CONCEPT OF POSSESSION

CONCEPT OF POSSESSION

CONTENT

  • Introduction                                                              
  • Meaning of Possession
    1. Etymological meaning
    2. Legal meaning
  • Elements of Possession
  • Kind of Possession
    1. De facto possession
    2. De jure possession
    3. Corporeal possession
    4. Incorporeal possession
    5. Mediate possession
    6. Immediate possession
  • Conclusion
  • References

 INTRODUCTION 

Across the world, when a person is born then from that point of time person not only have the legal right but also has the natural or moral right. Every legal right is protected by law and violation of legal right imposing sanctions on the person. But every moral right is not protected by law and is not imposing any sanction on the people. Moral right is governed by the rule of natural justice[1].

However, in the present context, UDHR is governing individual rights in society. The rights of the individual are meaningless without law and society[2]. According to Dean Pound “Right” has five senses in its meaning which created interest, claim, power, non-interference, and bring justice[3]. Likewise, on a property, there must be an exclusive right to control in the way of taking possession or ownership.

In the real sense, obtaining possession is easily more than defining the concept the possession[4].  In India, for solving property-related cases taking much time than other cases. However, in the legal world possession use as an ambiguous meaning. It is not only an imaginative concept but also a controversial concept. The concept of possession is very in every situation and time to time according to the circumstances of the case and nature of society[5].

MEANING OF POSSESSION

In the literal meaning, possession means the physical control over things or object which may be movable or immovable or tangible or intangible.

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Etymological Meaning 

In a real sense, possession expresses the relationship between the person and a thing. In another word, possession can be the physical control over the thing for the benefit of enjoyment. It also implies that the right to enjoyment is attached to the property and the fact is that the detention of such property creates the right to enjoyment and arise the benefit.

Custody is not the same as the meaning of possession. In a real sense, custody means taking care of the property for a reasonable or specified time period not more than that. Likewise, if I have the property and I am the owner of the property but I gave the property my servant for the care of my property. so here my servant has the possession over the property for a reasonable time period. Mere custody was is not enough to express the meaning of possession.

For constituted the meaning of possession care, management, and control must be including. The Roman term “detention” mean the detention. Detention means to have custody over the property which the person is lawfully entitled. Even though custody and detention are the same as a possession but the possession is more than that. Possession includes the lawful physical control with the good intention recognized by the other persons[6].

Legal Meaning

In law possession not only, the physical control over a thing but also intend to use the physical control over the object or things. so, intention and physical control need for possession of a thing.  For example: If I want to read a book than it must be possession by me otherwise if I don’t have the possession of the book than I am not able to read. So, for possession, there must be an intention to use the physical control over the object like I have the possession of books for my intention of reading.

As there is no specific definition of the word possession because it is such a concept that will be described according to the specific’s statues. In the case of Superintendent Remembrancer Legal Affairs vs Anil Kumar, AIR 1980 SC 52, it was held that it is impossible to give the precise and logical meaning of possession. so according to them each and every case, it will be described[7].

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ELEMENTS OF POSSESSION 

In English and roman laws, possession included two elements:

  1. physical control over the property i.e. Corpus
  2. intention or will to exercise over the property i.e. Animus

Both these elements are necessary to constitute possession.

Corpus: 

It is means physical control over the property and also has the power to possess the property. Possesser may not only have the detention or custody merely but may also be the owner of the property. For example, A has a huge land in a village “X”. But A stay in Kolkata. As a result, A give his huge land to B for taken care. Here not only A has the possession but also B has the possession. As A is the owner of the property so he has possession over property and B is taken care the property as a result even though he is not an owner but he has physical control over the property.

Animus: 

It is a means to intention over the property to possess. It is one of the mental element to constitute the meaning of possession. The possessor may not be the owner of the property, he may exercise the duty on behalf of the owner.

For example, A has a huge land in a village “X”. But A stay in Kolkata. As a result, A give his huge land to B for taken care. Here not only A has the possession but also B has the possession. As A is the owner of the property so he has possession over property and B is taken care the property as a result even though he is not an owner but he has physical control over the property. Here B both elements are exercised those are corpus and also Animus. But here B is not able to make a claim from any party on the behalf of his but can make a claim on the behalf of his owner.

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KIND OF POSSESSION 

De facto possession: 

De facto possession is a possession that is not legally recognized but it exists in reality.

De jure possession: 

De jure possession is a possession that is legally recognized but it may or may not exist in reality.

Corporeal possession: 

Corporeal possession is the possession of the objects which are tangible in nature like buildings, land.

Incorporeal possession: 

Incorporeal possession is the possession of the objects which are intangible in nature like copyrights.

Mediate possession: 

Mediate possession is indirect possession. For example: If I gave the property to my servant for caring. Then the custody of my property in the hand of my servant. It is called mediate possession.

Immediate possession: 

Immediate possession is direct possession. For example, if I bought a land, and the land is in my possession. Then it will be called an immediate possession.

CONCLUSION 

Mere physical control over the property is not enough to constitute the possession. It must be conscious and intelligent possession. The person must be fully aware of the possession. Possession is acquired wherever the two elements corpus and animus are invariably and jointly together. The absence of one or the other does not make possession complete having legal consequences.

REFERENCES 

[1] B. N. Mani Tripathi, Jurisprudence The Legal Theory, 283, (19th ed., 2012)

[2]  Prof. S. N. Dhyani, Jurisprudence Indian legal theory, 249, (5th ed. 2019)

[3] id. p. 251

[4] Subodh Asthana, Concept and Theories of Possession in Jurisprudence, ipleaders, (March 30, 2020, 11.31 AM), https://blog.ipleaders.in/theory-possession-jurisprudence/

[5] Supra2, p. 325

[6] Prof. S. N. Dhyani, Jurisprudence Indian legal theory, 325,326 (5th ed. 2019)

[7] Supra 8

Author: Sonali Gorai,
Adamas University/ 3rd Year/ Perusing BALLB(H)

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