JURISPRUDENCE QUESTIONS AND ANSWERS (PART - 1) SEM - VIII (BLS-LLB)

DEFINE OWNERSHIP. WHAT ARE ITS CHARECTERISTICS? WHAT ARE DIFFERENT KINDS OF OWNERSHIP?

The concept of is one of the fundamental juristic concepts common to all systems of law. This concept has been discussed by most of the writers before that of possession. However, it is not the right method. The idea of possession came first in the minds of people and it was later on that the idea of ownership came into existence.
Ownership is a complex juristic concept which has its origin in the Ancient Roman Law. In Roman law ownership and possession were respectively termed as ‘dominium’ and ‘possessio’. The term dominium denotes absolute right to a thing while possessio implied only physical control over it. They gave more importance to ownership because in their opinion it is more important to have absolute right over a thing than to have physical control over it.
In English law the concept of ownership developed much later than possession. The earlier law gave importance to possession on the misconception that possession includes within its ownership as well. Holdsworth observed that the English law accepted the concept of ownership as an absolute right through gradual the gradual development in the law of possession.
The concept of ownership consists of a number of claims such as liberty, power and immunity in regard to the thing owned. Ownership is thus a sum-total of possession, disposition and destruction which includes the right to enjoy property by the owner. The owner has to side by side abide by the rules and regulation of the country.

DEFINITION OF OWNERSHIP
Jurists have defined ownership in different ways. All of them accept the right of ownership as the complete or supreme right that can be exercised over anything. Thus, according to Hibbert ownership includes four kinds of rights within itself.
1. Right to use a thing
2. Right to exclude others from using the thing
3. Disposing of the thing
4. Right to destroy it.

Austin’s definition:
Austin while defining ownership has focused on the three main attributes of ownership, namely, indefinite user, unrestricted disposition and unlimited duration which may be analysed in detail.
1. Indefinite User:
By the right of indefinite user Austin means that the owner of the thing is free to use or misuse the thing in a way he likes. The pawner of a land may use it for walking, for building house or for gardening and so forth. However Austin was cautious enough to use the term “indefinite”. He did not use the thing owned infamy way he likes. His use if the thing is conditioned by requirements or restrictions imposed by the law. The owned must not use the things owned as to injure the right of others. The principle is the foundation of the well known maxim ‘sie utere tero ut alierum non laedas’ the meaning of the maxims is that to use your own property s not to injure your neighbour’s right. Again the use of property may be restricted voluntarily e.g. town planning act, slum clearance act, 1955 etc.
2. Unrestricted Disposition:
What Austin implies by unrestricted disposition is that the power of disposition of the pawner is unhampered by law meaning thereby that he is absolutely free to dispose it to remove it to anyone This is incorrect. In case of lease of thousand years, servitudes and restricted, covenants, plenary control of a property is not possible. Moreover, in the law of the some of the western countries there is rule re relegitima portis which means that the person cannot dispose of his entire property. He has to keep a certain portion of the property for the members of his family. Under mohamdan law a similar rule prevails namely a person cannot dispose and delaying creditors would be set aside. As under Hindu law government by mitakashara law can’t alienate ancestral immovable property without the consent of other co perceners except for legal necessity.
3. Unlimited Duration:
It is incorrect since almost under every legal system the state possesses the power to take over the property of any person in public interest.
The abolition of Zamindari system India , the abolition of privy purses, nationalization of Bank etc. are some example of the fact that the ownership can be cut short by the state for public purpose and its duration is not unlimited.
Austin’s definition has been followed by Holland. He defines ownership as plenary control over an object. According to him an owner has three rights on the subject owned:
1. Possession
2. Enjoyment
3. Disposition
Planetary control over an object implies complete control unrestricted by any law or fact. Thus, the criticism levelled against Austin’s definition would apply to that given by Holland in so far as the implication of the term “plenary control” goes.

Criticism Against Austin’s Definition:
Austin’s definition has been criticised by many writers.
They argue that it is fallacious to think that ownership is a single right; in fact, it is a bundle of rights including the right of enjoyment by the user. Even if the owner gives away his few rights in ownership, the residue are still owned by him. For example, mortgage of property by the owner.
Ownership is not merely a right but also a relationship between the right owned and the person owning it.
Owner having an unrestricted right of disposition has also been criticised. His right of disposition of the property can be curtailed by the state. For example, under article 31(2) of the Indian Constitution the state can take away the property of any person for public purpose.

Salmond’s Definition:
According to the Salmond ownership vests in the complex of rights which he exercises to the exclusive of all others. For Salmond what constitute ownership is a bundle of rights which in here resides in an individual. Salmond’s definition thus point out two attributes of ownership:
1. Ownership is a relation between a person and right that is vested in him
2. Ownership is incorporeal body or form
Salmond’s definition does not indicate the content of the ownership. It does not indicate the right, powers etc. which are implied in the concept of ownership. Again, it is not wholly correct to say that ownership is a relation between a person and right that is vested in him. As the most popular and common idea of ownership is a relationship between a person and a thing.

Criticism against Salmond’s Definition:
Dugit says the thing is what is owned not the right which does not really exist.
According to Cook, there are many rights which a person may possess and to use the term ‘owner’ to express the relationship between a person and a right is to introduce unnecessary confusion. Ownership is the name given to the bundle of rights.

Other Eminent Jurists
1. Fredrick Pollock improves upon other definition when he defines ownership as the entirety of the power of use and disposal allowed.
2. Prof. Keeton expresses a similar view when he observed that ownership is the ultimate right to the enjoyment in persons other than the one entitled to the ultimate use are exhausted.
These two definitions give relatively a more proper connotation of the term ownership. They bring out the most important fact that ownership is always subject to limitation imposed by the law; it is ultimate right to the employment of a thing subject to the condition or restriction imposed by law as to the use of the thing owned. Keeton has added another obvious dimension to the definition of ownership when he speaks of ultimate use is exhausted. Thus the owner may mortgage his house give it to tenant after the rights of the mortgagee or tenant are exhausted.

OWNERSHIP UNDER ANCIENT HINDU LAW
Ancient Hindu jurist have said much about the means of acquiring ownership. Manu declared that there are seven virtuous means of acquisition of wealth viz. inheritance, gain, purchase, conquest, application, employment of the work and of and acceptance of gifts from proper persons. Gautama gives almost the same seven ways of acquiring ownership but he puts some modification to the list given by Manu.
Narada enters in to more details and says that there are twelve different modes of squiring wealth of which three are general i.e. open to all caste and the rest are peculiar to several castes.
These specific modes of acquiring wealth are proper for several casts and any contravention is reprehensible unless by pressing necessity.
MODERN LAW AND OWNERSHIP
Under modern law there are the following modes of acquiring ownership which may be broadly classed under two heads,viz,.
1. Original mode
2. Derivative mode
The original mode is the result of some independence personal act of the acquire himself. The mode of acquisition may be three kinds
a. Absolute when a ownership is acquired by over previously ownerless object
b. Extinctive, which is where there is extinctive of previous ownership by an independence adverse act on the part of the acquiring. This is how a right of easement is acquiring after passage of time prescribed by law.
c. Accessory that is when requisition of ownership is the result of accession. For example, if three fruits, the produce belongs to the owner unless he has parted with to the same. When ownership is derived from the previous version of law then it is called derivate acquisition. That is derived mode takes place from the title of s prior owner. It is derived either by purchase, exchange, will, gift etc.Indian Transferee Acts of property rules for the transfer of immovable property, Sale of goods Acts for the transfer of property of the firm and the companies Act for the transfer of company property.

SUBJECT MATTER OF OWNERSHIP
Normally ownership implies the following:
1. The right to manage;
2. The right to posses;
3. The right to manage;
4. The right to capital;
5. The right to the income.
The owner of a thing has the right to possess it, to the exclusive of all others i.e. the owner has exclusive physical control of a thing or such control possesses the thing but this is not necessary and always so. Thus to cite only a few examples, the owner may have been wrongfully deprived of it or may has voluntarily devised himself of it. If A’s watch is stolen by B, the latter has possession but the former remains the owner with an immediately right to possess. In case of lease and mortgage, the owner (i.e. the leaser and the mortgagor) owns the property without possession lies, with the lesser and the mortgagee.
The owner has the right to use the subject matter of ownership according to his own discretion. Here use means personal use and the enjoyment of the thing by the owner. This right of enjoyment or use is not absolute; it can be and is in fact, limited by law. This does not mean that an owner cannot there by disturb the right of others. Suppose A owns a transistor, ha cannot tune it at any time for listening music, for news or for commentary, but in doing so he is to take care that he does not disturb the right of others. Thus he cannot tune it at a high pitch and at an odd time so as to disturb the right of others. Thus he cannot tune it at a high pitch and at an odd time so as to disturb the sleep of others.
The owner has right to manage i.e., he has the right to decide how and by whom the thing owned shall be used. The owner has the power contracting the power to admit others to ones land, to permit others to use one’s things, to define the limits of such permission, to create a right of easement over his land in favour of a third person etc.
One who owns things has also the right to alienate the same or to waste, destroy or to consume the whole or part of it. The right to consume and destroy are straightforward liberties. The right to alienate i.e. the right to transfer his right over object to another involves the existence of a power. Almost all legal system provide for alienation is the exclusive right if the owner. A non-owner may have the possession of a thing but he cannot transfer the right of ownership of such thing to another e.g. , in case of lease, a lessee may have the possession of the leased property but he cannot transfer it because that is the exclusive right of the leaser who only can do so.

