuing relation between a person and a material object. It is equally clear that it is a relation of fact and not one of right”.

What, then, is the exact nature of that continuing de facto relation between a person and a thing, which is known as possession?

According to Salmond, the possession of a material object is the continuing exercise of a claim to the exclusive use of it.

It involves two distinct elements, one of which is mental or subjective, the other physical or objective.

The mental element comprises of the intention of the possessor with respect to the thing possessed, while the physical element comprises of the external facts in which this intention has realised, embodied, or fulfilled itself.

The Romans called the mental element as animus and the subject element as corpus. The mental or subjective element is also called as animus possidendi, animus sibi habendi, or animus domini.

07. The Animus Possidendi

The intent necessary to constitute possession is the intent to appropriate to oneself the exclusive use of the thing possessed. It is an exclusive claim to a material object. Salmond made following observations in this regard.

1. It is not necessarily a claim of right.

2. The claim of the possessor must be exclusive.

3. The animus possidendi need not amount to a claim of intent to use the thing as owner.

4. The animus possidendi need not be a claim on one’s own behalf.

5. The animus possidendi need not be specific, but may be merely general. It does not necessarily involve any continuous or present knowledge of the particular thing possessed or of the possessor’s relation to it.

08. The Corpus Possessionis

The claim of the possessor must be effectively realized in the facts; that is to say, it must be actually and continuously exercised. The corpus possessionis consists in nothing more than the continuing exclusion of alien interference, coupled with ability to use the thing oneself at will. Actual use of it is not essential.

09. Immediate and Mediate Possession

The possession held by one man through another may be termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct.

There are three kinds of Mediate Possession:

1. Possession that is acquired through an agent or servant who claims no interest of his own.

2. The direct possession is in one who holds both on the actual possessor’s account and on his own, but who recognizes the actual possessor’s superior right to obtain from him the direct possession whenever he choose to demand it.

3. The immediate possession is in a person who claims it for himself until some time has elapsed or some condition has been fulfilled, but who acknowledges the title of another for whom he holds the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end.

10. Concurrent or Duplicate Possession

1. Mediate and Immediate Possession co-exist in respect of the same thing as already explained above.

2. Two or more persons may possess the same thing in common, just as they may own it in common. This also called as compossessio.

3. Corporeal and Incorporeal Possession may co-exist in respect of the same material object, just as corporeal and incorporeal ownership may.

11. Incorporeal Possession

In Incorporeal Possession as well, the same two elements required, namely the animus and the corpus. In the case of incorporeal things, continuing non-use is inconsistent with possession, though in the case of corporeal things it is consistent with it.

Incorporeal possession is commonly called the possession of a right, and corporeal possession is distinguished from it as the possession of a thing. The distinction between corporeal and incorporeal possession is clearly analogous to that between corporeal and incorporeal ownership.

Corporeal possession, like corporeal ownership, is that of a thing; while incorporeal possession, like incorporeal ownership, is that of a right. In essence, therefore, the two forms of possession are identical, just as the two forms of ownership are.

Hence, Possession in its full compass and generic application means the continuing exercise of any claim or right.

12. Paton on Possession

Paton said that even though Possession is a concept of law still it lacks a uniform approach by the jurists. Some jurists make a distinction between legal and lawful possession. Possession of a thief is legal, but not lawful. In some cases, where possession in the popular sense is meant, it is easy to use some such term as physical control. Possession is also regarded as prima facie evidence of Ownership.

According to Paton, for English law there is no need to talk of mediate and immediate possession. The Bailee and the tenant clearly have full possession: Salmond's analysis may be necessary for some other systems of law, but it is not needed in English law.

13. Oliver Wendell Holmes and Von Savigny on Possesion

Savigny with other German thinkers (including Kant and Hegel) argued that possession, in the eyes of the law, requires that the person claiming possession intend to hold the property in question as an owner rather than recognize the superior title of another person, so that in providing possessory remedies to lessees, Bailees, and others who lack such intentions, modem law sacrifices principle to convenience.

