Jai Narayan Vyas University

Jodhpur
Faculty of law

SESSION = 2020-21
SUBJECT = JURISPRUDENCE
TOPIC = OWNERSHIP AND POSSESSION

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B.A.LL.B 2ND SEM
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POSSESSION
According to Salmond, in the whole range of legal theory, there is no conception more
difficult than that of Possession.  Possession is the most basic relation between man and a
thing. Possession is an evidence of ownership.

1) Meaning:

          "Possession" literary means physical control over a thing or an object. It expresses the
closest relation of fact that can exist between a thing and the person, who possess it. In law,
possession means it includes not only physical control over a thing but also an intention to
exercise that physical control. Example: A has an article in his hand. In other words, he is in
possession of that article. The person who is in possession is called a 'Possessor'. In human
life, consumption of material things is very essential and it would be Impossible without the
position of the material things. Therefore the concept of possession is of utmost practical
importance in human life.

2) Definition:

              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. Supreme Court in Superintendent Remembrancer Legal Affairs vs Anil
Kumar, AIR 1980 SC 52, held that it is impossible to work out a completely logical and
precise definition of Possession uniformly applicable to all situation in the context of all the
statutes.

It is very difficult to define the term Possession. Some Jurists have given different definitions.

John Salmond:
                 Salmond defines Possession as, "possession is the continuing exercise of a claim to
the Exclusive use of an object."

Savigny:
                 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 definition.

 O.W. Holmes:
                 Holmes 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 certain intent."

 Maine:
                   Maine defines the possession as, "physical detention coupled with the intention to
hold the things detained as one's own.
Sir Frederick Pollock:

                   Sir Frederick Pollock defines Possession as, "In common speech a man is said to
possess to be in possession of anything of which he has the apparent control from the use of
which he has apparent power for excluding others."

Ihering:
                   The best among them is the definition given by Ihiring. 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."
3) Elements of Possession

       From the above definition we could see in that possession has two essentials -  

1) Actual power over the object possessed. i.e. corpus possessionis and

2) Intention of the possessor to exclude any interference from others. i.e. animus possidendi.

        According to John Salmond, both corpus and animus must be present to constitute

Possession. Ownership is a legal concept whereas Possession is factual as well as legal
concept.

  The term CORPUS and the term ANIMUS, both the terms borrowed from the Roman Law.

4) Categories of Possession:   Possession is divided into two categories.

                a) Possession in fact and 

                b) Possession in law.

         Possession in fact is actual or physical possession. It is physical relation to a thing.

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 position 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.

6) Modes of acquiring possession:

There are two modes of acquiring possession i) Delivery and ii) Possession.

i) Delivery: Delivery completes voluntary act from one person to another. The transferor
gives actual position to the transferee. It is usually a lawful mode of possession. Delivery
may be actual of constructive. In actual delivery the thing is physically delivered.

ii) Taking: Taking implies an Act exclusively on the part of the person who physically takes
the Possession. It is acquisition of the Possession without the consent of previous Possessor.
It is the possession without the consent of the Possessor. Sometimes it is said to be unilateral
act. Transferee acquires the possession without the knowledge or consent of the former
Possessor of the thing. It is usually possessio-civilis. It may or may not be lawful. If it is
lawful then it is legal possession. i.e. possessio-juri.

KINDS OF POSSESSION
1) Corporeal Possession :

Those things, which are having physical or material existence, wherein direct relationship
with the thing, are possible.  for example,  House has physical existence which can be
perceived by our senses. The possession in the house therefore is Corporeal Possession.
Therefore corporeal possession is the possession of material things, movable as well as
immovable such as the Car , book , pen, wristwatch, etc.

2) Incorporeal  Possession :
It means Possession of immaterial or intangible things. These are the things, which do not
have physical existence and therefore cannot be perceived by our senses. Therefore
possession in respect of this thing is known as incorporeal possession. for example -
Copyright, Trademark, Patent, Goodwill  etc.

According to Salmond, corporeal possession is Possession of an object whereas incorporeal

possession is the possession of a right.

