POSSESSION

“Possession” literary means physical control over a thing or an object. It

expresses the closest relation of fact that can exist between a thing and the
person, who possess it.

In law, possession means it includes not only physical control over a thing but
also an intention to exercise that physical control. Example: A has an article in
his hand. In other words, he is in possession of that article.

The person who is in possession is called a ‘Possessor’.

Definition:
The concept of possession is though basic and essential in human life, it is a
difficult to define. There is no fixed or precise definition of possession because
it is legal as well as factual concept.

It is very difficult to define the term Possession. Some Jurists have given
different definitions.

John Salmond: Salmond defines Possession as, “possession is the continuing

exercise of a claim to the Exclusive use of an object.”

Savigny: Savigny defines Possession as, “intention coupled with physical

power to exclude others from the use of material object.

Why Law Protects Possession (Book)

Categories of Possession:
Possession is divided into two categories.

a) Possession in fact: De facto Possession :De facto Possession exists where the
thing is in the immediate occupancy of a party. The person in de facto
possession has the physical control of the thing to the exclusion of others and
has Animus and Corpus over the material object. De facto possession may be
described as actual Possession.

b) Possession in law: De jure Possession : De jure possession can be described

as posssession in law. De jure possession exists when person claims a thing as
his own in natural normal legal manner by occupying a thing without any
dispute as to his legal right to possess and enjoy the thing. Legal possession
may exist with or without property in possession. In case of De jure possession
it is just possible that a man I have ceased to live in a house but without
intending and to abandon it for good as the owner of the house.

Possession is Nine-Tenths of Law (Book)

Elements of Possession
There are two elements of possession:-

Physical control or power over the object possessed; and

The intention or will to exercise that power.

Corpus or physical control:-

1. The possessor’s physical relation to the rest of the object;

2. The relation of the possessor to the rest of the world.

Corpus means that the existence of such physical contact of a person with thing
as to give rise to a reasonable assumption that the others will not interfere with
it. There may be an actual physical contact, (a coin in my hand or in my purse in
the pocket) or there may be the cases when there is no physical contact e.g.,
when a person takes out the purse and drops by mistake coin in the gutter; he
walks ahead without noticing the loss– here the corpus remains with him until
someone else picked it up.

The second element of the corpus is that the possessor must have the ability to
exclude others. There is no hard and fast rule regarding the amount of power to
exclude others.

Animus or intention:-
Animus means an intention to hold possession again all others except the true
owner. That is to say, the animus is the conscious of the intention of an
individual to exclude the others from the control of an object.

The mental element in the possession may conceivably be manifested in the

following ways:-

First, the person holding the property need not be the owner and may exercise
animus to exclude others on behalf of the owners.

Secondly, animus to exclude others need not be in the interest of the processor
or on his own behalf.

Thirdly, animus to exclude others need not be specific.

Fourthly, the animus to exclude others need not be based on the legally
enforceable claim. It may be the result of a wrongful act.

Fifthly, the animus to exclude others need not be absolute. A person possesses
a piece of land notwithstanding the fact that some other person or even the
public at large possesses a right of way over it.
Sixthly, the animus to exclude others must be wide enough to include the
actual thing considered.

Theories of Possession
1. Savigny’s Theory of Possession

Savigny founded his theory of possession on the text of Roman jurist Paul and
emphasised that possession has two basic elements, namely,

Corpus Possessionis, an

Animus Domini.

By corpus, he meant effective physical control of the thing, that is, immediate
physical power to exclude any foreign agency’s interference by the possessor.

The animus in possession signified mental element or conscious intention to

hold the object or thing as owner against all others. Savigny conceived that
there can be no possession by fraud or force, is unlawful.

According to him, protection of possession is a branch of the protection to

person and as any act of violence to person is unlawful, so is the act which
disturbs possession by fraud or force, is unlawful.