To this Holmes responded that he “cannot see what is left of a principle which avows itself inconsistent with convenience and the actual course of legislation. The first call of a theory of law is that it should fit the facts. It must explain the observed course of legislation. And as it is pretty certain that men will make laws which seem to them convenient without troubling themselves very much what principles are encountered by their legislation, a principle which defies convenience is likely to wait some time before it finds itself permanently realized.”

Holmes also criticised Savigny and other German theorists by saying that “they have known no other system than the Roman”. In his works, Holmes proved that the Anglo-American Law of Possession derived not from Roman law, but rather from pre-Roman German law.

One of Holmes's criticisms of the German theorists, signally including Savigny, is that they "have known no other system than the Roman, ' .6 and he sets out to prove that the Anglo-American law of possession derives not from Roman law, but rather from pre- Roman German law.

09. Theories of Possession and Ownership

The idea and concept of ownership is developed by slow degrees with the growth of civilization. In primitive societies the only concept known to human mind was that of possession. It was much later that the concept of ownership adopted. So long as the people were wandering from place to place and had no settled place of residence, they had no sense of ownership. The idea began to grow when they started planting trees, cultivating lands and building their homes. The transition from a pastoral to an agricultural economy helped the development of the idea and concept of the ownership.

Thus, ownership denotes the relation between a person and an objective forming the subject matter of his/her ownership. The normal case of ownership can be expected to exhibit the incidents as follows: First, the owner will have a right to possess the thing which s/he owns. Secondly, the owner normally has the right to use and enjoy the thing owned. Thirdly, the owner has the right to consume, destroy or alienate the thing. Fourthly, ownership has the characteristics of being indeterminate in duration. Fifthly, ownership has a residuary character.

01. Meaning and definition of ownership

The literal meaning of the term ‘own’ is to have or hold a thing. The one who holds a thing as his own is said to be the owner and has right of ownership ever it. Thus in the non-legal sense ownership may be defined as the right of exclusive control over and disposal of a thing at will.

In the legal sense the term ownership carries the meaning 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.

Normally ownership implies,

a) the right to possess,

b) the right to use,

c) the right to manage,

d) the right to capital and

e) the right to income.

The concept of the ownership is one of the fundamental juristic concept common to all system of law. Different writers have defined ownership in different ways.

Austin defined ownership as ‘a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration.’

Austin’s definition thus implies thee attributes viz.,

a) indefinite user,

b) unrestricted disposition and

c) unlimited duration.

Holland‘s definition: Austin’s definition of ownership has been followed by Holland. He defines ownership as plenary control over an object. According to him an owner has thee rights on the subject owned:-

a) Possession

b) Enjoyment

c) Disposition

According to Salmond, ‘Ownership in most comprehensive significance denotes the relation between a person and any right that is vested in him.’ That, which a man owns, according to him, is in all cases a right. Ownership in this wider sense extends to all classes of rights, whether proprietary or personal, in rem or in personam, in re-propria or in re-aliena. He adds that it applies not only to rights in the strict sense but also to liberties, powers and immunities.

Thus, according to Salmond ownership vests in the owner a complex of rights which s/he exercises to the exclusion of all others. For Salmond what constitutes ownership a bundle of rights which in here in an individual. Salmond’s definition thus points out two attributes of ownership:-

a) Ownership is a relation between a person and rights that is vested in him;

b) Ownership is incorporeal (immaterial, having no material body or form).

For Salmon a man may own a copyright or a right of way in the same way as s/he owns a piece of land because in all the cases s/he owns only a right and not a thing.

Hohfield expresses a similar view (like that of Salmond) when he says ownership is not a right but a bundle of rights, privileges, powers etc.

Duguit has defined, ‘Ownership is a relation between a person and a thing. On account of this relation the person has the power of disposal, use and enjoyment of the thing.’

We may conclusion say that-

a) Ownership is a right which comprises of powers, claims, privileges, etc.

b) Ownership is in respect of a thing which may be corporeal or incorporeal.

c) The rights relating to or in connection with ownership are subject to state regulation i.e., can be limited or restricted by law.

d) Owner is he who is entitled to the residue of rights with respect to an object left after the limitation resulting from the voluntary acts of the owner (mortgage, lease or hire) or those imposed by law are exhausted,

e) Ownership does not imply or indicate absolute or unlimited rights either regarding use, disposal or duration.

