The Concept of Property, Ownership, Possession And Liability In The Light Of Jurisprudence. An Overview

This is a comprehensive article on the concepts of property, ownership, possession and liability in Jurisprudence.

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ASSN: 2846906
  1. Introduction

The term Jurisprudence is derived from a latin word called Jurisprudentia. Juris means law, Prudentia means Knowledge or skill. Jurisprudence means Knowledge of law or skill in law. It is said that Jurisprudence is the eye of law. It is the knowledge of fundamental principles. It is very difficult to formulate a uniform definition of Jurisprudence. Each Jurist has his own notion about jurisprudence and defined the term jurisprudence based upon his ideology and nature of the society.

The object of study of Jurisprudence is to study the theory of law and its fundamental principles and concepts. It provides Clear understanding about the nature of law and basic functions of law, the relationship between law and Justice, and law and morals etc.[1]


  1. Concept of Property in Jurisprudence

The concept of property has an important place in the life-of human being because it is impossible to live in this material world without using the material objects which is the subject matter of property. In broader terms, all animate or inanimate things which belong to a person are included within the meaning of the term property.[2]

  • Meaning of Property

The term property is not a term belonging to art. It has been used in a variety of senses. In the widest possible sense, the property includes all the legal rights of a person, no matter what his description is. The property of a man is all that belongs to him following the law. Although it is becoming a fashion now, such a usage of the term is common in old books.[3] 

According to Blackstone: “The inferior hath no kind of property in the company, care or assistance of the superior, as the superior is held to have those of the inferior.” 

According to Locke: “Every man has a property in his person. Every individual has the right to preserve his property, that is, his wife, liberty and estate.”

In a narrower sense, the property includes the proprietary rights of a person and not his rights. Proprietary rights constitute his estate or property, whereas, personal rights includes his status or personal condition. If viewed from the lens of a narrower sense, then only land, chattels, shares, and debts are personal property and not his life, liberty or reputation. This is the most commonly used interpretation of property in modern times. 

However, another interpretation and meaning of property include only those rights which are both proprietary and real. The law of property is the law of proprietary rights in rem. Going by this interpretation, a freehold or leasehold estate or copyright also includes the meaning of property. 

In the narrowest possible sense, the property includes nothing more than corporeal property or the right of ownership for material things. 

Austin believed that property can have different meanings at different times. It could be used to denote the greatest rights of enjoyment known to law excluding servitudes or it could also be life interests or sometimes even servitudes. It could be the whole set of assets owned by a person including both rights in-rem and rights in personam. [4]


  • Kinds of Property

Property is basically of two categories: Corporeal Property and Incorporeal Property.
Corporeal Property is visible and tangible, whereas incorporeal Property is not. Moreover, corporeal Property is the right of ownership in material things, whereas incorporeal Property is an incorporeal right in rem. Corporeal Property is further categorized into Movable and Immovable Property. Incorporeal Property is classified into two categories: in re propria and rights in re aliena or encumbrances.[5]

  • Corporeal Property

The other name for the corporeal property is tangible property because it has a tangible existence. It relates to material things. The right of ownership of a material thing is the general, permanent and inheritable right of the user of the property or thing. Further corporeal property can be divided into two categories- 


Chattels, for example, leases, to cows, to clothes etc are movable property. It simply includes all corporeal property which is not immovable.


Land, for example, is an immovable property. According to Salmond, an immovable piece of land has many elements attached to it. It is inclusive of the ground beneath the surface down to the centre of the world. Interestingly, it also includes the column of space above the surface ad infinitum. According to the German Civil Code, the owner of a particular piece of land owns the space above it as well. The right of free and harmless possession of space at a reasonable height over the land is secured and governed by the Air Navigation Act, 1920. 

According to the General Clauses Act 1897, “Immovable property includes land, benefits arising out of the land and things attached to the earth.” 

