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Unit-IV
Ramesh Arjun
LEGAL RIGHTS
Wrongs

B
efore attempting to define a right, however, it is necessary to define two
other terms which are closely connected with it, namely, wrong and
duty.
 A wrong is simply a wrong act-an act contrary to the rule of right and
justice.
 A synonym of it is injury, in its true and primary sense of injuria
 In the secondary sense of harm or damage whether rightful or
wrongful, and whether inflicted by human agency or not.
 There are two kinds of Wrongs or injuries, those are either moral or
legal.
 A moral or natural wrong is an act which is morally or naturally
wrong, being contrary to the rule of natural justice.
 A legal wrong is an act which is legally wrong, being contrary to the
rule of legal justice and violation of the law.
 It is an act which is authoritatively determined to be wrong by a rule
of law, and is therefore treated as a wrong in and for the purposes of
the administration of justice by the state.
 a moral wrong may or may not be a wrong in law.
 Every legal wrong is punished.
Duties
 A duty is roughly speaking an act which one ought to do,
 An act the opposite of which would be a wrong.
 The duty and the act, however, are not strictly identical.
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 We have duties, may be under a duty, can be in breach of a duty.

 We cannot have acts, be under, or in breach of acts.
 To ascribe a duty to a man is to claim that he ought to perform a certain act.
 Yet not all the acts which a man ought to do constitute duties.
 His duties he owes to others by virtue of his position or station.
 The servant has a duty to serve his master, the child to obey his parent
and so on.
 Moreover a duty consists in positive acts, not in mere abstaining from
acting;
 a duty not to do something, except in so far as this is a manner of
describing a duty to do something else-
 a duty not to reveal something is a negative way of describing a
positive duty to keep it secret- is a duty of a rare and unusual sort.
 With duties we may contrast obligations.
 The typical example is the obligation that results from making a
promise.
 But there may be many other things which a man ought to do, but
which fit into neither of these categories.
 Many dictates of common morality, such as that one should not kill or
steal, hardly constitute duties or obligations in the strict sense.
 Duties like wrongs are of two kinds, being either moral or legal.
 These two classes are partly coincident and partly distinct.
For example, in England there is a legal duty not to sell or have for sale
adulterated milk, whether knowingly or otherwise, and without any question of
negligence. In so far as the duty is irrespective of knowledge and negligence it is
exclusively a legal not a moral duty. On the other hand, there is no legal duty in
England to refrain from offensive curiosity about one’s neighbors, even if the
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satisfaction of it does them harm. Here there is clearly a moral though not a legal
duty. Finally, there is both a moral and a legal duty not to steal.
 When the law recognizes an act as a duty, it commonly enforces the
performance of it, or punishes the disregard of it.
 But this sanction of legal force is an exceptional cases absent.
 A duty is legal because it is legally recognized, not necessarily
because it is legally enforced or sanctioned.
Rights
We have seen that in the strict sense a duty is something owed by one person to
another. The master has a right against his servant, the parent against his child and
so on. Rights are concerned with interests, and indeed have been defined as
interests protected by rules of right, that is by moral or legal rules.
 Yet rights and interests are not identical.
 Interests are things which are to a man’s advantage.
 He has an interest in his freedom or his reputation.
 His rights to these, if he has such rights, protect the interests, which
accordingly from the subject of his rights but are different from them.
 To say he has an interest in his reputation means that it is to his advantage to
enjoy a good name;
 To say he has a right to this is to imply that others ought not to take this
from him.
 Rights like wrongs and duties are either moral or legal.
 A moral or natural right is an interest recognized and protected by a rule of
morality.
 An interest the violation of which would be a moral wrong, and respect for
which is a moral duty.
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 A legal right, on the other hand, is an interest recognized and protected by a

rule of law.
 An interest the violation of which would be a legal wrong done to him
whose interest it is, and respect for which is a legal duty.
 It is to be noticed that in order that an interest should become the subject of a
legal right, it must obtain not merely legal protection, but also legal
recognition.
 The interests of beasts (prani sankula) are to some extent protected by the
law, inasmuch as cruelty to animals is a criminal offence.
 But beasts are not for this reason possessed of legal rights.
 The duty of humanity so enforced is not conceived (grahisu) by the law as a
duty towards beasts, but merely as a duty in respect of them.
 He who ill-treats a child violates a duty which he owes to the child and a
right which is vested in him.
 But he who ill-treats a dog breaks no vinculum juris between him and it, for
there is no bond of legal obligation between them.
 Similarly a man’s interests may obtain legal protection as against himself, as
when drunkenness or suicide is made a crime.
 But he has not for this reason a legal right against himself.
 The duty to refrain from drunkenness is not conceived by the law as a duty
owing by a man to himself, but as one owing by him to the community.
 Although a legal right is commonly accompanied by the power of instituting
legal proceedings for the enforcement of it, this is not invariably the case.
 As we shall see, there are classes of legal rights which are not enforceable by
any legal process;
 For example, debts barred by prescription or the lapse of time.
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 Just as there are imperfect and unenforceable legal duties, so there are
imperfect and unenforceable legal rights.
 The question has been debated whether rights and duties are necessarily
correlative.
According to one view, there can be no right without a corresponding duty, or duty
without a corresponding right any more than there can be a husband without a
wife, or a father without a child. For on this view every duty must be a duty
towards some person or persons, in whom therefore, a correlative right is vested.
And conversely every right must be a right against some person or persons, upon
whom, therefore a correlative duty is imposed.
 Every right or duty involves a bond of legal obligation by which two or
more persons are bound together.
 There can therefore be no duty unless there is someone to whom it is due;
 There can be no right unless there is someone from whom it is claimed;
 and there can be no wrong unless there is someone who is wronged, that is
to say, whose right has been violated.
The characteristics of a legal right
Every legal right has the five following characteristics
1. It is vested in a person who may be distinguished as the owner of the right,
the subject of it, the person entitled, or the person of inherence.
2. It avails against a person, upon whom lies the correlative duty. He may be
distinguished as the person bound, or as the subject of the duty or as the
person of incidence.
3. It obliges the person bound to an act or omission in favour of the person
entitled. This may be termed the content of the right.
4. The act or omission relates to something which may be termed the object or
subject matter of the right.
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5. Every legal right has a title, that is to say, certain facts or events by reason of
which the right has become vested in its owner.
 Thus if A buys a piece of land from B, A is the subject or owner of the right
so acquired.
 The persons bound by the correlative duty are persons in general, for a right
of this kind avails against all the world.
 The content of the right consists in non-interference with the purchaser’s
exclusive use of the land.
 The object or subject matter of the right is the land.
 And finally the title of the right is the conveyance by which it was acquired
from its former owner.
Every right, therefore, involves a threefold relation in which the owner of it stands.
i. It is a right against some person or persons.
ii. It is a right to some act or omission of such person or persons
iii. It is a right over or to some thing to which that act or omission relates.

 An ownerless right does not appear to be recognized by English law.

 This is not because an ownerless right is an impossibility.
 Yet although ownerless rights are not recognized, the ownership of a right
may be merely contingent or uncertain.
 The owner of it may be a person indeterminate.
 He may even be a person who is not yet born, and may therefore never come
into existence. Although every right has an owner, it need not have a vested
and certain owner.
 Thus the fee simple of land may be left by will to a person unborn at the
death of the testator.
 To whom does it belong in the meantime?
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 We cannot say that it belongs to no one for the reasons already indicated.
 We must say that it is presently owned by the unborn person, but that his
ownership is contingent on his birth.
 A right, as we have said, serves to protect an interest;
 And the object of the right is the thing in which the owner has this interest.
Legal rights in a wider sense of the term (Hohfeld’s)
We have confined our attention to legal rights in the strictest sense in which they
constitute the correlatives of legal duties. We must now consider the wider use of
the term, according to which rights, do not necessarily correspond with duties. In
this generic sense a legal right may be defined as any advantage or benefit
conferred upon a person by a rule of law.
Of rights in this sense there are four distinct kinds. These are
1. Rights (in the strict sense)
2. Liberties
3. Powers and
4. Immunities.
Each of these has its correlative, namely
1. Duties
2. No-rights
3. Liabilities and
4. Disabilities

The four pairs of correlatives may be arranged in the following table, the
correlatives being obtained by reading downwards.
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Right (strict Sensu) Liberty Power Immunity

