POSSESSION

SYNOPSIS

1. Definition .............................................1 (viii) Duplicate possession .............. 3

2. Element of possession ..........................1 Modes of acquisition of Possession:- ... 3

(i) Corpus possessionis ...................1 1. By taking possession......................... 4

(ii) Animus possidendi ......................1 2. By delivering possession .................. 4

3. Kinds of possession...............................1 i. Actual delivery ........................... 4

(i) Immediate and Mediate ..............1 ii. Constructive delivery ............. 4

Kinds of mediate possession: ............2 i. Actual Delivery:-........................ 4

(ii) Corporeal and Incorporeal ..........2 ii. Constructive delivery ..................... 4

(iii) Representative possession ..........2 a) Traditio brevi manu ................ 4

(iv) Concurrent possession ................2 b) Constitutum possesorium ....... 4

(v) Derivative possession .................3 c) Attornment.............................. 4

(vi) Constructive possession .............3 3. By operation of law of inheritance

.............................................................. 5
(vii) Adverse possession ....................3

1. Definition:-
 According to Salmond, “in the whole range of legal theory, there is no
conception more difficult than that of possession.”
 According to Bentham, “legal possession cannot be defined absolutely and
perfectly, but for practical purposes certain conditions and rules of legal
possession can be laid down for the guidance of the courts.”

2. Element of possession:-
According to Roman Law essential elements of possession are as under:-
(i) Corpus possessionis: The physical aspect of possession. It comprises
of the power to use the thing possessed and the existence of grounds
for the expectation that the possessor’s use will not be interfered with.

(ii) Animus possidendi: It is intent to appropriate to oneself the exclusive

use of the thing possessed.

3. Kinds of possession:-
(i) Immediate and Mediate: Immediate possession is also called direct
possession and mediate possession is also known as indirect
possession.
Example: If the relation between the possessor and the thing
possessed is a direct one, it is a case of immediate possession. When

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the relation is through the intervention or agency of some other person,

it is called mediate possession.

Kinds of mediate possession:

There are three kinds of mediate possession which are as under:-
(a) The first is that which is acquire through an agent or servant;
that is to say, through someone who holds solely on my account and
claims no interest of his own.

Example: When I allow my servant to use my tools in his work, or

when I send him to buy or borrow a chattel for me, or when I deposit
goods with a warehouseman who holds them on my account, or when I
send my boots to a shoemaker to be repaired.

In all the above said cases, though the immediate possession is

in the servant, warehouseman, or artisan, the mediate possession is in
me; for the immediate possession is held on my account.

(b) The second kind of mediate possession is that in which the

direct possession is in one who holds both on my account and on his
own, but who recognises my superior right to obtain from him the direct
possession whenever I choose to demand it.

Example: In case of a borrower or tenant at will, I do not lose

possession of a thing because I have lent it to someone who
acknowledge my title to it and is prepared to return it to me on demand,
and who in the meantime holds it and looks after if on my behalf.

(c) The third kind of mediate possession, respecting which more

doubt may exist, but which must be recognised by sound theory as true
possession. It is the case in which the immediate possession is in a
person who claims it for himself until some time has elapsed or some
condition has been fulfilled, but who acknowledges the title of another
for whom he holds the thing, and to who he is prepared to deliver it
when his own temporary claim has come to an end.
Example: When I lend a chattel to another for a fixed time, or deliver it
as a pledge to be returned on the payment of a debt, Even in such a
case I retain possession of the thing, so far as third persons are
concerned.

(ii) Corporeal and Incorporeal: Corporeal possession is the possession

of a material object and incorporeal possession is the possession of
anything other than a material object.

(iii) Representative possession: Representative possession is that in

which the owner has possession of a thing through an agent or a
servant
.
(iv) Concurrent possession: In the case of concurrent possession, the
possession of a thing may be in the hands of two or more person at the

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same time. Claims which are not adverse and which are not mutually
destructive admit of concurrent realization. Two or more persons may
possess the same thing jointly.

(v) Derivative possession: In the case of derivative possession, the

holder of the thing combines in himself both the physical and mental
elements which constitute legal possession.
Example: A creditor has a derivative possession of the thing pledged
to him. Likewise, a watchmaker has derivative possession of a watch
entrusted to him for repairs so long as the repair charges are not paid.

(vi) Constructive possession: It is not actual possession. It is a

possession in law and not possession in fact. The good sold by me are
lying in a warehouse and if I hand over the keys of the warehouse to
the purchaser, the latter comes to have the constructive possession of
the thing.