02. Essentials of ownership

i. The first essential of ownership is that it is indefinite in point of user. It is impossible to define or sum up exhaustively the wide variety of ways in which the thing owned may be used by the person entitled to its ownership.

ii. Another essential of ownership is that it is unrestricted in point of disposition. An owner can effectively dispose of his property by a conveyance during his lifetime or by will after his death.

iii. The owner has a right to possess the thing which s/he owns.

iv. The owner has the right to exhaust the thing while using it, if the nature of the thing owned is such.

v. Another essential of ownership is that it has a residuary character. An owner may part with several rights in respect of the thing owned by him/her.

vi. Generally, the owner has the right to destroy or alienate the thing s/he owns.

03. Characteristics of ownership

i. Ownership is absolute or restricted. It may be limited to a lesser or greater extent, either voluntarily or under compulsion of law.

ii. Right of ownership may also be restricted national emergency.

iii. An owner has to pay taxes to the state and exercise of his right of ownership.

iv. An owner must not exercise his right of ownership in such a way as to infringe the right of other owners.

v. An owner has not the freedom to dispose of his property in any way he likes. S/he can not transfer the property to defraud his creditor.

vi. Infants and lunatics are under a disability in the eye of law because they can neither understand the true nature of their acts nor the consequences.

vii. Ownership does not generally terminate with the death of the owner. It passes to legal heirs in case of intestacy.

04. The subject matter of ownership

The prime subject matter of ownership consists of material objects such as land and chattels. But ownership is by no means limited to things of this category. A human being’s wealth may consist of such things as interests in the land of others, debts due to him, shares in companies, patents, designs, trademarks, copyrights and so on. Salmond indeed took the view that the true subject matter of ownership has to be a right in all cases.

05. Criticism

I. Austin’s view of ownership has been criticized on various grounds;

a. It is pointed out that ownership is not a right but a bundle of rights. It is the aggregate or sum total of the rights of user and enjoyment.

b. Ownership is not merely a right but also a relationship between the right owned and the person owning it.

c. The idea of the right of indefinite user is also attacked. Many limitations can be put upon that user. The owner must use his property in such a way as not to interfere with the rights of others.

II. Salmond’s view of ownership has been criticized by many writers;

a. According to Duguit, ownership is a relationship between a person and a thing over which he is permitted, on account of this relationship, complete disposal, use and enjoyment. What is owned is a thing and not a right.

b. According to Cook, there are many rights which a person may possess and to use the term ‘owner’ to express the relationship between a person and a right is to introduce necessary confusion. Ownership is the name given to the bundle of rights.

c. According to Kocourek, ownership is a relationship of the owner and a right to a thing which can be economically enjoyed. The right of ownership is a matter of legal protection.

10. Kinds of Possession and Ownership

Ownership may be of various kinds. Broadly, it may be classified under the following heads-

I. Vested and Contingent ownership

II. Sole and Co-ownership

III. Corporeal and Incorporeal ownership

IV. Legal and Equitable ownership

V. Trust and Beneficial ownership

VI. Absolute and Limited ownership

01. Vested and Contingent ownership

Ownership is either vested or contingent. It is vested when the owner’s title already perfect, it is contingent when his title is as yet imperfect, but is capable of becoming perfect on the fulfillment of some condition. In the former case the ownership is absolute; in the latter it is merely conditional. Once it is matured it automatically converts into vested type of ownership.

02. Sole and Co-ownership

Sole ownership indicates the singular control over the property. In this concept an individual only entertains all sorts of rights of ownership over his owned property. Co-ownership is a concept of plural or multiple owners holding right over the particular property. A single person cannot entertain the rights of ownership in group.

03. Corporeal and Incorporeal ownership

Ownership over any material object which can be movable or immovable but tangible objects is called corporeal ownership. Incorporeal Ownership means ownership over the immaterial things such as right over patent, design, trademark, copyright etc.

04. Legal and Equitable ownership

The distinct between legal and equitable ownership is limited in English common law only. Legal ownership is a legally defined and protected property. Generally, ownership is understood as a legal ownership. In other words, legal ownership is that which has its origin in the rules of the common law.

