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Possession and Its Kinds

Jurisprudence
[Possession, said Erle, C.J., is one of the most vague of all vague terms, and shifts its meaning according to the Subjectmatter to which it is applied Varying very much in its Sense, as it is introduced either in civil or criminal proceedings.]

Sahil Ahmad,
B.A. LL.B- 54, 5th Semester, Faculty of Law, Jamia Millia Islamia

Table of Contents
Acknowledgement03 Table of Cases04 Introduction ..06 Definition: Possession..09 Possession in Old English and Roman Law.10 Cases on Possession in English Law12 Propositions extracted from above Cases about Possession18 Reasons for the Protection of Possession in Law.19 Elements of Possession 20 Classical Theories of Possession23 Savignys Theory.23 Iherings Theory..24 Salmonds Theory..25 Fredrick Pollocks Theory.26 Holmes Theory.26 Conclusion28 Kinds of Possession..29 Mediate and Immediate Possession.30 Corporeal and Incorporeal Possession.31 Possession in Law and Possession in Fact..32 Adverse and Constructive Possession32 The concept of Possession in India.33 Possession in Ancient and Medieval Indian Laws.....38 Cases of Possession in India..39 Conclusion..43 Bibliography.44

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Acknowledgement

The project on this topic of Jurisprudence was a challenging task. The complication involved in the subject is of immense magnitude. Jurisprudence being the sole of the legal system is of outmost importance in the making of a good Lawyer. Hence doing a project of such magnitude requires guidance by the subject teacher. The enlightening experience provided by my teacher Dr. Asad Malik proves to be the continues guiding source in this endeavor. I owe him sincere gratitude, for his untiring and constant academic and intellectual support. His inspiration tickles down every nerve in our system. I would also like to take due cognizance of the efforts of my classmates who support me and always help me in every way they can.

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Table of Cases

1. Armory v. Delamirie, [1722] 1 Stra 505 2. Boynton-Wood v. Trueman, [1961]177 Estates Gazette

3. Bridges v. Hawakesworth, [1851] 15 Jur 1079 4. Boynton-Wood v. Trueman, [1841] 7 and W. 623 5. Cartwright v. Green, [1802] 8 Ves. 405 6. Collection of Customs (NSW) v. Southern Cities Company Ltd 7. Elwes v. Brigg Gas Co., 1886 33 ChD 562 8. Elmore v. Stone, 9. Grafstein v. Hlme and Freeman, 1958 12DLR 727 10. Hannah v. Peel, 1945 KB 509 11. Haig v. West 12. In re Cohen, 1953 CH 88 13. London corp. V. Appleyard and another, 1963 2 All ER 834 14. Merry v. Green, 1841 7 and W. 623 15. Moor v. Burke 16. Moorgate Merchantile Co. Ltd v. Finch 1962 1 QB 701 17. R. v. Harding 18. Rose v. Mart 19. Reg v. Riley, 1853 Dears CC 149 20. R. v. Hudson, 1943 KB 458 21. R. v. Rowe, 1859 Bell CC 93 22. R. v. Moore
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23. R v. Chissiers, 1678 L. R. 275 24. South Staffordshire Water Company v. Sharman, 1896 2 QB 44 25. Thomas v. Metropolitan Housing Corporation Ltd, 1936 1 All ER 210 26. Wrightson v. Mc Arthur and Hutchisons Ltd, 1991

Indian Cases: 27. Chitta v. Chotter Lal, AIR 1947 28. Dwarkadas v. N. Nandu, 1923 Mad 364 29. Maharaja Sashi Kant Acharya Bahadur V. Nayjan Bewa, AIR 1945 Cal 611 30. Narendra Nath v. State, AIR 1951 Cal. 140 31. Nandlal v. Bank of Bombay, 18 Bom. LR 386 32. Queen Empress v. Sita, 1893 118 Bom. LR 28 33. Ram Charan v. Emperor, 34. Sarajul Haq v. Emperor, 1922 23 Cr. Lj 408 35. Trimbak v. State of M.P, AIR 1954 SC 39 36. Limbaji v. State of Maha., AIR 2002 SC 491 37. Murli v. Emperor, AIR 1929 All 720 38. West Bengal v. Anil Kumar, AIR SC 52

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POSSESSION
(a prima facie evidence of ownership)

Introduction
Physical control of a thing by a person is a fact which is external to and independent of Laws. When laws came into existence, this fact, known as possession was taken into account in the sense that certain advantages are attached to the possessors1. In Roman laws the chief of these were2: (a) That the possession was prima facie evidence of ownership. (b) Possession was the basis of certain remedies, especially the possessor interdicts. Even a wrongful possessor was protected, not only against the world at large, but also against the true owner who dispossessed him without due process of law. (c) Possession was an important precondition in the acquisition of ownership in various ways. (d) In the law of pledge, possession of the thing pledged constituted the creditors security without any presumption of ownership. These apply substantially in English law as well where there is also the advantage that the possessor may exceptionally confer a good title on another though he has none himself. In both systems there are other advantages besides these. If the idea of possession had remained wedded to physical control, the position would have been relatively simple. Difficulties arose when it became necessary, because of the widening of legal activities, to attribute to persons who were not actually in control some or all of the advantages that were enjoyed by the persons actually in control. Tradition and technicality combined to complicate the matter. Traditionally, possession was the basis in law of these advantages. They attached to man because he had physical control, which was synonymous with possession, but
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For the basis of possessio as Romans saw it. Dias, Jurisprudence Aspects of Justice P. 272

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when it became necessary to give the same benefits to a man who was not in control, possession came to be ascribed to him without the need for physical control. Reasoning then took the form that whenever a man has these advantages, this must be because he has possession. The consequence was to bring about a contrast between actual holding and possession as well as a shift in the meaning of the term possession. Physical control came to be distinguished from possession under the nomenclature of custody or detention. A person is said to be in Custody where the holder either lacks full control or else has no animus to exclude others, for customer examining a ring in the presence of the jeweler. It simply means to take care and keep anything for a temporary period which belongs to another e.g., the property of the master in the custody of the servant. Mere custody therefore is insufficient to constitute possession. And the Roman term detentio means full physical control in fact which for some reason is not regarded as possession in law. Or it means to withhold or to keep in custody the goods from a person lawfully entitled to the possession of such goods. If the control falls short of what the law requires, the person controlling the thing is said to have detention or custody merely1. Three situations had thus become possible2. a. A man could have physical control without possession and its advantages (in case of a servant having physical control but immediate possession lies with the master), b. A man could have possession without physical control (where a person goes outside his house everyday for work though not in physical control would still have possession); c. or he could have both. Possession therefore, became a technicality of law. The separation of possession from physical control gave it flexibility, which the administrators of the law have not been slow to utilize in fulfilling the demands of policy and convenience. It would be thought absurd in English law if an owner had no right to retake the purse seized from him or to eject a trespasser who entered his house during his absence. Sometimes the
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Prof. S.N. Dhyani, Jurisprudence- a study of Indian legal system, p. 300 Dias, Jurisprudence Aspects of Justice P. 273

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solution is sought in the doctrine that possession seized by violence is not true possession, as was evident in Roman law, but this produces internal conflicts with what is usually taken to be the central notion of possession, however convenient it may be in allowing the owner to act effectively. The problem when self help should be allowable is always a difficult one1. An understanding of the way in which lawyers employ the term possession has been obscured by too much theorizing and, worse still, by the distortion of actual decision so as to fit them into preconceived ideas2. Salmond has pointed out two reasons for which the concept of possession is considered as one of the difficult legal concepts which is only less than Contract3. First, possession is an abstract notion and involves the same sort of difficulties which we find with other abstract terms such as law and rule. Secondly, possession is not a pure Legal concept. One important reason for the complexity surrounding possession is that there is an inevitable and continuing conflict between logic of the law and the demand of convenience in particular cases.

