The institution of property has a crucial relationship with mankind. There are
two important rights related to property:
- possession; and
Regarding possession, as Salmond says, it is the most basic relation between a
man and a thing. Possession of material things is necessary because human life
and human society would rather be impossible without the use and consumption of
material things. As civilization began to progress, the straggle for existence
was so bitter that people began to take possession of certain objects and
considered them as their own.
They began to take pride in the possession of
those things and were not prepared to allow outsiders to interfere with them.
They were determined to exercise continuous control to the exclusion of all
others. And from a humble beginning, the concept began to grow and now much
progress has been made in this connection. [i]
From the legal point of view also it is a very important concept. Innumerable
legal consequences flow from the acquisition and loss of possession and thus, it
is said that there is no concept in the field of law as difficult as that of
possession. Firstly, it the prima facie evidence of ownership, called as nine
out of ten points of law, meaning that there is a presumption that the possessor
of a thing is the owner of it and the other claimants in order to have that
thing must prove their title or better possessory right.
The principle has also been incorporated under Section 110 of the Indian
evidence Act,1872 also, as follows:
Burden of proof as to ownership- when the question is whether any person is the
owner of anything of which he is shown to be in possession, the burden of
proving that he is not the owner is on the persons who affirms that he is not
As Salmond also says, Possession is the objective realization of ownership, it
is in fact what ownership is in right. It is the de facto exercise of a claim
while ownership is the de jure recognition of that claim. Explaining the
relation between possession and ownership the Supreme Court of India in the case
of B. Gangadhar v. B.R. Rajalingam stated, possession is the external form in
which claims normally manifest themselves. It is in fact, what ownership is in
right enforceable at law to or over the thing. [ii]
Even a person who wrongfully possesses a property, like a thief, has a good
possessory right over it against the world at large except the true owner. This
means that a person cannot interfere with the possession of another person by
setting up a defence of jus tertii, that is, the title of a third person. Also,
dispossessing or ejecting a person from one’s own land and re-entering forcibly
is wrongful act even though the possession of the person turns out to be
wrongful. Thus, simply, it can be said that law protects possession.
Meaning of the term possession
Several jurists have defined the term ‘possession’ differently, some of the
notable definitions are as follows:
Elements of possession
The possession of a material object is the continuing exercise of a claim to
the exclusive use of it.
Thus, possession involves two things: (1) claim of exclusive user; and (2)
conscious or actual exercise of this claim, that is, physical control over it.
The former is the mental element called as animus possessionis and the later is
the physical element called as corpus possidendi. [iii]
- Federick Pollock-
He pointed out that in common parlance a man is said to possess or to be
possession of anything of which he has apparent control, or from the use of
which he has the apparent power of excluding others. So, he also talks about the
two elements: corpus possidendi and animus possession is.
He in his theory of possession says, the pith of corporeal possession is to be
found in the physical power of exclusion.
However, Salmond doesn’t agree with this view of Savigny that the possessor must
have the physical power to prohibit outside interference or obstruction. It is
so firstly due to the fact that certain things cannot be physically possessed,
like A may have the right of way over another person’s land this doesn’t mean
that he has physical possession of the same. So, Savigny’s theory wouldn’t be
applicable in case of incorporeal possession. Another reason as explained by
Salmond through an example is: an infant has no physical capacity to exclude
others from depriving him of his possession like a strong and healthy man,
nevertheless, if he holds a coin with him, he would be deemed to have legal
possession of it. So, the true test according to Salmond is not the physical
power of exclusion but the improbability or unlikelihood of interference or
obstruction by others.
Markby also says, physical power is rather the possibility of dealing with a
thing as one like and of excluding others.
He takes a sociological view of the concept of possession and is of the opinion
that the element of animus possidendi is not material and cannot serve as test
of legal possession. But if the view of Ihering is accepted it would provide no
answer to the question as to why a thief can claim possession of a thing which
he has stolen but not a servant who is possession of his master’s goods. Thus,
simply, intention is also a material element of legal possession.
- Justice Holmes-
He says, to gain possession a man must stand in certain physical relation to
the object and to the rest of the world, and must have a certain intent. Thus,
he also points out to the two elements of possessions.
- Sir Henry Maine-
According to him, possession means that contact with an object which involves
the exclusion of other persons from the enjoyment of it. Possession denotes
physical contact resumable at will. In other words, it does not signify mere
physical detention but physical detention coupled with the intention to hold the
thing detained as one’s own.
