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Possession - Ravneet Kaur
Possession - Ravneet Kaur
Possession - Ravneet Kaur
1. Introduction:-
(a) Corpus possessionis:- when person simply has physical control over the
thing, it is called corpus possessionis or physical possession. In this case,
the person having only corpus possession and there is no animus, i.e.
mental element to hold possession and exclude others from interference in
his possession.
(b) Civilis possessionis:-when person having exclusive control over a thing, it
is called civilis possessionis, or legal possession. In this possession, both
elements corpus and animus exists. The person is in physical control of the
thing and also had the power to exclude others from interference in his
possession.
(i) According to Holland, legal possession has two essential elements:- (a)
corpus; (physical control) (b) animus (which means intention to exclude
others from interference).
(ii) According to Savigny, the essential elements of possession are:-
(a) Corpus possessionis; which means effective control over the thing to
the exclusion of others.
(b) Animus domini; which means intention to hold the thing as an owner
of it.
(iii) According to Salmond, “Possession consists of corpus possessionis
and animus possidendi.”
(iv) Henry Maine pointed out that in early stages of development of law,
physical possession must have been deemed necessary to constitute
legal possession but in actual practice, possession does not mean mere
physical control but the intention to possess a thing to the exclusion of
others is also equally important.
(v) Justice Holmes of USA after analysing the different theories of
possession concluded that both corpus (it is the physical or objective
element) and animus (it is the mental or subjective element) are the
essential for legal possession.
7. Theories of Possession:-
Various jurists have developed their theories of possession
on the basis of analysis of the concepts of possession in fact and possession
in law.
(i) Savigny’s Theory of Possession:-
Savigny founded his theory of possession
of the text of Roman jurist Paul and emphasised that possession has
two basic elements, namely, (a) corpus possessionis, and (b) animus
domini.
By corpus, he meant effective physical control of the thing, that is,
immediate physical power to exclude others from interference.
By animus, he meant mental conscious or intention to hold the
object or thing as owner against all others.
Savigny asserted that there can be no possession without animus, i.e.
mental element.
8. Kinds of Possession:-
Possession may be of different kinds. Examples are as
follows:-
(i) Corporeal and Incorporeal Possession:-
Corporeal possession Incorporeal Possession
(a) Possession of material (a) Possession of immaterial
objects/things like land, or intangible things
house, building and (things which we can’t
movables like books etc. see, tough or perceive) is
is corporeal possession. called incorporeal
(b) Actual use of thing or possession. E.g. right of
object is not necessary in way or right to light,
case of corporeal copyright, trademark,
possession. What is more right to reputation.
necessary is the existence (b) In case of incorporeal
of the legal right to possession, actual use
exercise exclusive control and enjoyment is deemed
over corporeal thing. e.g. as an essential condition
a person may keep his because possession is
watch locked in a safe for visible only when it is
several years without actually used or enjoyed
using it, he would over an incorporeal thing
nevertheless be deemed to and non user may give
be in possession of it as h rise to the extinction of
he has the right to the right of incorporeal
exclusive control over it. possession.
(c) Corporeal possession is (c) Incorporeal possession is
called the possession of a called as the possession
thing. of a right.
(ii) Mediate and Immediate Possession:- (this distinction is only
recognised under the German law and the English law does not
recognise the distinction as under English law a servant or agent
does not have possession over the thing, but only have custody of
it).
Mediate Possession/Indirect Immediate Possession/Direct
Possession. Possession
(a) Mediate possession is (a) Immediate Possession is
the possession of a thing the possession of a thing
which is acquired which is acquired or
through another person. retained directly or
It is also called indirect personally. It is also
possession. e.g. if I ask called direct possession.
my friend or servant to e.g. if I purchase a book
buy a book for me, I myself, I have immediate
acquire mediate possession of it.
possession over the book (b) In case of immediate
through him. Once he possession the thing is
hands it to me my possessed by only one
possession becomes person at a time.
immediate.
(b) In case of mediate
possession two persons
have the possession of
the same thing at the
same time. E.g. the thing
or object is possessed by
the agent or servant
(having immediate
possession) for another
person, i.e. landlord,
master etc. (having
mediate possession) at
the same time.