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Dr. Gokulesh Sharma, Intro. to Jurisprudence, p. 711 Suggested by Professor G L Williams and by Dr. J W C Turner 3 Salmond, Jurisprudence, p. 266

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Definition: Possession
It is said that in legal terminology there is no word more ambiguous in its meaning than possession whether considered in relation to immovable or movable property. It is not only an abstract and highly imaginative concept but it is also most difficult and controversial concept. It nature, scope, extent, and limits vary from time to time and system to system. It is a variable term having different meaning depending upon the circumstances in which this is used. In law possession means a fact or condition of a person having such control of property that he may legally enjoy it to the exclusion of other except against the true owner or prior possessor. An old proverb says, it is nine point of law, which implies that he who has conscious control of an object need only surrender his control in one who can establish superior claim in law1. That is, possession constitutes ninety percent of ownership2. To a layman possession implies a relation to an object which involves exclusion of other person from enjoyment of it. Oxford English Dictionary says, the visible possibility of exercising over a thing such contact as attaches to lawful ownership. The detention or enjoyment of a thing by a person himself or by another in his name, the relation of a person to a thing over which he may at his pleasure exercise such control as the character of the thing permits to the exclusion of other persons. Bentham says, possession is to recall the image which presents itself to the mind when it is necessary between two parties which is in possession of a thing and which is not. Maine says, physical detention with the intention to hold the thing detained as ones own. Savigny says, intentioned coupled with physical power to exclude others from the use of material object. Salmond says, possession of material thing is essential to life, it is the most basic relationship between man and things.

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Class Notes Gleanwill Wiliams, Learning the Law

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Possession in Roman law


Roman law recognized two degree of possession: 1. Possessio naturalis, and 2. Possession civilis. Roman law was mainly concerned with developing a theory to distinguish between detention and possession from each other. It was this possession civilis which gave rise to the special protection conferred by the possessor interdicts1. These interdicts went on the general principle that one who was in possession was not to be disturbed therein, whether he had legal title or not except by a legal proceeding. Unless ones possession was tainted by certain forms of wrong-doing, the possessor had the protection of these interdicts2. In Roman law possession was also important in connection with acquisition of ownership by possession if possession is acquired for a certain time and barring of claims by lapse of time. As broad generalization, facts needed to acquire possession was physical control corpus possessionis, and will to exercise such control, animus, which was based on Pauls text. Savigny thought that since the detentor and possessor have the same physical relation to res, the difference between must be found in the mental element. The intent, which distinguishes a possessor, is the animus domini, which meant, the desire to hold for oneself. This theory explains why the tenant, the borrower, and the agent did not have possession in Roman law, for they did not hold in their own right. On the other hand this theory faced difficulties because Roman law sometimes gave a non-owner possessory rights. These examples he explained as anomalies. Jhering can explain those cases which Savigny found difficult, but it itself cannot account for those where the law refuses possessory rights to those who are in effective physical control3. Fewer facts were needed to continue possession then to acquire it, but they varied from case to case. In some cases possession continued despite loss of animus, whether temporarily or
These were formulas framed and used by the procter, by which he ordered something to be done, chiefly in disputes about possession. 2 rd Dias, Jurisprudence(3 Edition) p. 334 3 Dr. Gokulesh Sharma, Intro. to Jurisprudence, p. 715
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permanently, and the rule was expressly grounded on convenience. In some cases a person did not lose possession by loosing corpus alone, and this rule is also expressly based on convenience (e.g., a runaway slave, is under continued possession). It was said both corpus and possession has to be lost before possession is lost, but at other times that possession was retained even though both were lost. The element common to all these application seems to be that it was a device of convenience, utilized chiefly to effectuate the policy of the law in different branches. It is thus obvious these cannot reflect any single principle. Most of the decision were given in actual situations and were designed to meet the practical requirements of a particular case.

Possession in English law


Possession was termed Seisin in early English law and was used to describe possession of both chattels and real property. A modified version of Savignys theory has exercised considerable influence on English writers. The term possession didnt confine to physical control. As Roskikill LJ has said; having something in ones possession does not mean of necessity that one must actually have it on ones person1. This is to some extent reflected in the phrases sometimes encountered, such as possession in fact and possession in law. Salmond2 has distinguished between them. According to him, possession in fact is an actual relation between a person and a thing. Law does not define the mode in which it may commence or cease. A servant is not deemed to be in possession of the masters good while things are in his masters control or a buyer in whom the title to goods is vested but he has, for the time being, only a letter with him addressing to the warehouse people to deliver the goods to him. So long he does not get the thing he has possession in law, not in fact. Possession in law has a legal relation. It implies a manifest intention to exclude the world at large from interfering with the thing in question and to do so on ones own account and in ones own name. Law defines the modes in which it commences and ceases. The master has possession in law because the intention to possess is attached to the master. Possession in fact and possession in law are co- terminus but are not necessarily available at the same time.

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R. v Prudy (1975) QB 288 Salmond on Jurisprudence ch.6

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Larceny Cases Larceny requires (a) a taking- without a claim of right made in good faith, (b) and the carrying away of something capable of being stolen, (c) without the consent of the owner, (d) and with the intent, at the time of such taking, permanently to deprive the owner thereof. Reg v. Riley1: In this case the accused drove off amongst his own lambs, but without knowing it, the lamb belonging to the prosecutor. After he had discovered the error he even sold the lamb as his own. He was convicted of larceny. R. v. Moore: the prisoner had picked up and converted to his use a bank note which had been dropped on the floor of his shop. He converted it in spite of the fact that he knew the owner of it could be found. It was held that he was rightly convicted of larceny- that is he had not obtained possession of the note while it was lying on the floor of his shop before he had discovered it, and further that the owners possession was in some way extended, at least fictionally, after he had lost the note in the accuseds shop. Merry v. Green2: An action for assault and false imprisonment- the defense was that the assault and imprisonment was justified because the plaintiff had committed larceny. The relevant facts were that the plaintiff had purchased a bureau at an auction and subsequently discovered a purse in a secret drawer. The purse contained money and other valuable things. The plaintiff appropriated that property to his own use. At first instance the plaintiff obtained judgment in his favor. On appeal the matter was sent back for a new trial because it was not clear from the evidence just what the terms of sale the bureau had been. In his judgment Baron Parke laid it down that if the auctioneer had sold the bureau with express notice that the purchaser was not gaining title to the contents of it, if there happened to be any, then the plaintiffs appropriation of the purse and other valuable could constitute larceny- is to say that the mere delivery of the bureau did not necessarily carry with it delivery of possession of its contents, at best if it was made clear that the contents were not being sold with bureau.

