THE NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL
SESSION 2019-20’

PROJECT OF JURISPRUDENCE II

ON

“CONCEPT OF POSSESSION AND OWNERSHIP IN A

WELFARE STATE”

SUBMITTED TO: SUBMITTED BY:

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 ACKNOWLEDGMENT
The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely fortunate to have got this along the completion of my
project work. Whatever I did is only due to such guidance and assistance and I would not
forget to thank them.

I extend my sincere thanks to everybody who helped with the completion of this project. I am
greatly obliged to our teachers Mr. XXXX and Dr. XXXX , for their exemplary guidance,
monitoring and constant encouragement throughout the course of this project. The blessing,
help and guidance given by them from time to time shall carry us a long way in the journey
of life on which we are about to embark. I am also thankful to the Library Administration for
the provision of necessary books and online resources needed for the completion of this
project.

A special acknowledgment goes to my colleagues who helped me in completing the project

& exchanged their interesting ideas, thoughts & made this project easy and accurate. I wish to
thank my parents for their undivided support and interest who inspired me and encouraged
me to go my own way, without whom I would be unable to complete my project.

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 TABLE OF CONTENTS

ACKNOWLEDGMENT............................................................................................................2

INTRODUCTION......................................................................................................................4

HYPOTHESIS...........................................................................................................................4

STATEMENT OF PROBLEM..................................................................................................4

RESEARCH METHODOLOGY...............................................................................................5

OBJECTIVE OF STUDY..........................................................................................................5

RESEARCH QUESTIONS........................................................................................................5

LITERATURE REVIEW...........................................................................................................6

EMERGENCE OF THE CONCEPT OF OWNERSHIP & POSSESSION..............................8

JURISPRUDENTIAL DEFINITION OF POSSESSION AND OWNERSHIP......................10

Possession............................................................................................................................10

Ownership............................................................................................................................10

EVOLUTION OF POSSESSION INTO OWNERSHIP.........................................................11

Common Law Concept of Possession and Ownership........................................................12

Indian Law concept of Ownership and Possession..............................................................13

Lineage of possession and ownership..................................................................................14

WELFARE STATE.................................................................................................................16

APPROACH OF THE INDIAN SUPREME COURT IN DETERMINING OWNERSHIP

AND POSSESSION.................................................................................................................18

CONCLUSION AND SUGGESTIONS..................................................................................21

Suggestions..........................................................................................................................21

BIBLIOGRAPHY....................................................................................................................22

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 INTRODUCTION
The concept of ownership and possession is one of the fundamental juristic concepts common
to all systems of law. This concept of ownership has been discussed by most of the writers
before that of possession. However, it is not the right method. The idea of possession came
first in the minds of people and it was later on that the idea of ownership came into
existence. The idea of ownership and possession developed with the development of the
civilization in the world when people started migrating and travelling from one place to
another place. But the concept does not come into play only when they stay in one place and
start living in groups, plants tree, cultivate land, use land for production and basically live in
a community, which is when the so called concept of ownership and possession came into
existence. As stated to begin with, no distinction was made between ownership and
possession. However with the advancement of civilization, the distinction became clearer and
clearer.

HYPOTHESIS
The Concept of Possession has emerged before the concept of ownership and ownership has
evolved and developed from within the concept of possession. The two terms are
interconnected and should not be studied devoid of each other, in order to form a better
understanding of the subject. The concept of Welfare state was formulated to the help each
and every individual in a verified manner and to develop the system of rights in the society,
hence for the better functioning of the society even Welfare states need to implement rules
and restrictions.

STATEMENT OF PROBLEM
The Concept of Possession and Ownership was not there from time immemorial, but rather
developed with modern times, when the locus shifted from Communal ownership to
Individual ownership. Because of this there is confusion regarding the evolution of the two
concepts i.e. which emerged first? Some jurists feel that ownership precedes possession
whereas the others feel that possession preceded ownership. Hence there is a need to discuss
the history and emergence of these concepts, vis-à-vis their application in a modern welfare
state and to study how India protects the possession and ownership rights of its citizens.

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 RESEARCH METHODOLOGY
The researcher has used analytical and descriptive style of writing. The researcher’s main
source of data collection was secondary data collected from various research papers, articles,
journals and the various websites available on the internet. The researcher has also used the
study material and video lectures provided by the University for Reference.

OBJECTIVE OF STUDY
The objective of study is:

1. Discuss the concept of ‘Possession’ and ‘Ownership’ by enlisting its history and
emergence.
2. Study the evolution of the two concepts and verify whether Ownership precedes
Possession or vice-versa.
3. Study the concept of welfare state with emphasis on development of India as a
welfare state.
4. Discuss how a welfare state helps in protecting ownership and possessory rights of
individuals.

