Jurisprudence Kamal-ul-din arain llb 1st year

TITLE:
 Title is a link between a person and an object to establish ownership of
property. A title is the de facto antecedent of which the right is the de jure
consequent. Right of possession on ownership comes in term of de facto first
and later de jure.

OWNERSHIP:
 Ownership refers to the relation that a person has with an object that he owns.
It is an aggregate of all the rights that he has with regards to the said object.
These rights are in rem, that is, they can be enforced against the whole world
and not just any specific person. The concept of ownership flows from that of
possession. In the primitive societies, there was no idea of ownership. The only
concept that they identified with was that of possession. It was only after they
started settling down by building homes and cultivating land that they
developed the idea of ownership.
 According to Austin, ownership refers to “a right indefinite in point of user,
unrestricted in point of disposition and unlimited in point of duration.”
 Concurring with Austin’s view, Holland defines ownership as the right of
absolute control over an object. According to him, ownership is an aggregate
of all rights pertaining to the possession, enjoyment and disposition of an
object. According to Salmond, “ownership, in its most comprehensive
signification, denotes the relation between a person and right that is vested in
him.”

ESSENTIALS OF OWNERSHIP:
 Upon analyzing the various definitions of ownership, the following
essentials of ownership can be derived:

 INDEFINITE POINT OF USER- The owner of a property has the liberty to use
it. Others have the duty to not to use it or to not to interfere with the owner’s
right to use it.

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 UNRESTRICTED POINT OF DISPOSITION- The owner has the right to

dispose of the property at his own will. A person needs to have the ownership
of a thing in order to transfer that ownership to someone else. Mere possession
does not give the power to dispose of the ownership.

 RIGHT TO POSSESS- The owner has the right to possess the thing which he
owns.

 RIGHT TO EXHAUST- If the nature of the thing which is owned is such that
it can be exhausted then the owner has the right to exhaust it at his own will.

 RESIDUARY CHARACTER- The owner may part with several rights with
regards to the thing he owns. This does not take away the ownership from him.

 RIGHT TO DESTROY OR ALIENATE- An owner has the right to destroy or

alienate the thing that he owns.

SUBJECT MATTER OF OWNERSHIP:

 One of the subject matters of ownership is material objects. Salmond is of the
view that the real subject matter of ownership is rights. This particular view of
Salmond is supported by the common law system. However, it has also
received some amount of criticism. It has been argued that law generally
recognizes ownership of land and chattels and not of any right. A person is said
to have certain rights and not own rights.
 The subject-matter of ownership is essentially determined by the legal system
of a state. There are certain objects which, by their very nature, are incapable of
being owned such as jungles, air, water, etc. However, the legal system of a
country may recognize the ownership of such objects thereby making them a
subject matter of ownership.

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MODES OF ACQUISITION:
 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.

KINDS OF OWNERSHIP:
 Ownership may be of the following kinds:

CORPOREAL AND INCORPOREAL OWNERSHIP:

 Corporeal ownership refers to the ownership of material objects whereas
incorporeal ownership refers to the ownership of a right. Incorporeal
ownership can also be said to be the ownership of intangible things. Examples
of corporeal ownership include ownership of a house, table, car, etc. whereas
those of incorporeal ownership includes ownership of trademarks, copyright,
patents, etc.

TRUST AND BENEFICIAL OWNERSHIP:

 The subject-matter of such ownership consists of property owned by two
persons wherein one person is obligated to use it to the benefit of the other. The
person under such an obligation is called the trustee and his ownership is
known as trust ownership. The person to whose benefit the property is to be
used is called the beneficiary and his ownership is known as beneficial
ownership. Trust ownership is only a matter of form and not a matter of
substance. This means that a trustee’s ownership of the property is only
nominal in nature. He is given someone else’s property fictitiously by law and
thereby obligating him to use it to the real owner’s benefit.

