POSSESSION AND OWNERSHIP

A project file submitted to

RAYAT COLLEGE OF LAW

In partial fulfillment of the requirement of course BA.LLB Hons.

For semester second

SUBJECT: JURISPRUDENCE

(SESSION-2019-2020)

Submitted To: Submitted by:

Ms. Manjeet Kaur SHIVANGI DHIR
Asst. Professor BALLB/ Sem 2
Rayat College of law 81

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 CERTIFICATE OF ORIGINALITY

I am pleased to declare that this project file titled is “Possession And Ownership” my original
work which is assigned to me as per the syllabus under the supervision of Associate professor
Ms. Manjeet

All sources used for this project file has been fully and properly sited it contains no material
which to a substantial extent has been accepted for the award of any other such paper by any
college of any other such paper by any college or any university, except where due
acknowledgement is made in this project file.

Mr. Manjeet Shivangi Dhir

Associate professor Roll no. 81
RAYAT COLLEGE OF LAW BA.LLB. 2nd sem
Railmajra S.B.S Nagar (Punjab)

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Ms.Manjeet who gave me
the golden opportunity to do this wonderful project on the topic “Possession And Ownership” of
Jurisprudence which also helped me in doing alloy of researches and I came to know so many
new things. I am really thankful to them.

Secondly, I would also like to thank my fellow class mates and my teachers who helped me a lot
in finishing this project within the limited time. I am immensely obliged to my teachers for their
elevation, inspiration encouraging guidance and kind supervision in the completion of my
project.

SHIVANGI DHIR

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4
 POSSESSION AND OWNERSHIP

The concept of is one of the fundamental juristic concepts common to all systems of law. This
concept has been discussed by most of the writers before that of possession. However, it is not
the right method. The idea of possession came first in the minds of people and it was later on that
the idea of ownership came into existence.Ownership is a complex juristic concept which has its
origin in the Ancient Roman Law.

In Roman law ownership and possession were respectively termed as ‘dominium’ and
‘possessio’. The term dominium denotes absolute right to a thing while possession implied only
physical control over it. They gave more importance to ownership because in their opinion it is
more important to have absolute right over a thing than to have physical control over it.
In English law the concept of ownership developed much later than possession. The earlier law
gave importance to possession on the misconception that possession includes within its
ownership as well. Holdsworth observed that the English law accepted the concept of ownership
as an absolute right through gradual the gradual development in the law of possession.

The concept of ownership consists of a number of claims such as liberty, power and immunity in
regard to the thing owned. Ownership is thus a sum-total of possession, disposition and
destruction which includes the right to enjoy property by the owner. The owner has to side by
side abide by the rules and regulation of the country.

Possession is an evidence of ownership1 . It transfer is one of the chief methods of transferring

ownership. The possession of a thing “even ifit is wrongful" is a good title against the whole
world except the real owner. That is why it is said that "possession is nine points ofthe law”.
Long possession creates ownership by prescription. Possession is the basis on ground of

1
Section-110 of the Indian evidence act, 1872 says ‘.-“when the question is whether any person is owner of
anything of which he is shown to be in possession, the burden of proving that is not the owner is on the person
who affirms that he is not the owner "

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obtaining certain legal remedies, for example, the possessory remedy. In certain cases the
possessor of a thing can confer a good title on a transferee of it though he himself has none.
Possession plays a very important role in criminal law. In a number of offences against property
possession becomes the main issue to be determined2

DEFINITION OF OWNERSHIP
Jurists have defined ownership in different ways. All of them accept the right of ownership as the
complete or supreme right that can be exercised over anything. Thus, according to Hibbert
ownership includes four kinds of rights within itself.

1. Right to use a thing

2. Right to exclude others from using the thing
3. Disposing of the thing
4. Right to destroy it.

Austin’s definition:
Austin while defining ownership has focused on the three main attributes of ownership, namely,
indefinite user, unrestricted disposition and unlimited duration which may be analysed in detail.