RESEARCH QUESTIONS
Following are the research questions:

1. What do you mean by ‘Possession’ and ‘Ownership’?

2. What is history of the two terms? How did the two concepts emerge?
3. Did Ownership emerge from the concept of Possession or are the two terms devoid of
each other?
4. What do you mean by a welfare state? How did the concept of welfare state emerge?
5. Is India a welfare state? How does India regulate Ownership and Possession for the
welfare of its citizens?

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 LITERATURE REVIEW
CASES

1. Vidya Devi vs. The State of Himachal Pradesh and Others

This case discusses the limits of the power of a Welfare State. The Himachal Pradesh
HC lay down that the State Government cannot derogate the rights of its citizens. In
any situation the rule of law will prevail and a Welfare State cannot take the benefits
of the Doctrine of Adverse possession. The State needs to acquire the property by
giving reasonable and lawful consideration even if it is for welfare benefits. The case
upheld the right of ownership of a person by way of adverse possession above the
responsibilities of a Welfare State.

2. Rame Gowda By Lrs vs. M. Varadappa Naidu & Another.

Talking about possession, every owner has the right to take back possession of his/her
own property without taking the law in their own hands. The SC on this matter
reiterated that “Indian Law as a welfare state is concerned with the person in peaceful
possession and he/she is entitled to retain his/her possession and in order to protect
such possession the owner may even use reasonable force to keep out a trespasser”.
However if the possessor is in settled possession of the property, then the owner
would have to take legal recourse.

3. Bridges v Hawkesworth
In this 1851 case, a person had found some notes on the floor of the shop, and arose
was dispute about the ownership of the notes. The court held that It was held that
notes found on the floor of a shop passed into the possession of the finder rather than
the shopkeeper as the finder had acquired physical control over notes and as an
animus (intention to hold), while the shopkeeper was not aware of the notes. This case
was based on Salmond exclusion definition of ownership and is renowned for
explaining the link between ownership and possession.

JOURNAL

1. Ownership and Possession in the Early Common Law - Joshua C. Tate.

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 For many jurists it has been a bone of contention whether the Early Common Law
was influenced from the Roman law or not. There are different and contrasting
perspectives on the subject. This Article offers a new perspective on ownership and
possession in the early common law. It examines the theoretical development of
proprietary and possessory concepts in the ius commune as it would have been
understood in England in the late twelfth century. After surveying all the sources, and
including a new source in the form of ‘advowson writs’ the author concludes that
there are possible evidences of Roman law influence on the early common law.

2. Classification of Property and Conceptions of Ownership in Civil and Common

Law - Barbara Pierre.
This paper examines the classification of property in common law and civil law, by
contrasting the conceptions of ownership in each tradition. The author aims to provide
a comparative analysis of the fundamental concepts and institutions of the law of
property in each tradition. The author demonstrates that ownership in common law
insofar as it exists is constructed on the ruins of the feudal system. Having been
developed in an ad hoc manner from such origins, the law of property is seen to be an
amalgam of technical and complex principles. Ownership in civil law in contrast, is
shown to have developed from the romanisation of the feudal system. The law of
property, its principles and institutions, are more systematically and rationally
organized. They are therefore more easily assimilated and applied.

3. Protecting Possession - James Gordley and Ugo Mattei.

There is one common premise between the Continental Civil law and Anglo-
American common law that they equate right to title or ownership with possession.
The author by way of this article argues that this premise is wrong as a matter of
theory. The author explains that the supposed doctrine that possession gives a kind of
title was invented by Sir O.W. Holmes and Sir Fredrick Pollock. The author criticizes
that they did not analyze this move thoroughly, as even the courts of that time didn’t
approve of it. The author by way of this article proves that functional theory of
possession, where the possessor will have a right to possess but not the same as the
owner.

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 EMERGENCE OF THE CONCEPT OF OWNERSHIP &
POSSESSION
The concept of ownership is one of the fundamental juristic concepts common to all systems
of law. This concept has been discussed by most of the writers before that of possession.
However, it is pointed out that it is not the right method. Historically, speaking the idea of
possession came first in the minds of people and it was later on that the idea of ownership
came into existence1. The idea of ownership followed the idea of possession. The emergence
of any modern law usually draws its ancestry from the Roman law, so does the concept of
ownership and possession. The classical Roman law draws a sharp distinction between
ownership and possession2. In rough terms, ownership is title and possession is actual
enjoyment. The classical Roman jurists were careful to distinguish between the two; Ulpian
wrote that "ownership has nothing in common with possession (nihil commune habet
proprietas cum possessione)." Latin word for possession, used by the Roman jurists, is
possesio, ownership could be denoted by the words proprietas or dominium3. Dominium
denoted the absolute right to a thing. Possession implied only physical control over a thing.

The idea of ownership developed by slow degrees with the growth of civilization. So long as
the people were wandering from place to place and had no settled place of residence, they
had no sense of ownership. The idea began to grow when they started planting trees,
cultivating lands and building their homes4. The transition from a pastoral to an agricultural
economy helped the development of the idea of ownership. People began to think in terms of
mine and thine. As stated to begin with, no distinction was made between ownership and
possession. However with the advancement of civilization, the distinction became clearer and
clearer.

