OWNERSHIP &

POSSESSION
ANU SOLANKI KAMBLE
 INTRODUCTION

 It is a conception that ownership and possession refers to the same thing. Both ownership, as well as possession, can simply be
defined as a state, act, or right of owning something.
 However, in legal terms, they have different meanings.
 The main difference between possession and ownership is that possession is requiring a physical custody or control of an object
while ownership is the right through which something goes to someone.
 Ownership can be considered as a fact that can be proved through the title of the property. The idea of ownership is followed by
the idea of possession. The ownership is defined as the de jure recognition of the property rights.
 Possession can be defined as physical custody or control of any object. Possession is not same as ownership. A criminal might be
in ownership of the stolen property or money which really belongs to another person. Often possession of a weapon from a suspect
is detained against him as if he has used it to commit any crime.
 In this sense the concept of possession is narrow. The possession had limited rights to consume, destroy and use. The possessor is
not given rights of residuary power.
DIFFERENCES
OWNERSHIP
 It is the relation of the person with an
object forming the subject matter on
ownership.
 Transfer of ownership involves a
technical process of conveyancing.
 It consists of a bundle of rights and all
these rights are in rem.
POSSESSION
 it is the most basic relation between a
man and a thing.
 Transfer of possession is comparatively
easier and less technical.
 Possession is prima facie proof or
evidence of ownership.
OWNERSHIP
Meaning

 Austin: ownership is a right availing against the world indefinite in point of user,
unrestricted in point of disposition and unlimited in point of duration over a thing.
 Holland: Ownership is a plenary control over an object. The owner has three rights on
the object owned. 1) possession 2) enjoyment 3) disposition

 The term ownership is derived from Latin word ‘own’ which means “to have or to hold a
thing.” One holds a thing as his own is called owner and will have the right of ownership
over it. Therefore the term ownership literally means legitimate and absolute right of a
person over a thing.   
  
CHARACTERISITICS

 The right to manage

 The right to posses
 The right to the income
 The right to destroy, alter, modify
 Residuary in nature
 Right in perpetuity
FEATURES

 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 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.
ACQUIRING OF OWNERSHIP
 The mode of acquisition may be three kinds –

1. Absolute when a ownership is acquired by over previously ownerless object

2. Extinctive, which is where there is extinctive of previous ownership by an independent adverse act on the
part of the acquirer. This is how a right of easement is acquired 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 are produced, they belong to the owner unless he has parted with the same.
When ownership is derived from the previous version of law then it is called derivate acquisition.
 It is derived either by purchase, exchange, will, gift etc. Indian Transfer of Property Act provides 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.
KINDS

1. CORPOREAL & INCORPOREAL

 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 whereas
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.
2. TRUST & BENEFICIAL
 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 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.
3. LEGAL & EQUITABLE

 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. 
 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.
4. VESTED & CONTINGENT
VESTED
 It is vested ownership when the title of
the owner is already perfect.
 In the case of vested ownership,
ownership is absolute.
 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.
CONTINGENT
 It is contingent ownership when the title
of the owner is yet imperfect but is
capable of becoming perfect on the
fulfilment of some condition.
 In the case of contingent ownership it is
conditional.
 Here A and B are both owners of the
property in question, but their ownership
is merely contingent. 
5. SOLE & CO-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.
 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
 If the ownership is sole, the right of a dead man descends to his successors like
other inheritable rights, but on the death of one of two co-owners, his ownership dies
with him and the survivor becomes the sole owner by virtue of this right of
survivorship.
6. ABSOLUTE & LIMITED

 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
POSSESSION
Meaning

 Derived from word possessio i.e, the condition or power by virtue of which a man
has such a mastery over a corporeal thing to deal with it at its pleasure and
exclude others.
 Possession means physical control over a thing or an object.
 Possessor has a better title than the entire world except the Owner.
 Savigny:  - ”intention coupled with physical power to exclude others from the use
of material object.”   
 John Salmond- “Possession is the continuing exercise of a claim to the exclusive
use of an object.”
ELEMENTS

1. CORPUS POSSIDENDI – physical control or power over the object possessed.

It consists in the existence of physical power to exclude foreign interference and
secure the thing to oneself.
2. ANIMUS POSSIDENDI –intention or will to exercise that power.

 Both are required to constitute legal possession.

South Staffordshire Waterworks Co. V.
Sharman, 1896.
  Fact:
            In the instant case Plaintiff Company appointed defendant servant to clean out a pond
upon their land and in doing so he found certain gold ring at the bottom of it. Dispute arose
between plaintiff Company and the defendant servant as to the possession of the gold ring.

Issue: 
           To whom the Gold ring belong?

Held:
            The plaintiff Company was in first possession of the gold ring and not the defendant,
who acquired no title to them. It was observed that the possession of land carries with it in
general possession of everything which is attached to or under the land.
KINDS

1. POSSESSION IN FACT – de facto. When the thing is in the immediate possession of

the party to the exclusion of the others. This may/may not be recognised by Law.