1. Indefinite User:
By the right of indefinite user Austin means that the owner of the thing is free to use or misuse
the thing in a way he likes. The pawner of a land may use it for walking, for building house or
for gardening and so forth. However Austin was cautious enough to use the term “indefinite”. He
did not use the thing owned infamy way he likes. His use if the thing is conditioned by
requirements or restrictions imposed by the law. The owned must not use the things owned as to
injure the right of others. The principle is the foundation of the well known maxim ‘sie utere tero
ut alierum non laedas’ the meaning of the maxims is that to use your own property s not to injure
your neighbour’s right. Again the use of property may be restricted voluntarily e.g. town

2
Theft, defined -the term "theft" is defined under section-378 the Indian penal code, 1860. “whoever, intending to
take dishonestly any movable property out of the possession of any person without that person‘s consent, moves
that property in order to such taking, is said to commit theft"

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planning act, slum clearance act, 19553 etc.

2. Unrestricted Disposition:
What Austin implies by unrestricted disposition is that the power of disposition of the pawner is
unhampered by law meaning thereby that he is absolutely free to dispose it to remove it to
anyone This is incorrect. In case of lease of thousand years, servitudes and restricted, covenants,
plenary control of a property is not possible. Moreover, in the law of the some of the western
countries there is rule re relegitima portis which means that the person cannot dispose of his
entire property. He has to keep a certain portion of the property for the members of his family.
Under mohamdan law a similar rule prevails namely a person cannot dispose and delaying
creditors would be set aside. As under Hindu law government by mitakashara law can’t alienate
ancestral immovable property without the consent of other co perceners except for legal
necessity.

3. Unlimited Duration:
It is incorrect since almost under every legal system the state possesses the power to take over
the property of any person in public interest.

The abolition of Zamindari system India , the abolition of privy purses, nationalization of Bank
etc. are some example of the fact that the ownership can be cut short by the state for public
purpose and its duration is not unlimited.

Austin’s definition has been followed by Holland. He defines ownership as plenary control over
an object. According to him an owner has three rights on the subject owned:
1. Possession
2. Enjoyment
3. Disposition

Planetary control over an object implies complete control unrestricted by any law or fact. Thus,
the criticism levelled against Austin’s definition would apply to that given by Holland in so far

3
Mah. 13 of 1978, s. 2.

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as the implication of the term “plenary control” goes.

Criticism Against Austin’s Definition:

Austin’s definition has been criticised by many writers.
They argue that it is fallacious to think that ownership is a single right; in fact, it is a bundle of
rights including the right of enjoyment by the user. Even if the owner gives away his few rights
in ownership, the residue are still owned by him. For example, mortgage of property by the
owner.

Ownership is not merely a right but also a relationship between the right owned and the person
owning it.
Owner having an unrestricted right of disposition has also been criticised. His right of disposition
of the property can be curtailed by the state. For example, under article 31(2) of the Indian
Constitution the state can take away the property of any person for public purpose.

Salmond’s Definition:
According to the Salmond ownership vests in the complex of rights which he exercises to the
exclusive of all others. For Salmond what constitute ownership is a bundle of rights which in
here resides in an individual. Salmond’s definition thus point out two attributes of ownership:

1. Ownership is a relation between a person and right that is vested in him

2. Ownership is incorporeal body or form

Salmond’s definition does not indicate the content of the ownership. It does not indicate the
right, powers etc. which are implied in the concept of ownership. Again, it is not wholly correct
to say that ownership is a relation between a person and right that is vested in him. As the most
popular and common idea of ownership is a relationship between a person and a thing.

Criticism against Salmond’s Definition:

Dugit says the thing is what is owned not the right which does not really exist.

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According to Cook, there are many rights which a person may possess and to use the term
‘owner’ to express the relationship between a person and a right is to introduce unnecessary
confusion. Ownership is the name given to the bundle of rights.

Other Eminent Jurists

1. Fredrick Pollock improves upon other definition when he defines ownership as the entirety of
the power of use and disposal allowed.
2. Prof. Keeton expresses a similar view when he observed that ownership is the ultimate right to
the enjoyment in persons other than the one entitled to the ultimate use are exhausted.

These two definitions give relatively a more proper connotation of the term ownership. They
bring out the most important fact that ownership is always subject to limitation imposed by the
law; it is ultimate right to the employment of a thing subject to the condition or restriction
imposed by law as to the use of the thing owned. Keeton has added another obvious dimension to
the definition of ownership when he speaks of ultimate use is exhausted. Thus the owner may
mortgage his house give it to tenant after the rights of the mortgagee or tenant are exhausted.