3) Mediate Possession :
It is the Possession of a thing through another, either through his friend, servant for agent. As
the thing remains, in possession with another, the possessor has lesser degree of physical
control over such thing.

Illustration :

a) 'X' has a car, which he leaves with his driver. The possession of the driver will be
immediate whereas the Possession of 'X' will be mediate.

b) 'A' purchased a house through his agent and the agent got the possession. A's possession is
said to be the mediate possession.
4) Immediate Possession :
                   It is also called as Direct Possession.  Direct or primary possession by a person
over a particular object, which acquires or gets directly or personally. In immediate
possession, as the thing is in possession of the possessor directly, he has higher degree of
control over such thing. It means that there is no other person holding the thing.

Illustration :

            a) 'X' has a car and he keeps it in his garage, this constitutes immediate possession.

            b) 'A' purchased a house and takes Possession of the property it is called direct or
immediate Possession.
5) Constructive Possession :
                Constructive possession is not actual  possession it is a possession in law and not
possession in fact. According to Pollock and Wright, it is a possession which arises only by
the construction of law.

Example :  The delivery of the keys of a building.

6) Adverse Possession :
                It means holding the land on his own behalf of some other person. if adverse
possession continues peaceful and undisturbed for that number of years, he can claim
ownership and the true owner's right( ownership) gets extinguished.

7) De facto Possession :
                De facto Possession exists where the thing is in the immediate occupancy of a
party. The person in de facto possession has the physical control of the thing to the exclusion
of others and has Animus and Corpus over the material object. De facto possession may be
described as actual Possession.

8) De jure Possession :
               De jure possession can be described as posssession in law. De jure possession exists
when person claims a thing as his own in natural normal legal manner by occupying a thing
without any dispute as to his legal right to possess and enjoy the thing. Legal possession may
exist with or without property in possession. In case of De jure possession it is just possible
that a man I have ceased to live in a house but without intending and to abandon it for good
as the owner of the house.

OWNERSHIP
Definition of Ownership

Austin- “a right indefinite in point of user unrestricted in point of disposition and unlimited in
point of duration over a determinate thing.”

According to Austin, there are three elements of ownership-

Indefiniteness in point of user

He says, no one can exhaustively enumerate the various ways in which the owner may make
use of his property. Bur unrestricted user in all system of laws is qualified by the law of
nuisance in accordance with the maxim ‘sic utereturat alienum leadas’ (so use your own
property as not injure your neighbors). Again an owner’s indefinite user is restricted by
encumbrances in favour of other persons and again limited by any restriction which the state
may care to impose in the interest of community by such statues as Town planning Acts, etc. 

Unrestricted in point of disposition

He says, the owner can make any kind of alienation, whether by way of gift, sale, exchange
or lease or in any other manner permitted by the law. But it is not true in any system of law,
such as, in English law, the inheritance (family provision) Act of 1938. In India, the
Marumakkathyam law, alienation of ancestral immovable property in Mitakshra law. In
Germany, division of small farms beyond a particular limit is not permissible. Further, the
Government may acquire any property for public purposes irrespective of the owner’s
dissent. 

Unlimited in point of duration 

He says, Ownership is perpetual and is transmissible from the owner to his heirs. But it is not
necessary that an owner’s right should be unlimited in point of duration. It may end with his
death or insolvency and or on the happenings of some other contingency as in cases where
the ownership is subject to a condition subsequent. Again the rule against perpetuity is
another limitation upon the unlimited duration and powers of disposition of the owner. 

Salmond improves upon Austin’s definition. According to him: “the ownership of a material
object is to a right to the general or residuary uses of it after the deduction of all special and
limited rights of use vested by way of encumbrances in other persons.” 
“Ownership in most comprehensive sense denotes relation between a person and a right that
is invested in him.” 

Thus, according to Salmond, ownership is, therefore, ‘incorporeal’. He then went to say that
to speak of the ownership of physical objects is a figure of speech. What is meant is that
certain claims are vested in a person. 

