answer of possession

8/12/2019 Answer of Possession

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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 consciouscontrol 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.

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 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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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 interdi cts . 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 one’s possession was tainted by certain forms of wrong-doing, the

possessor had the protection of these interdicts. In Roman law possession was also important inconnection 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 Paul’s 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 theoryexplains 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

control.

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

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



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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 Savigny’s theory has exercised considerable

influence on English writers. The term possession didn’t confine to physical control. As Roskikill LJ has said; ‘having something in one’s possession does not mean of necessity that

one must actually have it on one’s person’. This is to some extent reflected in the phrases

sometimes encountered, such as ‘possession in fact’ and ‘possession in law’. Salmond 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 master’s good while things are in his master’s 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

one’s own account and in one’s 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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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 onlythe 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 inthe 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. 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.

Concept of Corpus in I nternational 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 it’s 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

1 [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

it’s astronauts were the first to plant it’s 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 fr om ‘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

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 toreproduce 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 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.



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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.

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 noclear 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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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 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 interfer ed

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 itscommencement 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

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 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 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 general intention to exclude others. In Br idges V. Hawkeworth

decided that notes found on the floor of a shop passes into the possession of the finder rather than

the shopkeeper. In Hannah V. Peel , 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 another, 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



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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

don’t look at it for 20 years. Here he has exercise continuous claim to it, by co ntinuously

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.

answer of possession

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