Possession

HINA GUL ROY

LL.B (LONDON), LL.M (MANCHESTER)
 Meaning
Possession is the nine tenths of the law.
Physical control over a thing.
Most basic relationship between people and things.
Considered prima facie evidence of ownership.
Possession of a thing is a good title against the whole world except the real owner: Armory v
Delamirie 1722
 Definitions
Indian 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.
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.
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 defines the possession as, "physical detention coupled with the intention to hold the things
detained as one's own.
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."
 Elements of Possessions
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.
 Modes of Acquiring Possession
1. Delivery
2. Taking
 Possession vs Ownership
Explaining the relation between possession and ownership the Supreme Court of India in the
case of B. Gangadhar v. B.R. Rajalingam stated, possession is the external form in which claims
normally manifest themselves. It is in fact, what ownership is in right enforceable at law to or
over the thing.
According to Ihering, Possession is a de-facto exercise of the claim and ownership is the de-jure
recognition of the claim.
According to Salmond, a person is the owner of a thing when his claim receives protection and
recognition from the law but possession may be exercised and realized without such recognition
or protection from the law.
The owner is the only one whose claim(right) is protected and recognized by law.
Sometimes there is illegal possession like mesne profit (the person has to pay it back with
interest). Possession may not be protected and recognized by law.
 Kinds of Possession
Corporeal and Incorporeal possession
Mediate and Immediate possession
Constructive possession
Adverse possession
De facto and De jure possession