Real and Personal Property

The difference between real and personal property is similar to the difference between movable and immovable property. The little connection that is, is historical and not based on the logic. Real property means all rights over land recognized by law. However, personal property means all other proprietary rights whether rights in rem or rights in personam.[6] 


  • Incorporeal Property

Incorporeal property is intangible property. The other terms frequently used are intellectual or conventional property. It includes all those valuable interests which are and can be protected by law. The need to recognise and protect incorporeal property has been recognised in recent times. The scope of the term property has widened and it has come to include virtual property as well. In modern times, a large share of a country’s property can be found in the form of shares of a company. Further incorporeal property is of two kinds- rights in re propria and rights in re aliena. 

Rights in re propria

Under this form of right, the right of ownership in one’s property is not exercised over material objects. Generally, the law of property deals with material objects. However, there are exceptions to this in the form of non-material things produced by human skills and labour. The most important of these are patents, trademarks, artistic copyright, commercial goodwill etc. 

Holland added a new type of intangible property to the list. To quote him: “With such intangible property should probably also be classified those royal privileges subsisting in the hands of a subject which are known in English law as franchises, such as rights to have a fair or market, a forest or free fishery.” 

Rights in aliena 

These rights are known by the name of encumbrances.in simpler words, these are rights in rem over areas of property owned by another person. Such rights run parallel to res encumbered. They bind the res in whosoever hands it may pass. These prevent the owner from exercising some definite rights concerning his property. The main kinds of encumbrances are lease, servitude, security and trusts.

Lease- it is an encumbrance giving a right to the possession and use of the property of another person. It is the transfer of a right to enjoy a certain property. 

Servitude– it is that kind of encumbrance which consists of a right to limited use of land without having the possession of it. Examples of servitudes are- right of a way across the land of somebody, the right of light and air etc.

Security– Lord Wrenbury has defined security as “a possession such that the grantee or holder of security holds against the grantor a right to resort to some property or some fund for the satisfaction of some demand, after whose satisfaction the balance of the property or funds belongs to the grantor.” Securities are of two kinds- mortgage and lien.

Where a mortgage is the transfer of an interest in specific immovable property for the purpose of securing payment of money advanced by way of loan. A lien is the right to hold the property of another person as a security for the performance of an obligation.[7] 


  • Modes of Acquisition of Property

Salmond refers to four modes of acquisition of property and those are possession, prescription, agreement and inheritance.[8]

  • Possession

Possession is the objective realisation of ownership. Possession is the prima-facie evidence of ownership. The property which belongs to no one, (res nullius), belongs to the first possessor of it and he acquires a valid title to it as against the world. This mode of acquisition has been called as occupatio in Roman law. A property already in possession of someone else, when acquired by possession, gives a good title to the possessor against all third persons except the true owner. Even as against the true owner, the possessor is entitled to maintain his possession until evicted in due course by law.[9]


  • Prescription

It may be defined as the effect of lapse of time in the creation and extinction of a legal right. It has two aspects, namely, positive or acquisitive and negative or extinctive. The creation of a right by the lapse of time is called the positive or acquisitive prescription, whereas the extinction of a right by the lapse of time is called extinctive or negative prescription.

Negative prescription is common to law of property and obligations.


According to Salmond, negative or extinctive prescription is of two kinds, namely, perfect and imperfect. Perfect negative prescription results into destruction of principal right itself whereas imperfect prescription destroys only an accessory right of action.[10]


  • Agreement

Property can be acquired by an agreement which is enforceable by law. According to Paton, Agreement is an expression by two or more persons communicated to each other, of a common intention to affect the legal relations between them.

The four essential elements of an agreement are as follows:

  • There should be two or more parties to an agreement.
  • Mutual consent of the parties.
  • It should be communicated.
  • There should be common intention to affect the legal relationship.

