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Jurisprudents Subir
Jurisprudents Subir
NAME:
ROLL NO.:
COURSE:
Semester
Subir Mondol
55
LLB Three Years, First
W.B.
INDIA
ACKNOWLEDGEMENT
With profound gratitude and sense of indebtedness I place on record my sincerest thanks
to Ms. Seema Agarwal, Assistant Professor in Law, Indian Institute of Legal Studies, for her
invaluable guidance, sound advice and affectionate attitude during the course of my studies.
I have no hesitation in saying that she molded raw clay into whatever I am through her
incessant efforts and keen interest shown throughout my academic pursuit. It is due to her
patient guidance that I have been able to complete the task.
I would also thank the Indian institute of Legal Studies Library for the wealth of
information therein. I also express my regards to the Library staff for cooperating and making
available the books for this project research paper.
Finally, I thank my beloved parents and friends for supporting me morally and guiding
me throughout the project work.
Date: 07.11.2016
Subir Mondol
TABLE OF CONTENTS
__________________________________________________________
Acknowledgement
..2
Research
Methodology...
.4 - 5
A. Aims
and
Objectives..
4
B. Statement
of
Problem.
.4
C. Research
Hypothesis.
. ..4
D. Research
Questions..
..4
E. Methodology of Research..
5
F. Scope
and
Limitations..
..5
G. Review
of
Literature..
.5
H. Mode
of
Citation.
..5
Table
of
Cases
..6
Chapter
I:
Introduction..
.7
Chapter II: Project Topic
A. Sub Categorizatoin
B. Sub Categorizatoin
C. Sub Categorizatoin
Chapter III: project Topic
Chapter IV: Case Study
A. Provisions of Law
B. Facts of the case
C. Issues Involved
D. Judgments referred by the parties
E. Judgments referred by the Court
F. Maxims Used
G. Judgment
H. Own Observation
I. Conclusion
Chapter
V:
Conclusion.
.....23
Bibliography
RESEARCH METHODOLOGY
___________________________________________________________
E. METHODOLOGY OF RESEARCH
Methodology implies more than simply the methods the researcher used to collect
data. It is often necessary to include a consideration of the concepts and theories which underlie
the methods. The methodology opted for the study on the topic is Doctrinal. Doctrinal research
in law field indicates arranging, ordering and analysis of the legal structure, legal frame work
and case laws by extensive surveying of legal literature but without any field work.
G. REVIEW OF LITERATURE
The researcher while writing this project has taken recourse to various primary and
secondary sources. Primary sources would include various laws, books and articles. Secondary
sources would include reports and websites.
H. MODE OF CITATION
A uniform Blue Book Mode of citation has been adopted throughout the project.
TABLE OF CASES
CHAPTER I : INTRODUCTION
However, the concept that the proof of the anus lies on the defendant is not very
welcoming. Sometimes might is right may prevail and real owner of the property may lie
in waste.
2.1
2.1.1
Nature of Possession
Possession is one of the most important thing in our works, so it is one of the
most ambiguous. In the whole range of legal theory there is no conception more difficult
than that of possession.2 We know that Possession is the most basic relation between man
and things. Possession of material things is essential to life because the existence of
human life and human society would be rather impossible without the consumption and
use of material things. Therefore many important legal consequences flow from the
acquisition and loss of possession. It is not only proof of ownership but also a mode of
transferring of ownership. It is said to be the nine out o ten points of law meaning
thereby that it is an evidence of ownership and he who interferes with the possession of
another, must show either title or better possessory right.3
2.1.2
3 Studies in Jurisprudence and legal theory, Dr. N.V. Paranjape, Central law agency,
Allahabad-2, p. 383.
by virtue of their being the owner of the pond and hence the defendant acquired no title
in the rings and the company was entitled to have the rings.
2.1.2.3 Possession according to Salmond
The possession of a material object is the continuing exercise of a claim to the
exclusive use of it. Possession is a de facto relation between the possessor and the thing
possessed. Possession is a continuing exercise of a right exercised by the owner of it.
