UNIT-3 POSSESSION

Definition: Possession
It is said that in legal terminology there is no word more ambiguous in its meaning than possession whether considered in relation to immovable or movable property. It is not only an abstract and highly imaginative concept but it is also most difficult and controversial concept. It nature, scope, extent, and limits vary from time to time and system to system. It is a variable term having different meaning depending upon the circumstances in which this is used. In law possession means a fact or condition of a person having such control of property that he may legally enjoy it to the exclusion of other except against the true owner or prior possessor. An old proverb says, it is nine point of law, which implies that he who has conscious control of an object need only surrender his control in one who can establish superior claim in law. That is, possession constitutes ninety percent of ownership. To a layman possession implies a relation to an object which involves exclusion of other person from enjoyment of it. Oxford English Dictionary says, the visible possibility of exercising over a thing such contact as attaches to lawful ownership. The detention or enjoyment of a thing by a person himself or by another in his name, the relation of a person to a thing over which he may at his pleasure exercise such control as the character of the thing permits to the exclusion of other persons. Bentham says, possession is to recall the image which presents itself to the mind when it is necessary between two parties which is in possession of a thing and which is not. Maine says, physical detention with the intention to hold the thing detained as ones own. Savigny says, intentioned coupled with physical power to exclude others from the use of material object. Salmond says, possession of material thing is essential to life, it is the most basic relationship between man and things.

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Possession in Roman law

Roman law recognized two degree of possession: 1. Possessio naturalis, and 2. Possession civilis. Roman law was mainly concerned with developing a theory to distinguish between detention and possession from each other. It was this possession civilis which gave rise to the special protection conferred by the possessor interdicts. These interdicts went on the general principle that one who was in possession was not to be disturbed therein, whether he had legal title or not except by a legal proceeding. Unless ones possession was tainted by certain forms of wrong-doing, the possessor had the protection of these interdicts. In Roman law possession was also important in connection with acquisition of ownership by possession if possession is acquired for a certain time and barring of claims by lapse of time. As broad generalization, facts needed to acquire possession was physical control corpus possessionis, and will to exercise such control, animus, which was based on Pauls text. Savigny thought that since the detentor and possessor have the same physical relation to res, the difference between must be found in the mental element. The intent, which distinguishes a possessor, is the animus domini, which meant, the desire to hold for oneself. This theory explains why the tenant, the borrower, and the agent did not have possession in Roman law, for they did not hold in their own right. On the other hand this theory faced difficulties because Roman law sometimes gave a non-owner possessory rights. These examples he explained as anomalies. Jhering can explain those cases which Savigny found difficult, but it itself cannot account for those where the law refuses possessory rights to those who are in effective physical control. Fewer facts were needed to continue possession then to acquire it, but they varied from case to case. In some cases possession continued despite loss of animus, whether temporarily or permanently, and the rule was expressly grounded on convenience. In some cases a person did not lose possession by loosing corpus alone, and this rule is also expressly based on convenience (e.g., a runaway slave, is under continued possession). It was said both corpus and possession has

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to be lost before possession is lost, but at other times that possession was retained even though both were lost. The element common to all these application seems to be that it was a device of convenience, utilized chiefly to effectuate the policy of the law in different branches. It is thus obvious these cannot reflect any single principle. Most of the decision were given in actual situations and were designed to meet the practical requirements of a particular case.

Possession in English law

Possession was termed Seisin in early English law and was used to describe possession of both chattels and real property. A modified version of Savignys theory has exercised considerable influence on English writers. The term possession didnt confine to physical control. As Roskikill LJ has said; having something in ones possession does not mean of necessity that one must actually have it on ones person. This is to some extent reflected in the phrases sometimes encountered, such as possession in fact and possession in law. Salmond has distinguished between them. According to him, possession in fact is an actual relation between a person and a thing. Law does not define the mode in which it may commence or cease. A servant is not deemed to be in possession of the masters good while things are in his masters control or a buyer in whom the title to goods is vested but he has, for the time being, only a letter with him addressing to the warehouse people to deliver the goods to him. So long he does not get the thing he has possession in law, not in fact. Possession in law has a legal relation. It implies a manifest intention to exclude the world at large from interfering with the thing in question and to do so on ones own account and in ones own name. Law defines the modes in which it commences and ceases. The master has possession in law because the intention to possess is attached to the master. Possession in fact and possession in law are co- terminus but are not necessarily available at the same time.