Agreement is of two kinds, namely, assignment and grant. An assignment transfers the existing rights from one owner to another. Under a grant, new rights are created by way of encumbrance upon the existing rights of the grantor.
Agreement may either be formal or informal. Formal agreements are written and require the formality of registration and attestation of the deed to be completed before they are effective. Informal agreements are verbal and do not require any formality.[11]


  • Inheritance

The right of inheritance is founded on the assumption that property serves as a best means of social security. Security of food, house and means of living to the members in a joint family was the most important obligation of the Karta which barred him from alienating the family property except for legal necessity and family benefit. This in turn conferred right of inheritance to the coparceners which included right to be maintained out of family property and to claim partition as co-owners. The death of the owner of property could result in two kinds of rights, namely, inheritable and un-inheritable rights.

A right is inheritable if it survives with its owner and it is uninheritable if it dies with him. Proprietary rights are inheritable and most personal rights are uninheritable.[12]


  • Theories of Property

Many theories have been put forward to explain the origin of property and its justification. 

  • Natural Theory

According to this theory, the property is based on the principle of natural reason derived from the nature of things. The property was acquired by the occupation of an ownerless object and as a result of individual labour. According to Grotius, all things originally were without owner and whosoever acquired or captured it became its owner. According to Pufendorf, originally things belonged to people as a whole. There was no concept of individual ownership. It was with time and evolution of humankind that the need of ownership and possession arose. The theory of occupancy thus became the ground and foundation of all property.[13]


  • Metaphysical Theory

The metaphysical theory was propounded by writers like Kant and Hegel. According to Kant: "A thing is rightfully mine when I am so connected with it that anyone who uses it without my consent does me an injury. But to justify the Jaw of property, we must go beyond cases of possession where there is an actual physical relation to the object and interference therewith is an aggression upon personality." According to Hegel, property is the objective manifestation of the personality of an individual. To quote him: "Property makes objective my personal individual will." Property is the object on which a person has the liberty to direct his will.[14]


  • Historical Theory

According to this theory, private property had slow and steady growth. It has grown out of a collective group or joint property. There were many stages in the growth of the private property. The first stage of natural possession existed independently of the law. The second stage of juristic possession was a conception of both fact and law. The last stage in the development cycle was that of ownership. Ownership became a purely legal concept. According to Dean Roscoe Pound, the earliest form of property was a group property. It was a matter of time that families partitioned and individual property came into being.[15] 


  • Positive Theory

Spencer was the propounder of the positive theory. He based his theory on the fundamental law of equal freedom. Property is the result of individual labour. No man has a moral right to property which he has not acquired by his personal effort.[16]


  • Psychological Theory

According to this theory, a property came into existence from the acquisitive instinct of man. Every individual desires to own things and that brings into existence property. It has been rightly said by Bentham, “Property is nothing more than the basis of a certain expectation of deriving hereafter certain advantages by a thing of reason.” [17]


  • Sociological Theory

According to the sociological theory, property should not be considered in terms of private rights but should be considered in terms of social functions. Property is an institution which secures a maximum of interests and satisfies the maximum of wants. According to Jenks: "The unrestricted right to use, neglect or misuse his property can no longer be granted to any individual and the rights of property should be made conformable to rules of equity and reason."

According to Laski: "Property is a social fact like any other and it is the character of social facts to alter. It has assumed the most varied aspects and it is capable of yet further changes."[18]


  1. Ownership

The concept of ownership has its origin in the ancient Roman law. The earlier legal systems did not made any distinction between ownership and possession, however, with the changes in civilization the two were considered as separate and distinct concepts. Under Roman law, ownership and possession are termed as 'dominium' and 'possession' respectively. The term 'dominium' denotes absolute right to a thing whereas possession implies only physical control over it. Romans gave much importance to ownership rather than possession. The term 'ownership' was used in English law for the first time in 1583, when it was distinguished from possession.[19]


  • Definition

Austin says ownership refers to “a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration”.

