“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. Supreme Court in Superintendent Remembrancer Legal Affairs vs Anil Kumar, AIR 1980 SC 52, held that it is impossible to work out a completely logical and precise definition of Possession uniformly applicable to all situation in the context of all the statutes.
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.
Salmond criticized Savingy’s definition and ground that Savingy committed an error by including the element of physical power in his definition.
- O.W. Holmes: Holmes defines Possession as, “To gain Possession a man must stand in a certain physical relation to the object and to the rest of the world, and must have certain intent.”
- Maine: Maine defines the possession as, “physical detention coupled with the intention to hold the things detained as one’s own.
- Sir Frederick Pollock: Sir Frederick Pollock defines Possession as, “In common speech a man is said to possess to be in possession of anything of which he has the apparent control from the use of which he has apparent power for excluding others.”
- Ihering: The best among them is the definition given by Ihiring. According to him, “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.”
Categories of Possession:
Possession is divided into two categories.
a) Possession in fact and
b) Possession in law.
Modes of acquiring possession:
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.
Possessory Remedies:
Possessory Remedies are those which exists the protection of Possession even against ownership. Proprietary remedies are those which are available for the protection of ownership. In many legal systems, possession is provisional or temporary title even against the true owner. Even a wrongful Possessor who is deprived of his possession can recover it from any person whatsoever on the ground of his possession. Even the true owner, who retakes his own, must first restore possession to the wrongdoer and then proceed to secure a possession on the ground of his ownership.
Reasons for Protection of Possession
There are many reasons for the protection of possession
- According to the philosophical School of jurists, possession is protected because a man by taking possession of an object has brought it within the sphere of his will. The freedom of the will is the essence of personality and has to be protected so long as it does not conflict with the universal will which is the State. As possession involves an extension of personality over the object, it is protected by law. As the reputation of a person he is protected against defamatory attack, his possession is protected as he has projected his Personality over the object possession.
- Possession is an Evidence of ownership, Section 110 of Indian Evidence Act 1872- Provides ‘ when any question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not owner is on the person who affirm that he is not the owner.
- The possession even if it is wrongful is a good title against the whole world except the true owner.
- Possession is protected for the preservation of peace: It is the natural human Instinct that he does not easily part of with what he possesses. The interference with the possession leads to violence. Thus the protection is given to the Possession to aid criminal law and it prevents a breach of peace.
- Section 145 of CrPC deals with the dispute of immovable property to provide speedy remedy for the prevention of breaches of peace out of such dispute. The object of this section is to enable an executive Magistrate to intervene and pass a temporary order in regard to the possession of the property in dispute, till the competent civil court determines the right of the parties. The executive Magistrate shall determine the possession of immovable property on a particular date and issue an order declaring such party to be entitled to Possession, thus restore to Possession to the party who was forcibly and wrongfully dispossessed of.
- Possession is protected as a part of law of tort. Law protects possession not only from disturbance by force but from disturbance by fraud. The protection thus afforded as a part of the law of tort.
- Section 53a Transfer of Property : Doctrine of part performance which provides, there is a contract of sale in respect of immovable property where in transferor by writing, signed by him agrees to transfer such immovable property and the transferee has taken the Possession of the immovable property and continuous to be in possession of immovable property and the transferee has done something in furtherance of such transfer and ready and willing to perform transfers have done something his part under the contract of transfer, then even though such contract is required to be registered by any law and not registered in fact then also the transferor id debarred from claiming any right against such transferee.
- Section 47 sale of Goods Act: right of the seller to lien. The seller if unpaid seller is and if the Possession is still with the seller he can retain the goods.
- Right of Bailee in contract of bailment: Indian Contract Act 1872, Section. 170, 171. The Bailee too has a right to lien the goods bailed to unless he is paid remuneration by Bailor till then he is entitled to keep the position of the goods.
- In offence of theft in IPC Section 378: Possession is essential element. Even though the possession was wrongful and the Possession of such thing is taken without the consent of the possessor with dishonest intention.
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 :
- ‘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.
- ‘A’ purchased a house through his agent and the agent got the possession. A’s possession is said to be the mediate possession.
- 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 :
- ‘X’ has a car and he keeps it in his garage, this constitutes immediate possession.
- ‘A’ purchased a house and takes Possession of the property it is called direct or immediate Possession.
- 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.
- 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.
- 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.
- 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.
Theories of Possession
- 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.
- 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.
- 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.’
- 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.
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:-
- The possessor’s physical relation to the rest of the object;
- 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.
