Ownership versus Property

Walk into a sub-registrar's office and ask two questions about one plot of land. What is the property? The clerk points to a map: this plot, with these boundaries and this well. Who has what in it? Now the answer is a list. A owns it; B holds a ten-year lease; a bank holds a mortgage; C, the neighbour, has a right of way along its eastern edge. The plot is one piece of property; four people hold proprietary rights in it; only one is its owner. Property is the what; ownership is one particular relation to it, the fullest one. Everyday speech treats the words as synonyms, but jurisprudence keeps them apart, and so does the Constitution, which protects property and not merely ownership.

1. Property: Salmond's Three Senses

Salmond showed that property is used in senses of decreasing width (Note 32). In the widest sense it includes all the legal rights of a person, as when Locke spoke of men's lives, liberties and estates under the general name of property. In a narrower sense it means a person's proprietary rights, which make up his estate, as distinct from his personal rights, which make up his status: land, goods, shares and debts are property; reputation and liberty are not. In the narrowest sense it means corporeal property, the right of ownership in material things. In popular speech property is simply the thing, the house or the car; jurisprudence treats that as a figure of speech, since the law deals in rights over things, not in bricks.

2. Ownership: The Fullest Relation

Ownership, explained in Note 31, is the relation between a person and a right vested in him. In its corporeal sense it is the fullest right in a thing: in Austin's terms indefinite in user, unrestricted in disposition and unlimited in duration; in Holland's, plenary control. Its defining mark is that it is residuary: whatever lesser interests are carved out, the owner keeps what remains, and when they end his right expands again.

Two points follow. First, ownership is always ownership of a right, never strictly of a thing: to own a car is to own the right of ownership in the car. Second, ownership is only one of the proprietary rights that make up property. A person's property may include rights he owns outright, rights held for a term, and rights over other people's things. Ownership describes his relation to each right; property describes the mass of them.

3. Rights in Property Short of Ownership

The clearest proof that property is wider than ownership is the class of rights over things owned by someone else: jura in re aliena, or encumbrances (Note 28). Each is a proprietary right, transferable and often binding on third parties, yet none is ownership of the thing, because none carries the residue.

Salmond's analysis resolves an apparent puzzle. Is the lessee an owner? He does not own the land; the landlord does. But he does own his leasehold, an incorporeal right he may sell, mortgage or bequeath. The leasehold is part of the lessee's property, the reversion part of the landlord's. Both are owners, of different rights in the same thing. Property is the thing viewed through all these rights at once; ownership is one person's relation to one of them.

4. The Kinds of Property

For its own purposes the Transfer of Property Act excludes standing timber, growing crops and grass from immovable property (s.3). Every classification here is a classification of property, not of ownership: ownership is the same relation whether its object is a field or a patent.

5. Is Property a Creation of Law?

Locke treated property as a natural right, acquired by mixing one's labour with what nature left in common, and existing before the State (Note 32). Bentham denied it: property is nothing but a basis of expectation that only law can secure, so that property and law are born together and die together. On Bentham's view ownership, as a legal relation, cannot exist without law, and property in the legal sense is simply the set of such relations. Pierre-Joseph Proudhon attacked from the other side in What is Property? (1840) with the slogan 'property is theft', often wrongly given to Marx, who later criticised Proudhon in The Poverty of Philosophy (1847). Duguit treated property as a social function (Note 69). These theories concern property as an institution; the analytical distinction between property and ownership holds whichever view one takes.

6. Property in the Indian Constitution

The Constitution originally made property a fundamental right (Art. 19(1)(f): to acquire, hold and dispose of property; Art. 31: no deprivation save by authority of law, with public purpose and compensation for acquisition). After three decades of conflict over land reform (Note 32), the 44th Amendment Act, 1978 omitted both with effect from 20 June 1979 and inserted Art. 300A in Chapter IV of Part XII: no person shall be deprived of his property save by authority of law. Property is now a constitutional, not a fundamental, right.

Art. 300A protects property, not ownership, and the courts read the word widely: movables and immovables, tangible and intangible rights, and interests less than ownership. In Shirur Mutt (Supreme Court, 1954), decided under the original Art. 19(1)(f), the office of a mathadhipati carrying a beneficial interest in the endowment was held to be property. So a lessee, a mortgagee or a pensioner, none of whom owns the thing in question, may still claim the protection.

7. The Two Compared

8. Evaluation

The distinction matters because many real disputes concern property rights that are not ownership: a tenant's security, a mortgagee's power of sale, a pensioner's claim. If property meant only ownership, the constitutional guarantee would protect only owners. Keeping the two apart also clarifies the theories: debates about whether property is natural or legal, just or theft, concern the institution; ownership as a residuary relation concerns its structure. Because the word property is used in several senses, an answer should always say which sense it means.

9. Frequently Asked Questions

Q. What is the difference between ownership and property?
A. Property is the object of rights or, in law, the aggregate of a person's proprietary rights. Ownership is the relation between a person and a right, in its fullest form the residuary right in a thing. Property includes rights short of ownership, such as a lease or an easement.

Q. Can a person have property in a thing without owning it?
A. Yes. A lessee, mortgagee or holder of an easement has a proprietary right in land owned by someone else, a jus in re aliena. In Salmond's scheme he owns an incorporeal right, the lease or the easement, but not the land.

Q. Is pension property?
A. Yes. In Deokinandan Prasad v State of Bihar (1971) the Supreme Court held that pension is property and not a bounty payable at the Government's pleasure. It is now protected by Art. 300A.

See also: Note 32 (property), Note 31 (ownership), Note 28 (encumbrances), Note 79 (possession versus ownership), Note 81 (ownership versus title), Note 46 (constitutional doctrines).