OWNERSHIP UNDER ANCIENT HINDU LAW

Ancient Hindu jurist have said much about the means of acquiring ownership. Manu declared
that there are seven virtuous means of acquisition of wealth viz. inheritance, gain, purchase,
conquest, application, employment of the work and of and acceptance of gifts from proper
persons. Gautama gives almost the same seven ways of acquiring ownership but he puts some
modification to the list given by Manu.

Narada enters in to more details and says that there are twelve different modes of squiring wealth
of which three are general i.e. open to all caste and the rest are peculiar to several castes.

These specific modes of acquiring wealth are proper for several casts and any contravention is
reprehensible unless by pressing necessity.

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 MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring ownership which may be broadly
classed under two heads,viz,.

1. Original mode
2. Derivative mode

The original mode is the result of some independence personal act of the acquire himself. The
mode of acquisition may be three kinds

a. Absolute when a ownership is acquired by over previously ownerless object

b. Extinctive, which is where there is extinctive of previous ownership by an independence
adverse act on the part of the acquiring. This is how a right of easement is acquiring after
passage of time prescribed by law.
c. Accessory that is when requisition of ownership is the result of accession. For example, if
three fruits, the produce belongs to the owner unless he has parted with to the same. When
ownership is derived from the previous version of law then it is called derivate acquisition. That
is derived mode takes place from the title of s prior owner. It is derived either by purchase,
exchange, will, gift etc.Indian Transferee Acts of property rules for the transfer of immovable
property, Sale of goods Acts for the transfer of property of the firm and the companies Act for
the transfer of company property.

SUBJECT MATTER OF OWNERSHIP

Normally ownership implies the following:
1. The right to manage;
2. The right to posses;
3. The right to manage;
4. The right to capital;
5. The right to the income.
The owner of a thing has the right to possess it, to the exclusive of all others i.e. the owner has

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exclusive physical control of a thing or such control possesses the thing but this is not necessary
and always so. Thus to cite only a few examples, the owner may have been wrongfully deprived
of it or may has voluntarily devised himself of it. If A’s watch is stolen by B, the latter has
possession but the former remains the owner with an immediately right to possess. In case of
lease and mortgage, the owner (i.e. the leaser and the mortgagor) owns the property without
possession lies, with the lesser and the mortgagee.

The owner has the right to use the subject matter of ownership according to his own discretion.
Here use means personal use and the enjoyment of the thing by the owner. This right of
enjoyment or use is not absolute; it can be and is in fact, limited by law. This does not mean that
an owner cannot there by disturb the right of others. Suppose A owns a transistor, ha cannot tune
it at any time for listening music, for news or for commentary, but in doing so he is to take care
that he does not disturb the right of others. Thus he cannot tune it at a high pitch and at an odd
time so as to disturb the right of others. Thus he cannot tune it at a high pitch and at an odd time
so as to disturb the sleep of others.

The owner has right to manage i.e., he has the right to decide how and by whom the thing owned
shall be used. The owner has the power contracting the power to admit others to ones land, to
permit others to use one’s things, to define the limits of such permission, to create a right of
easement over his land in favour of a third person etc.One who owns things has also the right to
alienate the same or to waste, destroy or to consume the whole or part of it. The right to consume
and destroy are straightforward liberties. The right to alienate i.e. the right to transfer his right
over object to another involves the existence of a power. Almost all legal system provide for
alienation is the exclusive right if the owner. A non-owner may have the possession of a thing
but he cannot transfer the right of ownership of such thing to another e.g. , in case of lease, a
lessee may have the possession of the leased property but he cannot transfer it because that is the
exclusive right of the leaser who only can do so.

The ownership of the a thing has not only the right to possess the thing but also the right to the
fruit and income of the things within the limits , if any, laid down by the law. Suppose A’ has a
land he has not only the right to possess that the land but he can enjoy benefits resulting there

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from e.g., produce, fruits, crops, etc. sometimes the use or the occupation of a thing to possess
that the land but he can enjoy benefits resulting there from e.g. produce fruits, as the simplest
way of deriving an income from it and of enjoying it.