Duty No-right Liability Disability

As we shall see, the four concepts within each rectangle are intimately related to
each other, whereas there is not the same relationship between the concepts in the
one rectangle and the concepts in the other rectangle.
Having already sufficiently considered rights and their correlative duties, we shall
now deal briefly with the others.
1. Liberties and No-rights-
 Just as my legal rights are the benefits which I derive from legal
duties imposed upon other persons,
 so my legal liberties are the benefits which I derive from the absence
of legal duties imposed upon myself.
 They are the various forms assumed by the interest which I have in
doing as I please. They are the things which I may do without being
prevented by the law.
 It is clear that the term right is often used in a wide sense to include
such liberty.
 I have a right (that is to say, I am at liberty) to do as I please with my
own;
 But I have no right and am not at liberty to interfere with what is
another’s.
 I have a right to express my opinions on public affairs, but I have no
right to publish a defamatory or seditious libel.
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 I have a right to defend myself against violence, but I have no right to

take revenge upon him who has injured me.
 I may have a legal liberty which involves no such duty of non-
interference imposed on others.
 If a landowner gives me a license to go upon his land,
 I have a right to do so, in the sense in which a right means a liberty;
 But I have no right to do so, in the sense in which a right vested in me
is the correlative of a duty imposed upon him.
 Though I have a liberty or right to go on his land, he has an equal
right or liberty to prevent me.
 The license has no other effect than to make that lawful which would
otherwise be unlawful.
 The correlative of A’s liberty to do a thing is B’s no-right that it shall
not be done,
 and the correlative of A’s liberty not to do a thing is B’s no-right that
it shall be done.
Thus a trespasser has a no right not to be forcibly ejected (i.e. has not a right
not to be forcibly ejected) corresponding to the occupier’s liberty to eject him.
Against, the owner of a building generally has a no right not to have his windows
darkened or his foundations weakened by the buildings or excavations of his
neighbors. In short, all cases of damnum sine injuria are cases of no right. (means
no legal rights are violated)
2. Powers and liabilities-Yet another class of legal rights consists of those
which are termed powers. Examples of such are the following;
 the right to make a will, or
 a landlord’s right of re-entry;
 the right to marry one’s deceased wife’s sister;
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 the power to sue and to prosecute;

 the right to rescind a contract for fraud;
 a power of appointment;
 the various powers vested in judges and other officials for the due
fulfillment of their functions.
All these are legal rights, they are legally recognized interests-
 They are advantages conferred by the law-but they are rights of a different
species from the two classes which we have already considered.
 They resemble liberties, and differ from rights strict sensu, inasmuch as they
have no duties corresponding to them.
 My right to make a will corresponds to no duty in any one else.
 That I have a right to make a will does not mean that I may make a will
innocently;
 It means that I can make a will effectively.
 That I have right to marry my cousin does not mean that such a marriage is
legally innocent;
 But that it is legally valid.
 It is not a liberty that I have, but a power.
 That a landlord has a right of re-entry on his tenant does not mean that in re-
entering he does the tenant no wrong, but that by so doing he effectively
terminates the lease.
 A power may be defined as ability conferred upon a person by the law to
alter, by his own will directed to that end, the rights, duties, liabilities or
other legal relations, either of himself or of other persons.
 Powers are either public or private.
 The former are those which are vested in a person as an agent or instrument
of the functions of the state;
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 They comprise the various forms of legislative, judicial, and executive

authority.
Private powers, on the other hand, are those which are vested in persons to be
exercised for their own purposes, and not as agents of the state. Power is either
ability to determine the legal relations of other persons, or ability to determine
one’s own.
 The first of these power over other persons is sometimes called authority;
 The second-power over oneself-is usually termed capacity.
 The correlative of a power is a liability.
 This connotes the presence of power vested in someone else, as against the
person with the liability.
 It is the position of one whose legal rights may be altered by the exercise of
a power.
 Examples are the liability of a tenant to have his lease determined by re-
entry,
 that of a judgment debtor to have execution issued against him,
 And that of an unfaithful spouse to be divorced.
 The most important form of liability is that which corresponds to the various
powers of action and prosecution.
 A tortfeasor is under a duty to pay damages for his wrong (this is called
tortuous liability) and is liable to be sued in tort;
 But a person who has committed no tort is also liable to be sued in tort,
though in this case the action will fail.
 A liability may be co-incident with a no-right;
 thus when a defaulting tenant has his goods distrained for rent, he has both a
no-right against his landlord not to have his goods touched and a liability to
have them impounded and sold against his will.
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 In this technical use of the term, a liability may be an advantageous position.

 Thus a person has a power to make a gift of his property (for by exercising
the power he alters the legal position both of himself and of the donee);
 Hence other persons, who may be given the property, have a liability to have
it given to them. This liability is beneficial not detrimental.
3. Immunities and disabilities.
o The term “right” is used in a fourth sense to mean an immunity from
the legal power of some other person.
o Just as a power is a legal ability to change legal relations,
o So an immunity is an exemption from having a given legal relation
changed by another. The right of a peer to be tried by his peers, for
example, was neither a right in the strict sense, nor a liberty, nor a
power.
o It was an exemption from trial by jury an immunity from the power of
the ordinary criminal courts.
o Immunity stands in the same relation to power as liberty (not) does to
right stricto sensu: immunity is exemption from the power of another
in the same way as liberty (not) is exemption from the right of
another.
o Immunity, in short, is no-liability.
o The correlative of immunity is disability (otherwise called inability,
or, more clearly though less elegantly, no-power).
o Disability is simply the absence of power.
o Thus the rule Nemo dat quod non habet can be expressed as a
disability on the part of persons in general to transfer property that
they do not themselves own.
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The kinds of legal rights

Rights and their correlative duties may be distinguished in various ways.

1. Perfect and imperfect rights. A perfect right is one which corresponds

to a perfect duty; and a perfect duty is one which is not merely recognized by
the law, but enforced. A duty is enforceable when an action or other legal
proceeding, civil or criminal, will lie for the breach of it, and when judgment will
be executed against the defendant, if need be, through the physical force of the
state. Imperfect rights are recognized by law but they are not enforceable in
the court of law because of some defects in the rights. Examples of imperfect
rights are;

a. Rights against foreign state or sovereign b. Time Barred Debt

An imperfect right may become perfect when the time barred debt is paid by
the debtor.
2. Positive and negative rights. A positive right corresponds to a positive
duty, and is a right that he on whom the duty lies shall do some positive act on
behalf of person entitled. A negative right corresponds to a negative duty, and is a
right that the person bound shall refrain from some act which would operate to the
prejudice of the person entitled. The former is a right to be positively benefited;
the latter is merely a right not to be harmed.

If “A” brought a watch from “B”, there is a positive legal duty on the part of B to
hand over the watch to B if price of watch has already been paid. If A is the owner
of a house in a locality then there is a negative legal duty on the other persons not
to disturb A in peaceful enjoyment of land.

3. Rights in rem and rights in personam. A right in rem, sometimes

called a real right, corresponds to a duty imposed upon persons in general; a right
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in personam, sometimes called a personal right, corresponds to a duty imposed

upon determinate individuals. A right in rem is available against the world at
large; a right in personam is available only against particular persons.

My right to the peaceable occupation of my farm is in rem, for all the world
is under a duty towards me not to interfere with it. But if I grant a lease of the farm
to a tenant, my right to receive the rent from him is in personam, for it avails
exclusively against the tenant himself. A right in rem, then, is an interest protected
against the world at large, a right in personam is an interest protected solely against
determinate individuals. Almost all rights in rem are negative, and most rights
in personam are positive, though in a few exceptional cases they are negative.

(4) Proprietary and personal rights. The aggregate of a man’s

proprietary rights constitutes his estate, his assets, or his property in one of the
many senses of that most equivocal or legal terms. The sum total of a man’s
personal rights, on the other hand, constitutes his status personal condition, as
opposed to his estate. If he owns land, or chattels, or patent rights, or the
goodwill of a business, or shares in a company, or if debts are owing to him, all
these right pertain to his estate. But if he is a free man and a citizen, a husband
and a father, the rights which he has as such pertain to his status or standing
in the law.

The distinction lies in the fact that proprietary rights are valuable, and
personal right are not. The former are those which are worth money; the latter
are those that are worth none. The former are the elements of man’s wealth; the
latter are merely elements in his well-being.

It makes no difference in this respect whether a right is jus in rem or jus in

personam. Right of either sort are proprietary, and make up the estate of the
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possessor if they are of economic value. Thus my right to the money in my

pocket is proprietary; but not less so is my right to the money which I have in
the bank. Stock in the funds is part of a man’s rights of personal liberty, and
of reputation, and of freedom from bodily harm, are personal, not
proprietary. They concern his welfare, not his wealth; they are juridical
merely, not also economic. So, also, with the rights of a husband and father
with respect to his wife and children. Rights such as these pertain to his legal
status, not his legal estate. If we go outside the sphere of private into that of
public law, we find the list of personal rights greatly increased. Citizenship,
honours, dignities, and official position in all its innumerable forms, pertain to
the law of status, not to that of property.

The term status is used in a variety of senses. It is used to refer to a man’s

legal condition of any kind, whether personal or proprietary. A man’s status in this
sense includes his whole position in the law- the sum total of his legal rights,
duties, liabilities or other legal relations, whether proprietary or personal, or any
particular group of them separately considered. Thus we may speak of the status of
a landowner, of a trustee, of an executor, of a solicitor and so on.

More commonly it is used to denote his personal legal condition in so far as

concerns his personal rights and burdens, to the exclusion of his proprietary
relations. Thus the same person may have at the same time the status of free man,
of a citizen, of a husband, of a father and so on. So we speak of the status of an
alien, a lunatic, or an infant; but not of a landowner or trustee.

The term may be used to refer to personal capacities and incapacities as

opposed to other elements of personal status . The law of status in this sense would
include the rules as to the contractual capacities and incapacities of married
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women, but not the personal rights and duties existing between her and her
husband.

(5) Rights in re propria and rights in re aliena. Right in the re properia is

a right in person’s own property while rights in re-aliena is a right in the property
of somebody else. Right in re-aliena is known as encumbrances also. The right in
re aliena, implies subjection of one person’s right to the right of another person in
the same property. Mainly there are four kinds of encumbrances: A). Easement B).
Securities. C).. Lease. D). Trusts. E). Pledge

Thus the right of a landowner may be subject to, and limited by, that of a
tenant to the temporary use of the property.