He further says: Simple economics dictates that, as a minimum, some measure of
uninterrupted enjoyment is a pre-requisite to mans deriving any benefit or value from
material objects and that such temporary possession must be respected by, and protected
from his neighbours.4
2.1.2.4 Possession under Roman Law
Under Roman law the ceoncept of possession is was used in two different senses.
To be in possession of a thing was different from having legal possession over it. The
former denoted that a person simply has physical control over the things and it was
called corpus possessionis while the latter meant having exclusive control over a thing
which the Romans called as civillis possessionis, i.e., legal possession.
A person was deemed to be in legal possession of ting when not only thing was in
his physical control or he had custody over it, but he also had the power to exclude
others from interference in his possession ( animus ). Thus possession to be legal
required two essential elements: Corpus and Animus.5
2.1.2.5 Possession under English Law
The importance of possession has equally been recognized in English law as well.
The term is commonly used in both civil as well as the criminal law. In civil law, namely,
the law of torts, contract, property, specific etc. many wrongs are defined in terms of
possession. For example, trespass is a wrong relating to possession of land or goods,
conversion is wrong affecting possessory right in goods and is known as trover. In law of
crime, the theft is dishonestly taking away any movable property out of the possession of
any person without that persons consent. The English law recognizes that acquisition or
4 Jurisprudence & legal theory, answers to important questions, Gade Veera Reddy,
Sujata law books Pvt. Ltd., Hyderabad, p.62.
5 Studies in Jurisprudence and legal theory, Dr. N.V. Paranjape, Central law agency,
Allahabad-2, p. 384.
loss of possession results into many important legal consequences. For this reason
Possession has be given protection under law.6
3.1Life of Savigny
Fiedrich Karl Von Savigny was born on 21 st Feb 1779, in Frankfurt, Germany. He
was a prominent Jurist and legal scholar and known also as the pioneer of influential
Historical School of law through his concept of Volksgeistism. The insufficiency of
natural law school and analytical school provided a fertile land where Fiedrich Savigny
sowed the seeds of historical school. He traced the development of law as a evolutionary
process much before Charles Darwin gave his theory of evolutioi. It is for this reason he
is said to be the Darwinan before Darwin for his contribition to apply the evolutionary
principal to the development of legal system.7
The great German jurist, Friedrick Karl von Savigny, stands as the undisputed
head of the influential historial school of jurisprudence, which he pioneered in the first
half of the 19th century, and as the founder of the study of relations between social and
legal developments. A trail-blazing legal scientist, Savigny made many lasting
contributions to jurisprudence that greatly influenced all the social disciplines as well.
Among these contributions are included the revealing of continuity between present legal
institutions and those of the past, the laying of foundations for legal sociology, and the
articulating of methods for historical research.8
6 Ibid., p. 385.
7 http://www.academia.edu/428817/BASIC_CONCEPT_OF_SAVIGNY_S_VOLKSGEIST,
Friday, 28.10.2016, 8.30 AM.
Fiedrich Karl Von Savigny foundeed his theory of possession on the text of
Roman Jurist Paul and emphasised that possession has two basic elements, namely,
corpus oossessionis and animua domini.9
3.2Possession according to Savigny
According Fiedrich Karl Von Savigny, Possession means an intention coupled
with the physical power to exclude all persons from the use of that material object. The
law gives the protection to the possessor. Possession is a fact. Mere intention is not
sufficient to complete the possession. The physical possession must be coupled with the
intention to possess that material or property. Then only a valid possession is completed.
Corpus possessionis is the second and essential element of possession.10
3.3 Elements of Possessions according to Savigny
Fiedrich Karl Von Savigny founded his theory of possession on the text of Roman
jurist Paul and emphasized that possession has two basic elements- a. Corpus
Possessionis (Physicaly Possessed, and b. Animus Possidendi (Intention to possess). In
other words possession has two elements physical and mental and for valid possession,
these two elements are must. One of them alone cannot form possession and can not
constitute possession.
