747
POSSESSION
INTRODUCTION
“Possession" is polymorphous term which may have different meaning in different
contexts. It is impossible to work out a completely logical and precise definition of
“possession ” uniformly applicable to all situations in the context of all statues1. 2 * *
It is the most difficult conception of the legal theory. Since very early times attempts
have been made to analyze and theorize it and various theories have been given about it.
The courts in their decisions on "possession” have not followed any preconceived
theory. This has made the conception a very complicated one. Therefore, “possession ” is
a subject of great academic interest.
At the same time it is of utmost practical
importance.
Possession is an evidence ot ownership .
It transfer is one of the chief methods of
transferring ownership. The possession of a thing “even if it is wrongful" is a good title
against the whole world except the real owner. That is why it is said that "possession is
nine points of the law”. Long possession creates ownership by prescription. Possession
is the basis on ground of obtaining certain legal remedies, for example, the possessory
remedy. In certain cases the possessor of a thing can confer a good title on a transferee of
it though he himself has none. Possession plays a very important role in criminal law. In
a number of offences against property possession becomes the main issue to be
determined'5
1 Supdt. V. Remembrancer, Legal Affairs V. Anil Kuar, AIR 1980 SC 52
2 Section-110 of the Indian evidence act, 1872 says ‘.-“when the question is whether any person is owner of
anything of which he is shown to be in possession, the burden of proving that is not the owner is on the
person who affirms that he is not the owner "
r’ Theft, defined - the term "theft" is defined under section-378 the Indian penal code, 1860. “whoever,
intending to take dishonestly any movable property out ofthe possession of any person without that
person‘s consent, moves that property in order to such taking, is said to commit theft"
748
NATURE OF POSSESSION
Possession is the most basic relation between man and things1. Possession of material
things is essential to life because the existence of human life and human society would be
rather impossible without the consumption and sue of material things. Many important
legal consequences flow from the acquisition and loss of possession. Besides being a
“primci-facie” evidence of ownership,
it is also one of the modes of transferring
ownership. Possession is said to be nine out often points of law meaning thereby that it is
an evidence of ownership and he who interferes with the possession of another, must
show either title or better possessory right. For example, a thief who steals may watch
has a possession which the law will protect against everyone except myself or some
person acting on my behalf. Not forcibly is a wrongful act though the possession of the
person turns out to be wrongful. The defendant cannot take the defence that some other
person than the other person dispossessed, had a title to the land2. *The remedy to recover
possession is called “possessory remedy” as provided by the statues'5.
Accroding to HENRY MAINE, possession means that contact with an object which
involves the exclusion of other person from the enjoyment of it. Possession denotes
physical contact resumable at will. In other words, it does not signify mere physical
detention but physical coupled with the intention to hold the thing detained as one’s
own4.
POSSESSION UNDER ROMAN LAW
Under Roman law, the concept of possession was used in two different sense. To be in
possession of a thing was different form having legal possession over it.
The former denoted that a person simply has physical control over the thing and it was
called “corpus possession’s” - while the later meant having exclusive control over a
thing. The Roman called as “civilipossessions” which denoted legal possession.
1 SALMOND . Jurisprudence (12'" Ed.) P.265
' JAFARIES V. Great Eastrn Rly. 5E & B 802 (802)
■’ Section-6 of the specific relief act, 1963
4 MAINE HENRY : Ancient Law, P.47
749
In Roman law, certain important consequences were attached to “civil possessions ”
According to XII tables a continued possession of an immovable property for a long
period which was not detention gave to the possessor ownership or “dominium " over the
property. The property disputes were mostly decided on the basis of legal possession
only and the courts thought it unnecessary to decide the question of ownership.
A person was deemed to be in legal possession of a thing when they not only think was in
his physical control or he had custody over it, but he also had the power to exclude other
form interference in his possession. This mental element to hold possession and control
over a thing to the exclusion of all others was called “animus
Thus possession to be
legal, required two essential elements i.e.
i)
Corpus, and
ii)
Animus
Roman law distinguished “detention ” from custody. In case of detention, a person was
to have real possession and control over a thing though he may or may not have
ownership of it.
The "custody" on the other hand, involves possession and control
without ownership. The English law, however, did not recognize this distinction.
POSSESSION UNDER THE ENGLISH LAW
The importance of possession has equally been recognized in the English law also. The
term is commonly used in both,
i)
Civil, as wellas
ii)
The criminal law.
In civil law, viz. the law of torts, contract, property, specific relief, etc. many wrongs are
defined in terms of possession.
For instance, trespass is a wrong relating to possession of land or goods, conversion is
wrong affecting possessory right in goods and is known as “trover”.
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In law of crimes, theft is dishonestly taking away any movable property out of the
possession of any person without that person’s consent1.
The English law recognizes that acquisition or loss of possession results into many
important legal consequences. Possession has been given protection under the law of
varied reasons.
WHY LAW PROTECTS POSSESSION?
A general conclusion can be drawn from the above discussion about the importance of
possession that law protects possession, even if it has been acquired unlawfully. Various
theories have been given by jurists and philosophers to explain why law protects
possession. It would not be out of place to mention some of the theories here.
ROUSSEU; KANT; HEGEL
ROUSSSEU, the French philosopher, was of the view that men are born free and equal.
Freedom includes the freedom of will also. In possession individuals’ will is reflected,
therefore, it must be protected. The Massachussetts, bill of right also states to the same
effect.
KANT also held similar view. KANT says that "(he freedom of the will is the essence of
man
II is an end in itself it is hat which needs no further explanation, which is
absolutely to be respected and which it is the very end and object of the government to
realize and affirm Possession is to be protected because a man by taking possession of
an object has brought its within the sphere of his will. He has extended his personality
into or over that object"
HEGEL is also of the same view. According to him in possession there is manifestation
of individuals will. Therefore, it is entitled to absolute respect.
Section 378 fPC (in English law "theft" is called "larceny")
751
Many other German philosophers have given theories of possession. In these theories,
generally, “the freedom of will" is made the ground for the protection of possession. It is
submitted that these theories are not of much practical importance because they are
based on metaphysical ideas.
SAVIGNY
The jurists of historical school have given a different theory of the protection of
possession.
According to SAYINGY, possession is protected because every act of
violence is unlawful. It seems that SAVIGNY considers the protection of possession as a
branch of the protection of the person.
It is submitted that the reason given by
SAVIGNY is not very sound, because possession is protected not only against force but
against fraud and other kinds of disturbances also. Certain other jurists have given their
views on similar lines. The views of the jurists also are of a philosophical nature and are
also little concerned with realties. The views of the later jurists are of a more practical
nature.
WINPSCHEID; IHERING
The name of WIND8CHEID is that the “protection to possession stands on the same
grounds as protection against 'injuria ’ and every one is the equal of every others in the
stale, and no one shall raise himself over the other
IHERING, the great sociological jurist makes a new approach.
possession is ownership in defensive.
According to him,
One who exercises ownership in fact “that is
possession ” is free from the necessity of proving title against one who is in an unlawful
position.
BURNS criticizes IHERING on the ground that his approach assumes that the title of
disseisors is to be is to be generally worse than that of disseisees. It is not true in fact. It
is submitted that IHERING’s approach is more practical. His view that possessors in
most cases are the rightful owners must be historically inaccurate but it is convenient
752
from the point of view of law to regard it rightful, at lest until one comes with a better
title.
HOLLAND
HOLLAND’S approach is still more realistic. He says that the prominent motive in the
protection of possession is probably a regard for the preservation of peace. In modern
times following reasons are given for the protection of possession.
1)
Possession is protected for the preservation of peace. It is a natural human
instinct that he does not want easily to part with what he possesses. Therefore
an interference with possession leads to violence. Thus the protection given
to possession comes to aid criminal and it prevents a breach of peace1.
2)
Possession is protected as a paid of the law of tort.
It was observed in
ROGERS V. SPENCE that “these rights of action are given in respect of the
immediate and present violation of the possession of the bankrupt
independently of his right ofproperty, they are an extension of that protection
which the law throws around the person ”.
3)
Possession is protected as part of the law of property. Sometimes, proof of
title is difficult, and sometimes, there are other difficulties of the nature. In
these cases to throw the burden of proving a good title on the person who is in
possession and whose possession is disturbed shall be very useful. Therefore,
law protects possession. The law of property makes various provisions to
protect possession.
For example, “any person acquiring any immovable
property of any share or interest in any such property shall be deemed to have
notice of the title, if any, of any person who is for the time being in actual
possession thereof’2. Sectioli 53-A of the transfer of property act, 1882 also
protects possession.
1 See the Criminal Procedure Code 1973, Sec. 145
2 See, Transfer of Property Act, 1882, Section 3, Exp. 11
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a) Possession being the "prima-facie" evidence of ownership, continuous
long possession is deemed sufficient to confer ownership, to the person in
possession. In other words, the person in possession of a thing is deemed
to be the owner of it unless someone else proves a better title than him.
b) Possession provides a ground of possessory remedies which protect the
right of the person in possession.
c) Possession is deemed as one of the essential conditions for acquiring
ownership.
d) The possession of a thing by a creditor as a pledge serves as a good
security for repayment of the debt.
e) The difficulty of the proof of ownership also accounts for legal protection
to possession because it is relatively easy to prove possession. Many
writers, however, do not accept this reason.
f) A defendant is always at liberty to rebut this presumption by proving that
the better title is in himself. Again a defendant who interferes with the
possession of the plaintiff is not allowed to set up the defence of "just
tertii" i.e. the title of a third person.
MEANING OF THE TERM “POSSESSION”
DEFINITION OF POSSESSION
Jurists have defined possession according to their own notions.
POLLOCK says...that having physical control over a thing constitutes possession.
According to SALMOND, "the possession of a material object is the continuing exercise
of a claim to the exclusive use of it”. Thtis, possession involves two things.
i)
Claim of exclusive user; and
j)
Conscious or actual exercise of this claim i.e. physical control over it.
754
The former is mental element called “animus possessions” and the latter is physical
element as the “corpuspossidendi".
Professor ZACHAIAE observes that possession is a relation between a person and a thing
which indicates that the person has an intention to possess that thing and has the capacity
of disposing it of.
SAVIGNY, in his theory of possession says that the essence of corporeal possession is to
be found in the physical power of exclusion. The first is “corpus” i.e. physical power to
possess a thing for the first time.
The second is having initially acquired the thing, there must be physical power to retain
it.
SALMOND, however, does not agree with SAVIGNY’s view that possessor must have
physical power to exclude alien interference. The true test according to him is not the
physical power of exclusion. But the “improbability of interference by other”.
WINDSCHEID IHRING is of the opinion that the element of “animus possidendi" is
altogether immaterial and cannot serve as a test of legal possession.
The legal
possession, therefore, does not depend on the nature of the intention but the manner or
character in which the claim to possession is made. It is submitted that if IHRING’s
theory of possession is accepted, it would provide on solution to the question as to why a
thief can claim possession of the thing which he has stolen but not the servant who is1 in
possession of his master’s goods.
HOLMES writes, “to gain possession a man must stand in certain physical relation to
the object and to the rest of the world, and must have a certain intent”.
SUBHARAO G.D. Jurisprudent Legal Theory, (9th Ed.) P.195
755
POLLOCK pointed out that in common speech a man is said to possess or to be in
possession of anything of which he has the apparent control, or from the use of which he
has the apparent power of excluding others.
According to MARKBY possession is the determination to exercise physical control over
a thing on one's own behalf coupled with the capacity to do so,
MAINE defines possession as “physical detention coupled with the intention to hold the
thing detained as one's own
KANT
defines possession and says, that , “there must be empirical fact of taking
possession conjoined with the will to have external object as one’s owm
This definition shows that possession involves in the first place a claim of exclusive user
and secondly this claim should be actually exercised, that is, brought under physical
control.
In other words, there are two elements which are essential to constitute the concept of
possession as complete and valid.
These are
i)
Physical element which consists in physical control over the thing,
ii)
A mental element which consists in the determination to exercise that control.
The physical element is called the “corpus possession ” is and the mental element is
called’ as the “animus possidendi ”. It is said that to constitute a valid and complete
possession both these elements must be present i.e. there must be “animuspossidendi"
which means the intention to possess as well as “corpus possessionis” i.e. the thing must
be actually possessed by the person who has intention to possess it.
756
To constitute possession it is essential that following elements must be present, viz.
1)
“animus possidendi ”, i.e. intention to possess and
2)
“corpuspossessions ” i.e. the thing is in actual possession.
But these elements but must be present in the case of possession and neither of them
alone is sufficient to constitute possession. Corpus is the effective realization in fact of
the claim of the possessor while animus is the subjective element. SAVINGNY was of
the view that both the elements i.e. corpus and animus must be there to constitute
possession.
POSSESSION IN FACT
Possession is divided into two categories, viz.
1)
Possession in fact, and
2)
Possession in law
Possession in law means possession in the eye of law. It means a possession which is
recognized and protected by law.
There is sometimes a discrepancy between possession in fact ‘and possession in law,
although usually possession exists both in fact and in law in the same person.
A person who is in “de facto” possession of a thing also comes to have “de jure”
possession.
Of possession in fact and in law there may be three situations viz.,
1)
Possession in fact as well as hi law
2)
Possession in fact not in law
3)
Possession in law and not in fact
The first type of possession is the perfect possession while the second type of possession
is not called as the possession actually simply a custody as the possession of servant over
757
the thing of his master, and the third types of possession is property called as construction
possession as 1 have a railway receipt for the goods which are with the railway.
A tenant may be occupying a particular building but the landlord has the constructive
possession of the same.
The same is the case with the things in the possession of
servants, agents and bailees.
The relation between a person and a thing which he possesses is called possession in fact
or "c/cfacto possession ”.
It indicates physical control of a person and a thing.
For instance, if a person has caged a parrot, he would be deemed to have possession of it
so long as the parrot is in the cage but as soon as the part escapes fro the cage of set free,
he would have possession over it. Certain points regarding possession in fact must be
carefully rated. They are.
1)
There are certain things over which a person cannot have physical control e.g.
sun, moon, stars, etc.