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[1853] Dears CC 149 [1841] 7 and W. 623

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Cartwright v. Green1:

a bureau was delivered to a carpenter for repairs. The carpenter

discovered money in a secret drawer which he appropriated to his own use. It was held that he committed larceny by feloniously taking the money into his possession. In this case of course the carpenter was merely a bailee of the bureau but none the less by ordinary rules would be held to have possession of it. It follows from the decision that he did not obtain possession of the money when he obtained possession of the bureau, but only at the time he discovered it and formed the intention to convert it to his use. R. v. Rowe2: this accused had taken piece of iron which he found on the bed of a canal when the canal was drained of water. The iron had fallen overboard from barges. The accused was convicted of larceny of the iron from the company which owned the canal- that is to say the company had possession of the iron merely because it was resting upon the companys land. R. v. Hudson3: by mistake the department of government posted the accused a letter in which was a cheque intended for someone else. The accused appropriated the cheque to his own use and it was held that he was guilty of larceny. Although the accused had received possession of the cheque innocently, the view taken was that he could not have been said to have acquired possession of the cheque until he was aware of its existence and at the time he became aware of its existence he took it animus furandi. R. v. Harding: the court of criminal appeal upheld a conviction for larceny of mackintosh from servant of the person who would, for other purposes, have certainly been held to not only the owner but the possessor of the mackintosh. Rose v. Mart: the respondent, when purchasing some goods, deposited a clock which he owned, with the vendor, as security for the price of the goods he was purchasing. It was agreed between them that the vendor would be entitled to sell the clock if the respondent did not pay the goods within one month. The respondent later returned to the vendors shop and took the clock without paying the price of the goods. On appeal it was held that the respondent should have been convicted of larceny.

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[1802] 8 Ves. 405 [1859] Bell CC 93 3 [1943] KB 458

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The Finding Cases In all these cases the issues are civil not criminal, and are between two or more persons claiming to be entitled to the benefits of possessory enjoyment of a chattel- the assumption being that, if there is a true-owner he cannot be found. Bridges v. Hawakesworth1: the plaintiff found a parcel of notes on the floor of the defendents shop. It was held that the plaintiff had acquired a good title to them, as against the defendant, as he was the first to acquire possession of the notes. The defendant had not previously acquired possession because he had not known of the notes existence until after they were found by the plaintiff. Elwes v. Brigg Gas Co.2: the plaintiff, a tenant for life in possession had leased an area of land to the defendant company for the purpose of erecting gas works. In the lease all mines and minerals were reserved for the lessor. The lessor retained certain supervisory rights over the gas holder and other structures to be built by the defendant company. In the course of the defendant companys excavation of the land a pre-historic boat was found some six feet below the surface. It was held that the plaintiff was entitled to the boat as against the company. The judgment does not make it clear which of several possible grounds for the decision is the one to be relied on. It does, however assert clearly enough that the plaintiff was in possession of the boat for one reason or another before it was found by the defendant company and that it made no difference in these circumstances, that the plaintiff was not aware of the existence of the boat. South Staffordshire Water Company v. Sharman3: Sharman was employed by the plaintiff to clean out a pool on land owned and occupied by the plaintiffs. He found certain gold rings in the mud at the bottom of the pool. It was held that the plaintiff company was in first possession of the rings. And that sharman therefore had acquired no possessory title as against the plaintiff. Grafstein v. Hlme and Freeman4: An employee of a store-keeper found a locked box in the basement rubbish of the store premises. He brought the box to his employer who told him to put
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[1851] 15 Jur 1079 [1886] 33 ChD 562 3 [1896] 2 QB 44 4 [1958 ] 12DLR 727

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it aside on a shelf. Some two years later the employee opened the box and found that it contained some 38,000 dollars in bank notes. It was held that the employer was entitled to the money, as against the employee who had found it, on the basis that the employer had, when the finding of the box had been communicated to him, taken lawful possession not only of the box but its content as well. His possession of the money therefore was prior to any claim to possession that the finder may have made arising out of his discovery of the contents after opening the box. It is significant that the court came up with this decision without relying on any arguments which turned up the master servant relationship. Armory v. Delamirie1: the plaintiff, a chimney-sweeps boy, found a jewel and took it to a goldsmith to find out what it was. The goldsmith refused to return it to him. It was held that as against the goldsmith the plaintiff was entitled to the jewel. Here the plaintiff is acknowledged as prior possessor, which has better title than the goldsmith. All the above cases attribute possession to the owner of land merely on the presumed nonexistence of anyone with a better claim. Just as title may be attribute on the basis of possession, so may possession be attributed on the basis of title. In re Cohen2: Cohen and his wife had lived in a flat which was owned by the wife. After they both had died, a large sum of money was discovered hidden in various part of the flat. There was no evidence as to the origin of money, or as to the when and by whom, or for what purpose the money had been secreted. It was held that the lawful possession of money must be attributed to the wife as the owner and one of the occupiers of the premises on which it was found, and that as between the estate of the husband and the estate of the wife it must be treated, therefore, as having been the property not of the husband but of the wife.

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[1722] 1 Stra 505 [1953] Ch 88

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Landlord and Tenant Cases It has been customary that the tenant should have the right to exclusive possession. A tenancy relationship between landlord and tenant may be brought to an end in a number of ways other than by mere expiration of term. If the tenant surrenders possession to the landlord and that surrender is accepted, then the tenancy is at an end. What would be held to be an actual change of possession from tenant to landlord were the subject of litigation on a number of occasions, and, inter alia it was held that if the tenant returns the keys of premises concerned and if the landlord accepts them with the intention of accepting and taking possession, then possession was effectively transferred. It was held that the landlords consent to the delivery of keys was essential enable such a method of transferring possession to be treated as effective in law. The central notion being in these cases was that the landlord had to be shown to be accepting and taking physical control over the premises once more to the exclusion of tenant1. Thomas v. Metropolitan Housing Corporation Ltd2: it was held that the landlord had regained actual possession when the tenant had dropped the key of the leased premises into the letter box at the office of the landlords agent- even though the office was closed for the week. The case of Wrightson v. Mc Arthur and Hutchisons Ltd3, provides an interesting comparison. In which certain goods being set aside by the defendant as security for debts, were locked in a room in premises owned by and in the possession of the defendants and the key to that room was given to the plaintiff. It was held that on delivery of the key, possession of the goods passed to the plaintiff and was subsequently retained by him although the goods remained upon the premises possessed by the defendants. In Boynton-Wood v. Trueman4, it was held that the handing over of the key to carry our repairs work was not surrender of possession.

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Dr. Gokulesh Sharma, Intro. to Jurisprudence, p.724 [1936] 1 All ER 210 3 [1991] 4 [1961]177 Estates Gazette

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To protect tenants possession more strictly than that of landlord; they even adopted a corpus and animus view of it. What construed animus and corpus depended on whether the court thought that the tenant was trying to take unfair advantage or not.

Miscellaneous Cases
Moor v. Burke: Burke, who was employed on the wharves he had the right to use a cloth locker, was found to have goods suspected of being stolen in his locker. He was held not to be in actual possession of the goods because he shared the locker with another and so could not be said to have exclusive control of the goods concerned while they were in the locker. Collection of Customs (NSW) v. Southern Cities Company Ltd: A Consignment of tobacco was delivered to the defendant company for shipmen out of the state of New South Whales. The defendant put the tobacco in a store, on the warf from which shipment would be made, owned by the Maritime Service Board. The store was locked and the keys lodged in the customs office which was itself locked overnight- so that the keys to the store were not available to the defendant except in an emergency. During the night the store was broke open and the tobacco was stolen. Sec. 60(1) of the excise Act, 1901-52(Cwealth) casts certain liability upon the person who have the possession, custody, or control of excisable goods It was held (inter alia) that defendant did not possession of the tobacco when it was locked in the store and the keys locked in the custom office.