Hibbert define Ownership which includes within its four kinds of right

  • Right to use a thing
  • Right to exclude others from using the thing
  • Disposing of thing
  • Right to destroy


Salmond defines “ownership, in its most comprehensive signification, denotes the relation between a person and right that is vested in him”

According to Pollock– ownership is the entirety of the powers to use and disposal allowed by law”. He further says that it is not necessary that all the powers of an Owner need be exercisable at once and immediately.[20]


  • Essentials of Ownership
  • There are three main things in ownership i.e., Right of possession, right of enjoyment and power to dispose of the property.
  • Ownership is Unlimited, unrestricted and indefinite in point of user.
  • Ownership is residuary in character. Owner is the one who is entitled to the ‘residue of rights’ with respect to an object left after the limitation resulting from the voluntary acts of the owner such as mortgage, lease, etc. or those imposed by law are exhausted.
  • Law does not give ownership rights benefit to unborn child or an insane person because they are incapable in thinking the nature and consequences of their acts.
  • The right of ownership does not end with the death of the owner, instead, it is transferred to his heirs.[21]


  • Right of Ownership and Ownership of a Right

Corporeal ownership is the right to the entirety of the lawful uses of a corporeal thing. In this sense, the corporeal ownership or the right of ownership is not so much one right as a bundle of rights, liberties, powers and immunities. Pollock writes: "Ownership may be described as the entirety of the powers of use and disposal allowed by law."

The ownership of right describes the jural relation between a person and a right. In this sense, it denotes that he is neither a possessor nor an encumbrancer, but the owner of the right. This right has to be distinguished from the right of ownership which is the complex pattern of the bundle of rights, liberties, powers and immunities. In the case of ownership of a right it only suggests that there is a particular legal relationship between a person and a right. The ownership of a right is also known as incorporeal ownership.

In English Law, the interest which is by way of a perpetual owner- ship is called a fee simple in which ownership passes to the heir by devolution. A life interest or an interest for a specified number of years is not considered as a right of ownership because it is not perpetual.[22]


  • Kinds of Ownership
    • Corporeal and Incorporeal

The ownership of material and tangible things (object which can be touched and perceived) movable or immovable is called Corporeal Ownership. Ownership of house, table, land, machinery, etc. are few of the examples of corporeal ownership.

The ownership of Rights is called incorporeal Ownership, it is the ownership of Intangible objects such as copyright, patent, trademark, right of way etc.[23]

  • Sole ownership and co- ownership

Sole ownerships are those ownership which is vested in a single person. Co-ownerships are those in which ownership is vested in two or more persons at the same time.[24]

  • Trust and Beneficial Ownership

In this ownership a property owned by two persons wherein one person is obligated to use it for the benefit of the other. The person under such an obligation is called the trustee and his ownership is known as trust ownership. The person to whose benefit the property is to be used is called the beneficiary and his ownership is known as beneficial ownership.[25]

  • Legal and equitable ownership

The ownership recognized under the rules of common law was legal ownership. Whereas, the ownership recognized under the equity courts on equitable principle was called equitable ownership.[26]

  • Vested and Contingent ownership

All kinds of ownership may either be vested or contingent. Ownership is said to be vested when ownership title is already perfect. Whereas, ownership is said to be contingent ownership if it is little imperfect, but can be made perfect by fulfilling certain conditions.[27]

  • Absolute and Limited ownership

When a person has all the rights of ownership i.e., possession, enjoyment and disposal without any restrictions except those laws which are imposed by law in the interest of society, his ownership is absolute. On the other hand, if the ownership has limitations in use, duration or disposal, the ownership is limited ownership.[28]



  • Modes of Acquisition of Ownership
  • Original mode: In this mode the owner acquires the ownership over the owner less objects. They are called res nullis. Such object belonged to no one. It may be acquired by means of accession, occupation and specification.
  • Derivative mode: In this mode the owner acquires the ownership by purchasing from the original or previous owner. The purchaser becomes the owner. It is merely a transfer of existing ownership but not a relation of the ownership ex buyer derives ownership from seller.


