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Legal Concepts

Table of Contents

POSSESSION[1]

QUESTION BANK

Q.1 State the essentials of valid custom.

Q.2 What do you understand by custom? What are the essential requisites of a valid custom?.

Q.3 “What custom is to society law is to State”, comment.

SHORT NOTES

Local Custom.

I. GENERAL-

The concept of possession plays a very important role in human life. The right to possession of material things like food, shelter, clothing, property, etc., is essential for survival. Possession is a relationship between men and things. The concept of possession is also important from a law point of view. Protection of possession by law is important for the maintenance of law and order and for the improvement of human life.

The concepts of ‘possession’ and ‘ownership’ are closely related and are sometimes used interchangeably. However, their meanings are totally different.

II Meaning and Definition of Possession-

The concept of ‘Possession’ is very important but difficult to define. According to the Supreme Court, “It is impossible to work out a complete, logical and precise definition of ‘possession’ uniformly applicable to all situations and in the context of all the statutes.”[2].

We will discuss some of the definitions attempted by various authors-

1) John Salmond-

‘Possession’ is the continuing exercise of a claim to the exclusive use of an object”[3].

2) Sovigni-

‘Possession’ is “intention” coupled with physical power to exclude others from the use of material object.[4]”.

3) Sir. Fredrick Pollock-

“In a common speech, a man is said to possess or to have anything of which he has the apparent control or from the use of which he has the apparent power of excluding others”.

4) Holmes-

“To gain possession, a man must stand in a certain physical relation to the object and to the rest of the word and must have certain intent”.

Thus, from the above definitions, we may lay down the following requirements or elements of possession-

1. Corpus Possessionis-

It is also called ‘physical control’. Corpus possessionis implies two things- viz-

i) The possessor’s physical relation to the res, i.e. the object-

Thus, a person possessing corpus should have some physical relations with the object. What kind of physical relation is required to call corpus possession depends upon the nature of the object. Corpus possession implies that others would not interfere with the possessor’s right to use or enjoy that thing. In other words, he can use and enjoy the property as and when required.

ii) The relation of the possessor to the rest of the word or other persons-

In addition to physical relations with the thing, the possessor should also be able to exclude others. The possessor’s ability to exclude others is known as the possessor’s relation to the rest of the world. However, there are no hard and fast rules regarding the amount of power required to exclude others.

However, in modern times, the second requirement is less relevant. Now, it is the job of the state to protect the person’s possession of the property.

2) Animus possessindi-

Mere physical possession is not sufficient unless it is coupled with the possessor’s intention to exclude any interference by the other.

Thus, with corpus, animus, i.e. intention to possess property as of his own and thereby exclude other’s interference, is necessary.

Animus has the following connotations-

i) The person holding the property may not be the owner but may exercise animus to exclude others on behalf of the owner. E.g. A tenant, mortgagee, Bailee etc.
ii) Similarly, the animus to exclude others need not be on the possessor’s own behalf, e.g. a bailee may hold animus to exclude others not on his behalf but on behalf of the bailor, so also, a carrier of goods, a servant, or an agent, or a trustee etc. have animus on behalf of somebody.

iii) Animus to exclude others need not be specific, e.g. a person having a library is supposed to have possession of every book even though he has forgotten the existence of any particular book.

iv) Animus to exclude others need not be based on the legal claim. E.g. if B steals the golden chain from A and subsequently C steals it from B, here A has the legal right to recover the chain from both B and C. But B being a prior possessor, can recover it from C.
v) Animus to exclude others may not be absolute, e.g. though B and other villagers have the right of way over A’s land, still has animus to possess that property though not absolute.

Thus, in other words, to acquire true possession of a thing, the possessor should exercise such physical control over the thing as the thing is capable of and must have the intention to exclude others.

II Kinds of possession-

There are following kinds of possession Viz.

(1) Corporeal[5] and incorporeal[6] possession-

Corporeal possession is the possession of material objects such as a car, land, house, money, dress etc.

According to Salmond, ‘corporeal possession’ is the continuing exercise of a claim to the exclusive use of a material object”. In other words, it is a continuous relationship between a person and a material object. It is a possession over the corpus.

