Possession-TRANSFER OF PROPERTY

DEFINITION AND AND PHILOSOPHY OF POSSESSION: POSSESSION : Possession is as difficult difficult to define as it is essential to protect. It is an abstract notion notion and it is not purely a legal concept. As with most words in the English language, the word ‘possession’ has a variety of uses and a variety of meanings. Depending on the contet, !he leicographer maybe found to give meanings such as the following" ‘the holding of something something as one’s own# own# actual to a sovereign ruler or state# the fact of being  possessed by a demon# the action of an idea or feeling possessing a person# the action of of $eeping oneself under control% as in self%possession& . !he leicographer, in attempting to assign the meaning of the word as used in English law, may well find himself saying something li$e the following" ‘!he visible possibility of eercising over a thing such control as attaches to lawful ownership# the detention or en'oyment 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 eercise such control as the character of the thing permits, to the eclusion of other persons.’ Possession is considered as the prima facie evidence of ownership. Anyone who interferes with the  possession of another must show either title, or better possessory right. Acting Acting on this principle, law may have to protect even wrongful possession up to a certain point. (or instance, if a thief steals someone’s watch, he has possession, which the law will protest against everyone ecept the owner, or some person lawfully acting on the owner’s behalf. !he law of torts gives right of action in respect of the immediate and  present violation of possession. In the case of property, property, there may be situations when proof of of title is difficult, and transfers of property re)uire intricate formalities. In such situations, it would be un'ust to disturb possession or to impose an obligation to prove a flawless title. !he most practical approach would be to protect possession until somebody proves a superior title. !hus, it may be said that possession confers on the possessor all the rights of the owner ecept against the true owner and earlier possessor. Possession also entitles a person to see$ certain remedies called possessory remedies. Possession is also recogni*ed as one of  the methods of ac)uiring ownership.  According to Salmond: (ew relationships are as vital to man as that of possession, and we may epect any system of law, however  primitive, to provide rules for its protection. +uman life and human society, as we $now them, would be impossible without the use and consumption of material things. e need food to eat, clothes to wear and tools to use in order to win a living from our environment. -ut to eat food, we must first get hold of it# to wear clothes, we must have them, and to use tools, we must possess them. Possession of material things that is essential to life# it is the most basic relationship between men and things. almond wrote, ‘whether a person has ownership depends on rules of law# whether a person has possession is a )uestion that could be answered as matter of fact and without reference to law at all.’ Inherent in this idea is that the concept of possession eists before legal society and is therefore independent of, and, prior to the law. !he idea of  possession as involving detention is ta$en by 'urists to suggest suggest that, unli$e ownership, which is essentially a de 'ure relationship between a person and a thing, possession is a de facto relationship between a person and a thing. According to Henry Maine: Possession means that contact with an ob'ect which involves the eclusion of other persons from the en'oyment of it. !he possession of a thing is as good title against the whole world ecept the real owner. /ong possession creates ownership by prescription. Ihering adopt a more o!"ecti#e theory$  0A man possesses who is, in relation to the thing, in the position in which an owner of such things ordinarily is, animus being merely an intelligent consciousness of the fact.& According to Sir Fredric% Fredric% Polloc%: 0In common speech, a man is said to posses or to be in possession of anything which he has the apparent control or from the use of which he has the apparent power of ecluding others.& Possession is the combination of two essentials, corpus possessionis and animus possedendi, the physical control over the ob'ect and the intention of that physical control respectively. So$ according to Sir Thoma Er%ine Holland: 0A moment’s reflection must show that possession in any case of the term must imply firstly some actual  power over the ob'ect possessed and secondly some amount of will to avail oneself of that is out of my reach

nor the mere power which I have without the least notion of eercising it to sei*e a horse which I find standing at a shop door, will suffice to put me in possession of the bird or horse. !he 1omans by whom this was treated with great fullness or subtlety describe these essential elements of  possession by the terms corpus and animus respectively.& respectively.& !hese definitions consist of two elements, which are essential to the concept of possession. 2ne is physical control over the thing or the physical element, which is called the corpus possessionis. !he second is the determination to eercise physical element, the mental element, which is called the animus possedendi. In normal situations, when an owner is in actual physical control of an article, there is no difficulty in understanding the concept of possession. (or instance, when I send my watch for repair through my servant, I cease to have actual physical custody of  the watch. !he servant is in custody of the watch, or we may say that he is in possession of the watch. !his is de facto possession. !his must be distinguished from the possession in law or de 'ure possession. (or  possession in law, there must be a manifest intent not merely to eclude the world at large from interfering with the thing in )uestion, but to do so on one’s account, and in one’s own name. hen I send my watch for repair through my servant, he has got de facto possession, while I have de 'ure possession. when somebody tries to forcibly ta$e the watch from him, he may resists the relief aggressor. +e does it not on his behalf, but on behalf. +e has the feeling in his mind that he resists the thief not for himself, but for his master. If I myself ta$e the watch to the repair shop and a stranger forcibly tries to ta$e it from me, I resist him with the feeling that the watch is my own, and I possess the right to eclude all others in the world. In other words, I resist the aggressor on my account, and in my own name. !his is de 'ure possession. ELEMENTS OF POSSESSION: !here are two elements which are essential to the concept of possession. 