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Elements of Possession
Both in English and Roman laws possession has two distinct elements. They are: 1. Physical control or power over the object possessed called corpus possessini, and 2. Intention or will to exercise that power, called animus possidendi. Both these are necessary to constitute possession. The term corpus or physical control means the power to use the thing possessed and the existence of grounds for the expectation that the possessors use will not be interfered with the intent consists the desire and the will to use thing so possessed. A person cannot be said to be in possession of a thing unless he has animus possidendi. Markby in this context says; there are physical element and mental element in the legal conception and in order to constitute possession in a legal sense there must exists not only the physical power to deal with things as we like and to exclude others but also the determination to exercise that power or control on our own behalf. 1. Corpus (physical control): it implies two things; a. The possessors physical relation to the res i.e., the object. b. The relation of the possessor to the rest of the world i.e., ability to exclude others.

Physical control of the thing lies at the bottom of possession. Possession must consist in the undoubted control over a thing to the exclusion of others. Possession must be direct, physical and actual and not merely symbolic or fictitious. However direct contact need not be necessary with the thing although it is true that most of the things that we possess are in direct contact with us. For example a man walking along the road with a bundle sits down to rest and place his bundle on the ground at a short distance from him. No one thinks of doubting that the bundle remains in his exclusive possession not symbolically but really and actually. Physical contact, therefore, is not necessary for possession. It is rather the possibility of dealing with a thing as we like and of excluding others. According to Holland and keeton the question whether corpus (physical relation) exists or not depends among other things upon the nature of the thing itself and the probability that others will not interfere with the enjoyment of it. Thus corpus may be secured by: a. Continued physical control of the thing;

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b. Presence near the thing; c. Exclusive knowledge of the situation of the thing, d. Continuous possession of the thing unless it is disturbed by some physical force or violence. A man who leaves home and goes to neighboring town for his business still retains possession of his land or house. So is the case with movable and domestic animals which live in domestic state. As regard wild animal which are in the wild state are only in our possession as long as they are in our captivity. A wild animal that has been wounded by us mortally is not in our possession until we have laid hold of it. Possession therefore, lasts so long as there is any physical control over things and ceases when that control ceases. The second element of 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. Therefore, physical control does not mean physical power to exclude others. Even the weakest person may have the corpus element (physical control). It depends more upon the general expectation 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. There is a case on this point. In R v. Chissiers1, a person came to a shop and asked for a particular a particular kind of cloth (linen). The shopkeeper handed over some piece of cloth to him but before any sale was completed, he ran away with it. This was held to be larceny as there was no change of possession until he ran away. It is clear from this case that the corpus of possession is not necessary synonymous with the physical power to exclude others. Concept of Corpus in International Law: The problem of corpus is also equally important in International Law. The question here arises is whether mere discovery or planting of a flag of a state by its nationals gives exclusive control over the things which so far belonged to none. Several states have discovered in Modern times have explored Antarctica, Moon and other satellites and
1

[1678] L. R. 275

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there may be conflicting claims for their possession on the basis of discovery or planting of flag as in the case of USA which may claim possession of the Moon on the ground that its astronauts were the first to plant its flagon the moon. It is understood that mere discovery or planting of flag will not create possession but it must be accompanied by colonization and settlement in a peaceful and undisturbed way.

2. Animus: another aspect is mental element without which the physical control would remain only as a mere fact having no legal consequence. Animus is the conscious intention of an individual to exclude others from the control of an object. The mental element in possession may be manifested in the following ways: a. The person holding the property need not be the owner and may exercise animus to exclude others on behalf of the owners. A tenant or a morgagee, e.g., may have possession no less than that of the owner himself. (it may be described as representative possession) b. The animus to exclude others need not be in the interest of the possessor or on his own behalf but in the interest of bailee or lessor. A carrier of goods, a servant or agent or a trustee may have true possession (by having corpus as well as animus) though he makes no claim to the thing possessed on his own behalf but on behalf of the owner. c. Animus to exclude others need not be specific. A person having a library has the possession of every book in the library though he might have forgotten the existence of some of the books. d. The animus to exclude others need not be based on a legally enforceable claim. It may be the result of a wrongful act. Thus if B steals goods from A and C in turn steals it from B, then although A has a right of claim against both B and C yet in spite of this B as a prior possessor (although a thief) against C and theoretically he can legally recover possession of the goods from C. e. The animus to exclude others need not be absolute. Sometimes a person may possess a piece of land notwithstanding the fact that some other person or even the public at large, possess a right of way over it.