(6) Principal and accessory rights. These rights are also known as
antecedent and remedial right, and primary and accessory right. Pollock calls them
substantive and objective right. When a right has its own independent existence, it
is called principal right. When some other right is associated with principal right
then so associated right is called accessory right. This accessory right does not
enjoy an independent existence, generally violation of former, bring accessory
right into function. As for example, A has principal right that no one should
interfere in his peaceful enjoyment of premises, in case anybody does so A can
invoke his right to receive damages, which is an accessory or remedial right.
This concept is based on the maxim accessorium soquitur principle, that is the
accessory right follows the principal.

(7) Primary and sanctioning rights. We have discussed in an earlier

chapter the distinction between primary and sanctioning rights originates from
some wrong, i.e., from the violation of another right. Primary rights have some
source other than wrongs.
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It should be observed that a primary right can be either a right in rem,

e.g., my right not to be assaulted, or a right in personam, e.g., my right that you
perform your contract with me. But the sanctioning right which arises from the
violation of a primary right will be in all cases a right in personam. If you break
your contract, I now have a sanctioning right in personam to damages. But equally
if you violate my right not to be assaulted, I now have a sanctioning right in
personam to damages. The reason why sanctioning rights are in personam is
obvious enough. Rights in rem are negative and avail against all the world i.e., an
open or indefinite class of persons. Violations of such rights, therefore, must
consist of positive acts, and positive acts can only be performed by specific
persons; it makes no sense to talk of a positive act performed by an indefinite class
of persons; in other words a violation by all the world is a logical impossibility.
Consequently it is only against specific persons that sanctioning rights can e either
necessary or operative; they must be, therefore, rights in personam.

(8) Legal and equitable rights in England there were formerly two systems
of law, administered respectively in the courts of common law and the Court of
Chancery. These were to a considerable extent discordant. One of the results of this
discordance was the establishment of a distinction between two classes of rights,
distinguishable as legal and equitable. Legal rights are those which were
recognized by the courts of common law. Equitable rights (otherwise called
equities) are those which were recognized solely in the Court of Chancery.
Although all rights, whether legal or equitable, now obtain legal recognition in
all courts, the distinction is still of importance. The methods of their creation and
disposition are different. A legal mortgage of land must be created by deed, but an
equitable mortgage may be created by a written agreement or by a mere deposit of
title-deeds.
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Equitable rights have a more precarious existence than legal rights. Where
there are two inconsistent legal rights claimed adversely by different persons over
the same thing, the first in time generally prevails. A similar rule applies, in
general, to the competition of two inconsistent equitable rights . But when a legal
and an equitable rights conflict, the legal will prevail over and destroy the
equitable , even though subsequent to it in origin, provided that the owner of the
legal right acquired it for value and without notice of the prior equity. As between
a prior equitable mortgage, for example , and a subsequent legal mortgage
,preference will be given to the latter. The maxim is :Where there are equal
equities, the law will prevail.

(9) vested and contingent rights. An estate is said to be vested when it

gives a present right to take immediate possession of the property; while an
estate which gives a present right to the future possession of property is said to
be vested in interest. Contingent means that which awaits or depends on the
happening of an event. Immediate interest is the gist of vested interest being
complete in itself is transferable and inheritable. Contingent interest is on the other
hand subject to the happening or nor happening of certain facts and is incomplete
unless the requisite condition for the completion of title has taken place.

A contingent right is different, however, from a mere hope or spes. If A

leaves B a legacy in his will, B has no right to this during A’s lifetime. He has no
more than a hope that he will obtain he legacy; he certainly does not have an
incomplete right, since it is open to A at any time to alter his will.
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Ownership

The idea of ownership

Ownership denotes the relation 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 all the world and not merely against specific
persons. Though in certain situations some of these rights may be absent, the
normal case of ownership can be expected to exhibit the following incidents.

 First, the owner will have a right to possess the thing which he owns.
 He may not necessarily have possession,
 For he may have been wrongfully deprived of it or may have
voluntarily divested himself of it.

If A’s watch is stolen by B, the latter has possession but the former remains the
owner with an immediate right to possession. If A lends his watch for hire to C, A
now had neither possession nor an immediate right to possess. He is still the
owner, however, for he retains a reversionary interest in the watch, i, e., a right to
repossess it on the termination of the period of hire; And though he lacks in
English law the remedies available to a possessor for wrongful interference, he is
protected by a remedy in the form of an action on the case against interference
damaging his reversionary interest.

o Secondly, the owner normally has the right to use and enjoy the thing
owned:
o The right to manage it, i.e., the right to decide how it shall be used;
o And the right to the income from it.
o Whereas the right to possess is a right in the strict sense, these rights
are in fact liberties:
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o The owner has a liberty to use the thing i.e., He is under no duty not to
use it, in contrast with others who are under a duty not to use or
interfere with it.
o Thirdly, the owner has the right to consume, destroy or alienate the
thing.
o The rights to consume and destroy are straight-forward liberties.
o The right to alienate, i.c., the right to transfer his rights over the object
to another, involves the existence of power.
o Fourthly, ownership has the characteristic of being indeterminate in
duration.
o The position of an owner differs from that of a non-owner in
possession in that the latter’s interest is subject to be determined at
some future set point, whereas the interest of the owner can endure
theoretically forever.
o The interest of a bailee or lessee comes to an end when the period of
hire or of the lease determines;
o The owner’s interest is perpetual, being determined neither by any set
point nor by the owner’s death,
o Because the property owned can descend to the owner’s heir or next-
of-kin,
o and if he had sold the property prior to his death, then the new
owner’s interest would continue unaffected by the previous owner’s
death.
 Fifthly, ownership has a residuary character.

If, for example, a landowner gives a lease of his property to A, An easement to B

and Some other right such as a profit to C, His ownership now consists of the
 21

residual rights, i.c., the rights remaining when all these lesser rights remaining
when all these lesser rights have been given away.

The subject-matter of ownership

 The prime subject –matter of ownership consists of material objects

such as land chattels.
 But ownership is by no means limited to things of this category.
 A man’s wealth may consist not only of his land and goods, but of
such things as interests in the land of others, debts due to him, shares
in companies, patents, copyrights and his interest in trust funds.

Thus he may have a profit a prendre to catch and take fish from A’s land; a
debt of Rs.100 owing him from B; shares in C Co. Ltd, various patents, copyrights
and other industrial property; and an interest in various trust funds.

Yet none of these is a material or physical thing. They are in fact nothing
other than rights:

 the right to recover the debt from the debtor,

 the rights of a shareholder under company law,
 the right of exclusive exploitation of the patent or copyright, and the
right to be paid out of the trust fund (h).

Usually a man is said not to own, but to have, a right.

 In the first place many rights, such as the right of free speech or of
reputation, do not appear to be fit subjects of ownership at all:
 a man does not own a right to his reputation; that is a right which he
has.
 22

 Secondly, the contrast between ownership and possession or some

lesser interest, though applicable to some rights such as a profit a
prendre, has no application whatsoever to others:
 one cannot lease or sell one’s right to one’s reputation.

Of course there is no compelling logical reason why a legal system should

not provide for such transactions, in which case such a right would become a
valuable and marketable item of property.

 But in a society which regards only certain rights as marketable, it is

natural that such transactions should be restricted to these;
 And that the things and rights that can form the subject-matter of such
transactions – and these only –should be regarded as capable of
ownership.
 In English law certain things qualify as capable of being owned but as
not in fact being owned; others would seem to be incapable by nature
of being owned.
 The former class included things not yet reduced into anyone’s
ownership: e.g., islands outside the territory of any state, wild animals
not reduced into captivity, meteorites landing in the sea.
 In addition there are certain things in a material sense which are by
nature not ownable: living persons; corpses other than anatomical
specimens;
 Thing common to all men, such as the air and the sea; and things
beyond our reach, such as the sun, moon and starts.
 But while these things are in principle incapable of ownership, there is
nothing in law or logic to prevent us from having a different principle.
 Our law could permit slavery.
 23

 It could provide that the air and the sea might be owned, sold, bought,
rented and so forth, as may be done with the subsoil of the ocean:
 Effective control is no longer impossible with regard to these
elements, and it would be perfectly feasible to allow one man to
charge another for breathing the air or crossing the sea.
 Even such objects as the sun, which, we may guess, will never be
subject to human control, are not things to which the notion of
ownership is completely inappropriate.

A system of law under which the king owned the sun and was entitled to
charge a fee from those who benefited from its rays would be perfectly
possible.

Basically one can acquire ownership in two ways: by operation of law or 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 making a thing, both being cases of original
acquisition. Or it may consist in taking the things from another with or without his
consent, both being now cases of derivative acquisition, since the new owner’s title
is derived from that of his predecessor.

Thirdly, the thing may fall into a 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.

But secondly, private ownership has been seen as a menace to society by

reason of the fact that great wealth spells great influence and power. High rates of
income tax and estate duty have done much to lessen individual fortunes and so
 24

individual power, while at the same time much that was formerly in private hands
has been transferred to public ownership.