It becomes sufficiently clear from the above-mentioned definitions that there
are two elements of possessions, namely corpus and animus. They can be discussed
(a) Corpus of Possession (corpus possession is)-
Corpus implies two things:
- Possessor’s physical relation to the res, that is, the object;
- The relation of the possessor with the rest of the world
There must exist some physical contact or control of the possessor with the
thing so as to give rise to a reasonable assumption that other people will not
interfere with, or simply, with the possessor’s right of use, enjoyment of that
This non-interference can be secured in the following ways:
(b) Animus Possidendi-
- Physical power of the possessor- the person in possession generally uses
walls, gates, doors, etc. to prevent others from interfering in his
possession. For example, a person is in possession of the money which he
locks up in a safe.
- Personal presence of the possessor- the physical power of the possessor
and his personal presence though commonly present together, but it is not
necessary that they must coincide. For example, a coin in a child’s hand
implies possession even though he doesn’t have the physical power to exclude
interference with its possession.
- However, possession is not lost by mere temporary absence of the
possessor from it. For example, a person who goes for walk leaving his
things in the house, doesn’t lose possession over them. Another example is
where a person enters a restaurant for dinner, takes off his coat and hangs
it on the stand there, is still in possession of the coat. And someone who
takes away the coat dishonestly will be guilty of theft. Similarly, when a
person gives a dinner his silver forks while in the hands of the guests are
still in his possession.
- Secrecy- if the possessor keeps the thing in a hidden manner, it is also
a way of keeping the thing secured from interference by others.
- Protection afforded by the possession of other things- at times
possession of an object tend to confer possession of certain other things
which are connected with it or accessory to it. Thus, possession of land
confers possession of things that are on or under it. [iv]
- Manifestation of animus domini- the visibility of claim is another
element in the de facto security of the enjoyment of a thing. a manifested
intent is much more likely to obtain the security of general acquiescence than
on which it has never assumed a visible form. Simply, open use of a thing
carries with it a prima facie right mindedness of its possession. [v]
- Lastly, in social context, wrongful possession is not seen with favor,
therefore, respect for rightful, legal claim prevents people from
interfering with the legal possession of others.
Mere physical contact or control over a thing is not enough, but it must be
accompanied with a will or intention to exercise such control. This mental or
subjective element in possession is called animus possidendi. To define, it is
the conscious intention of the possessor to exclude others from interfering with
his right of possession.
In the case of N.N. Majumdar v. State
[vi] it was held that corpus without
animus is ineffective. Following are a few important points in respect of
Distinction between possession in fact and possession in law
- It is not necessary that the animus must be rightful, and may be
wrongful as well, like in case of a thief who is in possession of stolen
- The animus need not be absolute. For example, a person still has legal
possession over a land even though others possess a right of way over that
land. Similarly, it need not be specific also. It can be general like a
fisherman has possession of all the fishes I his net, although he may not
know their exact number, or that a person is said to be possession of all
the books in his library even though he might have forgotten about the
existence of some of them.
- It is not necessary that the animus must be to hold the thing as an
owner. thus, in case of a pledge, the pledgee has possession of the thing
pledged, although he intends to retain it in custody as a security to ensure
repayment of his debt. The same applies in case of a tenant too. In other terms,
the animus need not be of the possessor himself, a servant or agent does not
keep a thing for his own use but on behalf of another person. [vii]
Possession in fact or de facto possession is the actual or physical possession.
And possession in law or de jure possession is possession in the eye of law,
that is, recognized and protected by law.
They both most often exist together
must not always. For example, a servant holds a bicycle on behalf of his master,
he has actual possession of it, but in the eye of law the possession is with the
master. The Roman Law also recognizes the distinction between possession in fact
and possession in law as possession naturalis and possession civilis.
