Introduction

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 law. That is, possession constitutes ninety percent of
ownership.

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.

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Bentham says, ‘possession is to recall the image which presents itself to the mind
when it is necessary between two parties which are in possession of a thing and
which are not’.

Maine says, ‘physical detention with the intention to hold the thing detained as
one’s 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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 The reasons for the protection of possession by law

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 title.
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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 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 possessor’s 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 possessor’s 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

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 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;
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

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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. Chissiers 1, 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.

1. [1678] L. R. 275

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 Classical theories of Possession

Savigny’s 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.

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Thus, he emphasizes intention as well as physical control to complete possession.
Salmond and Pollock also agree with Savigny on this point.

Criticism of Savigny’s 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.
2. Salmond has rightly criticized Savigny’s 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 Savigny’s 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 Paul’s 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. Savigny’s 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.

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 c. The application of Savigny’s 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.

Ihering’s 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.

Salmond’s 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
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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 possessor’s 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

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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 or animus, or even both, disappear. This it is submitted, is true, but destroys
the foundation of Salmond’s 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 to 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 D’s 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 E’s 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

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general intention to exclude others. In Bridges V. Hawkeworth2 decided that notes
found on the floor of a shop passes into the possession of the finder rather than the
shopkeeper. In Hannah V. Peel3, 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 another4, 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.

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’.

2. [1851] 15 Jur 1079

3. [1945] KB 509
4. [1963] 2 All ER 834

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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 don’t 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 Pollock’s Theory:

Pollock 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.

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Holmes’ Theory:

Holmes 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 intent.

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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 landlord’s 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 tenant5.

Thomas v. Metropolitan Housing Corporation Ltd6: 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 landlord’s agent- even
though the office was closed for the week.

The case of Wrightson v. Mc Arthur and Hutchisons Ltd7 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

5. Dr. Gokulesh Sharma, Intro. to Jurisprudence, p.724

6. [1936] 1 All ER 210
7. [1991]

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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. Trueman8, it was held that the handing over of the key to
carry our repairs work was not surrender of possession.

To protect tenant’s 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.

9. [1961]177 Estates Gazette

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 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 aspects:

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.

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