(iii) Concurrent Possession or Duplicate Possession:-
Concurrent possession:-
(a) General Rule of Law:- It was the maxim of English civil
law that two person can’t be in possession of the same
thing at the same time. It is provided in the maxim “plures
eandem rem in solidum possidere non possunt”.
This principle is based on the thought that exclusiveness
is the essence of possession because two adverse claims of
exclusive use are not capable of effectual realisation.
Exception:-
There are certain claims which are not adverse
or are not destructive to each other can be held by two
persons at the same time.
e.g.
(a) mediate and immediate possession can co-exist in two
persons at the same time.
(b) two or more person may possess a thing in common
just as in the case of co-ownership.
(c) corporeal and incorporeal possession may co-exist.
E.g. B has a right of way over the land of A. In this case,
A’s possession is corporeal and B’s possession is
incorporeal.
(a) By Taking:-
Taking is the acquisition of possession without the consent
of the previous owner. However, it is not necessary for taking that the
thing taken in possession must necessarily be in possession of any
previous owner. For example, res nullius (a thing belonging to no one)
has no previous owner.
Taking may be original or derivative.
Original taking: the taking is original when the object taken has no
owner (res nullius). E.g. when a person catches a wild animal or bird
etc.
Derivative taking:- when the possession of a thing which already has
a previous owner is taken, it is called derivative taking. This derivative
taking may be rightful or wrongful. E.g. when the shopkeeper to whom
watch has given for repair and the person doesn’t pay the bill for repair,
then he can keep the possession of the watch till the payment is made,
tt is rightful taking the possession. But when the person paid the repair
bill but the shopkeeper does not give the possession of watch to the
rightful owner, it is taking the possession wrongfully.
(b) By Delivery:-
When the person acquires the possession of a thing with
the consent or co-operation of the previous owner, it is known as
acquisition of possession by delivery.
Delivery is of two kinds: actual and constructive.
Actual Delivery Constructive Delivery
Actual delivery is the transfer of In case of constructive delivery,
immediate possession. It is the goods or things are not physically
transfer of a thing or object transferred. It is the intention
physically from one possessor to (animus of the persons concerned)
another. It involves immediate which is essential.
transfer of possession. E.g. sale,
delivery of the keys of the house Constructive delivery is of 3
is delivery of the house itself kinds:-
because it gives access to the (a) Traditio Brevi Manu(there is
house. no equivalent term of this in
English law so the same
term has been adopted) :-
The
surrender (transfer) of
mediate possession was
called ‘traditio brevi manu’
in Roman law. In this, there
is surrender of the mediate
possession to one who is
already in immediate
possession of it. E.g. if a
person gives his watch to a
watch-maker for repair and
subsequently sells it to him,
there is surrender of mediate
possession to the watch-
maker who already has
immediate possession of the
watch.
(b) Constitutum Possessorium:-
This
is just the opposite of
traditio brevi manu, that is,
in this there is surrender
(transfer) of mediate
possession while the
immediate possessioin
remains with the transferor.
E.g. a warehouseman
(suppose A) is in control of
100 bags of cement which
belongs to him. If I purchase
those 100 bags of cement
from him and asks him to
have continue possession of
those bags on by behalf and
he agrees to hold them then
this is the case of
constitutum possessorium.
(c) Attornment:-
In this type of
constructive delivery, there
is transfer of mediate
possession while immediate
possession is in the hands of
a third person. E.g. if in the
above example, if I sell
those 100 bags of cement
which are in the warehouse
of A to another person
(suppose B), then in this
case I have actually
delivered the cement to B as
soon as A has agreed to hold
them for B and longer for
me.
Possessory Remedies:-
Sections 5, 6,7 and 8 of the Specific Relief Act, 1963 deal with
possessory remedies.
(a) A person entitled to possession of specific immovable property may
recover it in the manner provided by section 5 of CPC, 1908.
(b) Under section 6 of SRA, if a person in possession of immovable
property whatever be his title, is ousted illegally from his possession
without his consent is entitled to recover back his possession, provided:-
(i) He must institute the suit within 6 months of his dispossession.
(ii) No such suit can be instituted against the Government.
Further, any other person can establish his title to such property and
recover the possession under Section 6 of SRA.