The article has been written by Subodh Asthana, a second-year student of Hidayatullah National Law University. The author has discussed the concept and various theories of possession in jurisprudence by various eminent scholars.
“Possession” is a polymorphous term which may have diverse importance in various aspects. It is difficult to work out and draw a totally consistent and exact meaning of “possession” relevant to all circumstances with regards to all statutes. It is the most troublesome and complicated to define the “word” which fits in the definition clause of, estimate it and different speculations have been made about it.
The courts in their choices on “possession” have not pursued any biased definition. This has made the origination a very confounded one. In this way, “possession” is a subject of extraordinary scholarly intrigue. In the meantime, it is of most extreme pragmatic significance. Thus, obtaining possession of the property is far easier than to define the word “possession” in its real sense.
The etymological meaning of “Possession”
To comprehend the idea, we should initially need to comprehend the historical background of the word, i.e., the significance of the word in its root, in its history.
Pollock says that having physical power over a thing which establishes possession.
As indicated by Salmond “the possession of a material item is the proceeding with the exercise of a case to its select utilization”. This, possession includes two things.”
- The claim of selective client and
- Conscious or genuine exercise of this guarantee, for example, physical command over it.
The previous is a mental element called “animus possession”, and the last is a physical element as the “corpus possidendi”.
Teacher Zacharias sees that possession is a connection between an individual and a thing which shows that the individual has an expectation of having that thing and has the limit of arranging off.
Savigny, in his hypothesis of possession, says that the pith of physical possession is to be found in the physical intensity of rejection. The first is “corpus” for example is the physical capacity to have a thing out of the blue.
The second is having at first obtained the thing, there must be the physical capacity to hold it.
Salmond, be that as it may, does not concur with Savigny’s view that the holder must have the physical capacity to prohibit outsider obstruction. The genuine test, as indicated by him isn’t the physical intensity of rejection. In any case, he stated the “unlikelihood of obstruction by the other”.
Pollock called attention to that in like manner discourse a man is said to have or to be in possession of anything of which he has the evident control, or from the utilization of which he has the clear intensity of barring others.
As per Markby “possession is the assurance to practice physical authority over a thing all alone benefit combined with the ability to do as such”.
Maine characterizes possession as “physical confinement combined with the goal to hold the thing kept as one’s own.”
Kant characterizes possession and says that “there must be an observational reality of taking possession conjoined with the will to have an outer item as one’s own. At the end of the day, there are two elements which are basic to establish the idea of possession as complete and legitimate.
These are as follows.
- The physical element which comprises of physical command over the thing.
- A mental element which comprises the assurance to practice that control.
- The physical element is known as the “corpus possession” and the mental element is called’ as the “enmity possidendi”. It is said that to establish a substantial and complete possession both these elements must be available for example, there must be “animus possidendi” which means the aim to have just as “corpus possession” for example, the thing must really be controlled by the individual who has the aim to have it.
- It is to be noted that the above two are very much essential in order to constitute the Corpus and the viable acknowledgement in the truth of the case of the holder while the ill will is the abstract element. Savigny was of the view that both the elements, for example, corpus and hostility must be there to comprise possession.
Concept of “Possession” under Roman and English law
The concept of the term “Possession” has been defined in Roman as well as in the English law. Both of these laws have been considered one of the authoritative and conventional laws in the field of lawmaking.
The concept under Roman law
Under Roman law, the idea of possession was utilized in two diverse senses. To be in possession of a thing was not quite the same as having legitimate possession over it.
The previous signified that an individual just has physical power over the thing and it was designated “corpus possession” – while the latter implied having restrictive authority over a thing. The Roman called as “civil possessions” which signified legitimate possession.
In Roman law, certain significant outcomes were joined to “civil possessions”.
As indicated and proceeded with possession of the immovable property for a long period which was not confinement provided for the holder possession or “dominion ” over the property. The courts have taken an active stand and role in understanding the concept of legitimate possession and proprietorship.
An individual was considered to be in lawful possession of a thing when he was unaware that it was in his physical control or he had custody over it, yet likewise, he had the ability to bar other structure impedance in his possession. This mental element to hold possession and authority over a thing to the rejection of all others was classified “animus. Thus, possession to be lawfully required two fundamental elements which are as follows
The concept under English law
The significance of possession has similarly been perceived in the English law too. The term is ordinarily utilized in both,
- Civil Law.