The ownership of the a thing has not only the right to possess the thing but also the right to the fruit and income of the things within the limits , if any, laid down by the law. Suppose A’ has a land he has not only the right to possess that the land but he can enjoy benefits resulting there from e.g., produce, fruits, crops, etc. sometimes the use or the occupation of a thing to possess that the land but he can enjoy benefits resulting there from e.g. produce fruits, as the simplest way of deriving an income from it and of enjoying it.

CHARACTERISTICS OF OWNERSHIP
An analysis of the concept of ownership, it would show that it has the following characteristics:
Ownership ma either be absolute or restricted, that is, it may be exclusive or limited. Ownership can be limited by agreements or by operation of law.
The right of ownership can be restricted in time of emergency. For example, building or land owned by a person can be acquired by the state for lodging army personnel during the period of war.
An owner is not allowed to use his land or property in a manner that it is injurious to others. His right of ownership is not unrestricted.
The owner has a right to posses the thing that he owns. It is immaterial whether he has actual possession of it or not. The most common example of this is that an owner leasing his house to a tenant.
Law does not confer ownership on an unborn child or an insane person because they are incapable of conceiving the nature and consequences of their acts.
Ownership is residuary in character.
The right to ownership does not end with the death of the owner; instead it is transferred to his heirs.
Restrictions may also be imposed by law on the owner’s right of disposal of the thing owned. Any alienation of property made with the intent to defeat or delay the claims of creditors can be set aside.

DIFFERENT KINDS OF OWNERSHIP
Experience shows that there are many kinds of ownership and some of them are corporeal and incorporeal ownership, sole ownership and co-ownership, legal and equitable ownership, vested and contingent ownership, trust and beneficial ownership, co- ownership and joint ownership and absolute and limited ownership.

Corporeal and Incorporeal Ownership
Corporeal ownership is the ownership of a material object and incorporeal ownership is the ownership of a right. Ownership of a house, a table or a machine is corporeal ownership. Ownership of a copyright, a patent or a trademark is incorporeal ownership. The distinction between corporeal and incorporeal ownership is connected with the distinction between corporeal and incorporeal things. Incorporeal ownership is described as ownership over tangible things. Corporeal things are those which can be perceived and felt by the senses and which are intangible. Incorporeal ownership includes ownership over intellectual objects and encumbrances.

Trust and Beneficial Ownership
Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by two persons at the same time. The relation between the two owners is such that one of them is under an obligation to use his ownership for the benefit of the other. The ownership is called beneficial ownership. The ownership of a trustee is nominal and not real, but in the eye of law the trustee represents his beneficiary. In a trust, the relationship between the two owners is such that one of them is under an obligation to use his ownership for the benefit of the other. The former is called the trustee and his ownership is trust ownership. The latter is called the beneficiary and his ownership is called beneficial ownership. The ownership of a trustee is in fact nominal and not real although in the eye of law, he represents his beneficiary. If property is given to X on trust for Y, X would be the trustee and Y would be the beneficiary or cestui que trust. X would be the legal owner of the property and Y would be the beneficial owner. X is under an obligation to use the property only for the benefit of Y.
A trustee has no right of enjoyment of the trust property. His ownership is only a matter of form and not of substance. It is nominal and not real. In the eye of law, a trustee is not a mere agent but an owner. He is the person to whom the property of someone else is fictitiously given by law. The trustee has to use his power for the benefit of the beneficiary who is the real owner. As between the trustee and the beneficiary, the property belongs to the beneficiary and not the trustee.

Legal and Equitable Ownership
Legal ownership is that which has its origin in the rules of common law and equitable ownership is that which proceeds from the rules of equity. In many cases, equity recognizes ownership where law does not recognize ownership owing to some legal defect. Legal rights may be enforced in rem but equitable rights are enforced in personam as equity acts in personam. One person may be the legal owner and another person the equitable owner of the same thing or right at the same time. When a debt is verbally assigned by X to Y, X remains the legal owner of it but Y becomes its equitable owner. There is only one debt as before though it has now two owners.
The equitable ownership of a legal right is different from the ownership of an equitable right. The ownership of an equitable mortgage is different from the equitable ownership of a legal mortgage.
There is no distinction between legal and equitable estates in India. Under the Indian Trusts Act, a trustee is the legal owner of the trust property and the beneficiary has no direct interest in the trust property itself. However, he has a right against the trustees to compel them to carry out the provisions of the trust.

Vested and Contingent Ownership
Ownership is either vested or contingent. It is vested ownership when the title of the owner is already perfect. It is contingent ownership when the title of the owner is yet imperfect but is capable of becoming perfect on the fulfillment of some condition. In the case of vested ownership, ownership is absolute. In the case of contingent ownership it is conditional. For instance, a testator may leave property to his wife for her life and on her death to A, if he is then alive, but if A is dead to B. Here A and B are both owners of the property in question, but their ownership is merely contingent. It must, however, be stated that contingent ownership of a thing is something more than a simple chance or possibility of becoming an owner. It is more than a mere spes acquisitionis. A contingent ownership is based upon the mere possibility of future acquisition, but it is based upon the present existence of an inchoate or incomplete title.

Sole Ownership and Co-ownership
Ordinarily, a right is owned by one person only at a time. However, duplicate ownership is as much possible as sole ownership. When the ownership is vested in a single person, it is called sole ownership; when it is vested in two or more persons at the same time, it is called co-ownership, of which co-ownership is a species. For example, the members of a partnership firm are co-owners of the partnership property. Under the Indian law, a co-owner is entitled to three essential rights, namely
1. Right to possession
2. Right to enjoy the property
3. Right to dispose of
Therefore, if a co-owner is deprived of property, he has right to be put back in possession. Such co-owner has interest in every portion of the property and has a right irrespective of his quantity of share to be in possession jointly with other co-owners.

Co-ownership and Joint Ownership
According to Salmond, “co-ownership may assume different forms. Its two chief kinds in English law are distinguished as ownership in common and joint ownership. The most important difference between these relates to the effect of death of one of the co-owners. If the ownership is common, the right of a dead man descends to his successors like other inheritable rights, 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 this right of survivorship.”
A joint ownership occurs when two or more persons are entitled to the same right or bound by the same obligation in respect of a thing. For example, a partnership property is owned by the persons constituting the firm jointly and trustees are the joint owners of the trust property. The essence of the conception is that there is only one right and one obligation, so that anything which extinguishes such right or obligation, releases all parties.

Absolute and Limited Ownership
An absolute owner is the one in whom are vested all the rights over a thing to the exclusion of all. When all the rights of ownership, i.e. possession, enjoyment and disposal are vested in a person without any restriction, the ownership is absolute. But when there are restrictions as to user, duration or disposal, the ownership will be called a limited ownership. For example, prior to the enactment of the Hindu Succession Act, 1956, a woman had only a limited ownership over the estate because she held the property only for her life and after her death; the property passed on to the last heir or last holder of the property. Another example of limited ownership in English law is life tenancy when an estate is held only for life.

CONCLUSION
We may in conclusion say that:
1. Ownership is a right which comprise of powers, claims, privileges etc.
2. Ownership is in respect of a thing may be corporeal or incorporeal
3. The right relating to or connection with ownership are subject to the state regulation i.e. can be limited or restricted by law
4. Owner is he who is entitled to the residue of rights with respect to an object left after the limitation resulting from the voluntary acts of the owner or those imposed by law are exhausted
5. Ownership does not imply or indicate absolute or unlimited rights either use, disposal or duration.

DISCUSS PERSONALITY AND EXAMINE THE PERSONALITY OF – MINORS, HUMAN BEINGS OF UNSOUND MIND, DEAD PERSON, LUNATIC, DRUNKEN PERSON, INTOXICATED PERSON.

Insanity

It is referred to as lunacy or unsound mind, mental abnormality, disease of mind etc. an insane person cannot think and act as a normal human being. His capacity to know things is perverted. It is called ‘non compose mentis.' (possessed of a sound mind.)

If insanity is to be regarded as immunity first of all it must be clearly explained as to what it is. There being no standard of insanity, it becomes difficult to define insanity leading to the absence of mens rea.

Mc'Naghten Rule:

In 1843 the law of insanity was more properly formulated by the house of lords in the historic case of R v. Mc'Naghten.

