Concept of Person

The Concept of Person is a Fictional concept. In other words the idea is based on the
fictional understanding where we may refute the status of Person to living being,
whereas provide the same to non-living. The word “person ” is derived from the Latin
word "persona ” which meant a mask worn by actors playing different roles in a
drama. Until sixty century the word was used to denote the part played by a man in
life. Thereafter, it began to used in the sense of a living being capable of having rights
and duties.
Many writers have restricted the use of the term “personality ” to human beings alone
because it is only thy who can be subject-matter of rights and duties, and therefore of
juristic personality. But it must be stated that the term has a far wider connotation in
law and includes gods, idols, corporation, etc. though they are not human beings.
Further, in modern days Jurisprudence of Person includes non-human animals,
Roberts etc. But Conversely, there may be living persons such as slaves, who are not
treated as “person” law because they are not capable of having rights and duties.

The term "personality” in English "personalite" in French, “personlichkeit”, in

German are all derived form the classic Latin word "persona” which originally meant
the theatrical mask put on by the Greek actors on stage while acting in a drama. But
this concrete noun says ALLPORT, got converted and transformed itself into one that
is abstract and multiple in meaning. This gave rise to as many as fifty interpretations
of the term “personality” which have been discussed in detail by G.W.ALLPORT.
The theologist used the term "personality" to designate “the members of the trinity”
and later on the trinity were designate as "personae

The German jurist LITELMANA considers “will” as the essence of legal personality.
To quote him “personality is the legal capacity of will, the bodiliness of men for their
personality a wholly irrelevant attribute ”.
SALMOND defines a “person ” as, “any being to whom the law regards as capable of
rights or duties Any being that is so capable, is a person whether human being or not
and nothing that is no so capable is a person even though he be a man ”
SAVIGNY has defined the term "person” as the “subject or bearer of a right.
According to the Hindu law, idols are legal person. Although they have a personality
in the eye of law, they are not human beings. The term “personality ” has a wider
significance than humanity.
Under the Indian penal code the word person includes any company or association, or
body of persons, whether incorporated or not.
Thus “person” in juristic term are of two kinds namely natural and legal. The former
are human beings capable of rights and duties. Legal persons are beings who may be
real “natural” or imaginary “artificial” in whom law vests rights and duties and thus
attributes personality by way of fiction.
Background

The Term ‘Person’ and ‘Personality’ has a historical evolution. Roman Law, Greek
Law and Hindu Law had also used the concept. In Roman Law, the term was used in
synonymous with ‘caput’, means status. Thus, slave had imperfect persona.
Gradually they used/referred it in context of rights and duties. Similarly, there are
writings where animals or trees were given the certain rights and liabilities. In a sense
element of personality is attributed.
Status
Personality should be distinguished from status and capacity. “Status” is a word,
which is given various meanings. SALMOND says that generally there are four
meanings of the word: 1) Legal condition of any kind, whether personal or
proprietary. 2) Personal legal conditions, excluding proprietary relations. 3) Personal
capacities and incapacities as opposed to other elements of personal status. 4)
Compulsory as opposed to conventional legal position.
Capacity
Capacity means the rights and powers of a person by virtue of his being at a particular
position. A person can have many capacities. If a person is a judge he has the capacity
of a judge as well as the capacity of a citizen at the same time. But the double
capacity does not mean personality. His legal personality is only one. Therefore, a
person in one capacity cannot enter into a contract or an other alike legal transaction
with himself in his other capacity. On the same principle where a creditor become his
debtor’s executor, he could not sue himself. But, later on this hardship was mitigated
by giving the creditor a right of retainer. Similarly in many other cases this rule has
been relaxed.
Legal Position of an Unborn

A child in the mother’s womb has for many purposes been regarded by a legal fiction
as already born, in accordance with the maxim- Nasciturus Pro Jam nato baelor.

The fiction was intended that in all matters affecting its interests the unborn child in
“utero” should be treated as already born, but in English law, this fiction has been
applied only for the purposes of enabling the child if it is born to take a benefit (Elliot
v. Joicey, 1935). It has been thought reasonable that a posthumous child who has lost
his father should not be deprived of his benefits under Lord CAMPBELL’s act for the
death of his father.
In criminal law, too, an unborn child has been recognized in a number of offences. By
the time of COKE, it was well settled law that killing a child in mother’s womb was a
crime but not a felony and if the child was born alive and thereafter died of the pre-
natal injuries, it was murder. Thus, where the head of the child was extruded from its
mother’s womb and the surgeon in charge of the delivery was so grossly incompetent
that he crushed the skull of the child resulting him to death, the surgeon was held
guilty of manslaughter ( R v. Senior, 1832).
In an Irish case, where a claim was advanced by a female infant against a railway
company for injuries inflicted upon her while in her mother’s womb through an
accident due to the defendants negligence, it was hold by the Irish courts that no cause
of action was disclosed. The two of the four judges proceeded upon the ground that
the company owed no duty of care towards a person whose existence was unknown to
them, and not upon the ground that an unborn child possesses, in no case, any right of
immunity from personal harm. But in a Canadian case, a seven months pregnant
woman, who while descending from the term, was injured by the negligence of
Montreal Tramways servants and with the result she gave birth to a child with
deformed feet, was allowed, in an action on behalf of the child, to recover for the pre-
natal injuries (Montreal Tramways Co. v. Leveille, 1943)
The rights of an unborn child, whether proprietary or personal, are also contingent on
his birth as a living human being. The legal personality attributed to him by way of
anticipation facts away “ab initio” if he has never taken his place among the living.
A posthumous child may inherit, but if he dies in the womb, or is still born, his
inheritance fails to take effect, and none can claim through him, though it would be
otherwise if he lived for an hour after his birth. Again, though the law attributes no
right to a person not yet even conceived, it may protect their interests. (Tagore v.
Tagore 1872).