2)
The physical control over the object need not be continuous.
For instance, I
possess my coat when I am wearing it, I still have possession of it when I take it
off and hang it on a pag when I go to sleep. The basic idea is that I should be in a
position to resume control over it in normal course whenever I so desire. In other
words physical control may continue even if a person relinquishes actual control
temporarily.
3)
In order to constitute possession in fact, merely having physical control of a thing
is not enough but it must be accompanied by capacity to exclude others from the
possession of it. However, some jurists do not consider the element necessary for
possession.
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4)
In order to determine the question of acquisition, abandonment or termination of
possession, the distinctive feature is the desire of the person whether he desires to
retain possession or not.
POSSESSION IN LAW
Possession in law is also termed as “de jure " possession. It has already been stated that
the law protects possession for two obvious reasons, namely,
i)
By conferring certain legal rights on the possessor;
ii)
By penalizing the persons who interfere with the possession os a person or by
making him pay damages to the possessor.
Whenever a person brings a suit for possession the first thing that the court ascertains is
whether the plaintiff was formerly in real possession of the thing in dispute. It is true that
in most of the actual or factual possession testifies legal possession yet there are many
situations when a person does not have possession in law although he is in actual
possession of the object.
In the legal
sense, possession is used as a relative term.
The law is generally not
concerned with the question as to who has the best title, but it is concerned as to which of
the parties before it has a better title.
A few cases may be cited in support of this
contention.
BRIDGES V. HAWKESWORTH1
In this case it was decided by the court that the bundle of notes found on the floor of a
shop passed into the possession of the finder rather than the shopkeeper. The decision
has been supported by POLLOCK and'SALMOND. POLLOCK holds that since the
shop-keeper “defendant" has no “corpus” in the bundle of nots, he has no “defacto"
control over it. SALMOND has taken this view that the shopkeeper has no “animus ” for
possession. The decision has, however, been criticized by Prof.GOODHART and
GAVNILLE WILLIAMS. In their opinion this case was wrongly decided because the
I
(1851)21 LJ QB 75
759
defendant shopkeeper had a general "animus ” and sufficient control requisite for legal
possession of the notes were physically found in the shop itself1.
R.V.RELEY
In this case where the accused was driving his herd of sheep, some of the prosecutor’s
sheep joined the herd and were driven away by the accused along with his own. This
mistake came to his notice after he had sold the entire flock of sheep. The accused was
held to have taken possession of the sheep which belonged to the prosecutor and which
he unknowingly above with his own flock to the market.
R.V.HARDING2
In the instant case the accused was convicted of stealing a raincoat from a maid servant
who. as against the master, had more custody of the raincoat and could herself have been
convicted of larceny had she dishonestly made-off with it. In the eyes of law she had
possession as against the thief but not as against the employer.
R.V.CHISSERS3
A person went in a shot and took some cloth to see. Then he ran away with the cloth. He
was convicted for larceny as the court held that he had not obtained the possession of the
cloth merely by taking it and it was still in possession of the shopkeeper.
S ALMOND observed that possession in sometime possible without knowledge of the
subject-matter and sometimes knowledge is a necessary requirement for possession. He
explains this by a hypothetical illustration. If A momentarily hand his wallet to B, fro
whom it is stolen by C, who then losses it on D’s property, where it is found by E, the
question who has the right to possess or'who has legal possession - will depend on who
brings actions against whom.
1 GOODHART : Essays in Jurisprudence & Common Law P.83
2 (1929) 142 L.T583
3 (1678) T. Ramn, 275
760
As against all subsequent parties, E’s title would prevail because finder acquires a good
title. In an action between D and E, however, it would seem that D would have a better
title if he could prove that the article was found on property from which he had a general
intention to exclude others.
As against C, neither D nor E would be said by law to have possession since C had a
good right against all except the true owner. In an action by C against D and E, the alter
would not be allowed to plead just tertii, than is, they cannot argue that tire wallet belongs
to someone other than C and therefore C should not succeed against D and E. To allow
this, would be to allow anyone who cold prove a defect in
a possessor’s title to
dispossess him of his goods. The plea of “jus tertii” is allowed only to the true owner
and/ or his agent.
Obviously, as against A or B, C would have no defence, B would recover the wallet
because he had actual possession of it. A could recover it from C because, though it was
in B’s hands, he “i e A” had to immediate right to possess. Therefore, A or B whosoever
brings action against C, would be deemed to have legal possession to the wallet as against
C.
It would, therefore, be seen that in common law, possession is a relative matter. The law
is not normal concerned with the question which of the parties before the court had a best
right to possess; it is concerned with the question as to which of the parties has the better
right to possess1.
ANCONA V ROGERS2
In this case the owner of house permitted a lay to keep her luggage in some of his rooms.
The lady sent her luggage through someone who kept the luggage in the rooms shown by
the owner and locked the same and handed over the keys to the lady. Deciding the
dispute as to possession of the luggage, the exchequer chamber ruled that though the
1 SALMOND : Jurisprudence (12th Ed.) P.279
2 (1876) 1 ExP 285 (292)
761
luggage was in real possession of the owner of the house "rooms’’, but still the lady had
the legal possession of it. The keys of the locked room being with the lady, it was
sufficient evidence of the fact that she still had the physical control over the luggage.
The court laid down the principle that, "a bailor who had delivered the good to a bailee
to keep them on account of the bailor, may still treat the goods as being in his own
possession, and can maintain an action for trespass against a wrongdoer who interferes
with them
R.V.MOORE1
In the instant case a bank note was dropped in the shop of accused who took it and
converted it to his own use. The accused was convicted of larceny since he was not in
possession of the note until he actually discovered it,
ELVES V, BRIG GAS CO.2
The defendant company took the land of the plaintiff for erecting a gas plant. When the
excavation work was on, the defendant lessee company discovered a pre-historic boat six
feet below the surface of the land. The court held that lessor had the first possession of
the boat and not the lessee.
SOUTH STAFFORDSHIRE WATERWORKS CO, V. SHARMAN3
The defendant was employed by the company, to clean out a pond upon their land. He
found certain gold rings at the bottom of the pond while cleaning it. The court held that
the company had the first possession of the rings and not the defendant.
HANNAH V. PEEL4
The defendant purchased a house in 1938 but he never occupied it. In 1940 the house was
requisitioned by the government royal artillery.
The plaintiff, a soldier who was
stationed in the house found a brooch on the top of the window-frame covered by dust.
1 (1861) L & C I
2 (1886) 33 Ch D 562
5 (1996) 2 QB 44
4 (1945) l KB 509
762
The brooch was handed over to the police who without attempting to discover the rightful
owner delivered it to the defendant who was the owner of the house. The defendant sold
the brooch "jewel” for $ 66. The defendant contended that he being the owner of the
house in which the brooch was found, was entitled to it as the owner of it.
The court, however, ruled that the plaintiff was entitled to the brooch or its value since
his claim as finder prevailed over all others excepting the rightful owner. The court
further observed that since the defendant was never in possession of the house and had no
knowledge of the brooch until it was brought to his notice, he neither had “de facto ”
possession of it nor the “animus ” of excluding others, therefore he had no right over the
brooch.
The decision has, however, been criticized by Professor GOODHART as having been
wrongly decided1.
HIBBER V. MC. KIERNAN
The case is also known as "golf-ball case
In this case the balls lost on a golf-link and
abandoned by the owners were picked up by a trespasser on be golf-grounded. On being
sued for wrongful possession of the golf-balls the court ruled that the abandoned balls
were held to have fallen into the possession of the secretary and members of the club.
SALMOND. however, holds a view that lost articles are deemed in law to remain in
possession of the loser. In his opinion he loses legal possession of the lost articles when
he terminates his intention to retain his rights over them e.g. by throwing it away
deliberately. In most cases it is a question of inference from the circumstances the loser
had abandoned his legal possession2. Fbr instance, in R. V. Ed wardsJ, a householder who
puts refuge in a dustbin has been held to retain possession of it until it is collected.
1 For details see Acthuthan Pillai’s Principles of Torts (8lh Ed.) PP.171-72
2 SALMOND : Jurisprudence (12th Ed.) PP278-89
’(1877) 18 Cox CC 384
763
MERRY V. GREEN*1
In this case a man purchased a chest of draws "bureau ” at an auction and took possession
of it.
Subsequently he discovered that there was some money in the secret drawer
belonging to the vendor but he appropriated the same. The court held him guilty of
larceny "theft” because the purchaser was ignorant about the existence of money and the
secret drawer hence he cannot be said to have “animus” in regard to that money and
could not intend to possess the contents of the secret drawer until he found it.
CARTRIGHT V GREEN2
In this case a bureau was delivered to a carpenter for repairs. There was some money in
the secret drawer of the bureau. The carpenter found the money and appropriated it. He
was held guilty for larceny. It was held that the money was in his possession until it was
found and therefore the elements of "animus“ was lacking in the carpenter.
R.V.ASHWELL3
In this case, A gave B received, a guinea in a dark night. Both of them believed it to be a
shilling. B subsequently discovered that it was a guinea and he appropriated it. He was
convicted for larceny. In appeal, the court was equally divided and, therefore, the
conviction was allowed to stand. Justice CAVE in this case observed, ‘‘a man has not
possession of that, of the existence of which he is unaware". This view found support in
R.V.Hudson also.
R.V.HUDSON1
In this case a person named HUDSON received due to an error a letter containing a
cheque from the Ministry of Food which was infact intended for some other person name
Hudson who had supplied pigs to the food department and to whom money was sent as
the price of the prigs. Hudson endorsed the cheque and got the money credited into his
account. He was held liable for theft for this deliberate action.
'(1847) 7 M&M 623
2 (1808) 7 RR 99
1 (1885) 16 QBD 190
764
From the perusal of foregoing eases it can be inferred that possession in law has been
differently interpreted depending on the circumstances of the case. In short, it can be said
that possession may either be possession in fact or possession in law.
In Roman law possession in fact is called "posses.su nctlurlais ” and possession in law is
known as ''possess 10 - civils". In case of possession in law, “defecto ” possession is not
necessarily. In fact it is a right which is recognized and protected by law. According to
SALMOND, there may be three possibilities regarding possession in fact and possession
in luw.-
1)
2)
Generally in most cases both factual and legal possession exist together.
In certain cases a person has legal possession of a thing but legal possession in
fact is with someone else. For example in case of possession by the servant of his
matter’s property, although the servant has real and factual possession over it but
the legal possession is still that of the master. Likewise, in case of bailment,
though bailee has the real possession of the goods bailed out the legal possession
is that of the bailor.
3)
English law also accepts the concept of constructive possession in cases where
something less possession in one person is deemed possession in law, and
conversely where the actual possession of some other party is reduced to
something less than legal possession. For example, if A wrongfully takes
possession of B’s watch, the law shall still afford its possessory remedies to B, on
the ground that he did originally have the possession and, therefore, he "ought” to
have possession even now. The fact that the law regards as possessors only those
who are actually in possession need-not prevent protection to those who, though
not in possession, ought to have been in possession.
1
(1943) I KB 458
765
ANALYSIS OF POSSESSION
a)
Roman Law
The Roman law had its main aim to protect ownership and it was in this
connection that the law regarding possession developed. The Roman law cases
mainly concerned with developing a theory to distinguish detention and
possession form each other. The physical control of an object by a slave as a
‘‘filius familias", a bailee or an agent was considered only as detention. It was
called “delenlio” or ‘‘possessio natural is". All other kinds of physical control
were possession “m the strict seme of the world”. It was called ‘‘possessio ” or
“possessio civilis”. A possessor had two advantages:-
1)
First, he had a right to protection by the pradetor’s interdicts called
"possessory interdicts ”,
2)
Second, after the expiry of a prescribed period the possessor could acquire
ownership.
A great amount of discussion, has been made about the nature of the distinction
between "detentio ” and “possessio " and various theories have been given as to
why law protected only certain forms of physical control. It is submitted that the
law of possession did not develop in the lines directed by any theory, or principle,
but it developed on the basis of convenience and policy.
Instances shall be
presented later on1 from the Roman law to show that the laws of possession is
based more on convenience than on anything else.
Bf
SA VIGNY’S Theory of Possession
SAVIGNY, on the basis of a text of Roman Jurist PAUL, said that there are two
elements of possession:
1)
Corpus possessionis “popularly known as 'corpus’
2)
Animus domini ‘‘known as 'animus
See SA VIGNY’s Theory of Possession discussed below
766
11
Corpus
By corpus is meant an effective physical control of the object. SAVIGNY
explaining it says : the physical power of dealing with the subject
immediately and of excluding any foreign agency over it....is the factum
which must exist in every acquisition of possession.
This immediate
physical power is not necessary to continue the possession, as was
required to give rise to it, and continuing possession depends rather on the
constant power of reproducing the original relationship at will. For this
reason we do not lose possession by mere absence form the subject, which
we have once appropriated to ourselves, although the physical relation in
which we now stand to it, would not have sufficed in the first instance to
obtain possession.
In other words, according to SAVIGNY, the essence of possession is to be
found in the physical power of exclusion. He observes that the “corupus
possessionis" may be of two kinds, according as it relates to the
commencement or retention of possession. The corpus required a the
commencement of possession is the present or actual physical power of
using the thing oneself and of excluding all other persons from the use of
it, whereas the "corpus ” required for the retention of possession once
acquired may consist merely in the ability to reproduce this power at will.
Thus, I get possession of a horse when I take him by the bridle or ride
upon him or have him in my immediate presence, so that I can prevent all
other persons from interfering with me; but no such immediate physical
relation is necessary to retain the possession so required. I can put the
horse in the stable or let Mm graze in the field and yet be in possession of
him, so long as I can take him by the bridle when I wish and use him to
the exclusion of others.
767
2f
Animus
By animu is meant the mental element or the intention to hold the object
as owner against all others. In other words, it is a conscious intention to
exclude others from the object. Without this mental element there can be
no possession.