Principles Laid Down In Mc'naghten Case:

1.      Every person is presumed to be sane, until the contrary is established.

2.      To establish the defence of insanity, it must be clearly proved that at the time of committing the crime, the person was so insane as not to know the nature and quality of the act he was doing or if he did know it, he did not know that what he was doing was wrong.

3.      The test of wrongfulness f the act is in the power to distinguish between right and wrong, not in the abstract or in general, but in regard to the particular act committed.

The English law on insanity is based on the Mc'Naghten rules and the Indian Law that is codified in the Indian Penal Code, 1860 s. 84, is also based on the Mc'Naghten rules. These principles have been incorporated in the penal codes of almost all the countries in the world.

Insanity Under Ipc And Cr Pc.

Insanity Under Indian Penal Code:

The defence of insanity is discussed in sec 84 of the Indian penal code which reads:
“Act of a person of unsound mind- Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of doing the act, or that he is doing what is either wrong or contrary in law.”


Principles For The Application Of This Section:
The following principles are to be kept in mind in applying this section:

1.      every type of insanity is not legal insanity; the cognitive faculty must be destroyed as to render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law;

2.      the court shall presume the absence of such insanity;

3.      the burden of proof of legal insanity is on the accused, though it is not as heavy as the prosecution;

4.      the court must consider whether the accused suffered from legal insanity at the time when the offence was committed;

5.      in reaching such a conclusion, the circumstances which preceded, attended or followed the crime are relevant consideration; and

6.      The prosecution in discharging its burden of the plea of legal insanity has merely to prove the basic fact and rely upon the normal presumption of the law that everyone knows the law and the natural consequences of his act.

Essential Ingredients Of The Section

Unsoundness Of Mind:

The term unsoundness of mind has not been defined in the code. But it has been equated by the courts to mean insanity. This section only deals with incapacity of mind which is a result of ‘unsoundness of mind' or ‘insanity'. It is not every type of insanity which is recognized medically that is given the protection of this section. Medical insanity is different from legal insanity. The insanity should be of such a nature that it destroys the cognitive faculty of the mind, to such an extent that he is incapable of knowing the nature of his act or what he is doing is wrong or contrary to law.This section will apply even in cases of fits of insanity and lucid intervals. But it must be proved in such cases that at the time of commission of the offence, the accused was surfing from a fit of insanity which rendered him incapable of knowing the nature of his act.

Case Laws

State Of MP V. Ahamdullah

Subject: The burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by sec 84, IP code lies on the accused who claims the benefit of this exemption.
Facts: In this case the accused had murdered his mother in law to whom he bore ill-will in connection with his divorce.It was proved that he did the act at night having got into the house by scaling over a wall with the aid of a torch light and entered the room where the deceased was sleeping. All this showed that the crime was committed not in a sudden mood of insanity, but one that was preceded by careful planning and exhibiting cool calculation in execution and directed against a person who was considered to be his enemy. Then again, there was a mood of exultation which the accused exhibited after he had put out her life.
Judgement: In these circumstances the Supreme Court rejecting his plea of insanity, convicted the accused of the offence of murder (setting aside the acquittals of both the session court and the high court), and sentenced him to rigorous imprisonment for life.
Ayyangar J said thus:
In the normal case, the proper punishment for the heinous and premeditated crime committed with human brutality would have been a sentence of death. But taking into the account the fact that the accused has been acquitted by the session's judge, an order which has been affirmed by the high court – we consider that the ends of justice would be met if we sentence the accused to rigorous imprisonment for life.

Dayabhai Chhaganbhai Thakkar V. State Of Gujarat

In this case, the accused was charged and convicted under the IPC, s. 302 for the murder of his wife. The accused killed his wife with wife by inflicting her with 44 knife injuries on her body. The accused raised the plea of insanity at the trial court.
Trial court however rejected the contention on the ground that the statements made to the police immediately after the incident did not showed any sign of insanity. This conviction was confirmed by the high court. The accused made an appeal to the Supreme Court. The Supreme Court also upheld the conviction of the accused and laid down certain criteria according to which an accused in entitled to the defence under the provision. It said that in determining whether the accused has established his case under the purview of Indian Penal Code, 1860, s. 84, ‘the court has to consider the circumstances which preceded, attended and followed the crime. The crucial point of time for determining the state of mind of the accused is the time when the offence was committed. The relevant facts are motive for the crime, the previous history as to mental condition of the accused, the state of his mind at the time of the offence, and the events immediately after the incident that throw a light on the state of his mind'.

Ratanlal V. State Of MP

The appellant on 22 January 1965, set fire to the grass lying in the khalyan of Nemichand. On being asked why he did it, the accused said; ‘I burnt it; do whatever you want'. The accused was arrested on 23 January 1965. He was referred to a mental hospital. The psychiatrist of the hospital reported that the accused remained silent, was a case of maniac depressive psychosis, and needs treatment. The report declared the accused to be a lunatic in terms of the Indian Lunatic Act, 1912The issue before the courts was whether insanity might be used as defence against a charge of mischief by fire with intent to cause damage under the IPC, s. 435. The crucial point in this case was whether unsound mind may be established at the time of commission of the act. The Supreme Court held that the person was insane and acquitted him.

 

 

Hazara Singh V. State

In this case, Hazara Singh was under a delusion that his wife was unfaithful to him. One day, being disturbed by those thoughts, he caused her death by pouring nitric acid over her. Medical evidence showed that he knew what he was doing and had the ordinary knowledge of right and wrong. He was convicted for murder.

Bhikari V. State Of Uttar Pradesh

It is not for the prosecution to establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. Every one is presumed to know the consequences of his act. Similarly everyone is also presumed to know the law. These are not facts that the prosecution has to establish. It is for this reason that sec 105 of The Evidence Act places upon the accused person the burden of proving the exception upon which he relies.
Undoubtedly, it is for the prosecution to prove beyond the reasonable doubt that the accused had committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence adduced in the case whether by prosecution or by the accused and when the reasonable doubt is created in the mind of the court as regards one or more of the ingredients of the offence including mens rea of the accused, he would be entitled to be acquitted.
In the present case, there is evidence that up to the time of occurrence he (accused) has been doing with his cultivation. There is no evidence on record to prove the characteristic of his habit from which it could be concluded that he was acting like an insane man. Before the commission of the crime he did not beat any person. On the other hand, few months before occurrence the accused admittedly picked up quarrel with mangali and Bhaiya Lal and had given threats to make their family extinct. An insane person could not have done so like a sane person. Further on the date of the occurrence many children were playing including his own cousin sister. But first of all he gave a sickle blow only to Babu ram and other children of the family of mangali and babul al and not to any other child. This shows that he did not act under the influence of insanity but only with some previous deliberation and preparation. It is further in evidence that he had given threats to the witnesses. He beat Hiralal only when he tried to stop the act of beating of children of mangali and Bhaiya Lal's family with whom he had picked up quarrel previously. Lastly, a sense of fear prevailed in hi and that is why he acted as a sane man by running and then escaping by jumping into ganges river. So all these circumstances lead to one conclusion that he was not insane and he had acted like a sane man and with some motive.
Held: death sentence was upheld.

 

 

Sant Bir V. State Of Bihar

it is not possible as to why the state government should have insisted before releasing the petitioner from the jail when the petitioner was found to be completely recovered and completely fit for discharge and there was absolutely no warrant or justification in law to detain him.
The result was that the petitioner continued to rot in jail for a further period of ten years, though he was fully recovered and there was no reason or justification to continue his detention in the jail. It is shocking that a perfectly sane person should have been incarcerated within the walls of the prison for almost 16 years without any justification in law whatsoever.
Held: The Supreme Court further observed that it should be a matter of shame for the society as well as the administration to detain a person in jail for over 16 years without authority of law.

 Legal Status of Unborn Person

A child in mother’s womb is by legal fiction regarded as already born. If he is born alive, he will have a legal status. Though law normally takes cognizance of living human beings yet the law makes an exception in case of an infant in ventre sa mere.

Under English Law, a child in the womb of the mother is treated as in existence and property can be vested in its name^[8]. Article 906 of the French Civil Code permits the transfer of property in favour of an unborn person. But, according to Mohammedan Law a gift to a person not in existence^[9] is void. A child in the womb of the mother is considered to be a person both under the law of crimes and law of torts.

2.1.1 Indian Position - Under section 13 of the Transfer of Property Act, property can be transferred for the benefit of an unborn person by way of trust. Similarly section 114 of the Indian Succession Act, 1925 provides for the creation of prior interest before the unborn person may be made the owner of property – corporeal or incorporeal, but no property will be deemed to be vested in the unborn person unless and until he is born alive. In Hindu Law also a child in the womb of the mother is deemed to be in existence for certain purposes. Under Mitakshara law, such a child has interest in coparcenary property.^[10]

Under section 315 of the Indian Penal Code, the infliction of pre natal injury on a child, which is capable of being born alive and which prevents it from being so could amount to an offence of child destruction. Section 416 of Criminal Procedure Code provides that if a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may if it thinks fit, commute the sentence to imprisonment for life. It has been held that in a Canadian case^[11] that a child could succeed in tort after it was born on account of a deformity which was held to have been caused by a negligent pre natal injury to mother.

