POSSESION: DEFINITION, ESSENTIAL AND KINDS
‘Possession is a term which may have different meaning in different contexts’. It is the most different conception of the legal theory. Since very early times attempts have been made to analyze and theorize it and various theories have been given about it. Possession can be defined as an evidence of ownership. It means that the transfer of methods of ownership. The possession of a thing is a good title against the whole world except the real owner. Long possession creates ownership by prescription. Possession is the basis or ground of obtaining certain legal remedies. Possession plays an important role in criminal law. As in criminal law number of offences against property possession becomes the main basis for the determination.
The literal meaning of possession is the physical take over the property.
Savigny’s Theory: Savigny define possession as Intention which is mixed with physical power to exclude other from the use of material object.
Ihering’s Theory: Possession is more objective and it presents a sociological approach to possession. It was stated by him that whenever a person looked like an owner in relation to thing, he had possession of it unless possession was denied to him by rules of law based on practical convenience. This theory given by him is more in consonance with the practice in Roman law than Savign’s theory. This theory is more flexible. It explains those cases which were found difficult by Savign’s theory.
According to Salmond, possession is the continuing exercise of a claim to the exclusive use of an object.
Elements of possession:
There are two elements of possession. They are corpus of the possession and animus of the possession.
By corpus is meant an effective physical control of the object. The physical power of dealing with the subject immediately and of excluding any foreign agency over it, which must exist in every acquisition of possession. The immediate physical power is not necessary to continue the possession, as was it was required to it, through which the continue possession depends rather on the constant power of reproducing the original relationship at will.
By animus it is meant the mental element or the intention to hold the object as owner against all others. In other words, it is a conscious intention to exclude others from the object. Without this mental element, there can be no possession. It refers to the intention of the possessor. As regards with animus domini, there are certain points to be noted:
– It may be wrongful. It can explained, that the thief is still in the possession regardless the stolen object is wrongful.
– The right of the possessor’s is exclusive. However, it is not absolute.
– The possessor may not use the thing or intend of the owner.
– Possession made on behalf of someone may not be claimed as a true possession of thing.
– It need not be specific to particular group or person or any one in general.
Both corpus and animus go hand in hand, and corpus possessionis cannot exist without animus domini.
Kinds of possession:
1) Mediate and immediate possession:
Possession is either mediate or immediate. According to Salmond, One person may possess a thing for or on account of someone else. In such a case, the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct. According to salmond, he defines three types of mediate possession:
- The first mediate possession is that which is acquired through an agent or a servant. The agent or the servant acquires or retains the possession solely on behalf of his principal without claiming a interest of his own,
- The second mediate possession is where an object is held by a person who holds it on his own account as well as on another account but recognizes the superior right of the latter who can obtain it whenever he chooses demand.
- The third type of mediate possession exists where the immediate possession of the object is with a person who has a claim over the object until sometime has elapsed or some condition has been fulfilled.
2) Corporeal and incorporeal:
Corporeal possession is some form of continuing relation between a person and a material object. It is a relation of fact and not of right. It is only a title of right and is not itself a right. Incorporeal possession is the continuing exercise of a claim to anything else than the material object. The thing so claimed may be either the non- exclusive use of a material object or some interest.
3) Constructive possession:
It is not an actual possession it is a possession in law and possession in fact.
The concept of possession plays a very important role in the legal system. As stated earlier, it is the strongest evidence against the ownership. The law has the duty to protect the right of the possessor and the possessory rights. For the commencement of the possession two elements are necessary.
Possession is the most basic and important relation between man and a thing. The four essential elements of the possession is intention, knowledge, physical control. The main criteria for the possession are the simplest form of exchange and it is less specialized. The privileges of possession and ownership are considered to be equal. Hence, in terms of legal sense, possession is the main essential. In criminal law, it is given much more importance. It will be stated as the strong evidence against the ownership. It gives a relation between man and a thing which indicates the intention to possess the thing and has the capacity of disposing it. A person has deemed to be in legal possession if he has the physical power of the property.
Author: Saba banu,
Pendekanti law college, 3rd year BA LLB student