Legal Status of Dead Man

The question whether the deceased continues to have legal personality requires
careful consideration. Let us see whether the dead have any legal rights. The
testaments of the dead are respected and enforced by the law. This does not mean that
the dead have a right to have their wills enforced. The will is enforced in the interest
of the living legates to whom property is bequeathed. If the will does not contain any
disposition of property in favor of any human legatee, it will not be enforceable. This
shows that right to have a will enforced is not that of the testator but only that of the
living legates.
The reputation of the dead is also protected by the law. A libel on dead persons may
be actionable in a court of law. This is, however, not a recognition of any right in
favor of tire dead. The living relations of the deceased would be harmed by
defamatory statements against him. Example- section 499 IPC.
That is why such defamation is made actionable. It is obvious that the dead have no
rights. That they have no duties clear enough, for they are beyond the reach of the
sanctions of law. So deceased persons lose their personality with their lives.
In law, the dead are things, not persons. Being not punished after their death, they is
not entitled to any rights, though in following cases they have been given some rights.
1) Right of reputation (R v. Ensor, 1887, where it was also stated that this right to
reputation is in reality is protected not only of dead man but of his living
descendants.) 2) Right of will 3) Right of decent burial (R. v. Stewart, 1840) &
cremation (R v. Prince, 1884). It is stated by Salmond that generally speaking, the
personality of a human being may be said to commence with his birth and cease with
his death. Therefore dead men are no longer persons in the eyes of the law. They
cease to having rights since they cease to any interests nor do they have any duties.
He further point out three things in respect of which anxieties of living men extend
beyond the period of their deaths, of which law will take notice. They are men’s body;
reputation and his estate.
It is true that dead persons are not recognized as legal persons but the testamentary
dispositions of the dead are carried out by law. A person, can by his will make a valid
trust for repairs and maintenance of the graveyard because it amounts to a charitable
or public trust but he cannot, by a direction in his will provide that certain parts of his
estate shall be permanently used for the maintenance of his own grave or tomb. Such
a direction would be void and unenforceable being against the rule of perpetuity. The
law of succession permits the desires of the dead man to regulate the action of his
successors. (Draiviasundaram v. Subramania, 145 MLJ, 210 (Mad.). Whatever
gifted by the deceased for a charitable purpose shall be enforceable by law and the
testament to that extent shall be valid.

Legal Status of Animals

According to the traditionalist view, Law does not recognize beasts or lower animals
(term used by Salmond) as persons because they were merely things and have no
natural or legal rights. Salmond regards them as merely objects of legal rights and
duties, but never the subjects of them. Beasts being incapable of legal rights and
duties, their interests are not recognized by law. Though, legal history reveals that
archaic codes contained provisions regarding punishment to animals if they were
found guilty to homicide (writings of Sutherland). Even under the modem law the
trespassing beast may be detrained “damage feasant", and detained until its owner or
some one else interested in the beast pays compensation to the person wronged.
In his principles of criminology, Sutherland referred to an interesting trial of some
rats in 1519. They were charged and tried for ravaging the fields of a farmer. The
counsel for the defendant rats pleaded that no doubt their clients had caused severe
damage to the plaintiff but at the same time the numerous holes made by their clients
made the soil of the plaintiff more fertile. The court rejected the defense and awarded
the sentence of punishment. The court, however, ordered that while executing the
sentence, care should be taken that the rats are duly protected from dogs, cats, howls,
etc. so much so that taking a lenient view towards pregnant female -rats, the court
ordered to stay the execution of their sentence until they delivered the off-springs.

The modem law, however, holds the master liable for the wrong caused by their pets,
beasts and animals. The liability so imposed on the master does not arise out of the
principle of vicarious liability but because of his negligence in keeping the animal
well within control. But at the same time Law protect the rights of animals- e.g.
legislations that prevent Cruelty to animal (Prevention of Cruelty to Animal Act,
1960). Similarly, A trust for the benefit of a particular class of animals as opposed to
one for individual animals is valid and enforceable as public and charitable trust. But
in old case of Re Dean, Cooper Dean v. Stevens, 1889 a testator vested his property
in trustees for maintenance of his horses and hounds. North J. held that it was not a
valid trust enforceable in any way on behalf of these non-human beneficiaries.
Therefore the trustees were free to spend money in the manner indicated by the
testator if they so pleased, but even if they did not apply the money for this purpose, it
would not amount to a breach of trust.
But today, there is a change in understanding towards animals and we started giving
them status- protecting their rights- Indian Supreme Court Judgment in Jallikattu is
important in this regard. Similarly, example is of rights –status of Dolphins in US
and other European countries. The movement to recognize whale and dolphins as
individuals with self-awareness and a set of rights gained momentum three years ago
in Helsinki, Finland when scientists and ethicists drafted a Declaration of Rights for
Cetaceans. "We affirm that all cetaceans as persons have the right to life, liberty and
well-being.
At the same time there are many example where Environment Protection was ensured
by providing Person’s status to rivers and hills. E.g. of Whanganui river, new
Zeland; Te Urewera, forested hills, national park. In New Zealand local there was one
proverb that, “I am the river and the river is me.” later law acknowledges the river as
a “living whole”. In India also Uttarakhand declares Ganga and Yamuna rivers as
Living Legal Entities and gave these rivers the rights of a ‘juristic person’, which was
stayed by SC in 2017 and subsequently overruled the HC decision.
(https://www.downtoearth.org.in/news/water/sc-stays-uk-hc-order-declaring-ganga-
yamuna-living-entities-58245)