According to Savigny corpus means, effective physical control of the things, that
is, immediate physical power to exclude any foreign agencys interference by the
possessor. Where as animus means, mental element or conscious intention to hold the
object or thing as owner against all others. According to him there can be no possession
without this mental element.11
8 Legal Philosophers: Savigny: German Lawgiver, Luis Kutner, 55 Marq. L. Rev. 280
(1972).
9 Question and answers on Jurisprudence & Legal theory, Manmohan Singh & S.K.
Husain, central law agency, allahabad-2, p. 210.
10 Jurisprudence & legal theory, answers to important questions, Gade Veera Reddy, Sujata
law books Pvt. Ltd., Hyderabad, p.66.
11 Studies in Jurisprudence and legal theory, Dr. N.V. Paranjape, Central law
agency, Allahabad-2, p. 395.
3.4Corpus possessionis
Corpus implies two things: a. Possessors physical relation to the object (res); b.
The relation of the possessor to the rest of the world. In the first case, the emphasis on
the physical contact of a person with a thing which he possesses so as to give rise to a
reasonable assumption that others will not interfere with it.
3.4.1
3.4.2
3.4.3
Secrecy
Keeping things hidden is another effective mode of excluding others from
interfering and keeping it secured.
3.4.4
Custom
The modern society believes in cutoms and traditions. If a man ploughs and sows
and reaps the harvest year after year, unless there is something contrary, he may
reasonably be expected to do it again and again and he is in possession of the field.
3.4.5
3.5
Animus Possidendi
It is said that mere juxtaposition is not possession. It must indicate some
possibility of physical control accompanied by a will to exercise such control. So the
subjective or mental element in possession is called animus possedendi which means
intention to appropriate and enjoyment of the thing possessed.
Case: N.N. Majumdar Vs Sate of West Bengal, AIR 1951 Cal. 140; In this case
the question of animus came up for the determination before the High Court of Calcutta.
In this case, the police made a search of the accusers house in the hope that the pistol
would be recovered from the house but no such recovery could be made. In the
meantime, the accused had a quick word with his wife who went out and returned within
three or four minutes with a pistol and some cartridges. The police took the plea that as
per Section 27 of the Evidence Act, it should be presumed that the pistol was recovered
from the possession of the accused. The Court however, rejected the contention of the
prosecution and held that the Arms Act being a special enactment, the fact of animus
must be specifically proved and mere existence of corpus without animus is ineffective
to constitute possession.12
12 Studies in Jurisprudence and legal theory, Dr. N.V. Paranjape, Central law agency,
Allahabad-2, p. 395.
13 Questions Answers on Jurisprudence & Legal theory, Manmohan Singh & S.K.
Husain, central law agency, Allahabad-2, p. 215.
possession with title and b. Possession without title. A person not having title to
possession could not claim the right of ownership. Yajnavalkya Smiti also says that if a
person continuously uses anothers property for 20 years he can claim ownership of it.
Gautam and Narada Purans also has similar examples. However, many things changed
with the coming of British Raj. The Indian Law does not accept the distinction between
possession and custody. The concept of possession has great role in determining the
rights and titles relating to property. The right of possession is protected under Section
145 of the Code of Criminal Procedure, 1973.14
14 Studies in Jurisprudence and legal theory, Dr. N.V. Paranjape, Central law
agency, Allahabad-2, p. 407.
Case: Puran Singh Vs Punjab State, AIR 1975, SC 1510: The Supreme Court
in this case held that where a trespasser has continuous, absolute and settled possession
over anothers land, he can not be ejected without recourse to due procedure of law and
he is entitled to retain possession even against the rightful owner unless the latter proves
a better title over the land. The Court reiterated its earlier stand once again regarding
advrse possession in Ram Ratan Vs State of Uttar Pradesh (1977)1 SCR 232.15
Case: B. Gangadhar Vs B.R. Rajalingam(1995) 5 SCC 241 ( decided on 12th
May 1995): In this case the Supreme Court has stated that possession may mean that
possession which is recognized and protected as such by law. Legal possession is
ordinarily associated with de facto possession; but legal possession may exist even
without de facto possession; and de facto possession is not always regarded as possession
in law. A person who although having no de facto possession is deemed to have
possession in law is said to have constructive possession. Explaining the relation
between possession and ownership, the Apex Court further pointed out that ownership is
de jure recognition of a claim to certain property. Possession is the objective realization
of ownership. It is the de facto exercise of a claim to certain property. Possession of a
right is the de facto relation of continuing exercise and enjoyment as opposed to the de
jure relation of ownership. Possession is, in fact, what ownership is in right enforceable