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LEGAL AND EQUITABLE OWNERSHIP:

 Legal ownership refers to the ownership as recognized by the rules of a legal
system whereas equitable ownership refers to the ownership as recognized by
the rules of equity. There may be cases wherein law does not recognize the
ownership due to some effect but equity does. In such situations, the ownership
is said to be equitable ownership. Legal ownership is a right in rem whereas
equitable ownership is a right -in personam since equity acts are in personam.
A person may be the legal owner of a thing and another may be the equitable
owner of the same thing at the same time.

VESTED AND CONTINGENT OWNERSHIP:

 All kinds of ownership may either be vested or contingent. Ownership is vested
ownership when the title of the person is perfect. On the other hand, ownership
can be said to be contingent if it is imperfect and can be perfected subject to the
fulfilment of certain conditions. Thus, contingent ownership is conditional in
nature.

SOLE OWNERSHIP AND CO-OWNERSHIP:

 Under ordinary circumstances, a right can be owned by only one person at a
time. Such ownership is known as sole ownership. However, in certain cases,
same right may be vested in two individuals at the same time. This is known
as co-ownership. For instance, partners of a firm are co-owners of the
partnership property.

POSSESSION:
 It expresses the closest relation of fact that can exist between a thing and the
person, who possess it. In law, possession means it includes not only physical
control over a thing Example: A has an article in his hand. In other words, he
is in possession of that article. The person who is in possession is called a
'Possessor'. In human life, consumption of material things is very essential and
it would be Impossible without the position of the material things.

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LITERALLY:
 The ownership, control, or occupancy of a thing, most frequently land or
Personal Property,
 "Possession" literary means physical control over a thing or an object. But also
an intention to exercise that physical control.
 The person who is in possession is called a 'Possessor'.

IMPORTANCE:
 Concept of possession is of utmost practical importance in human life.
 The U.S. Supreme Court has said that "there is no word more ambiguous in its
meaning than possession"
 Depending on how and when it is used,
 Has a variety of possible meanings.
 Depending on how and when it is used, the term possession has a variety of
possible meanings. As a result, possession, or lack of possession, is often the
subject of controversy in civil cases involving real and personal property and
criminal cases involving drugs and weapons—for example, whether a renter is
entitled to possession of an apartment or whether a criminal suspect is in
possession of stolen property.

POSSESSION VERSUS OWNERSHIP:

 Although the two terms are often confused, possession is not the same as
ownership.
 No legal rule states that "possession is nine-tenths of the law," but this phrase
is often used to suggest that someone who possesses an object is most likely its
owner.
 The owner of an object may not always possess the object. For example, an
owner of a car could lend it to someone else to drive.

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DEFINITIONS OF POSSESSION:

 JOHN SALMOND: Salmond defines Possession as, "possession is the

continuing exercise of a claim to the Exclusive use of an object."

 SAVIGNY: Savigny defines Possession as, "intention coupled with physical

power to exclude others from the use of material object.
 Salmond criticized Savingy's definition and ground that Savingy committed an
error by including the element of physical power in his definition.

 O.W. HOLMES: Holmes defines Possession as, "To gain Possession a man
must stand in a certain physical relation to the object and to the rest of the
world, and must have certain intent."

 MAINE: Maine defines the possession as, "physical detention coupled with the
intention to hold the things detained as one's own.

 SIR FREDERICK POLLOCK: Sir Frederick Pollock defines Possession as, "In
common speech a man is said to possess to be in possession of anything of
which he has the apparent control from the use of which he has apparent power
for excluding others."

 IHERING: The best among them is the definition given by Ihiring. According
to him, "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."
 Possession means physical control over an object or thing. Though in law it is
difficult to define the concept of possession because there is no precise
definition of possession. It is factual as well as a legal concept. But, we can say
that it is the physical custody, control or occupancy of any object with a definite
intention of ownership. Let us now discuss the types of possession in detail.

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KIND OF POSSESSIONS:
 Following are the important types of possession:

CORPOREAL POSSESSION:
 Objects which have physical or materialistic manifestation, and which our
senses can perceive are corporeal possession. Thus, it is the persistent exercise
of a claim on the use of material or tangible objects. For Example House, car,
cycle, pen, etc.

