POSSESSION AS THE ORIGIN OF PROPERTY

JURISPRUDENCE - II

SUBMITTED BY:
YASH GOYAL
UID - SM0118062

BA.,LLB (Hons.)
2nd Year, Semester – 4th

FACULTY IN CHARGE

MR. SAHEB CHOWDHURY

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY

ASSAM
 TABLE OF CONTENTS

CONTENTS
1. INTRODUCTION
1.1 ABSTRACT
1.2 SCOPE AND OBEJCTIVE
1.3 RESEARCH METHODOLOGY
2. CONCEPT OF PROPERTY AND ITS ACQUISITION
3. CONCEPT OF POSSESSION AND ITS KIND
4. LEADING CASES (POSSESSION OF GOODS AND LAND)
5. JURISPRUDENTIAL ANANLYSIS OF POSSESSION AS THE
ORIGIN OF PROPERTY
6. CONCLUSION
1. INTRODUCTION
1.1 Abstract

Possession in any sense of the term must imply, first, some actual power over the
subject possessed, and secondly, some amount of will to avail oneself of that power.
Neither the more wish to catch a bird which is out of one’s reach , nor the more power
which one have , without the least notion of exercising it, to seize a horse which one
find standing at a shop door, will suffice to put oneself in possession of the bird or to
the horse. Modern authorities treat the facts of possession (generally understood as
some function of physical control and intention) as a causative event, sufficient to
generate for the possessor a general property right in the thing possessed. This general
property right has the content of ownership, and exists alongside and notwithstanding
the continuing general property right(s) of any person(s) better entitled (a loser of
goods, an ousted proprietor of land). In this way, the doctrine of “relativity of title”
becomes a doctrine about the permissible existence of multiple, competing property
claims to land and goods, and law functions to resolve binary disputes between rival
claimants as and when they manifest. Possession stands in the front line as a sufficient
foundation for any claim, since the person who proves the earlier possession
necessarily proves the earlier (and therefore better) property right. This project tries to
deal with concept of possession and property and also tries to analyse the concept of
possession as the origin of property.

1.2 SCOPE AND OBJECTIVE

The scope and objective of the project is to study about the concept of property and
possession and to do an analysis of possession as the origin of property

1.3 Research Methodology

In this project, the materials needed where available in libraries, archives and other
data-bases. Various types of journals, articles and reputed websites were used to get
the adequate data essential information for this project. Researcher also found several
reputed websites and online data-bases and archives which were very useful to better
understand this topic.
 2. CONCEPT OF PROPERTY AND ITS ACQUISITION

In its widest sense "property includes all the legal rights of a person of whatever
description including thereunder personal as well as proprietary rights. In a narrow
sense, property includes the rights of a person and not his personal rights. Eg.: Land,
Chattels, Stocks, Patent rights, Trade marks, Copyrights etc. are property. Broadly
there are two kinds of properties. Corporeal and incorporeal (moveable and
immoveable.) Real and personal come under corporeal. Right in-propria and right in
re-aliena come under incoporeal property.1

Modes of Acquisition:
1. Occupation or possession:
In case of 'Res nullius' (a thing without an owner) anyone is at liberty to take and keep
it and he makes it his own by the very act of taking possession. The possession of the
material object is the title to the ownership of it. Possession is the objective realisation
of ownership. If a possessory owner is wrongfully deprived of the thing, he can
recover it. A person in possession is deemed to be the owner until and unless proved
otherwise. A person in lawful possession cannot be ousted out, even by the owner,
without observing the due course of law.
2. Prescription:
It is a mode of acquiring property. May be defined as the effect of lapse of time in
creating or destroying rights. It is the operation of time as a vestitive fact. It is of 2
kinds:
Positive or aquisitive and negative or extinctive. In the positive prescription it is a title
or right; but in negative prescription it is a destructive fact. The rational basis of
prescription is the coincidence of possession and ownership of fact and right.
3. Agreement: Includes not merely contracts but all other bilateral acts in the law.
Agreement is of 2 kinds namely.
1) Assignment and 2) Grants.

