This article is written by Ishani Khanna. 

Possession

Jurists have defined possession based on their personal beliefs. It is the most fundamental interaction between man and things, according to Salmond. However, Henry Maine defined it as “interaction with an object that includes the exclusion of other people from enjoying it.” A man is considered to own a thing over which he has seeming control or over which he has apparent authority to exclude others, according to Federick Pollock.

In B. Gangadhar v. Ramalingam (1995) 5 SCC 238, the Indian Supreme Court elaborated on the notion of possession. The objective realization of ownership is possession. It is both the de facto statement of a claim to a specific piece of property and the de facto counterpart of ownership. Possession of a right, in contrast to the de jure connection of ownership, is the de facto relationship of ongoing exercise and enjoyment. The actual exercise of a claim to a specific piece of property is known as possession. It is the most typical form in which claims are made. It is the outward form in which claims are most commonly manifested.

Elements of possession

Legal possession, according to Holland, comprises two fundamental elements:

1. Corpus
2. Animus

Corpus Possessionis

Corpus denotes two things: 

1. a) the possessor’s physical relationship to the res or object; and 
2. b) the possessor’s relationship to the rest of the world.

The first point highlights that a person must have some physical touch with whatever he owns to have a reasonable expectation that others will not interfere with it, i.e. that others will not interfere with the possessor’s right to use or enjoy that object. This guarantee of non-interference can be obtained in a variety of ways:

The physical power of the possessor  

The possessor’s physical power over the object in his possession works as an assurance that the thing will be used. It’s also a guarantee that others won’t interfere with his rights. To prevent others from interfering with his lawful ownership, the person in possession typically utilizes walls, gates, doors, and locks.

Personal presence of the possessor 

In many cases, the possessor’s sheer physical presence is enough to keep ownership, even if he lacks the physical power to fight intervention. For example, a penny in a child’s hand suffices to indicate his ownership of the currency, although that he lacks the physical capability to do so.

Secrecy 

It is an efficient method of avoiding external influence and keeping an object in one’s possession secure if a person maintains it in a hidden area.

Wrongful ownership is rarely seen favourably in modern cultures, thus respect for a legitimate claim prevents others from interfering with the possessor’s lawful possession.

The protection afforded by the possession of other things 

Possession of one object can sometimes lead to possession of additional items that are related to or complementary to it. As a result, owning land entitles you to own everything is on or under it. However, as in the case of South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44, the situation in this regard is not entirely clear.

The appearance of the Animus Domini is another indicator of possession security. The claim’s visibility is another factor in the factual security of its enjoyment. As a result, publicly utilizing something implies a prima facie rightmindedness in its ownership.

Animus Possidendi

Possession does not imply mere juxtaposition. It must imply the possibility of bodily control, as well as a desire to exert such power. Animism is the mental component of possession. 

The Classical Roman jurists acknowledged two levels of authority over a possessed thing, the lesser of which were referred to as detention and the highest as possession, properly so-called.

In the context of the factor of animus in legal possession, the following points should be taken into account:

1. R v. Hudson (1943) The urge to acquire does not have to be righteous, and it might even be deliberately wicked. The ownership of stolen goods by a criminal is no less genuine than the possession of stolen goods by the rightful owner.
2. The possessor must have sole ownership of the object in his possession. That is, he must intend to keep others from using and enjoying the item. However, the exclusion does not have to be complete.
3. The animus does not have to be accompanied by a claim or an intention to utilize the items as owner. In the event of a promise, the pledgee has ownership of the pledged items, even if he simply wants to keep them in custody as a security to guarantee that his obligation is paid.
4. The possessor’s animus does not have to be his or her own. A servant, agent, trustee, or bailee, for example, does not maintain goods in his possession for his personal use, but rather for the benefit of another person.
5. The animus could not be particular; instead, it could be broad. For example, a guy who has caught fish in his net has ownership of all of them, even though he has no idea how many there are. Similarly, a person is assumed to own all of the books in his library, even if he is unaware of the existence of any of them.
6. The animus may not be specific instead it may be merely general. For instance, a person who has caught fish in his net has possession of all of them although he does not know their exact numbers. Likewise, a person is deemed to have owned all the books in his library although he may not even know about the existence of some of them.

It is important to note that when a person owns a receptacle, such as a box, cabinet, or envelope, he also owns the contents of that receptacle.

Savigny theory

Savigny based his idea of possession on the Roman Jurist Paul’s text, emphasizing that possession consists of two essential elements: 

1. Corpus Possession
2. Animus Domini

• By corpus, he meant effective physical control over the object, i.e., immediate physical power to prevent the owner from being harmed by any outside agent.
• Animus Domini (mental element of possession)-Domini is derived from the word dominium. It is the result of Roman jurisprudence that leads to the concept of ownership.
• According to Savigny, Animus Domini is a mental aspect of possession, which means that the court will think that the item has a right of full ownership.
• We utilize Animus Domini with the deliberate goal of holding the thing as if we are the owners, which includes excluding others’ influence.
• There can be no possession without the mental aspect of animus. With animus Domini, Savigny has strengthened the right of possession.
•  Animus Domini, which means “you are the complete owner of the item” according to Savigny, should be held with this belief.
•  In terms of possession, Animus Domini is more powerful than Animus Possidendi. For example, a courier boy is in possession, even though he does not intend to keep it; nonetheless, he is in possession for the time being.
• According to him, possession protection is a subset of personal protection, and just as any act of violence against a person is illegal, so is any act that disrupts possession through deception.