Legal Status of Idol, Mosque & Gurudwara

It has been judicially held that idol is a juristic person and as such it can hold
property. Its position is, however, like that of a minor and the priest, i.e. pujari acts as
a guardian to look after its interests. The Privy Council, in historic case of... Pramatha
Nath Mullick v. Pradymumna Kumar Mullic held that an idol is juristic person and
its will as to its location must be duly respected. The court directed that idol be
represented by "a disinterested next friend to be appointed by the court to put up its
point of view.
Similar view was reiterated by the supreme court of India in Yogendra Nath
Naaskar v. Commissioner of income Tax (1969 3 SCR 742) where in it was held
that an idol is a juristic person capable of holding property and of being taxed through
its "shebaits ” who are entrusted with the possession and management of its property.
An idol can be treated as a unit of assessment for assessing its liability under the
income tax act. The court further observed that if the idol “deity” is allowed in law to
own property, there is no reason why it should not be liable to be taxed under the law
of-taxation. It is because of the legal personality of idols that the rule against
perpetuity does not apply in case of religious endowments (Vijay Chand v Kalipad,
1914).
As regards the legal personality of a Mosque, the courts have expressed conflicting
views. In Maula Bux v. Hafizudding (IAR 1925 Lh 372) the high court of Lahore
held that a Mosque was a juristic person capable of being sued. But the Privy Council
held a contrary view in Masjid Shahid Ganj case (1940, 67 1A- 251) and observed
that mosques are not artificial persons in the eyes of law and, therefore, no suit can be
brought by or against them. However the Privy Council left the question open
whether for any purpose a mosque can be regarded as juristic person.
In case of Shriomani Gurudwara Prabandhak Committee, Amritsar v. Shri Som
Nath Dass & Ors, 20/03/2000 it was decided that Sri Guru Granth Sahib is a Juristic
Person, and it can purchase properties and hold and use the gifted properties given to
it by its followers out of their love.

Double Capacity distinguished from double Personality

According to Salmond, English law recognizes many different capacities in which

persons may act. At times he has power to do an act in an official or representative
capacity that he has no power to do in his private or individual capacity. Thus a man
may have two or more capacities but he has no power to enter into a legal transaction
with himself. Therefore double capacity does not mean double personality. For
example a director of a company may also be a trustee of a trust, thus he may have
two distinct capacities nevertheless his personality remaining single. The English law
did not recognize double personality and therefore, a person could not sue himself
(Neale v. Turton, 1827). A man may have more capacities but this does not give him
the power to enter into legal transaction with himself. “Double capacity does not
double personality”.
From the above discussion it is clear that law recognizes mainly two kinds of Person:
Natural & Legal. Legal persons are also known as artificial or fictional persons.
A natural person: is a living human being. But all living human beings need not
necessarily be recognized as persons in law. According to Holland-a natural person is
such a human being as is regarded by the law as capable of rights and duties - in the
language of Roman law, as having a status.

In other words, a natural person is a human being. But all human beings are not legal
persons. In olden days tire slaves were not considered legal persons. Tire case of the
slave is well known that they were treated no more than the mere chattels. Similarly, a
person who takes a religious or holy order or enters a monastery has in certain system
been treated as civilly dead.
In Hindu society, too, when a person becomes a “sanyasi" his proprietary rights
extinguish and his property goes to his heirs as if he were dead. At one time, human
beings who had been declared "outlaws " were not regarded as persons in the eyes of
the law and killing them was not homicide. Further, till long time persons with mental
disabilities are also not treated/considered as persons- e.g. in Indian Contract a person
with “unsound” mind is incapable to enter into contract. There are various writings
that provide a critique of person by claiming it a politics developed over a time and
violation of humanity. (I will be sending one such reading to understand the
proposition).
Legal Person: are real or imaginary beings to whom personality is attributed by law
by way of ‘'fiction ” whereas it does not exist in fact. Juristic persons are also defined
as these things, mass or property, group of human beings or an institution upon whom
the law has conferred a legal status and who are in the eye of law capable of having
rights and duties as natural persons. Law attributes by legal fiction a personality o
some real thing. A fictitious thing is that which does not exist in fact but which is
deemed to exist in the eye of law.
There are two essentials of a legal person and these are : i) The corpus. And ii) The
animus. The corpus in the body into which the law infuses the animus, will or
intention of a fictitious personality. The animus is the personality or the will of the
person. There is a "double fiction” in a juristic person is created or made an entity. By
the second fiction, it is claimed with the will of a living being.
Juristic persons come into existence when there is in existence a thing, a mass of
property an institution or a group of persons and the law attributes to them the
character of person. This may be done as a result of an act of the sovereign or by a
general rule prescribed by the government. Therefore a legal person has a real
existence but its personality is fictitious. Personification is essential for all legal
personality but personification does not create personality. Personification is a mere
metaphor. It is used merely because it simplifies thought and expression.

Theories of Corporate Personality

Now, there are many theories that show and reflect the nature and scope of this
corporate personality as created by law. These theories offer us a theoretical
perspective on the topic allowing us a better understanding. However, in the real world
with practical problems, they are of little use.

No one theory completely captures the essence of corporate personality. So here we

will look at a few of the popular ones,

1] Fiction Theory

As per the fiction theory, a corporation exists only as an outcome of fiction and
metaphor. So the personality that is attached to these corporations is done purely by
legal fiction. The legal person is created only in the eyes of the law for a specific
purpose. The theory was propounded by Savigny and backed by Salmond and Holland.
But this theory is criticized by Michound, he said that if corporate sole or aggregate is
fictitious or imaginary person and only exists in the eyes of law, then how it is possible
for them to hold a tangible property and further how they can hold rights because
rights can only be hold by real person and not fictitious.
2] Concession Theory

This is similar to the fiction theory. However, it states that the legal entity has been
given a corporate personality or a legal existence by the functions of the State. So as
per this theory, only the State can endow legal personalities, not the law. It is the
concession or grant from the side of state or law that created and recognized the legal
personality.

