This article explains the concept of Possession including the definition and its importance. Possession is one of the most essential concepts in human life. It is legal as well as a factual concept, which makes it difficult to define. Possession is considered to be strong evidence of ownership.
Possession is one of the most essential concepts in human life. It is legal as well as a factual concept, which makes it difficult to define. The literal meaning of possession is to have physical control over something materialistic. It is impossible to define the concept so as to cover all the legal scenarios and situations in which it may apply. Let us have a look at some of the definitions prescribed by notable jurists.
According to Salmond, “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 a material object. According to Ihering, “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.” Strictly speaking in the legal sense, mere physical control over a thing does not amount to possession. It must be coupled with an intention to exercise such physical control and to exclude others from it.
Types of Possession
Possession can be broadly divided into two categories- possession in fact and possession in law.
Possession in Fact
Possession, in fact, refers to the physical possession of a thing. It refers to the de facto possession of a thing. The physical possession over a thing need not be continuous. Mere intention to exercise the physical control and to exclude others from it is enough to constitute possession in fact. The person need not always be in physical contact with the object.
Possession in Law
Possession in law refers to the possession of a thing as recognized in the eyes of law. It refers to the de jure possession of a thing. Generally, a person who is in de facto possession of a thing also has a de jure possession over it. However, there are exceptions to this. For instance, a servant may have physical control over his master’s property, but in the eyes of law, the real possessor is the master. Thus, there exists possession in fact but not possession in law. Similarly, there may be a case where there exists possession in law but not possession, in fact, such as that in constructive possession.
The common element in both the types is the exclusive right of the possessor to exercise control, physical or otherwise, over a thing. Possession, in fact, is termed as possessio naturalis and possession in law is known as possessio civilis in Roman law.
Elements of Possession
There are two essential elements of possession. These are the corpus of the possession and the animus or intention to hold the possession. Corpus of the possession refers to the body of the possession, which is, the object which is in the possession of the possessor. Animus of the possession refers to the intention to hold the possession or retain the possession of a thing. Neither of them alone can constitute a valid possession.
Corpus of possession (corpus possessions)
It refers to the physical contact of the possessor with a thing in such a way that it expresses the intention of the possessor to the exclusive use of the thing. It can be understood by examining the two relations involved in it- relation of the possessor to other persons and the relation of the possessor to the thing he possesses.
Relation of possessor to other persons- The person in possession of a thing should be provided with some amount of security to ensure his exclusive use of the thing. A person is said to be in possession of a thing when there is a reasonable apprehension on the part of others to not to interfere with his right to use of the thing. Such security may be derived from the following sources:
- The physical power of the possessor
- Personal presence of the possessor
- Secrecy- one may keep a thing safe from others by hiding it
- Respect for the rightful claim
- Visibility of the claim or animus domini
- The protection afforded by the possession of other things- the possession of a house may confer possession of chattels inside it. The question as to whether the possession of a thing grants possession to other things connected to it has to be decided on a case-to-case basis.
In a case where a parcel of banknotes was dropped on the floor of a shop, it was held that the founder of the parcel to had a better title to it than the owner of the shop.
Relation of possessor to the thing possessed- The possessor must have the physical power to ensure his exclusive use of the thing he possesses. If one puts money into a box and locks it, he is said to be in possession of the same until he is in possession of the box or the key to the box. The possession of the key or the box indicates the intention of the possessor to the exclusive use of the money.
Animus possidendi refers to the subjective element of possession. While corpus refers to the physical power to retain the exclusive use of the thing which is possessed, animus possidendi refers to the intention of the possessor to exclusively use the thing which he possesses. Some important points must be noted with regards to animus possidendi:
- It may be consciously wrongful. A thief is still in possession of the stolen object regardless of the fact that theft is a wrongful act.
- Possessor’s claim must be exclusive. However, the exclusion may not be absolute. For instance, an owner of land may grant a right of way over it to the general public. This does not mean that he has lost possession of the land.
- The possessor may not intend to use the thing as an owner.
- Even if a person is making the claim on someone else’s behalf, he is nevertheless in true possession of the thing.
- It need not be specific towards a particular person or group of persons and may be general.
Corpus possessionis cannot exist without animus possidendi.
Many important legal consequences flow from the concept of possession. Possession is considered to be strong evidence of ownership. Law protects possessor of a thing against every person other than someone who has a better title or possessory right. For instance, law protects the possessory right of a thief over a stolen object against everyone except the real owner who has a better title to it.
According to section 110 of the Indian Evidence Act, 1872, whenever a person who is in possession of a thing is sued or alleged of not being the owner of that thing, the burden of proving that he is not the owner is upon the person who files the suit or makes such an allegation or assertion in the first place. Possession is also said to be one of the essential requirements for the acquisition of ownership. Moreover, one of the most common methods of transferring ownership is by transfer of possession.
In the words of Holland, “The ascertainment of the nature of legal possession is, in fact, indispensable in every department of law. It is as essential to the determination of international controversies arising out of the settlement of new countries, or to the conviction of a prisoner for larceny, as it is to the selection of the plaintiff in an action of trover or trespass.”
- Fitzgerald, P.J., ‘Salmond on Jurisprudence’, Twelfth Edition, N.M. Tripathi Pvt. Ltd., 1999.
- D. Mahajan, ‘Jurisprudence and Legal Theory’, Eastern Book Company (M.D.A. Freeman, ed.)
 Superintendent Remembrancer Legal Affairs v. Anil Kumar, AIR 1980 SC 52.
 Bridges v. Hawkesworth, (1851) 21 LJQB 75.
 N.N. Muzumdar v. State, AIR 1951 Cal 140.
Contributed by Tejas Vasani