at law to or over the thing.16
15 Ibid., p. 407.
16 Ibid., p. 408
In Savignys classic words, law is first developed by custom and popular faith,
next by judicial decisionseverywhere, therefore, by internal silently operating powers,
not by the arbitrary will of a law-giver.
Savigny viewed law as a slow, almost imperceptible growth that is formed in
much the same way as a language is. Accordingly, legislation and law codes can, at most,
give mere verbal expression to a body of existing law whose meaning and content can
only be discovered by careful historical investigations. Historical jurisprudence opposed
not only attempts at codification but also those rationalist thinkers who sought to derive
legal theories from general and universal principles without respect to the characteristics
and customs of a particular people. Savigny sought rather to uncover the content of
existing law through historical research.
In 1815, shortly after the appearance of this epochal pamphlet, he founded,
together with K.F. Eichorn and J.F.L. Gschen, the Zeitschrift fr geschichtliche
Rechtswissenschaft (Journal of Historical Jurisprudence), which became the organ of
the new historical school of jurisprudence. In the same year, he began publishing
his Geschichte des rmischen Rechts im Mittelalter (181531; History of Roman
Law in the Middle Ages). This monumental work, in which Savigny used rigorous
critical techniques and consulted a vast body of primary sources, became the foundation
of the modern study of medieval law.
Savigny strove to establish a German science of civil law. His approach to legal
methodology was first put forward in a lecture at Marburg in the academic year 180203
(published in 1951 as Juristische Methodenlehre, nach der Ausarbeitung des Jakob
Grimm; Legal Methodology as Elaborated by Jakob Grimm). He held that legal
science should be both historical and systematic, meaning that it should endeavour to
show the inner coherence of the material handed down in the historical sources
of Roman law.
LATER WORKS: Savigny gave embodiment to his systematic
approach in his eight-volume treatise, System des heutigen rmischen
Rechts (184049; System of Modern Roman Law), a detailed analysis
of Roman law as it evolved in modern Europe. This work also contained
his system of international private law. In 1817 Savigny was made a
member of the Prussian Privy Council. In 1819 he was appointed to the
Berlin Court of Appeal and Cassation for the Rhine Provinces. In 1826
he became a member of the commission for revising the Prussian
code, and in 1842 he gave up his teaching position to accept a
ministerial post as head of the newly founded department for revision
of statutes. The Revolution of 1848 ended his governmental career. In
1850 he published a collection of his monographs, Vermischte
Schriften (Miscellaneous Writings), and in 185153 a two-volume
17 https://www.britannica.com/biography/Friedrich-Karl-von-Savigny, Friday,
28.10.2016, 3.15 pm
CONCLUSION
BIBLIOGRAPHY
LAST CHAPTER:
a
b
c
d
e
f
g
h
i
CASE STUDY:
Chapter 2
2.1The Continuance of Possession
2.1.1
2.1.2
2.1.3
2.1.4
2.3
2.4
I.
II.
TABLE OF CONTENTS
RESEARCH METHODOLOGY
a. Introductory
b. Aims and Objective
c. Statement of the problem:
d. Research Hypothesis:
e. Research Questions: a) Why do people say Possession is a difficult subject ?
b) Are there sufficient understanding on the subject ?
c) How is possession is related with Contract Act ?
d) What is Savigny and what is his contribution ?
e) Why the burden of proof must lie on the defedant ?
f.
g.
h.
i.
III.
IV.
TABLE OF CASES:
CHAPTER SCHEME:
a)
b).