A few illustrative cases are as follows:
- R v. Chissers- A person went into a shop and took some cloth in his hand
to see it and then ran away with it. He was held guilty of larceny because he
had not obtained possession of the cloth only by taking it in his hand and the
possession of the cloth was still with the shop-keeper. [viii]
- Acona v. Rogers- Here, the owner of a house allowed a lady to keep her
luggage in one of the rooms of the house. But the keys of that room were with
the lady and not with the owner of the house. And thus, the court held that in
the eye of law the lady was in possession of the luggage and nit the owner of
the house. [ix]
- Elwas v. Rogers- the plaintiff gave their land on lease to the defendant
for erecting a gas plant. The defendant found a pre-historic boat below the
land. The court held that the plaintiff had the right to possession over the
- South Staffordshire Waterworks Co. v. Sharman (gold rings case)- the
plaintiff company employed the defendant to clean a pond owned by the
company upon its land. While cleaning the pond the defendant found gold
rings at its bottom. The court held that the company had the right of
possession over the rings as the pond was owned by it upon its land. [xi]
- Hannah v. Peel- the defendant purchased a house but never occupied it
and thus, it was requisitioned by the government and a soldier was stationed
in it. The soldier found a brooch in the house, from the top of a window
frame and handed it over to the police. But the police without trying to
find the owner of the brooch, sold it. Thus, the plaintiff (soldier) claimed
the brooch or the value of it as its finder while the defendant maintained
that he was entitled to the brooch as the house where it was found belonged
The court held that the defendant was not entitled to the brooch as he never
stayed in the house and so had neither the corpus nor animus as he had no
knowledge of the brooch. And the plaintiff was entitled to it as the finder
thereof, except against the true owner who could not be found. [xii]
- Merry v. Green- a man purchased a chest of drawers at an auction and
later found some money in a secret drawer. The court held him guilty of
theft as he was not aware of the existence of the money at the time when he
purchased the chest of drawers and thus had no animus of possession until he
found the money. [xiii]
Thus, the simple principle, as explained by Justice Cave in R v. Ashwell, is:
man has no possession of that, of the existence of which he is unaware
Kinds of Possession
Following are the various kinds of possession:
(a) Corporeal and Incorporeal Possession-
Corporeal possession is the possession of material or tangible objects both
movable like books, cattle, watch and immovable like house, land, etc. And
incorporeal possession means possession of immaterial or intangible objects like
copyright, patent, goodwill, reputation, etc. Corporeal possession consists of
both the elements, corpus and, but actual use of the thing is not necessary, for
example, a person can keep his ring locked in a safe and never use it but still
he will be said to be in possession of the ring. On the other hand, for
incorporeal possession actual, continuous use is considered is necessary because
physical control or contact, with the things, in possession is not visible as an
objective fact. [xv]
Also, some jurists are of the opinion that there is no such thing as incorporeal
possession because this concept falls short of requisites of real possession. It
is for this reason that in Roman law it is called as ‘quasi-possession’.
(b) Mediate and Immediate Possession-
Mediate or indirect possession is the possession of a thing through another
person. For example, A purchases a watch through an agent or servant, he has
mediate possession of it so long as the watch remains with the agent or servant.
But if A goes to the market himself and buys the watch, he is in immediate
possession of it.
Salmond has given three categories of mediate possession as follows:
- Possession acquired through an agent or servant;
- Possession held through a borrower or hirer to tenant, where the res,
that is, the object can be demanded at will;
- Possession is held through a person who is bound to return the object
after a certain period or on the fulfillment of certain conditions, like,
the pledgee is bound to return the goods pledged when the debt is paid."
This categorization has been criticized on many grounds. Firstly, has been
pointed out that in case of an agent or servant, he does not possess the thing
but merely has custody of it as here the animus is lacking. Secondly, it is said
that two persons cannot be in possession of the same thing, at the same time as
Salmond himself points out, exclusiveness is the essence of possession. And
the situation is different in case of co-owners as none of them has the right to
exclude the other. And it is worth noticing that the first category has been
called as representative possession also, while some call it as a type of
duplicate or concurrent possession and the other two as derivative possession.
Lastly, English law doesn’t recognize this distinction between mediate and
immediate possession while the German law recognizes it. [xvi]
(c) Concurrent or duplicate possession-
As mentioned above, exclusiveness is the essence of possession. It is not
possible that two persons have an independent as well as adverse claim to
possession of the same thing at one time. But it is possible that two persons
have concurrent claims to the possession of the same thing at the same time,
that is, their claims are not mutually adverse. And in such cases the possession
is called as concurrent or duplicate possession.
- The most important example of concurrent possession is what Salmond
calls as mediate and immediate possession, like of landlord and tenant
respectively or of bailee and bailor, etc.
- The possession of co-owners is another example of concurrent possession
and is called as compossessio in Roman Law.
- Corporeal and incorporeal possession may also co-exist in respect of the
same material object. For example, a person has corporeal possession over a
piece of land while another has a right of way over it, which is incorporeal
possession of it. [xvii]
(d) Constructive Possession-
It simply means that though the person is not in actual physical contact or
control over the thing but he has the power as well as the intention to deal
with it at his will. An illustration is of constructive possession is when goods
sold by one person to another are stored in a warehouse and the purchaser
doesn’t take the actual physical control over the goods but only the key of the
warehouse is given to him by the seller. Here, the purchaser is in constructive
possession of those goods. Similarly, a tenant may be occupying a house but the
landlord has constructive possession of it. Further, Pollock has explained that
constructive possession is possession in law and not possession in fact.
However, Keeton has not recognized this type of possession at all.