  1. Possession

Possession is the evidence of ownership. There is a presumption that the possessor of a thing is the owner of it and the other claimants to have it must prove their title. The finder of a thing has a good title to it if he is in possession of that thing. Even a person, who wrongfully possesses a property, has a good title against the world at large except the true owner.[29]

  • Definition of Possession

Jurists have defined possession based on their personal beliefs. It is the most fundamental interaction between man and things, according to Salmond.  However, Henry Maine defined it as “interaction with an object that includes the exclusion of other people from enjoying it.” A man is considered to own a thing over which he has seeming control or over which he has apparent authority to exclude others, according to Federick Pollock.[30]


  • Types of Possession
  • Corporal and incorporeal possession: The possession of a material object is called corporeal possession. Actual use or control over such material object is not necessary e.g. possession of car. The Possession of other than a material object is called incorporeal possession. Actual use and enjoyment of right is necessary.
  • Immediate and Mediate Possession: The direct or primary possession of a material object is called immediate possession. The possessor holds thing personally without any intermediary e.g. possession of a car owner.

    Indirect or secondary possession of a material object is called mediate possession the possessor of a material object is called mediate possession. The possessor holds the thing on behalf of another. E.g. possession of a car driver.
  • Representative Possession: The Possession of a thing through an agent or a servant is called Representative Possession. The representative is not the real possessor e.g. master's money in the servant pocket.
  • Concurrent Possession: Two or more persons may jointly possess a thing at the same time. This is known as Concurrent possession e.g. B may have right of way on the A land.
  • Derivative Possession: The possession of the holder of a thing is called Derivative possession. He derives title from the person who entrusts the thing. e.g. a watch repairer. He need not return the watch until the repair charges are paid.
  • Constructive possession: The possession in law is called constructive possession. It is not an actual possession. It is a possession in law and not a possession in fact. Possession of keys of a car implies the possession of car.
  • Adverse possession: The possession against every other person having or claiming to have a right to the possession of that property is called adverse possession. It is a possession of a thing without the permission of its real owner. Lessee possession after expiry of lease period.
  • Duplicate possession: The possession of a thing by two persons is called Duplicate possession. The possession of one person is compatible with the possession of another person. It is possible only when two claims are not mutually adverse.[31]


  • Possession in Fact and in Law
  • Possession in Fact

Possession in fact is also known as the De facto possession, it is actual or physical possession or physical possession, it is actual or physical possession or physical relation to a thing. De facto possession exists where the thing is in the immediate occupancy of a party. The person in De facto possession has the physical control of the thing to the exclusion of others and has animus and corpus over the material object. It may be described as actual possession.[32]

·        Possession in law

Possession in law also known as the De Jure possession means it is recognized and protected by law. De jure possession exists when person claims a thing as his own in natural legal manners by occupying a thing without any dispute as to his legal right to possess and enjoy the thing.[33]


  • Elements of Possession
  • Animus possidendi: Means intention to possess a thing. It deals with subjective and mental intention to possess a thing. It deals with subjective and mental element. It denotes a strong desire to possess a thing. Here the possessor must have strong intention to possess a thing he must have an exclusive claim, Animus Possidendi need not be a claim or right and need not be a own claim and it need not be specified.[34]
  • Corpus possessionis: Corpus Possession is means physical possession of a thing it deals with objective element. According to Savigny the actual physical control over a thing is called corpus possessionis. The physical control gives to an assumption that others will not interfere with it. Possessor must present personally and physically possess. The possession of a thing extends to accessories too. Possession includes protection and secrecy of thing.[35]


  • Theories of Possession

Savigny's Theory of Possession
Savigny founded this theory of possession on the text of Roman jurist Paul and emphasised that possession has two basic elements, namely, corpus possessions and animus domini. By corpus he meant, effective physical control of the thing, i.e. immediate physical power to exclude any foreign agency's interference by the possessor.

The animus in possession signified mental element or conscious intention to hold the object (thing) as owner against all others. Savigny conceived that there can be no possession without this mental element, i.e. animus.

lhering's Theory of Possession
Ihering's theory of possession is more practical and realistic. He adopted a sociological approach in explaining the concept of possession in his theory. He justified protection of possession under Roman law and said, Whenever a person looked like an owner in relation to a thing, he had possession of it, unless possession was denied to him by rules of law based on practical convenience.

