According to Salmond, in the whole range of legaltheory, there is no conception more difficult than that of Possession.Possession is the most basic relation between man and a thing. Possession is anevidence of ownership.
1) Meaning:
"Possession" literary means physical control over a thing or anobject. It expresses the closest relation of fact that can exist between athing and the person, who possess it. In law, possession means it includes notonly physical control over a thing but also an intention to exercise thatphysical control. Example: A has an article in his hand. In other words, he isin possession of that article. The person who is in possession is called a'Possessor'. In human life, consumption of material things is very essentialand it would be Impossible without the position of the material things.Therefore the concept of possession is of utmost practical importance in humanlife.
2) Definition:
The concept of possession is though basic and essential in human life, it is adifficult to define. There is no fixed or precise definition of possessionbecause it is legal as well as factual concept. Supreme Court in SuperintendentRemembrancer Legal Affairs vs Anil Kumar, AIR 1980 SC 52, held that itis impossible to work out a completely logical and precise definition ofPossession uniformly applicable to all situation in the context of all thestatutes.
It is very difficult to define the term Possession. Some Jurists have givendifferent definitions.
John Salmond:
Salmond defines Possession as, "possession is the continuing exercise of aclaim to the Exclusive use of an object."
Savigny:
Savigny defines Possession as, "intention coupled withphysical power to exclude others from the use of material object.
O.W. Holmes:
Holmes defines Possession as, "To gain Possession a man must stand in acertain physical relation to the object and to the rest of the world, and musthave certain intent."
Maine:
Maine defines the possession as, "physical detention coupled with theintention to hold the things detained as one's own.
Sir Frederick Pollock:
SirFrederick Pollock defines Possession as, "In common speech a man is saidto possess to be in possession of anything of which he has the apparent controlfrom the use of which he has apparent power for excluding others."
Ihering:
The best among them is the definition given by Ihiring. According to him,"whenever a person looked like an owner in relation to a thing, he hadpossession of it unless Possession was denied to him by rules of law based onpractical convenience."
3) Elements of Possession
From the above definition we could seein that possession has two essentials -
1) Actual power over the object possessed. i.e. corpus possessionisand
2) Intention of the possessor to exclude any interference from others. i.e. animuspossidendi.
According to John Salmond, both corpusand animus must be present to constitute Possession. Ownership isa legal concept whereas Possession is factual as well as legal concept.
The term CORPUS and the term ANIMUS, both the termsborrowed from the Roman Law.
4) Categories of Possession: Possession is divided intotwo categories.
a) Possession in fact and
b) Possession in law.
Possession in fact is actual or physicalpossession. It is physical relation to a thing. Possession in law meanspossession in the eye of law. It means a possession which is recognized andprotected by law. There is sometimes a discrepancy between possession in factand position in law, although usually possession exists both in fact and in lawin the same person. A person who is in de facto possession of a thingalso comes to have de jure possession.
6) Modes of acquiring possession:
There are two modes of acquiring possession i) Delivery and ii) Possession.
i) Delivery: Delivery completes voluntary act from one person toanother. The transferor gives actual position to the transferee. It is usuallya lawful mode of possession. Delivery may be actual of constructive. In actualdelivery the thing is physically delivered.
ii) Taking: Taking implies an Act exclusively on the part of theperson who physically takes the Possession. It is acquisition of the Possessionwithout the consent of previous Possessor. It is the possession without theconsent of the Possessor. Sometimes it is said to be unilateral act. Transfereeacquires the possession without the knowledge or consent of the formerPossessor of the thing. It is usually possessio-civilis. It may or maynot be lawful. If it is lawful then it is legal possession. i.e.possessio-juri.
See in Detail Methods of Transfer of possession
7) Kinds of possession: See ⏩⏩ Important Kinds of possession.
8) Possessory Remedies:
Possessory Remedies are those which exists the protection of Possession evenagainst ownership. Proprietary remedies are those which are available for theprotection of ownership. In many legal systems, possession is provisional ortemporary title even against the true owner. Even a wrongful Possessor who isdeprived of his possession can recover it from any person whatsoever on theground of his possession. Even the true owner, who retakes his own, must firstrestore possession to the wrongdoer and then proceed to secure a possession onthe ground of his ownership.
9) Why law protects possession?
There are many reasons for the protection of possession Read here → Reasons Law protects Possession
10) Relevant case law:
a) Elves v. Brigg Gas Co. 1886 Chancery Division.