2. POSSESSION IN LAW – called de jure. Physical custody not there but the legal right
to possess that thing.
3. ACTUAL – when the thing is in the immediate possession of the party.
4. CONSTRUCTIVE – possession is not actual but assumed to exist on the basis of the
claim.
5. CORPOREAL – exclusive use of material things like lands, movable things.
6. INCORPOREAL – connected with intangible things. Things should be used
continuously as non-use may give rise to non-existence of possession for such a thing
7. ADVERSE –actual, open and notorious possession of real property, held adversely
and in denial and opposition to the title of another claimant.

8. NAKED – mere possession without color of right. Lowest and most imperfect
degree of title.

9. DERIVATIVE – lawful occupation/ custody of the property, but not under a claim
of title of his own, but under a right derived from another. Eg – tenant.
Adverse possession

 Logic is that title to the land should not remain unclaimed for so long.
 Person not having legal title to the land enters and occupies the land for long period with no continuing
permission of the legal owner.
 True owner subsequently loses his ownership title.
 S legally permissible period has to lapse of his inaction in recovering the possession from the possessor.
 The owner might have initially permitted the possessor in entering the land on the basis of a lease or
licence.
 Adverse possessor called as Disseisor.
 By efflux of time the owner’s legal right to recover the property comes to an end and the possessor
becomes eligible for ownership of the title if possession shows certain characteristics.
 Possession to be actual, open, peaceful, exclusive, uninterrupted, unobstructed and unbroken for more
than the statutory period of limitation.
 Law does not recognise adverse possession by force or stealth.
MODES OF ACQUIRING POSSESSION

1. BY TAKING – this is done without the consent of the previous possessor. Can be
either rightful or wrongful.
 Two kinds- original & derivative.

2. BY DELIVERY – acquired with the consent and cooperation of the previous

possessor. Can be either constructive (not direct or actual) or actual (immediate
possession is given to the transferee).

3. BY OPERATION OF LAW- when possession changes as a result of the Law.

LAWS REGULATING POSSESSION

 Section 145 of CrPC – executive magistrate can make enquiry as to which of the parties
was in possession at the time of his initial order without reference to the merits of their
claims and to order that if any person has been dispossessed he should be put back in
possession.

 Section 5 & 6 of Specific Relief Act –

 Section 5 – recovery of a property on the basis of the title one holds. Better title has the power to
possess it.
 Section 6 - if any person is dispossessed without his consent of immovable property otherwise
than in due course of law, he or any person claiming through him may file a suit within 6 months
to recover possession , notwithstanding any other title that may be set up in such suit.
 Section100 of Indian Evidence Act – protects the right of the possessor in the
sense that it puts the burden of proof on the person who challenges the possession
of the possessor on the basis of his title or otherwise.

 Indian Easements Act, 1882 – inhabitants of a building enjoying the access and
use of air and light as a right, continuously for over 20 years, have the right to
enjoy them without any condition or restriction.

 Section 65 of Indian Limitation Act, 1963 – statutory period of limitation for

initiating action for repossession of immovable property or any interest thereon is
12 years (private property) and 30 years (government/public/state property)
RELATIONSHIP BETWEEN
OWNERSHIP & POSSESSION
 Ownership gives the person bundle of rights and possession is merely one of
those rights in the bundle.
 Salmond – possession is the defacto exercise of a claim and ownership is the
dejure recognition of one.
 Generally ownership and possession coincide and their separation is due to special
reasons. One cannot remain divorced from the other for a long time. One usually
follows the other.
 Possession for a long time may ripen into ownership (like adverse possession)
Conflict

 Possession is real and ownership is abstract.

 If ownership or title to a property is disputed, the person having the possession
has more weight on his side.
Elves v. Brigg Gas Co. 1886 Chancery
Division
Fact:
            In this case the plaintiff was the owner of the land. He gave his land to defendant Company on
lease for the purpose of excavation and erection of gas works thereon. During the course of excavation
one of the man of the defendants Company found a pre-historic boat buried 6 feet below the surface.

Issue:
            Issue before the Court was whether the boat belonged to the landlord or lessee.

Held:
            J. Chitty observed that the landlord was entitled to the boat against the Company though it was
discovered by the Company. It was observed that it was immaterial that the landlord was not aware of
the existence of the boat. He was in possession of the ground not merely of the surface. Hence
everything that lay beneath the surface down to the center of the earth consequently in possession of
the boat. It did not matter that the plaintiff was not aware of the existence of the boat.
RES NULLIS & TERRA NULLIS

 RES NULLIS – ownerless things.

 TERRA NULLIS – no man land.
 Finder of lost goods has a good title against the whole world except the true owner,
even if It is found on another person’s property without committing trespass.

 Three exceptions to the above rule –

a. Owner of the property on which the thing is found is in possession of the thing
itself as well as the property
b. If the finder is servant / agent then master or principal has title
c. Wrongful act does not constitute possession