Possession means physical control or acquisition of property by a person. Ownership of a property is based on the possession of the property. Possession is the prima facie evidence of ownership. For any proprietary matter, law gives first priority to a person who is in possession of the property.
There are many situations where a person is in the possession of the property but he is not the real owner of the property. The title of the property belongs to someone else. The owner of the title of the property enjoys absolute right over the property.
But the person having possession of the property does not have an absolute right, he has an only relative title.
According to Salmond, a person having possession of a property enjoys a good title against the third person except for the true owner. The possessor is entitled to possession until getting evicted by the true owner by force of law. In such a case, there are two owners, one has absolute title over the property while another one will have a relative title.
Armony vs. Delomine [(1722) Istr.504]
If the person is in adverse possession i.e. possessory owner is wrongfully deprived of the thing by a person other than the true owner, that person cannot take the defence of ‘jus tertii’ that the thing does not belong to the possessory owner either.
According to Salmond, “prescription is the effect of lapse of time in creating and destroying right.”
It is of two kinds.
1. Positive or acquisitive prescription
2. Negative or extinctive prescription
Positive or acquisitive prescription
When the right over property is acquired by lapse of time, it is called positive prescription. For instance, when a person makes continuous use of a well located in someone else land, he automatically acquired a right over the well as prescribed under the Indian Easement Act.
Negative or extinctive prescription
Negative prescription is when a person destroys his right by the effect of lapse of time. It occurs when the person’s right already exists. For instance, right to sue for the non- payment of debt is destroyed after a period of time.
Property can also be acquired by an agreement enforceable by law. A person having ownership of a property has a right to transfer the ownership of the property to another person with or without consideration.
According to Paton, agreement is an expression by two or more persons communicated to each other, of a common intention to affect the legal relation between them.
Paton follows that an agreement should fulfill four conditions:
- There should be two or more parties.
- Mutual consent of the parties.
- It should be communicated.
- There should be common intention to communicate a legal relationship.
Miller vs. Collins [(1896) I Ch. 573]
Property is to be treated as belonging of any person who is having custody and control of it or having any proprietary right or interest, not being an equitable interest arising only from an agreement to transfer or grant an interest or having a charge on it.
Another method of acquisition is inheritance. When a person dies, there are some of his rights that are transferred to his heirs and successors. Whereas there are some other rights also which cannot be transferred. The rights which can be transferred are called inheritance or inheritable rights.
Proprietary rights are inheritable rights as it can be transferred after the death of its owner. But personal rights such as the right to life or reputation are not inheritable.
However, there are certain exceptions to it. Some proprietary rights are also not inheritable. For instance, lease for the life of lessee only or in the case of joint ownership.
In case of succession of proprietary rights, if a person has made a will then succession will take place according to the will. But if the person dies without making a will then succession will take place as per the law.
Property is belonging of a person who acquired it either through his hard work or through succession or out of an agreement. Property can be treated as proprietary rights as well as personal rights. Every individual is entitled to personal as well as proprietary rights.
The term property is explained in Jurisprudence by various eminent Jurists. Some jurists have supported the concept of the property while some are against it. The concept of property has a special significance in jurisprudence. As jurisprudence also provides a description of other proprietary rights based on the property.
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., Possession, 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 possession 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 possession generally, and possession civilis, and possession naturalis. Possession denoted, originally, bare detention. But this detention, becomes a legal state, in as much as it leads to ownership through usucapion.
Accordingly, the word possession, which required no qualification so long as there was no other notion attached to possession, 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 that 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.
1. 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).
2. 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),
3. 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 as a 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.
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:
1. Corpus Possidendi – Physical control or power over the object possessed.
2. 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:
1. The possessor’s physical relation to the ‘res’ i.e., the object.
2. 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 :
1. 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).
2. 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.
3. 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.
4. 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’.
5. 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.
6. The relation of the possessor to the rest of the world, i.e. ability to exclude others.
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.