Concept Of Ownership, Unraveling the Connection with Possession

Ownership and possession are often used interchangeably, but they carry distinct concepts. Ownership, a fundamental principle in jurisprudence, grants individuals the right to control and utilize specific assets in a particular manner. The roots of ownership can be traced back to Roman and Hindu law, where it significantly differed from mere possession. In Roman law, the term "dominium” represented the absolute right to a thing, encompassing the full spectrum of control and authority over it. On the other hand, the word “possession” denoted mere physical control over the object without necessarily implying complete ownership or legal entitlement.
Over time, the concept of ownership evolved, encompassing not only physical control but also legal rights, privileges, and responsibilities associated with the property. In contrast, possession remained limited to the immediate physical holding or occupancy of the asset without implying a comprehensive legal entitlement.

Definition of ownership:

Various jurists and legal scholars have offered definitions of ownership throughout history. Let's explore some of these definitions:

Salmon’s definition-

According to Salmond ownership vests in the complex of rights which he exercises to exclusive of all others. For Salmond what constitutes ownership is a bundle of rights which in here resides in an individual. Salmond’s definition thus points out two attributes of ownership.

1. Ownership is a relation between a person and a right that is vested in him
2. Ownership is incorporeal body

Austin’s definition-

According to the view of Austin, there are three elements of ownership:

1. Indefinite user
2. Power of disposal
3. Unlimited duration

Holland’s definition-

He followed Austin’s view of ownership and according to him an owner has three kinds of powers namely; possession, enjoyment, and ownership all or some of which can be lost by lease or mortgage

Pollock’s definition-

According to him, ’Ownership may be described as the entirety of the powers of use and disposal allowed by law.’

Hibbert’s definition-

Ownership includes four kinds of rights within itself:

1. Right to use a thing
2. Right to exclude others from using the thing
3. Disposal of the thing
4. Right, to destroy it.

Kinds of ownership:

There are many kinds of ownership, and some of them are-

• Corporal and Incorporeal ownership:

Corporal ownership is the ownership of a tangible object which can be seen or perceived by senses example ownership of a house, a table, or a machine etc., whereas, incorporeal ownership is the ownership of an intangible object example ownership of a patent, copyright, or trademark etc.

• Legal and Equitable ownership:

Legal ownership are those ownerships which are based on common law, and equitable ownership is that which proceeds from the rules of equity. There is a distinction between the two.

• Vested and Contingent ownership:

When the ownership is based on the fulfillment of some conditions it is known as contingent interest i.e., the ownership is based upon the mere possibility of future events, whereas Ownership is said to be vested when the owner’s title is already perfect i.e., the property is owned absolutely.

• Absolute and Limited ownership:

When in a person all the rights of ownership are vested without any restriction it is absolute ownership, but when there are limitations on user, duration or disposal, the ownership is limited ownership.

• Sole and co-ownership:

When the ownership is vested in one person, it is known as the sole ownership, however when it is vested in more than one it is called co-ownership.

Acquisition of ownership:

Acquisition of ownership can be categorized mainly in two heads

1. Original
2. Derivative

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

1. Absolute- When the object that is acquired has no previous owner
2. Extensive- when a person by some acts on his ownership of the previous owner and acquires its ownership himself
3. Accessory – when the ownership of a property is acquired by way of accession to some existing property

Derivative when the ownership is derived from a previous owner Like in the form of gift, inheritance etc.

Difference between Ownership and Possession :

Ownership and possession are two distinct legal concepts in jurisprudence. Ownership refers to the legal right to possess, use, and dispose of an object, while possession refers to the physical control or occupancy of an object. Some other differences between possession and ownership are as follows-

Conclusion:

From the above discussion, it can be concluded that understanding these differences is crucial in legal matters. Ownership and possession look similar or as synonyms in general language, but they are different in jurisprudence as Ownership grants legal rights and control over assets, while possession refers to physical control without full legal entitlement.

References:

Ownership, Essential of ownership and different kinds of ownership in English jurisprudence (lawandlegislation.blogspot.com)

Essential Characteristics of Ownership | Law column

https://legalvidhiya.com/ownership/

https://lawbhoomi.com/ownership-in-jurisprudence-meaning-kinds-incidents-and-relevance-in-contemporary-times/

https://allindialegalforum.com/2020/10/21/possession-and-ownership-and-person/

The Concept of Possession- its meaning, elements, kinds, and modes of acquisition (legalserviceindia.com)

Concept of possession and ownership - iPleaders

IMPACT OF SOCIAL DEVELOPMENT ON LAW

A society cannot remain static. It keeps on moving with economic, social, technical, political development. Therefore, law in other to meet the changing needs of the society keeps itself updated to march with it. 

Positive contribution of social development on law in India

Indian legal system has undergone various changes and reforms to address social issues and has move to progressive state where social justice is promoted like abolishment sati system, child marriage, untouchability, etc. This evolution has profound impact of social development on Indian legal system. Some other examples which reflects social development on law are as follows-

Uniform Civil Code 

The demand for a UCC reflects the impact of social development on law. As society evolves, peoples’ thinking changes too, which results in equality and unity.