The Common Law notion of ownership is similar to the conception of dominium in Roman
law. According to Holdsworth, the English law reached the concept of ownership as an
absolute right through developments in the law of possession 5. The distinction between

1
Nidhi Kumari, Ownership as a Social Concept, April 6, 2015; available at:
https://www.lawctopus.com/academike/ownership-social-concept/.
2
H.F. Jolowicz & Barry Nicholas, Historical Introduction to the Study of Roman Law 259 (3d. ed. 1972).
3
Joshua C. Tate, Ownership and Possession in the Early Common Law, The American Journal of Legal
History , Jul., 2006, Vol. 48, No. 3 (Jul., 2006), pp. 280-313, available at:
http://www.jstor.com/stable/25434805.
4
Supra Note 1.
5
Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency, ed.2013 p.410.

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ownership and possession can be found in the early common law, which might be a sign that
Roman ideas had some bearing on the development of the English system.

A ‘welfare state’ is a concept of government where the state plays a key role in the protection
and promotion of the economic and social well-being of its citizens. The welfare state,
conceived within the liberal framework, involved a social consensus on a wide spectrum of
socio economic policies. Two sociological factors largely contributed to the growth of the
concept: first, increasing prosperity that produced a revolution of rising expectations; and
second, the hope and the fear generated by the newly acquired manhood franchise.6

In recent decades, the notion of an ‘asset-based’ or ‘property-based’ welfare system has

become increasingly central to debates on the restructuring of western welfare states 7. The
principle underlying an asset-based approach to welfare is that, rather than relying on state-
managed social transfers to counter the risks of poverty, individuals accept greater
responsibility for their own welfare needs by investing in financial products and property
assets which augment in value over time8.

For instance, India adopted the idea of a welfare state during Akbar’s reign wherein Akbar
had introduced the Jagirdari System i.e. the assignment of the revenue of the produce of the
land. The land was never given; it was the produce of the land that was allotted for the noble
to take from this revenue, the salary that is due to him. The ownership of the land remained
with king and the possession was temporarily transferred to jagirdars so that he could take the
produce as his salary9. This article will focus on the evolution of possession and ownership in
a welfare state with emphasis on the situation of India & how welfare states protect the
interest of individual by imposing rights and obligation on them.

6
M.M. Sankhdher, The Welfare State, (Delhi: Deep and Deep Publications) p 17, (as extracted from :
http://www.legalservicesindia.com/article/507/Concept-of-Welfare-State-and-Its-Relevance-in-Indian-
Scenario.html#_ftn6.
7
Regan, S.,& Paxton, Asset-based welfare: International experiences, London: IPPR, W. (2001). 
8
Doling, J., Ronald, R. Home ownership and asset-based welfare, J Hous and the Built Environ 25, 165–173
(2010) available at: https://doi.org/10.1007/s10901-009-9177-6.
9
Evolution of Administrative System, available at: http://content.inflibnet.ac.in/data-server/eacharya-
documents/57185ec68ae36c896622587a_INFIEP_305/109/ET/305-109-ET-V1-S1__script.pdf.

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 JURISPRUDENTIAL DEFINITION OF POSSESSION AND
OWNERSHIP
Possession

The concept of possession is though basic and essential in human life, it is a difficult to
define. There is no fixed or precise definition of possession because it is legal as well as
factual concept. Different jurists have also attempted to define it differently10.

 John Salmond: Salmond defines Possession as, "possession is the continuing

exercise of a claim to the Exclusive use of an object."
 Savigny defines Possession as, "intention coupled with physical power to exclude
others from the use of material object. Salmond criticized Savingy's definition and
ground that Savingy committed an error by including the element of physical power
in his definition11.
 Ihering: According to him, "whenever a person looked like an owner in relation to a
thing, he had possession of it unless Possession was denied to him by rules of law
based on practical convenience."

Ownership

Ownership refers to the relation that a person has with an object that he owns. It is an
aggregate of all the rights that he has with regards to the said object. These rights are in
rem, that is, they can be enforced against the whole world and not just any specific person.

 According to Austin, “ownership refers to a right indefinite in the point of user,

unrestricted in point of disposition and unlimited in point of duration”12
 Concurring with Austin’s view, Holland defines ownership as “the right of absolute
control over an object”. According to him, ownership is an aggregate of all rights
pertaining to the possession, enjoyment and disposition of an object.
 Whereas According to Salmond, “ownership, in its most comprehensive signification,
denotes the relation between a person and right that is vested in him.”13

10
Supra Note 15.
11
Supra Note 20.
12
Supra Note 33.
13
Supra Note 26.

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 EVOLUTION OF POSSESSION INTO OWNERSHIP
Human life and human society, as we know them, would be impossible without the use and
consumption of material things. We need food to eat, clothes to wear and tools to use in order
to win a living from our environment. But to eat food, we must first get hold of it; to wear
clothes, we must have them; and to use tools, we must possess them. Possession of material
things then is essential to life; it is the most basic relationship between men and things14.

