POSSESSION

Possession basically means having or taking control. Jurists have defined possession according to
their own notions such as:
Pollock- He says that having physical control over a thing constitutes possession.
Zacharie- He observes that the possession is a relaotion between person and thing which indicates
that the person has an intention to possess that thing and has the capacity of disposing it of.
Sir William Markby- He defined possession as “ the determination to exercise physical control
over a thing on one`s own behalf coupled with the capacity of doing so.”
There are generally two types of Possession which are:
1. Possession in Fact- This refers to the physical or actual control over a property or object,
regardless of whether the person has a legal right to it. The relation between a person and
a thing which he possess is called possession in fact or defacto possession. It indicates the
physical control over a thing. It is not necessary that the physical control over the object to
be continuous. The physical control over a thing should also be accompanied by the
capacity to do so.
2. Possession in Law- It refers to the possession of goods when one has legal right vested in
it. The concept of possession in law is also known as de jure possession. The law protects
possession for two main reasons which are:
(i) For conferring certain legal rights on the possessor
(ii) By penalizing the person who interfere with the possession of a person.

POSSESSION UNDER ROMAN LAW

Under Roman Law, the concept of possession was used in two different senses which are to be in
possession of anything and secondly to have legal possession. The former means having physical
control over the thing known as corpus possessionis and the later means having exclusive control
over a thing which is called as civils possessionis.
In Roman law a person was deemed to be in legal possession when not only the thing is under
control of him but he also had power to exclude others from interference his possession. The
mental element to hold possession and control over a thing while excluding others is called as
animus.

POSSESSION UNDER ENGLISH LAW

The term possession is widely recognized in English law. This term is used in both civil as well as
criminal law. In English law possession is given protection due to various reasons. According to
Dias, possession has three main aspects which are:
1. The relation between a person and thing is act.
2. Advantage attached by law to that relation is a matter of law
 3. These advantages are attributed to a person when certain other facts exist. What they are
in given situation is a matter of law.

ELEMENTS OF POSSESSION
According to Holland, legal possession has two essential elements which are:
(1) Corpus or Physical control- It means the existence of such physical contact of a person
with things as to give rise to a reasonable assumption that others will not interfere with it.
Sometimes there can be actual physical contact and sometimes not.
(2) Animus or Intention- Animus basically means intention to hold possession again all
others except the true owner. The animus is the conscious of the intention of an individual
to exclude the others from the control of an object.

THEORIES OF POSSESSION
1. Savigny`s theory of Possession- Savigny founded the theory of possession on the text of
Roman Jurist Paul. That theory was based on two basic elements:
(i) Corpus or Physical control- It means the existence of such physical contact of a
person with things as to give rise to a reasonable assumption that others will not
interfere with it. Sometimes there can be actual physical contact and sometimes not.
(ii) Animus or Intention- Animus basically means intention to hold possession again all
others except the true owner. The animus is the conscious of the intention of an
individual to exclude the others from the control of an object.
Criticism- Savigny`s theory assumes that both the elements are necessary in order to constitute
possession. But in reality a thing can be said to be in possession even in the absence of any one of
them.
2. Ihering`s Theory of Possession- According to Ihering “Whenever a person looked like an
owner in relation to a thing, he had possession of it, unless possession is denied to him by
the rules of law based on practical convenience.” According to him ‘animus’ was just a
supplement element of possession and not the main element. He believed that if a person
is exercising ownership in fact, his possession must be protected and be free from the
necessity of proving title against a person who is in unlawful possession.
Criticism- Ihering `s theory failed to explain the cases where law refused possessory rights to
persons who were in effective physical control of the thing possessed.
3. Kant`s Theory of Possession- Emmanuel Kant says, “ men are born free and equal.
Freedom of will is the essence of man. Possession is the embodiment of the will of man.
By taking possession of a thing, a man incorporates his will and hence his personality in
that thing” It basically means that When a person claims ownership of something, it is more
than just physical possession; it represents an expression of their will. In this sense,
possessions are an extension of one's identity, as they reflect the individual's desires and
personal agency.
 4. Salmond`s theory of Possession- Sir Salmond in his theory denied that conception of
possession of fact and possession in law are two different conceptions and observed that
there is only one conception, which is possession in fact. He distinguished possession of
physical objects and rights. He termed possession of physical objects as corporeal
possession and the possession of right as incorporeal possession.
5. Holmes Theory of Possession- Holmes gave a theory which is similar to that of Savigny.
In his theory of possession he basically defines that a man must stand in physical relation
to the object and the rest of world and must have a certain intent. These relations are
expressed as the term corpus and animus which are major elements of Possession. But he
described corpus as more important than animus.