Criticism

1. Savigny was incorrect in his assumption that possession cannot be obtained without corpus and animus, and that possession is lost when one or both of these parts are gone.
2. In practice, we find that possession persists even if one of the parts is gone, and in some cases even when both elements are missing.
3. Savigny has overlooked the fact that, even if both conditions are present, the law does not safeguard a possession obtained illegally. As a result, a thief of a stolen item is not protected by the law.

Salmond

Salmond defines animus possidendi as the act of excluding others’ rights. He was primarily concerned with two issues:

1. The desire to assert one’s legal rights
2.  Ignore other people’s power.

• According to Salmond, Animus Possidendi must be employed to hold the item as owner, and the right must be powerful such that we may exclude the authority of others.
• In modern jurisprudence, Salmond’s Animus Possidendi is a little weaker than Savigny’s and more logical.
• The Savigny right is far stronger than the only right of possession.
• Animus possidendi is a modified form of Savigny’s thesis, but in this instance, he just wants to enjoy his (owner’s) property, which is why he is excluding others.
• According to Salmond, there are two forms of possession:

1. Possession-in-fact: This refers to physical possession in which you are unsure whether or not you are lawfully in possession.
2. Possession-in-law: If you have possession in fact-in-law, corpus possession, and animus possidendi, which are Salmond’s aspects of possession, the people who are claiming have the most.

According to Salmond, a corpus possessionist has two sorts of relationships:

                1) The relationship with the object on which possession is claimed, and

                 2) Relationship with other people who are not included

Salmond defines possession as the continual exercise of a claim to exclusive use of it. The act of asserting a claim entails two steps:

1. a) Corpus possessionis
2. b) Animus possidendi

Here he emphasized on intention to exclude others and use the property. In the case of Bridges v. Hawkesworth (1851) 21 LJ QB 75, He referred it by saying that the court had correctly decided that the shopkeeper had no intention of excluding other people from the bundle of notes because he was unaware of its existence at his shop and thus had no amicus, and thus the finder of the bundle had possession of it.

Ihering’s theory

• He is a scholar of sociological school.
• Ihering’s theory of possession looks to be more practical and realistic.
•  He claims that the mental aspect he described isn’t as dominant as Savigny’s and isn’t as well-established as Salmond’s.
• The most width mental element is of Ihering. He says that the purpose of the mental element is only to support physical possession- he represents amicus as a supporting element.
• According to Ihering, in the vast majority of situations, the person who possesses the property is the owner, and possession is assigned to them as an event of ownership; there are relatively few cases where the owner’s purpose is demonstrated.
• He employs intelligent awareness-amicus simply means “knowledge of the circumstance”–and possession is the ingredient that demonstrates nine points of ownership.
• He used a sociological method to describe the notion of possession in his theory, taking an objective perspective.
• Ihering used a more pragmatic view, not requiring the presence of amicus as a condition of possession. He didn’t think of amicus as anything more than a complement to possession.
• Ihering contended that possession is ownership on the defensive. A person who is, in reality exercising ownership must be protected and not have to prove title against someone who is in unlawful possession.

Criticism

Although Ihering’s theory of possession is more acceptable than Savigny’s, it is not without flaws.

1. Because Ihering examined the idea of possession solely in the context of Roman possessory interdicts, he is unable to explain why the law refused to provide ‘possessory rights’ to those who were ineffective bodily control of the possessed object.
2. The Ihering hypothesis fails to explain possession in cases where the possessor’s right to possess an item is recognized and protected by law notwithstanding the absence of both corpus and animus.

Ownership

Ownership has been defined in a variety of ways by jurists. They all agree, however, that ownership is the most comprehensive or highest right that can be exercised over something. According to Hibbert, ownership encompasses four different types of rights: –

1. The right to utilize something
2. The right to prevent others from utilizing the item
3. The authority to destroy it

Ownership is described as a “set of rights to use and enjoy the property, including the right to transmit it to others,” according to Black’s Law Dictionary.

As a result, ownership is the legal acknowledgement of a claim to a specific piece of property. As a result, Hibbert proposes that no one can have absolute ownership of land since it cannot be destroyed. It is only possible to have an estate in it. An estate is a person’s legal interest in property that is measured in time and entitles the party to utilize the land indefinitely.

Austin’s definition of ownership

• According to Austin, ownership is a more powerful right than possession, and it is an absolute right.
• Ownership consists of the following elements:

– If we possess a piece of property, we can certainly make use of it.