Whereas ‘incorporeal possession’ is the possession of anything other than a material objects. It signifies possession of a right such as copyright, patent right, trademark, goodwill, or easementary right (right of way over another’s land, to light etc.).

According to Salmond, ‘incorporeal possession’ is the continuing exercise of a claim to anything other than a material object. In other words, incorporeal property is possession of immaterial or intangible things, i.e., possession of rights than the thing itself.

However, the distinction between ‘corporeal possession’ and ‘incorporeal possession’ is disputed by many jurists.

In Roman law, ‘Corporeal Possession’ is called ‘possession corporis’ and ‘Incorporeal Possession’ is called ‘possessio juris’. In other words, Roman law believes ‘Corporeal Possession’ is an actual possession and ‘Incorporeal Possession’ is called ‘possessio juris’. In other words, Roman law believes Corporeal Possession is actual possession and Incorporeal Possession is possession.

2) Immediate and mediate possession[7] –

‘Mediate’ possession is the possession of a thing through another person. It is also known as ‘indirect possession’.

Whereas, ‘immediate possession’ is direct possession. Thus, the possession of a person in his car is his direct possession, whereas possession of a person in a car in his driver’s possession is his mediate possession, i.e. possession through another person.

In other words, ‘immediate possession’ signifies direct possession, whereas; ‘media5te possession’ signifies possession through another person.

Salmond lays down three types of mediate possessions-

Possession through an agent or servant,e. through a person who holds the thing solely on behalf of his master and does not claim any interests of his own.
Possession through a borrower or hirer or tenant, wherein the master can demand the thing at his will.

Possession is where the property is lent for a fixed period or upon a condition or as security for repayment of a debt etc.

The person in possession of a thing in mediate possession can use such possession against the whole world except his master (a true owner).

English law does not recognise the distinction between ‘mediate’ and ‘immediate possession’. According to English law, there cannot be double possession, a servant’s is not possession, and his custody of a thing is on behalf of a true possessor, i.e. his master. However, the distinction between ‘mediate’ and ‘immediate’ possession is recognised in General Law.

3) Constructive Possession[8]–

According to Pollock, ‘Constructive Possession’ is a possession in law and not in fact. Constructive Possession is a right to recover possession. The right arises only by the construction of law. Thus, delivery of a key to a car, building, warehouse, etc., gives rise to constructive possession of the transferee’s key contents.

However, Keeton does not recognise such a ‘constructive possession’ type. According to him, the key actually transfers the contents; therefore, it is actual possession and not constructive.

Adverse Possession[9]–

Adverse possession implies the possession of land as opposed to a true owner’s title. Where a person in possession claims the exclusive right to the land of another (who is not in possession), he is said to be claiming through adverse possession. Therefore, possession is said to be nine points in the law.

To constitute adverse possession, both animus and corpus are necessary. According to the Indian Limitation Act, 12 years of adverse possession of land extinguishes the owner’s title and creates the title of the possessor.

III Modes of Acquisition of Possession-

The following are the modes of acquisition of possession-

1) Taking-

‘Taking’ means the acquisition of property without the consent of the previous possessor.

Taking may be original or derivative. ‘Original taking’ is taking when the object taken has no owner (i.e. res nullis), e.g. catching wild animals or birds, etc.

‘Derivative taking’ occurs when somebody takes something already owned by somebody else. In other words, ‘derivative taking’ is taking the thing of others.

Both original and derivative taking may either be legal or illegal.

Original taking is illegal if the act is prohibited by law, e.g. killing wildlife is prohibited by the wildlife Protection Act; similarly, derivative taking is illegal if the thing is taken by stealing etc.

2) Delivery-

Possession can be acquired by delivery from another person. Possession by delivery is acquired with the consent and cooperation of the previous possessor or owner.

Such delivery may be due to sale, mortgage etc. Delivery of possession may be actual or constructive.

3) Operation of law-

A person may acquire possession by operation of law, i.e., by order of the court, by the effect of law, etc. For example, heirs acquire possession by the death of a predecessor. One can also get possession by adverse possession (e.g., being in peaceful and uninterrupted possession of another’s landed property for twelve years or more extinguishing the true owner’s title). Such a right of adverse possession is also called a ‘prescription’.

