JAMIA MILLIA ISLAMIA UNIVERSITY

FACULTY OF LAW

CONCEPT OF POSSESSION AND OWNERSHIP AND

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INTRODUCTION
Most of us think that the terms ownership and possession refer to the same thing. Both
ownerships, as well as possession, can simply define as a state, act, or right of owning
something. However, in legal terms, they have different meanings.

The main difference between possession and ownership is that possession is requiring a
physical custody or control of an object while ownership is the right through which something
goes to someone.

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.
Its 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.

The idea and concept of ownership is developed by slow degrees with the growth of
civilization. In primitive societies the only concept known to human mind was that of
possession. It was much later that the concept of ownership adopted. So long as the people
were wandering from place to place and had no settled place of residence, they had no sense of
ownership. The idea began to grow when they started planting trees, cultivating lands and
building their homes. The transition from a pastoral to an agricultural economy helped the
development of the idea and concept of the ownership. Thus, ownership denotes the relation
between a person and an objective forming the subject matter of his/her ownership.

In the legal sense the term ownership carries the meaning of right over a thing to the exclusion
of all other persons. This implies non-interference by others in the exercise of this right and
must be distinguished from mere holding of a thing in one’s possession.

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POSSESSION
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 ownership1.

To a layman possession implies a relation to an object which involves exclusion of other person
from enjoyment of it.

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”.

Possession in Roman Law

Roman law recognized two degree of possession:

1. Possession 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 interdicts. 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 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.

1
Gleanwill Williams, Learning the Law.
2
Dias, Jurisprudence (3rd edn.), p.334.

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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’3. 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.

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. Riley4: 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.

3
R. v. Prudy (1975) QB 288.
4
[1853] Dears CC 149

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R. v. Rowe5: 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 company’s land.

R. v. Hudson6: 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.

Kinds of Possession

1. Mediate and Immediate Possession,

2. Corporeal and Incorporeal Possession,

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

5
[1859] Bell CC 93
6
[1943] KB 458

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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 sometime 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 returned on the payment of a debt. Even in such a case I retain possession of thing so far as
third persons are concerned.

In Moorgate Mercantile Co. Ltd v. Finch7, the defendant used the plaintiff’s 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.

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.

7
[1962] 1 QB 701

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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. Its diverse possession is constant, 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.

Both animus and corpus are 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.

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Possession in Fact and Possession in Law:

Possession in law is also known as de jure 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 de facto 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.

Possession in India

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 possession8. In India the framers of IPC didn’t 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 Law9.

In Trimbak v. State of M.P10, 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

8
Maharaja Sashi Kant Acharya Bahadur v. Nayjan Bewa, AIR 1945 Cal 611.
9
Prof. S.N. Dhyani, Jurisprudence- a study of Indian legal system, p. 309.
10
AIR 1954 SC 39.

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the accused but which is accessible to the public, the accused cannot be said to be in possession
of the article.

In Queen Empress v. Sita11, 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.

11
[1893] 118 Bom. LR 28.

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OWNERSHIP
The literal meaning of the term ‘own’ is to have or hold a thing. The one who holds a thing as
his own is said to be the owner and has right of ownership ever it. Thus, in the non-legal sense
ownership may be defined as the right of exclusive control over and disposal of a thing at will.

Normally ownership implies,

a) the right to possess,

b) the right to use,

c) the right to manage,

d) the right to capital and

e) the right to income.

The concept of the ownership is one of the fundamental juristic concepts common to all system
of law. Different writers have defined ownership in different ways.

Austin defined ownership as ‘a right indefinite in point of user, unrestricted in point of

Austin’s definition thus implies thee attributes viz.,

a) indefinite user,

b) unrestricted disposition and

c) unlimited duration.

Holland‘s definition: Austin’s definition of ownership has been followed by Holland. He

a) Possession

b) Enjoyment

c) Disposition

According to Salmond, ‘Ownership in most comprehensive significance denotes the relation

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him, is in all cases a right. Ownership in this wider sense extends to all classes of rights, whether
proprietary or personal, in rem or in personam, in re-propria or in re-aliena. He adds that it
applies not only to rights in the strict sense but also to liberties, powers and immunities.

Hohfield expresses a similar view (like that of Salmond) when he says ownership is not a right
but a bundle of rights, privileges, powers etc.

Duguit has defined, ‘Ownership is a relation between a person and a thing. On account of this
relation the person has the power of disposal, use and enjoyment of the thing.’

Kinds of Ownership

Ownership may be of various kinds. Broadly, it may be classified under the following heads-

1. Vested and Contingent ownership

Vested and Contingent ownership

Ownership is either vested or contingent. It is vested when the owner’s title already perfect, it
is contingent when his title is as yet imperfect, but is capable of becoming perfect on the
fulfillment of some condition. In the former case the ownership is absolute; in the latter it is
merely conditional. Once it is matured it automatically converts into vested type of ownership.