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Propositions extracted from above Cases about Possession


1. Possession of the chattel is not required when mere physical control is taken such acquisition waits upon knowledge by the taker of the nature of the thing acquired. 2. The owner and the possessor of land may be in possession of a chattel his land in spite of the fact that he is not now the nature of the thing or even that exists. 3. The owner and possessor of shop is not in possession of chattel on the floor of his shop until he knows of their presence there. 4. The owner of the house, who may well have been in possession of the house for the purpose of taking action against a trespasser, may not be in possession of a chattel found on the premise if he was never physically occupied the house. 5. The owner and possessor of land may not be in possession of chattels on his land even though he owns those chattels another person not on the land, may be in possession of them. 6. The finder of a lost chattel obtains possession of it, and hence title to it as against those who have no claim to it, prior to it. 7. A finder of chattel who finds in the course of his employment does not obtain possession of it his master does. 8. As between two or more persons who are in apparent physical control and enjoyment of the use of the chattels, the owner of the chattel is in possession of them. 9. And between two or more persons apparently in the physical control and enjoyment of the use of land (which is owned by one of them) and of chattels upon that land, where ownership of chattel is in doubt, the owner of the land is in possession of the chattels and hence is presumptively the owner of them. 10. To acquire the possession of a thing it is necessary to exercise and to evince an intention to exclude others.

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11. But possession may be acquired of a thing, by transfer through another, without any change in the physical control of the thing concerned.

Conclusion: In the light of all above cases the conclusion must be that in English law, as in the
Roman law, possession is no more than a device of convenience and policy. This has been appreciated by few writers and most clearly by Shartel, who said, I want to make a point that there are many meaning of the word possession; that possession can only be defined with reference to the purpose in hand; and that possession may have one meaning in one connection and on other meaning in another1. Moreover after the old law of larceny in England was replaced by the Theft Act, 1968, it has relegated them in historical shelf.

The reasons for the protection of possession by law2


1. It aids the criminal law by preserving the peace. Savigny gave this reason and said that possession is protected not because it is so intimately connected with ownership but in the interest of public order and safety. Order is best secured by protecting a possessor and leaving the true owner if there is one to seek remedy in court of law. 2. Possession is manifestation of will hence should be protected by law according to Hegal. As kant said that a man by taking possession of a thing has brought it within the sphere of his will. 3. Ihering is of the view that protection of possession is necessary as the protection of the right to property. He said that roman interdicts were formulated just for this very purpose. The Law does not always know that the person in possession is unlawful. And in the early stages of the development of law of property when proof of this title was difficult, it was felt to be unjust to cast on a person whose possession was disturbed the burden of a flawless title3. 4. Possession is protected as part of the law of Tort. Against the violations of legal private right e.g., trespass, etc.
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Shartel Meaning of Possession (1932) Minnesota Law Review 611 Dr. Gokulesh Sharma, Intro. to Jurisprudence, p. 3 Windschids view on purpose of protection of possession.

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

Physical control of the thing lies at the bottom of possession. Possession must consist in the undoubted control over a thing to the exclusion of others. Possession must be direct, physical and actual and not merely symbolic or fictitious. However direct contact need not be necessary with the thing although it is true that most of the things that we possess are in direct contact with us. For example a man walking along the road with a bundle sits down to rest and place his bundle on the ground at a short distance from him. No one thinks of doubting that the bundle remains in his exclusive possession not symbolically but really and actually. Physical contact, therefore, is not necessary for possession. It is rather the possibility of dealing with a thing as we like and of excluding others. According to Holland and keeton the question whether corpus (physical relation) exists or not depends among other things upon the nature of the thing itself and the probability that others will not interfere with the enjoyment of it. Thus corpus may be secured by: a. Continued physical control of the thing;
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b. Presence near the thing; c. Exclusive knowledge of the situation of the thing, d. Continuous possession of the thing unless it is disturbed by some physical force or violence. A man who leaves home and goes to neighboring town for his business still retains possession of his land or house. So is the case with movable and domestic animals which live in domestic state. As regard wild animal which are in the wild state are only in our possession as long as they are in our captivity. A wild animal that has been wounded by us mortally is not in our possession until we have laid hold of it. Possession therefore, lasts so long as there is any physical control over things and ceases when that control ceases. The second element of corpus is that the possessor must have the ability to exclude others. There is no hard and fast rule regarding the amount of power to exclude others. Therefore, physical control does not mean physical power to exclude others. Even the weakest person may have the corpus element (physical control). It depends more upon the general expectation that the possessor must have the ability to exclude others. There is no hard and fast rule regarding the amount of power to exclude others. There is a case on this point. In R v. Chissiers1, a person came to a shop and asked for a particular a particular kind of cloth (linen). The shopkeeper handed over some piece of cloth to him but before any sale was completed, he ran away with it. This was held to be larceny as there was no change of possession until he ran away. It is clear from this case that the corpus of possession is not necessary synonymous with the physical power to exclude others. Concept of Corpus in International Law: The problem of corpus is also equally important in International Law. The question here arises is whether mere discovery or planting of a flag of a state by its nationals gives exclusive control over the things which so far belonged to none. Several states have discovered in Modern times have explored Antarctica, Moon and other satellites and
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[1678] L. R. 275

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

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

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Classical theories of Possession

Savignys theory: Savigny was the first to give a theory on possession. He based his work on the text of Paul. He said possession consists of two ingredients, first is corpus possessionis (effective control) and other being animus domini (the intention to hold as owner). He believed since possession involved both of these, the permanent loss of one or the other brought possession to an end. Savigny further observed that the essence of possession is to be found in the physical power of exclusion. He says that the corpus possesionis maybe of two kinds, one relates to the commencement of possession and the other relates to the retention of possession. The corpus required at the commencement of possession is the present or actual physical power of using the thing by oneself and excluding others from the use of it., whereas the corpus required for the retention of possession once acquired may consists merely in the ability to reproduce that power at will. Thus, according to Savigny, for getting the possession of a horse, I must take him by the bridal or ride upon him or have him in my immediate presence, so that I can prevent all other persons from interfering with me. And since detentor and possessor have same physical relation to the res, the difference between them must be found in the mental element, animus domini. He says possession exists when a. the holder believes himself to be the owner of the object, or b. having merely found it, means to keep it subject to the possibility of the owner making his presence, or c. Having stolen it he means to keep it against all comers. Thus, he emphasizes intention as well as physical control to complete possession. Salmond and Pollock also agree with Savigny on this point. Criticism of Savignys Theory: 1. He used the expression physical power to exclude others without adding any qualifications to it. He did not mention the fact that the exclusion is subject to one exception, i.e., the possessor cannot exclude a person who has better title over the use of that particular material object.
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2. Salmond has rightly criticized Savignys definition and observes that even at the commencement a possessor need not have physical power of excluding other persons. It is the absence of an improbability of foreign interference that constitute the physical element and not the existence of any power of exclusion. He further adds that a little child and a man in death bed may have no physical power as against a strong man and yet possess the money in their hands. He thus says that savigny committed an error by including the element of physical power in the definition of possession. 3. Dias has also criticized Savignys definition and raised the following objections: a. That it was erroneous to assume that corpus and animus, which were only conditions sometimes for required for acquisition and loss of possession, constitutes possession itself. Even Pauls text on which he relied so much also says we acquire possession by means of corpus and animus not that possession is both these things. b. Savignys idea of animus domini, the intention to hold as owner fails to explain the cases of the pledgee, leasee, who had possession but did not intent to hold as owners. c. The application of Savignys rigid theory of the continuation and loss of possession reveals its weakness. Possession did sometimes continue despite loss of animus or corpus or even both. On his theory it should follow that possession was lost if even one or the other element was lost. Iherings Theory: He approached possession as a sociological jurist. He posed the question why Roman law protected possession by means of interdicts. It was devised to benefit the owners by protecting their holding of property and so placing them in the advantageous position of defendants in any action as to Title. He said, whenever a person looks like an owner in relation to a thing he has possession, unless possession is denied to him by rules of law based on practical convenience. He did not emphasize on animus like Savigny. What is necessary according to him is the awareness of the thing which can give possession to the person. His approach was said to be more practical than Savigny. He gave a functional definition of possession. However gives no clear idea of possession. But was important in a sense that it brings out the notion of policy and convenience implying that the concept may have a changing meaning for different purposes and in different frames of law.