Equitable ownership is basically carried out from the Chancery courts of UK. Equity courts protect the rights of property. Equity law granted rights were the concept of equitable ownership. Equity law is a concept of natural law philosophy. It does have no practicability to rest of the world.

05. Trust and Beneficial ownership

Trust ownership is also known as duplicate or dual types of ownership. It is well defined right that one should use the right to favor other. This kind of ownerships looks like ceremonial having no powers.

Beneficial ownership is relating to rights over the trust to use the authority in favor of the trust itself. This type of ownership is taken as a real ownership because it is powerful and using right to favor the trust is to benefit all trustees. Moreover user is none other than a trustee.

06. Absolute and Limited ownership

Absolute ownership is a concept of right having no any conditions. Particular property is totally under the control of owner. Limited ownership is a conditional approach of the rights over the property. It is basically based on contract law or dependency and various defined limitations towards the entertainment of right relating to ownership.

07. Function of Ownership

From the above mentioned definition, characteristic and classification etc. function of the ownership is itself clear. According to Dias, the function of the ownership is as follows:

The ownership has been stated that as right in itself, distinct from its component jurally relations, has always been usefully for identifying certain groups of interests and for distinguishing them from others. This is because ownership of these special groups was originally an index not merely to wealth, but to social position, and it was socially significant in other ways as well. Possession, as has been seen, is a judicial concept and an instrument of judicial policy.

In the words of Lord Evershed ‘property like other interests has a social obligation to perform’. In English law the various forms of land holding designated a man’s social standing, whereas chattels, being fungible, did not have this function. Ownership of land was also a means of controlling government in so far as the qualification to vote was based upon it. Dominium in Roman law connected sovereignty, which is essentially a social concept and something more than just ownership, things of ownership the earliest forms of roman property, were precisely the things that were important to a primitive agricultural community.

08. Distinction between Possession and Ownership

According to Ihering, “Possession is the objective realization of ownership.” It is the external realization of ownership. It is a valuable piece of evidence to show the existence of ownership. It is in fact what ownership is in right. It is the de facto exercise of a claim while ownership is the de jure recognition of that claim. Possession is the de facto counterpart of ownership. It is the external form in which rightful claims normally manifest themselves. For example, a rented house is actually in possession of the tenant but the ownership of it is vested in the landlord.

According to Salmond, “ownership in its widest sense implies “the relation between a person and any right that is vested in him. Possession is in fact what ownership is in right. Bringing out distinction between possession and ownership Salmond pointed out that a person is said to be the owner of a thing when his claim receives the recognition and protection from the law of the state, but possession may be exercised and realized even without such recognition or protection from the law. Thus ownership has the guarantee of law but possession has some measure of security and value from the facts, without any possibility of support from land.

According to Austin, ownership in its wider sense is a right “indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration”. The right of alienation of property is a necessary incident to the right of ownership, but there are many restrictions with regard to the alienation of property today.

According to Pollock, “Ownership may be described as the entirety of the powers of use and disposal allowed by law. The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal; very often, there is no such person. We must look for the person having the residue of all such power when we have accounted for every detached and limited portion of it, and s/he will be the owner even if the immediate power or control and user are elsewhere”.

Possession and ownership differ in their mode of acquisition. The transfer of possession is comparatively easier and less technical but the transfer of ownership in most cases involves a technical process of convincing.

On the basis of above discussion, we can compare ownership and possession in this way in brief:

Ownership	Possession
i. Ownership is an absolute authority over the property.	i. Possession is relative authority holding physical control over the property.
ii. Ownership is perfectly legal right. It shows legal situation.	ii. Possession is possessory right only. It shows real situation.
iii. Ownership is a de jure concept.	iii. Possession is a de facto concept.
iv. Ownership right is wider concept.	iv. Possession is a right of consumption only.
v. Ownership holds unlimited and uncontrolled rights.	v. Possession right is limited concept of right.
vi. Transfer of ownership is not easy and it needs to legal or formal procedures, prerequisites of registration.	vi. Possession is comparatively easy and practically no need to register and such formalities.
vii. Ownership has no technical obstructions to transfer.	vii. Possession faces the technical obstacles for transfer.
viii. Ownership is a union of ownership and possession.	viii. Possession is a single concept giving no right of ownership.
ix. Ownership only does not carry practical use in the absence of possession.	ix. Possession may create ground for the ownership as well.
x. Ownership does not get priority if there is an equal right over the same property.	x. Possession is the real and basis of priority for the situation of equal rights.