Sole and Co-ownership

Sole ownership indicates the singular control over the property. In this concept an individual
only entertains all sorts of rights of ownership over his owned property. Co-ownership is a
concept of plural or multiple owners holding right over the particular property. A single person
cannot entertain the rights of ownership in group.

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Corporeal and Incorporeal ownership

Ownership over any material object which can be movable or immovable but tangible objects
is called corporeal ownership. Incorporeal Ownership means ownership over the immaterial
things such as right over patent, design, trademark, copyright etc.

Legal and Equitable ownership

The distinct between legal and equitable ownership is limited in English common law only.
Legal ownership is a legally defined and protected property. Generally, ownership is
understood as a legal ownership. In other words, legal ownership is that which has its origin in
the rules of the common law.

Equitable ownership is basically carried out from the Chancery courts of UK. Equity courts
protect the rights of property. Equity law granted rights were the concept of equitable
ownership. Equity law is a concept of natural law philosophy. It does have no practicability to
rest of the world.

Trust and Beneficial ownership

Trust ownership is also known as duplicate or dual types of ownership. It is well defined right
that one should use the right to favor other. This kind of ownerships looks like ceremonial
having no powers. Beneficial ownership is relating to rights over the trust to use the authority
in favor of the trust itself. This type of ownership is taken as a real ownership because it is
powerful and using right to favor the trust is to benefit all trustees. Moreover, user is none other
than a trustee.

Absolute and Limited ownership

Absolute ownership is a concept of right having no any conditions. Particular property is totally
under the control of owner. Limited ownership is a conditional approach of the rights over the
property. It is basically based on contract law or dependency and various defined limitations
towards the entertainment of right relating to ownership.

The ownership has been stated that as right in itself, distinct from its component jurally
relations, has always been usefully for identifying certain groups of interests and for
distinguishing them from others. This is because ownership of these special groups was
originally an index not merely to wealth, but to social position, and it was socially significant

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in other ways as well. Possession, as has been seen, is a judicial concept and an instrument of
judicial policy.

In the words of Lord Evershed ‘property like other interests has a social obligation to perform’.
In English law the various forms of land holding designated a man’s social standing, whereas
chattels, being fungible, did not have this function. Ownership of land was also a means of
controlling government in so far as the qualification to vote was based upon it. Dominium in
Roman law connected sovereignty, which is essentially a social concept and something more
than just ownership, things of ownership the earliest forms of roman property, were precisely
the things that were important to a primitive agricultural community.

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RELATION BETWEEN POSSESSION AND OWNERSHIP
Speaking generally, ownership and possession have the same subject matter. Possession has
been treated as an external evidence of ownership. A person in possession of a thing may be
presumed to be the owner of it. The person in possession need not prove his ownership; instead,
the burden of disproving ownership of the possessor is on the person who disputes his
ownership. A long continuous and uninterrupted possession is an effective method of
realization of ownership.

According to Salmond, the subject matter of possession and ownership is more or less the
same, a thing which may be owned, may also be possessed. Likewise, a thing which may be
taken into possession may also be owned. Salmond held that whatever may be owned may be
possessed, and whatever may be possessed may be owned. Salmond further pointed out that
“the law of prescription determines the process by which through the influence of time,
possession without title ripens into ownership and ownership without possession withers away
and dies”.

According to Sethna, the relationship between ownership and possession is same as that of
body with soul. Just as existence of body is necessary for the realization of soul, likewise
possession is necessary and useful for the expression of the ownership because it (possession)
is external and formal.

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CONCLUSION
The Indian legal system though has 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 it’s 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 property12.

And ownership, basically functions according to its definition and characteristics. Functionally,
it has social position and significance. It has the judicial as well as social control and policy.
By the way ownership is according to the nation’s government. Although, philosopher defined
its nature, definition, acquisition, kinds and function related with possession, owner, right and
so on but it has naturally right with the nation about property, citizens and power. Thus, it can
be said, that ownership is strictly a legal concept and possession is non-legal and pre-legal
concept, so they have basic differences but closely are co-related with each other.

12
PSA Pillai, Criminal law, p. 1004

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REFERENCES

Books Referred:

 Dr. V.D. Mahajan, Jurisprudence and legal theory (Eastern Book Company, Lucknow,
5th edn., 2007).
 Prof. Nomita Agrawal, Jurisprudence (Legal Theory) (Central Law Publications, New
Delhi, 8th edn., 2010).
 P.J. Fitzgerland, Salmond on Jurisprudence (Universal Law Publishing Co. Pvt. Ltd.,
12th edn., 2014).
 Dr.N.V. Paranjape, Studies in Jurisprudence & Legal Theory (Central Law Agency,
Allahabad, 5th edn., 2007).
 PSA Pillai, Criminal Law (Lexis Nexis, New Delhi, 13th edn., 2011).

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