2ne is a physical element and consists in physical control over the things and is $nown as corpus possessionis and the second is a mental element i.e., animus possedendi which consists in the determination to eercise that control. &orp' poeioni: poeioni: !he ob'ective element of possession is called the corpus and consists in an eclusive physical control over the thing. According to avigny, avigny, the corpus possessionis consists in the eistence of physical power to eclude foreign interference and secure the en'oyment of the thing to oneself. !his is the corpus re)uired for the commencement of possession. !he corpus possessionis can be discussed under two points, one is in the relation of the possessor to other persons and other is in relation of the possessor to the thing possessed. 3 1elation of possessor to other persons almond says that a thing is possessed, when it stands with respect to other persons in such a possession with the possessor, having a reasonable confidence that his claim to it will be respected, is constant to leave where it i( Follo)ing are the o'rce *rom )hich 'ch ec'rity may !e deri#ed+  I. Physical po power of of th the po possessor, II. Person sonal pr presen sence of th the po posses ssesso sorr, III. hen hen the member memberss of the the societ society y devel develop op a resp respect ect for for right rightful ful claims, claims, a person person may also en'oy en'oy such such security, I4. I4. (or avoi avoidin ding g the inte interfer rference ence of others others,, when when a perso person n is able able to hide hide a thin thing g and $eep $eep it it in secrecy secrecy,, 4. A person person might might en'o en'oy y secur security ity and protect protection ion by the the poss possessi ession on of of other other thin thing, g, for for eam eample ple,, by $eeping the $ey of a house, protection is afforded to the house and other things $ept there. , -elation o* o* poeor to thing poeed !he second element for the purpose of possession is that the relation between the possessor and the thing  possessed is such as to admit of his ma$ing use of the thing as he li$es, consistent with the nature nature of the thing. !here must be no barrier between him and it, inconsistent with the nature of the claims he ma$es to it.  Animus possidendi" !he sub'ective or mental element in possession is called animus possidendi which implies intention to appropriate to oneself the eclusive use and en'oyment of the thing possessed. It is the intention of the  possessor to include others from interfering with his right of possession, in animus possidendi possidendi following  points are important5  I. !he !he pos posses sessor sor must must have have the the ec eclu lusiv sivee clai claim m ove overr the the thin thing g in in his his posse possess ssio ion. n. II. !he animus animus or or desir desiree to posses possesss need need not not necessa necessarily rily be rightf rightful, ul, it may may even even be cons conscio ciously usly wrongful.

III. !he animus animus need need not amount amount to a claim claim or or an intenti intention on to use use the the thing thing as owne owner. r. I4. I4. !he !he anim animus us nee need d not not be neces necessar sarily ily that that of of posse possess ssor or him himsel self. f. 4. !he animus animus possid possidend endii need need not not be speci specific fic,, it may may be be general general.. (or (or eampl eample, e, A may inte intend nd to to posses possesss all the boo$s on his boo$%shelf, though he might have forgotten the eistence of some of the boo$s on the shelf. !his general intention to possess all the boo$s in the boo$%shelf is sufficient animus for A possessing every boo$ on the shelf. Early la) on poeion: In the early law, the concept of ownership and possession was not clearly divorced. !his was evident from the fact that it was impossible to gain recognition of a right to possess which was good against the whole world or to vindicate any right to possess without reference to the concept of possession itself. In the early law possession was eplained through the concept of ‘seisin’# a concept described as lying ‘at the root of the historical development of English land law.’ law.’ !he idea behind seisin lay in the actual or de facto possession of land which was determinate of whether a proprietary right in land was granted. !here were no abstract ideas of title and right# instead possession decided whether a person had a right to land. As such seisin was not a )uestion of right# but rather a )uestion of fact, although fact might then lead to a right through the  passage of time. /ong sustained possession meant peace and order and seisin literally denoted )uiet and peaceful en'oyment of land. (rom the (ifteenth 6entury onwards seisin became confined to persons persons who held an estate in freehold and seisin gave a presumption of ownership of land. A person who claimed land as a result of losing it to a wrongful possessor had to show his seisin, in other words his possession, in order to recover land  bac$. +owever, given given that seisin was a )uestion of fact, even a person who wrongfully too$ possession of land could raise a presumption of ownership, which could only be defeated by a better showing of seisin in another person, that is the previous possessor pointing to a better better seisin. !he concept of seisin was not  particular to land and it was used to protect property interests in chattels as well as land. +owever, it became to be employed predominantly in real property law and through the passage of time became to be understood as origin of title or right in land. !oday the concept of seisin does not play the same degree of importance in real property law that it did in its early days. !he means by which ownership in land is transferred to another  no longer depends on mere delivery of seisin, or in the early language ‘livery of seisin’, but rather on a grant that does not re)uire actual entry. !he idea of actual possession reflecting seisin does, however, play a role in determining issues such as adverse possession of land. Although notions of ownership and title may have  become more abstract, the English law of property has and to some etent will continue continue to recogni*e that ownership, even where based on clear legal ideas of right and title, is a relative concept. !he idea of relativity of title and ownership holds that there is no such thing as absolute title to land and as such a claim to land, and for that matter other property such as chattels, depends on the non eistence of a better claim to the same thing. &OMMON LA. ON POSSESSION !he common law tradition regards ownership as a relative concept as opposed to an absolute one. !his simply means that possession is a good title to a thing enforceable against anyone who cannot show a better title. 