98
“Law Master’s”
“Possession”
Prof. S.D. Bhosale
Legal Concepts
(..6 d ..)
POSSESSION
QUESTION BANK
Q.1
Q.2
State the essentials of valid custom.
What do you understand by custom? What are the essential requisites of a valid
custom?.
Q.3
“What custom is to society law is to State”, comment.
SHORT NOTES
1. Local Custom.
I. GENERAL-
The concept of possession plays a very important role in human life. The right to
possession of material things like food, shelter, clothing, property, etc., is essential for
survival. Possession is a relationship between men and things. The concept of possession
is also important from a law point of view. Protection of possession by law is important for
the maintenance of law and order and for the improvement of human life.
The concepts of ‘possession’ and ‘ownership’ are closely related and are sometimes
used interchangeably. However, their meanings are totally different.
II Meaning and Definition of Possession-
The concept of ‘Possession’ is very important but difficult to define. According to
the Supreme Court, “It is impossible to work out a complete, logical and precise definition
of ‘possession’ uniformly applicable to all situations and in the context of all the statutes.”.
We will discuss some of the definitions attempted by various authors-
99
“Law Master’s”
“Possession”
Prof. S.D. Bhosale
1) John Salmond-
‘Possession’ is the continuing exercise of a claim to the exclusive use of an object”.
2) Sovigni-
‘Possession’ is “intention” coupled with physical power to exclude others from the
use of material object.”.
3) Sir. Fredrick Pollock-
“In a common speech, a man is said to possess or to have anything of which he has
the apparent control or from the use of which he has the apparent power of excluding
others”.
4) Holmes-
“To gain possession, a man must stand in a certain physical relation to the object
and to the rest of the word and must have certain intent”.
Thus, from the above definitions, we may lay down the following requirements or
elements of possession-
1. Corpus Possessionis-
It is also called ‘physical control’. Corpus possessionis implies two things- viz-
i) The possessor’s physical relation to the res, i.e. the object-
Thus, a person possessing corpus should have some physical relations with the
object. What kind of physical relation is required to call corpus possession depends upon
the nature of the object. Corpus possession implies that others would not interfere with the
possessor’s right to use or enjoy that thing. In other words, he can use and enjoy the
property as and when required.
ii) The relation of the possessor to the rest of the word or other persons-
In addition to physical relations with the thing, the possessor should also be able to
exclude others. The possessor’s ability to exclude others is known as the possessor’s
relation to the rest of the world. However, there are no hard and fast rules regarding the
amount of power required to exclude others.
However, in modern times, the second requirement is less relevant. Now, it is the job
of the state to protect the person's possession of the property.
2) Animus possessindi-
Mere physical possession is not sufficient unless it is coupled with the possessor’s
intention to exclude any interference by the other.
Thus, with corpus, animus, i.e. intention to possess property as of his own and thereby
exclude other’s interference, is necessary.
Animus has the following connotations-
i) The person holding the property may not be the owner but may exercise animus to
100
“Law Master’s”
“Possession”
Prof. S.D. Bhosale
exclude others on behalf of the owner. E.g. A tenant, mortgagee, Bailee etc.
ii) Similarly, the animus to exclude others need not be on the possessor’s own behalf, e.g.
a bailee may hold animus to exclude others not on his behalf but on behalf of the bailor,
so also, a carrier of goods, a servant, or an agent, or a trustee etc. have animus on behalf
of somebody.
iii) Animus to exclude others need not be specific, e.g. a person having a library is supposed
to have possession of every book even though he has forgotten the existence of any
particular book.
iv) Animus to exclude others need not be based on the legal claim. E.g. if B steals the
golden chain from A and subsequently C steals it from B, here A has the legal right to
recover the chain from both B and C. But B being a prior possessor, can recover it from
C.
v) Animus to exclude others may not be absolute, e.g. though B and other villagers have
the right of way over A’s land, still has animus to possess that property though not
absolute.
Thus, in other words, to acquire true possession of a thing, the possessor should
exercise such physical control over the thing as the thing is capable of and must have the
intention to exclude others.
II Kinds of possession-
There are following kinds of possession Viz.
(1) Corporeal and incorporeal possession-
Corporeal possession is the possession of material objects such as a car, land, house,
money, dress etc.
According to Salmond, ‘corporeal possession’ is the continuing exercise of a claim
to the exclusive use of a material object”. In other words, it is a continuous relationship
between a person and a material object. It is a possession over the corpus.
Whereas ‘incorporeal possession’ is the possession of anything other than a material
objects. It signifies possession of a right such as copyright, patent right, trademark,
goodwill, or easementary right (right of way over another’s land, to light etc.).
According to Salmond, ‘incorporeal possession’ is the continuing exercise of a claim to
anything other than a material object. In other words, incorporeal property is possession of
immaterial or intangible things, i.e., possession of rights than the thing itself.
However, the distinction between ‘corporeal possession’ and ‘incorporeal
possession’ is disputed by many jurists.
In Roman law, ‘Corporeal Possession’ is called ‘possession corporis’ and
‘Incorporeal Possession’ is called ‘possessio juris’. In other words, Roman law believes
101
“Law Master’s”
“Possession”
Prof. S.D. Bhosale
‘Corporeal Possession’ is an actual possession and ‘Incorporeal Possession’ is called
‘possessio juris’. In other words, Roman law believes Corporeal Possession is actual
possession and Incorporeal Possession is possession.
2) Immediate and mediate possession –
‘Mediate’ possession is the possession of a thing through another person. It is also known
as ‘indirect possession’.