Though there is no Indian case on this point but it is expected that a liberal view would be taken on this line and a child would be getting the right to sue. In an African case^[12] it was held that a child can succeed in tort after it is born on account of a deformity caused by pre injury to his mother.

In India as well in England, under the law of tort an infant cannot maintain an action for injuries sustained while on ventre sa mere.^[13] However, in England damages can be recovered under Fatal Accidents Act, 1846 for the benefit of a posthumous child. In short, it can be concluded that an unborn person is endowed with legal personality for certain purposes.

Legal Status of Dead Man

Dead man is not a legal person. As soon as a man dies he ceases to have a legal personality. Dead men do not remain as bearers of rights and duties it is said that they have laid down their rights and duties with their death. Action personalis moritur cum persona- action dies with the death of a man. With death personality comes to an end. A dead man ceases to have any legal right or bound by any legal duty. Yet, law to some extent, recognises and takes account of the desires or intentions of a deceased person. Law ensures a decent burial, it respects the wishes of the deceased regarding the disposal of his property, protects his reputation and in some cases continues pending action instituted by or against a person who is now deceased.^[14]

2.2.1 Indian Position - As far as a dead man’s body is concerned criminal law secures a decent burial to all dead men. Section 297 of Indian Penal Code also provides punishment for committing crime which amounts to indignity to any human corpse.^[15] The criminal law provides that any imputation aganist a deceased person, if it harms the reputation of that person if living and is intended to hurt the feeling of his family or other near relatives, shall be offence of defamation under sec 499 of the Indian Penal Code.

The Supreme Court in the case of Ashray Adhikar Abhiyan v Union of India ^[16]has held that even a homeless person when found dead on the road, has a right of a decent burial or cremation as per his religious faith.

 In English Law^[17] as well as in Muslim Law the violation of a grave is a criminal offence. As regards reputation of a dead man, it is to some extent protected by criminal law.^[18] Under Roman law any insult to the body of the deceased at the timing of funeral, gave the deceased’s heir a right to sue for the injury as it is treated as insult to the heir. Under the law of France the relative of the defamed deceased can successfully sue for damages, if they can prove that some injury it suited from the defamation. Thus, it is not the rights and the hence the personality of the deceased that the law recognises and protects but it is the right and interest of living descendants that it is protected.

So far trust is concerned English Law provides the rule that permanent trust for the maintenance of a dead man’s tomb is illegal and void and property cannot be tied up for this purpose. This rule has been laid down in the leading case of Williams v. Williams^[19] where it was said that a corpse is the property of no one. It cannot be disposed of by will or any other instrument. It was further held in this case that even temporary trusts are neither valid nor enforceable. Its fulfilment is lawful and not obligatory. It was held in Mathii Khan v. Veda Leiwai^[20] that worship at the tomb of a person is charitable and religious purposes amongst Muslims- hence trust is possible. In Saraswati v. Raja Gopal^[21] it was held that worship at the Samadhi of a person, except in a community in which there is a widespread practice of raising tombs and worshipping there at, is not a religious or charitable purpose according to Hindu Law and would not constitute a valid trust or endowment.A^[22]

Regarding the property of the dead man the law carries out the wishes of the deceased example, a will made by him regarding the disposal of his property. This is done to protect the interest of those who are living and who would get the benefit under the will. This is subject to the rule against perpetuity as well as law of testamentary succession. Indian Transfer of Property Act, section 14 incorporates the rule against perpetuities, which forbids transfer of property for an indefinite time thereby making it alienable. Section 14 of the TPA restrains the power of creating future interests by providing in the rule against perpetuities that such interest must arise within certain limits. The rule of perpetuity looks to the date at which the contingent interest will vest, if it vests at all, and hold it to be void as “perpetuity if this date is too remote”.

Similarly, section 1 and 4 of the Indian Succession Act, 1925 forbids the creation of a will whereby vesting of property is postponed beyond the lifetime of one or more persons and the minority period of the unborn person.

CRITICALLY EXAMINE THE CONCEPT OF POSSESSION.

BRING OUT THE DISTINCTION BETWEEN POSSESSION AND OWNERSHIP.

EXPLAIN THE ELEMENTS OF POSSESSION. WHY ARE POSSESSORY REMEDIES APPOINTED BY LAW? STATE POSSESSORY REMEDIES.

Possession is very difficult to define in English Jurisprudence. But it very important topic. Human life and society would become impossible without retention and consumption of material and non-material things. Food, clothes, tools, etc. are essential items to use. We get hold over the first to claim possession. It is not just acquisition of things but it is continuing claim for use of them. It may be legal or illegal.
How the possession is acquired:
Following are some points which can be referred to acquire or loss the ownership:

• Possession itself is evidence being owner. Pen in my hand is evidence being owner, regardless legally or illegally.
• The person in possession is presumed to be the owner. A house in my possession is presumed my ownership along-with all the things lying in it.
• Anything can be held wrongfully or by fraud.
• Long possession of twelve years confers the title in property, which may belong to others. When a title is conferred to another even without ownership is acquisition of possession.

Possession is defined as “it is continuing exercise of a claim to the exclusive use of it.” It does not cover incorporeal possession. Possession is different from ownership but normally possession and ownership lie together.
How the possession is acquired: Lease, renting out, pledge, mortgage, theft, fraud, and bailment etc. is the general mode of acquisition of possession. Possession is of two kinds, i.e., possession in fact or de facto and possession in law or de jure. Some discordance in law and fact occurs. Law something presumes which may not actually exist. Normally possession in law and possession in fact exist in a person but it may vary.

• Possession in fact or de facto:
  It means the possession, which physically exists in term of control over it. It can be seen landlord and tenant where tenant holds possession of house physically or de facto, but it is not possession in law or de jure.
• Possession in law or de jure:
  It is the possession which, in the eyes of law, exists. It may exclude physical control over it. It is also called constructive possession. A servant may possess car, but in the eyes of law, it is possession of master. Possession of bailor through bailee is de jure possession on the part of bailor.

Corporeal and incorporeal possession:

Corporeal possession is the possession of a material or tangible objects, thus it is continuing exercise of a claim on the use of material or tangible object.
Incorporeal possession is the possession of a non-material or intangible object. Thus it is continuing exercise of a claim on the use of non-material or intangible object.
There are two essential elements of possession, i.e., animus and corpus.

• Animus is the intent or mental condition or activity or claim of exclusive use of the thing possessed. Cloth at tailor’s shop is in possession of tailor but he may not intend to exclude the owner or subject of the owner. Animus may be legal or illegal. The only test is whether the man in possession intends to exclude others or not. General intent is enough to constitute possession. All books in library, all fishes in net, all sheep in flock, are subject of intent whether in knowledge or not, thus possessio completes.
• Corpus is second element, which is essential and completes possession. It is objective part of possession. Both animus and corpus are necessary for possession.
  The intent to exclude to others from interfering with the object possessed must be evidenced by physical facts. If there is no action then no intention is expressed. Pen in my pocket, ring on my finger, or goods in my home, are corpus of my possession of each of these.

Completion of possession:

• Power of possession: It shows possession. Books or watch in my hand excludes others thus possession is complete. Things under lock and key are also possession.
• Presence of possession: A person may be feeble and unable to exclude other but his presence may command respect. Cash in the hand of child is possession.
• Secrecy: Mere knowledge that I have cash in bank, which is exclusive knowledge, is possession.
• Continuing use: I use pen continuously, read book continuously, use of transport continuously, is possession.
• Customs: In some localities people are not allowed to interfere to other things even presence is not there, like in Saudi Arabia where people leave their shops remain open and go to offer prayer and no interference is allowed. It is possession even in absence.
• Respect of rightful claim: In law-abiding societies people do not interfere in the right of other and rightful claim generally obtain security from general acquisition.

Res nullius

Res nullius means ownerless things or objects. Terra nullius means no man land. A person, who finds lost goods, while passing on road, e.g., a wallet, being first finder, he has good title against the whole world except the true owner, even if it is found on another person property without committing trespass. This is the rule. Any other person who looks at finder of lost goods cannot demand his share from lost goods.If a customer finds a lost wallet while shopping in a store which is not identifiable, can retain till reasonable time to wait its true owner. He is obliged to bring this matter into the knowledge of shopkeeper and give him his own address. If true owner did not come till reasonable time, he will hold title. There are many other things which have no owner, i.e., gems stone, metal, gold, silver, natural resources, bird, animal, provided these things are found in way, without committing trespass. Precious stone cannot be held from the area specified by government. Bird or fish cannot be hunt from the area of property holder. Things cannot be hold from others house. Bird cannot be hunt, which is prohibited.
There are three exceptions in this rule:

• Owner of the property on which the thing is found is in possession of the thing itself as well as property, or
• If the finder is servant or agent then master or principal has title, or
• Wrongful act does not constitute possession. Trespass is not allowed.