CHARACTERISTICS OF OWNERSHIP
An analysis of the concept of ownership, it would show that it has the following characteristics:
Ownership ma either be absolute or restricted, that is, it may be exclusive or limited. Ownership
can be limited by agreements or by operation of law.
The right of ownership can be restricted in time of emergency. For example, building or land
owned by a person can be acquired by the state for lodging army personnel during the period of
war.
An owner is not allowed to use his land or property in a manner that it is injurious to others. His
right of ownership is not unrestricted.
The owner has a right to posses the thing that he owns. It is immaterial whether he has actual
possession of it or not. The most common example of this is that an owner leasing his house to a
tenant.
Law does not confer ownership on an unborn child or an insane person because they are
incapable of conceiving the nature and consequences of their acts.
Ownership is residuary in character.
The right to ownership does not end with the death of the owner; instead it is transferred to his
heirs.
Restrictions may also be imposed by law on the owner’s right of disposal of the thing owned.
Any alienation of property made with the intent to defeat or delay the claims of creditors can be
set aside.

DIFFERENT KINDS OF OWNERSHIP

Experience shows that there are many kinds of ownership and some of them are corporeal and
incorporeal ownership, sole ownership and co-ownership, legal and equitable ownership, vested
and contingent ownership, trust and beneficial ownership, co- ownership and joint ownership and
absolute and limited ownership.

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Corporeal and Incorporeal Ownership
Corporeal ownership is the ownership of a material object and incorporeal ownership is the
ownership of a right. Ownership of a house, a table or a machine is corporeal ownership.
Ownership of a copyright, a patent or a trademark is incorporeal ownership. The distinction
between corporeal and incorporeal ownership is connected with the distinction between
corporeal and incorporeal things. Incorporeal ownership is described as ownership over tangible
things. Corporeal things are those which can be perceived and felt by the senses and which are
intangible. Incorporeal ownership includes ownership over intellectual objects and
encumbrances.

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by
two persons at the same time. The relation between the two owners is such that one of them is
under an obligation to use his ownership for the benefit of the other. The ownership is called
beneficial ownership. The ownership of a trustee is nominal and not real, but in the eye of law
the trustee represents his beneficiary. In a trust, the relationship between the two owners is such
that one of them is under an obligation to use his ownership for the benefit of the other. The
former is called the trustee and his ownership is trust ownership. The latter is called the
beneficiary and his ownership is called beneficial ownership. The ownership of a trustee is in
fact nominal and not real although in the eye of law, he represents his beneficiary. If property is
given to X on trust for Y, X would be the trustee and Y would be the beneficiary or cestui que
trust. X would be the legal owner of the property and Y would be the beneficial owner. X is
under an obligation to use the property only for the benefit of Y.
A trustee has no right of enjoyment of the trust property. His ownership is only a matter of form
and not of substance. It is nominal and not real. In the eye of law, a trustee is not a mere agent
but an owner. He is the person to whom the property of someone else is fictitiously given by law.
The trustee has to use his power for the benefit of the beneficiary who is the real owner. As
between the trustee and the beneficiary, the property belongs to the beneficiary and not the
trustee.

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Legal and Equitable Ownership
Legal ownership is that which has its origin in the rules of common law and equitable ownership
is that which proceeds from the rules of equity. In many cases, equity recognizes ownership
where law does not recognize ownership owing to some legal defect. Legal rights may be
enforced in rem but equitable rights are enforced in personam as equity acts in personam. One
person may be the legal owner and another person the equitable owner of the same thing or right
at the same time. When a debt is verbally assigned by X to Y, X remains the legal owner of it but
Y becomes its equitable owner. There is only one debt as before though it has now two owners.
The equitable ownership of a legal right is different from the ownership of an equitable right.
The ownership of an equitable mortgage is different from the equitable ownership of a legal
mortgage.
There is no distinction between legal and equitable estates in India. Under the Indian Trusts Act,
a trustee is the legal owner of the trust property and the beneficiary has no direct interest in the
trust property itself. However, he has a right against the trustees to compel them to carry out the
provisions of the trust.

Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested ownership when the title of the owner is
already perfect. It is contingent ownership when the title of the owner is yet imperfect but is
capable of becoming perfect on the fulfillment of some condition. In the case of vested
ownership, ownership is absolute. In the case of contingent ownership it is conditional. For
instance, a testator may leave property to his wife for her life and on her death to A, if he is then
alive, but if A is dead to B. Here A and B are both owners of the property in question, but their
ownership is merely contingent. It must, however, be stated that contingent ownership of a thing
is something more than a simple chance or possibility of becoming an owner. It is more than a
mere spes acquisitionis. A contingent ownership is based upon the mere possibility of future
acquisition, but it is based upon the present existence of an inchoate or incomplete title.