- Criminal law.
In common law, viz. the law of torts, contract law, property, specific alleviation, and so forth numerous wrongs are characterized regarding possession.
For example, trespass is a wrong identifying with possession of land or merchandise, the change isn’t right influencing possessory directly in products and is known as “trover”.
In the penal laws, burglary is untrustworthy removing any portable property out of the possession of any individual without that individual’s assent.
The English law perceives that procurement or loss of possession results into numerous significant legitimate outcomes. Possession has been given security under the law of varied reasons.
Theory of Possession by different Scholars
The theory of possession has been explained and analysed by various scholars and thinkers. Analysis of the theory by various legal jurists is as follows.
Savigny Theory of Possession
Savigny, based on the content of Roman Jurist Paul, said that there are two elements of possession:
1) Corpus possessions “commonly known as ‘corpus’
2) Animus Domini ”known as ‘animus ‘.
By corpus is implied a compelling physical control of the object. Savigny clarifying it says: the physical intensity of managing the subject promptly and of barring any remote office over it is the factum which must exist in each obtaining of possession.
This quick physical power isn’t important to proceed with the possession, as was required to offer ascent to it, and proceeding with possession depends rather on the consistent intensity of duplicating the first relationship freely. For this reason, we don’t lose possession by unimportant non-appearance structure of the subject, which we have once appropriated to ourselves, in spite of the fact that the physical connection in which we currently remain to it, would not have gotten the job done in the primary case to get possession.
At the end of the day, as per Savigny, the quintessence of possession is to be found in the physical intensity of prohibition. He sees that the “corpus possessions” might be of two sorts, proportionately as it identifies with the initiation or maintenance of possession.
The corpus required initiation of possession in the present or real physical intensity of utilizing the thing oneself and of barring every single other individual from the utilization of it, while the “corpus” required for the maintenance of possession once procured may comprise simply in the capacity to duplicate this power voluntarily.
Consequently, for instance, I get possession of a pony when I take him by the harness or ride upon him or have him in my quick nearness, with the goal that I can anticipate all different people from meddling with me. However, no such prompt physical connection is important to hold the possession so required. I can put the horse in the stable or let it eat in the field but then be in possession of him, in a much as I can take him by the harness when I wish and use him to the avoidance of others.
Animus basically means the mental element or the aim to hold the possession as proprietor against all others. In simple words, it is a cognizant aim to avoid others from the objective aim of possession. Without the mental element, there can be no possession.
Savigny’s hypothesis discloses with respect as to why the occupant, the borrower, and the operator had no possession “of the articles, objects so let, loaned or endowed to manage them” in Roman law.
They had no “animus domini” as they didn’t plan to hold the object in their very own right. Be that as it may, Savigny’s hypothesis neglects to clarify those cases where Roman law had given the possessory right “the privilege to get or recuperate possession” to the people who were not the proprietors of the item or property.
Savigny said that those cases were abnormalities and recommend that they were the cases of “derivative possession”.
His theory moved toward possession as a sociological legal scholar. He offered the conversation starter to why Roman law secured possession by methods for forbids (cures are given based on the possession). He says that it was concocted to profit the proprietors by ensuring their holding of the property thus setting them in the invaluable position of respondents in any activity as to the Title. He stated, “at whatever point an individual ‘resembles a proprietor’ in connection to a thing he has possession, possession can’t be denied to him except if by principles of law, in light of ‘useful comfort’.”
According to Jhering, “what is vital is the consciousness of the thing which can offer possession to the individual.” His methodology is said to be more common sense than Savigny’s. He gave a utilitarian meaning of possession, while likewise accentuating on the point that the idea of ‘possession’ may change significantly in various casings of law.
Holmes who begun by disproving a “priori” philosophical thought, saw that fewer realities are required to start possession than to gain it. What establishes possession can be best concentrated just when possession is first picked up. He furthermore stated that:
“To pick up possession, at that point a man must remain in a specific physical connection to the item what’s more, to the remainder of the world, and must have a specific plan. These relations and this aim are the certainties of which who are in pursuit.”