But the public ownership of such things as the railways, airlines, coal
mines and so on is not necessarily a satisfactory solution to the problem.

For in the first place, whether in private or public hands, they must still be
managed, and the managers may have all or much of the power formerly possessed
by the previous owners.

In any case, the development of the trust on the one hand and the limited
company on the other, has brought about a division between management and
ownership, resulting in power being in reality in the hands of the former rather than
the latter.

Classification of Ownership

1. Sole ownership and co-ownership

In case the ownership vested in the single person only it is called sole
ownership. Ownership vested in more than one person is called co-ownership.
Partnership, trust, coparcenary are example of co-ownership. In co-ownership the
subject matter of the ownership is common. All the co-owners enjoy the common
right over the subject. Tenants in common and joint tenants are co-owners of the
tenancy. The co-owner may become sole owner after having their respective share
from the subject matter.

Partners, for example, are co-owners of the chattels which constitute their stock-in-
trade, of the lease of the premises on which their business is conducted, and of the
debts owing to them by their customers. It is not correct to say that property owned
 25

by co-owners is divided between them each of them owning a separate part. It is an

undivided unity, which is vested at the same time in more than one person. If two
partners have at their bank a credit balance of Rs. 1.000, there is one debt of
Rs.1,000 owning by the bank to both of them at once, not two separate debts of
Rs.500 due to each of them individually.

Each partner is entitled to the whole sum, just as each would owe to the bank the
whole of the firm’s overdraft. The several ownership of a part is a different thing
from the co-ownership of the whole. So soon as each of two co-owners begins to
own a part of the thing instead of the whole of it, the co-ownership has been
dissolved into sole ownership by the process known as partition. Co-ownership
involves the undivided integrity of what is owned.

In ownership in common the right of a dead man descends to his successors

like any other inheritable right. But on the death of one of two joint owners his
ownership dies with him, and the survivor becomes the sole owner by virtue of his
right of survivorship or jus accrescendi.

2. The fragmentation of ownership in respect of time

So far we have discussed how two or more persons can be simultaneously

owners of the same property by being co-owners. Much more important is the way
in which the rights of ownership can be split between several persons on the
temporal plane .

For example, a landowner wishing to provide for his sons. A and B, may
constitute them co-owners of it. Alternatively he might divide the land into two
parts, giving one part to each as sole owner. A third method would be to convey
the land to A for life and thereafter to B in fee simple. In this case neither son
 26

becomes sole owner of a separate estate or interest in the land; nor would they be
co-owners. Each is sole owner of a separate estate or interest in the land. A has a
life estate, which is vested in possession; B has a fee simple remainder vested, not
in possession, but in interest. The value of this third method is that it enables the
owners to make provision for both sons, while ensuring that the land remains
intact.

3. Trust and beneficial ownership

In the words of Salmond, Trust property is that which is owned by two

persons at the same time, the relation between the two owners being such that one
of them is under an obligation to use his ownership for the benefit of another. The
former is called the trustee and his ownership is trust ownership.

As for example if X takes the property in trust for Y, then X is the trustee of
the property and B beneficiary of the property. Here X is having trust ownership
while B is enjoying the beneficial ownership. Law imposes certain limitations on
the person having trust ownership.

a. The trustee has no right of the beneficial enjoyment of the property.

b. Right of the trustee over the property is subsidiary of the right of
beneficiary. Right of beneficiary prevails over the right of trustee.
c. Trustee act as an agent, for the benefit of the beneficiary. His ownership is
nominal.
d. Even if trustee enjoys the trust ownership but still property belong to the
beneficiary.
e. Between the trustee and the third person trustee is recognized as legal owner,
because law factiously attributes property on him.
 27

f. Both trust ownership and beneficial ownerships different from each other,
one can be transferred or encumbered without affecting other.

The other characteristics of trust and beneficial ownership are;

a. In case the trustee sells the trust property to the bonafide purchase for a
value without knowledge of trust then he will get a good title.
b. A trustee is personally liable for contracts entered into in relation to the trust
property.
c. Sometime trust is created by an unilateral act, a person may become bound
by a trust by his conduct.
d. Beneficiary of a trust can take remedial action in case of breach of trust even
if he is not a party to the creation for the trust.
4. Legal and equitable ownership

Closely connected but not identical with the distinction between trust and
beneficial ownership is that between legal and equitable ownership. One person
may be the legal and another the equitable owner of the same thing or the same
right at the same time. Legal ownership is that which has its origin in the rules of
the common law, while equitable ownership is that which proceeds from rules of
equity divergent from the common law. The courts of common law refused to
recognize equitable ownership, and denied that the equitable owner was an owner
at all.

When a debt is orally assigned by A to B, A remains the legal owner of it

none the less, but B becomes the equitable owner of it. But here are not for that
reason two debts. There is only one as before, though it has now two owners. The
thing which he thus equitably owns is a legal right, which is at the same time
 28

legally owned by A. Similarly the ownership of an equitable mortgage is a

different thing from the equitable ownership of a legal mortgage.

5. Vested and contingent ownership

An estate is said to be vested in possession when it gives a present right to

the immediate possession of the property; while an estate which gives a present
right to the future possession of property is said to be vetted in interest. Contingent
means that which awaits or depends on the happening of an event.

Salmond says, ownership is either vested or contingent. It is vested when the title
of the owner is already perfect. It is contingent when his title is yet imperfect, but
is capabl3 of becoming perfect on the fulfillment of some condition. In the former
the ownership is absolute while in the latter it is conditional.

If X gives his car in gift to Y then Y acquires vested interest in the property. If X
gives car in gift to Y provided he gets a driving license within 10 days, here Y has
contingent interest in the car. In case he gets license within given period then the
contingent interest will become vested interest.

Contingent interest may depend on happening or non happening of certain events.

Immediate right of possession is not essential for acquiring vested interest.
Contingent interest may base on a condition precedent or condition subsequent.
Condition precedent makes an incomplete title complete whereas condition
subsequent extinguish the complete title.

If X gifts his house to Y provided he obtain citizenship of India, this is a precedent

condition. If X donate his house to Y on the condition, that it will revert back to the
donor in case, Y got another house. This is a subsequent condition. In case of
precedent conditions state is not vested in guarantee unless precedent conditional is
fulfilled. Whereas in subsequent condition property vested in grantee immediately
and continues so unless the condition takes effect.
 29

In case precedent condition is an unlawful, immoral, impossible one then the

transfer will become void. In case subsequent condition is unlawful, immoral,
impossible the estate become absolute and there is no obligation on the grantee to
fulfill subsequent condition.
 30

POSSESSION

The idea of possession

Few relationships are as vital to man as that of possession, and we may

expect any system of law, however primitive, to provide rules for its protection.
Human life and human society, as we know them, would be impossible without the
use and consumption of material things. We need food to eat, clothes to wear and
tools to use in order to win a living from our environment. But to eat food, we must
first get hold of it; to wear clothes, we must have them; and to use tools, we must
possess them. Possession of material things then is essential to life; it is the most
basic relationship between men and things.

Nor is it just the acquisition of possession that is essential. A society lacking

all respect for individual possession would quite clearly be unviable. If a man
could never be sure that the food before him, the coat on his back and the tool in
his hand will not be snatched from him by his neighbour, then obviously life in
society would be completely impracticable. Simple economics dictates that, as a
minimum, some measure of uninterrupted enjoyment is a prerequisite to man’s
deriving any benefit or value from material objects and that such temporary
possession must be respected by, and protected from, his neighbours.

Otherwise the result is violence, chaos and disorder. In so far therefore as a

legal system aims to replace self-help and private defence by institutionalized
protection of rights and maintenance of order, it must incorporate rules relating to
possession.

Whether a person has ownership depends on rules of law; whether he has

possession is a question that could be answered as a matter of fact and without
 31

reference to law at all. Whereas ownership is strictly a legal concept, possession is

both a legal and a non-legal or pre-legal concept.

Possession in fact

Possession, in fact, is a relationship between a person and a thing. I possess,

roughly speaking, those things which I have: the things which I hold in my hand,
the clothes which I wear, and the objects which I have by me. To possess them is
to have them under my physical control. If I capture a wild animal, I get possession
of it; if it escapes from my control, then I lose possession.

Things not in any way amenable to human control cannot from the subject-matter
of possession.

A man cannot be said to possess for example the sun, the moon or the stars. Now
to say that something is under my control is not to assert that I am continuously
exercising control over it. I can have a thing in my control without actually holding
or using it at every given moment of time. In the ordinary sense of the word, I
retain possession of my coat even if I take it off and put it down beside me; and I
continue in possession of it even though I fall asleep.

