The Concept of Possession
Possession is physical control over an object and it defines closest relation between the person and object. (Example: – Mr. J looks after a stolen car. Before the Owner comes and intervenes, Mr. J is in possession of the car).
In Roman Law, Possession was termed as “possessio” and they have given more focus to “dominium” (Ownership). Roman Law talks about Possession in two different senses; –
• Possession of a thing (Corpus).
• Having Legal Possession of a thing, i.e. legally exclude others from using his property. One must have the Legal Right to possess the thing.
To understand Possession, one must be clear about the difference between Ownership and Possession. Ownership denotes every right of the Owner including right to use, alienate, sell or mortgage his property. However, Possession excludes Right to sell or mortgage property.
Essentials of Possession
The Essentials of Possession are: –
1. Corpus Possessionis (Corpus)
Corpus implies two things: –
• Possessor’s physical relation to that object.
• Relation of the Possessor with the rest of the World.
2. Animus Domini (Intention)
It means intention of exclusive right over a thing.
• Animus can be consciously wrongful. (Example; – Intention of a thief)
• Possessor’s right must be an exclusive one. (Example: – Mr. T has allowed his neighbours to use his house as a shortcut route to their house but that does not mean he has lost his exclusive right of possession.
Kinds of Possession
The various kinds of Possession cannot be put into a water tight container as they are overlapping at places. However, they can be broadly divided into heads, they are: –
1. Possession in Fact (De Facto Possession)
It means physical Possession or corpus. It should be noted that even if someone is not presently using something, he can still have Possession of the property, i.e. he should be in a position to resume using it physically.
(Example- Mr. Palak has a dress which he had worn in a party and then he doesn’t use it for a long time but it remains in his cupboard. Though he hasn’t used the dress for a long time, still it will belong to him).
2. Possession in Law (De Jure Possession)
Possession in Law is possession that is recognized and protected by Law. It exists when there is no legal dispute in the Possession.
Two ways by which Law protects Possession are: –
• The Law itself confers right to the Possessor who has the right. (Conferring Legal Rights).
• By penalizing the person who is interfering. (Damages to the Possessor).
3. Corporeal Possession
It refers to Possession of a material object, i.e. corpus exists (physical possession).
4. Incorporeal Possession
It means Possession of Intangible Rights (Example- Patent, Copyright). Continuous enjoyment of these rights are necessary.
Example- I have copyright over my creation for one month and then I don’t have for the next month. This cannot happen but there are some exceptions to it (transfer of Copyright).
5. Immediate Possession
In Immediate Possession, Possessor has direct relation with the object that he possesses and there is no third party involvement.
Example 1: – Mr. H wants to buy a book. He himself went to the shop. Direct relation between book and Mr. H.
Example 2: – Mrs. T has a car. She keeps it in her garage every day.
6. Mediate Possession
In Mediate Possession, there is involvement of third party, i.e. through friend, agent or servant.
Example- Mrs. C went on a vacation. For the time being, she gave her car to Mr. Y for maintenance. Here, Mrs. C is in Mediate Possession of the car.
7. Constructive Possession
Constructive Possession refers to Possession in Law.
Example- Mr. F has buys a car. He doesn’t immediately transfer the car to his house rather keeps it in the showroom. However, he has the Car key with him. Here, he is in Constructive Possession of the car.
8. Adverse Possession
Adverse Possession includes Easementary Rights.
Example- Mr. X’s relatives are using his house for 12 years or more. If Mr. X has knowledge of it and still he doesn’t restrict, they will become the Owner of the house.
Modes of Acquisition of Possession
The various Modes of Acquisition of Possession are: –
1. By Taking– It signifies taking without the consent of the previous Owner.
This can be further divided into two heads: –
• Original– When the property did not have any previous Owner, it is called Original Possession.
(Example- Catching of wild animals).
• Derivative– It signifies property which had a previous Owner.
(Example- Laundry people takes Mr. X’s clothes, though will return.
2. Delivery
This can be further divided into two parts: –
• Actual Possession- It means Immediate Possession given to transferee.
(Example- Mrs. Z bought sugar from store).
• Constructive Possession- It is Possession of that property which cannot be transferred/handed over by the Owner to the Possessor.
(Example- Mr. Y bought a land. The previous Owner cannot hand over the land but only documents).
3. Operation of Law
It is the concept of removing goods from the Possession of one to the other by the Operation of Law.
(Example- Succession).
Points to Remember
• The Possessor might not be the owner. (Example Mrs. S rents her house to Mr. T. Here, Mrs. S is the owner and Mr. T is the possessor).
• The basic elements of Possession Are Physical Control and Intention to exclude other people to interfere in his right.
• The different kinds of Possession Are Possession in Fact, Possession in Law, Corporeal Possession, Incorporeal Possession, Immediate Possession, Mediate Possession, Constructive Possession and Adverse Possession.
• The different modes of Acquisition of Possession are by taking, by delivery and Operation of Law.
• In Roman Law, Possession was termed as “possessio” and they have given more focus to “dominium” (Ownership).
• The various kinds of Possession cannot be put into a water tight container as they are overlapping at places.
• Ownership denotes every right of the Owner including right to use, alienate, sell or mortgage his property. However, Possession excludes Right to sell or mortgage property.
Author: DISHANI BAKSHI,
1st Year, MNLU, Nagpur.