Natural resources in economic zone like water, sea, land etc. belong to government. If treasure comes out from others property will also belong to government.

Kinds of corporeal possession:

Immediate possession means direct or proximate possession without agency and mediates possession means in between or remote possession. It is acquired with agency.

• A being a servant holds something for his master B. A has immediate possession while possession of B is mediate.
• Where both claim possession, e.g., tenant and landlord.
• In case of bailment, pledge or mortgage, both have claim.

A has exclusive right of possession on his land while right of way over his land is concurrent.

Acquisition of possession:

Possession is acquired when both the animus and corpus are acquired:

• By taking: When someone takes anything, he has possession. It may either be rightful or wrongful possession.
• By delivery: The thing is acquired by delivery with consents of previous possessor.
• Actual deliveryActual delivery is a kind in which goods are delivered while constructive delivery is the rental or sold goods.

DISTINGUISH BETWEEN POSSESSION AND OWNERSHIP

POSSESSION	OWNERSHIP
1.      Possession is the most basic relation between man and things	1.      Ownership denotes the relation between a person and an object forming the subject matter of ownership.
2.      The concept is complex possession may not be legal, but still it is his possession	2.      The incidents of ownership are definite. Right to possession, to use, to enjoy, to alienate, or to destroy the things. Are exclusive to the owner. The owner has title vested in him.
3.      The duration of possession is generally temporary	3.      The duration is permanent.
4.      Deals with a factual relationship only.	4.      Deals with legal relationship in a system of law.
5.      Possession may be legal, non-legal & even a pre-legal concept.	5.      It is a legal concept in its strict sense.
6.      Possession is the guarantee of the fact.	6.      Ownership is the guarantee of the law.
7.      Possession is classified  between – a.      Mediate and immediate possession. b.      Concurrent possession. c.       Representative possession.	7.      Ownership is classified between – a.      Sole- ownership and co-ownership. b.      Trust and beneficial ownership. c.       Vested and contingent ownership. d.      Corporal and incorporal ownership. e.      Legal and equitable ownership.
8.      The method of acquisition of the possession are classified in to two, Viz. a.      Taking and b.      Delivery.	8.      The method of acquisition of the ownership are classified in to two, Viz. a.      Original method of acquisition of ownership, and b.      Derivative method of acquisition of ownership.
9.      Possession is the de-facto exercise of the claim.	9.      Ownership is the de-jure recognition of the claim.
10.  Possession relates to right in personam which can be owned, but cannot be possessed.	10.  Ownership related to right in rem which can be owned and possessed.

WHY ARE POSSESSORY REMEDIES APPOINTED BY LAW? STATE POSSESSORY REMEDIES.

Possessory Remedies:
Possessory remedies are those which exist for the protection of possession even against ownership. In many legal systems possession is a provisional or temporary title against the true owner. Even a wrongful possessor who is deprived of his possession can recover it from any person whatsoever on the ground of his possession. Even a true owner who retakes his own must frost restore his possession to the wrongdoer and then proceed to secure possession on the ground of his ownership.

There is a strong necessity for possessory remedies to be recognised. The reason for this is:
Possession often amounts to evidence of ownership. A finder of goods becomes its owner against the whole world except the true owner. This is on the ground that he is in possession of it. If a person is in adverse possession of a property for 12 years or more he becomes the legal owner of that property and the right of the original owner is extinguished.

The evils of violent self help are very serious and in all civilised countries, those are prohibited. In order that force should be avoided by the owners and that lawful means are used there should always be protection of possessory rights.

Another reason for possessory rights is to be found in the serious imperfection of early proprietary rights. Those were cumbersome, dilatory and efficient. The position of the plaintiff was a very difficult one and no person was to be allowed to occupy the advantageous position of the defendant. It was under these circumstances that it was provided that the original state of affairs must be restored first. Possession must be given to him who had it first and then alone the claims of other persons can be settled.

Another reason for possessory remedies is that it is always more difficult to prove ownership than to prove possession. Hence it is unjust that a person who has taken possession of property by violence should not be allowed to transfer the heavy burden of proof from his own shoulders to that of the opponent. He who takes a thing by force must restore it and he is free to prove that he is the owner.

Possessory Remedies Under Indian Law:
The Indian legislators have taken care of providing possessory remedies and it is reflected in various statutes. Some statutory provisions are as follows:
v Specific Relief Act, 1963: S. 5 of the Act deals with action for recovery of possession of specific immovable property based on title. The essence of this section is that whoever proves that he has a better title in a person is entitled to possession. The title may be on the basis of ownership or possession. The purpose of this section is to restrain a person from using force and to disposses a person without his consent otherwise than in the due course of law, S. 6 states he or any person claiming through him may by suit recover possession thereof.
S.5 & 6 give alternative remedies and are mutually exclusive

v Code of Criminal Procedure, 1973: S.145 lays down a procedure where a dispute concerning land or water is likely to cause breach of peace. The Supreme Court has observed that the object of the section no doubt is to prevent breach of peace and for that end to provide speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status qup until their rights are determined by a competent court. S. 456 of the Act provides that when a person is convicted of an offence attended by criminal force or criminal intimidation any person has been disposed of any immovable property the court may within one month after the due date of conviction order that possession of the same be restored to that person.

v Sale of Goods Act, 1930: S. 47 of the Act provides for sellers lien, lien is a right to retain possession of goods until certain charges due in respect to them are paid. The unpaid seller has a right to retain the goods until he reserves that price. S. 47 provides that the unpaid seller of goods who is in possession of them is entitled to retain his position until payment of the price in the following cases:

1) where the goods are being sold without any stipulation as to credit
2) where the goods are being sold on credit but the term of credit has expired.
3) Where the buyer becomes insolvent.

S.48 provides for part delivery where an unpaid seller has delivered a part of the goods he may exercise his lien on the remainder.

v Indian Contract Act, 1872: S. 168 of the Act provides for right of finder of goods. Section 168 provides that the finder of goods has no right to sue the owner for compensation for trouble and expense voluntarily incurred by him to preserve the goods and to find out the owner but he may retain the goods against the owner until he receives such compensation and where the owner has offered a specific reward for the return of goods lost, the finder may claim such reward and retain such goods till the reward is given.

S. 169 provides that when a thing which is commonly the subject the sale is lost, if the owner cannot with reasonable diligence be found or if he refuses upon demand to pay the lawful charges of the finder, the finder may sell it:
1) When the thing is in the danger of perishing or losing the greater part of its value.
2)When the lawful charges of the finder in respect of the thing found amounts to two thirds of its value.

V Adverse Possession: Adverse possession is wherein by physically occupying it for a long period of time. One may acquire property without the consent of the actual title holder if one possesses it long enough and meets the legal requirements. Adverse possession is one kind of involuntary transfer of ownership rights in real property. Under the doctrine of adverse possession, the true owner of a piece of real property cannot bring an action to eject someone who has actually possessed the property for a certain period of time.

Possessory Remedies And Doctrine Of Jus Tertii: Possessory remedies have been rejected by English law but other provisions have been made to protect possession, there are three rules in this connection, prior possession is prima facie proof of title, he who is in possession first in time has a better title than the one who has no possession, a defendant is always at liberty to rebut that presumption by proving that he has a better title. A defendant who has violated the possession by the plaintiff is not allowed to set up the defence of jus tertti, which means that he cannot plead that – though neither the plaintiff nor he has the title, some third person is the true owner but the plaintiff is not. English law considers jus tertii as a good defence under the following circumstances,

1) when the defendant defends the action on behalf of and by the authority of the true owner.
2) When he committed the act he complained of, by the authority of the true owner.
3) When he has already made satisfaction to the true owner by returning the property to him

Q.Discuss various modes of acquisition of possession. Q. Define possession. What are various kinds of possession? Q. Discuss the difference between possession and ownership. Q. Write a comprehensive note on direct, indirect and duplicate possession. Give illustrations whenever necessary.

Introduction:

Possession is one of the most important concept in the whole range of legal history. It is a mere fact which has an enormous legal significance to which legal rights are attached and legal consequences flow from the loss and acquisition of possession. So that topic of acquisition of possession is very important in the study of possession. Possession is also divided into eight different kinds.

Definition Of Possession:

I. According To Salmond:

                    “The possession of the material object to the continuing exercise of a claim is the exclusive use of it.”

II. According To Pollock:

                 “In common speech, a man is said to possess or to be in possession of anything which has the apparent control or from the use of which he has the apparent power of excluding others.”

Modes Of Acquisition Of Possession:

Possession is acquired whenever the animus and corpus united. So there are there modes of acquiring possession.