SAVIGNY’s theory explains as to why the tenant, the borrower, and the agent
had not possession “of the object let, lent or entrusted to deal with to them ” in
Roman law. They had no “animus domini” as they did not intend to hold the
object in their own right. But SAVIGNY’s theory fails to explain those cases
where Roman law had given possessory right “the right to get or recover
possession” to the persons who were not the owners of the object or property.
SAVINGY said that those cases were anomalies and suggests that they were cases
of "derivative possession
SAVIGNY’S ANALYSIS IS WRONG
The analysis of possession in Roman law given by SAVIGNY is wrong and it has
a number of weaknesses. He based his theory on the text of a single jurist, and
interpreted it without putting it in its proper context. He wrongly assumed that
“corpus’’ and “animus’' which were required for acquisition constituted
possession itself. He did not mark the change in the conception of “possession "
which had taken place in later times. According to his theory, the possession was
lost when either of the elements of possession "'corpus' or 'animus”’ was lost
but in actual practice possession continued although one of the elements was lost,
( and sometimes it continued even though both were lost. A number of instances
can be produced from Roman law to show this development.
In the eye of law a master was considered in possession of what was held by his
slave. A theoretical explanation of it was that the master had the “animus" and
the "corpus" was provided by the slave, and as the slave was possessed by the
master, the master possessed the “res ” held by the slave. With the development
768
of commerce, it became not only difficult but impossible for the master to have a
specific "animus” towards every “res” acquired by his slave. Therefore, the rule
was relaxed and the master was considered to be in possession of whatever was
acquired by his slave in connection with the “peadiam
In this way, now master
was considered in possession of an object, without having any of the elements of
the possession.
Secondly in Roman law the “pracetor” did not protect a possession acquired
unlawfully. For example, the possession by a thief of a stolen object was not
protected by law. It was considered that a person has lost possession by violence
"as by theft " was still in possession. In this case too the elements of possession
were lacking but the law recognized possession.
According to SAVIGNY, possession continued only so long as the effective
physical control over the object existed or it was reproducible at will, but in actual
practice the possession if one proved to have come into existence was considered
to be continuing until it was abandoned by the owner or was seized by another. If
a person leaving his property in Rome went abroad with an intention of returning
back, he was considered to be in possession of his property though he had neither
the physical control of the property nor it was reproducible of will. Thus, the
instances can be multiplied to show that the actual practice had left the classical
theory “that of corpus and animus" far behind and the ideas of “corpus” and
“animus’’ were considered modified, and the law proceeded more on the basis of
convenience. To this development some say that it was as a sacrifice of principle
to convenience. It is submitted that it cannot be said to be a sacrifice because
principle and convenience are hot two different or inconsistent things.
Any
theory or principle must fit in and it must be picked up from actual practice.
Generally, every rule has some exceptions but when exceptions overwhelm the
rule or eat it away, they become the rule, and if any part of the '‘former" rule is
left out, it becomes the exception. Thus, SAVIGNY’s theory does not hold good
and it misrepresents the Roman law.
769
Sir JOHN SALMOND does not approve of this view and raises the following
objections:
1)
Even at the commencement a possessor need not have physical power of
excluding other persons. It is the absence and improbability of foreign
interference that constitutes the physical element and the existence of any
power of exclusion " lighthood". As SALMOND observes a little child
and a man in his death-bed may have no physical power as against a
strong man and may yet possess the money in their hands. Again, in the
case of a vast estate of several square miles in extent, actual physical
power of preventing alien interference is impossible, but there is the
improbability of any interference and consequent security of an exclusive
use.
2)
Possession is a continuing “de facto ” relation between a person and a
thing, and must have the same essential nature from beginning to end.
Possession at the commencement and possession in its continuance cannot
be made up of different elements.
3)
The theory of SAVIGNY is inapplicable to the possession of incorporeal
things, where there is neither exclusion nor the power of exclusion.
The theory is a relic of the earlier reliance on self-help that was the rule in
the primitive undeveloped societies.
IHERING’S THEORY
IHERING’s theory of possession is more objective and it presents a sociological
approach to possession.
He takes up the question as to why Roman law protected
possession by means of “interdicts ”? The answer, according to him, is that the persons
holding property in majority of the cases would be owners and the possession was
attributed to such person so that the “interdicts ” might be made available to them.
Therefore, IHERING says that “whenever a person looked like an owner in relation to
770
thing, he had possession of it, unless possession was denied to him by rules of law based
on practical convenience”.
The “animus” element was merely an intelligent
consciousness of the fact. This theory is more in consonance with the practice in Roman
law than SAVIGNY’s theory. At the same time, this theory is flexible. It explains those
cases which SAVIGNY’s theory found difficult to explain.
WEAKNESS OF IHERING’S THEORY
Though IHERING’s theory is greatly superior to SAVIGNY’s theory, this too had certain
weaknesses. It looks at possession from the point of view of “interadicts ” and therefore
it is incapable of explaining the cases where law refused "possessory rights” to the
persons who were in effective physical control. The cases in which the persons did not
look like an owner “in relation to a thing” but certain purposes law recognized them to
be in possession cannot be explained by IHERING's theory. IHERING says that such
cases are exceptions but it is submitted that they point out the narrowness of the theory.
\
ENGLISH LAW
POSESSION IN ENGLISH LAW
Even in spite of the facility of SAVIGNYAIN theory as an explanation of Roman law, is
modified version of it has exercised a considerable influence on English law. As in
Roman law, so also in English law has occurred a shift in the meaning of possession.
There the term is not limited only to physical control1.
This is to a certain extent
reflected in the expression, such as “possession in fact” and “possession in law”. The
former, however, suggests presence of some factual basis for ‘possession in fact" and it
may be some such supposition that has paved the way for the acceptance of the
readymade corpus and animus formula of SAVIGNY not only by writers but even in
some of thee cases2. 3The objection to corpus and animus as comprising possession is that
their content has changed so much that they failed to provide a reliable criteria. “corpus ”
and “animus" have different meaning for different purposes in the same way as
possession infact has come to known no more than a changing concept of law. Thus,
1 See Parmee V. Mitchell, (1950) 1 All, E.R. P.872 at P.874, Newcastle City Council V.Royal New Castle
Hospital, (1958) A C 248 at P.255; towers and co. ltd. V. Gray (1961) W Q B. 351 at P.364
3 For example, see Brown V. Brash and Abbrose, (1948) 2k B.247 at P.254 cited by Dias, Op. cit., P.375
771
according to ERLE, C.J., “possession is one of the most vagve of all vague terms, and
shifts its meanings according to the subject-matter to which it is applied, varying very
much in its sense, as it is introduced either into civil or in to criminal proceedings”'.
Thus, the question whether possession exists in a particular case or not depends much
upon the degree of the control exercised by the person who entitle to be in possession.
This control should be of such a degree that the person having the control would
effectively exclude interference by others. The law, in this regard, has laid down certain
tests to justify whether a certain control does not fall within the ambit of possession, and
where that control falls short of that standard so established bylaw, it is then called
custody or detention. Few theories will, however, make the picture of the concept of
possession much clear to the understanding of the general reader.
HOLME’S THEORY OF POSSESSION
HOLMES who started by refuting a “priori" philosophical idea, perceived that less facts
are required to initiate possession than to acquire it. What constitutes possession can be
best studied only when possession is first gained. Accordingly, he pointed out:
"To gain possession, then a man must stand in a certain physical relation to the object
and to the rest of the world, and must have a certain intent. These relations and this
intent are the facts of which who are in search12 ”
HOLMES suggested that English law does not require the “animus domini” element, but
merely the intent to exclude others. For instance, the tenant desires not to hold as owner '
of the land, but only to exclude the landlord.
HOLMES statement is, nonetheless, tentamount, to SAVIGNYIAN adoption of “corpus ”
and ‘animus”. At the same time, he may also be accused for having cited no authority at
1 R.V Samiti (1855), 6 Cox CC 554 at P.556; see also the observations of Lord Parker, CJ, in to wers & Co.
ltd V Gray (1961) 2 Q.B.351 at P.361
2 HOLMES, The Common Law, P.216
772
all, and thus, he, having rejected the “a priori ” philosophical conception, proceeded to
do that very thing himself.
SALMOND’S THOERY
Having rejected two different conceptions of possession,
i)
“possession in fact ” and
ii)
“possession in Icim>”
SALMOND said that there is only one conception that is possession in fact, which is
possession “in truth and in fact’’1. In law, the exercise of possession depends solely on
the criteria of common sense, and further, since possession of law is identified with
possession in fact, so possession in law, for him, is fictitious. But the idea of possession
remains no longer tried to fact, it has rather acquired the meaning in the most technical
sense
However, having thus, assumed that possession in fact is possession in truth, SALMOND
then proceeded to draw a dividing line between possession of physical objects, which he
termed "corporeal possession’’ which he named “incorporeal possession’’.
For
corporeal possession, he said that it is a “continuing exercise of a claim to the exclusive
use of it”. The continuing exercising of this claim, according to him, is consisted of two
elements namely,
i)
“corpus possession ” and
it)
“animus possidents2 ”
Thus, for SALMOND, possession is both corpus and animus. The former, SALOND,
thought comprised of both the power to use the thing possessed and the existence of
grounds for the exception that the possessors use shall not be interfered with. The latter,
on the other hand, consisted of an intent to appropriate to oneself the exclusive use of the
1 SALMOND : Op. Cit, Chap.9
2 SALMOND : Jurisprudence, (7,h Ed.) PP.297-308
773
thing possessed1.
SALMOND’s "animus possidendi", which is an intent to exclude
others, is an adoption of the modified version of SAVINGY’s "animus domini”.
The whole trouble in SALMOND’s theory is due to his assumption that "corpus" and
“animus" which are necessary conditions for the acquisition of possession, are
possession itself. His view that possession is lost when either “corpus” or "animus" is
lost, has been challenged by Dr.G.WILLIAMS the learned editor of the SALMOND’s
1 llh edition, by saying that "the possession once acquired may continue even though
'animus’ or 'corpus’, or even both, disappear’’2. * Dr.WILLIAMS is correct, but it
destroys the entire foundation of SALMOND’s theory that possession is both "corpus”
and “animus".
POLLOCK’S THEORY
POLLOCK, a distinguished jurist, said that, "in common speech a man is said to possess
or to be in possession of anything which he has the apparent control, or from the use of
which has the apparent power of excluding others ”J.
From the above it is obvious that POLLOCK laid stress, not on "animus” but "de facto"
control, which he defined as physical control.
A general intent is sufficient.
The
reduction of possession to a general criterion such as "de facto ” control has, however, led
POLLOCK to face certain difficulties. His theory is an utter failure to explain how it is
that servants have "custody” for some purposes and “possession” for others. Further,
true it is, that possession need not only a physical power over the "res ” itself, but also the
ability of excluding others physical control to exclude others might be all important
factor in a primitive and lawless society but the more settle the community, the less
important is actual physical powers in the actual physical powers in the acquisition of
possession. Thus, the child has not physical power to exclude the ruffian, but nonetheless
he has possession unless the ruffian actually takes it from him4.
1
2
■’
4
SALMOND ■ Jurisprudence, (12th Ed.) Pp.272-273
SALMOND ' Jurisprudence, (11'1' Ed.) by Dr.G.Williams, P.339
POLLOCK & WRIGHT • Possession m the Common Law
KOCOUREK, Jural Relations, (2nd Ed.) P.364
774
Having thus summarily observed the above theories of possession in common law it may
be stated that the emphasis laid therein on the intent, i.e. “animus" and the intent which
constitute possession is the intent to exclude others. According to HOLMES, “such an
intent is all that the common law deems needful, and that on principle no more should be
■required"1.
Although, the "animus" in English law is one of the chief elements of possession, some
sort of physical relationship with the object has also been felt necessary.
But this
physical relationship which the English law has emphasized at variance from that of
Roman law. In he light of the above discussion, it may be pointed out that in English
law, as in Roman law, the conception of possession is noting more than a device based on
convenience and policy. Appreciatingly SHARTEL has stated: “I want to make the
point that there are many meanings of the word 'possession that possession can only be
useful defined with reference to the purpose in hand; and that possession may have one
meaning in one connection and another meaning in another"2.
Professor SALMOND, too, in his book on jurisprudence, has candidly remarked that, “of
all the divergences between legal and actual possession that is the most notable, viz, that
outside the law possession is used in an absolute sense, whereas within the law it is
employed in a relative sense
Outside the law, we do not speak of person having
possession as against someone else, we say that the either has or has not got possession.
In law we talk rather of possession as something which one person has against another ".
He further stated, "if i ■<? overlook this, then decisions like R.N.HARDING and London
corporation V Appleyard, are unnecessarily difficult. How could the servant in the first
case have possession of the coat and yet tit the same time not have possession of it? If the
law used possession in an absolute sense, then of course she could not. As it is, she had
possession as against the thief but not as against her employer Likewise, the occupier of
the land in the second case had possession of the notes as against the workmen who
1 HOLMES : The common law
2 SHARTEL : Meaning of Possession (1932) 16 Minnesota L. Rev., 611 at P.612; see also, Bentham,
Works III, P.188; Lightwood, A Treatise on Possession of Land Passim
775
found them; he would not of course have had possession as against the true owner, had
the latter advanced his claim ”.
However, though there had been much confusion regarding the concept of possession
both in Roman and English laws, yet a conclusion drawn is that law has always attempted
to seek a convenient solution of practical problems. It rarely made too sharp a separation
of "animus” and "corpus”. They have never been rendered entirely redundant elements
of possession. And whenever a question arose as to how possession is acquired, the
"corpus” and "animus” theory was the only answer. Another conclusion that follows
form the foregoing discussion of theories is that possession also carries with it right to
remain in possession unless someone else has established a superior title. It has been
suggested that “possession borrows a great deal from right is not merely a matter of
physical fact but also of right”. This principle has been well illustrated in “Armorie V.
Delamine ”. In this case, the plaintiff, a chimney-sweep’s boy, found a jewel and took ti
to a goldsmith to know its value. The goldsmith refused to return it to the boy on the
ground that the boy was not the owner. The boy was allowed by the court to recover the
jewel from the goldsmith. The boy being the prior possessor, the court held, had a better
claim to it against the whole world except the real owner, and as the defendant
goldsmith’s claim was not on behalf of the owner, the claim of the boy prevailed against
him. In other words, it may be said that the consequences attached to possession are
substantially as that attacked to ownership subject, to the question of possessory right.
