Kinds of Possession:
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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.
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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:
1. 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.
2. 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 the legal title.
3. 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 a mortgage.
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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.
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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.
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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.
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Naked –
Mere possession, without color of right. Spoken of as the lowest and most imperfect degree of the title.
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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.
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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:
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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 possession is 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.
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Jhering’s Theory: He approached possession as a sociological jurist. He posed the question of 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.
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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.
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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.
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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.
