Ever since man started on his road to civilization, wealth has been the primary
fuel to boost the road. From the very beginning, man has strived to fulfill the
thirst for power. In primitive, ancient, and medieval times, power would mean
physical power, i.e., the strength, army, kingdom, and many more.
But the wheels
have turned now. In the modern days, there seems to be a paradigm shift in the
equations of power. Today, power in all means is money or wealth. Every endeavour that human beings have took up were solely for acquisition of wealth.
Well, wealth could be of different types here. These days the term property is
used rather in a more generalized form. If a person looks around in the
surroundings, everything that is been seen may be categorized as property.
the growing importance of each thing, wealth might consist of things like money,
assets, industries, machinery, infrastructure, intellectual wealth, etc. The
most primary one of it is the property. Property is where the real wealth in
this developing world is lying at.
But, the reason as to how the concept of so-called property and ownership have
emerged is still a vague area filled with many theories.
The term property is said to have been derived from the Latin word - 'Properietate'
which means something that is/can be owned. Asset is nothing but a basis of
expectation; the expectation of obtaining certain advantages from something
which we are said to own, in consequence of the relation in which we stand
towards it. Some of the definitions of property are as follows:
The word 'property
' is often used to refer to something that belongs to another.
But 'property' does not refer to a thing; it is a description of a legal
relationship with a thing. It refers to a degree of power that is recognised in
law as power permissibly exercised over the thing. The concept of 'property' may
be elusive. Usually it is treated as a 'bundle of rights.
Salmond while defining the term property, observed that the term might be
understood in one of the three senses mentioned below:
- The word property consist of all the legal rights of a person. That is to
say that it includes comprehensive ownership of a man on material as well as
- The term includes not a man's personal rights, but only his proprietary
- The term includes the rights of ownership in material things such as
According to Bentham "property is nothing more than the basis of certain
expectation of deriving thereafter certain advantages by a thing the reason of
the relation in which we stand towards it. There is no image, no visible
lineament which can property the relation that constitutes property. It belongs
not to physics, but to metaphysics. It is altogether a conception of Mind. To
it, all or any of these physical circumstances failed to assist in conveying the
idea of property."
Theories of Property
The concepts of property and ownership goes hand-in-hand. There is no ownership
without property and there is no property without ownership. Ownership is that
feeling of the rightful possession of a property which Is now legally recognised.
A pe rson who is said to have had the ownership of a particular property is
entitled to enjoy the property in all means possible. The reason/rationale
behind the emergence of the concept of property is unknown. But nevertheless,
there are many theories regarding the same.
Some of them are as follows:
Natural TheoryThe natural theory of emergence of concept of property is based on natural
reason and logic. Property is a part and parcel of nature. Hence, one who
possesses the property is said to be its owner according to this theory.
Otherwise, the individual who has taken control of something an ownerless
object is, by the very act becomes its owner. This is like first come fist serve
basis. The person who puts toil (labour) into and make better use of the object
remained in nature, for example land, becomes its possessor or the owner.
According to the German philosopher Samuel Von Pufendorf, things were originally
been owned by the society or social group as a whole and thus, deriving benefit
out of it for collective god. But later on, the concept of individual ownership
has arisen and he argued that the one who occupied the property first would be
its owner by default. This Natural Theory is also supported by others like
Blackstone, Grotius, etc.
Metaphysical TheoryThe Metaphysical Theory was advocated by German philosophers Immanuel Kant and
Georg Wilhelm Friedrich Hegel.
Kant has argued that a person rightfully becomes the owner of a particular thing
when he is connected with such thing, and if that thing is used without the
consent of its owner, it hurts/damages/injures the owner. The theory of Kant has
to be perceived with realities where it manifests a truism that any person who
relies on the property of others like a parasite will/may not be able to live a
free & happy life.
According to Hegel, "property is the objective manifestation of the personality
of an individual. In other words, property in an object on which person has
liberty to direct his will." For Hegel, property is the minimal condition for
individuals to know themselves as free.
Kant said that the law of property does not merely seek to defend possession
where there is an actual physical relation among the possessor and the object,
but it goes beyond and contemplates the personal will of the individual more
important in the concept of the property.
Labour Theory or Positive TheoryThe labour theory was developed by famous and prominent thinker, John Locke.
According to Locke, an individual precisely man own literally everything that
he produces. In this theory, according to him, man will put employ all the
possible natural resources that were unused along with his labour i.e., hard
work to produce something out of it. In that way, he deserves the output that he
has produced using struggle and toil.
Herbert Spencer, the architect of positive theory also have argued that the
person who produces a thing or brings it into existence is the owner of it.
Historical TheoryAccording to this theory, the concept of private property has rooted out from
the existing concept of joint property held by the whole society or members of
ta particular social group for collective good/enjoyment of everyone in it. Such
development have said to be taken place in different stages over a period of
Sir Henry Maine was the ardent supporter of this theory about concept of
- First Stage: In this stage, people tend to take natural possession of the
property and also exercise control over it (without any law or existence of
- Second Stage: In this particular stage, the conception of juristic
possession has developed i.e., possession in fact & law.
- Third Stage: The present form of legal ownership has taken its shape in
this stage. Therefore, the concept of protection of individual's property
rights by state has developed.
Psychological TheoryAccording to Bentham, the profounder of this theory "property is nothing more
than the basis of certain expectation of obtaining thereafter certain advantages
by a thing the reason of the relation in which we stand towards it. It is
altogether a conception of Mind. Hence, property is a connection of mind.