Homes recommended that English law does not require the “animus domini” element, however only the aim to avoid others. For example, the inhabitant wants not to hold as proprietor ‘of the land, however just to bar the landowner.
Holmes proclamation is, regardless, equivalent, to Savignyian appropriation of “corpus “and ‘animus“. In the meantime, he may likewise be charged for having referred to no expert by any means, and consequently, he, having rejected the “from the earlier” philosophical origination, continued to do that very thing himself.
Salmond said that there is just a single origination that is possession indeed, which is possession “in truth and in fact”. In law, the activity of possession depends entirely on the criteria of sound judgment, and further, since possession of law is related to possession truth be told, so possession in law, for him, is invented. Be that as it may, the possibility of possession remains never again attempted to reality, it has rather procured the importance in the most specialized sense.
Having rejected two distinct originations of possession.
- Possession in reality
- Possession in law
In any case, having in this manner, expected that possession, in reality, is possession in truth, Salmond at that point continued to draw a partitioning line between possessions of physical items, which he named “human possession” and the other which he named “spiritual possession”. For human possession, he said that it is a “proceeding with the exercise of a guarantee to the select utilization of it “Keeping practising of this case, as indicated by him, is comprised of two components in particular which are as follows:
- Corpus possession
- Animus possidendi
In this manner, for Salmond, possession is both corpus and ill will. Salmond also thought contained both the ability to utilize the thing had and the presence of the reason for the special case that the holders use will not be meddled with. The last mentioned, then again, comprised of intent to fitting to oneself selective utilization of the thing had. Salmond’s “hostility possidendi“, which is intended to bar others, is an appropriation of the altered form of Savigny’s “enmity domini“.
Pollock, a distinguished legal adviser, said that “in common speech, a man is said to have or to be in possession of anything which he has a clear control, or from the utilization of which has the evident intensity of excluding others.
From the above mentioned, clearly, Pollock laid pressure, not on “hostility” yet “accepted” control, which he defined as physical control. The general intent is adequate. The decrease of possession to a general standard, for example, “true” control has, be that as it may, drive Pollock to confront certain troubles. His hypothesis is an express inability to explain how hirelings have “custody” for certain reasons and “possession” for other people.
Further, genuine it is, that possession need not just a physical control over the “res ” itself, yet in addition the capacity to reject other physical control to prohibit others may be exceptionally significant factor in crude and lawless society however, the more settle the network, the less significant is real physical powers in obtaining possession. In this manner, the kid has no physical capacity to reject the hoodlum. However, in any case, he has possession except if the miscreant really takes it from him.
Concept of Possession in India
Like the Romans, the ancient Indians developed their very own indigenous and associations and lawful institutions. Predominantly, in India, the property laws in all ancient networks were related to the land and the landed property depended on individual proprietorship.
The law of property under the ancient Hindu literature was most certainly not in light of any guess yet was an exceedingly specialized and socialized institute. Its utilization and satisfaction were confined and managed by the sacred texts. Holding of property by the individual was then held to assist the general public in going ahead. The idea of possession, therefore, under the old Hindu Law was nothing.
However, a lawful contraption established in the contemplation of dharma. The possession that was an exceedingly specialized institution in ancient India, was perceived by the Hindu Law starting at two kinds to be specific,
- With title
- Without title
The possession without a title was expressed to have never made proprietorship and an individual who was in possession of a thing or land without a title was considered as a hoodlum. At one spot, Yajnavallkiya in his Smriti has pointed out that a man who sees his property being delighted in by others and does not complain about it; he loses it following twenty years. If there should be an occurrence of different properties proprietorship slips by following ten years by unfriendly possession. Gautama and Narada to agreeing with the above have expressed that in the land, an individual loses proprietorship following twenty years and in riches following ten years.
Not just the ancient laws of Hindus. Muslim Law, as well, connected some significance to the idea of possession. Sir Abdur Rahim commented that a man in possession, however by an illegitimate possession, has under the Muslim Law focal points over the non-owner. The holder is qualified for security against the whole world aside from the genuine proprietor. In India, the Britishers who carried with them the jurisprudential idea of possession gave two components to comprise possession, in particular,
- The corpus.