To possess is to have absolute power of dealing with the thing oneself and absolute power of
excluding the action of every- body else. According to the common law, possession and
ownership is the same concept 15. The supposedly ancient Anglo-American doctrine that
possession gives a kind of title was in fact invented, by two scholars who were thoroughly
familiar with the continental debate: Oliver Wendell Holmes and Sir Frederick Pollock.
Pollock believed that having Physical hold over things signifies possession16.

In fact both Anglo American jurists and Common law equate title or ownership with the right
to possess. To quote Savigny “Possession is a physical situation that corresponds to the legal
situation called ownership”. The owner has the legal power, and the possessor the physical
power, to deal with an object as he wishes and to exclude all others from using it 17. Therefore,
according to Savigny, the question was "how possession, without any regard to its own
lawfulness, can be a basis for rights."18 Many other jurists also conform to Savigny’s view,
for eg. Pollock called attention to that in like manner discourse a man is said to have or to be
in possession of anything of which he has the evident control, or from the utilization of which
he has the clear intensity of barring others19.

Because of India’s historical past, and being devoid of any stable legal system, we have relied
of Common Law and its tenets for a long time. Common Law, which in turn relied on Roman
law mainly, was highly systematic. English & Roman law believed that possession is very
strong evidence of ownership. But the problem arose when possession become security. E.g.
pledge of goods.

14
P.J. Fitzgerald , Salmond on Jurisprudence, 265-294 (1966).
15
Reports of the United States Board of Tax Appeals, Volume V, 1927.
16
Subodh Asthana, Concept and Theories of Possession in Jurisprudence, June 2019; available at:
https://blog.ipleaders.in/theory-possession-jurisprudence/.
17
F.C. von Savigny, Das Recht des Besitzes 2-3 (6th ed. 1837).
18
James Gordley and Ugo Mattei, Protecting Possession, The American Journal of Comparative Law , Spring,
1996, Vol. 44, No. 2 (Spring, 1996), pp. 293-334; available at: http://www.jstor.com/stable/840711.
19
Supra Note 12.

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Common Law Concept of Possession and Ownership

In Common Law there are two concepts of possession, there the term is not limited only to
physical control. This is to a certain extent reflected in the expression, such as “possession in
fact” and “possession in law”20. ‘Possession in Fact’ means- which physically exists in term
of control over it. On the other hand ‘Possession in Law’ means possession which exists in
the eyes of law. It may exclude physical control over it. It is also called constructive
possession. In possession in law, even if he does not have physical control over thing he has a
right to physical control over the property 21. Even if a person does not have ‘Possession in
Fact’, but he has ‘Possession in Law’ then all the attributes of possession in fact have been
assigned to that person. Person in fact also known as custody in advanced legal systems when
given on certain terms came to be known as license22.

According to Holdsworth, English law reached ‘the conception of the ownership as an

absolute right, through development in the law of possession”23. The idea of ownership in
land was a product of the peculiar features of land tenures under the feudal system. The
‘Seisin’ was a right which was relied upon to get back the possession if the person seised was
dispossessed. It was a right to possessor. The claimant succeeded only it he proved a better
right to possess than the possessor24. Thus, it emerged in the form of a right to possess as
distinct from and superior to possession. The idea of ‘Owner’ and ‘Ownership’ in English
law has developed out of this right.

The meaning of possession and ownership changes from the situation to situation, meaning of
these terms as used by the Common Law is different from its usage in the civil law or
criminal law. So meaning and purpose of these terms may change from one branch of law to
other. There are no hard core ingredients of possession and ownership. So, the basic idea is
that of functional utility and convenience.

20
Parmee v. Mitchell, (1950) 1 All, E.R. P.872 at P.874.
21
Possession, available at: https://shodhganga.inflibnet.ac.in/bitstream/10603/71969/5/05_chapter%203.pdf.
22
Vijay Sardana, Jurisprudence - Possession, Possession-in-Fact and Possession-in-Law, 27 May 2017,
available at: https://lawnotesforstudents.blogspot.com/2017/05/possession-possession-in-fact-and.html.
23
Katyayana in Vivadaratnakara, p. 100; For details see Ganga Nath Jha, Hindu Law in its sources, vol-1, p245.
24
Barbara Pierre, Classification of Property and Conceptions of Ownership in Civil and Common Law. Revue
générale de droit, 28 (2), 235–274, available at: https://doi.org/10.7202/1035639ar.

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Indian Law concept of Ownership and Possession

Chiefly, in India the property laws in all ancient communities were identified with the land
and the landed property was based on individual ownership. 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
dharma.

Possession, which 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 title 25. In brief, in ancient
Indian law, title to land depended on personal possession of it.