Fact:
In this case the plaintiff was theowner of the land. He gave his land to defendant Company on lease for thepurpose of excavation and erection of gas works thereon. During the course ofexcavation one of the man of the defendants Company found a pre-historic boatburied 6 feet below the surface.
Issue:
Issuebefore the Court was whether the boat belonged to the landlord or lessee.
Held:
J. Chittyobserved that the landlord was entitled to the boat against the Company thoughit was discovered by the Company. It was observed that it was immaterial thatthe landlord was not aware of the existence of the boat. He was in possessionof the ground not merely of the surface. Hence everything that lay beneath thesurface down to the center of the earth consequently in possession of the boat.It did not matter that the plaintiff was not aware of the existence of theboat.
b) South Staffordshire Waterworks Co. V. Sharman, 1896.
Fact:
In the instantcase Plaintiff Company appointed defendant servant to clean out a pond upontheir land and in doing so he found certain gold ring at the bottom of it.Dispute arose between plaintiff Company and the defendant servant as to thepossession of the gold ring.
Issue:
To whom theGold ring belong?
Held:
Theplaintiff Company was in first possession of the gold ring and is not thedefendant, who acquired no title to them. It was observed that the possessionof land carries with it in general possession of everything which is attachedto or under the land.
11) Conclusion:
Possession is the most basic relation between man and a thing. Possessionisprima facie a proof or an evidence of ownership there is no fixed orprecise definition of possession because it is legal as well factual concept.The four essentials of possession are subject matter of possession, physicalcontrol, intention and knowledge. Possession is nine points in law and lawprovides remedies to person having possession.
As a legal expert with a deep understanding of the topic, it's evident that possession is a complex and multifaceted concept in legal theory. Salmond's assertion that possession is the most difficult conception in legal theory is supported by the intricate nature of its definition and the various perspectives provided by legal scholars.
1) Meaning of Possession: Possession is defined as physical control over an object, indicating the closest factual relation between an individual and a thing. It involves not only physical control but also the intention to exercise that control. For instance, having an article in one's hand is considered possession, and the possessor is termed a 'Possessor.'
2) Definitions by Jurists: Legal scholars, including John Salmond, Savigny, O.W. Holmes, Maine, Sir Frederick Pollock, and Ihering, have offered different definitions. Salmond defines possession as the continuing exercise of a claim to the exclusive use of an object. Savigny emphasizes intention coupled with physical power, while Holmes emphasizes a certain physical relation and intent. Maine defines possession as physical detention with the intention to hold the detained things as one's own. Pollock defines possession in terms of apparent control and apparent power.
3) Elements of Possession: Possession comprises two essential elements:
- Actual power over the object (corpus possession)
- Intention of the possessor to exclude interference from others (animus possidendi). According to Salmond, both corpus and animus must be present for possession to exist. Ownership is a legal concept, whereas possession is both a factual and legal concept.
4) Categories of Possession: Possession is divided into possession in fact (physical possession) and possession in law (recognized and protected by law). There can be a discrepancy between possession in fact and possession in law, though they usually exist in the same person.
6) Modes of Acquiring Possession: There are two modes of acquiring possession:
- Delivery, which involves a voluntary act of transferring actual possession.
- Taking, an act exclusively on the part of the person physically taking possession, either with or without the consent of the previous possessor.
7) Kinds of Possession: The article refers to "Important Kinds of possession," but the details are not provided.
8) Possessory Remedies: Possessory remedies protect possession even against ownership. Possession is considered a provisional or temporary title against the true owner. The law provides remedies for possessors, even if they are wrongful possessors.
9) Reasons Law Protects Possession: The article indicates that there are reasons for the protection of possession, but the details are not provided.
10) Relevant Case Law: Two cases, Elves v. Brigg Gas Co. (1886) and South Staffordshire Waterworks Co. V. Sharman (1896), are discussed. In Elves v. Brigg Gas Co., the landlord was deemed to be in possession of a prehistoric boat found during excavation on leased land. In South Staffordshire Waterworks Co. V. Sharman, a company was considered in possession of a gold ring found during cleaning, emphasizing the general possession of everything attached to or under the land.
11) Conclusion: Possession is described as the most basic relation between man and a thing, serving as prima facie proof or evidence of ownership. The article emphasizes the lack of a fixed or precise definition of possession due to its legal and factual nature. The four essentials of possession are identified as the subject matter of possession, physical control, intention, and knowledge. Law provides remedies to individuals in possession, indicating the significance of possession in legal systems.
