Property: meaning, justifications and kinds

1. Meaning

Salmond identified several senses of “property”:

• Widest: all of a person’s legal rights of whatever description, as in Locke’s “lives, liberties and estates, which I call by the general name, property”.
• Wide: proprietary rights only (rights that have economic value and form part of a person’s estate), as distinct from personal rights (life, liberty, reputation).
• Narrow: rights of ownership of material things, the popular sense (“this book is my property”), which confuses the right with its object.

Lawyers today use property to mean the rights a person has in relation to a thing or a valuable interest, enforceable against others, not the thing itself. Bentham said property is nothing but a basis of expectation: the expectation of deriving advantages from a thing according to the relations in which one stands to it. Property and law are born together, and before laws there was no property. Proudhon (What is Property?, 1840) answered that property is theft.

2. Why the law recognises property

Nozick’s entitlement theory (see Legal Theory) and Rawls’s treatment of property as a matter for the basic structure are the modern poles.

3. Movable and immovable property

Under section 3(26) of the General Clauses Act, 1897, immovable property includes land, benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. Section 3 of the Transfer of Property Act, 1882 excludes standing timber, growing crops and grass from immovable property for its purposes. Movable property is property of every description except immovable property (General Clauses Act, section 3(36)).

• The distinction matters for registration (sale of immovable property worth one hundred rupees or more requires a registered instrument: section 54, Transfer of Property Act), stamp duty, jurisdiction, limitation, succession in private international law (the lex situs governs immovables), and theft (only movable property can be stolen).
• Tests used by courts: degree and object of annexation. A machine bolted to the floor only to steady it may stay movable; a building is immovable. Roman law drew the line by the same principle (superficies solo cedit, whatever is built on land belongs to the land).

4. Corporeal and incorporeal property

Roman law (Gaius) distinguished res corporales, things that can be touched, from res incorporales, things that consist in rights (inheritance, usufruct, obligations). Salmond refined the distinction:

• Corporeal property is ownership of a material object; the right is identified with the thing (land, goods).
• Incorporeal property is any other proprietary right in rem. It takes two forms: (a) jura in re aliena, encumbrances over another’s material things (leases, easements, mortgages); and (b) rights over immaterial things: patents, copyrights, trade marks, designs and goodwill.

Critics (Dias) point out that all property is a right and therefore incorporeal; the distinction is between rights whose object is tangible and rights whose object is not. A chose in action (a debt, a share, an insurance claim) is also property, assignable under sections 130 and following of the Transfer of Property Act.

5. Other kinds and modes of acquisition

• Private, public (State property, public trust resources) and common property (village commons, forests). Elinor Ostrom showed that communities can manage commons sustainably without either private ownership or State control.
• Personal and real property in English law (originally by the remedy: real actions for land).
• Modes of acquisition: original (occupation, accession, prescription, creation of IP) and derivative (sale, gift, succession, will). Loss: by transfer, abandonment, destruction, limitation, forfeiture or acquisition by the State.

6. Property and the Indian Constitution

• Originally a fundamental right under Articles 19(1)(f) and 31. Conflict with land reform produced the First, Fourth, Seventeenth, Twenty-fifth and later amendments, the Ninth Schedule, and the litigation from Kameshwar Singh (1952) to Kesavananda Bharati, 1973 INSC 91.
• The Forty-fourth Amendment, 1978 deleted Articles 19(1)(f) and 31 and inserted Article 300A: no person shall be deprived of his property save by authority of law. Property is now a constitutional and human right, not a fundamental right.
• K.T. Plantation Pvt. Ltd. v. State of Karnataka, 2011 INSC 554: the law under Article 300A must be just, fair and reasonable, and public purpose is implicit, though compensation is not expressly required.
• Vidya Devi v. State of Himachal Pradesh, 2020 INSC 23: the State cannot take land without due process, and the right to property is a human right.
• Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 INSC 435: seven procedural sub-rights inhere in Article 300A: the right to notice, to be heard, to a reasoned decision, the duty to acquire only for public purpose, the right to restitution or fair compensation, efficient and expeditious conduct of the process, and conclusion of proceedings leading to vesting.
• Property Owners Association v. State of Maharashtra, 2024 INSC 835: privately owned resources are not automatically “material resources of the community” under Article 39(b).

Comparative. The US Fifth Amendment requires just compensation for takings, and regulatory takings doctrine asks when regulation goes too far (Pennsylvania Coal v. Mahon, 1922). Article 1 of Protocol 1 to the ECHR protects peaceful enjoyment of possessions, subject to the public interest and a fair balance. Article 17 of the Universal Declaration protects property against arbitrary deprivation.

How this is examined

As an essay: “Define property and explain its kinds,” with the theories in section 2 for LL.M. depth and the constitutional position at the end. As short notes: corporeal and incorporeal property; movable and immovable property; Article 300A after 2024.