09. Relation between Possession and Ownership

We have already adverted to the chief differences between possession and ownership. Speaking generally, ownership and possession have the same subject matter. Possession has been treated as an external evidence of ownership. A person in possession of a thing may be presumed to be the owner of it. The person in possession need not prove his ownership; instead, the burden of disproving ownership of the possessor is on the person who disputes his ownership. A long continuous and uninterrupted possession is an effective method of realization of ownership.

According to Salmond, the subject matter of possession and ownership is more or less the same, a thing which may be owned, may also be possessed. Likewise, a thing which may be taken into possession may also be owned. Salmond held that whatever may be owned may be possessed, and whatever may be possessed may be owned. Salmond further pointed out that “the law of prescription determines the process by which through the influence of time, possession without title ripens into ownership and ownership without possession withers away and dies”.

According to Sethna, the relationship between ownership and possession is same as that of body with soul. Just as existence of body is necessary for the realization of soul, likewise possession is necessary and useful for the expression of the ownership because it (possession) is external and formal.

Sir Henry Maine suggested that historically, the concept of possession is prior to that of ownership. In fact, right of possession has evolved out the right of ownership.

Possession is the de facto exercise of a claim while ownership is the de jure recognition of it. Possession is the guarantee of fact whereas ownership is the guarantee of law. A claim to possession is maintained by one’s own self asserting will but a claim to ownership is legally protected by the will of the State. Ihring observed that possession is the objective realization of ownership. Possession in fact, is what ownership is in right. The distinction between possession and ownership on the basis of fact and right is not tenable. Fact and right are not quite separate and independent ideas. One cannot exist without the other.

Conclusion,

The way of ownership, philosopher Salmond, had indicated the ownership cooperates with person and right. Austin quoted right to user of indefinite nature, Holland concerned for power to the possession, enjoyment and ownership.

Basically, ownership functions according to its definition and characteristics. In the functionally, it has social position and significant. It has the judicially as well as social control and policy. Ownership of land was also means of controlling government. By the way ownership is depends on according to the nation’s government. Although, philosopher defined its nature, definition, acquisition, kinds and function related with possession, owner, right and so on but it has naturally right with the nation about property, citizens and power.

At last, we can say that ownership is strictly a legal concept and possession is non-legal and pre-legal concept, so they have basic different but closely co-related with each other.

11. Modes of Acquiring Possession and Ownership

A thing is capable of being owned, the methods of acquiring ownership over it will vary from legal system to legal system. There are two modes of acquisition of ownership and those are original and derivative. Original acquisition can be absolute: res nullius and by occupation. Basically, one can acquire ownership in two ways:

i. by operation of law or

ii. by reason of some act or event.

As to the first, a statute might provide that all A’s property should after a certain period of time vest in B. As to the second this may consist in the first taking or madding a thing, both being cases of original acquisition. Thirdly, the thing may fall into man’s ownership without any human act, as would be the case if a piece of land were to break off from an island in a river and attach itself to my land on the opposite bank.

01. Original Mode

The original mode is the result of some independent personal act of the acquirer himself. This mode of acquisition may be of three kinds:

02. Absolute

When a ownership is acquired over previously ownerless object i.e. who took it first became the owner. For example when one shoots a bird or deer in a jungle open to public get gets the ownership.

03. Extinctive

Where there is extinction of previous ownership by an independent adverse act on the part of the acquirer, e.g. prescription. This is how a right of easement is acquired after a passage of time prescribed by law.

04. Accessory

When requisition of ownership is the result of accession. E.g. if tree bears fruits, the produce belongs to the owner unless he has parted with the right to the same.