Thus, in English la, if a bailee is unlawfully deprived of the goods bailed to him, he has
got all the rights of the owner against the person who has so deprived him, though he
himself is not responsible to the bailor for such loss.
CONCEPT OF POSSESSION IN INDIA
As the Romans, so also the ancient Indians evolved their own indigenous and
organizations and legal institutions. Chiefly, in India the property laws in all ancient
communities were identified with the land and the landed property was based on
individual ownership. The law of property under the ancient Hindu literature was not
based on any conjecture but was a highly technical and civilized institute. Its use and
776
enjoyment was restricted and regulated by the holy scriptures. Holding of property by
the individual was then held to help the society to go forward.
The concept of
possession, thus, under the old Hindu law was nothing but a legal contrivance rooted in
the considerations of dharrna.
Possession that was a highly technical institution in ancient India, was recognized by the
Hindu law as of two kinds namely,
i)
with title and
ii)
without title1
the possession without title was stated to have never created ownership and a person who
was in possession of a thing or land without title was considered as a thief2. At one place,
Yajnavallcya in his smriti has pointed out that a man who sees his property being enjoyed
by others and does not complain about it; he loses it after twenty years. In case of other
properties ownership lapses after ten years by adverse possession. Gautama and Narada
too agreeing with the above have stated that in land a person loses ownership after twenty
years and in wealth after ten years.
Not only the ancient laws of Hindus. Muslim law, too, attached some importance to the
concept of possession. Sir ABDUR RAHIM remarked that a man in possession, though
by a wrongful possession, has under the Muslim law advantages over the non-possessor.
The possessor is entitle to protection against the entire world except the true owner.
In India, the Britishers who brought with them the jurisprudential concept of possession,
provided two elements to constitute possession, namely,
i)
The corpus, and
ii)
The animus
1 Katyayana, Parasharamadhava, P.103
2 Mandlsk, The Vyavahara Mukha & Yajnavalkya Smriti, P.21
Ill
But in India, it is well said that the theory and practice of possession comprises not only
the right to possess and right and ability to exclude others from possession and control,
but also mental element, the “animuspossidendi”. Both occupation and intention have
necessarily been considered important to constitute possession. Unlike England, in India
it is further worth nothing that there has been followed no such distinction between
custody and possession.
The adverse possession in India has been stated to imply possession by a person holding
the land on his own behalf of some person other than the true owner having a right of
immediate possession.
The possession acquired should be adequate in certainty, in
publicity and in extent to exhibit that it is possession adverse to the competitor. The
quality and extent of right acquired through adverse possession rnsut depend upon the
claim and nature of "animus possidendi”.
It is always “animus” which has to be
gathered from the circumstances.
A study of the past as well as of the present would, however, reveal that there has been no
drastic change in the connection, is neither feasible nor desirable in India’s democratic
way of life. The emphasis, however, upon the directive principles of state policy and
change over “laissez faire” to socialistic pattern of society may necessitate the
reformation of the basic principles of property, ownership and possession.
The constitution of India in this connection provides a workable solution in accordance to
our heritage and tradition of renunciation whereby possession of all is not an end but a
means to stimulate moral and material self-enlightened interest of the individual resulting
in the purification of human spirits and motives in furtherance of the social needs of
justice and dharma.
It is, therefore, that the modern sags and seers like Gandhiji and his eminent colleague
Vinoba Bhave have stated that “every bit of land belongs to God and all kinds of
property to God also”1. Throughout the life Gandhiji held the view that the owners of
Quoted by D.P.Singh in “Property Not a Fundamental Right" peoples publishing house, Delhi, P. 109
778
property are trustees of those properties. And a trustee in law is one who owns the
property not for himself but for others, i.e., for the society or in subservience of the social
requirements.
In briefly, in ancient Indian law, title to land depended on personal possession of it,
KATTAYAN speaks of two kinds of possession, namely,
i)
Possession with title, and
ii)
Possession without title
A person not having title to possession could not claim tire right of ownership.
Yajnavalkya Smriti contains a reference to the right of prescription wherein if a person
allows the property being used by another person uninterruptedly for a continuous period
of twenty years but raises no objection to it, shall lose his ownership over that property.
Gautam and Narada Purans also contain references about acquisition of ownership of
property of uninterrupted continuous possession for twenty years in case of immovable
property and ten years of movable property.
Consequent to the introduction of common law in India during the British rule, corpus
and animus came to be recognized as essential elements of possession. The Indian law,
however, does not accept the distinction between possession and custody. Undoubtedly,
the concept of possession has great role in determining the rights and titles relating to
property.
The right of possession has been protected under the code of criminal
procedure and other statutory enactments in India".
ELEMENTS OF POSSESSION
According to MARKBY, possession is ""the determination to exercise physical control
over a thing on one’s own behalf coupled with the capacity to do so
1 Section - 145 Cr.P.C.
2 The Transfer of Property Act, 1882; The Specific Relief Act, 1963, The Indian Contract Act, 1872, etc.
779
Justice HOLME defines possession as "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 a certain
intent
According to KANT. “there must he the empirical fact of taking possession conjoined
with the will to have an external object as one \s own. "
According to ZACHARIAL, “possession is that relation between a subject matter and
man which intimates that the man has the animus domine and that he is also able to put
into execution ’’.
According to SALMOND, "the possession of a material object is the continuing exercise
of a claim to the exclusive use of it".
Again, "it is a continuing 'defacto' relation
between person and a thing which is known as possession". Actually possession is a
relation of fact and not one of right. It may be and commonly is, title of right, but it is not
right itself.
Possession is the defacto relation between the possessor and the thing
possessed.
SALMOND, however, does not think that "animus’’ should always be present in legal
possession. LIGPITOOD also supports SALMOND and holds that power to eliminate
external interference need not be an essential element of possession1.
SALMOND
illustrates his view by an example. He says that an infant has no physical capacity to
exclude others from depriving him of his possession like a strong and healthy man
nevertheless if he holds a coin with him, he would be deemed to have legal possession of
it.
According to HOLLAND, legal possession has two essential elements, namely,
i)
corpus and
ii)
animus
1 LIGHTWOOD : Possession of Land, P.l i
780
S A VIGNY also supports the view and considers "corpus possessions ” and “animus
dommi” as the two essential requisites of possession. In his view “corpus possessions ”
means effective control over the thing which in other words means exclusive use of the
thing with capacity to eliminate the interference of others.
By “animus domini”,
SAVIGNY contends intentions to hold the thing as an owner of it. Both these elements
are considered necessary for legal possession1.
1HRNG takes a sociological view of the concept of possession. Therefore, he does not
lay much stress “animus possidendi”. In his view it is quite immaterial as to how a
person intended to possess a thing but what is important is how he got it. Thus, he lays
greater emphasis on the character which determines its legally. He considers "animus ”
not as a essential element but only as supplemental to a claim of legal possession.
Sir HERNY MAINE pointed out that in early stages of development of law, physical
contract must have been deemed necessary to constitute legal possession but in actual
practice possession does not mean more physical control but the intention to possess a
thing to the exclusion of others is also equally necessary.
Justice HOLMES of USA has after analyzing the different theories of possession,
concludes that both "corpus" and “animus" are essential for legal possession.
The
former is the physical or objective element while the latter is mental or subjective in
nature. The terms “corpus ” and “animus ” have been adopted from Roman law.
There are two elements of possession and those are
i)
the “corpus ” of possession and
ii)
“animus " or the intention to hold possession.
The two elements must be present in the case of possession and neither of them alone is
sufficient to constitute possession. According to HOLLAND, “a moment's reflection
must show that possession in any sense oj the term must imply firstly some actual power
1 DIAS & HUGHES : Jurisprudence, P.315
781
over the object possessed and secondly seme amount of Mali to avail oneself of the power.
Neither the mere wish to catch a bird which is out of my reach nor the mere power which
I have without the least notion of exercising it, to seize a horse which Ifind standing at a
shop door, will suffice to put me in possession of the bird or the horse. The Romans by
whom this topic was treated with great fullness or subtlety describe those essential
elements ofpossession by the terms 'corpus' and 'animus ’ respectively
CORPUS POSSESSION
“corpus" is the effective realization in fact of the claim of the possessor. Effective
realization means that the fact must amount to the actual present exclusion of all alien
interference with the thing possessed together with a reasonably sufficient security of the
exclusive use of it in the future. The possessor has physical power or physical contact
over the thing possessed. The possessor has the absolute power of dealing with the thing
in any way he pleases. He has also the absolute power of excluding others form the
possession, private use or enjoyment of the thing concerned.
The test of possession, is sometimes the appearance of power to exclude others. The
exclusion of others may be by means of physical strength, physical barriers, concealment,
vigilance, the personal presence of the possessor, custom or the manifestation of the will
to hold or “animus domini”. The possessor may use physical force to exclude others.
He may lock up his thing to maintain his possession. He may conceal his things from
others so that they may not run away with them. He may keep a dog or a chowkidar to
protect his possession. The moral sentiment, religion or law may protect the possession
of the possessor. The same may be done by the custom of the country or the personal
presence of the possessor.
>
je
It is pointed out that it is not necessary that the possessor must have physical contact with
the thing possessed. All that is necessary is that he must have the physical power of
dealing with the thing exclusively as his own.
782
1 put some money in a box and lock up the same with the key. Although I have no
physical contact with the box, the box is in my possession s the key of the box is in my
possession. A person has some money in a pocket and some of it is dropped on the road.
He continues to be the possessor of the money fallen on the road till the same is picked
up by somebody else. When a person gives a dinner, his silver forke while in hands of
his guests, are still in his possession. In the case of tamed animals like a cow, a dog, a
horse, a bullock, etc. the owner does not lose his possession even if he loses his physical
control over them. A master may be away but he still maintains his possession of his dog
or horse. In the case of wild, animals like fish bird and other animals which are "ferae
nature ” if the owner loses physical contact with them, he also loses their possession.
They become the property of the person who captures them. In the case of India, if a bull
is set free according to the Hindu usage, he is not he property of any individual and no
person can be guilty of theft. However, it has been held in certain case that if a bull is
dedicated to an idol and allowed to move about at will, the trustee of the temple is in
possession of that bull. The fish in a creek or in an open irrigation tank are not in the
possession of the person who catches them. However, the fish in a closed tank are in the
possession of the owner of the tank.
U is to be observed that the corpus of possession is not the same as the physical power to
exclude others. A weak person may not have the power to exclude others, but he still has
the “corpus ” of possession. As a matter of fact, ‘corpus' depends more on the general
exception that others will not interferer with the control of an individual over a thing than
upon the physical capacity of an individual to exclude others.
Corpus implies two things, namely.
i)
Possessor’s physical relation to the res i.e the object; and
ii)
The relation of the possessor to the rest of the world
The first point emphasizes that there must exist some physical contact of a person with a
thing which he possesses so as to give rise to a reasonable assumption that others will not
interfere with it. The physical control of the possessor over a thing implies that others
783
would not interfere with the possessor’s right to use or enjoyment of that thing. This
assurance of non-interference can be secured in any .of the following ways:-
0
Physical power of thePossssor
The physical power of the possessor over the thing in his possession acts as a
guarantee of user of that thing. It is also an assurance against the non-interference
of others in the right of his possession. The person in possession generally use
walls, gates, doors, locks, etc. to exclude others from interfering with his legal
possession.
Pi
Personal Preference of the Possessor
In many situations mere physical preference of the possessor is enough to retain
possession although he may not have the necessary physical strength to resist
interference. For example, a coin in a child’s hand is sufficient to denote his
possession over the coin though he does not have the physical strength to retain
the coin.
Ill)
Secrecy
If a person keeps a thing which is in his possession in a hidden place, it is an
effective mode of excluding external interference and keeping that thing secured.
iv)
In modem societies, wrongful possession is not deemed with favour, therefore,
respect for rightful claim prevents others from interfering with the legal
possession of the possessor.
El
Protection Afforded by the Possessior of Other Things
At times possession of an object tends to confer possession of certain other things
which are connected with it or accessory to it. Thus, possession of land confers
possession of things that are on or under it. But the position in this regard is
784
however, not very clear as seen in the case of South Staffordhire Water Works
Co. V. Sharman1
vi)
Another measure of security of possession is the manifestation of the "animus
ciomim
The visibility of the claim is another element in the factual security of
its enjoyment.
Thus using a thing openly carries with it a “prima facie”
rightmindedness of its possession.
One notable feature of “corpus" is that possession is not lost by temporary
absence of the possessor from the object. As rightly observed by MARKBY,
"corporeal contact is not the physical element which is involved in the conception
of possession. I is rather the possibility or dealing with a thing we like and of
excluding others If we consider the various modes in which possession is gained
or lost, we shall recognize this very clearly”. An illustration would further make
the point clear. If a person throws a net in the tank to catch fishes, he does not
acquire possession over the fishes until they are caught in the net. Likewise, the
possession of a person over his pet dog which is let-loose to move about freely is
not lost during the time it is moving freely, because he still has the “corpus " and
"animus " over it
THE RELATION OF THE POSSESSOR TO THE REST OF THE WORLD
In addition to the physical control over the "res" the processor must have the ability also
to exclude others. This is the possessor’s relation to the rest of the world. There are no
hard and fast rules regarding the amount of power required to exclude others. The test is
"what is normally regarded as sufficient, provided that no one else is exercising control
to an equal or a greater degree.
The''power to exclude others is relative
The main
consideration in determining it is as to how far a society is civilized and legally
advanced In a law abiding society the hint of a legal process is enough to constitute the
ability to exclude others If there is a general expectation that others will no interfere
with my control over a thing, it is an ability to exclude others".
1 (1896)2 QB 44
785
In R.V.CHISSERS1 a person went in a shop and took some cloth to see. Then he ran
away with the cloth. He was convicted for larceny. It was held that he had not obtained
the possessions of the cloth merely by taking it. It was still in the possession of the shop
keeper.