Taking

Delivery

Operation of the law

Taking:

Possession is acquired by taking with the requisite animus, and it is done without the consent of the owner. It may be done in the following ways:

Rightful taking of possession:

A shopkeeper is entitled to get some money from a customer and the shopkeeper takes possession of the things of the customer. This is an example of the rightful taking of possession.

Wrongfully taking of possession:

If a thief steals something from an individual, his acquisition of possession is wrongful.

Original taking of possession:

If a person captures a wild animal which does not belong to anybody, the possession is called original.

Delivery:

Another way of acquisition of possession is by delivery. In this case, a thing is acquired with the consent and co-operation of the previous possessor.

Kinds Of Delivery:

It is of two Kinds:

Actual

Constructive

Actual delivery:

In Actual delivery, the union of the corpus and animus is brought about for the first time in the transferee, as a result of the delivery by the transferor. The transferor may or may not retain mediate possession depending on the nature of the transaction.

Example:

‘A’ lend his book to ‘B’ ‘A’ retain the mediate possession of the book but if ‘A’ sells this Book to him, he lose mediate possession.

Constructive Delivery:

To salmond, constructive delivery is that which is not actual, that is to say there are no physical dealings with the thing but mere change of animus intention possession is secured.

Forms of constructive delivery:

It may take may of 3 forms or kinds.

Traditio brevi manu:

In this case, possession is surrendered to one who has already in possession of it e. g., I lend you a book, afterwards make a presents of it to you.

Constitutum  Possessorium:

In this case, mediate possession is transferred to the transferee and transferor to the transferee and and transferor still holds the immediate possession.

Example:

I buy books from the shop. The shopkeeper agrees to holds books on my account, it is a constructive delivery.

Attornment:

In this case, there is transfer of mediate possession from the transferor to the transferee while the immediate possession remains outstanding in some third person.

Example:

‘A’ sells land to ‘B’ C is in possession as a tenant ‘C’ agree with the ‘B’ to hold for the future on his account of ‘A’ Here ‘B’ secures mediate possession by constructive delivery by way of attornment.

Operation Of Law:

The law removes goods from the control of one person to the control of another e. g., If a person dies, the possession of his property is transferred to successors and legal representative.

Resnullius:

According to this principal, the first finder of a thing has a good title to that thing against all but the true owner.

Exceptions:

This rule is subject to the following exceptions:

The rule does not apply if the owner of the property on which the thing itself and the property.

If the finder finds the thing as the servant or agent of another  person.

If the possession of the thing was got through trespass or other wrongful, act.

Immediate And Mediate:

Immediate possession:

Immediate possession is also called direct possession. If the relation between the possessor and the thing possessed is a direct one it is a case of immediate possession.

Example:

If ‘A’ go to the bazaar and buy thing personally, it is a case of immediate possession.

Mediate possession:

Mediate possession is also knows as indirect possession. When the relation between the possessors and the thing is through the intervention or agency of some other person, it is called mediate possession.

Example:

If ‘A’ send his agent to the bazaar to buy something and he  does make the purchase, the possession of ‘A’ is mediate.

Categories of Mediate Possession:

There are three categories of mediate possession.

First category:

In it, the owner has possession through an agent or servant who acquires and retails possession of a thing entirely on behalf of the owner without claiming  any interest for himself e. g., buying a book on behalf of owner.

Criticism:

It is pointed out that in case of an agent or servant, he dose not possess the thing but has merely the custody of the thing. The animus possidendi is lacking.

Second category:

In the second category, the immediate possession is whit a person who holds the thing on his behalf and the behalf of some other person and who is bound to hand over the thing whenever that other person desire e. g., where someone borrows a book from someone.

Criticism:

It is pointed out that two persons cannot be in possession of the same thing at the same time adversely to each other. The reason is that if one person has both the corpus of possession and the animus possidendi he has full possession of the thing.

Third category:

In the case of third category, the immediate possession is with one person but he is bound to return the same after a certain period or on the fulfillment of certain conditions.

Example:

If ‘A’ owe some money to ‘B’ and pledge certain things to him ‘B’ has immediate possession of the thing pledged but is bound to return the same to the ‘A’ on payment of the debt.

Corporeal And Incorporeal Possession:

Corporeal Possession:

Corporeal possession is the possession of a material object e. g., possession of a car, books etc.

Incorporeal Possession:

Incorporeal possession is the possession of anything other than material object. It is the possession of a right e. g., possession of a copyright etc.

Representative Possession:

Representative possession is that in which the owner has possession of a thing through an agent or servant. The essence lies in a fact that the master has the animus (intent) to exercise control  over the thing in the hands of his servant or agent.

Concurrent Possession:

In the case of concurrent possession, the possession of a thing may be in the hands of two or more persons at the same time but heir claims are to adverse or destructive to each other.

Example:

I am possess a piece of land and another person may have the right of way on the same land.

Derivative Possession:

In derivative possession, the holder of the thing combines in himself both the physical and mental elements which constitute legal possession e. g., creditor has derivative possession of the thing pledged to him.

Constructive Possession:

It is not an actual possession. It is a possession in law and not in fact.

Example:

Giving of key of a building is the giving constructive possession of the building.

Adverse Possession:

The possession of property by a person is adverse to every other person, having or claiming to have right to the possession of the same, by virtue of a different title when adverse possession is established, it extinguishes the title of true owner.

Condition for Adverse Possession:

Possession must be an invasion of the ownership of another i. e., ownership must belong to some other person.

Possession should be actual exclusive and adequate in continuity and publicity.

Possession must be exercised without violence.

It should be exercised openly i. e., without stealth.

The act of possession must be without permission.

Duplicate Possession:

Claims to possession which admit of concurrent realization give rise to duplicate possession.

Difference Between Possession And Ownership:

Ownership and possession have the same subject-matter. The two things stand mutually to coincide ownership strives to realize itself in possession endeavours to justify itself as ownership. Following are the differences between these two term.

Nature:

Possession is the de facto exercise of a claim while ownership is the de jure recognition of that claim.

As to Guarantee:

Possession is the guarantee of the facts while ownership is the guarantee of law.

As to spirit.

Possession without ownership is the body of fact uninformed by the spirit of right. While ownership without possession is right unaccompanied by that environment of fact in which it normally realizes itself.

Effect:

Possession is a evidence of ownership while the ownership is not the evidence of possession.

Effect of Time:

Through the influence of time, possession without title ripens into ownership and ownership without possession withers away and dies.

As to conception:

Ownership is concrete is the absolute while possession is the concrete realization of that concept.

As to Alienation or destruction of a thing:

The owner may alienate a thing or even destroy it is such a manner that he does not disturb the rights of other people. While a possession has no such rights as regards to the thing possessed.

Acquisition:

The transfer of possession is comparatively easier and less technical but the transfer of ownership is most cases involves a technical process of conveyance.

Remedies:

For the protection of ownership, proprietary remedies are available while for the protection of possession, possessory remedies are available.

Conclusion:

To conclusion, I can say that possession is an essential concept in legal system. It is a prime facie evidence of ownership. It is classified into different kinds and different ways are provided for the acquisition of it.

DEFINE CUSTOM AND DISCUSS HOW CUSTOM IS RECOGNISED AS A SOURCE OF LAW.

DEFINE CUSTOM. EXPLAIN WHY CUSTOM IS ATTRIBUTED THE FORCE OF LAW? WHAT ARE THE ESSENTIALS OF A VALID LOCAL CUSTOMS?

INTRODUCTION: Custom is a conduct followed by persons in the society.  Custom is considered as the most ancient and most important source of law.  Source means origin of a thing. It is also considered that law basically comes out from customs. In the past customs were prevailing for the control over the society.

          Austin was the first person who discarded the value of the custom.  But the historical school again gave the importance to custom.  The sociological school also gives importance to law with relation to society.

            In the modern times the precedents i.e. Judge made law and legislation have become over powered to that of customs. As in a case of Maduri v/s Motu  Ram Linga. It was held that even custom power over the state.

VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE OF LAW. 

The followings are the systems which recognized custom as a source of law :

1.Romal Law :- Roman Law is known to be the oldest one in the world.  This law is mainly based upon customs of the society. Those customs which were reasonable continued them as law by the Roman jurists.

2.Hindu Law :- Hindu law is also to be considered as the most ancient law.  His sources are Vedas, Sutras and Smiriies  and these were mainly based on customs.  All personal laws of Hindu are based upon custom that is why Lord Warren Hastings and Lord Cornwallis did not attack on customs of Indians.

Manu said One should follow the given path of their ancestors. This was nothing but the reorganization of customs.

3.Mohammedan:- Particularly ignored customs for the purpose of law. During th Muslim period in India their customs were protected by State.  The British rulers in India also protected customs and personal laws which were based upon customs. The traditions which were not opposed by the prophet Mohammedan were recognized as law. In this way we can say that customs in Mohammedan law also played an important role.

4. English Law :- Which is known as common law and in the shape of un-written and based upon customs and conventions.  Customs which were reasonable and not against the public policies were recognized as law under English Law. 