2.Ihering’s Theory of Possession

Ihering’s theory of possession appears to be more practical and realistic. He

justified protection of possession under Roman law and said, “Whenever a
person looked like an owner in relation to a thing, he had possession of it,
unless possession was denied to him by rules of law based on practical
convenience.”
Thus, Ihering was more practical in approach and did not insist on presence of
animus as an element of possession. He considered animus only as a
supplemental element for possession.

3. Salmond’s Theory

Salmond denied that conception of possession in fact and possessions in law are
two different conceptions and observed that there is only one conception, which
is possession in fact.

He distinguished between possession of physical objects, which he called

“corporeal possession” and possession of rights; which he termed as
incorporeal possession.

According to him, corporeal possession is ‘the continuing exercise of claim to

the exclusive use of it.’

4. Holland’s Theory

Holland’s theory of possession is founded on preservation of peace in society. In

his view, the predominant motive that has induced the law to give protection to
possession was probably a concern for the preservation of peace. Possession
connotes respect for rightful claim of a person.

Kinds of Possession
Following are the important kinds of possession.

Corporeal Possession: Those things, which are having physical or material

existence, wherein direct relationship with the thing, are possible. For example,
House has physical existence which can be perceived by our senses. The
possession in the house therefore is Corporeal Possession. Therefore corporeal
possession is the possession of material things, movable as well as immovable
such as the Car , book , pen, wristwatch, etc.

Incorporeal Possession : It means Possession of immaterial or intangible

things. These are the things, which do not have physical existence and therefore
cannot be perceived by our senses. Therefore possession in respect of this thing
is known as incorporeal possession. For example – Copyright, Trademark,
Patent, Goodwill etc.

According to Salmond, corporeal possession is Possession of an object

whereas incorporeal possession is the possession of a right.

Mediate Possession : It is the Possession of a thing through another, either

through his friend, servant for agent. As the thing remains, in possession with
another, the possessor has lesser degree of physical control over such thing.

Illustration :

a. ‘X’ has a car, which he leaves with his driver. The possession of the driver
will be immediate whereas the Possession of ‘X’ will be mediate. 1. ‘A’
purchased a house through his agent and the agent got the possession. A’s
possession is said to be the mediate possession.

b. Immediate Possession : It is also called as Direct Possession. Direct or

primary possession by a person over a particular object, which acquires or gets
directly or personally. In immediate possession, as the thing is in possession of
the possessor directly, he has higher degree of control over such thing. It means
that there is no other person holding the thing.
Illustration :

a. ‘X’ has a car and he keeps it in his garage, this constitutes immediate
possession. 1. ‘A’ purchased a house and takes Possession of the property it is
called direct or immediate Possession.

b. Constructive Possession :Constructive possession is not actual possession it is

a possession in law and not possession in fact. According to Pollock and Wright,
it is a possession which arises only by the construction of law. Example : The
delivery of the keys of a building.

c. Adverse Possession :It means holding the land on his own behalf of some
other person. If adverse possession continues peaceful and undisturbed for that
number of years, he can claim ownership and the true owner’s right
( ownership) gets extinguished.

Modes of acquiring possession: (+BOOK)

There are 3 modes of acquiring possession

Delivery: Delivery completes voluntary act from one person to another. The
transferor gives actual position to the transferee. It is usually a lawful mode of
possession. Delivery may be actual of constructive. In actual delivery the thing
is physically delivered.

Taking: Taking implies an Act exclusively on the part of the person who
physically takes the Possession. It is acquisition of the Possession without the
consent of previous Possessor. It is the possession without the consent of the
Possessor. Sometimes it is said to be unilateral act. Transferee acquires the
possession without the knowledge or consent of the former Possessor of the
thing. It is usually possessio-civilis. It may or may not be lawful. If it is lawful
then it is legal possession. i.e. possessio-juri.

Operation of law: A third mode of the acquisition of possession is by

operation of law. It takes place when by the operation of law goods are removed
from the possession of one person to the other. For example, when a person
dies, the things in his possession pass to his personal representatives.