Now whether in any given case I can be said to have sufficient control
(whether actual or potential) to be in possession of an object will depend on a
variety of factors. Possession of small objects may involve holding them or else
having them near to hand; a fairly ungovernable object such as a wild animal is
capable of being possessed by being confined in a cage, without the possessor’s
being able to lay hold of it himself; a large or immovable object, such as a ship
or a house, could be said to remain in my possession even though I am miles
away and able to exercise very little control, if any.
 32

Another factor relevant to the assessment of control is the power of

excluding other people. Once actual control is abandoned, the possibility of
resumption may well depend on the lack of outside interference. This may be
due to the possessor’s own physical power and influence; to his having kept
secret the object’s existence or whereabouts; to his neighbour’s customary respect
for possession, i.e., their unwillingness to interfere if the exercise of control has
been interrupted; and finally to the law itself which may penalize any such
interruption. Indeed so, important is the exclusion of others to the notion of
possession that it is sometimes regarded as an essential part of the very concept; to
possess anything, it is said, entails being able or intending to exclude others from
it. that this is not so, however, can be seen from the fact that possession is a term
apt to describe even situations involving only one person. If the sole inhabitant of a
desert island catches a fish, he can quite correctly be described as getting
possession of it, as keeping it in his possession, or as losing possession of it if it
escapes. Here actual possession differs from ownership, which consists of rights
and which therefore, automatically involves the existence of persons against whom
the owner can have those rights. But words are not used idly and possession is not
just a term used to catalogue everything which a man happens to have at any one
time. We should hardly attribute to the man on the island possession his clothes,
for example, there would be no point in our doing so; whereas the point in
describing his relationship with the fish in terms of possession was to contrast his
position with regard to this particular fish with his position with regard to those
which he had not caught. Now the contrast we usually want to make is between
those cases where we have exclusive control and those where we do not. The factor
of exclusion, therefore, though not logically essential to possession, is, because of
its effect on the ability to control and because of the kind of distinctions we wish to
draw, a highly important feature; it is central in the sense that cases of possession
 33

without such exclusion are odd exceptions; the example of the man on the island is
an unusual and marginal situation.

So far no distinction has been made between the mental and physical aspects
of possession. Many jurists have distinguished two such elements. Salmond
considered that possession consisted of a corpus possessionis and an animus
possidendi. The former, he thought, comprised both the power to use the thing
possessed and the existence of grounds for the expectation that the possessor’s
use will not be interfered with. The latter consisted of an intent to appropriate
to oneself the exclusive use of the thing possessed.

But it would be odd to describe a day-old baby or a man in a protracted

coma as actually (as opposed to legally) possessing anything at all. As against this,
however, we may find counter examples of possession unaccompanied by
intention. I should normally be said to possess the coins in my pocket, even if
unaware of their existence and so unable to form any intention in respect of
them.

Can we say then that what the possessor needs is at least a minimum
intention, an intent to exclude others from whatever may be in his pocket? To this
there are two replies. First, in its widest and loosest sense, the sense in which
“possesses” simply means “has”, I can be said to possess such things as a stout
heart or a good sense of humour-without any question of intent arising.
Secondly, in the narrower sense, where the subject –matter of possession consists
of material objects other than parts of the possessor’s own body, it is misleading to
assert that the possessor must actually be intending anything at all. If I possess
something, then it is true that if my possession is challenged or attacked I shall
probably display an intention of excluding such interference. But unless my
 34

possession is under attack – and in the normal course of events it is not;

furthermore it would be highly unusual to find a man’s possession under
constant attack-no question of, or need for, intent is involved.

The test then for determining whether a man is in possession of

anything is whether he is in general control of it. Unless he is actually holding
or using it – in which event he clearly has possession – we have to ask whether the
facts are such that we can expect him to be able to enjoy the use of it without
interference on the part of others.

Possession in law

We have seen that in any society some protection of possession is essential.

This being so, the law must needs provide such protection, and this it can do in two
different ways. First, the possessor can be given certain legal rights, such as a right
to continue in possession free from interference by others.

This primary right in rem can then be supported by various sanctioning

rights in personam against those who violate the possessor’s primary right: He can
be given a right to recover compensation for interference and for dispossession,
and a right to have his possession restored to him. Secondly, the law can protect
possession by prescribing criminal penalties for wrongful interference and for
wrongful dispossession.

By such civil and criminal remedies the law can safeguard a man’s de facto
possession. Possession in law would be identical with possession in fact; Even with
such a legal system, however, there would no doubt arise borderline questions to
which lay usage gave no answer but which the law would have to resolve: if A
loses his golf-ball on B’s golf-links and the ball is found by C, we cannot proceed
 35

with the matter of safeguarding possession until we know who in such a case
actually has possession. Yet, at the moment when C has found the ball but has not
yet picked it up, it is by no means clear which of these three parties would
ordinarily, and outside the law, be held to be in possession. A legal system’s
solutions to such marginal problems would inevitable refine the notion of
possession and produce divergences between the factual and the legal concepts.

Apart from this type of development however, the two concepts could quite
easily coincide. Nor need such coincidence restrict legal protection to cases of
actual possession. If A wrongfully takes possession of B’s watch, the law can still
afford all its possessory remedies to B, on the ground that B did originally have,
and therefore ought to have Possession. The fact that the law regards as possessors
only those who are actually in possession need not prevent it from protecting those
who are not in possession but who in the general view of society ought to be.
Indeed the protection of possession would be of little point if legal protection
ceased the moment possession was lost; the protection of possession entails
supporting the dispossessed against the dispossessor.

But when a system of law allows possessory rights and remedies to persons
not in actual possession, it may do so, not by considering them simply as entitled to
possession and its attendant rights, but by regarding them as being for legal
purposes in possession. Thus we may find that one who is not actually a possessor
is nevertheless considered as such in the eyes of the law; and conversely one who
actually has possession may be looked on by law as non-possessor. Accordingly
the concept of legal possession parts company still further from the ordinary notion
of possession, as law tends to invent instances of constructive possession, that is
cases where something less than possession in one person is deemed possession in
 36

law, and where conversely the actual possession of some other party is reduced to
something less than legal possession.

The common law relating to the crime of larceny provides numerous

examples of this tendency. This offence penalizes the wrongful taking of
possession, and in order to qualify as wrongful such taking must be without the
possessor’s consent and accompanied by an intent to deprive him permanently of
the object stolen. But there are many cases whee an unsuspecting owner allows the
wrongdoer to get possession with his consent and where accordingly dishonestly
would go scot-free but for the special provisions regarding possession in such
cases. Where a man asks his companion to hold his luggage, or a shopkeeper
allows a customer to examine his goods, or a master instructs his servants to use
his tools, or a host lets his guests use his table-ware in all these cases actual
possession might well be said to have been given by the first party to the second.
Consequently if the companion, the customer, the servant or the guest absconded
with the goods, they would not in ordinary language take possession against the
rightful possesor’s consent, since they would have already obtained it earlier with
consent. The law, however, provides that in such cases possession remains in the
first party, while the second is said to obtain mere custody of the article.
Accordingly he does not acquire legal possession until he makes off with the
article, but at this point he is acting without the rightful possessor’s consent and so
is guilty of a wrongful taking of possession.

It should be noted that there was nothing logically inevitable in this sort of
development; in order to catch dishonestly which is outside the strict meaning of
the definition of larceny, the law has extended the meaning of certain terms in the
definition; it could equally well have extended the definition itself.
 37

This indeed has been done to cope with the case of the dishonest bailee. In
common law a bailee is one who is given possession of goods on the understanding
that he is to deliver them in specie to the bailor or at the bailor’s directions. Such a
person acquires possession of the goods in law as well as in fact. Suppose then that
he misappropriates them? Having already got possession, he cannot, it would
seem, be guilty of larceny. First, the courts created a peculiar rule that the bailee
only got possession of the container and not of its contents; If he subsequently
“broke bulk” by opening the container and misappropriating the contents, he
became guilty of larceny. Later, however, legislation provided that if a bailee
fraudulently misappropriated the goods bailed to him he would be guilty of
stealing, thus providing that a baileee who has lawful possession can nevertheless
commit larceny of the goods he possesses. Here then the definition of larceny was
extended by extending the terms in the definition.

Similar to the problem of the baileee is that posed by the delivery by one
person to another of an object which, unknown to either of them, contains inside it
certain valuable items of property. A sells B a bureau, which, unknown to both,
contains jewels in a secret drawer. Who has possession, A or B? Ordinarily
perhaps we should consider that a person with possession of a container gets
possession also of the contents, and that the buyer in the above example would
simultaneously take possession of the bureau and the valuables. Common law,
however, holds that in such a case, unless the deliverer intends the deliveree to
obtain possession of the contents, the latter does not acquire legal possession of
them until he discovers them and that if at this stage he decides dishonestly to
misappropriate them, he accordingly becomes guilty of larceny.

In the above cases the physical possession of the accused is regarded as less
than legal possession, because the accused is unaware that he has the object. Yet in
 38

common law possession does not always involve knowledge of the presence or
existence of the subject matter. If A unknowingly takes something which is in B’s
possession, he nevertheless takes possession and commits a trespass against B. So
in the famous case or R.V. Riley the accused was held to have taken possession of
sheep which belonged to the prosecutor and which he unknowingly drove with his
own flock to market.

An occupier of land is held to be in possession of object under or attached to

the land whether he knows of them or not. SO if X take valuable rings embedded
in the soil of Y’s pool, he commits a trespass to goods which in law are in the
possession of Y, despite Y’s ignorance. For the purposes of larceny an occupier of
land has been held to be in possession also of articles lying on the land though not
attached to it. in Hibbert v. McKiernan balls lost on a golf-links and abandoned by
the owner were held to have fallen into the possession of the secretary and
members of the club. Whether things lying on but not attached to land are for civil
purposes in the possession of the occupier is not settled.