3] Realist Theory

This theory talks in contrast with fictitious theory. Gierke was the exponent of this
theory, he said that corporate has a real and recognized personality and law does not
create it. As per the realist theory, there is really no distinction between a natural
person and an artificial person. So a corporate entity is as much a person as a natural
person. So the corporation does not owe its existence to the state or the law. It just
exists in reality. This is not a very practical theory as it does not apply in the real
world.

4] Bracket Theory or Symbolic theory

This is one of the more famous and feasible theories of corporate personality. The
bracket theory is also known as the symbolist theory which states that a corporation is
created only by its members and its agents. So the people who represent the
corporation make up the corporation. The law only puts a bracket around them for
convenience purposes. So we consider these members and the corporation as one unit.
In the practical world, however, we find that the personality of the corporation is
separate than that of its members and agents.

5] Ownership Theory

This theory is developed by Bzinz, Bekker and Demelius and further elaborated by
Planiol. According to this theory human beings ate subjected to legal rights and not
corporations. Furthermore it is stated that juristic person or corporation is not a person
at all. These are subject less property which is a creation of law and this fictitious
personality are there only for possession property in common. Such personalities are
only form of ownership. Being in such ownership these personalities makes contract,
sustain legal proceeding like actual person.

Concept of Possession

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 sue of material things. Many
important legal consequences flow from the acquisition and loss of possession.
Besides being a “prima-facie” evidence of ownership, it is also one of the modes of
transferring ownership. Possession is said to be nine out often 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. For example, a thief who
steals may watch has a possession which the law will protect against everyone except
myself or some person acting on my behalf. Not forcibly is a wrongful act though the
possession of the person turns out to be wrongful. The defendant cannot take the
defence that some other person, other than the person dispossessed, had a title to the
land (Jafaries v. Great Eastern Rly). The remedy to recover possession is called
“possessory remedy” as provided by the statues (section 6 of specific Relief Act,
1963). According to HENRY MAINE, possession means that contact with an object
which involves the exclusion of other person from the enjoyment of it. Possession
denotes physical contact resumable at will.
In law, possession is the control a person intentionally exercises toward a thing. In all
cases, to possess something, a person must have an intention to possess it. A person
may be in possession of some property (although possession does not always imply
ownership). Like ownership, the possession of things is commonly regulated by states
under property law.
Intention to possess
An intention to possess (sometimes called animus possidendi) is the other component
of possession. All that is required is an intention to possess something for the time
being. In common law countries, the intention to possess a thing is a fact.
Normally, it is proved by the acts of control and surrounding circumstances.
It is possible to intend to possess something without knowing that it exists. For
example, if you intend to possess a suitcase, then you intend to possess its contents,
even though you do not know what it contains. It is important to distinguish between
the intention sufficient to obtain possession of a thing and the intention required to
commit the crime of possessing something illegally, such as banned drugs, firearms or
stolen goods.
The intention to exclude others from the garage and its contents does not necessarily
amount to the guilty mind of intending to possess stolen goods.
When people possess places to which the public has access, it may be difficult to
know whether they intend to possess everything within those places. In such
circumstances, some people make it clear that they do not want possession of the
things brought there by the public. For example, it is not uncommon to see a sign
above the coat rack in a restaurant which disclaims responsibility for items left there.
Possession is very difficult to define in English Jurisprudence. But it very important
topic. Human life and society would become impossible without retention and
consumption of material and non-material things. Food, clothes, tools, etc. are
essential items to use. We get hold over the first to claim possession. It is not just
acquisition of things but it is continuing claim for use of them. It may be legal or
illegal.
Corporeal and incorporeal possession
Corporeal possession is the possession of a material or tangible objects, thus it is
continuing exercise of a claim on the use of material or tangible object.
Incorporeal possession is the possession of a non-material or intangible object. Thus it
is continuing exercise of a claim on the use of non-material or intangible object.
There are two essential elements of possession, i.e., animus and corpus.
• Animus is the intent or mental condition or activity or claim of exclusive use of the
thing possessed. Cloth at tailor’s shop is in possession of tailor but he may not intend
to exclude the owner or subject of the owner. Animus may be legal or illegal. The
only test is whether the man in possession intends to exclude others or not. General
intent is enough to constitute possession. All books in library, all fishes in net, all
sheep in flock, are subject of intent whether in knowledge or not, thus possessio
completes.
• Corpus is second element, which is essential and completes possession. It is
objective part of possession. Both animus and corpus are necessary for possession.
The intent to exclude to others from interfering with the object possessed must be
evidenced by physical facts. If there is no action then no intention is expressed. Pen in
my pocket, ring on my finger, or goods in my home, are corpus of my possession of
each of these.
Kinds of corporeal possession
Immediate possession means direct or proximate possession without agency and
mediates possession means in between or remote possession. It is acquired with
agency.
• A being a servant holds something for his master B. A has immediate possession
while possession of B is mediate.
• Where both claim possession, e.g., tenant and landlord.
• In case of bailment, pledge or mortgage, both have claim.
A has exclusive right of possession on his land while right of way over his land is
concurrent.
How the possession is acquired?
Following are some points which can be referred to acquire or loss the ownership:
• Possession itself is evidence being owner. Pen in my hand is evidence being owner,
regardless legally or illegally.
• The person in possession is presumed to be the owner. A house in my possession is
presumed my ownership along-with all the things lying in it.
• Anything can be held wrongfully or by fraud.
• Long possession of twelve years confers the title in property, which may belong to
others. When a title is conferred to another even without ownership is acquisition of
possession.
Definition
Possession is defined as “it is continuing exercise of a claim to the exclusive use of
it.”
It does not cover incorporeal possession. Possession is different from ownership but
normally possession and ownership lie together.
How the possession is acquired?
Lease, renting out, pledge, mortgage, theft, fraud, and bailment etc. is the general
mode of acquisition of possession.
Possession is of two kinds, i.e.,
• possession in fact or de facto and
• possession in law or de jure.
Some discordance in law and fact occurs. Law something presumes which may not
actually exist. Normally possession in law and possession in fact exist in a person but
it may vary.
Possession in fact or de facto:
It means the possession, which physically exists in term of control over it. It can be
seen landlord and tenant where tenant holds possession of house physically or de
facto, but it is not possession in law or de jure.
Possession in law or de jure:
It is the possession which, in the eyes of law, exists. It may exclude physical control
over it. It is also called constructive possession. A servant may possess car, but in the
eyes of law, it is possession of master. Possession of bailor through bailee is de jure
possession on the part of bailor.
Importance of possession:
Possession is one of the most important concepts in property law. There are three
