CONCEPTS OF

OWNERSHIP AND
POSSESSION
 Concepts Of Ownership And Possession
• Ownership
• According to Austin ownership means a right, which avails against everyone
who is subject to the law conferring the right to put thing to user of indefinite
nature. It is right in rem which is available to the owner against the world at
large. It includes ownership over both corporeal and incorporeal things. The
former refers to physical objects and the latter refers to all claims. According
to Hebert ownership is a comprehensive right in rem. It is a bundle of four
rights.
• Right to use a thing.
• Right to exclude others from using the thing.
• Right to dispose of the thing.
• Right to destroy the thing.
• Holland ownership is a plenary control over a object. Salmond the relation between a person and
any right that is vested and an object forming the subject matter of his ownership. Ownership
denotes the relation between a person and right that is vested in him. Nothing can be owned except
the right over a thing. In other words a thing cannot be owned but a right over such thing can be
owned.

• Therefore owning a right is called ownership : Owner can use in many ways or indefinite in point
of user.

• Owner has right of transfer or unrestricted in point of disposition.

• Ownership is permanent or unlimited in point of duration.

• Modes of acquisition of ownership: The ownership is acquired in two ways:

• Original mode: In this mode the owner acquires the ownership over the owner less objects. They are
called res nullius. Such object belonged to no one. It may be acquired by means of accession,
occupation and specification.

• Derivative mode: In this mode the owner acquires the ownership by purchasing from the original or
previous owner. The purchaser becomes the owner. It is merely a transfer of existing ownership but
not a relation of the ownership ex buyer derives ownership from seller.
 Kinds of ownership:

• Corporeal and incorporeal ownership: The ownership over a tangible or material object is called corporeal
ownership, actual material thing.
• Trust and Beneficial ownership: The ownership of a trustee is called trust ownership
• Legal and Equitable ownership: The ownership which originated from the rules of common law is called legal
ownership. A assigned a debt to B. A is the legal owner and B becomes an equitable owner.
• Vested and Contingent ownership: The ownership which comes into existence immediately is called vested
ownership. A transfer his property to B an unmarried daughter for life and to C, an unborn child. C's ownership is
contingent because C's birth is uncertain.
• Sole and Co-ownership: An exclusive ownership of an individual as against the whole world is called sole
ownership single owner. The ownership of two or more persons having interest in the same property or thing is
called co ownership.
• Absolute and limited ownership: The ownership which vests all the rights over a thing to the exclusion of all is
called absolute ownership. Ownership which imposes limitations on user duration or disposal of rights of
ownership is called limited ownership.
 Possession

• Possession means custody or control. The idea of ownership developed slowly with
the growth of civilization. According to Salmond possession establishes the
relationship between men and the material things. It is a mere fact. According to
Pollock possession is a physical control over a thing. According to Savigny possession
is the physical power of exclusion. Protection of possession is a branch of protection
to the person. Freedom of will is the ground for the protection of possession.
• According to Ihering possession is de facto exercise of a claim over a thing. According
to Roman law possession is a prima facie evidence of ownership. It supports the title
of ownership. The possessor of a thing is presumed to be the owner. Long enjoyment
of a property creates ownership. This is known as prescription hence possession in
nine points in law.
 Kinds of Possession

1. Possession in fact: The actual or physical possession of a thing is called Possession in fact. Also
known as de facto possession. It indicates physical control of a person over a thing. There may be a
physical relation with the object and the person. That physical relation or control need not be
continuous.

2. Possession in law: Possession which is recognized and protected by law is called Possession in law.
It is also known as de jure possession it is a possession in the eye of law.
• Elements of possession

1. Animus possidendi: Means intention to possess a thing. It deals with subjective and mental
intention to possess a thing. It deals with subjective and mental element. It denotes a strong desire
to possess a thing. Here the possessor must have strong intention to possess a thing he must have
an exclusive claim, Animus Possidendi need not be a claim or right and need not be a own claim
and it need not be specified.

2. Corpus possessionis: Corpus Possession is means physical possession of a thing it deals with

objective element. According to Savigny the actual physical control over a thing is called corpus
possessionis. The physical control gives to an assumption that others will not interfere with it.
Possessor must present personally and physically possess. The possession of a thing extends to
accessories too. Possession includes protection and secrecy of thing.
• Acquisition of possession
1. By taking.

2. By delivery.

3. By operation of law.

Types of Possession
• Corporal and incorporeal possession: The possession of a material object is called corporeal possession.
Actual use or control over such material object is not necessary e.g. possession of car. The Possession of other
than a material object is called incorporeal possession. Actual use and enjoyment of right is necessary.
• Immediate and Mediate Possession: The direct or primary possession of a material object is called immediate
possession. The possessor holds thing personally without any intermediary e.g. possession of a car
owner .Indirect or secondary possession of a material object is called mediate possession the possessor of a
material object is called mediate possession. The possessor holds the thing on behalf of another. E.g.
possession of a car driver.
• Representative Possession: The Possession of a thing through an agent or a servant is called Representative
Possession. The representative is not the real possessor e.g. master's money in the servant pocket.
• Concurrent Possession: Two or more persons may jointly possess a thing at the same time. This is
known as Concurrent possession e.g. B may have right of way on the A land.
• Derivative Possession: The possession of the holder of a thing is called Derivative possession. He
derives title from the person who entrusts the thing. e.g. a watch repairer. He need not return the
watch until the repair charges are paid.
• Constructive possession: The possession in law is called constructive possession. It is not an actual
possession. It is a possession in law and not a possession in fact. Possession of keys of a car implies
the possession of car.
• Adverse possession: The possession against every other person having or claiming to have a right to
the possession of that property is called adverse possession. It is a possession of a thing without the
permission of its real owner. Lessee possession after expiry of lease period.
• Duplicate possession: The possession of a thing by two persons is called Duplicate possession. The
possession of one person is compatible with the possession of another person. It is possible only
when two claims are not mutually adverse.
 Distinction between Ownership and Possession

1. It is an absolute right. 1. It is an evidence of ownership.

2. It is de facto exercise of fact. 2. It is de jure recognition of claim
3. It is the guarantee of the law. 3. It is the guarantee of the fact.
4. It is related to a right. 4. It is related to a fact.
5. It includes possession. 5. It does not include ownership.
6. It excludes interference. 6. It excludes other except owner.
7. It developed on possession. 7. It is developed with civilization.
8. It provides proprietary remedies. 8. It provides possessory remedies.
9. Its transfer is too technical 9. Its transfer is less technical.