Normally, lost articles are deemed in law to remain in possession of the

loser. So, if I lose my wallet, in law I retain possession of it. Even though in fact I
might well be said to have lost possession. To lose not only the object but also
legal possession of it, the law requires that I should terminate my intention to retain
my rights over it, e.g., by throwing it away deliberately. In most cases it is a
question of inference from the circumstance whether the loser had abandoned his
legal possession, and this is a conclusion which the law is slow to draw.

We can see then sometimes possession is possible without knowledge of the

subject-matter and that sometimes such knowledge is a necessary requirement. We
can also see, however, that in common law possession is a relative matter. The
 39

common law is not normally concerned with the question who has the best right to
possess; it is concerned with the question which of the parties before the court has
the better right to posses. If A momentarily hands his wallet to B, from whom it is
stolen by C, who then loses it on D’s property, where it is then found by E, the
question who has the right to possess – which is often considered the same as the
question who has legal possession – will depend on who bring action against
whom.

Against all subsequent parties E’s title would prevail, for finding confers a
good title. In an action between D and E, however, it would seem that D would
have the better right if he could show that the article was found on property from
which he had a general intention to exclude others. Bridges v. Hawkesworth
decided that notes found on the floor of a shop passed into the possession of the
finder rather than of the shopkeeper. This case, which has been much criticized
was distinguished in South Stafffordshire Water Co. v. Sharman on the ground that
the notes were found in the public part of the shop, but would seem to have been
followed in Hannah v. Peel where a soldier, who found a brooch in a requisitioned
house, was held entitled to the brooch as against the owner of the house. Here,
however, the owner had never been in possession of the house.

In the recent case of London Corporation v. Appleyard and Another money

found on land was held to be in the possession of the occupier and not of the
finder. The occupier of land has possession in common law of articles under and
attached to his land and also, perhaps of articles lying on his land, unless they are
on a part of this land to which the public is admitted. Where the public is admitted,
the rule in Bridges v. Hawkesworth may still hold good, that is that the finder’s
right prevails. It is arguable that the occupier’s right should always prevail, since
the true owner will have more hope of recovering the article from the occupier of
 40

the place where it was lost than from a finder whose whereabouts may be
unknown. On the other hand, if there is no likelihood of the true owner’s
appearance to claim the property, perhaps the fairest course would be to treat the
object as a windfall and to divide the proceeds of sale between finder and occupier
equally.

To return to our example, neither D nor E would be said by law to have

possession as against C. the latter, since he had possession, has a right good against
all the world except the true owner. In an action by C against D and E, the latter
would not be able to plead jus tertii, that is to argue that the object belongs to
someone other than C and that therefore C should not succeed against D or E. To
allow this would be to allow anyone who could prove a defect in a possessor’s title
to dispossess him of the goods. This, however, is a right which common law allows
only to the true owner and his agents.

As against A or B, however, C would have no defence. B could recover the

wallet because he had actual possession of it. A could recover it from C because,
although it was in B’s hands, he had an immediate right to possess. So either A or
B, whichever brought action against C, would be deemed to have possession as
against C.

As between A and B, however, there is no doubt that in law A the true

owner, would succeed. In a civil action for conversion or detinue the question
which party actually has possession need not arise, because A, having an
immediate right to possession, is entitled to bring these actions; but if B were to be
prosecuted for larceny there is no doubt that he would be said to have had, not
possession, but only custody of the wallet. This is so notwithstanding that he has
possession as against C, who is guilty of stealing the wallet from B’s possession.
 41

In R.v.Harding for example, the accused was convicted of stealing a raincoat from
a servant, who, as against the master, had mere custody of the coat and could
herself have been convicted of larceny had she dishonestly made off with it.

Of all the divergencies between legal and actual possession this is the most
notable, like that outside the law possession is used in an absolute sense whereas
within the law it is employed in a relative sense. Outside the law we do not speak
of a person having possession as against someone else; we say that he either has or
has not got possession. In law we talk rather of possession as something which one
person has against another. If we overlook this, then decisions like R. v. Harding
and London Coporation v. Appleyard are unnecessarily difficult. How could the
servant in the first case have possession of the coat and yet at the same time not
have possession of it? If the law used possession in an absolute sense, then of
course she could not. As it is, she had possession as against the thief but not as
against her employer. Likewise the occupier of the land in the second case had
possession of the notes as against the workmen who found them he would not of
course have had possession as against the true owner, had the latter advanced his
claim.

It is said that English law has never worked out a consistent theory of
possession. But although there are many other parts of English law, which give rise
to difficult problems concerning possession and which cannot be further discussed
here, it would seem that underlying the concept of possession in English law is to
be found the ordinary notion of factual possession; that this has been refined by
extensions and restrictions in order to base the right to possess on actual
possession; and that the equating of the right with the possession has resulted in an
unnecessary and yet useful concept of relative possession. To provide a terse
 42

definition to apply to all instances of legal possession would, therefore, be

impossible, but the basic stands in the concept are reasonably discernible.

Kinds of Possession

1. Immediate and mediate possession

Possession over a thing may be mediate or immediate. A thing possessed by

a person directly or personally is said to be in immediate possession while a thing
possessed by a person through another man is said to be in mediate possession.
Thus point to consider is whether any third party is to establish, maintain or to
continue the relation or contact between the possessor and the thing possessed.
According to salmond there are three kinds of Mediate Possessions.

a. the first mediate possession is acquired through servant or agent. Here agent
or servant retains the possession on behalf of the principal. They don’t have
any personal interest in the thing possessed. The thing still carries in itself
interest or claim of the owner. In this type of cases the immediate possession
is with servant or agent while the mediate possession lies in principal or
master.
As for example if A sends his servant B, to get his coat pressed, the
immediate possession is with B on account of A, while A is having mediate
possession of the coat.
b. second kind of mediate possession is where an object is held by a person on
his own behalf as well as on another behalf but recognizes the superior right
of the latter, who can obtain in whenever he choose to demand. For example
if A took a book from B, then A is in immediate possession of it whiule B is
in mediate possession.
 43

c. This third type of mediate possession is where the immediate possession of

the object is with a person who claims over an object until some time has
elaspsed or some conditions has been fulfilled. The person in immediate
possession acknowledges the title of the person for whom he holds the thing
and is prepared to return it on the fulfillment of the conditions. A gives his
watch to B on pledge and B promises to give back watch in case A return the
debt money before specified time. Here B is in immediate possession of the
watch while A is in mediate possession.
2. Corporeal and incorporeal possession

Corporeal possession is a relation between a person and material thing. For

corporeal possession existence of material thing is essential. Incorporeal
possession is a possession of right or claim. However, this difference does not
seem sound, as the possession of an object involves considerable degree of right
over the object, similarly incorporeal possession involves an object directly or
indirectly in its sphere. In the words of Irving, both form of possession consists
in the exercise of right over them.

3. Concurrent possession

It was a maxim of the civil law that two persons could not be in possession
of the same thing at the same time. As a general proposition this is true; for
exclusiveness is of the essence of possession. Two adverse claims of exclusive use
cannot both be effectually realized at the same time. Claims, however, which are
not adverse, and which are not, therefore, mutually destructive, admit of concurrent
realization. Hence there are several possible cases of duplicate possession.

1. Mediate and immediate possession coexist in respect of the same thing as

already explained.
 44

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

The acquisition of possession

The modes of acquisition are two in number, namely Taking and Delivery.
Taking is the acquisition of possession without the consent of the previous
possessor. The thing taken may or may not have been already in the possession of
someone else, and in either case the taking of it may be either rightful or wrongful.
Delivery, on the other hand, is the acquisition of possession with the consent and
co-operation of the previous possessor.

Important cases of Possession (IMP)

Possession is a vague term. One can be in possession of a thing without any

physical control over thing and even without an intention to hold it as owner of the
thing. Possession is no doubt nine point of the law and law protects the possession
and possessory interest against the whole world except the real owner. Possession
appears much more device of convenience to facilitate policy of law. The
following observation will clarify the concept of law in reference to things in
possession.

a. Things which are lying loose on the land and are not in the knowledge of the
owner of the land are deemed in possession of first finder and he has better
title than the owner of the land.

Bridges v. Hawkesworth

In this case the plaintiff found a parcel of bank notes lying n the floor of the
shop. The court held, founder of the parcel had the better title than that of the
owner of the shop, against the whole world except the real owner.
 45

Possession over the bank notes was acquired first by finder, animus was
lacking in shopkeeper, as he was not aware about the existence of the bank
notes at the premises of his shop.

Hannah V/s Peel

In this case a soldier stayed in the house which was purchased by somebody
else. Soldier found a brooch lying on the top of the window frame. Owner of
the house took that brooch and sold it. it was held by the court that the
soldier had much better title than the owner as the owner had no knowledge
about the existence of the thing.
b. An owner/occupier of a land enjoys better title than the finder of the goods
in reference to the object under or attached to the land, whether he knows
about its existence on the land or not.

In Sourth Staffordshire Water Works Co. V/s Sharman

In this case the Plaintiff company owned a pool and employed defendant to
clean the pool. Defendant found two gold rings in it and denied to hand it
over to Plaintiff company. The plaintiff company held entitled to possession
of the ring. It was held that where a person has possession of a house or
land, with a manifest intention to exercise control over it and the thing which
may be upon or in it, then if something is found on the land whether by an
employee of the owner or by a stranger, the presumption is that the
possession of that thing is in the owner of the locus in quo.