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

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or animus, or even both, disappear. This it is submitted, is true, but destroys the foundation of Salmonds contention that possession is corpus and animus. Possession in Law exists when a person claims a thing as his own in a natural normal manner by occupying a thing without any dispute as to his legal right to possess. Legal right may exist with or without possession. Law can provide protection in two different ways. Firstly, the possessor can be given certain legal rights, such as a right to continue in possession free from interference by others. This primary right in rem can then be supported by various sanctioning rights in personam against those who violate the possessors primary right; he can be given a right ot recover compensation and a right to have his possession restored to him. And obviously there will be a need for legal criteria to determine whether a person is in possession of an object. Indeed the protection would be of little point if legal protection ceased the moment possession was lost. In common law possession is a relative matter. If A momentarily hands his wallet to B, from whom it is stolen by C, who then loses it on Ds property, where it is then found by E, the question who has the right to possess- will depend on who brings action against whom. Against all subsequent parties Es title would prevail (except against the true owner, who is not claiming in this case), for finding confers a good Title. In an action between D and E, however, it would seem that D would have a better right if he could show that the article was found on property from which he had a general intention to exclude others. In Bridges V. Hawkeworth1 decided that notes found on the floor of a shop passes into the possession of the finder rather than the shopkeeper. In Hannah V. Peel2, a soldier, who found a brooch in a requisitioned house, was held entitled to the brooch as against the owner. Here, however, the owner had never been in possession of the house. In London corp. V. Appleyard and another3, money found on land was held to be in the possession of the occupier and not of the finder. The concept of legal possession parts company from ordinary notion of possession. Hence we may find that one who is not actually a possessor is nevertheless considered as such in the eyes of the law; and vice-versa.

1 2

[1851] 15 Jur 1079 [1945] KB 509 3 [1963] 2 All ER 834

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Of all the divergences between legal and actual possession what is most notable is that outside the law possession is used in an absolute sense whereas within the law it is employed in a relative sense. Outside the law we do not speak of a person having possession as against someone else; we say that he either has or has not got possession. Then unnecessary difficulties would arise in understanding decisions. Like R. v. Harding in which the accused was held guilty of stealing a raincoat from a servant, who as against master had mere custody of the goods. How could the servant in this case have possession of the Raincoat, if the law used possession in an absolute sense, then of course servant could not have had possession of it. As it is she had possession as against the thief but not against the employer. Salmond then distinguished between possession of physical objects which he called corporeal possession and possession of rights (intangible things), which he called incorporeal possession. Corporeal possession: it is claim to the exclusive use of material things like land, buildings and other movable or immovable things. The exercise of this claim consists of two ingredients, Corpus Possessionis and Animus Possidendi. This case of possession consists of firstly, continuous exclusion of alien interference. Secondly, enjoyment of the thing at will without interference by others. Actual use of it is not essential. A man may lock his watch in a safe and dont look at it for 20 years. Here he has exercise continuous claim to it, by continuously excluding any other person from interfering with it. Incorporeal Possession: it is connected with intangible things such as trade mark, goodwill, right to vote, right to passage, etc. In this case things are to be used continuously, as non-use of it may give rise to non-existence of possession for such thing. One can acquire and retain possession of a right of way only through actual and repeated use of it. English law defined it as the continuing exercise of right rather than the continuous exercise of claim. .Fredrick Pollocks Theory: Pollock1 Said, In common speech a man is said to be in

possession of anything of which he has the apparent control or from the use of which he has the apparent power of excluding others. He laid stress not on Animus but de facto control (physical control). For Pollock a general intent seems to suffice.
1

Pollock And White, Possession in the Common law

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Holmes Theory: Holmes1 began promisingly by rejecting a priori philosophical idea. He also perceived that fewer facts are needed to continue possession than to acquire it. It is not dissimilar to that of Savigny and other Roman law jurists. He emphasized that to gain possession a man must stand in a certain relation to the object and to the rest of the world and must have certain intent2.

Conclusion: Law in its early stages is fluid, and later a theory is invented as a means of
rationalizing decisions that have already been reached. It is therefore submitted that all that is needed are rules, which determine what view should be taken of different situations of fact. It should serve as a warning against a priori approach. Misquoting, misinterpretation and allegations of wrong decisions have been the result of trying to force the law as it is into preconceived pattern. Thus, no single theory can explain possession. Analysis reveals the influence of policy and convenience behind these rules (which Ihering was quick to grasp). Corpus and animus are the conditions which the law generally requires for the commencement of possession. Though, it is an answer but by no means the only one. Each case therefore should be looked on its own merit. The question that whether possession is a matter of fact or of law, is not clearly provided either in English or Roman law. According to Dias, Possession has three aspects3: a. The relation between a person and a thing is a fact, b. The advantages attached by law to that relation is a matter of law, c. These advantages when attributed to a person in any given type of case in a matter of law.

Kinds of Possession

1. Mediate and Immediate Possession, 2. Corporeal and Incorporeal Possession,


1 2

Holmes, The Common Law ch. 6 Holmes, The Common Law, p. 216 3 Dias, Jurisprudence p. 290

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3. Possession in Law and Possession in Fact, 4. Adverse and Constructive Possession

Mediate and Immediate possession: In law one person may possess a thing for and on account of someone else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that hitches acquired or retained directly or personally may be distinguished as immediate or direct. It is also known as indirect possession. It has three kinds. The first is that which I acquire through an agent of servant; that is to say, through someone who holds solely on my account and claims no interest of his own. In such a case I undoubtedly acquire or retain possession, as for example when I allow my servant to use my tools in his work, or when a warehouseman who holds them on my account, or when I send my boots to a shoemaker to be repaired. In all such cases, though the immediate possession is in the servant, warehouseman the mediate possession is in me; for the immediate possession is held on my account. The second kind of mediate possession is that in which the direct possession is in one who holds both on my account and on his own, but who recognizes my superior right to obtain from him the direct possession whenever I choose to demand it. That is to say, it is the case of a borrower or tenant at will. I do not loose possession of a thing because I have lent it to someone who acknowledge my title to it and is prepared to return it to me on demand, and who in the meantime holds it and looks after it on my behalf. There is no difference in this respect between entrusting a thing to a servant or agent and entrusting it to a borrower. There is yet a third form of mediate possession. It is the case in which the immediate possession is in the hands of a person who claims it for himself until some time has elapsed or some condition has been fulfilled, but who acknowledges the title of another for whom he holds the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end: as for example when I lend a chattel to another for a fixed time, or deliver it as pledge to be

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returned on the payment of a debt. Even in such a case I retain possession of thing so far as third persons are concerned. Mediate legal possession is to be found in the law of prescription. In Haig v. West it is said by Lindley, L.J.: the vestry by their tenant occupied and enjoyed their lanes as land belonging to the parish. The parish has in our opinion gained a title to those lanes by the statute of limitations. The vestry have by their tenants occupied and enjoyed the lanes for more than a century. In Elmore v. Stone, A brought a horse from B, a livery stable keeper, and at the same time agreed that it should remain at livery with B. It was held that by this agreement the horse had been effectually delivered by B to A, though it had remained continuously in the physical custody of B. That is to say, A has acquired mediate possession from B. In Larceny, where a chattel is stolen from a bailee, the property, i.e., the possession that has been violated, may be laid either in the bailor or in the bailee, at any rate where the bailment is revocable by the bailor at his pleasure either unconditionally or upon a condition that he may satisfy at will. A bailor at will can also bring a civil action of trespass where a chattel is taken from his bailee; but a bailor for a term cannot do so. Thus the third form of mediate possession is not recognized for the purpose of action of trespass. Also, where land is let, whether for a term of years or at will, the landlord cannot bring trespass so long he is out of immediate possession; but after re entry he can recover damages in respect of acts done even while he was out of possession. In Moorgate Merchantile Co. Ltd v. Finch1 , the defendant used the plaintiffs car for transporting uncustomed watches. The car was seized and forfeited by the custom officials under the customs and excise Act, 1952. The car was said to be in the immediate possession of the defendant. In all cases of mediate possession two persons are in possession of the same thing at the same time. If I deposit goods with an agent, he is in possession of them as well as I. He possess for me, and I possess for him. There is an important distinction to be noticed. If I deposit goods with a warehouseman, I retain possession as against all other persons; because as against them I have the benefit of
1