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Classical theories of Possession

Savignys theory: Savigny was the first to give a theory on possession. He based his work on the text of Paul. He said possession consists of two ingredients, first is corpus possessionis (effective control) and other being animus domini (the intention to hold as owner). He believed since possession involved both of these, the permanent loss of one or the other brought possession to an end. Savigny further observed that the essence of possession is to be found in the physical power of exclusion. He says that the corpus possesionis maybe of two kinds, one relates to the commencement of possession and the other relates to the retention of possession. The corpus required at the commencement of possession is the present or actual physical power of using the thing by oneself and excluding others from the use of it., whereas the corpus required for the retention of possession once acquired may consists merely in the ability to reproduce that power at will. Thus, according to Savigny, for getting the possession of a horse, I must take him by the bridal or ride upon him or have him in my immediate presence, so that I can prevent all other persons from interfering with me. And since detentor and possessor have same physical relation to the res, the difference between them must be found in the mental element, animus domini. He says possession exists when a. the holder believes himself to be the owner of the object, or b. having merely found it, means to keep it subject to the possibility of the owner making his presence, or c. Having stolen it he means to keep it against all comers. Thus, he emphasizes intention as well as physical control to complete possession. Salmond and Pollock also agree with Savigny on this point. Criticism of Savignys Theory: 1. He used the expression physical power to exclude others without adding any qualifications to it. He did not mention the fact that the exclusion is subject to one exception, i.e., the possessor cannot exclude a person who has better title over the use of that particular material object.

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2. Salmond has rightly criticized Savignys definition and observes that even at the commencement a possessor need not have physical power of excluding other persons. It is the absence of an improbability of foreign interference that constitute the physical element and not the existence of any power of exclusion. He further adds that a little child and a man in death bed may have no physical power as against a strong man and yet possess the money in their hands. He thus says that savigny committed an error by including the element of physical power in the definition of possession. 3. Dias has also criticized Savignys definition and raised the following objections: a. That it was erroneous to assume that corpus and animus, which were only conditions sometimes for required for acquisition and loss of possession, constitutes possession itself. Even Pauls text on which he relied so much also says we acquire possession by means of corpus and animus not that possession is both these things. b. Savignys idea of animus domini, the intention to hold as owner fails to explain the cases of the pledgee, leasee, who had possession but did not intent to hold as owners. c. The application of Savignys rigid theory of the continuation and loss of possession reveals its weakness. Possession did sometimes continue despite loss of animus or corpus or even both. On his theory it should follow that possession was lost if even one or the other element was lost. Iherings Theory: He approached possession as a sociological jurist. He posed the question why Roman law protected possession by means of interdicts. It was devised to benefit the owners by protecting their holding of property and so placing them in the advantageous position of defendants in any action as to Title. He said, whenever a person looks like an owner in relation to a thing he has possession, unless possession is denied to him by rules of law based on practical convenience. He did not emphasize on animus like Savigny. What is necessary according to him is the awareness of the thing which can give possession to the person. His approach was said to be more practical than Savigny. He gave a functional definition of possession. However gives no clear idea of possession. But was important in a sense that it brings out the notion of policy and convenience implying that the concept may have a changing meaning for different purposes and in different frames of law.

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Salmonds Theory: he began by distinguishing between possession in fact and possession in law. Possession in fact is a relationship between a person and a thing. I possess, roughly speaking, those things which I have: the things which I hold in my hand, the clothes which I wear, and the objects which I have by me. To possess them is to have my physical control. If I possess a wild animal, I get possession of it; if it escapes from my control I lose possession of it. It can be said to have actual control. It is said that whether possession has been acquired, lost or abandoned intention in assessing that is highly relevant. But in certain cases it is doubtful whether in ordinary usage possession could be ascribed to a person utterly to form any intention whatsoever: it would be odd to describe a day old baby or a man in coma as actually (as opposed to legally) possessing anything at all. As against this, however, we may find counter example of possession unaccompanied by intention. I should normally be said to possess a coin in my pocket, even if unaware of their existence and so unable to form any intention in respect of them. We can say then that what possessor needs is a minimum intention, intent to exclude others from whatever may be in his pocket. Salmond further clarified that we have to ask whether the facts are such that we can expect him to be able to enjoy the use of it without interference on the part of others. Corpus possessionis he thought comprised both the power to use the thing possessed and the existence of ground for the expectation that the possessors use will not be interfered with. An expectation of non-interference is not necessary for the continuation of possession for, as Mr. Parker, a former editor of Salmond, pointed out; a man continues to possess his pocketbook although he is being pursued by swifter bandits, who will interfere with his use of it in a few moments. Nor is it necessary even for the commencement of possession for, taking an example from Holmes, a child and a ruffian may both make for a purse lying in the road, but if the child is the first to pick it up, it cannot be doubted that he gets possession even though the ruffian is certain to interfere in few moments. The trouble arises from the assumption that corpus and animus, which are only conditions for the acquisition of possession, are possession itself. Salmond denied that possession is one thing at its commencement and something else later on, and he therefore declared that possession is lost when either corpus or animus is lost. Professor G L Williams the learned editor of the 11th edition, altered the text on this point, and said that assuming that both corpus and animus are required to initiate possession, the possession once acquired may continue even though corpus