          According to Pollock, The common Law is customary law. Black stol common includes written law and un-written law.” The written law is based upon the general customs.  In this  way English law also gave importance to the customs as a source of law.

CLASSFICATION OF CUSTOMS

Mainly the customs are of four types :-

1.National Customs :- Those customs which are related to the nation and are applicable on the country’s people.

2. Local Customs :- Those customs which are related with a particular locality.

3. Family Customs :- Those customs which are related with a family and have application on a particular family.

4. Conventional Customs :- These customs based upon conventions e.g. a bigger part of English Law based on customs and conventions.

ESSENTIALS OF CUSTOMS

Following are the essential elements of a custom:
1. Antiquity:
A custom must be in existence from time immemorial. English law fixed the year 1189 to test the antiquity of a custom. A custom must be in existence prior to 1189, only then it can prove the consideration of antiquary. Under Hindu law also immemorial customs are transcendental law. However India law does not fix any particular year to test the antiquity of custom.
2. Continuance:
A custom must be practiced without interruption; continuity is an essential feature of the custom. Continuity does not mean that it should be in operation all the time. It means that there should be a continuous availability of the terms of the customs to deal with particular rule of conduct with which it deals. Presence 6f custom if fact and its enforceability both are essential to prove antiquity. If a custom becomes legally unenforceable even for a short time it would not the recognized as a valid' custom.
3. Peaceable enjoyment:
It is essential that custom must have been enjoyed peacefully by the concerned people.
4. Matter of right:
Custom must have been enjoyed as a matter of right. This right should be enforceable. Thus custom must result in creating obligatory force at the one hand and related claim on the other hand. If a practice is observed as a courtesy and not as a matter of right then it can be termed a "custom" in legal sense.
5. Certainty:
Custom must be certain. If the nature of the custom is not certain then it loses its validity. Custom originate from general consent, it is hard to determine existence of consent, on something which is not certain.
6. Consistency:
A custom must not be in conflict with other prevailing customs. The customs must be in consistency with other custom. Difference or inconsistency in custom will amount to different rule of conduct for a given situation; it will negotiate the general consent.
7. Conformity with statute law:
Custom should be conformity with statute law. A legislative enactment can abrogate a custom. In case of inconsistency between custom and statutory provision, former must give way to the latter. Thus, custom yield legislative enactment.

WHEN DOES A CUSTOM BECOME LAW.

ANALYTICAL VIEW:-  Austin and Gray are the supporters of analytical school. They say that a custom becomes law when it is recognized by the sovereign in the sense of positive law only.

        It means that if a custom has been accepted or adopted or recognized by the sovereign then it will become a law otherwise there will be no value of the custom in judicial system of the society.

HISTORICAL SCHOOL:- Sovereign as the supporter of Historical school says that custom is a main source or base of law  He says that “ consciousness of the volkgiest is the main source of law.”

                Custom is superior to Judge made law or legislation. The legislation while making a law recognizes the customs of the society.  The courts also while giving the decisions recognized the customs prevailing in the society.

CONCLUSION

Custom occupies an important place as a source of law even to these days because most of the material contents of developed system of law have been drawn from ancient customs.  Custom is one of most fruitful sources of law. According to Analytical school a custom when recognized by State or sovereign becomes law.  According to Historical school when state or courts make law they give importance to the customs. So both of the view are combining to each other and are correct for a custom as source of law.

DEFINE AN OBLIGATION. BRING OUT THE SOURCES OF OBLIGATIONS WITH EXAMPLES.

According to Salmond, ̳an obligation may be defined as a proprietary right in personam or a duty which corresponds to such a right‘. Obligations are merely one class of duties, namely, those which are the correlatives of rights in personam. An obligation is the vinculum juris, or bond of legal necessity, which binds together two or more determinate individuals. It includes the duty to pay a debt, to perform a contract, or pay damages for tort, but not the duty to refrain from interference with the person, property or reputation of others.

In general sense the term obligation is synonym to duty. We must know one thing about duty that it is only part of the broader term obligation.

H.L.A.Hart observes that obligation exists by virtue of rule. According to him obligations can be moral as well as legal. He identifies the following differences between moral and legal obligations:

·Every moral rule is treated as being important, but this not so with every legal rule.

·Moral rules are not changed by deliberate single acts, while legal rules can be so changed.

·Breach of moral rules requires voluntary and blameworthy conduct, but many legal rules can be broken without fault.

·Moral pressure is applied mainly to appeal to the morality of the conduct, whereas legal rules are applied mainly by coercion.

According to Holland, ̳an obligation, as its etymology denotes, is a tie whereby one person is bound to perform some act for the benefit of another. In some cases, the two parties agree thus to be bound together; in other cases, they are bound without their consent. In every case, it is the law that ties the knot and its untying, solution, is competent only to the same authority‘

Obligation is a synonym for duty.

Obligations may mean one class of duties corresponding to rights in personam. E.g.: To collect rent.

Obligation may be vinculum-juris (bond of legal necessity). It binds together two or more individuals. Duty to pay a debt, to perform a contract, to pay damages for torts etc. Obligation is not merely a duty but it is also a right. Further, an obligation belongs to the group of proprietary rights i.e., the right forms part of the estate of the owner. Therefore, an obligation is defined as a

proprietary right in personam or a duty which corresponds to such a right.

"Person entitled" is called a creditor and the person who is bound, is the debtor in a narrow sense. The technical equivalent of an obligation is choses in action or thing in action.

E.g.: Debt, a share in a company, claim for damages for tort etc.

The normal type of obligation is between a creditor and a debtor.

There may be two or more creditors or debtors, but in such a case, there may be co-owners or persons jointly bound.

Eg.: 1) Debts by a partnership firm.

2) Debts by principle debtor, guaranteed by one or more sureties.

3) Liability of two or more tort-feasors.-

Hence, the creditor is not obliged to divide his claim into as many different parts as there are debtors. He may recover the entire amount from one debtor and leave that debtor to recover from the co-debtors. If A and B partners of a firm owe Rs.1000 to creditor C,it does not mean that A and B are under an obligation to pay Rs.500/- each. The debt is single and therefore can be recovered from any person A or B. If the debt is one or single, it is called solidary obligation. That is,

each debtor is bound is solidum instead of proparte. (Proportionate part).

Hence a solidary obligation may be defined as an obligation in which two or more debtors owe the same things to the same creditor.

There are three distinct types:

1. Several

2. Joint and

3. Joint and several.

1. Several: It is several where the thing owed is the same but there are many obligations as there are debtors. Each debtor is bound to the creditor by a distinct and independent Vinculum juris. But the obligation is the same. Hence, performance by one debtor discharges

all debtors.

2. Joint: Here, there are two or more debtors but there is only one debt. If one is discharged, all others get discharged.

3. Joint and several: Law treats this for some purposes joint and for other purposes several.

In order to find out the class to which an obligation belongs, it is necessary to find out the origin.

Examples:

1) Several:

Principal debtor and surety-where the suretyship is in a separate agreement. But, if it is in the same agreement it becomes a joint obligation.

2) Joint:

Debts of partners.

3) Joint and several :

(i) Joint tort feasors (ii) Contracts where the obligation is joint and several, i.e., all together & each is individually liable.

The various sources of obligation may be :

1. Contractual.

2. Delictual E.g. Joint tort feasors.

3. Quasi Contractual.

4. In-nominate:

Eg. Obligation of trustee towards beneficiary.

Contract as a source of obligation :

            Contractual obligations are those which are created by contract or agreements which create rights in personam between the parties, e.g., contract of sale and purchase, leases and guarantee. The rights so created are generally proprietary in nature, but sometimes they may not be proprietary though in perso­nam e.g., promise of marriage.

As we have already dealt with contractual obligation in our former section. Now, here we would be dealing some more additions to contract. Contract is one of the most important and foremost sources of obligation.

Here we will be just stressing about how contract is source of obligation. Contract create rights in personam between the parties, this we have already dealt discussed above. It can be said that the law of contract is almost wholly embraced within the law of obligations. There may be a few exceptions like promise of marriage, which fall within the law of status and not within that of obligation. Salmond says, neglecting the small class of personal contract, the general theory of contract is simply a combination of the general theory of agreement with that of obligation.

So far, the discussion was about evolution of contracts from jurisprudential perspective. Now in coming chapter, we will discuss about development of contract law in English system, Ancient Indian system and under Mohammedan Law.