The element of animus was therefore, merely an intelligent consciousness of the fact of possession. Thus, Ihering was more practical in approach and did not insist on presence of animus as an element of possession. He considered animus only as a supplemental element for possession.

Salmond's Theory of Possession
Salmond denied that conception of possession infact and possession in law are two different conceptions and said that there is only one conception, which is possession in fact. He distinguished between possession of physical objects, which he called 'corporeal possession ' and possession of rights, which he termed as 'incorporeal possession'.

According to him, corporeal possession is:
the continuing exercise of claim to the exclusive use of it. He further stated that, animus possidendi is the intent to exclude others which is analogous to Savigny's animus domini.

Kant's Theory of Possession
According to Emmanuel Kant,:
Men are born free and equal. Freedom of will is the essence of man. Possession is the embodiment of the will of a man. By taking possession of a thing, a man incorporates his will and hence his personality in that thing.

As Hegel would have said possession is the objective realisation of free-will. The will of an individual thus exhibited in possession is entitled to respect from every other individual.

Holmes' Theory of Possession
According to Holmes, in order to gain possession, a man must stand in a certain physical relation to the object and to the rest of the world and must have certain intent. These relations and this intent have been expressed by the term Corpus and animus which are essential ingredients of possession. He supported the Savigny's theory of possession and held that both corpus and animus are necessary to constitute possession.

Holland's Theory of Possession
Holland's theory of possession is founded on presentation of peace in society. According to him, the predominant motive that has induced the law to give protection to possession was probably a concern for the preservation of peace. Possession connotes respect for rightful claim of a person.

Pollock's Theory of Possession
Frederick Pollock laid emphasis on defacto control rather than on animus in his theory of possession. According to him, a general intent to keep a thing under one's physical control would suffice to constitute possession. The person in possession of a thing should not only have a physical power over it, but also the ability to exclude others. But this theory fails in case of possession of a thing by a child who has no physical power to exclude those who are stronger than him.[36]


  • Modes of Transfer of Possession
  • Delivery– Transferring the possession voluntarily is delivery. The transfer gives the actual position to the transferee. It is usually a lawful mode of possession.

Actual delivery- Going to the shop to buy gold and when we pay money, we get the actual delivery of gold.

Constructive delivery- when we give our car keys to a mechanic for repair or servicing, giving car keys is constructive delivery.

  • Taking– taking implies an act exclusively on the part of the person who physically takes possession. It is the acquisition of the possession without the consent of the previous possessor. It is the possession without the consent of the possessor.

Legal or Rightful – tenant ran away without paying the rent so the owner has right to take over the goods left behind.

Illegal or wrongful – Theft goods like thief has taken my purse.

  • Operation of law– when delivery is by legal action. Example – Deceased’s property goes to his legal heirs.[37]



  1. Liability

The rights and duties of individuals are regulated by the provisions of law. Any kind of breach of these rights and duties is called as wrong. A person who commits wrong is said to be liable for it. So the liability may be for a wrongful act or omission. Salmond defines liability as Vinculum Juris, i.e. a bond of necessity that exists between the wrongdoer and the remedy of the wrong.

A man's liability consists of those things which he must do or suffer because he has failed to do what he ought to have done. Liability is different from obligations. In liability the wrongdoer is under a duty to redress the person wronged.[38]

  • Definition

Defining liability in jurisprudence is not easy, but some legal experts have tried:

  • Sir John Salmond

Sir John Salmond defines liability as the necessary connection between a wrongdoer and the remedy for the wrong. In simpler terms, it’s the link between someone who did something wrong and the solution to make it right.

  • Markby

According to Markby, the term ‘liability’ describes the situation when a person has a duty to fulfill, whether that duty is their main responsibility or a secondary or enforcing one. It’s about having a job to do.