1
M. S. RAMA RAO, JURISPRUDENCE[ Legal Theory ]
By the former existing rights are transferred from one person to another, By the latter
new rights are created by way of encumbrance upon the existing rights of the grantor.
E.g.: Leases:Agreement is either formal or informal.
4. Inheritance: On the death of the owner heritable rights of deceased survive to the
heirs. Personal rights are generally not heritable. Proprietary rights are usually
heritable. The representative bears the personality of the deceased and has
vested in him all the inheritable rights. That is, rights are vested in the heir.
 3. Concept of Possession and its kind

It is very difficult to define the concept of"Possession". "Possession is the most basic
relation between man & things. (Salmond) It is prima facie evidence of ownership. In
fact possession is considered as "nine-points" (out of ten) of law. The meaning is that
it is an evidence of ownership, and he who interferes, must prove his better right or
title, over the person in possession. Legal possession should have two elements corpus
(physical) & animus (or mental element) to the exclusive use of the thing.

POSSESSION in fact :-
'It is a relationship between a person and a thing" (Salmond)To possess means to have
physical control. Such a control is relative i.e., (1) it may be absolute e.g. a ring a
person wears; (2) it may be to exclude other persons from interfering i.e., to keep a
thing is a safe.

Two conditions are essential: (i) corpus i.e., to use the thing possessed and (ii)
Animus (intention) to use it to oneself exclusively. Hence, what is required is that the
person should have a general control over the thing & should be capable of using it,
excluding others. Then there is "possession in fact".2

Possession in Law :-
Law given protection to possession. The person in possession has a right in rem.
When he is wrongfully dispossessed, the court first determines whether the plaintiff
was in possession, and, if so he is protected. If A takes away B's watch, law gives
possessory remedy to B. Legal possession is different from physical possession. A's
guests at dinner are provided with spoons, forks etc, Guest has physical possession, he
is not entitled to take away the spoons. Court generally decides in case of dispute,
who had the better title. In Bridges V Hawksworth, a bundle of currency notes, was
found by a customer C, on the floor shop of A. The owner could not not be traced.
Held, Q.the finder was entitled… In Armory V Delamorie, the Chimney sweeper C

2
ibid
found a golden ring when he was sweeping. He gave it to B Goldsmith's servant for
valuation. B refused to return. Held C had a better title. Possession in law or legal
possession should have corpus and animus. Corpus means effective control over the
thing & to exclude others. Animus is intention to have it as owner. However a child
with a coin in its hand, may not have power to exclude others, but still it has
legal possession.
 4. LEADING CASES(POSSESSION OF GOODS AND LAND)

(1) Possession of goods

In Armory v Delamirie a chimney-sweep’s boy found a jewel ring and took
it to a jeweller “to know what it was”.The jeweller removed the stone, returned the
empty socket to the boy, and refused to give back the stone. The boy brought
proceedings at the King’s Bench, and successfully recovered damages to “the value of
the best jewels” that might have been set in the socket.

Pratt CJ held: That the finder of a jewel, though he does not by such finding acquire
an absolute property or ownership, yet he has such a property as will enable him to
keep it against all but the rightful owner, and consequently may maintain trover. 3

An assumption-of-duty-based account of Armory is consistent with the later

decision in Bridges v Hawkesworth, where the Divisional Court allowed the claimant
finder to recover the value of a packet of banknotes found on the retail premises of the
defendant. Again, the court did not engage a corpus/animus possession formula, and
specifically it did not consider whether the defendant had manifested an intention to
exclude others from things which might be found lying unattached on the premises.

Jeffries v Great Western Railway Co can be understood as the first of these cases; or
at least, it seems to have been the first conversion decision where a
claimant-possessor was successful notwithstanding the absence of any voluntarily
undertaken obligation to account for the value of the goods to some other. The
defendants had seized from the plaintiff certain trucks held by the latter under an
assignment from a bankrupt.The court found for the claimants, and expressed its
decision in language which gives the form to our modern rule. So Lord Campbell CJ
confirmed that “against a wrongdoer possession is title”; Wightman J spoke of “the
prima facie right arising from possession”; and all denied to the defendants the ability
to plead a ius tertii defence in denial of the plaintiff’s title.