Quasi-contract as a source of obligation –
Quasi-contractual obliga­tions are enforced by the law on equitable principles. Both in Roman law and English Law there are certain obligations which are not in truth contractual, but which the law treats as if they were.
They are contractual in law, but not in fact. The Romans termed them obligations quasi ex contract, while English lawyers call them quasi- contracts or implied contracts.
Salmond says, “It is a fictitious exten­sion of the sphere of contract to cover obligations which do not in reality fall within it.” Most of these quasi- contracts or obligations quasi ex contract fall in either of the two following classes:
(i) All debts in general are contractual in origin, and most debts are obligations ex contracts in fact, but some have a different source. The liability of the judgment-debtor to the judgment-creditor is held to be contractual.
A judgment creates a debt, although it is non-con­tractual, and yet the law treats it as falling within the sphere of con­tract. Similarly, where pays money to B under a mistake, B is liable to pay back the money to A. Here, although there is no promise by B to A to pay the money, yet the law implies a promise.
(ii) All these cases in which a person injured by a tort is allowed by the law to waive the tort and sue in contract instead. Such obliga­tions being in truth delictal are allowed to be treated as contractual at the plaintiff’s option. Thus, if A obtains money from B by fraudulent misrepresentation, B may sue him either in tort for damages for the deceit, or may waive the tort and sue on a fictitious contract for the return of money.

 A quasi-contract is a juridical relation that the law creates on the basis of certain voluntary, unilateral and lawful acts of a person, to avoid unjust enrichment at the expense of another. In the Lopez case, the airline was made liable for damages as a result of a breach of their contractual obligations.  In 1966, the award imposed was a huge sum of money. The airline’s liability ballooned due to the finding of bad faith on their part. As a consequence, plaintiffs were awarded moral and exemplary damages, as well as attorney’s fees.

While the law does not exhaustively list down all quasi-contracts, it provides for two general examples.

First, in a negotiorum gestio, any person who voluntarily takes charge of the agency or management of the business or property of another, without any power from the latter, is obliged to continue the same until the termination of the affair and its incidents, or to require the person concerned to substitute him, if the owner is in a position to do so.

For example, if a business owner leaves and did not provide for any arrangements, the manager may voluntarily take charge despite not being authorized to do so. Once that is done, the manager will be obligated to run the business until its termination or any pending incident, as well as require any person concerned to be the manager’s substitute.
Best Legal Practices:

Document quasi-contractual obligations – For the interest and protection of the obligor subjected to quasi-contractual obligations, the latter should document all expenses that he made in order to recover them as reimbursements from the obligee.

For example, if a shop owner receives payment when it is not owing from a supplier, the shop owner is required to return the sum of money.Second, in a solutio indebiti, any person who receive something when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises.
In either of the above case, as well as in any quasi-contract, unjust enrichment is not allowed resulting the reimbursement or return of payment.
Acts or omissions punished by law as a source of obligation –

An obligation arising from an act or omission punishable by law either refers to: (a) a felony punishable under the Revised Penal Code, or (b) a crime punishable under special laws.

For instance, administrative fines or imprisonment are imposed for violations of business laws, including  but not limited to, the Labor Code, National Internal Revenue Code, Corporation Code, Intellectual Property Code.


Quasi-delict as a source of obligation –

A quasi-delict is an obligation to pay for damages imposed on a person who, by act or omission, caused damage to another through fault or negligence, with the parties having no pre-existing contractual relations. The proximate cause of the damage must be attributable to the defendant. However, while stated in the law, it has repeatedly been held that the existence of a contractual relation between the parties do not bar an action for quasi-delict.

Coca-Cola Bottlers Philippines, Inc. v. Court of Appeals
G.R. No. 110295, 18 October 1993

A store-operator in a kindergarten school filed suit against Coca-Cola claiming that she closed shop and lost her livelihood after incurring heavy losses due to fiber like materials in her stock of Coca-Cola soft drinks. As a defense, Coca-Cola claimed that her cause of action, if any, is for breach of contract – and not quasi-delict.

HELD: Coca-Cola was liable for breach of contract and quasi-delict. “The vendor could likewise be liable for quasi-delict under Article 2176 of the Civil Code, and an action based thereon may be brought by the vendee. While it may be true that the pre-existing contract between the parties may, as a general rule, bar the applicability of the law on quasi-delict, the liability may itself be deemed to arise from quasi-delict, i.e., the acts which breaks the contract may also be a quasi-delict.”
Law as a source of obligation –

The law may impose an obligation on a business. These law-based obligations are never presumed. There must be a legal provision which serves as the basis. Necessarily, the demandable obligations are only those expressly provided by the law.

If there is a law, then it will regulate the observance of the obligation depending on the precepts of that particular law, including those that have not been foreseen. For instance, Article 1174 of the Civil Code specifically provides that the happening of a force majeure releases one from an obligation.
Best Legal Practices:
Obligations arising from law must have legal basis – When an obligation arising from law is imposed on a business, it is best to ask for the legal basis to confirm whether such in fact exists. With government offices, managers may coordinate with the concerned offices/agencies and ascertain the existence of any rules and regulations that their business may need to comply. Hence, managers may write a letter asking for opinion from the concerned office whether compliance is indeed required by law.
The law specifically provides that contractual obligations have the force of law between the contracting parties. Further, the law requires that these obligations be complied with in good faith. Consequently, those who do not comply with their contractual obligations are liable for breach of contract resulting in payment of damages, among others.

Delictal Obligations:

Delictal obligations arise from torts. Salmond defines a tort as a “civil wrong for which the remedy is an action for damages and which is not solely the breach of a contract or the breach of trust or any other merely equitable obligation.”

Delictual fault refers to a legal obligation arising between people independent of any contractual or other legal relationship between them. Delictual fault arises when one person commits a tort against another person. It is an act productive of obligations that take place between persons judicially who are strangers to each other. Delictual fault is also the intentional or negligent causing of damages.[Hostetler v. W. Gray & Co., 523 So. 2d 1359, 1368 (La.App. 2 Cir. 1988)].

In nominate Obligations:

          An innominate obligation means quasi-contractual, delictual, and anonymous obligations with no specific classification or name.

Example – obligation between a trustee and a beneficiary is an innominate obligation. Innominate obligation governed by any rule or statue instead it is determined by the circumstances. It is also called as obligations innominati.

CRITICALLY ANALYSE THE CONCEPT OF PROPERTY.

EXPLAIN THE CONCEPT OF PROPERTY AND DISCUSS THE KINDS OF PROPERTY.

WHAT ARE THE DIFFERENT MODES OF ACQUISITION OF PROPERTY?

Property:

In its widest sense "property includes all the legal rights of a person of whatever description including thereunder personal as well as proprietary rights. In a narrow sense, property includes the rights of a person and not his personal rights.

Eg.: Land, Chattels, Stocks, Patent rights, Trade marks, Copyrights etc. are property.

Broadly there are two kinds of properties. Corporeal and incorporeal (moveable and immoveable.)

Real and personal come under corporeal. Right in-propria and right in re-aliena come under incoporeal property.

Kinds of property :-

1. Property is mainly of two kinds: corporeal and incorporeal.

(i) corporeal property is the right of ownership in material things, (visible). It may be movable or immovable. Eg. Land,House, ornaments, gold etc

ii) Incorporeal property : It a proprietary right. It has two divisions.

a) Encumbrances (Jura in re aliena) like lease, mortgage, servitude, Trust etc.

b) Jura in re propria- a right over immaterial things: e.g. patent right, trade mark, copy right, Goodwill, etc. Salmond says that the distinction is only theoretical.

2. Movable & immovable property :

Immovable property (land) (Real property according to English law): has the following elements:

i) It is a portion on earth's surface.

ii) The ground beneath the surface down to the centre of the earth, and the space above it upto infinity.

iii) All objects under the surface in its natural state i.e. minerals, stones etc.

iv) Building permanent fixtures etc.

Movable property is any corporeal property which is not immovable, e.g. goods, chattels, furniture, etc.

Modes of Acquisition:

1. Occupation or possession:

In case of 'Res nullius' (a thing without an owner) anyone is at liberty to take and keep it and he makes it his own by the very act of taking possession. The possession of the material object is the title to the ownership of it. Possession is the objective realisation of ownership. If a possessory owner is wrongfully deprived of the thing, he can recover it. A person in possession is deemed to be the owner until and unless proved otherwise. A person in lawful possession cannot be ousted out, even by the owner, without observing the due course of law.

2. Prescription:

It is a mode of acquiring property. May be defined as the effect of lapse of time in creating or destroying rights. It is the operation of time as a vestitive fact. It is of 2 kinds. Positive or

aquisitive and negative or extinctive. In the positive prescription it is a title or right; but in negative prescription it is a destructive fact. The rational basis of prescription is the coincidence of possession

and ownership of fact and right.

3. Agreement: Includes not merely contracts but all other bilateral acts in the law. Agreement is of two kinds namely.

1) Assignment and 2) Grants.

By the former existing rights are transferred from one person to another, By the latter new rights are created by way of encumbrance upon the existing rights of the grantor.

E.g.: Leases:

Agreement is either formal or informal.

4. Inheritance: On the death of the owner heritable rights of deceased survive to the heirs. Personal rights are generally not heritable. Proprietary rights are usually heritable. The representative bears the personality of the deceased and has vested in him all the inheritable rights. That is, rights are vested in the heir.