 Duguit has criticized Salmond’s definition and asserted that what a person really owns is a
‘thing’ and not a ‘right’. Cook has characterized Salmond’s definition of ownership as an
‘unnecessary confusion’.

Analysis of ownership 

The main rights of ownership are there- 

1. The right of possession of the property owned,

2. The right of enjoyment of the property; it includes the power to deal with the
property as the owner pleases (in accordance with the manner prescribes)
3. The power to dispose of the property.

There are certain restrictions upon the property; it includes the power to use it. 

Article 19 of the constitution says-

All citizens shall have the right, 

b) To acquire, hold and dispose of property,

The state can impose reasonable restrictions on the exercise of the right by the law in the
interests of the general public, or for the protection of the interests of any scheduled tribe.
(Article 19(5))

The state cannot deprive anyone of the property owned by him except in the manner and for
the purpose prescribed by law.

 Ownership in English law can only be vested in a person. 

  Ownership is needed to give effect to the idea of ‘mine’ and ‘not mine’ or ‘thine’.
One aspect of it is that the idea becomes necessary only when there are some
relations between persons. 
 The right of ownership comprises benefits and burdens. The former consists of
claims, liberties, powers, and immunities, but the advantage these gives are
curtailed by duties, liabilities, and disabilities. 
 Ownership is a social institution. The extent of the rights, privileges, powers, and
immunities that are exercisable by an owner reflect the social policy of the legal
system. 
 Ownership arises only in such a way as are specified by each legal system, as, in
classical Roman law for the transfer of ownership in certain kinds of things,
special ceremonies were required. 
 Ownership is a source of social power. Social reformers, notably those who accept
the teaching of Karl Marx of ownership. 

Kinds of Ownership 

On the basis of English law, the ownership is classified in the following ways:

Corporeal and incorporeal ownership 

The ownership of material objects is called corporeal ownership whereas the
ownership of right is called incorporeal ownership. Thus the ownership of a house,
table, land, machinery, etc., is corporeal ownership and the copyright, patent,
trademark, right of way, etc. is incorporeal ownership. 
 Corporeal things are those which are tangible that is, which can be felt by the senses
while incorporeal things are intangible and cannot be felt by senses. 
 Salmond thinks that the distinction between corporeal and incorporeal has merely a
theoretical significance because in either case, the ownership is the right vested in the
owner and not the material object.

Sole and Co-ownership 

 When the ownership is vested in one person only, it is called the sole ownership and
when it is vested in more than one it is called co-ownership, ex-partnership. 
 ‘Tenants in common’ and ‘joint tenants’ (in English law) are co-owners of the
tenancy. In India, the coparcenary of Hindu is also a co-ownership. 
 Co-ownership is possible only so far as the law makes provisions for harmonizing in
some way the conflicting claims of the different owner inner se. There is an existence
of reciprocal obligation of restricted use and enjoyment between co-owners. 

Trust and beneficial ownership 

 The institution of trust and beneficial ownership was not the same as now, the
institution of trust and the rights of the trustee and the beneficiary are the special
creation of English ‘equity’. The relation in trust is that there are two or more sets of
owners- one set is under an obligation to use its ownership for the benefit of another,
the former is called the ‘trustee’ and the letter is called the ‘beneficiary’, and this is
‘beneficial ownership’. Professor Campbell suggests the term ‘bare ownership’ in
place of trust ownership. A trustee in legal theory is owner, though, he has no right to
use the property for himself. The purpose of trusteeship is to protect the rights and
interests of persons, who for any reason, are unable to protect them for themselves.
That which the trustees owns, the beneficiaries owns also. 
 In agency the property is vested solely in the principal, in a trust, it vests in
beneficiary and trustee.

Legal and equitable ownership

 The dictation is recognized in English law, it is closely connected to the theories of
trust and beneficial ownership. In English, the ownership recognized under the rules
of common law (in common law courts) was legal ownership and ownership which
was recognized under the Equity courts on equitable principle was called equitable
ownership. It is the duplicate ownership, one person is the legal owner and another is
the equitable owner of the same right at the same time. If the legal right to a thing is in
‘A’, but the beneficial right to it is in ‘B’, then the court of Equity would decree that
‘A’ held as trustee for ‘B’. 