INCORPOREAL POSSESSION:
 Objects which don’t have any physical or materialistic manifestation, and
which our senses cannot perceive are incorporeal objects. Thus, it is the
persistent exercise of a claim on the use of immaterial or intangible objects. For
example Trademark, goodwill, patent, copyright, etc.

MEDIATE POSSESSION:
 Mediate possession of an object is the possession of a thing through a mediator
(middleman) like an agent, friend or servant. It is also called indirect
possession. For example: If a landlord let his house to a tenant. The tenant is
bound to hand over the house to the landlord whenever he decides. So the
landlord has the mediate possession of the house through the tenant.

IMMEDIATE POSSESSION:
 When the possessor himself possesses the property or thing, we call it
immediate possession or direct possession. For example: when I buy a pen from
a shop and keep it for myself. The pen is in the immediate possession of mine.

CONSTRUCTIVE POSSESSION:
 Constructive Possession is the authority over an object without having actual
possession or charge of that material. In other words, we can say that
constructive possession is not actually a possession but it is a possession in law

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and not possession in fact. For example the delivery of my key by my car driver.
Here my driver was the constructive possessor of my car until he delivers me
the key.

ADVERSE POSSESSION:
 Adverse possession means the possession of some property or object, without
legal title, for a certain time period, sufficient to become acknowledged legal
owner. Sometimes, we also define it informally as “squatter’s rights”. In actual
adverse possession of some property, the possessor is required to prove an
intention to keep it absolutely for oneself. Just claiming the property or paying
liabilities for it, without actually possessing it, is not sufficient.
 For example Continuous use of private land or driveway or agricultural field
of an unused piece of land.

DE FACTO POSSESSION:
 It is a Latin word meaning ‘in fact’. De facto possession means the possession
which exists in reality even if it is not legally recognized.
 For example, a common law spouse can be considered as a de facto wife or de
facto husband though they are not lawfully married, yet they live like a married
couple.

DE JURE POSSESSION:
 De jure is a Latin word meaning “in law”; lawful, legitimate or a matter of law.
De jure possessions are legally recognized possessions regardless of whether it
exists in reality or not. It is also known as juridical possession meaning
possession in the eyes of law.
 For example, An owner of the house could cease a man to live in a house but
without intending and to abandon it for good. It is a case of De jure possession.

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ELEMENTS OF COMPLETE LEGAL POSSESSION PAKISTAN:

 “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 he has the apparent
power of excluding others”
 Possession is one of the most important concept in the whole range of legal
history. It is absolute fact, which has big legal identification to which legal
rights are attached and the legal results flow. Apparent possession is evidence
of ownership and anyone deserving to disturb it must show either a title or a
better possessor right.

POSSESSION IS 9/10TH OF OWNERSHIP:

 Possession is ownership on the defensive. It is the evidence of ownership.
Possession is the nien points of law and hence protection should be given to
possession.
 Example:-
 If a person is in adverse possession of a property for 12 or more years, he
becomes the legal owner of that property and the right of the original owner is
extinguished.
 Example:-
 In Pakistan, U/S 145 Cr.P.C a Magistrate can restore possession back to the
person forcibly dispossessed from an immoveable property, which is likely to
cause breach of public peace.

CATEGORIES OF POSSESSION:
 Possession is divided into two categories.

(i) Possession in Fact

(ii) Possession in Law

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POSSESSION IN FACT:
 Possession in fact is actual or physical possession. It is physical relation to a
thing. This simply denoted the physical capacity of a person who had the thing
within his control in deal with it as he liked to the exclusion of everyone else.
 Example:-
 When a servant holds certain things in his custody on behalf of the master, he
has the possession in fact.

POSSESSION IN LAW:
 Possession in law means possession in the eye of law. It means a possession
which is recognized and protected by law. Law wanted to give possession, or
the right to exercise a claim to the exclusive control of a thing, and along with
it all the other advantages and rights which were closely associated with the
idea of possession or physical control, even to a person, who had no actual
physical control over it.
 Example:-
 When a servant holds certain good on behalf of his master, a master still holds
possession in law.
 Now we can say that many legal results flow from the acquisition and loss of
possession. It is the Prima Facie title of the ownership.

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