According to KANT, “that a man entirely alone upon the earth could properly neither
have nor acquired any external thing as his own, because between him as a person in all
external objects as things, there could be no relation of obligation. It is this relation
between the possessor and other people whom he can exclude from the thing that
furnishes the necessary condition for the foundation ofpossession ”,
According to POLLOCK, “in common speech a man is said to possess or to be in
possession of anything in which he has the apparent control or from the use of which he
has the apparent power of excluding others”.
To quote SAVIGNY, “the physical power of dealing with the subject immediately and of
excluding any foreign agency over it s the 'factum ‘ which must exist in every acquisition
of possession This minimum physical power is not necessary to continue the possession
as was required to give rise to it and continuing possession depends rather on the
constant power of reproducing the original relationship at will. For this reason, we do
not lose possession by mere absence from the subject which we have once appropriated
to ourselves, although the physical relations in which we now stand to it would not have
sufficed in the first instance to obtain possession”.
According
to MARKBY, “corporeal contact is not the physical document which is
involved m the conception of possession
It is rather the possibility of dealing with a
thing as we tike and of excluding others. If we consider the various modes in which
possession is gained and lost, we shall recognize this very clearly
1 (1678) T Raymn, 275
786
According to V.D.MAHAJAN, “corpus is the effective realization infact of the claim of
the possessor. Effective realization means that the fact must amount to the actual present
exclusion of all alien interference with the thing possessed together with a reasonably
sufficient security, security of the exclusive use of it in the future. The possessor has
physical power or physical contact over the thing possessed. The possessor has absolute
power of dealing with the thing in anyway he pleases. He has also the absolute power of
excluding others form the possession, private use oj enjoyment of the thing concerned’’.
According to SALMOND, “I am in the possession of the case are such as to create a
reasonable expectation that 1 will not be interfered with in the use oj it... what measure of
security is required for possession. We can only answer : any measure which normally
and reasonably satisfies the 'animus donum ’■ a thing is possessed, when it stands with
respect to persons in such a position that the possessor, having reasonable confidence
that his claim to I will be respected, is content to leave where it is
SALMOND says that “ the necessary relation between the possessor and thing possessed
is such as to admit of his making such use of it as accords with the nature oj the thing and
of his claim to it "12.
PATON's view..he says, that, “in the 'corpus’ there are two elements
i)
The possessor’s physical relation to the res, and
u)
The relation of the possessor to the rest of the world”3
Briefly, the corpus possession is - it consists in an exclusive physical control over the
thing. There must be an ability to obtain and retain possession.
1 SALMOND • Jurisprudence
2 SALMOND • Jurisprudence
•’ PATON ; A textbook of Jurisprudence
787
ANIMUS POSSIDENDI
"Animuspossidendi” or the subjective element in possession is the intent to appropriate
to oneself the exclusive use of the thing possessed. It is an exclusive claim to a material
sobject.
The "animus possidendi” is in the conscious intention of an individual to
exclude others from the control of an object.
It is to be observed that the "animus sibi habendi ” is not necessary a claim of right. It
may be a wrongful claim. A thief has as much real possession of a thing as the true
owner. The possessor of a tiling is one who intends to act as if he has a right to that
tiling.
The claim of the possessor must intend to exclude others from the use and
enjoyment of the thing possessed by him. A mere claim to the use of a thing does not
amount to the possession of the material thing itself although it may amount to some
form of incorporeal possession. A person who has a right of way over a piece of land
does not possess the land but has his right to the use of land for a particular purpose. He
is not in possession of the land because he has not the "animus ” of exclusion. However,
exclusion of others may not be absolute. I have the possession of the land although
another person may have the right way of way over the same land. The right of way
merely puts a restriction on the sue of the land by me.
The “animus possidendi ” need not amount to a claim or intent to use the thing as owner.
A tenant or a borrower or a pledge is as much in possession of a thing as the true owner
himself. The extent and duration of exclusive use may be a short one but that constitutes
possession.
Moreover, the “animus possidendi" need not be a claim on one’s own
behalf. Servants, agents and trustees have possession of things although they possess
those things on behalf of others.
The “animus possidendi" need not be specific and may be in general terms. A general
intention to possess exclusively a class of things is sufficient to confer things in the
general category. I have a general possession of al the books in my library even if I do
now know the existence of all the books in the library. Likewise, a shopkeeper has the
general possession of all the things in his shop. A person who receives a letter comes to
788
have general possession of all that is in the letter. However, if a person buys a certain
thing which is believed to be empty and later on something is found in a secret drawer, he
purchaser does not acquire possession of the thing found in the drawer.
The subjective or mental element in possession is called “animus possidendi” which
implies intention to appropriate to oneself the exclusive use and enjoyment of the thing
possessed.
It is the conscious intention of the possessor to exclude others from
interfering with his right of possession.
HOLLAND pointed out that apart from the physical power to deal with the thing, the
possessor must also have a will to exercise such control. The following points need
special consideration in context of the element of “animus ” in legal possession:-
a)
The “animus " or desire to possess need not necessarily be rightful, it may even be
consciously wrongful. A thief has a possession of stolen things no less real than
the true owner of those things.
This is well illustrated by the case of
R.V.HUDSON1
b)
The possessor must have exclusive claim over the thin in his possession. That is,
he must intend to exclude others from use and enjoyment of that thing. The
exclusion, however, need not be absolute. For example, a person shall still be
deemed to be in legal possession of land notwithstanding the fact that some other
person or public at large, may possess a right of way over that land.
c)
The ''animus" need not amount to a claim or an intention to use the thing as
owner. Thus in case of a pledge, the pledge, has the possession of the thing
pledged although he only intends to retain it in custody, as security to ensure
repayment, of his debt.
d)
The “animus" need not be necessarily that of the possessor himself, e.g. a
servant, agent, trustee, or a bailee do not keep things in possession for their own
use but they hold them for some other person
1 (1943) 1 KB 458
789
e)
The “animus ” may not be specific, but it may be merely general. For instance, a
person who has caught fishes in his net has possession over all of them although
he does not know their exact number. Likewise, a person is deemed to be in
possession of all the books in his library although he may not even know about
the existence of some of them.
It must be stated that when a person has possession of a receptacle such as a box, cabinet
or envelop, he has also the possession of the contents thereof.
According to MARKBY, “in order to constitute possession in a legal sense, there must
exist, not oly the physical power to deal with the thing as we like and to exclude others
hut also the determination to exercise that physical power on our own behalf’
According to SAVIGNY, “every case of possession is formed on the state of
consciousness of unlimited physical power”
According to HOLLAND, “to some possibility of physical control, there must, at any
rale for the commencement of possession, be super-added a will to exercise such
control".
According to KANT,
“there must be the empirical fact of taking possession
'apprehensio ’ conjoined with the will to have an external object one‘s own
SOME IMPORTANT CASES ON POSSESSION
The following decided English cases on possession will help in understanding the
principle and the concept of possession:"
CARTRIGHT V GREEN1
In this case a bureau was delivered to a carpenter for repairs. There was some money in
the secret drawer of the bureau. The carpenter found the money and appropriated it. He
' (1808) 7 R R 99
790
was convicted for larceny. It was held that the money was in his possession until he
found it. Here “animus ” was lacking in the carpenter.
MERRY V. GREEN1
In this case a man purchased a bureau. He found some money in a drawer which he
appropriated. He was convicted for larceny on the same principle as laid down in the
above case.
i
R. V. ASHWELL2
In this case, X gave and Y received, a guinea in a dark night. Both of them believed-it to
be a shilling. Y subsequently discovered that it was a guinea and he appropriated it. He
was convicted for larceny. In appeal, the court was equally divided and, therefore, the
conviction was allowed to stand. Justice CXVE in this case observed, “a man has not
possession of that, of the existence of which he is unaware
This view found support in
R.V.Hudson also.
R.V.HUDSON3
In this case the accused received an envelope that was intended for another man of the
same name "as that of the accused". The accused kept it with him for some days and
then opened. He found inside a cheque which he appropriated. He was convicted for
larceny. It was held that the cheque did not pass into his possession till he opened the
envelope and found it. The “animus” was lacking in him before he opened the envelope.
This case lays down the proposition that the possession of the contents of a cover does
not begin until it is opened. But this principle has not been always applied in determining
the possession of a chattel on or embedded in land.
POLLOCK and WRIGHT says that the “possession of land carries with it in general, by
our law, possession of everything which is attached to or under that land”1.
' (1841)7 M GW 623
-’(1885) 16 QBD 190
' (1943) 1 ICB 458
791
IN SOUTH STAFFORDSHIRE WATER CO, V SHARMAN12
The above extract was cited with approval and the case was decided on the principle The
above extract was cited with approval and the case was decided on the principle
In this case, the plaintiff company owned a pond upon their land. They employed the
defendant to clean the pond. The defendant-during cleaning operations found golden
rings at the bottom of the pond. There arose a dispute between the company and the
defendant about the title of the rings. It was held that the company was in possession of
the rings “by virtue of their being the owner of the pond“ when the defendant found
them, and hence, the defendant acquired no title in them and the plaintiff company was
entitled to have them restored.
ELWAS V BRIGG GAS CO.
In this case the defendant company had taken a lease of some land belonging to the
plaintiff landlord for the purpose of erecting gas works on it. While the land was being
excavated they “defendant ” found a pre-historic boat six feet below the surface. It was
held that the boat belonged to the landlord and not to the defendant company.
The
landlord, being entitle to the land and in lawful possession of the same, “was in the
possession of the ground, not merely of the surface, but of everything that lay beneath the
surface down to the center of the earth’’
So far as the possession of the things lying unattached on the surface of the land is
concerned, the following cases are relevant “law is not still perfectly settled in the point
BRIDGES V. HAWKESWQRTH3
In this case a pocket book was left on the floor of the shop of the defendant shopkeeper
by a customer. The plaintiff “who also was a customer ” found it. He gave it to the
defendant for the purpose of returning it to the real owner when he was discovered. It
was held that the plaintiff, and not the defendant, first acquired possession of the book
1 Possession in the common law
2(1896) 2 Q.B. 44
.'’(1851)21 l.J QB. 75
792
“and so it belonged to him in default of the real owner
The defendant did not know of
the existence of the book before the plaintiff found it, therefore, the former had no
“animus ’’ and consequently he was not in possession of it.
R.V.MOOR1
This case was also decided on the same principle on which the above-mentioned case was
decided. In this case a bank note was dropped in the shop of the accused. The accused
found it and appropriated it knowing full well that the owner could be discovered. He
was convicted of larceny. It means that the accused was not in possession until he
actually found the bank note because the "animus ” was lacking.
Various jurists have tried to explain the principle laid down in the above cases in
different ways.
POLLOCK & WRIGHT suggest that the shopkeeper had no “de facto" control, and
hence, he was not in possession.
SALMOND says that the shopkeeper did not know of the existence of the objects,
therefore, he had no “animus". There are some other jurists who doubt the correctness of
the decision.
HOLMES view is that “there an be no 'animus domini' unless the thing is known of but
an intent to exclude others form it may be contained in the larger intent to exclude others
from the place where it is without any knowledge of the objects” existence2.
Dr.GOODHART also says that the case was wrongly decided. He too is of the opinion
that the “animus" of shopkeeper “to exclude others from the contents of the shop in
general ” was sufficiently wide to include things dropped in his shop. It is submitted that
this view is correct because it is convenient from the practical point of view also.
1 (1861) L&C 1
2 The common law
793
HANNAH V. PEEL
In this case the decision given in Bridges V Hawkesworth was followed. A soldier was
stationed in a house, the house belonged to a person who had purchased it from
somebody else but he had never occupied it. The soldier found a brooch on the top of a
window frame covered with dust. The person who owned the house took it from the
soldier was entitle to receive damages from him because he “the soldier” had the prior
possession. The owner of the house had no knowledge of the brooch and hence he was
not in possession of it. Therefore, the soldier had a beetle title. This decision too is
criticized by many on the grounds given in the preceding paragraph.
RE COHEN
In this case a contrary view was taken and in Hibbert V. Mckiernan it was held that he
golf balls lost by the players on the golf land were in possession of the golf-club because
their general “animus” to exclude others from the golf land contained the “animus” for
the golf balls also.
It has been observed earlier that possession is a fact and a right both. So far as the facts
to constitute possession are concerned, they have been discussed in some length in the
preceding paragraphs. The legal consequences attached to these facts, or in other words,
rights of the possessor shall now be discussed.
The case of N.N.Majumdar V State may be cited in which the question of animus came
up for determination before the high court of Calcutta. In this case the police made a
search of the accused’s house in the hope that the pistol would be recovered from there
but no such recovery could be made. In the meantime, the accused had a quick word
with his wife who went out and returned within three or four minutes with a pistol and
some cartridge. The police took the plea that as per section-27 of the evidence act, it
should be presumed that the pistol was recovered from the possession of the accused.
The court, however, rejected the contention of the prosecution and held that the arms act
794
being a special enactment, the fact of "animus” must be specifically proved and mere
existence of “corpus ” without "animus" is ineffective to constitute possession.
Briefly, “animus possidendi” consists of the intention of a person to appropriate to
himself the exclusive use of the thing possessed. Physical control over the thing without
the intention to claim possession over it, is ineffective.
SAVIGNY’S THEORY OF POSSESSION
SAV1GNY. on the basis of a text of Roman jurist PAUL, said that there are two elements
of possession.
According to SAVIGNY. both..
1)
The corpus of possession “copurs possessionis (popularly known as 'corpus ) "
and
2)
The animal possidendi “animus domini (known as 'animus’)” ...must be present
to constitute possession
If
Corpus
by corpus is meant an effective physical control of the object.
SAVIGNY
explaining it says : ’the physical power of dealing with (he subject immediately
and of excluding any foreign agency over it... is the factum which must exist in
every acquisition ofpossession. The immediate physical power is not necessary
to continue the possession, as was required to give rise to it; and continuing
possession depends rather on the constant power of reproducing the original
relationship at will For this reason, we do not lose possession by mere absence
form the subject, which we have once appropriated to ourselves, although the
physical relation in which we now stand to it, would not have sufficed in the first
instance to obtain possession
As regards the “corpus " of possession it is necessary that in every acquisition of
possession there must exist in the possessor a physical power of dealing with the
795
subject immediately and of excluding others. When the possession of a thing has
been acquired and that possession is intended to be continued, the possessor must
have the ability to bring forth physical power to exclude others if they try to
interfere with him in any way. However, immediately physical power of the
possessor over the thing is not necessary.