(e) Adverse Possession-
It means that a person who doesn’t have legal title to a property, usually a
land, acquires ownership of it based on continuous possession or occupation of
the land without the permission of its legal owner. [xviii] If the adverse
possession continues, undisturbed, for the prescribed period (which is 12 years
in India) then the title of the real owner comes to an end and the possessor
becomes the owner thereof. This effect of the lapse of the prescribed time on
titles is called as ‘prescription’ and has two effects- positive or acquisitive
for the person in whose favor the right of ownership is created, and negative or
extinctive for the person whose right is extinguished. Lastly, the requisites of
adverse possession can be mentioned as:
- Continuity of possession for the prescribed period
- Adequate publicity, that is, the possession must not be held in secrecy
- Peaceful or undisturbed possession for the prescribed period
Modes of Acquisition of PossessionThere are three modes of acquiring possession as follows:
(a) By Taking-
it is the acquisition of possession without the consent of the
previous owner and it may either be rightful or wrongful.
For example, as Keeton says, where an inn-keeper seizes the goods of his
guest, who has failed to pay his bill, there is acquisition of possession by
rightful taking. But where a thief steals something, he acquires possession
wrongful taking. But it is not necessary for acquisition of possession by taking
that the thing must be already in the possession of some other person. For
example, res nullis, that is, a thing belonging to no one, like, a wild animal
or bird, etc. and acquiring possession of a res nullis is also by way of
(b) By Delivery-
it is the acquisition of possession with the consent of the
previous owner and is of two types, actual and constructive.
Actual delivery is the physical or actual transfer of a thing from the hands of
one person to another. It is of two kinds, one in which the owner still has a
mediate possession like when A lends his book to B, and the other in which the
owner does not retain even the mediate possession like when A sells the book to
Further constructive delivery is one in which there is no direct or actual
transfer of the possession of the thing. it is of three kinds:
(c) Operation of law-
- Traditio Brevi Manu- it is the giving up of possession to someone who
already has the immediate possession of the thing. For example, a person sells a
book to the hirer thereof who is already in immediate possession of the book.
So, in other words, it is only the animus that is transferred as the
transferee already has the corpus.
- Constitutum Possessorium- as opposed to tradition brevi manu,
constitutum possessorium means that the mediate possession is transferred and
the immediate possession remains with the transferee. For example, if A
purchases a bicycle from someone who also does the work of giving bicycles on
hire. So, A allows him to keep the bicycle and continue to use it for hiring
purpose. Here, although the immediate possession is still with the other person,
A has got its possession through constructive delivery.
- Attornment- in this kind of delivery, there is transfer of mediate
possession while immediate possession is in the hands of a third person. For
example, A has goods in the warehouse of B and they are sold by A to C, then in
this case A has constructively delivered the goods to C as soon as B agrees to
hold them for C and no longer for A. [xix]
Possession can be acquired by the operation of law also like in case of adverse
possession and of succession.
It can be safely concluded that possession is the most fundamental relation
between a man and a thing, but one of the most difficult concepts of the field
of law. It is a very vast concept consisting of various kinds and modes of
acquisition which deal with the acquisition of res nullis too. It is the prima
facie evidence of ownership and is protected by law through various possessory
remedies like the doctrine of jus tertii and statutory remedies are also
available like section 5 and 6 of the Specific Relief Act, 1963, section 145 of
the Code of Criminal Procedure, 1973,section 47 and 48 of the Sale of Goods Act,
as well as section 167 and 168 of the Indian Contract Act, 1872. Also, for de
jure possession both the elements of corpus and are necessary, as opposed to de
[i] V.D. Mahajan, Jurisprudence & Legal Theory 308 (Eastern Book Company,
Lucknow, 5th edn., 1987).
[ii] (1999) 5 SCC 463.
[iii] Dr. N. V. Paranjape, Studies in Jurisprudence and Legal Theory 413
(Central Law Agency, Allahabad, 8th edn., 2016).
[iv] Id at 421.
[v] Supra note 1 at 311.
[vi] AIR 1951 Cal 140.
[vii] Supra note 3 at 422.
[viii] (1678) T Raymn 275.
[ix] (1876) 1 ExD 285 (292).
[x] (1886) 33 Ch D 562.
[xi] (1896) 2 QB 44.
[xii] (1945) 1 KB 509.
[xiii] (1847) 7 M &W 623.
[xiv] (1885) 17 QBD 190.
[xv] Supra note 1 at 321.
[xvi] Supra note 3 at 427.
[xvii] Supra note 1 at 323.
[xviii] Adverse Possession, available
at: https://en.wikipedia.org/wiki/Adverse_possession ( last visited on January
[xix] Supra note 3 at 430.