In India, the British who brought with them the jurisprudential concept of possession,
provided two elements to constitute possession, namely, i) The corpus, and ii) The animus.
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 “animus possidendi”26

In ancient Hindu law also possession and ownership were two distinct conceptions. It was
laid down by ancient law-givers, such as Manu & Yajnavalkya 27that the possession of the
immovable for 20 years and of movable for 10 years gives ‘Title by prescription’. The
concept of ownership thus, in ancient India, has been conceived as which means, “ownership
is property indicative of the quality ‘in the object owned’ of being used according to
pleasure.” 28

Regarding law about ‘sale without ownership’ Katyayan said: If a man lost this chattel “and
discovers it in the possession of someone else” he should first of all, prove by means of
witnesses and other evidence, ownership of that chattel29. These texts confirm that possession
and ownership were two distinct and separate conceptions and a long possession
“prescription” could ripen into ownership.

25
Katyayana, Parashara madhava, P.103.
26
Supra Note 17.
27
Laws of Manu-VIII, available at: https://www.sacred-texts.com/hin/manu/manu08.htm.
28
Ownership, available at: https://shodhganga.inflibnet.ac.in/bitstream/10603/71969/6/06_chapter%204.pdf.
29
Katyayana in Vivadaratnakara, p. 100; For details see Ganga Nath Jha, Hindu Law in its sources, vol-1, p245.

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Lineage of possession and ownership

Possession of material things then is essential to life; it is the most basic relationship between
men and things. Human instinct being what it is, men are enticed to incline toward their own
selfish and immediate interests to the wide and long term interests of society all in all 30. For
example In R v. Chissiers31, a person came to a shop and asked for a particular kind of cloth
(linen). The shopkeeper handed over some piece of cloth to him but before any sale was
completed, he ran away with it. This was held to be larceny as there was no change of
possession until he ran away. It is clear from this case that the corpus of possession is not
necessarily synonymous with the physical power to exclude others, rather the expectation that
the possessor has the ability to exclude others.

It seems that historically first the conception of the possession came into being and then the
conception of ownership gradually developed out of it due to changes in the economic
structure of the society32. As has been discussed earlier, the concept of ownership only came
when people starting settling and forming communities and cultivating lands, etc. As Savigny
also says that possession is a physical situation that corresponds to the legal situation called
ownership, and as conformed by history, it can be said that the concept of Ownership
succeeds that of Possession33.

According to Salmond, Ownership is a relation which subsists between a person and a thing
which is the object of ownership, whereas Austin in his view focused on the three main
attributes of ownership, namely, indefinite user, unrestricted disposition and unlimited
duration34.

In the case of Bridges v Hawkesworth 35It was held that notes found on the floor of a shop
passed into the possession of the finder rather than the shopkeeper. Reason given was that as
the finder had acquired a physical control over notes and as an animus (intention to hold),
while the shopkeeper was not aware of the notes. Salmond explained by saying that the
shopkeeper had no intention to exclude people from the notes because he was unaware of the
existence of the notes.

30
Tilman Hartley, The continuing evolution of ownership, February 2019, available at:
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6372161/.
31
1678 LR 275.
32
Supra Note 24.
33
Supra Note 13.
34
V. D. Mahajan, Jurisprudence and Legal Theory, EBC, Lucknow, (5 th edn.- 1987), page 325.
35
(1851)21 LJ QB 75.

14
Ownership has a special place both in legal and social interests of our society. Not only is it
seen in our books on jurisprudence, it now also appears in our legal system in the form of
claims, privileges, powers and immunities with regard to the things we own. The concept of
ownership consists of a number of claims such as liberty, power and immunity in regard to
the thing owned. Ownership is thus a sum-total of possession, disposition and destruction
which includes the right to enjoy property by the owner36. The owner has to side by side
abide by the rules and regulation of the country.

As the relation has been established between possession and ownership, the right of
ownership is superior arid comprehensive and it includes the right of possession 37. 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. 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. 38

36
Ritwik Sneha and Rishabh Garg, Ownership, available at:
http://www.legalservicesindia.com/article/1281/Ownership.html.
37
Salmond, Jurisprudence (i l11' Ed.) P.343- "Possession is in fact what ownership is in right. Possession is the
'defacto 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 of the 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 will to have both forms of security if possible, and indeed they normally co-exist”.
38
Mayank Shekhar, Relation between Possession and Ownership, February 2019, available at:
https://www.legalbites.in/relation-between-possession-and-ownership/.

15
 WELFARE STATE
Under the Earlier legal system, all the property rights were private rights, with each
individual acquiring, exchanging and retaining only those property rights which he or she
could procure through the exercise of his or her own efforts and capital. Since persons come
into the world with unequal human, social and economic resources as a result of family
relationships, this type of system, while it emphasizes individual responsibility and reward
for personal initiative and risk taking, it also poses the possibility of social, political and
economic imbalance within the state39.