Sole Ownership and Co-ownership

Ordinarily, a right is owned by one person only at a time. However, duplicate ownership is as

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much possible as sole ownership. When the ownership is vested in a single person, it is called
sole ownership; when it is vested in two or more persons at the same time, it is called co-
ownership, of which co-ownership is a species. For example, the members of a partnership firm
are co-owners of the partnership property. Under the Indian law, a co-owner is entitled to three
essential rights, namely

1. Right to possession
2. Right to enjoy the property
3. Right to dispose of

Therefore, if a co-owner is deprived of property, he has right to be put back in possession. Such
co-owner has interest in every portion of the property and has a right irrespective of his quantity
of share to be in possession jointly with other co-owners.

Co-ownership and Joint Ownership

According to Salmond, “co-ownership may assume different forms. Its two chief kinds in
English law are distinguished as ownership in common and joint ownership. The most important
difference between these relates to the effect of death of one of the co-owners. If the ownership
is common, the right of a dead man descends to his successors like other inheritable rights, but
on the death of one of two joint owners, his ownership dies with him and the survivor becomes
the sole owner by virtue of this right of survivorship.”
A joint ownership occurs when two or more persons are entitled to the same right or bound by
the same obligation in respect of a thing. For example, a partnership property is owned by the
persons constituting the firm jointly and trustees are the joint owners of the trust property. The
essence of the conception is that there is only one right and one obligation, so that anything
which extinguishes such right or obligation, releases all parties.

Absolute and Limited Ownership

An absolute owner is the one in whom are vested all the rights over a thing to the exclusion of
all. When all the rights of ownership, i.e. possession, enjoyment and disposal are vested in a
person without any restriction, the ownership is absolute. But when there are restrictions as to

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user, duration or disposal, the ownership will be called a limited ownership. For example, prior
to the enactment of the Hindu Succession Act, 1956, a woman had only a limited ownership over
the estate because she held the property only for her life and after her death; the property passed
on to the last heir or last holder of the property. Another example of limited ownership in English
law is life tenancy when an estate is held only for life.

DEFINATION OF POSSESION

The concept of possession is though basic and essential in human life, it is a difficult to define.
There is no fixed or precise definition of possession because it is legal as well as factual concept.
Supreme Court in Superintendent Remembrancer Legal Affairs vs Anil Kumar4, held that it is
impossible to work out a completely logical and precise definition of Possession uniformly
applicable to all situation in the context of all the statutes.

It is very difficult to define the term Possession. Some Jurists have given different definitions.

John Salmond:

Salmond defines Possession as, "possession is the continuing exercise of a claim to the Exclusive
use of an object."

Savigny:

Savigny defines Possession as, "intention coupled with physical power to exclude others from
the use of material object.

Salmond criticized Savingy's definition and ground that Savingy committed an error by
including the element of physical power in his definition.

O.W. Holmes:

Holmes defines Possession as, "To gain Possession a man must stand in a certain physical
relation to the object and to the rest of the world, and must have certain intent."

Maine:
4
AIR 1980 SC 52

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Maine defines the possession as, "physical detention coupled with the intention to hold the things
detained as one's own.

Sir Frederick Pollock:

Sir Frederick Pollock defines Possession as, "In common speech a man is said to possess to be in
possession of anything of which he has the apparent control from 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 had possession of it unless Possession was denied
to him by rules of law based on practical convenience."

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.5

NATURE OF POSSESSION

Possession is the most basic relation between man and things6. Possession of material things
is essential to life because the existence of human life and human society would be rather
impossible without the consumption and sue of material things. Many important legal
consequences flow from the acquisition and loss of possession. Besides being a “primi-facie”
evidence of ownership, it is also one of the modes of transferring ownership. Possession is said
to be nine out of ten points of law meaning thereby that it is an evidence of ownership and he
who interferes with the possession of another, must show either title or better possessory right.
For example, a thief who steals may watch has a possession which the law will protect against
everyone except myself or some person acting on my behalf. Not forcibly is a wrongful act
5
https://www.srdlawnotes.com
6
SALMOND . Jurisprudence (12'" Ed.) P.265 '