4) Possession and Ownership-

Initially, there was the concept of ‘possession’ and not ‘ownership’. The concept of possession originated first, and after some time the concept of ownership originated.

Possession is called prima facie evidence of ownership. It is described as “nine points in law”.

Moreover, possession is a defacto claim of which ‘ownership’ is a de-jure recognition.

V. Possessory Rights and Remedies[10]–

Possession is called ‘nine points in law’ because it confers on the possessor all rights of ownership. However, these rights of the possessor are not available against the true owner or prior possessor; therefore, these are nine and not 10 points (i.e. all).

‘Possessory Remedies’ are remedies that are available to the possessor to protect his possession, whereas ‘proprietary remedies’ are remedies that protect the rights of the owner.

In India, as well as in other countries, ‘ Possessory’ remedies are provided to avoid criminal matters related to property. No one, even the owner himself, can recover possession of the settled possessor except according to the procedure prescribed by law. He is not allowed to recover possession forcefully. Therefore, possession of the bailee is protected even against the true owner.

Following are the objects of protecting possession and offering possessory remedies viz-

i) Prevent the evil of violent self-help[11]–

The law provides the right of self-defence or self-help if the person in possession is being deprived by force. However, sometimes, it becomes very difficult to decide who is the aggressor and who is defending. To avoid such chaos and violence in the name of self-help, the law provides possessory remedies. These remedies protect the possessor even against the true owner. The owner cannot take the law into his own hands and forcefully remove the possessor.

ii) Earlier inefficient proprietary remedies[12]–

In earlier times, the procedure by which an owner recovers his property was cumbersome, dilatory and inefficient. It is because proving the title was very difficult at that time. But nowadays, recovering possession by the owner is speedy. The owner, by the legal procedure, can recover possession speedily. Therefore, the law protects the possessor and does not allow dispossession, otherwise than the procedure of law.

iii) Difficulty in having ownership-

In earlier times, it was easy to prove possession but it was very difficult to prove ownership. Since it was considered that the possession is prima facie evidence of ownership.

Continuous, uninterrupted possession for a long time entitles the possessor to claim the right of ownership. He has merely to prove prior possession, while the other party must prove the better title.

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[1] ताबा / [ कब्जा ]

[2] Superintendent Remembrance Legal Affairs V. Anil Kumar AIR 1980 S.C. 52

[3] एखादे वस्तुचा इतरांस बाजुला करून संपुर्णपने उपभोग घेण्याच्या नियीमत हक्क सांगनेस कब्जा म्हणतात [कब्ज़ा दूसरों के बहिष्करण के लिए किसी चीज़ का पूरी तरह से आनंद लेने का प्रथागत अधिकार है ]

[4] इतरांना एखादे वस्तुचे वापर करण्यापासुन दुर सरण्याची इच्छा व भौतीक सामर्थे यास कब्जा म्हणतात [दूसरे इसे व्यस्तता, किसी वस्तु और भौतिक शक्ति का उपयोग करने से दूर जाने की इच्छा कहते हैं ]

[5] भौतिक / प्रत्यक्ष ताबा [भौतिक / भौतिक कब्जा ]

[6] अभौतिक / अप्रत्यक्ष ताबा [ अमूर्त/अप्रत्यक्ष कब्जा ]

[7] प्रत्यक्ष / मध्यस्थाकडुन [सीधे/मध्यस्थ के माध्यम से ]

[8] रचणात्मक कब्जा [रचनात्मक व्यवसाय ]

[9] विरूध्दहक्काने कब्जेदार / मालकाचा अधिकार संपऊन कब्जेदार [प्रतिकूल अधिकार द्वारा कब्जाधारी / स्वामी के अधिकार के व्यपगत होने से कब्जाधारी ]

[10] कब्जामुळे येणारे अधिकार व उपाय [कब्जे से उत्पन्न होने वाले अधिकार और उपचार ]

[11] स्व:मदतीची दुष्ट पधती [स्व-सहायता के दुष्ट तरीके ]

[12] पुर्विच्या मालकांसाटीच्या कब्जा माघारी मिळविण्यासाठीच्या अपु-या तरतुदी [पिछले मालिकों के खिलाफ कब्जे की वसूली के लिए अपर्याप्त प्रावधान ]