Ownership versus Title

Think of a law graduate. What she holds is a degree, a standing that entitles her to enrol as an advocate or sit for judicial service. Why she holds it is a set of facts: she was admitted, passed the examinations and the degree was conferred. How she proves it is a certificate. Lose the certificate and she is still a graduate; forge one and you are not. Ownership is like the degree; title is like the facts that earned it; the title deed is like the certificate. Ordinary speech calls all three 'title'. This note separates them, building on Note 31 (ownership) and Note 36 (title).

1. Title and Ownership Defined

Salmond made title the fifth element of every legal right, after the person of inherence, the person of incidence, the content and the object (Note 28). The law never vests a right in a person without some fact connecting the two, and that fact is the title. Ownership is one of the rights so vested, and the fullest: the relation between a person and a right vested in him (Note 31).

The contrast is between a fact and a right. Title belongs to the world of events: a sale took place, a man died, a trespasser held land for twelve years. Ownership belongs to the world of legal relations: this person now holds the fullest right in this thing. The same ownership can rest on very different titles; the buyer and the heir hold the same right, and only the story differs. And the same kind of title can produce rights other than ownership: a lease is the title of the lessee's right, a mortgage deed of the mortgagee's.

2. Three Senses of Title

Hohfeld's distinction keeps the first and third senses apart: the sale is operative; the deed is evidential. A lost deed does not end ownership, and a forged deed does not create it.

3. Kinds of Title and Their Effect on Ownership

An original title creates a right that did not exist or belonged to no one, as by occupation of a res nullius. A derivative title transfers an existing right, as by sale, gift or inheritance. Vestitive facts are investitive or divestitive, and divestitive facts are alienative (translative) or extinctive; a sale is divestitive for the seller and investitive for the buyer (Note 36). The consequence for ownership is what matters here. Original title gives ownership free of any predecessor's defects; derivative title gives no better ownership than the predecessor had. The quality of an owner's right therefore depends on the quality of his title.

4. Relative Title: Better Title and Best Title

English law has never needed an absolute concept of ownership of land. It asks only which of two claimants has the better title. Possession is itself a title (Note 79): even a wrongful possessor has a title good against everyone except a person with a prior or better one. Ownership is simply the best title.

The Privy Council stated the principle in Perry v Clissold (1907): a person in possession of land in the assumed character of owner, exercising peaceably the ordinary rights of ownership, has a perfectly good title against all the world but the rightful owner. The Supreme Court applied the same approach in Nair Service Society v K.C. Alexander (1968): a person in possession may recover against a trespasser who ousts him, and the trespasser cannot rely on a third party's better title. Indian law reflects relative title in Art. 64 of the Limitation Act and s.6 of the Specific Relief Act. A prior possessor may thus have a good title against a trespasser without being owner at all.

5. Nemo Dat: How Title Limits Ownership

Because derivative title transmits only what the transferor had, Section 27 of the Sale of Goods Act, 1930 provides that where goods are sold by a person who is not the owner and does not sell with his authority or consent, the buyer acquires no better title than the seller had. The exceptions trade the owner's security for the security of commerce.

A holder in due course under the Negotiable Instruments Act, 1881 likewise takes free from defects in prior parties' title. In each exception the buyer gets ownership although his transferor had no title, or only a defective one, to give, which is itself proof that title and ownership are distinct.

6. Choosing the Investitive Fact: Registration

Indian statutes fix which fact vests ownership of land. Under s.54 of the Transfer of Property Act, a sale of tangible immovable property worth one hundred rupees or more can be made only by a registered instrument, and a contract for sale does not of itself create any interest in the property. Section 17 of the Registration Act, 1908 makes such documents compulsorily registrable, and Section 49 denies an unregistered one any effect on the property. Even s.53A, which protects a transferee in possession under a written contract in part performance, gives a shield, not title.

7. Mutation Is Not Title

An entry in the revenue records, a mutation in the jamabandi or record of rights, is often mistaken for proof of ownership. It records who must pay land revenue; it follows title and neither creates nor extinguishes it.

8. Title by Adverse Possession

Adverse possession gives a title that is not a transfer at all: an original title arising from an extinctive fact, the running of time, which under s.27 of the Limitation Act extinguishes the owner's right. In Ravinder Kaur Grewal v Manjit Kaur (Supreme Court, 2019, 3 judges) such a title was held to be a full title, usable as a sword as well as a shield (Note 79). The title is a period of time plus a state of facts; the ownership that results is the same right any buyer would have.

9. The Two Compared

10. Evaluation

Separating title from ownership lets a lawyer ask the right question in every property dispute: not simply who owns this, but what operative fact the claim rests on and whether it is the fact the law requires. That question decided Suraj Lamp and decides every mutation dispute. The English idea of relative title adds realism, since courts rank competing titles rather than discover an abstract owner. The analysis is formal, however: whether a mode of acquisition such as adverse possession is just belongs to the theory of property (Note 32).

11. Frequently Asked Questions

Q. What is the difference between title and ownership?
A. Title is the operative fact, such as a sale, gift, inheritance or adverse possession, by which a right comes to be vested in a person. Ownership is the right so vested. Many different titles can lead to the same ownership.

Q. Is a title deed the same as title?
A. No. The title is the vestitive fact; the deed is only evidence of it. A lost deed does not end ownership and a forged deed does not create it.

Q. Can a person have a good title without being the owner?
A. Yes, relatively. A possessor has a title good against everyone except the true owner or someone with a prior better right (Asher v Whitlock, 1865; Perry v Clissold, 1907). When the owner's title is extinguished by limitation, that title becomes ownership.

See also: Note 36 (title), Note 31 (ownership), Note 28 (elements of a right), Note 79 (possession versus ownership), Note 82 (ownership versus property).