2)
Animus .
By animus is meant the mental element of the intention to hold the object as
owner against all others.
In other words, it is a conscious intention to exclude others from the object.
Without the mental element there can be no possession.
SAVIGNY’s theory explains as to why the tenant, the borrower and the agent had
not possession "of the object let, lent or entrusted to deal with to them ” in Roman
law. They had no "animus domini" as they did not intend to hold the object in
their own right.
But SAVINGY’s theory fails to explain those cases where
Roman law had given possessory right "the right to gel or recover possession" to
the persons who were not the owners of the object or property - S A VIGNY said
that those cases were anomalies and suggests that they were cases of "derivative
possession
SAVIGNY remarks thus: "animus possidendi” must be explained by "animus
domini or animus sibi habendi", and he only is to be looked on as in possession
who deals as owner with the subject of which he has the detention. That is to say,
he must contemplate dealing with it practically just as an owner is accustomed to
do by virtue of his right and consequently not as one recognizing anybody better
entitled than himself.
796
SAVIGNY’S ANALYSIS IS WRONG
The analysis of possession in Roman law given by SAVIGNY is wrong and it has a
number of weaknesses. He based his theory on the text of a single jurist, and interpreted
it without putting it in its proper context.
He wrongly assumed that "corpus" and
"animus” which were required for acquisition constituted possession itself. He did not
mark the change in the conception of "possession ” which had taken place in later times.
According to this theory, the possession was lost when either of the elements of
possession “ 'corpus' and 'animuswas lost but in actual practice possession continued
although one o the elements which was lost, and sometimes, it continued even though
both were lost. A number of instances can be produced from Roman law to show this
development.
In the eye of law a matter was considered in possession of what was held by his slave. A
theoretical exaplanation of it was given that the master had the "animus" and the
“corpus" was provided by the slave, and as the slave was possessed by the master, the
master possessed the "res” held by the slave. With the development of commerce, it
became not only difficult but impossible for the master to have a specific “animus”
towards every “res” acquired by this slave. Therefore, the rule was relaxed and the
master was considered to be in possession of whatever was acquired by his slave in
connection with the “peculiam". In this way, now master was considered in possession
of an object, without having any of the elements of the possession. Secondly, in Roman
law the “praetor ” did not protect a possession acquired unlawfully.
For example, the possession by a thief of a stolen object was not protected by law. It was
considered that a person who lost possession by violence “as by theft" was still in
possession. In this case too the elements of possession were lacking the law recognized
possession.
According to SAVIGNY, possession continued only so long as the effective physical
control over the object existed or it was reproducible at will, but in actual practice the
possession if once proved to have come into existence was considered to be continuing
797
until it was abandoned by the owner or was seized by another. If a person leaving his
property in Roman went abroad with an intention of returning back, he was considered to
be in possession of his property though he had neither the physical control of the property
nor it as reproducible at will. Thus, the instances can be multiplied to show that the
actual practice had left the classical theory "then of corpus and animus” far behind the
idea of “corpus ” and “animus ” were considerably modified, and the law proceeded more
on the basis of convenience. To this development some say that it was a sacrifice of
principle to convenience. It is submitted that it cannot be said to be a sacrifice because
principle and convenience are not two different or inconsistent things. Any theory or
principle must fit in and it must be picked up from actual practice. Generally, every rule
has some exceptions but when exceptions overwhelm the rule or eat it away, they become
the rule, and if any part of the “former" rule is left out, it becomes the exception. Thus,
SAVIGNY’s theory does not hold good and it misrepresents the Roman law.
IHERINGS THEORY
IHERING’s theory of possession is more objective and it presents a sociological
approach to possession.
He takes up the question as to why Roman law protected
possession by means of "interdicts ”? The answer, according to him, is that the persons
holding property in majority of the cases would be owners and the possession was
attributed to such person so that the "interdicts” might be made available to them.
Therefore, IHERING says that "whenever a person looked like an owner in relation to
thing, he had possession of it, unless possession was denied to him by rules of law based
on practical convenience
The "animus” element was merely an intelligent consciousness of the fact. This theory
is more in consonance with the practice'in Roman law than SAVIGNY’s theory. At the
same time, this theory is flexible. It explains those cases which SAVIGNY’s theory
found difficult to explain.
798
WEAKNESS OF IHERING’S THEORY
Though IHERING’s theory is greatly superior to SAVIGNY’s theory, this too had certain
weaknesses. It looks at possession from the point of view of “interadicts” and therefore
it is incapable of explaining the cases where law refused “possessory rights” to the
persons who were in effective physical control. The cases in which the persons did not
look like an owner “in relation to a thing” but certain purposes law recognized them to
be in possession cannot be explained by IHERING’s theory. IHERING says that such
cases are exceptions but it is submitted that they point out the narrowness of the theory.
RIGHTS OF THE POSSESSOR
POSSESSION HAS BETTER CLAIM AGAINST ALL EXCEPT THE REAL
OWNER
“Possession ” is said to be “the nine points of the law". It means that the person in
possession of an object has better claim over it against the whole world except the real
owner. -This principle has been very well illustrated in “Armorie V. Delamine”. In this
case a chimney boy found a jewel and took it to the shop of the defendant to know its
value. The defendant refused to return it to the boy on the ground that the boy was not
the owner. The boy was allowed by the court to recover it from the shopkeeper. The boy
being the prior possessor had a better claim to it against the whole world except the real
owner, and as the shopkeeper’s claim was not on behalf of the owner, the claim of the
boy prevailed against him.
In other words, it can be said that the ''consequences attached to possession are
substantially as those attached to ownership subject to the question of possessory rights"
In English law, if a bailee is unlawfully deprived of the goods bailed to him, he has got
all the rights of the owner against tire person who has so deprived him, though he himself
is not responsible to the bailor for such less.
799
POSSESSION IS A ROOT OF TITLE
Possession is a root of title. After a prescribed period it ripens into a complete and legal
title. Possession is substantive right and as such it is transferable and inheritable. The
period of the possession of all the persons claiming under the same possessor is added
together to make up the prescribed period of limitation. The persons in possession can
sue and get restrained the persons who interfere with their possession without proving
title as owner of the property.
POSSESSION IS AN EVIDENCE OF OWNERSHIP
Possession is an evidence of ownership. The possessor is presumed to be the owner until
one proves a better title to it than him. All these rules and the principles have been
recognized in almost all the legal systems.
KINDS OF POSSESSION
Possession may be of .may kinds. It may either be corporeal or incorporeal; mediate or
immediate, constructive, concurrent possession, adverse possession and so on.
11
Corporeal Possess/on
Corporeal possession is the possession of a material object, i.e. a house, land, etc.
Actually corporeal possession is genuine possession.
Corporeal possession is the possession of material things like land, house,
buildings and movables like books, chattels, etc.
In this case of corporeal
possession, the “corpus" consists firstly in confirming exclusion of other’s
interference and secondly in the enjoyment of the thing at will without external
interference. Actual use of thing is, however, not necessary. Thus a person may
keep his watch locked in a safe for several years without using.it, he would
nevertheless be deemed to be in possession of it.
The corporeal possession,
therefore, consists not in dealing with the thing but only in the powers of dealing
with it at will.
800
In Roman law, corporeal possession is called as “possessio corporis
Corporeal
possession is some form of continuing relation between a person and a material
object. It is a relation of fact and not of right. It is only a title of right and is not
itself a right. The possession of an object “corporeal possession " implies certain
rights over the object.
21
Incorporeal possession
Incorporeal possession is the possession of anything other than a material object,
i.e. possession over an immaterial thing.
Incorporeal possession, means possession of immaterial or intangible things
which we cannot touch, see or perceive. The examples are possession of a copy­
right or a trade-mark or a right of reputation, goodwill, etc. Unlike corporeal
possession, in case of incorporeal possession, actual continuous use and
enjoyment is deemed as an essential condition. The reason being that in this case
power of exercising the possession at will is not visible as an objective facts
because of its incorporeal nature.
Therefore, exercising it at will can be known only when it is actually being used.
In brief, continuous non-user may give rise to non-existence of the right of
incorporeal possession.
"Incorporeal possession' is the continuing exercise of a claim to anything else
"limn the material object". The thing so claimed may be either the non-exclusive
use of a material object “for example, a way or other servitude over a piece of
land" or some interest or advantage. Unconnected with the use of material object,
for example, a trade mark, a patent, or an office of profit. In brief, the incorporeal
possession is the possession of a right.
In Roman law, incorporeal possession is known as “possessio juris".
Some
writers suggest that possession can only be corporeal and there is nothing like
801
incorporeal possession because this concept falls short of the requisites of real
possession. It is of this reason that the Roman law calls incorporeal possession as
“quasi-possession".
SALMOND also considers that the distinction between
corporeal and incorporeal possession has no practical significance for this very
reason.
According to IHRING, both forms of possession, namely, corporeal and
incorporeal possession in fact consist, in the exercise of a right. The corporeal
possession implies certain right over an object, incorporeal possession involves
some object over which or where the right is exercised.
Therefore, really
speaking, the difference between the corporeal and incorporeal possession is that
of the degree and not of the substance
According to the Italian civil code, “possession is the detention of a thing or the
enjoyment of a right by any person either personally or through another who
retains the thing or exercise the right in his name
According to BURNS, "just as corporeal possession consists not in actual
dealing with the thing but only in the power of dealing with it at will, so
incorporeal possession consists not in the actual exercise of a right but in the
power of exercising it at will; and it is only because the existence of this power
does not become visible as an objective fact until actual exercise of the right has
taken place that such actual exercise is recognized as an essential condition of the
commencement of possession
Roman jurists used the term quasi-possession is regard to the possession of a mere
“jus”.
English law also treats incorporeal rights as capable of possession provided there
is a power of excluding others from the enjoyment of the right.
802
The “defacto
use and enjoyment of the content of a right amounts to possession.
Thus while rights over incorporeal objects cannot strictly speaking be possessed,
their exercise with the necessary “animus” is described as "quasi-possession”,
The exercise of a right of way may be described as "quasi-posession
SAVIGNY says : physical power of exclusion is the essence of possession.
SALMOND says : This view can be criticized as under:
a)
It is not necessary at commencement, to have a power to exclude others.
The true test is the “improbability of any interference” from whatever
source this improbability arises.
b)
This does not apply to, incorporeal things where neither exclusion nor the
power of exclusion is needed
3)
Modera te Possession
Possession held by one man through another is termed mediate possession.
Mediate possession is when our possession is one with someone else on our
behalf.
Moderate possession is known as indirect possession.
When that relation is
through the intervention or agency of some other person, it is called mediate
possession. If I send an agent to the bazaar to buy something and he does make
the purchase, his possession is mediate, and the possession of the agent is
mediate.
Mediate possession is the possession of a thing through another person, it is also
known as indirect possession. For instance, if I purchase a book through my
agent or servant, I have mediate possession so long as the book remains in my
agents or servant’s possession.
803
Possession is mediate or immediate SALMOND says: "one person may possess a
thing for or an account ofsomeone else. In such a case the latter is in possession
by the agency of him who so hold he things on his behalf. The possession thus
held by one man through another may be termed mediate, while that which is
acquired or retained directly or personally may be distinguished as immediate or
direct”. SALMOND points out three categories of mediate possession as follows:
IN THE CASE OF THE FIRST CATEGORY
The owner has possession through an agent or servant? who acquires and retain
possession of a thing entirely on behalf of the owner without claiming any
interest for himself. I send my servant to the bazaar on an bicycle to buy for me a
pair of socks. In this case, I have mediate possession of the bicycle and the socks.
Likewise, if I deposit certain goods in a warehouse or in a store, the latter holds
those goods on my behalf and I retain their mediate possession.
In brief, possession acquired through an agent.
IN THE CASE OF THE SECOND CATEGORY
The second mediate possession is where an object is held by a person who holds it
on his own account as well as on another account but recognizes the superior right
of the latter who can obtain it whenever he choose to demand. The person having
the superior right is in the mediate possession of the object. For example, if
someone has borrowed a book from me I am in the mediate possession of the
book.
In briefly, possession held through a borrower or hirer or tent where tire “res” ie.
the object can be demanded at will.
IN THE CASE OF THIRD CATEGORY
The third types of mediate possession exists where the immediate possession of
the object is with a person who has a claim over the object until sometime has
804
elapsed or some condition has been fulfilled.
He acknowledges the title of
another for whom he holds the object and is to deliver the object to him after his
claim has come to an end “by lapse of the time or the fulfillment of the
condition". The person whose title is acknowledged and who is to obtain it in the
mediate possession of the object. For example, if the property is lent for a fixed
time or delivered as security of the repayment of a debt, the person who lends the
property or delivers ass security is in mediate possession of it.
In briefly , where the property is lent for a fixed period of time or delivered as
security for the repayment of debt.
It is significant to note that in case of a mediate possession two persons have the
possession of the same thing at one and the same time. The existence of mediate
possession can be used against third persons only and not against the person who
has immediate and real possession of the thing. Therefore the mediate possession
obtained by the master, landlord, pawnee form the servant, tenant, pawner
respectively can used against the whole world excepting those persons through
whom immediate possession has come into existence.
The three fold categorization of mediate possession has been criticized by some
writers on the ground that in case of n agent or servant, he does not possess the
thing but merely has the custody of it. The element of “animus possidendi ” is
wanting in those cases. Again, in case of a bailment, it is the bailie and not the
bailment, who can sue for interference with the possession of the bailee because
he has the actual possession and not the bailor.
Yet another reason for not accepting the theory of mediate possession is that two
persons cannot be in possession of the same thing at the same time adversely to
each other.
As SALMOND pointed out “exclusiveness” is the essenc eof
possession1.