Elwass V/s Brigg Gas Co

In this case the defendant took on lease land belonging to the plaintiff. While
digging land, defendant found a prehistoric boat-six feet below the surface.
 46

It was held that the land lord being in lawful possession of land, was in
possession of not only of the surface but everything that lay down t the
centre of the earth.
c. So far cases of larceny are concerned law gives more marks to possession de
jure than possession de facto. Possession is deemed with the legal possessor
when possession is lost without the knowledge of the person legally entitled
to it.

Cartright v/s Green

In this case a bureau was delivered to carpenter, and there was money in the
secret drawer of the bureau. Carpenter appropriated the money. It was held
by the court that animus was lacking in the carpenter therefore money was
not in his possession until he found it therefore he was held guilty. Court
followed the same principle in Merry vs. Green case.

R v/s Ashwell

In this case A delivered B a guinea, both thinking it to be shilling. When B

came to know, it was a guinea he appropriated it. b found guilty of larceny.
The court gives the reason, A man has not possession of that, of the
existence of which he is unaware.

Possession and ownership

We have already adverted to the chief differences between possession and

ownership. Possession consists basically in a relationship between a person and an
object within the context of the society in which he lives. It is therefore primarily a
matter of fact; and the differences between legal and non-legal or actual possession
result from the need to advance the policy of the law by regarding this relationship
 47

as existing where in fact it does not obtain; and this in turn may lead to the
development of the nation that in law I may have possession of an object as against
one person while not having possession of it as against another. Ownership, on the
other hand, consists not of a actual relationship but of certain legal rights, and is a
matter not of fact but of law. These two concepts of ownership and possession,
therefore, may be used to distinguish between the de facto possessor of an object
and its de jure owner, between the man who actually has it and the man who ought
to have it. They serve also to contrast the position of the whose rights are ultimate,
permanent and residual with that of one whose rights are only of a temporary
nature.

Speaking generally, ownership and possession have the same subject-matter.

Whatever may be owned may be possessed, and whatever may be possessed may
be owned. This statement, however, is subject to important qualifications. There
are claims which may be realized and exercised in fact without receiving any
recognition or protection from the law, there being no right vested either in the
claimant or in anyone else. In such cases there is possession without ownership.
For example, men might possess copyrights, trade-marks, and other forms of
monopoly, even though the law refused to defend those interests as legal rights.
Claims to them might be realized de facto, and attain some measure of security and
value from the facts, without any possibility of support from the law.

Conversely there are many rights which can be owned, but which are not
capable of being possessed. They are those which may be termed transitory. Rights
which do not admit of continuing exercise do not admit of possession either. They
cannot be exercised without being thereby wholly fulfilled and destroyed; therefore
they cannot be possessed. A creditor, for example, does not possess the debt that is
due to him; for this is a transitory right which in its very nature cannot survive its
 48

exercise (a). but a man may possess an easement over land, because its exercise
and its continued existence are consistent with each other. It is for this reason that
obligations generally (that is to say, rights in personam as opposed to rights in rem)
do not admit of possession. It is to be remembered, however, that repeated exercise
is equivalent in this respect to continuing exercise. I may possess a right of way
through repeated acts of use, just as I may possess a right of light or support
through continuous enjoyment. Therefore even obligations admit of possession,
provided that they are of such a nature as to involve a series of repeated acts of
performance. We may say that a landlord is in possession of his rents, an annuitant
of his annuity, a bondholder of his interest, or a master of the services of his
servant.

We may note finally that, although incorporeal possession is possible in fact

of all continuing rights, it by no means follows that the recognition of such
possession or the attribution of legal consequences to it, is necessary or profitable
in law. To what extent incorporeal possession exists in law, and what
consequences flow from it, are questions which are not here relevant, but touch
merely the details of the legal system.
 49

Personality

The nature of personality

 The purpose of this topic is to investigate the legal conception of personality.

 The prime case of a person is a human being, and personality would seem to
entail the possession of those characteristics belonging particularly to
mankind that is the power of thought, speech and choice.
 To personify an object is to imagine it as endowed with such attributes;
 And it is on account of the possession of such qualities that we ascribe
personality to such non-human beings as gods, angels, devils and so forth.
 Conversely people deprived of the power of reason and choice example
idiots, are often described as being less than persons.
 In the law there may be men who are not persons; slaves, for example, are
incapable of either rights or liabilities.
 Like cattle they are things and the objects of rights; not persons and the
subjects of them.
 Conversely there are, in the law, persons who are not men.
 A joint-stock company or a municipal corporation is a person in legal
contemplation.
 So also, in Hindu law, idols are legal persons.
 What then, is the legal meaning of a person…?
 A person is any being whom the law regards as capable of rights or duties.
 Any being that is so capable is a person, whether a human being or not,
 Persons are the substances of which rights and duties are the attributes.
 Persons as so defined are of two kinds, distinguishable as natural and legal.
 A natural person is a human being.

Legal persons are beings, real or imaginary, who for the purpose of legal reasoning
are treated in greater or less degree in the same way as human beings.

The legal status of the lower animals

 The only natural persons are human beings. Beasts are not persons, either
natural or legal.
 They are merely things often the objects of legal right and duties, but never
the subjects of them.
 50

 Beasts, like men, are capable of acts and possess interests.

 Yet their acts are neither lawful nor unlawful;
 They are not recognized by the law as the appropriate subject-matter either
of permission or of prohibition.
 It is true, to punish with death in due course of law the beast that was guilty
of homicide.
 A beast is as incapable of legal rights as of legal duties, for its interests
receive no recognition from the law.
 The law is made for men, and allows no fellowship or bonds of obligation
between them and the lower animals.
 Which is done to the hurt of a beast may be a wrong to its owner or to the
society of mankind, but it is no wrong to the beast.
 No animal can be the owner of any property, even through the medium of a
human trustee.
 If a teastator vests property in trustees for the maintenance of his favourite
horses or dogs, he will thereby create no valid trust enforceable in any way
by or on behalf of these non-human beneficiaries.
 There are, however, two cases in which beasts may be thought to possess
legal rights.
 In the first place, cruelty to animals is a criminal offence,
 and in the second place, a trust for the benefit of particular classes of
animals, as opposed to one for individual animals, is valid and enforceable
as a public and charitable trust;
 For example, a provision for the establishment and maintenance of a home
for stray dogs or broken-down horses.
 Are we driven by the existence of these cases to recognize the legal rights
and therefore the legal personality of beats?
 These duties towards animals are conceived by the law as duties towards
society itself.

The legal status of dead men

Ordinarily speaking, the personality of a human being may be said to commence

existence on birth and cease to exist at death.

 Dead men are no longer persons in the eye of the law.

 51

 They have no rights because they have no interests.

 They do not even remain the owners of their property until their successors
enter upon their inheritance.
 Yet although all a man’s rights and interests perish with him.
 And the law, without conferring rights upon the dead, does in some degree
recognize and take account after a man’s death of his desires and interests
when alive.

There are three things, in which the law will take notice of them.

These are a man’s body, his reputation, and his estate.

 By a natural illusion a living man deems himself interested in the treatment

to be awarded to his own dead body.
 To what extent does the law secure his desires in this matter?
 A corpse is the property of no one.
 It cannot be disposed of by will or any other instrument, and no wrongful
dealing with it can amount to theft.
 The criminal law, however, secures decent burial for all dead men, and the
violation of a grave is a criminal offence.
 Similarly a permanent trust for the maintenance of his tomb is illegal and
void, this being a purpose to which no property can be permanently devoted.
 Property is for the uses of the living not of the dead.
 The reputation of the dead receives some degree of protection from the
criminal law.
 A libel upon a dead man will be punished as a misdemeanor but only when
its publication is in truth an attack upon the interests of living persons.
 The right so attacked and so defended is in reality not that of the dead, but
that of his living descendants.

But far the most important matter, however, in which the desires of dead men are
allowed by the law to regulate the actions of the living is that of testamentary
succession.

For many years after a man is dead, his hand may continue to regulate and
determine the disposition and enjoyment of the property which he owned while
living.
 52

This, however, is a matter which will receive attention more fitly in another place.

The legal status of unborn persons

 Though the dead possess no legal personality, it is otherwise with the

unborn.
 There is nothing in law to prevent a man from owning property before he is
born.
 His ownership is necessarily contingent, indeed, for he may never be born at
all;
 But it is none the less a real and present ownership.
 A man may settle property upon his wife and the children to be born of her.
 Or he may die intestate, and his unborn child will inherit his estate.
 No testator could now direct his fortune to be accumulated for a hundred
years and then distributed among his descendants.
 A child in its mother’s womb is for many purposes regarded by a legal
fiction as already born.

Thus, in the law of property, there is a fiction that a child is a person in being for
the purposes of;

1. The acquisition of property by the child itself or

2. Being a life chosen to form part of the period in the rule against perpetuities.
 To what extent an unborn person can posses personal as well as proprietary
rights is a somewhat unsettled question.
 Willful or negligent injury inflicted on a child in the womb, amounts to
murder or manslaughter.
 A pregnant woman condemned to death is respited as of right, until she has
been delivered of her child.
 The rights of an unborn person, are all contingent on his birth as a living
human being.
 Abortion and child destruction are crimes;

Finally, though the law imputes no rights to persons not yet even conceived, it may
protect their interests. If some of the beneficiaries of a trust are unborn persons, the
trust cannot be varied without obtaining the court’s consent on their behalf.
 53

Legal persons

A legal person is any subject-matter other than a human being to which the law
attributes personality. This extension, for good and sufficient reasons, of the
conception of personality beyond the class of human beings is one of the most
noteworthy feats of the legal imagination.

