Obtaining possession of a property, and performing such action is far easy than defining it in words, i.e. what the word ‘possession’ implies. This statement is warranted and testified by the words of great Legal Scholar, Salmond too. To understand the concept, we must first need to understand the etymology of the word, i.e., the meaning of the word in its root, in its history. The word came from Roman law.
In Roman Law, Possession, i.e., Possessio, in its primary sense, is the condition or power by virtue of which a man has such a mastery over a corporeal thing as to deal with it at his pleasure, and to exclude other persons from meddling with it. This condition or power is detention; and it lies at the bottom of all legal senses of the word possession. This possession is no legal state or condition, but it may be the source of rights, and it then becomes possessio in a juristical or legal sense. Still, even in this sense, it is not in any way to be confounded with property (proprietas). A man may have the juristical possession of a thing without being the proprietor, and a man may be the proprietor of a thing without having the juristical possession of it, and consequently without having the detention of it.
Ownership is the legal capacity to operate on a thing according to a man’s please, and to exclude everybody else from doing so. Possession, in the sense of detention, is the actual exercise of such a power as the owner has a right to exercise.
The term possession occurs in the Roman legal framework in various senses. There is possessio generally, and possessio civilis, and possessio naturalis. Possessio denoted, originally, bare detention. But this detention, becomes a legal state, in as much as it leads to ownership through usucapion. Accordingly, the word possessio, which required no qualification so long as there was no other notion attached to possessio, requires such qualification when detention becomes a legal state. This detention, then, when it has the conditions necessary to usucapion, is called possessio civilis, and all other possessio as opposed to civilis is naturalis.
If the idea of possession had remained wedded to physical control, the position would have been simpler to explain the concept of ‘possession’. Difficulties arise when it becomes necessary, because of the broadening of legal activities, to attribute to persons, who are not actually in control some or all of the advantages that were enjoyed by the persons actually in control. Tradition and technicality combined complicate the matter. Traditionally, possession was the basis in law of these advantages. They attached to man because he had physical control, which was synonymous with possession, but when it became necessary to give the same benefits to a man who was not in control, possession came to be ascribed to him without the need of physical control. Reasoning then took the form that whenever a man has these advantages, this must be because he has possession. The consequence was to bring about a contract between ‘actual holding’ and ‘possession’ as well as a shift in the meaning of the term ‘possession’.
Physical control came to be distinguished from possession under the nomenclature of ‘custody’ or ‘detention’. A person is said to be in ‘Custody’ where the holder either lacks full control or else has no animus to exclude others, for customer examining a ring in the presence of the jeweler. It simply means to take care and keep anything for a temporary period which belongs to another e.g., the property of the master in the custody of the servant. Mere custody, therefore, is insufficient to constitute possession. And the Roman term ‘detentio’ means full physical control in fact which for some reason is not regarded is possession in law. Or it means to withhold or to keep in custody the goods from a person lawfully entitled to the possession of such goods.
If the control falls short of what the law requires, the person controlling the thing is said to have detention or custody merely.
Three situations had thus become possible.
- A man could have physical control without possession and its advantages (in case of a servant having physical control but immediate possession lies with the master).
- A man could have possession without physical control (where a person goes outside his house every day for work though not in physical control would still have possession),
- Or he could have both.
Possession, therefore, becomes a technicality of law.
Salmond has pointed out two reasons for which the concept of possession is considered as one of the difficult legal concepts. First, possession is an abstract notion and involves the same sort of difficulties which we find with other abstract terms such as ‘law’ and ‘rule’. Secondly, possession is not a pure Legal concept.
Besides all of this, Different definitions provided by different sources (jurists, dictionaries) is enumerated as under:
Oxford Dictionary: The visible possibility of exercising over a thing such contact as attaches to lawful ownership. The detention or enjoyment of a thing by a person himself or by another in his name, the relation of a person to a thing over which he may at his pleasure exercise such control as the character of the thing permits to the exclusion of other persons.
Bentham: Possession is to recall the image which presents itself to the mind when it is necessary between two parties which is in possession of a thing and which is not.
Maine: Physical detention with the intention to hold the thing detained as one’s own.
Holland: A moment reflection must show that possession in any sense of form must imply firstly, some actual power over the object possessed and secondly, some amount of will to avail oneself of that power.
Savigny: Intention coupled with the physical power to exclude others from the use of the material object.