KINDS OF POSSESSION
1. Corporeal Possession- Corporeal possession refers to the possession of material things. It
includes things like books, buildings etc. In corporeal possession, the corpus consist in
confirming exclusion of other`s interference and secondly in enjoyment of thing at one`s
own will. In roman law it is known as possession corporis
2. Incorporeal Possession- Incorporeal possession refers to the possession of immaterial
things such as goodwill, patent , copyright etc. In roman law it is known as possession juris
3. Mediate Possession- Mediate possession refers to the possession of a goods through
another person. For example If you purchase a book through your servant.
4. Immediate possession- Immediate possession refers to the possession which is acquired
by one on its own. It is also known as direct possession.
5. Concurrent Possession/ Duplicate Possession- Concurrent possession refers to the
situation when two persons claim same goods. For example two or more persons may
possess a thing in common just in case of co owners.
6. Constructive Possession- Constructive possession means to have power and intention of
retaining control over property but without actual control or actual presence of it. It is
basically a right to recover possession For example- Giving keys of a warehouse.
7. Adverse Possession- Adverse possession refers to holding land on behalf of some other
person and subsequently setting up his own claim as a true owner of that land.
8. De jure Possession- De jure possession refers to the kind of possession where person
claims possession through a proper legal framework and documentation.

MODES OF ACQUIRING POSSESSION

There are three known modes of acquiring possession which are:
1. By taking- Taking is the acquisition of the property without the consent of the previous
owner. However, it is not necessary that a thing which is taken is already in possession of
any other owner. For example if a thing belongs to known and someone take it.
2. Delivery- When a person acquires possession with the consent and cooperation of the
previous owner, it is known as acquisition of possession by delivery. There are basically
two types of delivery.
 (i) Actual Delivery- It means transfer of a thing from the hands of one possessor to
another. It involves immediate transfer of possession.
(ii) Constructive Delivery- It is a kind of delivery where the goods are not immediately
transferred but are made to transfer after a particular period.
3. Operation of Law- When the possession of the property is obtained by operation of law it
is called as possession by operation of law for example if a person dies, the possession of
his property is transferred to his legal heirs.

POSSESSION UNDER INDIAN LAW

In India, title to land depend on personal possession of it, Katyayan speaks of two kinds of
possession which are:
(i) Possession with title
(ii) Possession without title
A person who do not have title could not claim the right of ownership under Indian Law. In India
Yajnavalkya smriti contains a reference to the right of prescription that where a person allows his
property being used by another person uninterruptedly for a continuous period of twenty years but
raise no objection to it may lose its ownership. Gauatam and Narad purana also contains reference
about acquisition of property.
Case- Trimbak vs State of Madhya Pradesh- In this case it was held that article recovered from
the place which is in possession of accused but the general public also has access to that place,
then in such a case article cannot be said in the possession of accused.

OWNERSHIP
In roman law the term ownership was termed as ‘dominum’. Ownership of a property gives the
absolute right over a property. It means that a person has the exclusive right over the property. The
term ownership was used in English law for the first time in the year 1583.
Hibbert- According to hibbert ownership includes four kind of rights:-
1. Right to use a thing
2. Right to exclude others from using the thing
3. Disposing the thing
4. Right to destroy.
Austin- Austin defines ownership as a right which can be availed against everyone subject to law.
According to him ownership is a right in rem which is available to owner against the whole world.
He gives three attributes to ownership which are:
1. Indefinite User- It means that owner of the property can use it indefinitely. He can use or
misuse it but whatever he do must be within the ambit of law and not exceed it.
2. Unrestricted Disposition- It means that owner of the property has right to dispose the
property in his own way as he likes.
3. Unlimited Duration- The right to ownership according to Austin is unlimited in nature.
 CHARACTERISTICS OF OWNERSHIP
1. Ownership of a property may either be absolute or restricted. For example sometimes there
are co- owners of a property in such a case the ownership of each owner is restricted.
2. An owner of property cannot use his property in a way which is injurious to others.
3. A owner of property has right to possess the thing which he actually owns.
4. The right to ownership does not end after death. It just get transferred to the heirs of dead
person.