1 SALMOND : Jurisprudence, (12th Ed.) P.287
805
41
Immediate possession
Possession acquired or retained directly or personally is direct or immediate.
Immediate possession is also called direct possession. If the relation between the
possessor and the thing possessed is a direct one, it is called immediate
possession.
For example, if I purchase a book myself, I have immediate
possession of it without any intervening agency. The things in possession of a
master, principal and owner are said to be in their immediate possession.
Immediate or direct or primary possession
acquires or gets directly or personally.
is the possession
that a person
Such possession implies a direct and
actual hold over the thing. It implies that there is no intermediary to hold the
thing. Thus, if I have a car and I keep it in my possession, my possession is said
to be immediate; but if I give the car to my friend while I go out of Sokhda so that
my friend can use it for the time being, my friend’s possession is immediate, and
my possession is mediate since my friend is keeping the car on my behalf and I
can demand of him its possession. Whenever some property or thing is found in
the possession of one person on behalf of another, such possession is called
immediate possession of the bailee or custodian, but the person on whose behalf
the thing is possessed is called the mediate possessor.
Under the German civil code, "mittelbarer besitz”, i.e. mediate possession has
been explicitly recognized.
Thus the possession of a pledgee a mortgagee in
possession, a lessee, or a fiduciary, is called immediate possession; but the
pledgor, mortgagor, lessor, bailof, is also said to be in mediate possession.
IN ENGLISH LAW EXCLUSIVENESS IS TO RULE
The distinction between mediate and immediate possession is recognized in the
law of many countries, as in Germany. But in English law the distinction is not
of great use. The English law favours the exclusiveness of the possession, and it
806
grants possession to one person and one person alone "at a time ”,
Between
landlord and the tenant possession is with the tenant “though a distinction is
drawn that the landlord is seized or possessed of the freehold though a distinction
is drawn that the landlord is seized or possessed of the freehold and the tenant
possesses the land”. Similarly, between master and servant, the servant possesses
the good given to him by a stranger until he has appropriated them to his master
by some act. There are very few exceptions to the principle of exclusiveness in
English law. They are the cases where law allows possessory remedies to those
persons whom it does not recognize to be in possession. For principle, where
there is a simple baiment determinable at will for the bailor the bailee can
maintain trespass against a stranger. Thus though the distinction between mediate
and immediate possession is important and is of great academic interest it has
little practical value in English law. The position is same in India. The law of
“possession " in these countries can be explained without this distinction.
Briefly, the English law does not recognize the distinction between immediate and
mediate possession because at a time one and only one person can have exclusive
possession over a thing1. English law does not accept the view that the servant
possesses his mother’s goods, he only may have custody of it. The distinction
between immediate and mediate possession is, however, explicitly recognized
under the German law.
Concurrent Possession or Duplicate Possession
When two or more persons possess the same thing at the same time, but their
clams are not adverse to each other.
In the case of concurrent possession, the possession of a thing may be in the hands
of two or more persons at the same time. Claims which are not adverse and
which are not mutually destructive, admit of concurrent realization. In this case
of concurrent possession, mediate and immediate possession may exist in respect
1 PA TON G.W. : Jurisprudence (3,d Ed.) P.580
807
of the same thing. The possession of my servant over a thing of mine may be
immediate or mediate possession is also there. Two or more persons may possess
the same thing jointly. Corporeal or incorporeal possession may exist with regard
to the same material thing. I may possess a piece of land and another person may
have the right of way on the same land.
As a general proposition the maxim is that two persons cannot be in possession of
the same thing at the same, for exclusiveness of the essence of possession.
Concurrent possession arises when two or more persons possess the same thing at
the same time but their claims are not adverse to each other.
The English civil law explicitly holds that two persons cannot be in possession of
the same thing at one ad the same time1. Thus, exclusiveness is the essence of
possession because two adverse claims of exclusive use are not capable of
effectual realization.
It is, however, realized that there may be certain claims
which are not adverse and not therefore mutually destructive. Such claims could
be concurrently realized.
Such cases of concurrent possession are also called
duplicate possession and are summarized by SALMOND as follows:1)
Mediate and immediate possession may co-exist as in case of possession
of servant over the master’s things where the servant has an immediate
possession and the master has mediate possession.
2)
Two or more persons may possess a thing in common just as in case of co­
owners. This has been termed as “compossessio ” in Roman law.
3)
Corporeal and incorporeal possession may co-exist in respect of the same
material object. For example, a person may possess corporeal possession
of a piece of land while "another may have the right of way on the same
land which is incorporeal possession of it.
A may possess the land, while B has the right of way over it. In all these
cases the possession is concurrent.
1 This is expressed by the maxim : “plure eandem rent in solidum possidure nonpossunt"
808
Briefly, claims which are not adverse, admit of concurrent or duplicate
possession. Some cases are :
a)
A servant and a master have concurrent possession
b)
Common- possession by two
c)
Corporeal and incorporeal possession may exist, e.g.
A has a piece of land
B has a right of way over it.
These are the instances of concurrent possession.
61
Constructive Possession
Constructive possession is not actual possession. It is a possession in law and not
possession in fact. Tire goods sold by me are lying in a warehouse and if I hand
over the lays of the warehouse to the purchaser, the latter comes to have the
constructive possession of the thing. If I hand over the key of a building to a
tenant, I give the constructive possession of the building to the tenant.
The
handing over of the key shows that possession has changed in law although not in
fact.
According to POLLOCK, constructive possession is possession in law and not
actual possession. It is a right to recover possession. For instance, the delivery to
lay of a building or a warehouse may give rise to constructive possession of the
contents of the transferee of the key. But Professor KEETON does not recognize
this kind of possession because in this view, the delivery of key is more than a
symbolical act, witnessing that possession has changed. The key is an instrument
by virtue of which control of the building or warehouse is received and, therefore,
with the key goes the control and consequently the possession. This is, therefore,
a case of actual possession and not that of constructive possession1.
KEETON : Jurisprudence (2nd Ed) P.190
809
7J_
Adverse Possession
“Adverse possession means the possession of one person against that of another
"
person; the first mentioned person claims an exclusive right to the land of another.
If the claimant who is actually in possession carries on with “unbroken”
possession for a period e.g. of “twelveyears” or “more” and “openly” he gets a
title or a right of ownership to that land. The true owner’s title gets defeated by
the possessor who exercised the "adverse ” possession for the required length of
time.
"Title by adverse possession” is an example of a title by “perfect negative
prescription” Just as positive prescription creates a right, negative prescription,
.
either destroys or makes imperfect a legal right. A legal right is made imperfect
by imperfect negative prescription - limitation.
A legal right is “completely
destroyed by” perfect negative prescription “adverse possession".
Adverse possession implies the possession by a person initially holding the land
on behalf of some other person and subsequently setting up his claim as a true
owner of that land. If adverse possession continues peacefully undisturbed for a
prescribed period1, the title of the true owner is extinguished and the person in
possession becomes the true owner of that land.
For established adverse possession, three elements are deemed necessary viz.
1)
Continuity
2)
Adequate publicity, and
3)
Peaceful and undisturbed possession for prescribed period
In short, to be adverse, possession must be actual, exclusive, and adequate in
continuity and publicity and the exercise of possession should be without violence
and without permission.
i
In India this period is twelve years
810
81
Representative Possession
Representative possession is that in which the owner has possession of a thing
through an agent or a servant. The real possession is that of the actual owner and
not that of the representative. I put some money in the pocket of my servant to
buy certain things from the bazaar. Money in the pocket of the servant is not in
his possession.
It is a case of representative possession.
The essence of
representative possession lies in the fact that the master has the animus to exercise
control over the thin in the hands of the servant or agent.
21
Deriva tive Possession
In the case of derivative possession, the holder of the thin combines in himself
both the physical and mental elements which constitute legal possession.
A
creditor has a derivative possession of the thing pledged to him. Likewise, a
watch-maker has a derivative possession of a watch entrusted to him for repair so
long as the repair charges are not paid. A bailee has a derivative possession of the
goods bailed to him. In these cases, the title of the holder of the thing is derived
from the person who entrusts the thing. It is pointed out that if the owner of the
watch takes away the watch forcibly without making the payment, he is guilty of
theft.
10)
Quasi Possession
Possession, as a “right", is “really" with reference to “corporeal or incorporeal
property or thing”. We do not talk of possession of a right, because a right is that
is “absolutely abstract”, though we may talk of ownership of a right possession
of abstract rights ‘described by SALMOND as 'incorporeal possession ’ ” is really
what was known in Roman law as "quasi possession". Possession “which is
really understood as a right” should not be confounded with the subject matter of
that right. For example, a right of way over a piece of land, cannot be identified
with that land. Besides, as we have seen, in our discussion, under the previous
heading, there can be no “corpus possessionis ” in he case of the exercise of an
811
incorporeal right So we should better talk of “quasi possession when we talk of
”
"possession of any legal right”.
THE ACQUISITION OF POSSESSION OR METHODS OF TRANSFER OF
POSSESSION
Possession is acquired whenever the two elements of
1)
Corpus; and
2)
Animus
Are existent
and the loss of either of these elements will usually tend to destroy
possession.
Possession starts as soon as there is an “actual or constructive hold over the thing with an
intention and an ability to hold it so as to at least immediately exclude others" from
interference with the thing.
According to SALMOND, the modes of acquisition of possession are two in number viz.
1)
Taking, and
2)
Delivery
Generally, there are three known modes of acquiring possession which are as follows:
1)
By taking,
2)
By delivery, and
3)
By operation of law
il
Taking
Taking is the acquisition of possession without the consent of the previous owner.
Taking may either be rightful or wrongful. It is not necessary that the thing taken
in possession must necessarily be already in possession of any previous owner.
For instance, "res nullius", that is, a thing belonging to non, has no previous
possessor. Taking may be original or derivative. The taking is original when the
812
object taken has no owner ‘‘res nullius ” e.g. when a man catches a wild animal or
a bird, etc. When the possession of a thing which already has a previous owner is
taken, it is derivative taking. This derivative taking may be rightful or wrongful.
As pointed out by Professor KEETON, “where an inn-keeper seizes the goods of
Ins guest, who has failed to pay his bill, there is an acquisition of possession
against the will of the previous possessor. But M’here a thief steals a watch, it is
still an acquisition ofpossession against the will of the previous owner, but it is
wrongful i.e. not in pursuance of legal right".
In so far as “taking” method is known, it is either “original” or “destructive".
The “original” taking is that when the object has no previous owner.
example of it is “res nullius".
An
According to GROTIOUS, all things were
originally "res nullius". But men in society came to a division of things by
agreement. Things not so divided were afterwards discovered by individuals and
reduced by possession. Thus things came to be subjected to individual control
“ROSCOE POND, an introduction of the philosophy oflaw, P.115".
But when the possession of a thing, which has a previous owner, is taken, it is
called a “derivative" taking.
In this, taking here means acquiring possession
without the consent of the previous possessor. Such a taking may be rightful or
wrongful depending upon the circumstances in which the possession is obtained.
Thus, where the innkeeper seizes the goods of the guest who has failed to pay his
bill, there is an acquisition of possession without the consent of the previous
possessor, but it is rightful taking of possession, but where the thief steals a
watch, this is an acquisition of possession against the wishes of the true possessor,
but is wrongful since it is not in pursuance of a legal right.
Briefly, this is the acquisition of possession without the consent of the previous
possessor. It may be rightful or wrongful.
813
Delivery
Another way of acquisition of possession is by “delivery or traditio
In such a
case, a thing is acquired with the consent and co-operation of the previous
possessor.
Delivery is of two kinds, namely,
i)
Actual, and
ii)
Constructive
LL
Actual delivery
In the case of actual delivery immediate possession is given to the
transferee.
It means the transfer of immediate possession. A delivery
watch to B. This is actual delivery of possession to B. There are two
categories of actual delivery.
According to one category, the holder
retains mediate possession and according to the other the holder does not
retain mediate possession.
If I lend a book to somebody, I retain the
mediate possession of the book but if I sell the same, I do not retain any
mediate possession.
Briefly, actual delivery is the transfer of immediate possession.
It
involves transfer of a thing from the hands of one possessor to another.
Actual delivery involves immediate transfer of possession such as sale.
The delivery of a chattel “thing" on loan or deposit is also an example of
actual delivery wherein there is transfer of immediate possession but the
mediate possession is reserved with the transfer .
III
Constructive Delivery
Constructive delivery is that which is not direct or actual.
There are
certain things which cannot actually be transferred by the owner to the
purchaser or by the transferor to the transferee. In such cases, constructive
814
delivery alone is possible. There are three kinds of constructive delivery
and those are
a)
Traditio Brevi Manus
b)
Constitution possessorium
c)
Attornment
a)
Traditio Brevi Manu
The surrender of the mediate
was called as ‘‘Traditio Brevi
Manus ” the Roman law. In this there is a surrender of the mediate
possession to one who is already in immediate possession of it1.
SALMOND finds no equivalent to this term in English law hence
the same has been adopted in English law as well, e.g. if a person
gives his watch to a watch marker for repairs and subsequently
sells to him, there is surrender of mediate possession to the watch­
maker who already has immediate possession of the watch.
In other words, in the case of “traditio brevi manu" possession is
surrendered to one who has already immediate possession. In such
a case, it is only the "animus” that is transferred as the "corpus”
of possession is already with the transferee. I have already lent a
book to somebody, if I sell the same book to him, it is a case of
‘traditio brevi manu".
/
§1
Constitum Possessors i
This is just the converse of “traditio brevi manu ”. That is, in this
there is transfer
of mediate possession while the immediate
possession remains with the transferor.
Cain V. Moon (1896) 2 QB 283; Richer V. Voyer (18740 LRS PC 461
815
For example, if I purchase a car from one who habitually hires out
cars and then allow him to continue its use as a car for hire, I get
constructive delivery of the car, although there is no immediate
transfer of the possession of the car. Again, a warehouseman is in
control of of goods which belongs to him. If I purchase those
goods from him and allow him to continue possession of it in the
warehouse on my behalf, to be effectively delivered to me at
specified time, it is a case of constructive delivery to me.
cl
Attornment
In this kind of delivery, there is the transfer of mediate possession
while immediate possession is in the hands of a third person. For
example, if A has goods in the warehouse of B and they are sold
by A to C, then in this case A has actually delivered them to C as
soon as B has agreed to hold them for C and no longer for A.
il
Operation of Law
Possession may also be obtained by operation of law.