Sociological TheoryAs per this theory, property should not be well-thought-out in terms of private
rights but should be considered in terms of social purposes. It is an
institution which secures extreme interest. The principal profonde's of this
theory are believed to be Karl Marx, Harold Laski and etc.
State TheoryThis theory propagates that the concept of state is something that was created
by the state. The vocalists of this theory states that law and property have
born together and die together. They argues that the existence of the concept of
property without law is impossible. In other words, the property came into
existence when the laws were framed by the state. The primary supporter of this
theory was the renowned Genevan philosopher and writer Jean Jacques Rousseau.
Now that the concept of property is established and property has come into
existence, states have enacted numerous legislations to protect, safeguard and
control the property. Property/assets being worth of exchange, people started
exchanging one kind of property to the other. And slowly after the development
of money, nowadays, properties are being exchanged among different individuals
through different means.
Hence, such transfer of the property would simply mean
the legal transfer of the possession and ownership of such property to such
person hence depriving this person every right over such property or several
rights according to the type of transfer and contract made. So, hereunder are
the methods/ways in which property is acquired by individuals.
Modes of Acquisition of Property
According to Salmond, there are at large five different modes/ways through which
property can be acquired. They are as follows:
Possession in general terms mean taking of the physical custody of the property.
It is to have property under one's direct control. This is considered to be
prima facie evidence pertaining to ownership of such property. Although a thin
line lies between ownership and possession, the person who is said have the
possession of a good or asset or property is generally considered to be the
owner of such good or asset or property unless there is any contract to the
contrary. It is to have both de jure and de facto rights over the property.
property which belongs to no one i.e., Res nullius, belongs to the first
possessor of it and he acquires a valid title to it against the world.
property that is already under someone's possession or custody or ownership,
when some other person acquires the possession of such property also accrues to
him the title of such property which names him as the possessor of that property
against every other third party in the world.
The ownership and possession of the property can lie with two different
individuals. This is by way of contract where only a part or partial possession
of the property is transferred to the other party.
- A a landlord let his house to a tenant. The tenant is said to have had the
possession of such property.
- Rakesh made a contract of bailment of his machinery to Kashyap. Once the
goods were properly delevired to Kashyap, he is said to be the possessor of such
Other way of accruing a property is through the mode of prescription.
Prescription, according to Salmond is - the effect of lapse of time in creating
and destroying rights. Prescription is of two types: i) positive acquisitive
prescription, ii) negative or extinctive prescription.
- Positive Prescription means the formation of a right by the lapse of time.
For example, right of way is attained by continued de facto use of it,
inarguably and openly for a period prescribed by law.
- Negative prescription is the obliteration of a right by the lapse of
For Example, the right to sue for default of a debt within a prescribed period
is doused after the lapse of that Period.
The other and most prominent mode of acquisition of property is through
agreement. It is a formal consensus between two individuals i.e., the buyer and
seller for exchange of property in consideration of something of equivalent
value. Through such agreement, the possession i.e., title deed of the property
i.e., ownership is transferred partly or fully obliging to the terms of that
agreement to the other person. Any such transfer if done without any
consideration in return will be called as a gift.
- A has agreed to sell his property worth ₹50,00,000 to Z in consideration
of money. This is said to be an agreement for sale and transfer of property.
The long followed method of acquiring of the property is through inheritance.
Inheritance is the succession of property among members of a family. Such
inheritance may be made while the possessor of such property by himself or after
his or her death, the property of such deceased person will automatically
devolve to his or her heirs accordingly (testamentary or intestate).
- Manish upon the death of his father Paresh have inherited to his
property as legal heir. This is called as transer of property through
The last but one of the most important mode of aquiring property is through
gift. Gift is an instrument through which property of a person is transferred
through an agreement to another person without any consideration in return. In
this method, there are several essentials that are to be fulfilled for a gift to
be valid. They are:
Any gift made in contrast to the above essentials is void. The matters relating
to the gift of property is dealt in sections 122-129 of the Transfer of Property
Act, 1882. Any gift of property made without free consent or gift of future
property or made with consideration is said to be void.
- Real property
- True ownership
- Free consent
- Made without any consideration.
- Sai has registered a gift deed for 10 acres and a house in the name of
Joshi. An agreement for transfer of property through gift deed was made.
In Ajemer Singh v. Atma Singh
, the donor was an old man. He the depended on Charan Singh due to old age. The donor gave the power of attorney onto Charan
Singh who took advantage of the situation and got a gift deed executed in favour
of his son. Using his position, Charan Singh with undue influence and
misrepresentation made the donor sign the gift deed document under the
impression that it was a power of attorney. The above transaction was nullified.
The actual reason for the origin of the concept of property is still shrouded in
misery. Although many have come up with distinctively differentiative therories,
none were free of criticism. Nevertheless, the matter of transaction/transfer of
property is gaining importance day-by-day due to growing complexities of life in
modern economic world.
Table of Abbreviations:
||All India Record
|P & H
||Punjab & Haryana High Court
- 7.12. Traditional Rights and Freedoms Encroachments by Commonwealth
Laws (Australian Law Reform Commission Interim Report 127), < https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/7-property-rights/definitions-of-property-2/>
accessed on 25 April 2022.
- Definition of Property, The Concept of Property (Apr. 25, 2022, 3:30
- Jacob Blumenfeld, Property and Freedom in Kant, Hegel, and Marx, Bundles of
- John Locke, Two Treatises of Government 464 (Cambridge University Press,
- supra note 2
- A.I.R. 1985 P. & H. 315.
Written By: Joshi Kumar P
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