Relation between Possession and Ownership | Overview
- Possession without ownership
- Ownership without possession
- Possession as Evidence of Ownership
- Modes of Acquisition
Possession in law recognizes the right to possession of a person even if he is not in physical possession of the object. Ownership, on the other hand, is a purely legal concept. Thus, the nature of both concepts is such that they complement and supplement each other.
Possession and ownership are deeply interrelated with each other. While one is a factual concept, the other is a strictly legal concept. Both of these concepts together govern the right to property of an individual. The concept of ownership flows from that of possession and the proof of better title (ownership) over a thing by one leads to the loss of possession of the thing by another. Therefore, it is essential to evaluate the interrelation between possession and ownership in order to clearly understand both the concepts and apply them correctly and accurately to solve legal problems.
Possession is essentially the relation of a person with an object in the eyes of society. Before any significant legal development in the area, possession was only said to be present when a person was in physical contact and control of the thing and had an intention to protect his exclusive right to use the object. The legal policy adopted by various states led to the classification of possession into possession in fact and possession in law. Possession in law recognizes the right to possession of a person even if he is not in physical possession of the object. Ownership, on the other hand, is a purely legal concept.
Thus, the nature of both concepts is such that they complement and supplement each other. Where one describes the factual relation of a person with his property, the other defines the legal relation.
Both ownership and possession can, in general sense, be said to have the same subject-matter. However, it is not that one cannot exist without the other.
Possession without ownership
There may be rights which exist in fact but may not be legally recognized. Therefore, one may be in lawful possession of an object but may not have any title over it, that is, no ownership of it. For example, a person may possess intellectual property rights even though they may not be recognized as legal rights.
Ownership without possession
There may be rights which can be legally owned but cannot be possessed. Such rights are known as transitory rights. These rights cannot be possessed since they cannot be exercised without being destroyed. An example of this may be the right of the creditor to recover the amount due to him. He owns such a right but does not possess it since once he successfully exercises his right to recover the debt, it ceases to exist. A deviation from this has been observed in the case of Rahimtoola v. Nizam of Hyderabad wherein the creditor, who was the Government of Pakistan, was said to be in “possession and control” of the right to recover the debt due from a bank.
Possession is temporary whereas ownership is relatively more permanent. Possession exists so long as the person is in physical control of the object he possesses and so far as he wishes to retain his right to exclusive use of the object. Ownership, on the other hand, refers to the legal title and exists so long as the person has a good title to the object in the eyes of law. Ownership ceases to exist when it is transferred to someone else through a proper legal procedure. Therefore, ownership is relatively more permanent.
Possession as Evidence of Ownership
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.
Modes of Acquisition
Possession and ownership differ in their modes of acquisition. Possession consists of two elements- corpus possessionis and animus possidendi. The loss of any one of the two elements would result in the destruction of possession of that thing. So long as the person has physical control over a thing and the power and intention to defend his exclusive right to the use of the thing, there is possession. The acquisition of possession may be done by lawful or unlawful means.
Ownership may be acquired in two ways. Firstly, ownership may be acquired over a thing which has no owner. Such things are known as res nullius and the ownership may be acquired by possession. Secondly, there may be things which are already owned by someone else. The ownership in such cases can be acquired using the derivative method, that is, by way of purchase, gift, inheritance, etc. The acquisition of ownership, unlike possession, has to be done strictly by lawful means.
- 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.)
  A.C. 379.
Contributed by Tejas Vasani