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or animus, or even both, disappear. This it is submitted, is true, but destroys the foundation of Salmonds contention that possession is corpus and animus. Possession in Law exists when a person claims a thing as his own in a natural normal manner by occupying a thing without any dispute as to his legal right to possess. Legal right may exist with or without possession. Law can provide protection in two different ways. Firstly, the possessor can be given certain legal rights, such as a right to continue in possession free from interference by others. This primary right in rem can then be supported by various sanctioning rights in personam against those who violate the possessors primary right; he can be given a right ot recover compensation and a right to have his possession restored to him. And obviously there will be a need for legal criteria to determine whether a person is in possession of an object. Indeed the protection would be of little point if legal protection ceased the moment possession was lost. In common law possession is a relative matter. If A momentarily hands his wallet to B, from whom it is stolen by C, who then loses it on Ds property, where it is then found by E, the question who has the right to possess- will depend on who brings action against whom. Against all subsequent parties Es title would prevail (except against the true owner, who is not claiming in this case), for finding confers a good Title. In an action between D and E, however, it would seem that D would have a better right if he could show that the article was found on property from which he had a general intention to exclude others. In Bridges V. Hawkeworth decided that notes found on the floor of a shop passes into the possession of the finder rather than the shopkeeper. In Hannah V. Peel, a soldier, who found a brooch in a requisitioned house, was held entitled to the brooch as against the owner. Here, however, the owner had never been in possession of the house. In London corp. V. Appleyard and another, money found on land was held to be in the possession of the occupier and not of the finder. The concept of legal possession parts company from ordinary notion of possession. Hence we may find that one who is not actually a possessor is nevertheless considered as such in the eyes of the law; and vice-versa. Of all the divergences between legal and actual possession what is most notable is that outside the law possession is used in an absolute sense whereas within the law it is employed in a relative sense. Outside the law we do not speak of a person having possession as against

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someone else; we say that he either has or has not got possession. Then unnecessary difficulties would arise in understanding decisions. Like R. v. Harding in which the accused was held guilty of stealing a raincoat from a servant, who as against master had mere custody of the goods. How could the servant in this case have possession of the Raincoat, if the law used possession in an absolute sense, then of course servant could not have had possession of it. As it is she had possession as against the thief but not against the employer. Salmond then distinguished between possession of physical objects which he called corporeal possession and possession of rights (intangible things), which he called incorporeal possession. Corporeal possession: it is claim to the exclusive use of material things like land, buildings and other movable or immovable things. The exercise of this claim consists of two ingredients, Corpus Possessionis and Animus Possidendi. This case of possession consists of firstly, continuous exclusion of alien interference. Secondly, enjoyment of the thing at will without interference by others. Actual use of it is not essential. A man may lock his watch in a safe and dont look at it for 20 years. Here he has exercise continuous claim to it, by continuously excluding any other person from interfering with it. Incorporeal Possession: it is connected with intangible things such as trade mark, goodwill, right to vote, right to passage, etc. In this case things are to be used continuously, as non-use of it may give rise to non-existence of possession for such thing. One can acquire and retain possession of a right of way only through actual and repeated use of it. English law defined it as the continuing exercise of right rather than the continuous exercise of claim. .Fredrick Pollocks Theory: Pollock Said, In common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent power of excluding others. He laid stress not on Animus but de facto control (physical control). For Pollock a general intent seems to suffice.