In Lily Thomas vs Union of India (2000) SC in regard to uniform civil code under article 44 of Indian constitution held that the government should try to have the same civil laws for everyone. But the court also understands that this issue is very complex as India has different cultures religions and language. Therefore, changes should be made gradually and not by force.

Triple talaq 

With the awareness and equality education also plays a vital role in development of the society and in a progressive society women also demand their equal rights and to live a life with dignity, one such case which showed this is Shayara Bano vs Union of India also known as triple talaq case in the instant case triple talaq was held unconstitutional.

Adultery under section 497 of Indian penal code

 With developing nation, the society is to move from the patriarchal and recognizing the autonomy and agency of women in relationship. In Joseph shine vs union of India the SC held the punishment of section 487 of IPC unconstitutional, this judgment reflected the evolving social norms and court's commitment to uphold equality. 

Same-sex relationships 

With the changing society the need to recognize and protecting the rights of every person irrespective of their gender not just for man or women but also for the third gender. One such example of this was decriminalizing consensual same-sex relationship by declaring section 377 of Indian penal code unconstitutional by the SC in Navtej Singh Johar vs union of India and current pending case of Supriya Chakraborty vs Union of India for same-sex marriage. 

Conclusion

Thus, from the above discussion it can be held that law without social acceptance is ineffective, therefore social development influences the shaping of law as changing societal values demands for legal reforms.  

References

Indian Kanoon - Search engine for Indian Law

LL.M. II SEM (LAW AND SOCIAL TRANSFORMATION) L-2003 TOPIC- Law as an intrument of social change new.pdf (ccsuniversity.ac.in)

Law And Social Transformation English, G.P. Tripathi

Impact of Lily Thomas case and Rahul Gandhi controversy

Impact of Lily Thomas case and Rahul Gandhi controversy

Corruption and criminalization have undermined trust in India’s democracy. Politicians with criminal records holding public office have become a major concern. The need to address the disqualification of such politicians is crucial to restore faith in the democratic system and uphold. 

Meaning of Disqualification: 

"Disqualification" means that a person is disqualified from being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. 

 

Section 8(3) of the Representation of People Act, 1951: 

A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section 

(2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. 

 

Section 8(4)of the Representation of People Act, 1951: 

Notwithstanding anything in sub-section (1), subsection 2 and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court. 

Defamation

Defamation in general refers to an act of making false statements about someone to harm their reputation.

Defamation is of two kinds:

Libel 

Slander

Libel

If the statement is made in writing and published in some permanent and visible form, then the defamation is called libel.

Slander

If the statement is made by some spoken words then the defamation is called slander.

Defamation in Indian law

Defamation in India is addressed through both criminal and civil law. Under the criminal law, the Indian Penal Code, sections 499 to 502 deal with defamation. If someone is found guilty of defamation, they may face punishment in the form of a fine, imprisonment, or both. On the other hand, the civil law aspect, known as the Law of Torts, focuses on providing compensation to the victim of defamation. Unlike criminal law, which involves punishment, the civil law system aims to remedy the harm caused to a person’s reputation by awarding compensation.

Definition of defamation as per IPC SECTION 499 

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Lily Thomas vs Union of India & Ors on 10 
July, 2013, (Bench: A.K. Patnaik, Sudhansu Jyoti Mukhopadhaya): 

Social activist Lilly Thomas filed a writ petition (No. 231 of 2005), challenging the constitutional validity of Section 8(4) of the Representation of People Act, 1951, which allowed convicted lawmakers (conviction carrying a sentence of at least two years of imprisonment) to continue in office if they filed an appeal within three months of their conviction. 

 

Decision: 

The Supreme Court held that Section 8(4) is "ultra vires" to the constitutional provisions. 

 

Rahul Gandhi controversy: 

Rahul Gandhi, a prominent leader of India's main opposition Congress party, was recently disqualified as a Member of Parliament (MP) after being found guilty of defaming Prime Minister Narendra Modi with a conviction of two years according to sections 499 and 500 of the IPC. The court convicted Mr. Gandhi for his remarks made during an election rally in 2019, where he had commented on PM Modi's surname which resulted in defamation of modi community. Due to Lily Thomas case, he will no longer hold his seat as an MP from Wayanad in the state of Kerala, even though he had a chance to appeal within 30 days to a higher court. 

 

Analysis: 

The landmark Lily Thomas vs UOI judgment for the disqualification of convicted lawmakers is a significant step in the fight against corruption and criminalization of politics in India. The recent disqualification of Rahul Gandhi highlights the disqualification of lawmakers to ensure that those convicted of criminal offenses cannot hold public office. 

 

References 

Lily Thomas vs Union Of India & Ors on 10 July, 2013 indiankanoon.org

Rahul Gandhi Lok Sabha disqualification: What is the Lily Thomas judgement? msn.com

The Representation of the People Act, 1951. indiankanoon.org

India Code: Section Details 

Rahul Gandhi disqualified as MP after conviction in defamation case - BBC News