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though the possession of the person turns out to be wrongful. The defendant cannot take the
defense that some other person than the other person dispossessed, had a title to the land7 . The
remedy to recover possession is called “possessory remedy” as provided by the statues8

According to HENRY MAINE, possession means that contact with an object which involves the
exclusion of other person from the enjoyment of it. Possession denotes physical contact
presumable at will. In other words, it does not signify mere physical detention but physical
coupled with the intention to hold the thing detained as one’s own9

POSSESSION UNDER ROMAN LAW

Under Roman law, the concept of possession was used in two different sense. To be in
possession of a thing was different form having legal possession over it. The former denoted that
a person simply has physical control over the thing and it was called “corpus possession’s” -
while the later meant having exclusive control over a thing. The Roman called as
“civilipossessions” which denoted legal possession
In Roman law, certain important consequences were attached to “civil possessions ” According
to XII tables a continued possession of an immovable property for a long period which was not
detention gave to the possessor ownership or “dominium " over the property. The property
disputes were mostly decided on the basis of legal possession only and the courts thought it
unnecessary to decide the question of ownership.
A person was deemed to be in legal possession of a thing when they not only think was in his
physical control or he had custody over it, but he also had the power to exclude other form
interference in his possession. This mental element to hold possession and control over a thing to
the exclusion of all others was called “animus Thus possession to be legal, required two essential
elements i.e.
i) Corpus, and ii) Animus Roman law distinguished “detention ” from custody. In case of
detention, a person was to have real possession and control over a thing though he may or may

7
JAFARIES V. Great Eastrn Rly. 5E & B 802 (802)
8
Section-6 ofthe specific relief act, 1963
9
MAINE HENRY : Ancient Law, P.47

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not have ownership of it. The "custody" on the other hand, involves possession and control
without ownership. The English law, however, did not recognize this distinction.

POSSESSION UNDER THE ENGLISH LAW

The importance of possession has equally been recognized in the English law also. The term is
commonly used in both, i) Civil, as well as ii) The criminal law. In civil law, viz. the law oftorts,
contract, property, specific relief, etc. many wrongs are defined in terms of possession. For
instance, trespass is a wrong relating to possession of land or goods, conversion is wrong
affecting possessory right in goods and is known as “trover”.
In law of crimes, theft is dishonestly taking away any movable property out of the possession of
any person without that person’s consent10. The English law recognizes that acquisition or loss of
possession results into many important legal consequences. Possession has been given protection
under the law of varied reasons.

POSSESSION IN FACT
Possession is divided into two categories, viz. 1) Possession in fact, and 2) Possession in law
Possession in law means possession in the eye of law. It means a possession which is recognized
and protected by law. There is sometimes a discrepancy between possession in fact ‘and
possession in law, although usually possession exists both in fact and in law in the same person.
A person who is in “de facto” possession of a thing also comes to have “de jure” possession. Of
possession in fact and in law there may be three situations viz., 1) Possession in fact as well as hi
law 2) Possession in fact not in law 3) Possession in law and not in fact The first type of
possession is the perfect possession while the second type of possession is not called as the
possession actually simply a custody as the possession ofservant over 757 the thing of his master,
and the third types ofpossession is property called as construction possession as 1 have a railway
receipt for the goods which are with the railway. A tenant may be occupying a particular
building but the landlord has the constructive possession of the same. The same is the case with
the things in the possession of servants, agents and bailees. The relation between a person and a
thing which he possesses is called possession in fact or "c/cfacto possession ”. It indicates

10
Section 378 fPC (in English law "theft" is called "larceny")

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physical control of a person and a thing. For instance, if a person has caged a parrot, he would be
deemed to have possession of it so long as the parrot is in the cage but as soon as the part escapes
fro the cage ofset free, he would have possession over it. Certain points regarding possession in
fact must be carefully rated. They are.
1) There are certain things over which a person cannot have physical control e.g. sun, moon,
stars, etc.
2) The physical control over the object need not be continuous. For instance, I possess my coat
when I am wearing it, I still have possession of it when I take it off and hang it on a pag when I
go to sleep. The basic idea is that I should be in a position to resume control over it in normal
course whenever I so desire. In other words physical control may continue even if a person
relinquishes actual control temporarily.
3) In order to constitute possession in fact, merely having physical control of a thing is not
enough but it must be accompanied by capacity to exclude others from the possession of it.
However, some jurists do not consider the element necessary for possession.
4) In order to determine the question of acquisition, abandonment or termination of possession,
the distinctive feature is the desire ofthe person whether he desires to retain possession or not.