– We have complete freedom to dispose of the property.

– That property’s right is for an indefinite period.

– Available in rem against the right.

• According to Austin, ownership is “a right that exists against everyone subject to the law granting the ability to put things to indefinite users.”
• He goes on to argue that ownership is a right that is limitless in terms of duration, unfettered in terms of use, and unrestricted in terms of disposal.
• Being the owner also – you cannot dispose of the property in any way, it should be disposed of properly.
• Unlimited duration: Privy Purse Case (1970)

When British India gained independence, we were given India in two parts: India and Pakistan, with 562 Siyasats belonging to the state. Indira Gandhi in 1970 gave all the properties-purse (Royal Wajeefa). Slowly, the entire zamindari idea vanished. As a result, it’s impossible to say how long the property will belong to the true owner. As per acquisition law, the property is taken in control of law and they give the compensation to the owners which end the ownership and this is always done in the public interest (sociological theory can be applied as collective social interest overrides an individual interest).

• Indefinite User: This implies that the owner of a thing is free to use or even misuse it in any manner he likes. The use of the word ‘indefinite’ has a special significance because the use of land by the owner can be restricted by agreements or the operation of law.

 Criticism

Austin’s definition of ownership has been criticized by many writers. They argue that it is fallacious to think that ownership is a single right, but it is a bundle of rights including the right of use and enjoyment. Even if an owner relinquishes some of the rights that come with ownership, he retains ownership of the remainder.

For example, in the event of a mortgage, the landowner retains ownership of the mortgaged property even though he has surrendered a right.

Modern definition

All of the preceding, i.e. indefinite use, unrestricted disposal, and limitless duration, shall be carried out in line with the law.

Case laws

Merry v. Green (1847) 7 M & W 623

Facts

In this case, the plaintiff purchased a table in an auction and found the purse in one of its drawers. Subsequently, he discovered that there was some money in the secret drawer belonging to the vendor but he appropriated the same. 

Issue

Whose purse was it? Whether the plaintiff will take it or has the right to keep it?

It was believed that it was not of the plaintiff but the seller because during the process of transfer the element of intention for that purse was missing. The intention to sell that purse was not of the seller and the buying of that purse was not of the purchaser.

Held

The court held him guilty of larceny (theft) because the purchaser was ignorant about the existence of money and the secret drawer hence he cannot be said to have possession concerning that money and could not intend to possess the contents of the secret drawer until he found it.

South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44 [GOLD RING CASE]

Facts 

In this case, the plaintiff company owned a pond upon their land. The company employed the defendant to clean the pond. During the cleaning operation, the defendant found gold rings at the bottom of the pond.

Held

The court held that the company had the first possession of the rings by their being the owner of the pond and hence the defendant acquired no title.

Bridges v. Hawkesworth (1851) 21 LJ QB 75 [BANK NOTE CASE]

The doctrine of finder and keeper was brought in this case.

Facts

A person found a bundle of notes from the stairs of a shop and gave it to the shopkeeper and says to give it to the person to whom it belongs (all administrations were used but couldn’t found the real owner) and the shopkeeper keeps it and the person who found it filed a case on the shopkeeper.

Issue

To whom the bundle of notes belongs? 

The doctrine of res nullis was applied- The doctrine of finder keeper the person who first found it will keep it.

The County court applied this doctrine in South Stafford Shiri Water Case. This case was appealed on the divisional bench and Rod Ressel reserved the judgment and said if you appoint a carpenter to open the cupboard or box, the matter in the box will not be of the carpenter and states that it will be of the plaintiff. Here the doctrine of finder keeper will not apply.

Hannah v. Peel (1945) 1 KB 509

In this case, the plaintiff was a soldier and he was asked to stay in a house and he found a brooch from there. Defendant filed a suit against the soldier but the brooch was not given to the owner as he did not take the house in physical possession and the brooch was found on the floor.

In this case, two things were considered:

1. Corpus element was never in favor of the owner of the house.
2. And the way the brooch was found the doctrine of res nullis was applicable.

Difference between possession and ownership

According to Ihering 

Possession is a de-facto exercise of the claim and ownership is the de-jure recognition of the claim.

According to Salmond 

A person is the owner of a thing when his claim receives protection and recognition from the law but possession may be exercised and realized without such recognition or protection from the law.

The owner is the only one whose claim(right) is protected and recognized by law.

Sometimes there is illegal possession like mesne profit (the person has to pay it back with interest). Possession may not be protected and recognized by law.

According to Dr. Asthana

Ownership is the soul and possession are the body and the existence of the body is necessary for the realization of the soul.

Conclusion

Most people conflate the phrases “ownership” and “possession” and use them interchangeably. However, in the legal world, both of these words have unique legal meanings. De jure acknowledgement of a claim to a particular property is known as ownership. The objective realization of ownership is possession. It is the actual exercise of a claim to a specific piece of property. In contrast to the de jure relationship of ownership, possession of a right is the de facto relationship of continued exercise and enjoyment.

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