This happens when
possession changes hands as a result of operation of law.
In other words, the third mode of acquisition of possession is by the operation of
law. This mode comes into play, when goods are removed from the possession of
one person to the other by the operation of law, as in the case of death, the
possession of property passes from the deceased to his legal representatives.
For example, if a person dies, the possession of his property is transferred to his
successors and legal heirs.
It may be noted that long, continuous and
uninterrupted adverse possession for a period of twelve years extinguishes the
claim of title of the true owner and adversary’s adverse claim is established. This
effect of lapse of time on title is called “prescription” which is acquisitive. Or
positive in respect of the person in whose favour the right is created and extinctive
816
or negative in respect of the person whose right is lost or destroyed1.
Thus,
prescription i.e. lapse of time has two effects:i)
One is positive, and
ii)
The other is negative.
If is the fact of possession is destroyed, due to prescription, it is negative and if
the fact of possession is present, the right is created and the prescription shall be
positive. Prescription gives a title of right to a person because of the coincidence
of possession and ownership.
The different modes of acquisition of the possession may be summarized as
follows:
Section 15 of the Indian Easements Act, 1882
817
THE CONTINUANCE OF POSSESSION
It has been noticed that acquisition of legal possession normally involves the occurrence
of some events whereby the subject-matter comes under the control of the possessor. It
involves the presence of two elements viz.
i)
Corpus, and
ii)
Animus
i)
The elements of “corpus ” implies physical control of the thing by the possessor
and
ii)
"animus” signifies some intention on the part of the possessor to exercise control
over the subject-matter and to exclude others from it.
It must, however, be pointed out, that these two constituent elements of corporeal
possession are essential only at the commencement of possession and not for its
continuance.
In other words, once of possession has commenced the absence of the “corpus ” or “the
animus ” will not extinguish the possession, instead it shall be continued as usual. This
may be explained through few illustrations.
A person who goes for a walk leaving his things in the house, he still has the right of
possession over those things though he loses "corpus" on them temporarily while he is
away from the house. Again, if a person loses his gold ring in the street, he has now lost
control over it together with any actual likelihood that others will not interfere with the
goldring. Nevertheless, unless he actually abandons possession, the legal possession of
the ring shall remain with him.
Continuance of intention “i.e. animus” is also not deemed necessary for continuance of
possession. Thus even if I forget about the existence of certain book in my library, and
so have no specific intention of still possession it, I am nevertheless in possession of it.
818
It is only when a person loses control of the subject-matter and gives up all intention of
resuming control, then he loses possession of it in law. Thus, if I go away from my house
with no intention of ever returning or exercising any rights over it, I may be taken to have
abandoned possession.
SALMOND refer to the case of TICKNER V. HEARN1 to illustrate this point further. In
this case a statutory tenant of a protected dwelling under the rent act left the premises on
a temporary visit, became insane and remained continuously in hospital. In order to
retain possession within the act, the court found it necessary hat she should be able to
show the existence of an intention to return. On evidence this intention was proved hence
the court held that her possession was continued2
POSSESSORY REMEDIES
According to the English law, possession is a good title of right against anyone who
cannot show a better title.
Even a wrongful possessor has the rights of an owner with respect to all person except
earlier possessors and the true owner itself.
In other legal systems also, possession is considered to be a provisional title even against
the true owner.
Even if a person is deprived of a thing wrongfully, he cannot take
possession of the same forcibly. He has to seek help of the machinery of law to recover
possession of his own thing. According to SALMOND, legal remedies for the protection
of possession are called possessory remedies. Likewise, proprietary remedies are those
which protect ownership.
ji
SALMOND attributed three main reasons for extending provisional protection to
possession under the law.
' (1961) 1 All ER 65
2 SALMOND • Jurisprudence (12"’ Ed.) P.290
819
They are
i)
It seeks to prevent the evils of violent self-help.
He who tries to restore his
possession by violence and excessive use of force commits a trespass in the eyes
of law.
This provision however, has no application in case of chattels i.e.
movable property where a person can retake his chattel by use of reasonable
force.
ii)
Another reason for giving recognition to possessory remedies is to be found in
serious imperfections of the proprietary law. The procedure by which an owner
recovered his property was dilatory, cumbrous and faulty which rendered legal
mechanism ineffective.
It was highly advantageous to the plaintiff who was
deprived of his ownership.
Possession being nine points of the law, it was
deemed necessary that original position of affairs must first be restored and the
possession must first be given to him who had it first. It is only then the law shall
decide titles of the disputants.
iii) '
Yet another justification for advancing possessory remedies is to be found in the
difficulty of the proof of ownership.
It is far more earlier to prove one’s
possession than his ownership. Since possession is “prima facie" evidence of
ownership, the law presumes that continuous uninterrupted possession for a long
time entitles the possessor to claim the right of ownership. The possessor has
only to prove a prior possession while the defendant who is challenging the
possession must prove a better title than that of the possessor to rebut the
presumption against him.
In the case of India S.145 - of the code of criminal procedure-1973, and S-6 of
the specific relief act, 1963, protect possession. Under the above provisions in
case of dispossession, possession is restored by law to the dispossessed person if
he had been dispossessed without his consent of immovable property, otherwise
than in due course of law. The claimant had to prove his title separately in a court
of law. Section-110 of the Indian evidence act throws the burden of proving that
the person in possession is not the owner of one who affairs that he is not the
owner.
820
DOCTRINE OF JUS TERTII
If a person interferes with the right of possession of another and the possessor brings a
suit against the intruder, in that case the defendant can take the plea that neither he nor
the possessor has a rightful claim to possession but some third person has a title to it. In
other words, the defendant cannot take the defence that some third person has the title.
The English law, however, considers “jus terti" as a good defence in the following
circumstances:
i)
When the defendant defends the action on behalf of an by the authorization of the
true owner. ,
ii)
When he “defendant” committed the act complained off by the authority of the
true owner; and
iii)
When he has already made satisfaction by returning the property of the true owner
These may, therefore, he treated as exception to “the doctrine ofjus tertii”
POSSESSION AND LAW
It is very often said that possession is nine points of the law. This means that possession
confers upon the possessor the special requirements for success in a litigation. A person
in possession enjoys certain advantages over a person who is not in possession, and this
can be shown by referring to the various branches of law.
As regards the law of property, possession of property is one of the methods of acquiring
ownership. If there is no owner of a thing, the person who takes possession of it becomes
its owner.
Even in the case of aright which has an owner, a trespasser may take
possession of it and if he keeps that possession for the statutory period of 12 years, he
comes to acquire title to that property. His possession ripens into ownership. The period
is 30 years if property belongs to the state. It is obvious that possession puts a person in a
very advantageous position.
821
As regards the law of evidence, possession of a thing give rise to a presumption of
ownership. A person who is not in possession has to'prove his title against the person
who is in possession of a thing. The burden to prove is obviously on the person who is
not in possession and to begin with the law is on the side of the person who is in
possession.
The law of procedure recognizes certain remedies 'known as possessory remedies.
Protection is given by law to the person who is in possession. If a person is in possession
is dispossessed, he can recover possession by filing a suit under section-9 of the specific
relief act. While deciding the case, the only consideration before the court is whether the
plaintiff was in possession of the property before he was dispossessed or not.
The
question of title is not considered at all. The same applies to proceedings under section
145 of code of criminal procedure. If a person is dispossessed, he can apply to the
magistrate concerned, and if he proves his possession before dispossession the law
requires that he must be restored his possession. The justification that is put forward is
that there will be lawlessness in society if the people are allowed to take the law into their
hands and turnout forcibly those who are already in possession.
Criminal law also protects possession by making it an offence to remove property which
is in the possession of another person. This applies to the offence of theft which is given
in the name of larceny in England.
In the case of MERRY V. GREEN, a person
purchased a bureau at an auction. On search, the purchaser found that there was a secret
drawer in the bureau, and when he opened it he found that there was some money in it.
The money found in the drawer belonged to the vendor because he had sold not the
money but only the bureau. It was held that in the eyes of lawTthe vendor still continued
to be in possession of the money in the secret drawer. Consequently, it was held that the
purchaser had committed the offence of larceny.
822
DISTINCTION BETWEEN POSSESSION AND OWNERSHIP OR RELATION
BETWEEN POSSESSION AND OWNERSHIP
POSSESSION
FACT,
OWNERSHIP
RIGHT,
THIS
DISTINCTION
MISLEADING
Ownership is a kindred conception of possession, therefore, it will not be out of place to
say a few words on the relationship between the two.
SALMOND makes a distinction between the two on the basis of fact and right.
"Possession is in fact what ownership is in right. Possession is the 'defacto1 exercise of
a claim; ownership is the 'dejure ’ recognition of one. A thing is owned by me when my
claim to it is maintained by the will ofthe state as expressed in the law; it is possessed by
me, when my claim to it is maintained by my own self-assertive will. Ownership is the
guarantee of the law; possession is the guarantee of the facts. It is M>ill to have both
forms ofsecurity ifpossible, and indeed they normally co-exist1
It is submitted that a distinction on the basis of fact and right is not tenable. It has been
observed earlier that fact and right are not quite separate and independent ideas; one
cannot exist without the other. Therefore, to say that one is fact and the other is right is
misleading. Though there may be a difference of degree, both the things “fact and right"
are present in both the concepts. However, we shall mention the relation and the points
of distinction between the two.
RIGHTS OF OWNERSHIP SUPERIOR; ONE CHANGES INTO THE OTHER;
TWO SETS OF FACTS
The right of ownership is superior arid comprehensive and it includes the right of
possession. Generally ownership and possession coincide and their separation is due to
special reasons.
They are very akin to each other and are of the same species.
Ownership tends to realize itself into possession and possession tends to become
ownership.
1 SALMOND : Jurisprudence (i l11' Ed.) P.343
823
The one cannot remain divorced from the other for a very long time. Possession for a
long time ripens into ownership and ownership without possession for a long time is
destroyed. Rights called possession and ownership are attached to two different set of
facts.
The facts to which the right called possession is attached are “corpus” and
"animus". The facts to which the right called ownership is attached are possession of
“res mdlius " or prescription “possession of the objectfor a prescribed period without the
consent of the previous owner ”, or convenance form the previous owner of the object.
Sometimes, rights analogous to those of ownership may be given by the legislature to
persons of whom a defined set of facts is true, such as a patentee.
DIFFERENCE IN MODES OF ACQUISITION; DIFFERENT RULES FOR
TRANSFER; RIGHTS OF BOTH ARE SUBSTANTIALLY THE SAME
Possession and ownership differ in their modes of acquisition also.
The modes of
acquisition of possession has been discussed earlier in this chapter, and the modes of
acquisition of ownership shall be discussed in the chapter, “ownership" which follows.
The transfer of possession is comparatively easier and less technical but the transfer of
ownership in most case involves a technical process of convincing.
The rights of
possession and ownership are substantially the same. “Within the limits prescribed by
policy, the owner is allowed to exercise his natural power over the subject, matter
uninterfered with, and is, more or less, protected in excluding other people from such
interference
The owner is allowed to exclude all and is accountable to no one. The
possessor is allowed to exclude all but one, and is accountable to no one but to him
Sir HENRY MAINE suggests that historically, the concept of possession is prior to that
of ownership. In fact right of possession has evolved out the right of ownership.
According to IHERING, “possession is the objective realization of ownership".
1 HOLMES : The common law
824
According to AUSTIN, ownership in its wider sense is a right, “indefinite in point of
user, unrestricted in point of disposition and unlimited in point of duration ”, The right of
alienation of property is a necessary incident to the right of ownership, but there are many
restrictions with regard to the alienation of property today.
According to POLLOCK: ‘ownership may be described as the entirety of the powers of
use and disposed allowed by law. The owner ofa thing is not necessarily the person who
at a given time has the whole power of use and disposal; very often, there is no such
person. We must lookfor the person having the residue of all such power when we have
accounted for every detached and limited portion of it, and he will be the owner even if
the immediate power or control and user is elsewhere".
According to SALMOND, ownership in its widest sense implies "the relation between a
person and any right that is vested in him ”,
Section-145 of the code of criminal procedure, 1973 and S-6 of the specific relief act,
1963 are important enactments in the statute books of India which protect possession.
Under section-145, Cr.P.C. an executive magistrate is empowered to make enquiry as to
which of the parties was in possession at the time of his initial order without reference to
the merits of their claims and to order that if any person has been dispossessed he should
be put back in possession.
Under S-6 of the specific relief act, if any person is
dispossessed without his consent of immovable property otherwise than in due course of
law, he or any person claiming through him may by suit within six months recover
possession thereof, notwithstanding any other title that may be setup in such suit. In view
of the provisions mentioned above there is a great force in SA VIGNY’s observation that
the ground of protection of possession lay in the interest of public order and safety.
Besides S-100 of the Indian evidence act throws the burden of proving that the person in
possession is not the owner on one who affirms that he is not the owner. To recover
possession the plaintiff must show a better right in himself than is in the defendant.
Actual possession operates is notice of title to the intending purchasers of the property.
825
After the lapse of the prescribed period possession without title ripens into ownership,
and ownership without possession withers away and dies.
Briefly, possession says IHERING, is the objective realization of ownership.
Possession is a defecto exercise of a claim.
Ownership is the de jure recognition of the same.
Possession is a guarantee of fact.
Ownership is a guarantee of fact.
Possession is therefore defacto conterpart of ownership.
Ownership is a right to enjoyment and use of subject-matter with a right to deal with it.
SALMOND says ownership is the relation between a person and any right that is vested
in him.
Possession is the external relation of ownership. SALMOND says, a thing is owned by
me when my claim to it is maintained by the will of the state as expressed by law. It is
possessed by me when my claim to it is maintained by my own self assertive will.