Vested and Contingent Ownership 

 Ownership is said to be vested when the owner’s title is already perfect. It is called
contingent when the owner’s title is as yet imperfect but is capable of becoming
 perfect in the future on the fulfillment of some condition. It is vested ownership, the
property is owned absolutely. 
 In contingent ownership, the property is owned conditionally. It means that the
investetive facts are incomplete, but it may be completed in the future. Till then the
ownership is contingent and when the required condition is fulfilled, it becomes
complete or vested. 
 In India, a vested or contingent interest takes place on a transfer of property, is given
in the place on a transfer of property, is given in the ‘Transfer of Property Act (Act IV
of 1882) 
 In Shashi Kanta v. Pramodchandra (A.I.R. 1932 Cal. 609), their lordship of the
Calcutta High Court pointed out the distinction between a vested and contingent
interest 

Absolute and limited Ownership

 When in a person all the rights of ownership (i.e. possession, enjoyment, and
disposal) are vested without any restriction (except that imposed by law in the interest
of society), his ownership is absolute ownership, but when there are limitation on
user, or duration or disposal, the ownership is limited ownership. An example of
limited ownership, in English law is life tenancy when an estate is held only for life.
In Hindu law (before 1956) women’s estate was a limited ownership.

Method of Ownership
Broadly speaking, there are two modes of acquiring, namely, 

1. Original;
2. Derivative.

Original 

Original acquisition of ownership takes place when ownership is acquired by some personal
acts on the part of the acquirer. It is of three kinds- 

Absolute– when a thing is acquired which has no previous owner (res nullius), it is done in
two ways-

 Occupation – for a thing of which there is no owner, as a bird in the air and a fish
in the water, the general rule of Roman law that the first occupier became the
owner. In Roman law, the property obtained by conquest was treated as res nullius,
and therefore it rules applied. Manu recognized conquest as a mode of acquisition.
And also if anyone found the treasure on its land, he took whole.
 Specification- If a person by working upon a material belonging to another made
it into something new, he became the owner of the new product. For ex- if a
sculptor made a statue. There are no such rules in modern times. 

Extinctive- when a person by some act on his ownership of the previous owner and acquires
its ownership himself, it is called extinctive acquisition. For example, acquisition of
ownership by prescription is 12 years in India.

Accessory- This is called accessory acquisition that is when the ownership of a property is

acquired by way of accession to some existing property. Examples are produce of land or
animals or fruits of trees. Manu has termed this mode of acquisition as ‘property’ which
means acquiring by accession. 

Derivative Acquisition
when ownership is derived from a previous owner, it is called derivative acquisition of
ownership. It takes place when ownership is acquired by inheritance or gift or purchase etc. 

Ownership and possession- distinguished

1. Speaking on the distinction between the two Salmond has stated that, possession is
in fact, what ownership is in right. Ownership is the guarantee of the law,
possession is the guarantee of facts. 
2. Ownership cannot be last without the consent of the owner whereas accident may
be lost either by accident or by the wrongful act of another.
3. There may be ownership without possession of a debt which is capable of being
owned but not possessed.
4. Possession and ownership differ in their mode of acquisition also. 

Conclusion 

Like other countries recognizes the right to ownership in property in India. It is guaranteed
and protected right by the Constitution (300A). The right of ownership is subjected to many
statutory laws and regulations e.g. sale and transfer of land, land reforms act. The town
planning and slum clearance legislation acquiring urban land for public purposes the
landholding ceiling legislation which regulates the possession laws as other laws derived
from English law, although we had legacy of that laws. 

BIBLIOGRAPHY
1. Dr. S.N. Dhyani, Jurisprudence- A study of Indian legal theory
(Metropolitan Book Co. (pvt.) Ltd., New Delhi, Second Edition1 985)
2. Dr. N.V. Pranjpe, Jurisprudence and legal theory (central law Agency,
Allahabad, Eight Edition 2016)