[1962] 1 QB 701

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warehousemans custody. But as between warehouseman and myself, he is in possession not I. So in case of a pledge, the debtor continues to possesso against the world at large; but as between debtor and creditor, possession is in the latter. The debtors possession is mediate and relative; the creditors is immediate and absolute. So also the same with other mediate possession. Corporeal and Incorporeal Possession: Corporeal possession is the continuing exercise of a claim to exclusive use of a material thing. The elements of this possession are just, the mental element of the claimant, the intent to possess, to appropriate to oneself and second, the effective realization of this attitude. The effective realization involves the exclusive control and enjoyment of thing at will without interference by others. Actual use of it is not essential. It includes material things like land, house, building etc. Incorporeal possession is connected with intangible things such as trade mark, goodwill, right to vote, right to passage, etc. In this case things are to be used continuously, as non-use of it may give rise to non-existence of possession for such thing. One can acquire and retain possession of a right of way only through actual and repeated use of it. Incorporeal possession is commonly called the possession of a right, and corporeal possession is distinguished from it as the possession of a thing. Adverse and Constructive possession: Adverse possession by a person holding the land on his own behalf of some other person and setting up his claim as the true owner of the land. It diverse possession is continues, peaceful, undisturbed, and open for more than the year prescribed in different legal system then, in India it is 12 years, the title of the true owner is extinguished and the person in possession becomes the true owner. The essentials of adverse possession are: a. The possession must be adequate in continuity, b. In publicity, and c. Possession must be to the extent to show that it is possession adverse to the competitor, Nec vi nec calur nec precario.

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Both animus and corpus is necessary to constitute adverse possession. Adverse possession, in short, is the actual, open and notorious possession continued for a certain length of time, held adversely and in denial and opposition to the title on the part of the person maintaining it as against another person who is out of possession. Constructive Possession is not actual but assumed to exist, where one claims to hold by virtue of some title, without having the actual possession of the thing. The possession of master, landlord is constructive if things or land is not in their possession but in the custody of the servant or tenant. It may be called as legal possession. Salmond said it covers two cases, one that is discussed above, and another when one person has lost possession and no one else has acquired it yet. Pollock and Wright, confine it to cases where there is a mere right to recover possession. Possession in Fact and Possession in Law: Possession in law is also known as dejure possession. It exists when a person claims a thing as his own in a natural normal manner by occupying a thing without any dispute as to his legal right to possess. Legal right may exist with or without possession. It is just possible that a man may have ceased to live in a house but without intending to abandon it for good as the owner of the house. Possession in Fact is also known as defacto possession. It exists when the thing is in immediate occupancy of a person. The person has physical control of the thing to the exclusion of others. And has animus and corpus over the material object. It is actual possession, which can be held to be prima facie evidence of ownership. Of all the divergences between legal and actual possession what is most notable is that outside the law possession is used in an absolute sense whereas within the law it is employed in a relative sense. Outside the law we do not speak of a person having possession as against someone else; we say that he either has or has not got possession.

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Concept of Possession in Indian Law


Analogous to Roman and British Legal theory and practice on possession, the Indian Law has developed on the same lines insisting the existence of physical control and mental element to constitute possession1. In India the framers of IPC didnt define Possession. There is difference between possession as understood in India and England. Thus English cases on possession are therefore not a safe guide for determining possession under the IPC. Further the distinction in English law between Custody and Possession is not expressly recognized in IPC. In India Section 27, IPC abrogates the distinction between possession and custody. The section provides that when the property is in the possession of wife, clerk or servant on account of that person it is deemed to be in possession of wife, clerk or servant, unlike English Law where it would have been considered custody. What would be custody in English Law would be Possession in Indian Law2. Law Commission in their Report said, We believe it to be impossible to mark with precision by any words, the circumstances which constitute possession. It is easy to put cases about which no doubt whatever exists and about which the language of the lawyers and of the multitude be the same. It will hardly be doubted, for example, that a gentlemans watch lying on a table in his room, is in his possession, though it is not in his hand; and though he may not know whether it is on his writing table or on his dressing table. As little will be doubted that a watch, which a gentleman lost a year ago on a journey and which he never heard of since, is not in his possession. It will not be doubted that when a person gives a dinner, his silver forks while in the hands of his guest are not in his possession; so also when he has deposited them with a pawnbroker as a pledge. But between these extreme cases lie many cases in which it is difficult to pronounce with confidence, either that property is or that it is not in a persons possession3. Possession and Indian Penal Code, 1860: It is well known fact that right to defend property is the right to defend possession of property and not the mere right to possession whereas the civil law is more concerned with the title than

1 2

Maharaja Sashi Kant Acharya Bahadur V. Nayjan Bewa, AIR 1945 Cal 611 Prof. S.N. Dhyani, Jurisprudence- a study of Indian legal system, p. 309 3 PSA Pillai, Criminal law, p. 1004

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possession. The criminal law protects the possession irrespective of the fact that how the possession was acquired and protects the possession even of a thief except against the true owners. In India the IPC in Section 403 and 408 provides to a greater extent for the protection of possession of movable. Section 4031 says whosever dishonestly misappropriates or converts to his own use any movable property, shall be punished.. In one case illustrated, there is that A takes property belonging to Z, out of Zs possession, in good faith, believing, at any time when he takes it, that the property belongs to him. A is not guilty of theft; but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this section. According to Old English Law this case would fall under Larceny as after realizing his mistake he can be said to have acquired the possession of the good that very moment, and if he uses it as his own he can be said to have committed Larceny2. Thus were an act was Criminal misappropriation in Indian penal Code, it was Larceny in England. A concept of possession of movable property can be clearly analyzed from Section 378, IPC, which says, whoever, intending to take dishonestly any movable property out of the possession of the any person without that persons consent, moves that property in order to such taking, is said to commit theft. In case where a lady who wanted a railway ticket, handed the money to a stranger, who was near to the window of the ticket office, that he might procure a ticket for her, and he ran away with the money, this was held to be theft, as she never parted with the dominium over the money and merely used his hand in place of her own. Possession was with the lady until the stranger formed an intention to run away with it. In case of immovable property, criminal law in India attaches little importance to the mere right of possession which is left to the civil courts and protects possession only for preventing breach of peace and intimidation to person in possession.