05. Derivative Mode

When ownership is derived from a previous owner it is called derivative acquisition. This is derivative mode takes place from the title of a prior owner. It is derived either by purchase exchange, will, gift etc. Every legal system of the world provides some rules for the requisition of ownership by this mode. Indian Transfer of Property Act provides rules for the transfer of immovable property, Sale of Goods Act lays down rule for the transfer of movable property, Partnership Act for the transfer of property of the firm and the Companies Act for the transfer of Company property. Thus, the Derivative mode of acquisition of ownership may be:

· Title of prior owner

· Purchase

· Will

· Gift

· Transfer of Ownership

· Succession

· Exchange

· Sale

06. Title of Prior Owner

Agreement is an important means for acquiring property. In agreement a title is acquired with the consent of the previous owner. A wide connotation has been given to agreement as the model of acquiring property.

07. Purchase

A contract for sale does not confer title in immovable property. Section 54 of the Transfer of Property Act provides that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settles between the parties; it does not of itself, create any interest in or charge on such immovable property. However still, if a person has entered into possession over immovable property under a contract for sale and is in peaceful and settled possession of the property with the consent of the person in whom vests the title, he is entitled to protect his possession against the whole world, excepting a person having a title better than what he or his vendor possesses.

08. Will

This is the one and only instrument, which allows a person to dispose his property while he is alive and to take effect after his death.

09. Gift

The Hindu Succession Act has not made any provisions for making a gift by a manager of a joint family of his interest in the joint family property and as such Section 30 does not avail to the appellant and clearly of the opinion that the gift by the first defendant are invalid even as regards his interest in the joint family properties. There can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away but this view appears to us to be too right. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, the donee or des all that he can to put it within the power of the donee to obtain possession

10. Transfer of Ownership

The rights of a transferee from a co-owner are regulated by Section 44 of the Transfer of Property Act which provides that whereas one or two or more co-owners of the immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. According to this statutory provision also what transferee gets is the right of the transferor to joint possession and to enforce a partition of the same irrespective of the fact whether the property sold is fractional share of specified portion, exclusively in possession of the transferor.

11. Succession

The natural way of acquiring title to property is by succession. By succession property devolves on a person as a matter of course by operation of law, partition, custom or usage under intestate succession and testamentary succession operates in a different way and is dealt with hereunder.

12. Exchange

Section 118 of Transfer of Property Act defines exchange as “when two persons mutually transfer the ownership of one thing for ownership of another, neither thing or both things being money only, the transaction is called as exchange.

13. Sale

Sale is the most convenient mode of transfer of immovable property and consequently purchase is the ideal mode for acquiring title.

14. Process

Identification of relevant documents:

15. Tracing and scrutiny of title

For the purpose of scrutiny of title, property can conveniently be divided as registered and unregistered.

16. Unregistered Property

As a general rule, the seller should show a good title. For making the Buyer’s job easier, he should deliver to the Buyer an abstract of title (such as Wills, deeds of conveyance and also the events causing devolution of the ownership) at his (Seller’s) expense. Observe if there are any defects.

17. Registered PROPERTY

Unlike the unregistered property where the responsibility of the Seller is heavy, the Buyer has more care to be taken in case of registered property. The seller here, no longer need to trace the history of the property. The maxim caveat emptor applies and the Buyer carries more responsibility to trace the title of the Seller.

Document Check List:

· Absolute Sale Deed/Conditional Sale Deed/auction sale deed executed by the statutory bodies.

· Encumbrance Certificate from the Sub Registrar from the date of the allotment till date or 30 years earlier till date.

· Possession Certificate issued by the statutory body/society.

· Allotment letter issued by the statutory body/society.

· Khatha Certificate issued by the statutory authority.

· Certified or copy of the Lease-cum-sale agreement/auction sale agreement.

· Latest Tax paid receipt

· Auction sale confirmation issued by the statutory authority in case of auction sites.

· Genealogical Tree.

3.Map Obtain an authenticated copy of the site plan. See, if the schedule of the property tallies with the plan

4. Searches: Searches in various offices like, Sub Registrar’s office, Taluk Office, Municipal Council, City Corporation, Registrar of Companies, Civil Courts etc. have to be carried out and find out if the Seller has concealed any thing that is vital about the property in question.

5. Revenue Records: Search into revenue records is very important because the entries in revenue records depict possession.