On the other hand, a ‘Welfare state’ is one in which all property rights are social rights
allocated by the state in order to maintain as equal treatment as possible 40. Such a system
faces both the risk that some members of society will accept the economic benefits of equal
treatment without assuming fully, the obligations of production of wealth to be disturbed, and
that persons placed in positions of political power will corrupt the system in order to obtain
an inordinate share of the economic benefits.41

A Welfare state is a concept of government where the state plays a key role in the protection
and promotion of the economic and social well-being of its citizens. It is based on the
principles of equality of opportunity, equitable distribution of wealth, and public
responsibility for those unable to avail themselves of the minimal provisions for a good life 42.
The concept of welfare is state is based on roman’s idea of ‘parents patria’ which means the
authority of father. The state plays a role of parent to ensure the welfare of all his subjects 43.
Welfare may have different connotations one such connotation can be related to property
rights i.e. Right to property is provided under article 300A of the Constitution of India 44. The
various amendments in the recent past like one in the Hindu Succession Act 45, which gave
equal property rights to women with a view to empower then and achieve the aim of social
justice. In the strictest sense, a welfare state is a government that provides for the welfare, or
39
Theodore J. Lowi, The Welfare State: Ethical Foundations and Constitutional Remedies, Political Science
Quarterly Vol. 101, No. 2, Reflections on Promoting "The General Welfare" (1986), pp. 197-220.
40
I. Collier, H. Roggemann, O. Scholz, H. Tomann, Welfare States in Transition, Palgrave Macmillan, Page 43.
41
The Concept of Welfare State, available at:
https://shodhganga.inflibnet.ac.in/bitstream/10603/129421/9/09_chapter%204.pdf.
42
Shraddha Ojha, Concept of Welfare State and its Relevance in Indian Scenario, available at:
http://www.legalservicesindia.com/article/507/Concept-of-Welfare-State-and-Its-Relevance-in-Indian
Scenario.html#_ftn6.
43
Supra Note 37.
44
Right To Property under the Constitution Of India: An Analysis, available at:
https://sg.inflibnet.ac.in/bitstream/10603/48090/9/09_chapter%202.pdf.
45
Substitution of the section 6 under The Hindu Succession (Amendment) Act, 2005.

16
the well-being, of its citizens completely. Such a government is involved in citizens’ lives at
every level. It provides for physical, material, and social needs rather than the people
providing for their own. The main purpose of the welfare state is to create economic equality
or to assure equitable standards of living for all 46.However, this does not mean that the State
shall acquire property and distribute it. It means that the welfare state shall recognize the
rights on the basis of first possession, sale or adverse possession. The State will recognize the
rights of the vigilant and not the indolent47.

The Supreme Court clarified the situation better in the recent judgment of ‘Vidya Devi Vs.
The State of Himachal Pradesh and Others’48 and said that State Government cannot derogate
the rights of its citizens. In any situation the rule of law will prevail and a Welfare State
cannot take the benefits of the Doctrine of Adverse possession. The State needs to acquire the
property by giving reasonable and lawful consideration even if it is for welfare benefits.

Adverse possession contemplates a hostile possession, for instance a possession which is

explicitly or impliedly willfully ignorant of the title of the true owner. Possession to be
adverse must be possession by an individual who does not recognize the other's right but
rather denies them49.

In a Welfare state, right of possessor is always protected by state as well as right of owner
like “Easement” i.e. sometimes, ownership and owner is deprived of all the rights, liberties,
power and immunities of his property when his property is transferred yet he is the owner 50.
As far as transfer of ownership is concerned, it depends on legal system and for immoveable
property, the ownership is not easily transferred as it has to be registered as per law.

46
Will Kenton, Welfare State, July 2019, available at: https://www.investopedia.com/terms/w/welfare-state.asp.
47
Singhania and Co., India: A Welfare State Is For The People And Cannot Derogate The Rights Of Its Citizens,
February 2020, available at: https://www.mondaq.com/india/human-rights/893646/a-welfare-state-is-for-the-
people-and-cannot-derogate-the-rights-of-its-citizens.
48
Civil Appeal nos. 6061 of 2020, Supreme Court of India.
49
Sri G.Shanmukha Rao, Effect of Claim of Adverse Possession in Declaratory Suits, available at:
https://districts.ecourts.gov.in/sites/default/files/Subject%20-%20II.pdf.
50
Supra Note 37.

17
 APPROACH OF THE INDIAN SUPREME COURT IN
DETERMINING OWNERSHIP AND POSSESSION
In English Law possession is a good title of right against anyone who cannot show a better. A
wrongful holder has the rights of a proprietor regarding all people with the exception of
earlier possessors and except the true owner himself 51. Many other legal systems, however,
go much further than this, and treat possession as a temporary or transitory title even against
the true owner himself. Indeed, even a wrongdoer, who is denied of his possession, can
recover it from any individual whatever, essentially on the ground of his possession 52. Even
the true owner may be forced in this way to restore it to the wrongdoer, and won't be allowed
to set up his own better title than this. He should initially surrender possession and take help
of law for the recovery of the thing on the ground of his ownership. The goal of the law is
that each owner will be entitled to retain and recover his possession, until denied of it by a
judgment as per law.