Salmond: Possession of a material object is the continuing exercise of a claim to the exclusive use of it.
Pollock: Having a physical control over a thing constitutes possession.
Holmes: To gain possession a man must stand in certain physical relation to the object and to the rest of the world and must have a certain intent.
Why is understanding about ‘Possession’ important?
Possession is an evidence of ownership. Transfer of possession is one of the chief methods of transferring ownership. The possession of a thing ‘even if it is wrongful’ is a good title against the whole world except the real owner. That is why it is said that ‘Possession is nine points of the law.’ Long possession creates ownership by prescription. Possession is the basis on the ground of obtaining certain legal remedies, for example, the possessory remedy. In certain cases, the possessor of a thing can confer a good title on a transferee of it though he himself has none. Possession plays a very important role in criminal law. In a number of offenses against property, possession becomes the main issue to be determined.
Why Law Protects Possession?
Rousseau, the French philosopher, was of the view that men are born free and equal. Freedom includes the freedom of will also. In possession individual’s will is reflected, therefore it must be protected. The Massachusetts Bill of Rights also states the same thing.
Kant opines that “the freedom of the will is the essence of man. It is an end in itself, it is that which needs no further explanation, which is to be absolutely respected and which it is the very end and object of the government to realize and affirm. Possession is to be protected because a man by taking possession of an object has brought it’s within the sphere of his will. He has extended his personality into or over that object.”
Hegel states that “Possession is a manifestation of individuals will. Therefore, it is entitled to absolute respect.”
Savigny states that “Possession is protected because every act of violence is unlawful. Savigny considers that the protection of possession as a branch of the protection of the person.
Holland similarly opines that the protection of possession is for the preservation of peace.
Elements of Possession.
Both in English (Also, in Indian Law) and Roman laws possession has two distinct elements. They are:
- Corpus Possidendi – Physical control or power over the object possessed.
- Animus Possidendi – Intention or will to exercise that power.
Both these are necessary to constitute possession. A person cannot be said to be in possession of a thing unless he has animus possidendi. Markby in this context says, ‘there are physical element and mental element in the legal conception and in order to constitute possession in a legal sense there must exist not only the physical power to deal with things as we like and to exclude others but also the determination to exercise that power or control on our own behalf.’
Corpus (physical control): It implies two things:
- The possessor’s physical relation to the ‘res’ i.e., the object.
- The relation of the possessor to the rest of the world, i.e. ability to exclude others.
Physical control of the thing lies at the bottom of possession. Possession must consist in the undoubted control over a thing to the exclusion of others. Possession must be direct, physical and actual, not merely symbolic or fictitious. However direct contact need not be necessary with the thing although it is true that most of the things that we possess are in direct contact with us. For example, a man walking along the road with a bundle sits down to rest and place his bundle on the ground at a short distance from him. No one thinks of doubting that the bundle remains in his exclusive possession, not symbolically but really and actually. ‘Physical contact’, therefore, is not necessary for possession. It is rather the possibility of dealing with the thing as we like and of excluding others.
The second element of the corpus is that the possessor must have the ability to exclude others. There is no hard and fast rule regarding the amount of power to exclude others. Therefore, ‘physical control’ does not mean ‘physical power’ to exclude others. Even the weakest person may have the corpus element (physical control). It depends more upon the general expectation that the possessor must have the ability to exclude others. In R v. Chissiers (1678 LR 275), a person came to a shop and asked for a particular kind of cloth (linen). The shopkeeper handed over some piece of cloth to him but before any sale was completed, he ran away with it. This was held to be larceny as there was no change of possession until he ran away. It is clear from this case that the corpus of possession is not necessarily synonymous with the physical power to exclude others, rather the expectation that the possessor has the ability to exclude others.
Animus: Animus is the conscious intention of an individual to exclude others from the control of an object. The mental element in possession may be manifested in the following ways :
- The person holding the property need not be the owner and may exercise animus to exclude others on behalf of the owners. Ex:- A tenant or a mortgagee, e.g. has possession no less than that of the owner himself. (It may be described as representative possession).
- The animus to exclude others need not be in the interest of the possessor or on his own behalf but in the interest of bailee or lessor. A carrier of goods, a servant or a trustee may have true possession (by having corpus as well as animus) though he makes no claim to the thing possessed on his own behalf of the owner.