  • Austin

Austin prefers to use the term ‘imputability’ instead of ‘liability.’ He says that certain actions, omissions, or acts, along with their consequences, are attributed to the people who did or didn’t do them. In other words, it’s about holding people responsible for their actions or inactions.[39]


  • Kinds of Liability
    • Civil Liability

Civil liability refers to the legal responsibility one person or entity may have towards another in matters related to non-criminal issues. It arises from violations of civil laws or regulations, typically involving disputes between individuals or entities over issues such as contracts, property rights, personal injury, or family matters.

When someone is found civilly liable, they may be required to compensate the injured party through remedies like monetary damages or specific performance (fulfilling a contractual obligation). Civil liability cases are usually initiated by private individuals or organisations seeking compensation or resolution of a dispute.[40]


  • Criminal Liability

Criminal liability pertains to the legal responsibility an individual or entity bears for actions that violate criminal laws and regulations established by the government. Crimes are generally offences against society as a whole and the government, represented by prosecutors, initiates criminal proceedings.

If someone is found criminally liable, they may face penalties such as fines, imprisonment, probation, or other punitive measures. The purpose of criminal liability is to punish the wrongdoer for violating laws that are intended to protect public safety and order.[41]


  • Measure of Penal Liability

The measure of criminal liability is mainly based on three major considerations, namely, motive for commission of the offence, the magnitude of the offence and the character of the offender.

  • Motive: The motive of the offence is a very important factor in determining the liability. If the motive to commit the offence is very strong, the punishment must be severe, because the punishment aims at counteracting the motives which made the offender to commit the crime.
  • The magnitude of the offence: The other things being equal, if an offence brings greater evil consequence or has greater evil tendencies, the punishment should be severe. Some criticize this view and say that the liability should not be determined on the basis of the evil caused to a person, but it should be determined on the basis of the benefit derived by the offender by his wrongful act. It is submitted that the punishment on the basis of the magnitude of the offence greatly helps in preventing offences and where the offender is to choose one wrongful act out of many of the same nature, he would prefer to commit one for which there is lesser punishment. Thus, the severe punishment for grave offence deters the wrongdoer from committing it.
  • The character of the offender: The character of the offender is also a factor in the measure of liability, in other words, it is a consideration in determining the punishment. The offenders who have become habitual and have undergone punishment, to them punishment loses much of its rigour and light punishment does not deter them. Therefore, they are given severe punishments.[42]


  • Measure of Civil Liability
  • The purpose of civil liability is to award compensation to the injured party. The quantum of damages depends on the actual loss suffered by the plaintiff. It is important to note that neither the character nor motive of the defendant is relevant in determining the liability in civil cases.
  • Law takes into consideration only the actual consequences that follow a wrongful act and not the probable or intended ones.
  • In certain cases higher damages may be awarded where defendant's conduct has aggravated the plaintiff's sufferings. In others, higher damages may be justified in view of the defendant's behaviour. Thus, the court will award higher damages to a woman plaintiff in a defamation case in comparison to the male plaintiff because law expects greater respect for woman in the society.
  • Civil liability may arise either from breach of a contract or from 'wrongs independent of a contract'. The damages which are immediate consequence of the wrong are called 'direct' or 'general' damages while damages in respect of remote consequences of the wrongful act are known as 'indirect' or 'special damages'.[43]



  1. Conclusion

The concept of Property has been in existence since the existence of human civilization. Over the years, the concept of Property has witnessed a vast transition. The reason behind this transition may be the jurisprudential aspect of the concept. Thus, from a piece of brick to an idea behind a product, Property as a concept has developed in an unanticipated manner. The research being done in the field of property law makes it a dynamic concept which will continue to evolve in the years to come in the near future.[44]

Most people conflate the phrases “ownership” and “possession” and use them interchangeably. However, in the legal world, both of these words have unique legal meanings. De jure acknowledgement of a claim to a particular property is known as ownership. The objective realization of ownership is possession. It is the actual exercise of a claim to a specific piece of property. In contrast to the de jure relationship of ownership, possession of a right is the de facto relationship of continued exercise and enjoyment.[45]