related and overlapping but not identical legal concepts:
1. Possession,
2. Right of possession and
3. Ownership.
In common law countries, possession is itself a property right. The owner of a
property has the right of possession and may assign that right wholly or partially to
another who may then also assign the right of possession to a third party. For
example, an owner of residential property may assign the right of possession to a
property manager under a property management contract who may then assign the
right of possession to a tenant under a rental agreement. There is a rebuttable
presumption that the possessor of property also has the right of possession, and
evidence to the contrary may be offered to establish who has the legal right of
possession to determine who should have actual possession, which may include
evidence of ownership (without assignment of the right of possession) or evidence of
a superior right of possession without ownership.
Possession of a thing for long enough can become ownership by termination of the
previous owner's right of possession and ownership rights. In the same way, the
passage of time can bring to an end the owner's right to recover exclusive possession
of a property without losing the ownership of it, as when an adverse easement for use
is granted by a court.
In civil law countries, possession is not a right but a (legal) fact which enjoys certain
protection by the law. It can provide evidence of ownership but it does not in itself
satisfy the burden of proof. For example, ownership of a house is never proven by
mere possession of a house.
Possession is a factual state of exercising control over an object, whether owning the
object or not. Only a legal (possessor has legal ground), bona fide (possessor does not
know he has no right to possess) and regular possession (not acquired through force
or by deceit) can become ownership over passage of time. A possessor enjoys certain
judicial protection against third parties even if he is not the owner.
Distinction between ownership and possession
There may be varying degrees of rights to possession. For example, if you leave a
book that belongs to you at a cafe and the waiter picks it up, you have lost possession.
When you return to recover the book, even though the waiter has possession, you
have a better right to possession and the book should be returned. This example
demonstrates the distinction between ownership and possession: throughout the
process you have not lost ownership of the book although you have lost possession at
some point.
Completion of possession
• Power of possession: It shows possession. Books or watch in my hand excludes
others thus possession is complete. Things under lock and key are also possession.
• Presence of possession: A person may be feeble and unable to exclude other but his
presence may command respect. Cash in the hand of child is possession.
• Secrecy: Mere knowledge that I have cash in bank, which is exclusive knowledge, is
possession.
• Continuing use: I use pen continuously, read book continuously, use of transport
continuously, is possession.
• Customs: In some localities people are not allowed to interfere to other things even
presence is not there, like in Saudi Arabia where people leave their shops remain open
and go to offer prayer and no interference is allowed. It is possession even in absence.
• Respect of rightful claim: In law-abiding societies people do not interfere in the
right of other and rightful claim generally obtain security from general acquisition.
Obtaining possession
Possession requires both control and intention. It is obtained from the first moment
that both those conditions exist simultaneously. Usually, intention precedes control, as
when you see a coin on the ground and reach down to pick it up. Nevertheless, it is
conceivable that a person might obtain control of a thing before forming the intention
to possess it. If someone unknowingly sat on and therefore had control of a coin on
the seat of a train, he or she could obtain possession by becoming aware of the coin
and forming the intention to possess it.
People can also intend to possess things left, without their knowledge, in spaces they
control.
Possession can be obtained by a one-sided act by which factual control is established.
This can take the form of apprehension (means taking an object not in someone's
possession) or seizure (means taking an object in someone's possession). It can also
be obtained through a two-sided process of handing over the possession from one
party to another. The party handing over possession must intend to do so.
Acquisition of possession
Possession is acquired when both the animus and corpus are acquired:
• By taking: When someone takes anything, he has possession. It may either be
rightful or wrongful possession.
• By delivery: The thing is acquired by delivery with consents of previous possessor.
• Actual delivery: Actual delivery is a kind in which goods are delivered while
constructive delivery is the rental or sold goods.
Possession acquired by consent
Most property possessed is obtained with the consent of someone else who possessed
it. They may have been purchased, received as gifts, leased, or borrowed. The transfer
of possession of goods is called delivery.
For land, it is common to speak of granting or giving possession.
A temporary transfer of possession is called a bailment.
Bailment is often regarded as the separation of ownership and possession. For
example, the library continues to own the book while you possess it and will have the
right to possess it again when your right comes to an end. A common transaction
involving bailment is a conditional sale or hire-purchase, in which the seller lets the
buyer have possession of the thing before it is paid for. The buyer pays the purchase
price in installments and, when it is fully paid, ownership of the thing is transferred
from seller to buyer.
Possession acquired without consent
It is possible to obtain possession of a thing without anyone else's consent.
· First, you might take possession of something which has never been possessed
before. This can occur when you catch a wild animal; or create a new thing, such as a
food.
· Secondly, you might find something which someone else has lost.
· Thirdly, you might take something from another person without their consent.
Possession acquired without consent is a property right which the law protects. It
gives rise to a right of possession which is enforceable against everyone except those
with a better right to possession.
Forms of transferring possession
There are various forms of transferring possession.
One can physically hand over the object (e.g. handing over a newspaper bought at the
newsstand) but it is not always necessary for the party to literally grab the object for
possession to be considered transferred.
It is enough that the object is within the realm of factual control (e.g. leaving a letter
in the letterbox).
Sometimes it is enough for a symbol of the object which enables factual control to be
handed over (e.g. handing over the keys to a car or a house).
Termination of Possession
One may also choose to terminate possession, as one throws a letter in the trash.
Possession includes having the opportunity to terminate possession.
Res nullius
Res nullius means ownerless things or objects. Terra nullius means no man land. A
person, who finds lost goods, while passing on road, e.g., a wallet, being first finder,
he has good title against the whole world except the true owner, even if it is found on
another person property without committing trespass. This is the rule.
Any other person who looks at finder of lost goods cannot demand his share from lost
goods. If a customer finds a lost wallet while shopping in a store, which is not
identifiable, can retain till reasonable time to wait its true owner. He is obliged to
bring this matter into the knowledge of shopkeeper and give him his own address. If
true owner did not come till reasonable time, he will hold title.
There are many other things which have no owner, i.e., gems stone, metal, gold,
silver, natural resources, bird, animal, provided these things are found in way, without
committing trespass. Precious stone cannot be held from the area specified by
government. Bird or fish cannot be hunt from the area of property holder. Things
cannot be hold from others house. Bird cannot be hunt, which is prohibited.
There are three exceptions in this rule:
• Owner of the property on which the thing is found is in possession of the thing
itself as well as property, or
• If the finder is servant or agent then master or principal has title, or
• Wrongful act does not constitute possession. Trespass is not allowed.