Whereas, ‘immediate possession’ is direct possession. Thus, the possession of a person
in his car is his direct possession, whereas possession of a person in a car in his driver’s
possession is his mediate possession, i.e. possession through another person.
In other words, ‘immediate possession’ signifies direct possession, whereas; ‘media5te
possession’ signifies possession through another person.
Salmond lays down three types of mediate possessions-
i) Possession through an agent or servant, i.e. through a person who holds the thing
solely on behalf of his master and does not claim any interests of his own.
ii) Possession through a borrower or hirer or tenant, wherein the master can
demand the thing at his will.
iii) Possession is where the property is lent for a fixed period or upon a condition or
as security for repayment of a debt etc.
The person in possession of a thing in mediate possession can use such possession
against the whole world except his master (a true owner).
English law does not recognise the distinction between ‘mediate’ and ‘immediate
possession’. According to English law, there cannot be double possession, a servant’s is
not possession, and his custody of a thing is on behalf of a true possessor, i.e. his master.
However, the distinction between ‘mediate’ and ‘immediate’ possession is recognised in
General Law.
3) Constructive Possession-
According to Pollock, ‘Constructive Possession’ is a possession in law and not in
fact. Constructive Possession is a right to recover possession. The right arises only by the
construction of law. Thus, delivery of a key to a car, building, warehouse, etc., gives rise
to constructive possession of the transferee's key contents.
However, Keeton does not recognise such a ‘constructive possession’ type.
According to him, the key actually transfers the contents; therefore, it is actual possession
and not constructive.
Adverse Possession-
Adverse possession implies the possession of land as opposed to a true owner’s title.
Where a person in possession claims the exclusive right to the land of another (who is not
102
“Law Master’s”
“Possession”
Prof. S.D. Bhosale
in possession), he is said to be claiming through adverse possession. Therefore, possession
is said to be nine points in the law.
To constitute adverse possession, both animus and corpus are necessary.
According to the Indian Limitation Act, 12 years of adverse possession of land extinguishes
the owner’s title and creates the title of the possessor.
III Modes of Acquisition of Possession-
The following are the modes of acquisition of possession-
1) Taking-
‘Taking’ means the acquisition of property without the consent of the previous possessor.
Taking may be original or derivative. ‘Original taking’ is taking when the object
taken has no owner (i.e. res nullis), e.g. catching wild animals or birds, etc.
‘Derivative taking’ occurs when somebody takes something already owned by somebody
else. In other words, ‘derivative taking’ is taking the thing of others.
Both original and derivative taking may either be legal or illegal.
Original taking is illegal if the act is prohibited by law, e.g. killing wildlife is
prohibited by the wildlife Protection Act; similarly, derivative taking is illegal if the thing
is taken by stealing etc.
2) Delivery-
Possession can be acquired by delivery from another person. Possession by delivery
is acquired with the consent and cooperation of the previous possessor or owner.
Such delivery may be due to sale, mortgage etc. Delivery of possession may be actual
or constructive.
3) Operation of law-
A person may acquire possession by operation of law, i.e., by order of the court, by
the effect of law, etc. For example, heirs acquire possession by the death of a predecessor.
One can also get possession by adverse possession (e.g., being in peaceful and
uninterrupted possession of another’s landed property for twelve years or more
extinguishing the true owner’s title). Such a right of adverse possession is also called a
‘prescription’.
4) Possession and Ownership-
Initially, there was the concept of ‘possession’ and not ‘ownership’. The concept
of possession originated first, and after some time the concept of ownership originated.
Possession is called prima facie evidence of ownership. It is described as “nine
points in law”.
Moreover, possession is a defacto claim of which ‘ownership’ is a de-jure
recognition.
103
“Law Master’s”
“Possession”
Prof. S.D. Bhosale
V. Possessory Rights and Remedies-
Possession is called ‘nine points in law’ because it confers on the possessor all rights
of ownership. However, these rights of the possessor are not available against the true
owner or prior possessor; therefore, these are nine and not 10 points (i.e. all).
‘Possessory Remedies’ are remedies that are available to the possessor to protect his
possession, whereas ‘proprietary remedies’ are remedies that protect the rights of the
owner.
In India, as well as in other countries, ' Possessory' remedies are provided to avoid
criminal matters related to property. No one, even the owner himself, can recover
possession of the settled possessor except according to the procedure prescribed by law.
He is not allowed to recover possession forcefully. Therefore, possession of the bailee is
protected even against the true owner.
Following are the objects of protecting possession and offering possessory remedies
viz-
i) Prevent the evil of violent self-help-
The law provides the right of self-defence or self-help if the person in possession is
being deprived by force. However, sometimes, it becomes very difficult to decide who is
the aggressor and who is defending. To avoid such chaos and violence in the name of self-
help, the law provides possessory remedies. These remedies protect the possessor even
against the true owner. The owner cannot take the law into his own hands and forcefully
remove the possessor.
ii) Earlier inefficient proprietary remedies-
In earlier times, the procedure by which an owner recovers his property was
cumbersome, dilatory and inefficient. It is because proving the title was very difficult at
that time. But nowadays, recovering possession by the owner is speedy. The owner, by the
legal procedure, can recover possession speedily. Therefore, the law protects the possessor
and does not allow dispossession, otherwise than the procedure of law.
iii) Difficulty in having ownership-
In earlier times, it was easy to prove possession but it was very difficult to prove
ownership. Since it was considered that the possession is prima facie evidence of
ownership.
Continuous, uninterrupted possession for a long time entitles the possessor to claim
the right of ownership. He has merely to prove prior possession, while the other party must
prove the better title.
*****
104
“Law Master’s”
“Possession”
Prof. S.D. Bhosale