POSSESSION

&
OWNERSHIP
Concept
▪ Possession of material things
▪ Society must respect individual possession
▪ In possession there is manifestation of the
freedom of will
▪ Law must provide for safeguarding possession
for preservation of peace
▪ It must also provide for cases of temporary
relinquishment that should not result in complete
loss
Difficulty to define
▪ Structure of definitions
▪ Possession is not a purely legal concept
▫ Ownership can be established with reference
to law but possession is purely factual
▫ The existence of possession is independent of
and prior to that of law
▫ Hence possession is a legal, non legal and a
pre legal concept
▪ Legal and ordinary meanings diverge
▪ Law depends on the policy adopted
 Possession in fact
▪ All that one has
▪ Extent of the power over the object – amount of power varies
according to the nature of the object
▪ I possess the sun/ moon? Our world meanings needn't dictate
future world legal meanings
▪ But having something in control does not mean
continuous exercise of control
▪ Position to retrieve control – modern society/
primitive society
▪ Providing remedies against
dispossession….actually enlarges the number of
cases where a man may be said to have
possession
▪ Possession depends on a variety of factors
▪ Extent of power over the object- I may hold a
small item but I can only cage a tiger
▪ Complete absence of power means complete lack
of possession
▪ Animus – to possess / intent to exclude – that is
displayed only when attacked
▪ Power of excluding other people
▫ Physical power
▫ Legal power

▪ Possession is always relative to the factual

circumstances
▪ Torts – to protect against immediate and present violation of
possession
▪ Property Law
▪ Possessory Remedies – Specific Relief Act
▪ Criminal Law – peace and order
▪ Contract Act
▪ Possession of a thing is a good title as against the whole
world except as against the real owner
▪ Possession is nine points in law
▪ Professor Salmond observes that the only immaterial
things that are recognized by law as the subject matter
of rights are the various immaterial products of the
human skill and labour
▪ Possession of a material object is the continuing
exercise of a claim to the exclusive use of it.
Puzzles???
▪ Man asks companion to hold luggage
▪ Shopkeeper allows customer to examine goods
▪ Master instructs servant to use his tools
▪ Host allows guest use of cutlery

▪ Who has possession???

Puzzles???
▪ Man asks companion to hold luggage
▪ Shopkeeper allows customer to examine goods
▪ Master instructs servant to use his tools
▪ Host allows guest use of cutlery

▪ Since actual possession is voluntarily given the second

person
Puzzles???
▪ Man asks companion to hold luggage
▪ Shopkeeper allows customer to examine goods
▪ Master instructs servant to use his tools
▪ Host allows guest use of cutlery

▪ What if second person absconds with the goods???

▪ Law regards first person retains possession and second person
merely had temporary custody

▪ Law creates an idea of constructive possession – something

less than possession is deemed possession in law and
conversely actual possession is reduced to something less
than legal possession
▪ Bailee
Possession in law

▪ Possessor can be given a right to continue to be in

possession free from interference
▪ Law can protect possession by prescribing penalties for
interference an dispossession
▪ Develop a criteria to determine whether a person has
possession or not -
▪ 1. He who has possession has animus
▪ 2. Occupier of land gets possession of all that is attached
or lying on the land
Similar cases
▪ A sells a bureau to B which unknown to both has jewels
in the secret drawer – held B does not acquire possession
▪ Unless the deliverer wanted to deliver the contents to the
deliveree he does not take possession

▪ R v. Riley – taking sheep to the market – accused was

held to have taken possession and thereby committed a
trespass
▪ If A unknowingly takes something in B’s possession, he
nevertheless takes possession and commits tresspass
Continued..
▪ If X takes rings from the pool of Y, he commits trespass
despite Y’s ignorance
▪ Hibbert v. McKiernan – golf balls belongs to the club

▪ Lost articles are deemed in law to remain with the loser –

to lose an object one must lose the object as well as the
animus to retain rights?
▪ The court concerns itself not with who has the best right
to possess but with who has a better right to possess
Animus
 R v. Chisser’s case (shopkeeper gives goods to examine)
▪ Hannah v. Peel – brooch in a house – soldier who found
gets it – owner never stayed there
▪ Bridges v. Hawkesworth – banknotes on the floor of a
shop – finder gets it
▪ South Staffordshire Water Co. v. Sharman – gold rings in
pool – notes found in public part – rings in private
domain
▪ Merry v. Green – money in the secret drawer of a bureau
– does not get unless deliverer so intended
Physical Control

▪ Things that cannot be the subject matter of possession -

The relation between the person and the thing – test is
can the possessor make use of the object as its nature
admits – Tubantia Case
▪ Tubantia sunk in 1916 – in 1924 wreck was located by
Sippe and marked with buoy's, divers sent who yet
hadn’t recovered
▪ Possession requires sufficient control as the nature of
the thing would admit to
 Savigny
▪ Every act of violence is unlawful
▪ Two elements
▫ Corpus possessionis – factum of physical control/ power
of dealing with the object immediately and of excluding
any foreign agency
▫ Animus domini – a conscious intention to hold the object
against all others
▪ Reproducible at will – actual physical control
 Kinds of Possession
▪ Mediate Possession – through another –
▫ An agent or servant
▫ Where one recognises another’s superior right as in tenancy
▫ Where another has a temporary claim till a condition is satisfied as in
pledge
▪ Immediate Possession – direct