In the case of Midnapur Jamindar Company Ltd V/S Kumar Naresh, Narayan Roy and
Others53, Court Summed up the Indian law by stating that in India persons are not permitted
to take forcible possession; they must obtain such possession as they are entitled to through a
Court.

A rightful owner who has been wrongfully dispossessed of land may retake possession in the
event that he can do as such peacefully and without the unreasonable force. On the off chance
that the trespasser is in settled possession of the property having a place with a rightful
owner, the rightful owner will need to take recourse to law; he can't take the law in his very
own hands and remove the trespasser or interfere in his possession 54. The law will go to the
guide of a person in peaceful and 'settled possession' by injunction even against rightful
owner from using force or taking law in his very own hands, and furthermore by re-
establishing him in possession even from the 'rightful owner' (of course subject to the law of
restriction), if the last has dispossessed the earlier holder by use of force. In the absence of

51
Kuttan Narayanan vs Thomman Mathayi, AIR 1966 Ker 179.
52
JUDICIAL APPROACH: PATTERNS AND VARIATIONS, available at:
https://shodhganga.inflibnet.ac.in/bitstream/10603/75381/14/14_chapter%206.pdf.
53
(1924) 26 BOMLR 651.
54
Rame Gowda (D) By Lrs vs M. Varadappa Naidu (D) By Lrs. & Anr, Appeal (civil) 7662 of 1997, The
Supreme Court of India.

18
proof of better title, possession or prior peaceful settled possession is itself evidence of title;
Law presumes the possession to go with the title unless rebutted55.

Further the Apex Court in the case of Puran Singh and others v State of Punjab56, explains
the concept of settled possession and right of the possessor to protect his possession against
the owner by clarifying that it is difficult to lay down any hard and fast rule as to when the
possession of a trespasser can mature into settled possession. The court went on to explain
that, the settled possession must be effective, undisturbed, and to the knowledge of the owner
or without any attempt at concealment by the trespasser. The phrase "settled possession"
cannot be confined in a straitjacket. An occupation of the property by a person as an agent or
a servant acting at the instance of the owner will not amount to actual physical possession.

The court laid down the following tests, which may be adopted as a working rule for
determining the attributes of settled possession57;

1. That the trespasser must be in actual physical possession of the property over a
sufficiently long period;
2. That the possession must be to the knowledge (either express of implied) of the
owner or without any attempt at conceal by the trespasser and which contains an
element of animus possidendi. The nature of possession of the trespasser would,
however, be a matter to be decided on the facts and circumstances of each case;
3. The process of dispossession of the true owner by the trespasser must be complete
and final and must be acquiesced to by the true owner and
4. That one of the usual tests to determine the quality, of settled possession, in the
case of cultivable land, would be whether or not the trespasser, after having taken
possession, had grown any crop. If the trespasser had grown the crop then even
the true owner has no right to destroy the crop grown by the trespasser and take
forcible possession.

55
Poona Ram v. Moti Ram (D) Th. Lrs. & Ors, Civil Appeal No. 4527 OF 2009, the Supreme Court of India.
56
(1975) 4 SCC 518.
57
Also referred in - Sh. Sagar Chand Nayyar vs Smt. Sarishta Devi, RSA No. 94 of 2017, High Court of
Himachal Pradesh, Shimla; Kaushlendra Singh v. Uma Prakash Brahmin, Second Appeal No. 933 Of 2011,
High Court of Madhya Pradesh.

19
 Furthermore In the case of Ram Rattan and others v State of Uttar Pradesh, Supreme
Court58 has held that “no one, has a right, to dispossess the trespasser by force if the
trespasser is in settled possession of the land and in such a case except, if he is removed
in the proper way of law, he is qualified to safeguard his possession even against the
right full owner. The possession, which a trespasser is qualified for safeguard against the
rightful owner, must be settled possession, reaching out over an adequately significant lot
of time and submitted to by the true owner. A casual act of possession would not have the
effect of interrupting the possession of the rightful owner”.

Till now this thought has prevailed in the current scenario, in the recent case of Rame
gowda by Lrs v M. Varadappa Naidu and another 59, Indian Law as a welfare state is
concerned with the person in peaceful possession and he/she is entitled to retain his/her
possession and in order to protect such possession the owner may even use reasonable
force to keep out a trespasser.

58
(1977) 1 SCC 187.
59
2004 (1) SCC 769.

20
 CONCLUSION AND SUGGESTIONS
The concept of Ownership and Possession has been in our society from many ages, although
its meaning and usage have changed with the changing times. As we have already seen, they
are very akin to each other and are of the same species. These two words are used regularly in
our everyday existence without considering their legitimate occurrences or outcomes. Be that
as it may, notwithstanding when we utilize these words in our common discussion, we
associate them with certain rights and obligations. We have to remember that ownership and
possession isn't only a bundle of rights, liberties and power. It similarly stresses over with it,
contrasting worries in the possibility of obligations, liabilities and disabilities which suggest
and controls how an individual should utilize his property to serve different individuals
and/or the society. Property claimed by an individual is subject to execution for the
obligations caused by him. For example, the liability to pay property tax, wealth tax, etc, on
personal property is also imposed in the social interest by the state. These taxes are collected
to invest in public welfare.

