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Report No. 157

1.3. Locke wrote.-

"The measure of property Nature well set, by the extent of men's labour and the conveniency of life. No man's labour could subdue or appropriate all, nor could his enjoyment consume more than a small part, so that it was impossible for any man, this way, to entrench upon the right of another or acquire to himself a property to the prejudice of his neighbour, who would still have room for as good and as a large a possession (after the other had taken out his) as before it was appropriated.1

1. Locke Of Civil Government, Bk. II, Ch. ix, section 123; Ch. II, sections 12-13, p. 4.

1.4. In 1302 John of Paris argued that property was a means to enable clergy to do their spiritual work and therefore, there was nothing wrong in their owning property.1 Similarly in Mahabharat, it is engrafted "From wealth come all religious acts (like charity); it is the means of enjoying all pleasures, heaven itself can be attained, Oh king, through (Artha) wealth."2 Kautaliya also holds that "wealth and wealth alone is important inasmuch as charity and desire depend upon wealth for their realisation" .3

1. Refer to H.M. Jain Right to Property under the Indian Constitution, pp. 1-2.

2. Mahabharat Sutra Parva, Ch. viii, Sloka 17 (Gita Press, Gorakhpur), referred in Id., P. 2.

3. Arthshastra, Bk. I, Ch. vii, para. 12 (tr. R. Shamsastry), referred in ibid., p. 2.

1.5. To Bodin as to Locke the right of property is rooted in the law of nature, for basic instinct of man is self preservation. Bodin regards property as an attribute of family and family according to him is the basis of the State. Hegel maintained that property was necessary for the expression of man's personality. "It is in possession first of all ", he said, "that a man becomes rational". He justifies will.1

1. Refer to H.M. Jain Right to Property under the Indian Constitution, pp. 1-2.

1.6. According to Bentham property is the basis of man's expectations and he enjoins on the legislature not to disturb man's expectations if it wants to promote social happiness.

1.7. Right to property is, therefore, an incentive to effort. It induces men to industry and prudence. The State should guarantee it not only to meet the demand of natural justice that man should be entitled to the reward of his labour but also to promote economic growth.1

1. Ibid.

1.8. The concept of property also changes with economic evolution.1 In the primitive stage (hunting and fishing) of man's existence right to property was confined to effective occupation. Ownership and use went together. Roussseau defends the rule of "first occupancy" as forming the basis of property right in land. In the past, with the knowledge of agriculture, the2 land and cattle became important forms of wealth. Later, the invention of money was a landmark in the history of property. Prior to it, barter system also prevailed but barter economy inherently restricted the extent and scope of property right. Monetary economy revolutionised, property relations in society.

With the application of machines to the process of production, monetary economy turned into capitalism. Capitalism has brought further development in the concept of property. We have arrived at a concept of property consisting, inter-alia, of bundle of paper representing securities, promissory notes, shares, certificates, bonds, debentures, stocks and other negotiable instruments. In the Hindu religious endowment's easel the Supreme Court took the view that the term property should be given a liberal and wide connotation and extend to those well recognised types of interests which have the insignia or characteristics of proprietary right.

1. Ibid., pp. 7-9

2. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar, AIR 1954 SC 282.

1.9. Legal concepts of what is property differ from time to time and place to place. What is property in one legal system may not be so according to another legal system, in as much as the law may fail to provide that the particular assertion deserves to be recognised or protected by law. This is partly due to the differences in the social order in which a legal system operates, and partly due to the state of juristic thinking in the particular country.



Section 52 of the Transfer of Property Act, 1882 and its Amendment Back




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