Possession

Possession

Author: Zainul Rizvi

Introduction

Possession is the oldest relation of man with property[1]. In earlier times this was the best title over the property. Whoever gets the possession gets the property.

Later on, with the development of civilization possession is regulated to the second place and ownership becomes the best title so at present ownership is the best title and possession is the IInd best title. Law even protects illegal possession.

Law does not discriminate between legal and illegal possession. Possession can be dispossessed exclusively by the true owner and not by another person. Possession is said to be prima facie evidence of ownership (s.110 of Indian Evidence Act) and according to S.110- Whosoever having the possession of the immovable property,

Law presumes that he is the owner and if anybody says that he is not the real owner then the burden of proof will lie over that person. It is also one of the modes of transferring ownership. Law relating to pledge provides that the possession of things pledged constitutes creditor’s security without any presumption of ownership.

Definition of Possession by various Jurists

As it depends upon facts and circumstances so, It is not possible to define the possession because it varies and the facts and circumstances are ever-changing and you can only explain the stagnant one not ever-changing and the jurist to explain the nature of possession was:-

Savigny– according to Savigny two things are essential for possession and these are-

  1. Corpus – possession, physical control
  2. Animus- possesstendi, essential element ( mental).

So according to Savigny two things are necessary to constitute a possession

Corpus – You have a pen in your hands, you have the corpus whereas your bike is outside the faculty, you do not have the corpus.

Corpus means when a person is said to have the corpus when and so long he is in power or position to exclude others from unreasonable interference and when you lost the power to exclude others, You lost the corpus.

Animus– According to Savigny only physical control is not necessary other than this animus is also necessary. Animus means an intention to treat the property as mine i.e. sense of ownership, this what known as animus.

Difference between Custody and Possession in view of Savigny

In case of custody, you hold the thing but cannot treat the property as mine so, on the ground of the animus, the difference is made between animus and custody and this applicable in Roman Law but Indian Legal System makes no difference between custody and possession and for Indian Legal System both are the cases of possession and this can be supported and witnessed by reading the section. 27 of Indian Penal Code. It states that when a property is in possession of a wife, clerk, or any servant then the possession will be of the Master or Husband. And this section is applicable under section 378 of IPC i.e theft and it is that the property must be taken out of the possession of the owner and that is why anything taken away from the dead body is not considered as theft because a dead body is not a person and such taken away of property is said to be criminal misappropriation of property under the section of 404 of Indian Penal Code.

Sir William Markby defines possession as“the determination to exercise physical control over a thing on one’s own behalf coupled with the capacity of doing so.”

Justice Holmes writes, “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.”

Kinds of Possession

Possession may be of many kinds. It may either be corporeal or incorporeal, mediate or immediate, constructive possession, adverse possession, and so on.

  1. Corporeal and  Incorporeal Possession- In Roman Law, corporeal possession is called possession corporis and incorporeal possession is known as possessio juris. Some writers suggest that possession can only be corporeal and there is nothing like incorporeal possession because this concept falls short of the requisites of real possession.

Corporeal possession is the possession of material things like land, house, building, and movables like books, chattels, etc. In the case of corporeal possession, the corpus consists firstly in confirming exclusion of others interference and secondly in the enjoyment of the thing at will without external interference. Actual use of things is, however, not necessary. Incorporeal possession, on the other hand, means possession of immaterial or intangible things which we cannot

Touch, see or perceive. The examples are possession of a copyright or a trademark or a right to reputation, goodwill, etc.

  • Mediate and Immediate Possession- Mediate possession is the possession of a thing through another person. It is also known as indirect possession. For instance, if I purchase a book through an agent or servant. I have mediated possession as long as the book remains in my agents or servants’s possession. It is significant to note that in case of mediate possession two persons have the possession of the same thing at one and the same time. The existence of a mediate possession can be used against third persons only and not against the person who has immediate and real possession of the thing. Immediate possession is also known as ‘ direct possession’.

If the relation between the possessor and the thing possessed is a direct one, it is called immediate possession.

  • Quasi-Possession- The doctrine of quasi- possession also known as possessio juris extends to control which the person exercises over certain advantages, short of ownership, which may be derived from objects.
  • Constructive Possession- means having power and intention of retaining control over the property but without actual control or actual presence over it. According to Pollock, constructive possession is possession in law and not actual possession. It is a right to recover possession. For instance, the delivery of keys of a building or a warehouse may give rise to constructive possession of the contents to the transferee of the key.
  •  Adverse Possession – Adverse possession implies the possession by a person initially holding the land on behalf of some other person and subsequently setting up his own claim as a true owner of the land. If adverse possession continues peacefully undisturbed for a prescribed period.[2] The title of the true owner is extinguished and the person in possession becomes the true owner of the land. Three elements are deemed necessary for establishing adverse possession, namely,

(1) Continuity ,

(2) Adequate Publicity , and

(3) Peaceful and undisturbed possession for prescribed periods.

Modes of Acquisition of Possession

Possession may be acquired through three ways :-

  1. By Taking .
  2. By Delivery.
  3. By Operation of Law.

Terms :-

  1. Transferor and Transferee

The transferor is the one who transfers the property possession and the person who accepts the transferor takes the possession is known as Transferee

     b.) By taking

It can either be lawful as well as unlawful property and when it is lawful, It may be with the will or without the will. The difference between by way of ‘ taking’ and ‘delivery’ is that of the initiation. In the case of taking, the transferee starts the transfer whereas, in case of delivery, Transferor initiates first.

c.) Operation of Law

It means no one initiates and without the initiation of any transferor or transferee, You get the possession. For eg – Succession; It is a law and by the operation of law. You get the property possession. So, whosoever will get the property, It will be by way of operation of law. It may be noted that long, continuous, and uninterrupted adverse possession for a period of twelve years extinguishes the claim of title of the true owner, and the adversary’s adverse claim is established. This effect of lapse of time on titles is called ‘prescription’ which is acquisitive or positive in respect of the person in whose favour the right is created and extinction or negative in respect of the person whose right is lost or destroyed.[3]

d.) Delivery

Actual delivery means delivery of property by itself. E.g. Giving of books etc. Actual delivery occurs generally where the property is of movable nature but where the property is immovable in nature and it is transferring then it is a constructive delivery e.g.- deed. Sometimes over the same property both actual and constructive can happen simultaneously. E.g.- Transfer of cycle i.e Actual delivery and keys i.e constructive. In constructive delivery, there is no change in the position of immediate possession. There is only the transfer of mediate possession.

Constructive delivery is of three kinds

(i) Traditio Brevi Manu

(ii) Constitutum Possessorium

(iii) Attornment .

Conclusion

At last from the above-written matter, It could be rightly stated that having physical control over a thing constitutes possession. It is a relation between a person and a thing which indicates that the person has an intention to possess that thing and has the capacity of disposing of it. 

Possession in law is termed as de jure possession, Law protects possession for two obvious reasons namely:-

(i) by conferring some legal rights on the possessor

(ii)  by penalizing the person who interferes with the possession of a person or by making him pay damages to the possessor.

A person was deemed to be in legal possession of a thing when not only was the thing in his physical control or he had custody over it, but he also had the power to exclude others from interference in his possession. Thus possession to be legal, required two essential elements i.e., corpus and animus and according to ancient  Indian law, there are only two possessions: (i) Possession with title, and (ii) Possession without a title.


[1] Pollock : Jurisprudence and Legal Essay , (ed. Goodhart)p.98

[2] In India this period is twelve years.

[3] Section 15 of the Indian Easements Act, 1882

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