The welfare state is such a convenient and elastic phrase that it is tailored to fit various
developments in the social and economic fields. Because the word “welfare” defied accurate
characterization, the type of changes in society that the term envisages is inexact; its
connotation is subject to conflicting interpretations. Similarly the welfare state also adopted
the concept of Ownership and Possession. Earlier, the typical individualist way to deal with
possession (as can be seen in Austin’s view) gradually shifted into society based. From
ownership as a fundamental right of property to the needs of individuals and one's obligation
towards others. It came to be perceived that restrictions are fundamental to the idea of
property, and not an exemption to a generally boundless right. Still these changes are
sometimes not beneficial to all the members of the society and the state needs to take that into
account.

Suggestions

1. The state should not interfere with any individual’s adverse possession even if it was
for public good.
2. There should be set criterion and boundaries in which the state can exercise its power
to interfere with anyone’s personal rights to ownership and possession as had been
stated by the courts on multiple occasions.

21
 BIBLIOGRAPHY
Books

1. V. D. Mahajan, Jurisprudence and Legal Theory, EBC, Lucknow, (5 th edn.- 1987),

page 325.

Cases

1. Parmee v. Mitchell.
2. Bridges v Hawkesworth.
3. R v. Chissiers.
4. Vidya Devi vs. The State of Himachal Pradesh and Others.
5. Midnapur Jamindar Company Ltd vs. Kumar Naresh, Narayan Roy and Others.
6. Rame Gowda (D) By Lrs vs. M. Varadappa Naidu (D) By Lrs. & Anr.
7. Puran Singh and others vs. State of Punjab.
8. Ram Rattan and others vs. State of Uttar Pradesh.

Journal

1. Joshua C. Tate, Ownership and Possession in the Early Common Law, The American
Journal of Legal History, Jul., 2006, Vol. 48, No. 3 (Jul., 2006), pp. 280-313.
2. Regan, S.,& Paxton, Asset-based welfare: International experiences, London: IPPR,
W. (2001). 
3. Doling, J., Ronald, R. Home ownership and asset-based welfare, J Hous and the Built
Environ 25, 165–173 (2010).
4. James Gordley and Ugo Mattei, Protecting Possession, The American Journal of
Comparative Law, Spring, 1996, Vol. 44, No. 2 (Spring, 1996), pp. 293-334.
5. Barbara Pierre, Classification of Property and Conceptions of Ownership in Civil and
Common Law, Revue générale de droit, 28 (2), 235–274.
6. Theodore J. Lowi, The Welfare State: Ethical Foundations and Constitutional
Remedies, Political Science Quarterly Vol. 101, No. 2, Reflections on Promoting
"The General Welfare" (1986), pp. 197-220.

22
Internet Articles/ Blogs

1. Nidhi Kumari, Ownership as a Social Concept, April 6, 2015; available at:

https://www.lawctopus.com/academike/ownership-social-concept/.
2. M.M. Sankhdher, The Welfare State, (Delhi: Deep and Deep Publications) p 17, (as
extracted from: http://www.legalservicesindia.com/article/507/Concept-of-Welfare-
State-and-Its-Relevance-in-Indian-Scenario.html#_ftn6.
3. Subodh Asthana, Concept and Theories of Possession in Jurisprudence, June 2019;
available at: https://blog.ipleaders.in/theory-possession-jurisprudence/.
4. Vijay Sardana, Jurisprudence - Possession, Possession-in-Fact and Possession-in-
Law, 27 May 2017, available at:
https://lawnotesforstudents.blogspot.com/2017/05/possession-possession-in-fact-
and.html.
5. Tilman Hartley, The continuing evolution of ownership, February 2019, available at:
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6372161/.
6. Ritwik Sneha and Rishabh Garg, Ownership, available at:
http://www.legalservicesindia.com/article/1281/Ownership.html.
7. Mayank Shekhar, Relation between Possession and Ownership, February 2019,
available at: https://www.legalbites.in/relation-between-possession-and-ownership/.
8. Shraddha Ojha, Concept of Welfare State and its Relevance in Indian Scenario,
available at: http://www.legalservicesindia.com/article/507/Concept-of-Welfare-State-
and-Its-Relevance-in-Indian Scenario.html#_ftn6.
9. Singhania and Co., India: A Welfare State Is For The People And Cannot Derogate
The Rights Of Its Citizens, February 2020, available at:
https://www.mondaq.com/india/human-rights/893646/a-welfare-state-is-for-the-
people-and-cannot-derogate-the-rights-of-its-citizens.

23