3
Robin Hickey, “Possession as a Source of Property at Common Law”, Published by Edinburgh University Press
Three things are worth noting about Jeffries. First, the idea that possession without
more generated title was hotly disputed in argument, and in expressing the claimant’s
entitlement to sue in the terms of possession, the court considered itself to be making
a novel decision.This gives lie to the view sometimes canvassed that common-law
rules about the sufficiency of possession are of “ancient” provenance. Secondly, again
there was no substantive discussion or analysis of the legal meaning of “possession”,
and no mention of the corpus/animus formula in the judgment. Thirdly, in finding for
the claimant, the court seems primarily to have been motivated by a decision to
restrain violence

(2) Possession of land

According to the modern law, the proposition that possession generates property is
thought to be as true in the case of land as goods. The leadingcase is Asher v
Whitlock, which appears to hold that possession of land generates an original fee
simple estate, the most extensive right in respect of land recognised by English law,
and one that for most purposes approximates to ownership. In Asher, one Thomas
Williamson enclosed land from wasteland and built a cottage. By his will he devised
the land and cottage to his wife for life or until she remarried, remainder to his only
daughter “in fee”. At the date of Thomas’s death, the limitation period had not expired.
The claimant was heir at law of the daughter. The defendant was the second husband
of the wife, who continued to reside in the cottage after the wife’s death. The Queen’s
Bench held that the claimant was entitled to recover the land.

First, the dominant concern in argument and the judgment is a broad impression of
inequity, reflecting a considerable lack of sympathy for the defendant, and
specifically a concern to ensure that he did not at once benefit from and dispute
Thomas’s will.

Secondly, while possession is said to count as “good title”, there is no further analysis
or exegesis of what this means. To the extent that it envisages a transferable, and
particularly a descendible right, it implies the generation of property; but again the
rationale for such generation is plural.4

Finally, and again, there is no reference to any corpus/animus formula.

4
ibid
 5. Jurisprudential analysis of Possession as the origin of Property

Possession as a set of facts generate a proprietary entitlement in a very full sense. The
right resulting from possession was a “definite legal relation” which attracted the
standard advantages of ownership. In arguing for the existence of this ”definite legal
relation”, major premise was that possession made available legal protection. The
treatment of “title by possession” began with this proposition: Existing possession,
however acquired, is protected against any interference by a mere wrongdoer; and the
wrongdoer cannot defend himself by showing a better title than the plaintiff’s in some
third person through or under whom he does not himself claim or justify. This
proposition was true equally of goods and land, in the actions of trover and ejectment
respectively, and his conflation of possession and seisin allowed him to treat trover
and ejectment coterminously in his consideration of the right resulting from
possession. Moreover, since the cases made clear that the possessor’s right was
exigible against any defendant, and not vulnerable to a defence of ius tertii, it
followed that possession confers more than a personal right to be protected against
wrongdoers; it confers a qualified right to possess, a right in the nature of property
which is valid against every one who cannot show a prior and better right. Once the
law had gone so far as to recognise this right accruing to the possessor, that
necessarily it must go further, offering protection not just to the possessor, but also to
her successors and assigns. The possessor would deal with her goods. She would sell
them, give them, or bequeath them, and her transferees should be afforded the same
degree of legal protection, because “the general reasons of policy are at least as strong
in their favour ... their case at least as meritorious”. Accordingly the right arising from
possession must also be capable of transfer, and statement of the right took on a very
substantive flavour: As against strangers, the right founded on possession has the
incidents of ownership and is transmissible according to the nature of the subject
matter: we may say compendiously that Possession is a root of title.
 6. Conclusion

Possession generates entitlement, but this proposition seems surprisingly novel, and
may not in the end be suitable for universal application. At the very least, lawyers
need to articulate more fully the reasons why and circumstances in which the
consequence of possession should be the acquisition of an original property right by
the possessor. This entails deeper recognition of the history of possession in the
law, including its peremptory connection to procedural learning and rationalisation.
When these connections are appreciated and understood, they explain equally the
need for and possibility of reappraisal. There is roomCto reconfigure the responses to
possession, such that sometimesCpossession generates a property right, and
sometimes a personal right. In the latter sense, it seems possible that the common law
of possession might not be so distant from civilian systems as prima facie it appears,
at least insofar as the response in a Jeffries situation should be something very close
to a possessory interdict.