- The ill intention.
Yet, in India, it is very much said that the theory and postulate with regards to possession contain not just the privilege to have the right and capacity to prohibit others from possession and control, also a mental component, the “animus possidendi“.
Both occupation and intention have essentially been viewed as critical to establishing possession. In contrast to England, in India, it is further worth noting that there has been no such distinction between custody and possession.
The unfriendly possession in India has been expressed to suggest possession by an individual holding the immediate possession benefit of some individual other than the genuine proprietor having a privilege of prompt possession. The possession obtained ought to be satisfactory in certainty, inattention and in the degree to display that it is possession antagonistic to the contender.
The quality and degree of the privilege obtained through antagonistic possession result rely on the guarantee and nature of “hostility possidendi“. It is dependable “hostility” which must be assembled from the conditions.
In, Bridges V. Hawkesworth, the court ruled that the heap of notes found on the floor of a shop go into the possession of the finder as opposed to the businessperson. The decision has been bolstered by Pollock and Salmond. Pollock holds that since the retailer “defendant” has no “corpus” in the heap of notes, he has no “de facto” power over it.
Salmond has taken this view, the business person has no “ill will” for possession. The decision has, be that as it may be reprimanded by Prof. Goodhart and Granville Williams. In their opinion, this case was wrongly decided on the grounds that the defendant businessperson had a general “animus” and adequate control imperative for lawful possession of the notes was physically found in the shop itself.
In, South Staffordshire water co. vs Sharman the court ruled wherein, The defendant was utilized by the organization, to get out a lake upon their property. He discovered certain gold rings at the base of the lake while cleaning it. The court held that the organization had the principal possession of the rings and not the defendant.
Possession in Law and Fact
Possession has thus been divided into two categories which are as follows.
- Possession in Fact
- Possession in Law
Possession in Fact
It indicates physical possession of an individual and a thing.
For instance, if an individual has confined a parrot, he would be deemed to have possession of it in as much as the parrot is in the possession of that man yet when the parrot escapes from the man then if it counterbalances freely then only he would have possession over it. Certain points regarding possession, actually, must be painstakingly evaluated. They are as follows.
- There are certain things over which an individual can’t have physical control.
- The physical command over the item need not be continuous. For instance, I have my jacket when I am wearing it, regardless I have possession of it when I take it off and hang it on a pag when I rest. The fundamental idea is that I ought to be in a position to resume power over it in the typical course at whatever point I so desire. In other words, physical control may continue regardless of whether an individual relinquishes real control briefly.
- In order to comprise possession actually, just having physical control of a thing isn’t sufficient yet it must be joined by the ability to exclude others from the possession of it. Be that as it may, a few legal scholars don’t consider the component essential for possession.
- In simple words, the relation between a person and a thing which he possesses is called possession in fact or “de facto possession ”.
Possession in Law
Possession in law is likewise named as “de jure” possession. It has just been expressed that the law secures possession for two clear reasons, in particular, which are as follows.
- By conferring certain lawful rights on the owner
- By penalizing the people who interfere with the possession as an individual or by making him pay harms to the holder.
At whatever point an individual brings a suit for possession, the principal thing that the court ascertains regardless of whether the plaintiff was some time ago in genuine possession of the thing in debate. The facts demonstrate that in the more significant part of the real possession which affirms legitimate possession yet there are numerous circumstances when an individual does not have possession in law in spite of the fact that he is in real possession of the article.
In a legitimate sense, possession is utilized as a relative term. The law is by and large not worried about the inquiry with respect to who has the best title; however, it is worried concerning which of the gatherings before it has a superior title.
Possession and proprietorship contrast in their modes of obtaining too. The exchange of possession is nearly simpler and less specialized, yet the exchange of possession in most cases involves a specialized procedure of convincing.
The privileges of possession and proprietorship are considered the equivalent. “Within the points of confinement recommended by arrangement, the proprietor is permitted to practice his normal control over the subject-matter interfered with, and is, pretty much, shielded in excluding other individuals from such interference. The proprietor is permitted to exclude all and is responsible to nobody. The owner is permitted to exclude everything except one and is accountable to nobody but himself.