▪ Corporeal - possession of material object

▪ Incorporeal – possession of a right

▪ Concurrent possession - compossessio

▪ Adverse Possession
Adverse Possession
▪ Continuous
▪ Hostile to the interests of true owner
▪ Open and notorious – so as to put the true owner
on notice that a trespasser is in possession
▪ Actual – so that true owner has cause of action
▪ Exclusive
▪ Time period
 Acquiring Possession
▪ Taking
▫ Rightful
▫ Wrongful
▫ Original
▪ Delivery
▫ Actual – holder retains mediate possession
does not retain mediate possession
▫ Constructive – change in animus, corpus remains where it
was before
▪ Operation of Law
▪ Possession by accessio
 Possessory Remedies
▪ Remedies that exist for protecting possession even against
ownership
▪ To remove evils of violent self help
▪ He who takes a thing by force must restore it

▪ Finder of goods
▪ Adverse possession
▪ Distress damage feasant
▪ Specific Relief Act
 POSSESSION OWNERSHIP

▪ Not purely legal concept ▪ Legal concept

▪ Temporary duration ▪ Permanent, ultimate and
residuary
▪ - ▪ Ownership is a
combination of rights in a
legal system
▪ Ownership depends on
▪ Possession is a matter of
rules of law
fact
▪ Proprietary remedies
▪ Possessory Remedies
OWNERSHIP
 Concept
▪ Relationship between a person and a thing that consists in a
complex of rights all of which are rights in rem
▪ Subject matter of ownership is always a right
▪ What cannot be owned
▫ Persons – corpses? – slavery?
▫ Sea and air (res communes)
▫ Heavenly bodies (beyond reach)
Characteristics
▪ Right to possess –Right stricto sensu
▪ Use and enjoy, manage, derive income from it - owner
must so use the object of ownership as not to injure the
right of other persons (liberty/ rights)
▪ Right to consume, destroy (liberty)
▪ Right to alienate (power) – nemo dat quod non habet
▪ Indeterminate in duration
▪ It has residuary character
Subject matter of ownership
▪ Material object like land and chattel
▪ Interests in the land of others, debts due to him, shares,
patents, copyrights and interests in trust funds, derive
profits from another’s land – profit a prendre that are
essentially rights
▪ I can let the rights to another temporarily but I am still
the owner
▪ Salmond – True subject matter of ownership is always a
right
▪ But I cannot lease or sell my right to reputation!?
 What cannot be owned?
▪ Things not yet reduced to anyone’s ownership – islands
▪ Wild animals unless captured
▪ Right to reputation cannot be owned
▪ Living Persons
▪ Corpses other than anatomical specimens
▪ Common resources like air and sea
▪ Things beyond reach – sun, moon, stars

Value judgements on slavery OR abundance of natural

resources OR impracticable nature of the thing
Is ownership absolute?

▪ Ownership implies that the title to the property is

indisputable and that owner has all rights of ownership
allowed by the legal system
▪ Ownership may be limited by –
1. Duty towards specific encumbrances - Adverse
dominant right of encumbrance – possessory or
easmentary
2. Duties under specific regulations - Town and Country
Planning Act
3. General duties under the law of the land - Cannot use
property for criminal acts
The City and Industrial Development Corporation of Maharashtra
(CIDCO) is an Indian city planning agency and richest government
authority in India, which is formed and controlled by the
Government of Maharashtra. CIDCO was formed on 17 March 1970
under the Indian Companies Act of 1956; its purpose at the time of
its creation was to develop a satellite town to Mumbai, Maharashtra,
and now functioning as New Town Development Authority (NTDA)
and Special Planning Authority (SPA) of Government of Maharashtra
for development of New Towns by planning and developing entire
urban infrastructure, providing municipal services, executing large
scale infrastructure projects including Navi Mumbai International
Airport, Navi Mumbai Metro. CIDCO also launched India's first
smart city project. CIDCO has ownership of all plots in new cities,
underutilised funds about Rs 40,000 crore and reserved Land Bank;
which makes CIDCO richest Government Authority.
Acquiring Ownership

▪ Operation of law

▪ By a human act

▪ Without any human act

 Why Ownership?
▪ Ownership a menace?

▪ Public ownership a solution?

▪ Earlier - Absolutist ownership – need for entrepreneur

▪ Today – restricted – law against overcharging tenants –
builders to pay heed to environment norms – ceiling on
holding – agricultural holding to be efficiently used – slabs of
income tax – public ownership of railways, mines?
 Kinds
▪ Sole ownership / Co-ownership
▫ Ownership in common – easement - successors
▫ Joint ownership – ends with his death - survivor
▪ Trust and beneficial ownership
▫ To safeguard property of unborn persons
▫ For those who cannot administer due to some incapacity
like lunacy, infancy or absence
▫ Where large number of persons are interested
▫ Where persons have conflicting interests in the same
property
▪ Legal and Equitable ownership
▪ Vested and Contingent ownership