What is property?
The term ‘property’ is not properly and vividly defined in any book of Property Law. The author in this article would discuss the definition of the term ‘property’ and would try justify the definition.
“The term ‘Property’ as in law of property means rights or interest over a thing (1), tangible or intangible(1A), and sometimes the thing itself(2) which affords use and enjoyment of the thing(3) and this right over the thing binds the third party or world at large (4)”
- Rights or interest over a thing
Before understanding the term ‘right or interest over a thing’ it is important to go through the fine aspect of meaning of term ‘right’ and ‘interest’
The term right is defined by Salmond in his book Salmond on Jurisprudence by PJ Fitzgerald 12th edition on Page 221 as having following characteristic:
- It is vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled, or the person of inherence.
- It is available against a person.
- It obliges the person against whom right is available to bound to act.
The term ‘Interest’ means a thing which are to a man’s advantage like a person has a interest in his freedom or reputation.
To say that a person has an interest in his reputation means that it is to his advantage to enjoy his good name; to say that he has a right to reputation means nobody can take this from him.
Now after the above discussion, if one says that a person has a right over the thing means that nobody illegally can take the thing away from the rightful owner. To understand in strict property law sense, if a person is dispossessed illegally from an immovable property, the aggrieved person has got right to file suit for recovery of possession under S. 6 of Specific Relief Act,1963. This is a classic example in Property Law regarding the ‘right over the thing’ concept.
The term ‘interest over a thing’ means that a person has got proprietary interest meaning thereby that the concerned person can enjoy the property. In property law, a mortgagee of usufractory mortagage have right to enjoy the rents and profits (fruits) of property, this is classic example of proprietary right.
1A. Tangible or Intangible
- Sometimes The Thing Itself
This is a novel concept that the property could be ‘some-times the thing itself’. It humble submission of the author that if one does a close scrutiny of definition of immovable property then he could easily reach to the conclusion that the property sometimes means the thing itself.
Under s 3 (26) “immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. The three terms appearing –
- things attached to the earth
- things permanently fastened to anything attached to the earth
a, b and c denotes that the property within its definition include the thing itself.
- Affords Use And Enjoyment Of The Thing
The term affords use and enjoyment of the thing is the result of having proprietary right or interest. The use and enjoyment of property is important facet of having a property. For example: the owner of property have right to sale, lease and mortgage the property. These right to alienate the property could be termed as use and enjoyment.
- Right Over The Thing Binds The Third Party Or World At Large
The above phrase could be sum up by the term stating that the property rights are basically right in rem. The right in rem means the right that are available against the whole world property right being one such right. Property right of ownership includes right to exclude others from the peaceful possession of your property. Therefore it could be said that the property rights binds the third person or world at large.