Case Laws
In case of Pierson v. Post, 1805, Lodowick Post, a local resident, was out with a
hunting party when his hunting dogs caught the scent of a fox and began pursuing it.
As they drew near the fox, Jesse Pierson, another local resident, saw the fox—though
he denied seeing Post and his party—and promptly killed it and carried it off for
himself. Post filed a lawsuit against Pierson claiming that because he had already
begun pursuing the fox, the property of the fox's pelt and carcass were rightfully his,
not Pierson's. The local justice ruled in favor of Post. Pierson appealed to Supreme
Court, and court revered the decision in favor of Pierson. For detail refer to the link:
(https://law.olemiss.edu/assets/pierson-v-post-Gershon.pdf).
In case of Bridges v. Hawkesworth, 1851 it was decided by the court that the bundle
of notes found on the floor of a shop passed into the possession of the finder rather
than the shopkeeper.
In R v. Reley, the accused was driving his herd of sheep, some of the prosecutor’s
sheep joined the herd and were driven away by the accused along with his own. This
mistake came to his notice after he had sold the entire flock of sheep. The accused
was held to have taken possession of the sheep which belonged to the prosecutor and
which he unknowingly above with his own flock to the market.
R v. Harding, 1929, in the instant case the accused was convicted of stealing a
raincoat from a maid servant who. as against the master, had more custody of the
raincoat and could herself have been convicted of larceny had she dishonestly made-
off with it. In the eyes of law she had possession as against the thief but not as against
the employer.
 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.
The concept of ownership is vague and therefore explained and defined by scholars in
different ways. But all of them agreed in common and accept the right of ownership
as complete or supreme right that can be exercised over anything.
According to Hibbert ownership includes four kinds of rights within itself.
• Right to use a thing
• Right to exclude others from using the thing
• Disposing of the thing
• Right to destroy it.
Austin while defining ownership has focused on the three main attributes of
ownership, namely, indefinite user, unrestricted disposition and unlimited duration.
• Indefinite User
• Unrestricted Disposition
• Unlimited Duration
Therefore Essentials of Ownership includes- indefinite point of user; unrestricted
point of disposition; right to possess; right to exhaust; residuary character; right to
destroy or alienate.

In today’s modern ‘welfare state, it is state which has the ultimate right over property
and it can interfere in the ownership rights of any person. The removal of right to
property as fundamental right was a move in this regard. Further, The abolition of
Zamindari system in India, the abolition of privy purses, Nationalization of Bank and
 Companies, etc. are some example of the fact that the ownership can be cut short by
the state for public purpose and its duration is not unlimited.
Austin’s definition has been followed by Holland. He defines ownership as plenary
control over an object. According to him an owner has three rights on the subject
owned
• Possession
• Enjoyment
• Disposition

Planetary control over an object implies complete control unrestricted by any law or
fact. Thus, the criticism levelled against Austin’s definition would apply to that given
by Holland in so far as the implication of the term “plenary control” goes.
According to the Salmond - ownership vests in the complex of rights which he
exercises to the exclusive of all others. For Salmond what constitute ownership is a
bundle of rights which in here resides in an individual. Salmond’s definition thus
point out two attributes of ownership:
• Ownership is a relation between a person and right that is vested in him
• Ownership is incorporeal body or form
Subject matter of Ownership
One of the subject matters of ownership is a material object. 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. The subject-matter broadly include- The right to manage; The right to
posses; The right to capital; The right to the income.
 Modes of Acquiring Ownership
Ownership may be acquired by 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.