1 2

IPC, 1860 R. V. Riley [1885] 16 QBD 190

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The provisions of IPC relating to possession of property fall into two cases. A. Those which are intended to prevent disturbance of possession. Examples are: Theft (S. 378, S. 381), Robbery (S. 390), Dacoity (S. 391), and offence involving trespass on immovable property (S. 382, S. 383). B. Then there are those special cases in which it is not the object of the law to protect possession but punishment is provided for being merely in possession of certain things. For Example: Cases of possession of instruments for counterfeiting of coins ( S. 235), Govt. Stamps (S. 256), Trade Marks (S. 409D), possession of counterfeit coins (S. 242, S.243, S.252, S.253),of government Stamps (S. 259), of false weight and measures (S. 266), of obscene books (S. 293), Counterfeiting Seals (S. 473), False Currency notes (S. 489), etc The doctrine that possession follows title is a well recognized rule in India. section 110, Indian Evidence Act, 1872; section 3 Explanation 2, Transfer of property Act, 1882; Section 27 Specific Relief Act, 1877 and section 27 Indian Sales of Goods Act, 1930 incorporate the principle that possession follows title. Possession in Indian Evidence Act, 1872: Section 110 of the Indian Evidence Act provides that when when the question arises whether anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. In other words where plaintiff is in long possession of land which leads to presumption of title the burden would shift on other side to displace the presumption that possession is prima facie wrongful. However, once the initial title of another person is established, Section 110 no longer applies and the possessor must prove that Title has somehow or other been terminated. A person therefore in possession of land without Title has an interest in the property against all the world except the true owner, an interest which unless and until the true owner interferes is capable of being disposed of by deed, will or sale, just in the same way it could be dealt with if title were unimpeachable. It is possession in fact which law protects against all others.

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Possession in Transfer of Property Act, 1882: Explanation 2 of Section 3 of the TPA imposes a duty on the part of an intending purchaser to conduct an inquiry into the nature of actual possession where the possession of the property is with a person other than the vendor at the time of purchase. Where he fails to do so law would impute him constructive notice of nature of actual possession which may be against him. Actual possession only operates as a constructive notice. Constructive possession is not notice. Vague rumors from strangers of suspicious circumstances do not amount to such notice. This principle is also further embodied in Section 27 of the specific Relief Act, 1877. According to it where a tenant is in possession under a lease or an arrangement, a person purchasing it must be bound to inquire on what terms that tenant is in possession. Thus, where property is in actual possession of a mortgagee it behaves the prospective purchaser to ascertain what rights the person in actual possession has in respect of the property. Indian Sale of Goods Act, 1930: There is a rule in English law nemo dat qui non-habit, i.e., no man can pass a better title than he possesses, which can be termed as an exception to the rule that physical possession is the root of title. The Indian law follows the English law with some reservations. Actual possession has greater possibility conferring rights of ownership both in India and English Law, but in all such cases the possession must be effective, undisturbed, open, and continuous. A mere symbolic possession does not confer such rights. The buyer acquires no better title to the goods than the transferor had and therefore he may be compelled to surrender the goods to the true owner. Except however, in certain circumstances a person in possession of goods can give title to an innocent purchaser, although possessor had no better right than a thief would have had. Possession and the Arms Act: Section 3 provides that no person shall acquire arms in his possession and control without license. The word possession in Section 19(f) of the Arms Act means exclusive possession and the word control means effective control.

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In Narendra Nath v. State1, Mr. Justice P.B. Mukharji observed that the concept of possession under the Penal Code is not necessary the same as the concept of possession under the Arms Act. The offence under the Arms Act must connote an element of consciousness in the person charged with such offence. Possession as a test or an element of crime must be of such character as can relate to the fundamental principle of mens rea in criminal jurisprudence. The animus must be there and mens rea must be there. Unless these notions are specially excluded by any statute under consideration they are basic test which must be satisfied before a person can be said to have committed a crime whose basis is possession. It is this element of consciousness or intention or knowledge which must be established and must be present as fact before possession under the Arms act can be said to constitute an offence. It does not matter whether possession is actual or constructive, physical or mediate or immediate, direct or indirect, joint or concurrent or exclusive. Nor mere physical relation of a person to a thing can have any significance in criminal jurisprudence unless it is the outward form in which the needful animus or interest have fulfilled and realized itself. Corpus without the animus is ineffective.. Possession of Master and Servant: Possession of master and servant is always construed as possession of master. A servant using a gun belonging to his master would no doubt have the weapon under his control so long as the use continued but weapon would remain in the masters possession. Possession of Husband and wife: Sec 27 of the IPC provides that when property is in the possession of a persons wife, clerk, or servant on account of that person, it is that persons possession. But this inference is rebuttable. The fiction of law that wife and husband is one and the same person, however romantic, cannot be extended to say that wifes crimes are the husbands crime and vice-versa. No man can be said to possess a thing without his knowledge. In other words to make possession culpable the accused must have mens rea. In modern times it is not uncommon for both wives and husbands to have separate boxes where things are locked up without the knowledge of other spouse. So the inference that possession of the wife is possession of husband is dangerous and may lead to unfortunate result.
1

AIR 1951 Cal. 140

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Possession in ancient Indian and other laws.


Ancient Indian Laws: the law of possession under ancient Indian Law was nothing but a legal contrivance based on consideration of dharma. The use and enjoyment of property in accordance with Indian tradition was restricted and controlled by the Holy Scriptures1. In old Hindu Law possession was of two kind; a. with Title or b. without Title where possession continued for three generations. Nevertheless Hindu Law gave enough importance to Title to prove possession. Katyayana says- There can be no branches without root, and possession is the branch2. Possession without title never created ownership. Possession was proof of ownership if it fulfilled five conditions: 1. It was supported by Title, 2. It was continued for a long time and there was no break in it, 3. There was no protest ever raised against it 4. And it was in the presence of the opposite party So a person in possession of a property without a Title was regarded3, as a thief masquadering under the cloak of possession Possession in Old Mohammedan Law: Possession is also an important concept in Mohammedan law. Here the man in possession of a property although by wrongful means has obvious advantages over the possessor4. The possessor is entitled to protection against the whole world except the true owner. There are cases where the existence of a substantive right depends upon possession of specific property by the claimant. These cases are: a. The completion and validity of a gift transaction depending upon delivery of possession by the doner to the donee5 (though TPA, 1882 does not regard delivery of possession by the doner to the donee as an essential ingredient of a gift transaction).

1 2

Smritichandrika, 602. Katyayana in Parasharamadhava- Vyasa 102. 3 Narada in Mayaukha, 30 4 Abdur Rahim, The Principles of Mohammedan Jurisprudence (1911), pp. 276-277 5 Section 129 of the Transfer of Property Act, 1882 provides exception to Mohammedan Law gifts.

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b. A Muslim widows right to retain the property of her husband, the possession of which she had obtained during the lifetime of her husband lawfully and without force or fraud1, in lieu of Dower. c. A Wakf (the settler) in addition to a declaration of the Wakf, appoints a superintendent of the Wakf property and delivers to him the possession of the wakf property.

Cases on Possession in India


Under Indian Penal Code: English decisions have perhaps little significance for courts because of clear legislative policy and statutory measures adopted in India. In India there are different statutes which have made legislative policy clear on matters concerning possession and ownership. In Nandlal v. Bank of Bombay2, where a person obtains the goods of another innocently and disposes them fraudulently for the benefit of himself or a third person was held guilty of conversion. In Dwarkadas v. N. Nandu3, the accused kept a buffalo tied up to the verandah of his house which was open to the gaze of the public going about in the street, and the buffalo itself apparently had strayed into his house and he himself had a month previously lost a buffalo, and wherein the accused claimed it as his own as against the complainants assertion. It was held that in these circumstances the dishonest intention cannot be imputed to the accused. Similarly, where the accused4 took possession of a wandering cow of which no owner could be discovered was not guilty of an offence under Section 403, IPC. The court rightly observed that the a person finding property of which, from the nature of it, there must be an owner, must take reasonable care of it, and endeavor to find the owner. But he is not bound to adopt extra-ordinary means for