- Animus to exclude others need not be specific. A person having a library has the possession of every book in the library though he might have forgotten the existence of some of the books.
- The animus to exclude others need not be based on a legally enforceable claim. It may be the result of a wrongful act. Thus, if ‘B’ steals goods from ‘A’ and ‘C’ in turn steals it from ‘B’, then although ‘A’ has a right of claim against both ‘B’ and ‘C’ yet in spite of this ‘B’ as a prior possessor (although a thief) against ‘C’ and theoretically he can legally recover possession of the goods from ‘C’.
- The animus to exclude others need not be absolute. Sometimes a person may possess a piece of land notwithstanding the fact that some other person or even the public at large, possess a right of way over it.
- The relation of the possessor to the rest of the world, i.e. ability to exclude others.
Modes of Acquiring Possession
Transfer or acquisition of possession can be done in three ways, By taking, By delivery and By the operation of Law.
- As regards the acquisition or transfer of possession by taking, it is done without the consent of the previous possessor. This also may be done in two ways. One is called the rightful taking of possession and the other the wrongful taking of possession. A shopkeeper is entitled to get some money from a customer. This is an example of the rightful taking of possession. If a thief steals from an individual, his acquisition of possession is wrongful. However, if a person captures a wild animal which does not belong to anybody, possession is called original.
- Another way of acquisition of possession is by delivery or traditio in such a case, a thing is acquired with the consent and cooperation of the previous possessor, delivery is of two kinds, Viz., Actual and constructive. In the case of actual delivery immediate possession is given to the transferee. There are two categories of actual delivery. According to one category, the holder retains mediate possession and according to the other, the holder does not retain mediate possession. Constructive delivery is that which is not direct or actual. There are certain things which cannot actually be Transferred by the owner to the purchaser or by the transferor to the transferee. In such Cases, constructive delivery alone is possible.
- Transfer of possession can be made by the operation of law as well. This happens when, as a result of the law, possession changes hands. If a person dies, the possession of his property is transferred to his successor and legal representatives.
Kinds of Possession:
- Corporeal – It is claimed to the exclusive use of material things like land, buildings and other movable or immovable things. The exercise of this claim consists of two ingredients, Corpus Possessionis and Animus Possidendi. This case of possession consists of firstly, continuous exclusion of alien interference. Secondly, enjoyment of the thing at will without interference by others. The actual use of it is not essential. A man may lock his watch in a safe and don’t look at it for 20 years. Here he has exercised continuous claim to it, by continuously excluding any other person from interfering with it.
- Incorporeal – It is connected with intangible things such as trademark, goodwill, right to vote, right to passage, etc. In this case, things are to be used continuously, as non-use of it may give rise to the non-existence of possession for such thing. One can acquire and retain possession of a right of way only through actual and repeated use of it. English law defined it as the continuing exercise of right rather than the continuous exercise of the claim.
- Actual – Where the thing is in the immediate occupancy of the party.
- Constructive – Possession not actual but assumed to exist, where one claims.
- In law – It is known as de jure. One may not have physical custody of the thing, but he may have a legal right to possess that thing, i.e., he may have ‘legal possession’, without having even ‘actual possession’.
- In Fact – It is also known as de facto. It exists when the thing is in immediate occupancy of a person. The person has physical control of the thing to the exclusion of others. And has animus and corpus over the material object. It is an actual possession, which can be held to be prima facie evidence of ownership.
- Mediate and Immediate – In law, one person may possess a thing for and on account of someone else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that hitches acquired or retained directly or personally, may be distinguished as immediate or direct. ‘Mediate possession’ is also known as indirect possession. It has three kinds:
- The first is that, where a person acquires a thing, being a servant or agent. In such a case, that servant or agent acquires or retain possession, on behalf of his master. In all such cases, the mediate possession lies with the master only, though he may not have custody of the object.
- The second is that, where the direct possession lies in the person, who holds it for his own possessory right and also on behalf of a person having superior right to obtain from him the direct possession whenever he chooses to demand it. That is to say, it is the case of a borrower or tenant at will. He does not lose possession of a thing because he has lent it to someone who acknowledges his title to it and is prepared to return it to him on demand, and who in the meantime holds and looks after it on the behalf of a person having legal title.
- The third form is where the immediate possession is in the hands of a person who claims it for himself until some time has elapsed or some condition has been fulfilled, but who acknowledges the title of another for whom he holds the thing, and to whom, he is prepared to deliver it when his own temporary claim has come to an end. An example is a lease or mortgage.