Liability in jurisprudence is central to the legal framework, where individuals can be held liable for their actions, leading to remedies or penalties, depending on the nature of the violation. In civil law, liability often results in the payment of damages or specific performance to compensate for harm or breaches of contractual obligations. In criminal law, liability can lead to punitive measures, such as fines or imprisonment, as a means of addressing offences against society.[46]



[1] Jonahshiny;”A Brief Outline about the basic concepts of Jurisprudence”; available at: https://www.legalserviceindia.com/legal/article-2171-a-brief-outline-about-the-basic-concepts-of-jurisprudence.html#:~:text=Jurisprudence%20provides%20theoretical%20foundation%20on,them%20efficient%20in%20their%20activities. (last visited on November 17, 2023)

[2] Mohd Aqib Aslam; “The Concept Of Property Ownership Possession And Liability In The Light Of Jurisprudence-An Overview”; available at: https://www.legalserviceindia.com/legal/article-4083-the-concept-of-property-ownership-possession-and-liability-in-the-light-of-jurisprudence-an-overview.html (last visited on November 17, 2023)

[3] Anam Khan; “Laws of Property under Jurisprudence”; available at: https://blog.ipleaders.in/laws-of-property-under-jurisprudence/#Meaning_of_Property (last visited on November 17, 2023)

[4] Supra note 3

[5] Mohd Aqib Aslam; “Concepts of Property, Ownership and Possession”; available at: https://www.legalserviceindia.com/legal/article-2655-concepts-of-property-ownership-and-possession.html (last visited on November 17, 2023)

[6] Supra note 3

[7] Supra note 3

[8] V D Mahajan; Jurisprudence Legal Theory;p.406;(Eastern Book Company, Lucknow, Fifth Ed.2010)

[9] Supra note 2

[10] Supra note 2

[11] Supra note 2

[12] Supra note 2

[13] Supra note 3

[14]V D Mahajan; Jurisprudence Legal Theory;p.410;(Eastern Book Company, Lucknow, Fifth Ed.2010)

[15] Supra note 3

[16] V D Mahajan; Jurisprudence Legal Theory;p.411;(Eastern Book Company, Lucknow, Fifth Ed.2010)

[17] Supra note 3

[18]  V D Mahajan; Jurisprudence Legal Theory;p.412;(Eastern Book Company, Lucknow, Fifth Ed.2010)

[19] Supra note 2

[20] Isha;”Ownership and Possession”; available at: https://sociallawstoday.com/ownership-and-possession/#google_vignette (last visited on November 17, 2023)

[21] Supra note 20

[22]  V D Mahajan; Jurisprudence Legal Theory;p.293;(Eastern Book Company, Lucknow, Fifth Ed.2010)

[23] Supra note 20

[24] Supra note 20

[25] Supra note 20

[26] Supra note 20

[27] Supra note 20

[28] Supra note 20

[29] Supra note 2

[30] Ishani Khanna; “Concept of Possession and Ownership”; available at: https://blog.ipleaders.in/concept-possession-ownership/ (last visited on November 17, 2023)

[31] Supra note 5

[32] Supra note 20

[33] Supra note 20

[34] Supra note 5

[35] Supra note 5

[36] Supra note 2

[37] Supra note 20

[38] Supra note 2

[39] LawBhoomi; “Liability in Jurisprudence”; available at: https://lawbhoomi.com/liability-in-jurisprudence/ (last visited on November 17, 2023)

[40] Supra note 39

[41] Supra note 39

[42] Mohd Aqib Aslam; “The Concept of Liability in the light of Jurisprudence An Overview”; available at: https://www.legalserviceindia.com/legal/article-1931-concept-of-liability-in-the-light-of-jurisprudence-an-overview.html (last visited on November 17, 2023)

[43] Supra note 2

[44] Supra note 5

[45] Supra note 30

[46] Supra note 39