POSSESSION IN LAW
Possession in law is also termed as “de jure " possession. It has already been stated that the law
protects possession for two obvious reasons, namely, i) By conferring certain legal rights on the
possessor; ii) By penalizing the persons who interfere with the possession os a person or by
making him pay damages to the possessor. Whenever a person brings a suit for possession the
first thing that the court ascertains is whether the plaintiff was formerly in real possession of the
thing in dispute. It is true that in most of the actual or factual possession testifies legal possession
yet there are many situations when a person does not have possession in law although he is in
actual possession of the object. In the legal sense, possession is used as a relative term. The law
is generally not concerned with the question as to who has the best title, but it is concerned as to
which of the parties before it has a better title. A few cases may be cited in support of this

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contention. BRIDGES V. HAWKESWORTH11 In this case it was decided by the court that the
bundle of notes found on the floor of a shop passed into the possession of the finder rather than
the shopkeeper. The decision has been supported by POLLOCK and' SALMOND. POLLOCK
holds that since the shop-keeper “defendant" has no “corpus” in the bundle of nots, he has no
“defacto" control over it. SALMOND has taken this view that the shopkeeper has no “animus ”
for possession. The decision has, however, been criticized by Prof.GOODHART and
GAVNILLE WILLIAMS.

ENGLISH LAW
POSESSION IN ENGLISH LAW
Even in spite ofthe facility of SAVIGNYAIN theory as an explanation ofRoman law, is modified
version of it has exercised a considerable influence on English law. As in Roman law, so also in
English law has occurred a shift in the meaning of possession. There the term is not limited only
to physical control1. This is to a certain extent reflected in the expression, such as “possession in
fact” and “possession in law”. The former, however, suggests presence of some factual basis for
‘possession in fact" and it may be some such supposition that has paved the way for the
acceptance of the readymade corpus and animus formula of SAVIGNY not only by writers but
even in some ofthee cases2 3. The objection to corpus and animus as comprising possession is
that their content has changed so much that they failed to provide a reliable criteria. “corpus ”
and “animus" have different meaning for different purposes in the same way as possession infact
has come to known no more than a changing concept of law. Thus, according to ERLE, C.J.,
“possession is one ofthe most vagve ofall vague terms, and shifts its meanings according to the
subject-matter to which it is applied, varying very much in its sense, as it is introduced either into
civil or in to criminal proceedings”'. Thus, the question whether possession exists in a particular
case or not depends much upon the degree of the control exercised by the person who entitle to
be in possession. This control should be of such a degree that the person having the control
would effectively exclude interference by others. The law, in this regard, has laid down certain
tests to justify whether a certain control does not fall within the ambit of possession, and where
that control falls short of that standard so established bylaw, it is then called custody or

11
1851)21 LJ QB 75 I
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detention. Few theories will, however, make the picture of the concept of possession much clear
to the understanding of the general reader.
HOLME’S THEORY OF POSSESSION
HOLMES who started by refuting a “priori" philosophical idea, perceived that less facts are
required to initiate possession than to acquire it. What constitutes possession can be best studied
only when possession is first gained. Accordingly, he pointed out: "To gain possession, then a
man must stand in a certain physical relation to the object and to the rest of the world, and must
have a certain intent. These relations and this intent are the facts of which who are in search1 2 ”
HOLMES suggested that English law does not require the “animus domini” element, but merely
the intent to exclude others. For instance, the tenant desires not to hold as owner ' ofthe land, but
only to exclude the landlord. HOLMES statement is, nonetheless, tantamount, to SAVIGNYIAN
adoption of “corpus ” and ‘animus”. At the same time, he may also be accused for having cited
no authority at

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 CONCLUSION

We may in conclusion say that:

1. Ownership is a right which comprise of powers, claims, privileges etc.
2. Ownership is in respect of a thing may be corporeal or incorporeal
3. The right relating to or connection with ownership are subject to the state regulation i.e. can be
limited or restricted by law
4. Owner is he who is entitled to the residue of rights with respect to an object left after the
limitation resulting from the voluntary acts of the owner or those imposed by law are exhausted
5. Ownership does not imply or indicate absolute or unlimited rights either use, disposal or
duration.

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