- Natural – Corporal detention of a thing which we possess as belonging to us, without any title to that possession or with a title which is void.
- Derivative possession – The kind of possession of one who is in the lawful occupation or custody of the property, but not under a claim of title of his own, but under a right derived from another, as, for example, a tenant, bailee, licensee etc.
- Adverse – The actual, open, and notorious possession and enjoyment of real property, or of any estate lying in grant, continued for a certain length of time, held adversely and in denial and opposition to the title of another claimant, or under circumstances which indicate an assertion or colour of right or title on the part of the person maintaining it, as against another person who is out of possession.
- Naked – Mere possession, without color of right. Spoken of as the lowest and most imperfect degree of the title.
- Open – Possession of real property is said to be “open” when held without concealment or attempt at secrecy, or without being covered up in the name of a third person, or otherwise attempted to be withdrawn from sight, but in such a manner that any person interested can ascertain who is actually in possession by proper observation and inquiry.
- Pedal – In establishing title by adverse possession this means actual possession; that is living upon or actually occupying that land, or placing improvements directly upon it.
Theories of Possession:
- Savigny’s Theory: Savigny was the first to give a theory on possession. He based his work on the text of He said possession consists of two ingredients, first is corpus possessionis (effective control) and other being animus domini (the intention to hold as owner). He believed since possession involved both of these, the permanent loss of one or the other brought possession to an end. Savigny further observed that the essence of possession is to be found in the ‘physical power of exclusion’. He says that the corpus possessionis may be of two kinds, one relates to the initiation or commencement of possession and the other relates to the retention of possession. The corpus, which is required at the commencement of possession is the ‘present or actual physical power’ of using the thing by oneself and excluding others from the use of it; Whereas the corpus, which is required for the retention of the possession already acquired, may consist merely in the ‘ability to reproduce the power at will.’
Thus, according to Savigny, for getting the possession of a horse, he says, “I must take him by the bridal or ride upon him or have him in my immediate presence, so that I can prevent all other persons from interfering with me. And since detentor and possessor have same physical relation to the ‘res’, the difference between them must be found in the mental element, i.e., animus domini.” Thus, he emphasizes intention as well as physical control to complete possession.
- Jhering’s Theory: He approached possession as a sociological jurist. He posed the question why Roman law protected possession by means of interdicts (remedies given on the basis of the possession). He says that it was devised to benefit the owners by protecting their holding of property and so placing them in the advantageous position of defendants in any action as to Title. He said, “whenever a person ‘looks like an owner’ in relation to a thing he has possession, possession can’t be denied to him unless by rules of law, based on ‘practical convenience’.” According to Jhering, what is necessary, is the awareness of the thing which can give possession to the person. His approach is said to be more practical than Savigny. He gave a functional definition of possession, while also emphasizing on the point that concept of ‘possession’ may change meaning in different frames of law.
- Holme’s Theory: Holmes starts by refuting a “priori” philosophical idea, perceiving that fewer facts are required to initiate possession than to acquire it. He points out, that, “To gain possession, then a man must stand in a certain physical relation to the object and to the rest of the world, and must have a certain intent. These relations and this intent are the facts of which who are in search.” Holmes suggested that English law does not require the ‘animus domini’ element, but merely the intent to exclude others.
- Salmond’s Theory: Salmond rejected two different conceptions of possession, possession in fact and possession in law. Salmond said that there is only once conception that is possession in fact, which is possession “in truth and in fact”. In law, the exercise of possession depends solely on the criteria of common sense, and further, since, possession of law is identified with possession in fact, so possession in law, for him, is fictitious. He then draws a line between, ‘corporal possession’ and ‘incorporeal possession’. Former includes, ‘continuing exercise of a claim to the exclusive use of it’. According to him, this continuing exercise of claim, consists of two elements; corpus possessionis, and animus possidendi. Thus, for Salmond, possession is both corpus and animus. Former comprises of both the power to use the thing possessed and the existence of grounds for the exception that the possessors use shall not be interfered with. The latter, on the other hand, consisted of an intent to appropriate to oneself the exclusive use of the thing possessed. Salmond’s animus possidendi, is an adoption of the modified version of Savigny’s animus domini.