Under modern law there are the following modes of acquiring ownership which may
be broadly classed under two heads, viz,.
1. Original mode:
2. Derivative mode:
Original mode
The original mode is the result of some independence personal act of the acquire
himself. The mode of acquisition may be three kinds
1. Absolute: when an ownership is acquired by over previously ownerless object.
2. Extinctive: which is where there is extinctive of previous ownership by an
independence adverse act on the part of the acquiring. This is how a right of easement
is acquiring after passage of time prescribed by law.
3. Accessory: that is when requisition of ownership is the result of accession. For
example, if three fruits, the produce belongs to the owner unless he has parted with to
the same. When ownership is derived from the previous version of law then it is
called derivate acquisition. That is derived mode takes place from the title of prior
owner. It is derived either by purchase, exchange, will, gift etc.

Indian Transferee Acts of property rules for the transfer of immovable property, Sale
of goods Acts for the transfer of property of the firm and the companies Act for the
transfer of company property.

Characteristics of Ownership
An analysis of the concept of ownership, it would show that it has the following
characteristics:
Ownership may either be absolute or restricted, that is, it may be exclusive or limited.
Ownership can be limited by agreements or by operation of law. The right of
ownership can be restricted in time of emergency. An owner is not allowed to use his
land or property in a manner that it is injurious to others. His right of ownership is not
unrestricted. The owner has a right to posses the thing that he owns. It is immaterial
whether he has actual possession of it or not. The most common example of this is
that an owner leasing his house to a tenant. Law does not confer ownership on an
unborn child or an insane person because they are incapable of conceiving the nature
and consequences of their acts.
· Ownership is residuary in character. The right to ownership does not end with the
death of the owner; instead it is transferred to his heirs. Restrictions may also be
imposed by law on the owner’s right of disposal of the thing owned. Any alienation of
property made with the intent to defeat or delay the claims of creditors can be set
aside.

Kinds of Ownership
There are many kinds of ownership and some of them are corporeal and incorporeal
ownership, sole ownership and co-ownership, legal and equitable ownership, vested
and contingent ownership, trust and beneficial ownership, co- ownership and joint
ownership and absolute and limited ownership.

Ownership may be classified under the following heads :

I. Corporeal and incorporeal ownership;
2. Sole ownership and co-ownership;
3. Legal and equitable ownership;
4. Trust and beneficial ownership; .
5. Vested and contingent ownership; and .
6. Absolute and limited ownership;

Corporeal and Incorporeal Ownership

Corporeal ownership is the ownership of a material object and incorporeal ownership
is the ownership of a right. Ownership of a house, a table or a machine is corporeal
ownership. Ownership of a copyright, a patent or a trademark is incorporeal
ownership. The distinction between corporeal and incorporeal ownership is connected
with the distinction between corporeal and incorporeal things.
Incorporeal ownership is described as ownership over tangible things. Corporeal
things are those which can be perceived and felt by the senses and which are
intangible.
Incorporeal ownership includes ownership over intellectual objects and
encumbrances.

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is
owned by two persons at the same time. The relation between the two owners is
such that one of them is under an obligation to use his ownership for the benefit
of the other. The ownership is called beneficial ownership. The ownership of a
trustee is nominal and not real, but in the eye of law the trustee represents his
beneficiary.
In a trust, the relationship between the two owners (one is trustee owner and another
is beneficiary owner) is such that one of them is under an obligation to use his
ownership for the benefit of the other. The former is called the trustee and his
ownership is trust ownership. The latter is called the beneficiary and his ownership is
called beneficial ownership.
In simple terms, A trust is an instance of duplicate ownership namely, trust ownership
and beneficial ownership. In a trust certain property is given in trust or confidence to
a person or a definite group of persons to be held under an obligation for the benefit
of some other persons or group of persons.
Trust is defined as an obligation annexed to the ownership of property, and arising out
of a confidence reposed in and accepted by the owner, or (b) declared and accepted by
him for the benefit of the other.

Legal and Equitable Ownership

Legal ownership is that which has its origin in the rules of common law and equitable
ownership is that which proceeds from the rules of equity. In many cases, equity
recognizes ownership where law does not recognize ownership owing to some legal
defect.
Legal rights may be enforced in rem but equitable rights are enforced in personam as
equity acts in personam. One person may be the legal owner and another person the
equitable owner of the same thing or right at the same time.
The equitable ownership of a legal right is different from the ownership of an
equitable right. The ownership of an equitable mortgage is different from the
equitable ownership of a legal mortgage.

There is no distinction between legal and equitable estates in India. Under the Indian
Trusts Act, a trustee is the legal owner of the trust property and the beneficiary has no
direct interest in the trust property itself. However, he has a right against the trustees
to compel them to carry out the provisions of the trust.
For information, but in English law recognises two forms of ownership—legal and
equitable. In England before the passage of Judicature Acts of 1873, and 1875 there
existed two kinds of Courts with two quite distinct jurisdictions. These two Courts
were known as the Common Law Courts and the Equity Courts.
The rights reognised and protected by the Common Law Courts were called legal or
Common Law Rights and the rights enforced by Equity Courts were known as
equitable rights.
Legal ownership is, therefore, that ownership which was or recognised by the rules of
Common Law, while equitable ownership is that which originated from the rules of
equity.
Equitable ownership was thus not recognised by the Common Law Courts. The
Chancery or Equity Courts recognised legal ownership as well as the equitable
ownership.
Keeton says, “This quality of legal and equitable ownership arises, whenever one
person holds the legal title to property, the beneficial enjoyment of which is vested in
another. Thus the legal owner is he whom the Common law could designate as the
owner ; the Equitable owner is that person whom the Court of Chancery would
formerly have protected in the enjoyment of a thing.”

Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested ownership when the title of the
owner is already perfect. It is contingent ownership when the title of the owner is yet
imperfect but is capable of becoming perfect on the fulfillment of some condition.
In case of vested ownership, ownership is absolute, whereas it is conditional for
contingent ownership.
For instance, a testator may leave property to his wife for her life and on her death to
A, if he is then alive, but if A is dead to B. Here A and B are both owners of the
property in question, but their ownership is merely contingent. It must, however, be
stated that contingent ownership of a thing is something more than a simple chance or
possibility of becoming an owner. It is more than a mere spes acquisitionis. A
contingent ownership is based upon the mere possibility of future acquisition, but it is
based upon the present existence of an inchoate or incomplete title.
It is vested when the owner’s title is already perfect; it is litingent when his title is as
vet imperfect, but is capable of becoming perfect on the fulfilment of some condition
or contingency. Vested own-ership is absolute, contingent ownership is conditional. It
is subject to conditions and it may be made to commence or cease upon the
ascertainment that a certain fact does not exist.
Thus, I may be the owner of a piece of land on condition of paying a certain fixed
sum of money annually to the State. My ownership is thus conditional on the annual
payment of the money.
Contingent ownership is not spes acquisitionis—Simple chance or mere possibility of
becoming owners—but more than that. It is more than a mere future possibility but
the existence of an inchoate or incomplete title in the present, capable of achieving
completion and perfection on the happening of a given contingency in future.
The conditions on which ownership depends may be either ‘condition precedent’ or
‘condition subsequent’. A condition precedent is one by the fulfilment of which a title
is completed ; a condition subsequent is one on the fulfilment of which a title already
completed is extinguished. In the former case ownership which was formerly
conditional becomes ab-solute. In the later case the ownership which is already lost
conditionally, is lost absolutely. In case of a condition subsequent ownership is not
contingent but vested. For the condition attached to the ownership it is not with regard
to commencement of ownership but with regard to continence of it.

Sole Ownership and Co-ownership

Ownership may be either sole or duplicate. When it is vested in one person it is called
sole ownership; when it is invested in two or more persons at the same time, it is
called duplicate ownership.
 The chief instances of duplicate ownership are;
(i) Co-ownership;
(ii) Trust and beneficial ownership;
(iii) Legal and equitable ownership;
(iv) Vested and, contingent ownership.
Co-ownership that is to say, ownership shared by several persons with equal or co-
ordinate results may be of two kinds, namely:—
(a) Joint ownership, and
(b) Ownership-in-common.
(a) ‘Joint ownership’ is that where on death of one of the co-owners the whole right
ensures for the benefit of surviving co-owner or co-owneers, until at last when the last
survivor of the joint owners, dies, it would devolve on his heirs. The heirs of a
predeceased co-owner will not get any share at all in the property of the joint owner.
(b) “Ownership-in-common” is that where, on the death of one of the co-owners, his
heirs step into his shoes.
Ordinarily, a right is owned by one person only at a time. However, duplicate
ownership is as much possible as sole ownership. When the ownership is vested in a
single person, it is called sole ownership; when it is vested in two or more persons at
the same time, it is called co-ownership, of which co-ownership is a species. For
example, the members of a partnership firm are co-owners of the partnership
property.
Under the Indian law, a co-owner is entitled to three essential rights, namely
• Right to possession
• Right to enjoy the property
• Right to dispose

Co-ownership and Joint Ownership

According to Salmond, “co-ownership may assume different forms. Its two chief
kinds in English law are distinguished as ownership in common and joint ownership.
The most important difference between these relates to the effect of death of one of
the co-owners. If the ownership is common, the right of a dead man descends to his
successors like other inheritable rights, but on the death of one of two joint owners,
his ownership dies with him and the survivor becomes the sole owner by virtue of this
right of survivorship.
Absolute and Limited Ownership
An absolute owner is the one in whom are vested all the rights over a thing to the
exclusion of all. When all the rights of ownership, i.e. possession, enjoyment and
disposal are vested in a person without any restriction, the ownership is absolute. But
when there are restrictions as to user, duration or disposal, the ownership will be
called a limited ownership.

For example, prior to the enactment of the Hindu Succession Act, 1956, a woman had
only a limited ownership over the estate because she held the property only for her
life and after her death; the property passed on to the last heir or last holder of the
property. Another example of limited ownership in English law is life tenancy when
an estate is held only for life.

Difference between Possession & Ownership

Possession and ownership are deeply interrelated with each other. While one is a
factual concept, the other is a strictly legal concept. Both of these concepts together
govern the right to property of an individual. The concept of ownership flows from
that of possession and the proof of better title (ownership) over a thing by one leads to
the loss of possession of the thing by another. Therefore, it is essential to evaluate the
interrelation between possession and ownership in order to clearly understand both
the concepts and apply them correctly and accurately to solve legal problems.

Possession without ownership

There may be rights which exist in fact but may not be legally recognized. Therefore,
one may be in lawful possession of an object but may not have any title over it, that
is, no ownership of it. For example, a person may possess intellectual property rights
even though they may not be recognized as legal rights.

Ownership without possession

There may be rights which can be legally owned but cannot be possessed. Such rights
are known as transitory rights. These rights cannot be possessed since they cannot be
exercised without being destroyed. An example of this may be the right of the creditor
to recover the amount due to him. He owns such a right but does not possess it since
once he successfully exercises his right to recover the debt, it ceases to exist. A
deviation from this has been observed in the case of Rahimtoola v. Nizam of
Hyderabad wherein the creditor, who was the Government of Pakistan, was said to
be in “possession and control” of the right to recover the debt due from a bank.