OWNERSHIP UNDER ANCIENT INDIAN LAW

The right to ownership was widely recognized under the ancient Indian Law. There are various
commentaries such as Narada, Yajnavalkya, Vyas etc. which deals with the ownership. During the
ancient times people put more focus on owning the property not for society and not for one`s own
greed. In ancient India there are seven modes of acquisition of property which are inheritance,
gain, purchase, conquest, investment of wealth, employment and acceptance of gifts.
According to Many, only property of king or the state could be acquired by conquest but the king
had no right to acquire private property of an individual. Manu also believed that if there is a
property which is not known to anybody, so the first person who acquired such a land will be
considered as its owner.

GANDHIAN CONCEPT OF OWNERSHIP

Mahatma Gandhi extended the concept of ownership. In his concept of ownership, he states that
ownership does not exist for the benefit of the individual owner but for the benefit of the society
of large. In his concept of ownership he suggest that owner should hold the property as the trustee
for the benefit of society at large. This concept is derived from the Vedic perception of right to
ownership.

KINDS OF OWNERSHIP
1. Corporeal Ownership- Ownership of the tangible things are called as Corporeal
Ownership.
2. Incorporeal Ownership- Ownership of the intangible things are called as Incorporeal
ownership. It is basically called as the ownership of right.
3. Sole Ownership- When the ownership of any property is vested in a single person then it
is called as sole ownership
4. Co- Ownership- When the ownership of any property is vested in more than one person,
it is called as co ownership.
5. Trust Ownership- Trust ownership is a kind of ownership in which the one is under an
obligation to use the ownership for the benefit of other, the former is called as trustee and
the later is called as beneficiary and his ownership is called as beneficial ownership
6. Absolute ownership- Absolute ownership refers to the ownership where the owner have
the absolute right to use his property.
 7. Limited Ownership- Limited ownership refers to the ownership where the owner has
limited rights of ownership
8. Equitable Ownership- Equitable ownership refers to the ownership which came into
existence with the laws of equity.

MODES OF ACQUISITION OF OWNERSHIP

There are generally two modes of acquisition of ownership\
1. Original Acquisition- It refers to the acquisition which is acquired by the owner himself
by an act. It can be done in three ways:
(i) Absolute- When a thing is acquired which has no owner.
(ii) Extinctive Acquisition- This is the type of acquisition where a person by some act
on his part extinguishes the ownership of the previous owner and acquire it.
(iii) Accessio- This is the mode by which the property is acquired by way of accession
to some existing property.
2. Derivative Acquisition- When ownership is derived from previous owner it is called as
derivative ownership For example property taken from inheritance, gift etc.

RELATIONSHIP BETWEEN POSSESSION AND OWNERSHIP

Possession can be said as an external evidence of ownership. Generally people consider both the
terms possession and ownership as some but they are not. The person who has possession of goods
is not needed to prove his ownership, but the person who alleges his ownership has to disapprove
it. According to Salmond, the subject matter of possession and ownership is more or less the same.
A person who has the possession of goods may also own the goods. But there are various
exceptions to this principle for example copyright, goodwill, trademark etc.
The relationship between the two is complementary but hierarchical. Ownership typically includes
the right to possess, but possession does not always indicate ownership. A tenant, for instance,
possesses an apartment during the lease term, but the landlord retains ownership. Ownership is a
broader, more permanent status, while possession is more dynamic and can be transferred without
transferring ownership. This distinction is crucial in various legal situations, such as disputes over
property, where proving ownership typically carries more weight than simply showing possession.

DIFFERENCE BETWEEN OWNERSHIP AND POSSESSION

Basis Ownership Possession
Definition Legal right or title over Physical control or custody of
property, granting full control. property, regardless of legal
rights.
Legal Status It confer legal status It does not confer any legal
status
Requirement Does not require physical It requires physical control
control
Rights included Right to transfer, sell, use etc. Right to use or control but are
limited to owner`s rights
 PYQ
Q. What is the doctrine of jus tertii(2016) 1 marks
Q. Write ingredients of ownership(2016) 1 marks
Q. Is possession of ownership incidental(2018) 1 marks
Q. Define equitable ownership(2022) 1 marks
Q. What do you mean by De Jure possession(2022) 1 marks
Q. Write an essay on different kinds of ownership(2019) 4 marks
Q. Define and distinguish thoroughly possession and ownership(2016) 8 marks
Q. What is the nature of possession? Explain the kinds and elements of possession(2019) 8 marks