- Pollock’s Theory: Pollock says, that, “in common speech, a man is said to possess or to be in possession of anything which he has the apparent control, or from the use of which has the apparent power of excluding others.” Pollock lays stress, not on ‘animus’ but ‘de facto’ control, which he defined as physical control. A general intent is sufficient.
The relationship between Possession and Ownership:
Simply, in layman terms, ownership gives the person ‘a whole set of a bundle of rights’, and possession is merely one small part of that bunch of rights. Some scholars defined ownership as:
According to Pollock, “ownership may be described as the entirety of the powers of use and disposed of allowed by law. The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal; very often, there is no such person. We must look for the person having residue of all such power when we have accounted for every detached and limited portion of it, and he will be the owner even if the immediate power or control and use are elsewhere.”
According to Salmond, “ownership in its widest sense implies, the relation between a person and any right that is vested in him.”
Sir Henry Maine suggests that, historically, the concept of possession is prior to that of ownership. In fact, the right of possession has evolved out the right of ownership.
In terms of the distinction between these 2 concepts, Salmond says, “Possession is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the ‘dejure’ recognition of one. A thing is owned by me when my claim to it is maintained by the will of the state as expressed in the law; it is possessed by me when my claim to it is maintained by my own self-assertive will. Ownership is the guarantee of the law; possession is the guarantee of the facts. It is will to have both forms of security if possible, and indeed they normally co-exist.”
The right of ownership is superior and comprehensive and it includes the right of ownership. Generally, ownership and possession coincide and their separation is due to special reasons. They are very akin to each other and are of the same species. Ownership tends to realize itself into possession and possession tends to become ownership. The one cannot remain divorced from the other for a very long time.
Possession for a long time ripens into ownership (As in the case of adverse possession, though the length of time differs in different jurisdictions, in India it is 12 years) and ownership without possession for a long time is destroyed. Rights called possession and ownership are attached to two different set of facts. The facts to which the right called possession is attached are “corpus” and “animus”.
The facts to which the right called ownership is attached are possession of “res nullius” or prescription “possession of the object for a prescribed period without the consent of the previous owner”, or conveyance from the previous owner of the object. Sometimes, rights analogous to those of ownership may be given by the legislature to persons of whom a defined set of facts is true, such as patentee.
The concept of Possession in India:
Possession, which was a highly technical institution in ancient India, was recognized by the Hindu law as of two kinds, i.e., with the title and without the title. Possession ‘without title’ was stated to have never created ownership and a person who was in possession of a thing or land without title was considered as a thief. Yajnavalkya in his smriti, has pointed out that “a man who sees his property being enjoyed by others and does not complain about it; he loses it after twenty years. In case of other properties ownership lapses after ten years by adverse possession.” Gautam and Narada too agrees with the above statement that in the land a person loses ownership after twenty years and in wealth after ten years.
This clearly shows that concept of ‘adverse possession’ was recognized in ancient India. Consequent to the introduction of the common law in India during the British rule, corpus and animus came to be recognized as essential elements of possession. The Indian law, however, does not accept the distinction between possession and custody.
Section 145, the Code of Criminal Procedure, 1973 and Section 6 of the Specific Relief Act, 1963 are important enactments in the statute books of India which protect possession. Under section 145, CrPC, an executive magistrate is empowered to make enquiry as to which of the parties which of the parties was in possession at the time of his initial order without reference to the merits of their claims and to order that if any person has been dispossessed he should be put back in possession.
Under Section 6 of the Specific Relief Act, if any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may by suit within six months recover possession thereof, notwithstanding any other title that may be setup in such suit. Section 100 of the Indian Evidence Act, also protects the possession of a person in the sense, that it throws the burden of proof to the person who challenges the possession of the possessor on the basis of his title, or otherwise. To recover the possession, the plaintiff must show a better right in himself than is in the defendant.
It needs to be understood that, possession is the real situation, and ownership is the abstract law. If ownership or title of a property is disputed, then the person having possession has a heavy weight on his side. The person, claiming against the possessor, has to thus fight hard, to reclaim the possession, even if he is the owner of the property. In India, the pendency of civil disputes causes much distress to the parties, and the original parties, normally do not get the relief, rather their heirs get relief after the proceedings of more than 30-40 years. Hence, One must take every such step to protect possession of his property and to prevent other from dispossessing him, and such step must be taken not with any delay, as its consequences are grave.
– Harshdeep Singh Bedi
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