The law in creating legal persons, always does so by personifying some real thing.
This is indeed, no theoretical necessity for this, since the law might, if it so
pleased, attribute the quality of personality to a purely imaginary being, and yet
attain the ends for which this fictitious extension of personality is devised.
Personification, however, conduces so greatly to simplicity of thought and speech,
that its aid is invariably accepted. The thing personified may be termed the corpus
(PÁ£ÀÆ£ÁvÀäPÀ ªÀåQÛAiÀÄ zÉúÀ) of the legal person so created, it is the body into which the
law infuses the animus (GzÉÝñÀUÀ¼ÀÄ) of a fictitious personality.

Although all legal personality involves personification, the converse is not true.
Legal personality is a definite legal conception; personification, as such, is a mere
artifice of speech devised for compendious expression. In popular language and in
legal language also, when strictness of speech is not called for, the device of
personification is extensively used. We speak of the estate of a deceased person as
if it were itself a person. We say that it owes debts, or has debts owing to it, or is
insolvent. The law, however, recognizes no legal personality in such a case. The
rights and liabilities of a dead man devolve upon his heirs, executors, and
administrators, not upon any fictitious person known as his estate. Similarly we
speak of a piece of land as entitled to a servitude, such as a right of way over
another piece. So also, in the case of common interests and actions, we personify
as a single person the group of individuals concerned, even though the law
recognizes no body corporate. We speak of a firm as a person distinct from the
individual partners. We speak of a jury, a bench of judges, a public meeting, the
community itself, as being itself a person instead of merely a group or society of
persons. But legal personality is not reached until the law recognizes, over and
above the associated individuals, a single entity which in a manner represents
them, but is not identical with them.
 54

Legal persons, being the arbitrary creations of the law, may be so as many kinds as
the law pleases. Those which are actually recognized by our own system, however,
are of comparatively few types. Corporations are undoubtedly legal persons, and
the better view is that registered trade unions and friendly societies are also legal
persons though not verbally regarded as corporations.

A corporation is a group or series of persons which by a legal fiction is regarded

and treated as itself a person. A trade union is an association of workmen or
employers for the purpose, among other things, of collective bargaining. A friendly
society is a voluntary association formed for the pupose of raising, by the
subscription of the members, funds out of which advances may be made for the
mutual relief and the maintenance of the members and their families in sickness,
infancy, old age, or infirmity. There are special statutory provisions by which
registered trade unions and friendly societies can sue or be sued in the registered
name, and their effect seems to be to make these groups legal entities distinct from
their members. No other legal persons are at present recognized by English law. If
however, we take account of other systems than our own, we find that the
conception of legal personality is not so limited in its application, and that there are
several distinct varieties, of which three may be selected for special mention. They
are distinguished by reference to the different kinds of things which the law selects
for personification.

1. The first class of legal persons consists of corporations as already defined,

namely, these which are constituted by the personification of groups or
series of individuals. The individuals who thus form the corpus of the legal
person are termed its members. We shall consider this form of legal
personality more particularly in the sequel.
2. The second class is that in which the corpus, or object selected for
personification, is not a group or series of persons, but an institution. The
law may, if it pleases, regard a church or a hospital or a university, or a
library, as a person. That is to say, it may attribute personality, not to any
group of persons connected with the institution, but to the institution itself.
Our own law does not, indeed, so deal with the matter. The person known to
the law of England as the University of London is not the institution that
goes by that name, but a personified and incorporated aggregate of human
beings, namely, the chancellor, vice-chancellor, fellows, and graduates. It is
 55

well to remember, however that notwithstanding this tradition and practice

of English law, legal personality is not limited by any logical necessity, or
indeed, by any obvious requirement of expediency, to the incorporation of
bodies of individual persons.
3. The third kind of legal person is that in which the corpus is some fund or
estate devoted to special uses a charitable fund, for example, or a trust estate,
or the property of a dead man or of a bankrupt. Here, also, English law
prefers the process of incorporation. If it chooses to personify at all, it
personifies, not the fund or the estate, but the body of persons who
administer it. yet the other way is equally possible, and may be equally
expedient. The choice of the corpus into which the law shall breathe the
breath of a legal personality is a matter of form rather than of substance, of
lucid and compendious expression rather than of legal principle.

Corporate personality

Entities which enjoy legal rights and duties are, as we have seen, either natural or
legal persons. But what in fact is a legal person? If Smith has legal rights, then it is
a human being that has the rights in question. But if smith and co.Ltd, has legal
rights, what is it really that possesses these rights? Or if I make a contract with
Smith and Co.Ltd, what have I really contracted with?

Some writers, including Salmond, argue that corporations are mere fictions. To
speak of Smith & Co.Ltd, as having rights and duties is to treat as real an entity
which has no real existence. Just as the socientist finds it convenient to regard an
electric current as being like a current of water, so the lawyer finds it convenient to
look upon a coporation as a sort of person; and just as in reality the lectric current
is not a current at all, as the scientist well knows, so equally a corporation, as the
lawyer knows full well, is in reality not a person at all.

The misleading feature in this theory is the suggestion that the lawyer is indulging
in make-belief. The fact that Smith & Co. Ltd, is not the same sort of entity as
Smith need not compel us to conclude that it is the same sort of entity as Robinson
Crusoe. In a work of fiction the characters do indeed lack existence, although the
conventions of the art of fiction require us to imagine that they really lived. Indeed
without stepping outside the law, we can observe that John Doe and Richard Roe
 56

were fictitious characters, who, as everyone was well aware, did not exist, but
whose fictitious existence enabled the courts to provide a convenient remedy for
dispossession of land. But Smith & Co. Ltd, is in quite a different case from
Robinson Crusoe, John Doe and Richard Roe; for in referring to Smith & Co. Ltd.
We are not suspending judgment, pretending or in any way imagining something to
be which is not the case. But the rejection of the fiction theory must not drive us to
the opposite extreme of asserting that a corporation is a real but mysterious entity
with a special type of existence. For this kind of realist theory, despite the appeal
which it has had, is even more unsatisfactory than the fiction theory. The merit of
the latter was that it at least attempted to provide some sort of explanation of the
nature of a corporation. To say that a corporation is a fiction devoid of real
existence does at any rate stress what actually happens in situations involving
corporations; to say that the smith & co.Ltd., with whom I contracted, is a mere
fiction does at least lend on to a description of the circumstances in which I may be
said to have contracted with this limited company. But to state that the company is
a real but mysterious entity explains nothing at all. Anyone who is puzzled by what
it means to contract with Smith and Co.Ltd, will be equally confused at the notion
of contracting with an entity such as the realist theory describes.

Common sense suggests that in truth a corporation is nothing other than its
members, and that statements about corporations are disguised abbreviations for
statements about all the members. But this too is not entirely satisfactory; for to say
that Smith & Co. Ltd, owes me $100 is not an abbreviated way of saying that
every member of the company owes me a debt. A limited company is not just the
same thing as its members, and statements about the former are not just
abbreviations for statements about the latter. On the other hand we could translate
statements like smith & Co. Ltd. Owes me $100 into other statements which do not
contain the words smith & co.Ltd. we could for example specify the circumstances
under which the statement would be true; and this would involve a descrption of
the legal rules about incorporation, management and extinction of limited
companies together with an account of the law relating to their contractual
liabliltiy. It would also involve a description of some events which would count by
law as incorporation of smith & co.Ltd. and as the incurring by smith & co. Ltd of
this debt to me. To complete the translation we should need to describe what
follows in law from the fact that the company owes me this debt; in other words,
 57

we should need to list the legal consequences of the statement, showing who in fact
would be liable to pay, what effect this would have on the members of the
company and so on. To do all this would be to show the criteria for the truth of
statements about limited companies, but it would not be the same thing as an actual
statement about the company. for the proposition that smith & co. Ltd. Owes me
$100 states neither the relevant events which justify the proposition, nor yet again
the consequences of it; all these are implied but not expressed. Statements about
corporations are simple, unified methods of stating what would otherwise be
inordinately complicated.

In treating an incorporated group of persons as a separate person, the law is taking

the rules about ordinary persons and extending them by analogy to apply to groups
of persons who have complied with certain legal formalities. In so far as the rules
are extended to apply to the company as a separate person the law allows members
to contract and have other legal relations with the company. But not all the rules
that apply to natural persons need be extended to corporations. How far they can be
held criminally and civilly liable and how far they are capable of enjoying certain
rights and privileges will depend on how far the analogy is taken; and this in turn
should depend on how far we think it desirable in the public interest for them to
have such rights and liabilities. And while there is no logical compulsion to make
the analogy complete, there is no particular point at which by any rule of logic the
analogy must cease to hold.

But all modern societies have considered nation as a corporation. They can sue the
state, they can make the contracts, state can have its own transactions. No doubt in
this modern world nation exercising its functions as a big corporation.