6.Presumption regarding entries in revenue records: If name of a person is entered in revenue records, a presumption arises in favour of the person and unless and until this presumption is rebutted, the entries have to be considered as true and correct.

7. Effects of entries in revenue records: However, the entries in revenue records alone will not convey and title or will not have the effect of extinguishing the already existing title.

8. Two revenue records relating to same property: If there are two sets of revenue records regarding the same property and their entries are conflicting then the latest of the records will prevail.

9.Unchanged entries: The entries in revenue records which are unchanged fairly for a long time till not be rebutted by some stray entries.

10.Patta book: Entries in Patta Book do not confer any title.

11.Mutations:Whenever transfer of immovable property takes place, the name of the transferee (purchaser, lessee, mortgagor etc.) and nature of transfer will be entered in the revenue records. The entries are called the mutation entries.

12.Searches in the revenue records: Search of revenue records in revenue offices, Municipalities, Panchayats, City Corporations, etc. evidences possession of the property and also payment of property tax or land revenue as the case may be which fact can be further ascertained from the receipt issued at the time of payment.

13. Searches in Sub-Registrar’s office: Book No.1 and Index thereto are the registers to be looked into. These registers show name of the Village, town or area and also the names of the transferor and the transferee. They also describe the property, page Numbers, document Numbers and also volume Numbers. Once the name of the proposed transferor’s name is found, compare the description of the property with that of the deed produced by him.

14.Searches in land acquisition offices: This is an extra precaution to be taken. By making searches in the office of Land Acquisition Officer, check whether the land in question is proposed for acquisition in future. In Urban areas this fact can be ascertained from what is called as the Comprehensive Development Plan or Outline Development Plan as the case may be, which can be obtained from the concerned development authority.

15.Searches in Registrar of companies: The Register of Charges is the Chief record to be looked into the office of the Registrar of Companies. By looking into this register, see the particulars as to date of creation of charge, date of its registration, assets covered by the charge, name of the charge holder etc.

16.Searches in courts: Though this is somewhat tedious job, it is inevitable. Visit the Ministerial Office or the concerned office of the Jurisdictional Civil Court where sits and probate and succession cases are filed. Inspect the concerned register and make a search for at least 15-20 years and find out whether there is any dispute pending regarding the property in question. If the property is bequeathed, find out whether the same is probated.

17.Report: The title report is the sum and substance of the findings that have cropped up during tracing and scrutiny of title. Therefore a title report is the sum and substance of the various exercises under taken for investigation of title.

18.Specimen title report:

· Title report of the property address…………………. of M/S. ………………

· Title: Title report regarding the land and building belonging to…………

· Name and Address of Buyer/Lessee/Mortgagee etc.

· Discuss on the title of the property in the context of the Seller’s title

· Discuss on the title of the property with respect to the predecessors

· Searches: Discuss the results emerged as a result of searches made in the Sub Registrar’s office, ROC, Courts etc.

· Defects: Point out about the defects if any, in the title. Discuss about the remedies for curing the defects in the title

CONCLUSION

Jurisprudence, being the science and philosophy of natural, positive and normative laws has a lot to do in the legal life of the society as a whole. Unfortunately, the knowledge provided by Jurisprudence is practically put outside the purview of mandatorily enforceable legal system. However, this Science has a little influence among academicians and Jurists, but among the law making and executing authorities do not take Jurisprudence of much significant. The nature of laws, their function, their evaluation, and their evolution have a history with little orientation of Jurisprudence. Until and unless Jurisprudence forms an integral part of legislation and executive action, it cannot have much application as far as common people are concerned.

However, Jurisprudence reminds us what law ought to be when hardships in law as it is challenge the aggrieved parties. The Moral and qualitative approaches of this Science, if properly and effectively applied shall form a strong foundation for rule of law that is highly appreciated by people at large. The present dilemma of disbelief is legal process shall cease, then, forever.

[i] http://www.lawnotes.in/Modes_of_acquisition_of_property#ixzz4O1RTpN7t

Tuesday, November 1, 2016

JURISPRUDENCE – UNIT V – OBLIGATIONS AND PROPERTY