(vii) Adverse possession: The possession of property by a person is

adverse to every other person having or claiming to have a right
to the possession of that property by virtue of a different title.
a) To be adverse, possession must be an invasion of the
ownership of another.
b) It should be actual, exclusive and adequate in continuity
and publicity.
c) The acts of possession must be exercised without violence,
without stealth and without permission.
d) When these conditions are present, possession is
considered to be adverse.
e) The conception of adverse possession is very important in
law because when it had for the period laid down by law, it
extinguishes the title of the true owner and creates a title in
the adverse possession.

(viii) Duplicate possession: Possession is a right to exclusive use and

it is not possible for two persons to have independent and
adverse claims to possession of the same thing at the same time.
The possession of a thing by one person is compatible with its
possession by another only when the two claims are not mutually
adverse. Claims to possession which admit of concurrent
realization give rise to duplicate possession
Modes of acquisition of Possession:-
Transfer or acquisition of possession can be done in the following three ways
which are as under:-

1. By taking possession ,
2. By delivering possession,
3. By operation of law of inheritance.

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1. By taking possession:-
 It means acquisition of possession without the consent of the previous
possessor.
 The thing taken may or may not have been already in the possession of some
one else, and in either case the taking of it may be either rightful or wrongful.

2. By delivering possession:-
 Acquisition of possession by delivery means acquisition of possession with
the consent and co-operation of the previous possessor.
 It is of two kinds, distinguished by law as under:-

i. Actual delivery

ii. Constructive delivery

i. Actual Delivery:-
 Actual delivery is the transfer of immediate possession; it is such a
physical dealing with the thing as transfers it from the hands of one
person to those of another.
 It is of two kinds, according as the mediate possession is or is not
retained by the transferor.
 The delivery of a chattel by way of sale is an example of dlivery without
any reservation of mediate possession; the delivery of a chattel by way
of loan or deposit is an instance of the reservation of mediate
possession on the transfer of immediate.
 Actual delivery may be either to the deliveree himself or to a servant or
agent for him.

ii. Constructive delivery:-

 Constructive delivery, on the other hand, is all which is not actual, and
it is of three kinds which is as under;-

a) Traditio brevi manu

b) Constitutum possesorium

c) Attornment

a) Traditio brevi manu:-

 Traditio brevi manu is termed by Roman lawyers, but it has no

recognised name in the language of English law.
 It consists in the surrender of the mediate possession nof a thing to him
who is already in immediate possession of it.
 Example: I lend a book to someone, and afterwards, while he still
retains it, I agree with him to sell it to him, or to make him a present of
it, I can effectually deliver it to him in fulfilment of this sale or fit, by
telling him that he may keep it. It is not necessary for him to go through
the from of handing it back to me and receiving it a second time from
my hands. For he has already the immediate possession of it, and all

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that is needed for delivery under the sale of gift is the destruction of the
animus through which mediate possession still retained by me.

b) Constitutum possessorium:-

 The second form of constructive delivery is that which the

commentators on the civil law have termed constitutum possesorium
(that is to say, an agreement touching possession).
 This is converse of tradition brevi manu. It is the transfer of mediate
possession, while the immediate possession remains in the transferor.
 Any thing may be effectually delivered by means of an agreement that
the possessor of it shall for the future hold it no longer on his own
account but on account of some one else.
 No physical dealing with the thing is requisite, because by the mere
agreement mediate possession is acquired by the transferee, through
the immediate possession retained by the transferor and held on the
other’s behalf.
 Example: If I buy goods from a warehouseman, they are delivered to
me so soon as he has agreed with me that he will hold them as
warehouseman on my account. The position is then exactly the same
as if I had first taken actually delivery of them, and then brought them
back to the warehouse, and deposited them there for safe custody.

c) Attornment:-
 The third form of constructive delivery is that which is attornment.
 This is the transfer of mediate possession, while immediate
possession remains outstanding in some third person. The mediate
possessor of a thing may deliver it by procuring the immediate
possessor to agree with the transferee to hold it for the future on his
account, instead of on account of the transferor.
 Example: If I have goods in the warehouse of A and sell them to B, I
have effectually delivered him, and no longer for me. Neither in this
nor in any other case of constructive delivery is any physical dealing
with the thing required, the change in animus of the persons
concerned being adequate in itself.

3. By operation of law of inheritance:- In Islamic Republic of Pakistan

possession is transferred by operation of law of inheritance to the legal heirs.
If a person dies, the constructive possession of his property is transferred to
his legal representatives by operation of Islamic Law of Inheritance.

Possession is said to be 9/10 of law. Discuss Sup. 2006

Define possession. What are the various modes of acquisition of possession? Sup. 2007

Define possession, discuss various modes of acquisition of possession. Sup. 2008 Ann.
2009

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