1 2

Mullah, Principles of Mohammedan Law, p. 255-257 (14 Ed. 1955) 18 Bom. LR 386 3 [1923] Mad 364 4 Sarajul Haq v. Emperor, [1922] 23 Cr. Lj 408

th

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the discovery, nor is he bound to be out of pocket in discovering the owner by means of advertisement. In Queen Empress v. Sita1, the accused found a gold Mohur on an open place in a village and sold it the next day for its full value without making an attempt to discover the owner of the gold Mohur. The accused was charged of dishonest misappropriation and conversion of movable property. The court held that it was possible that the gold Mohur had been abandoned by the original owner and so the accused did not commit any offence under Section 403, IPC. Possession of the head of the Family: There is controversy among the different High Courts whether possession of a thing found is possession of the head of the family. As in English law things found in the place owned by someone, the thing would be considered to be in possession of the owner of the land. Madras, Calcutta and Nagpur High Court are of the view that in case of an illicit article is recovered form a place of occupation of the members of joint Hindu family to which people in general have no access, there is also a presumption that the head of the family is in the possession of the article in question. On the other hand the Allahabad and Patna High courts have held that the mere fact that the accused is the head of the joint family is not sufficient to hold that he is in possession of the articles recovered from the house. It would depend on the circumstances whether his possession over the article can be proved or not. In Ram Charan v. Emperor, two silver ornaments were found in a corn bin containing dried mehwa flowers in the house occupied by Ram Charan, his three grown-up sons and his wife. Niamatulla, J., observed: it seems to me that police and the magistrate proceeded on the assumption that property found in the house occupied by several male and female members residing therein should be considered to be in possession of the head of the family. This is wholly unwarranted assumption and can have no place in cases in which possession and criminal interest form the essential element of an offence possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and can exercise it. It cannot be said to be in possession of a thing unless it is shown by evidence that he had dominion over it and knew that he had it. The mere fact the thing is found in a house
1

[1893] 118 Bom. LR 28

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occupied by a person in common with others or at a place in the house which is as much accessible to others as to him is no prove that he was in possession of it. It is submitted that in view of the fact that possession required under the act is to be actual and conscious, the head of the family cannot be held, simply because he is the head of the family, liable for articles found in a place occupied by members of joint Hindu family. Possession and Treasure Trove Act, 1878: It applies to things which are hidden in the soil or affixed thereto. If the things are not hidden in the soil but are found on the soil this act has no application. If the finder discovers some treasure he shall give notice to the collector of the district and either deposit the treasure in the government treasury or give security for producing it when required. The notice shall be given by the collector to the owner of the land where treasure is found. The discovery of the treasure shall be advertised and all claimants to forward their claims within six months. If there is a reason to believe that the treasure was hidden or deposited more than 100 years previously no claim of any outside person is to be admitted except the finder. In case of treasure found in a public place such as digging canal etc such treasure shall vest if more than one hundred year old, in the proportion of three-fourth in the finder and one-fourth in the government. As regard the interpretation of the word treasure it must be hidden unknown and discovered later on by the finder. It denotes previous ignorance as to the existence of the thing at or near the place where it comes to light on the part of the finder. The term finder must be understood as discovery by chance and that connotes ignorance on the part of the finder before the discovery. For example; a women knowing that a box containing ornaments belonging to her had been hidden by her husband in some wall, engaged labors to dig the wall with expectation that the box would come out of the wall. The box came out. She claimed it as her own. It was held that the woman was not a finder for the reason as she knew of the concealment of the ornaments. In Trimbak v. State of M.P1, as regard possession of article recovered from open space the general policy of the courts in India is that if an article is recovered from a place belonging to the accused but which is accessible to the public, the accused cannot be said to be in possession of the article.
1

AIR 1954 SC 39

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Under the English law the possession of land carries with it the possession of everything which is attached to or under that land and in absence of a better title the right to possess it also, except in case of articles found in public place. This is also the law in India. In England where the article is hidden, the fact of its being so hidden is taken to show that the owner did not intend to abandon it, and when it is subsequently found, and the owner is not forthcoming, the law gives it as bonum vacuum to the Crown and this is the law in India. Indian Arms Act: Under arms act it is obligatory to hold a license for the manufacture, sale and for possession of arms, ammunition etc. it forbids unlicensed possession of these. However, mere temporary possession of arms; without a license for purpose other than use as such is not illegal1. Similarly, a person who repairs arms is in possession of arms for repairs cannot be convicted of an offence2. The word possession or control means something more than mere constructive or legal possession. Possession and control means under this act, conscious possession and actual control. The holding of gun by one person on behalf of the person entitled to it is not possession within the meaning of the act e.g., servant holding gun for his master. In Chitta v. Chotter Lal3, it was held that in order to constitute possession and control of an incriminating article which will make a person liable must necessarily have knowledge of the existence of such an article in his house or place in his occupation.

Possession and Open Space:


If an article is recovered from a place belonging to the accused but which is accessible to public it has been generally held4 that the accused cannot be said to be in possession of the article.

1 2

Queen Empress v. Tota Ram, 86 All. 76; Murli v. Emperor, AIR 1929 All 720 West Bengal v. Anil Kumar, AIR SC 52 3 AIR 1947 4 Wasakhi v. Emperor, AIR 1914 Lah, Trimbak v. State of M.P., AIR 1954 ; Limbaji v. State of Maha., AIR 2002 SC 491

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Conclusion: The Indian legal system though have developed on the same lines of English and
Roman Law of Possession there is deviation in the view taken by Indian Law makers. They have tried to give a rigid meaning to the term possession in India. And over the period of time Indian Courts have followed possession in fact approach as far as possible in defining possession whereas their counterparts in England and Rome had interpreted it as part of its Policy and Convenience with divergent views in different cases as per the need of the facts of a case. Nevertheless Possession being an abstract and a relative term could not escape the complexity involved in India as well. As earmarked by Law Commissioners, generally possession is a simple question of fact. If I buy a motor car from a person who has the right to sell it, I obtain the right of ownership over it and its my property. If I let it to another person, or it is stolen, the person to whom it is let or the thief has the possession but I still retain/own the property1. Possession exists in one who has physical control, weather rightful or wrongful, over a corporeal thing. But it is not that there is no recognition of dejure possession in India. A person (owner) who has no physical control over a thing will be deemed in law to have possession of a thing2 in the eye of the law. Means rea which is very much part of criminal law statutes in India unless it explicitly exclude it, has been seen to have larger impact in conviction for different crimes involving possession, specially where possession of certain things is a crime, examples being the Cases of Joint Hindu Family, Conversion, and Possession of Arms etc. Therefore it is submitted that meaning of possession differs according to the context of law it is used in. Possession should be read with the intent of the lawmakers.

1 2

PSA Pillai, Criminal law, p. 1004 Though he will not have possession in fact.

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Bibliography

1. Dias, Jurisprudence 2. Prof. S. N. Dhyani, Jurisprudence a study of Indian legal theory, 3. Salmond, Jurisprudence. 4. Dr. Gokulesh Sharma, An introduction to Jurisprudence. 5. Dr. Harris, The concept of possession in English Law, Oxford Essays on Jurisprudence. 6. Markby, Elements of Law. 7. Class Notes by Dr. Asad Malik. 8. B.N. Mani Tripathi, Jurisprudence. 9. Pollock and Right, Possession in the Common Law. 10. Mullah, Principles of Mohammedan Law. 11. Abdur Rahim, Mohammedan Jurisprudence. 12. PSA Pillai, Criminal Law (10th Edition) 13. Law Commission reports 14. Shartel, Meaning of Possession (1932) 16 Minnesota Law Review 611 15. Goodhart, Recent tendencies in English Law, Cambridge Law Journal94(1939-41 16. Simpson, Analysis of Legal concept

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