1elativity of ownership, sometimes referred to as relativity of title, lies at the heart of property law in the common law tradition. 1elativity of ownership originates from the force of possession in the common law. !he very first principle of possession is that it raises a presumption of ownership. A person in actual  possession of a thing is presumed to be the owner of it, albeit, that this presumption, presumption, li$e any presumption, can be rebutted. In lay language this may be summari*ed by saying that ‘possession is nine%tenths the law’. +owever, there are sound legal 'ustifications behind the presumption. (irstly, possession in fact is prima facie evidence of legal possession and that the possessor has all the legal remedies to protect such  possession. Possession is said to be the root of title in that it is only through through possession that ownership is  born or the chain of title begun. !hus, !hus, an e)ually important principle operating here is that a person may be  presumed to be the owner of a thing even when when that person has no ownership in it, as, for eample, eample, where such a thing is found or ta$en without the authority of the true owner. uppose that - finds a gold watch which in law belongs to A. If - ta$es possession, -7s possession raises a presumption of ownership, which is good against the whole world ecept the true owner who has a better title to it. !he true owner can of course

rebut the presumption of ownership, however, until such time, - will be deemed to have a possessory title to the gold watch. !he concept of possessory title now calls for discussion. A possessory title is one that is good against everyone ecept the true owner. /ord 6ampbell once eplained the rule by commenting that ‘against a wrongdoer possession is title.’ !he origins for the rule of possessory title lie in the fact that English law never developed a sophisticated system of rules for the vindication of ownership rights. Instead, the right to ownership largely depended on the right to possession and it was possession that was accorded remedies. In the words of Polloc$ and right, ‘the common law never had any ade)uate process in the case of land, or any process at all in the case of goods, for the vindication of ownership pure and simple. o feeble and  precarious was property without possession, or rather without possessory remedies, in the eyes of medieval medieval lawyers, that possession largely usurped not only the substance but the name of property8’ It is important to appreciate that many of the remedies that see$ to protect property interests in both land and chattels depend on possession rather than on absolute notions of ownership. Property interests in land and chattels are protected by what are $nown as property torts. In the case of land, an action for trespass to land re)uires that the claimant had possession or a right to immediate possession. In the normal course of things the possessor will be the owner, however, it is )uite clear that a s)uatter will have sufficient standing to sue in trespass. !his is because the s)uatter s)uatter has possession in fact and law when he has control control in fact and intends to control. In the case of chattels there are two torts that see$ to protect property interests, namely trespass to goods and the tort of conversion. !he success of  both of these torts depends on whether the claimant has possession or an immediate immediate right to possession. !respass to goods is a wrongful physical interference with them. !he tort of conversion amounts to a dealing with goods in a manner inconsistent with the right of the true owner. It is sometimes thought that, unli$e trespass to goods, the tort of conversion is a truly proprietary remedy in that it protects ownership rather than mere possession. +owever, it is )uite clear that a person in actual possession, such as a bailee of goods, can sue for conversion. hat follows is that a person who has no possession or no immediate right to possession cannot sue for conversion. !hus, an owner who has no possession and neither an immediate right to  possession cannot sue for conversion. (inally, (inally, where damage is caused to a chattel through the negligence negligence of  another person, the claimant must show that he either had ownership in the chattel or a possessory title. !hus, possession plays an important role in the transfer and creation of property interests in personal  property. /egal ownership generally cannot be transferred in a chattel until such time delivery of possession is made. In so far as possessory security interests in chattels are concerned, possession is all%important. -oth a lien and a pledge re)uire delivery of possession in order for the interests to be effective. FO-EI/N &ASES ON POSSESSION -eg( #( riley In this well%$nown case the accused drove off amongst his own lambs, but without $nowing it, sell to the  prosecutor. After he had discovered the error he sold the lamb with his own. +e was convicted of larceny. larceny. !he court rationali*ed the decision by on a notion of ‘continuing trespasses based on the ground that the accused had undoubtedly made himself liable in trespass when he first drove off the lamb even though he did not $now that he had the lamb at the time. -( #( Ah)ell In this case the accused had as$ed the prosecutor to lend him a shilling. In a poor light, the prosecutor Pulled from his poc$et what he thought was a shilling and handed it to the accused. /ater the accused discovered that he had been given a sovereign by mista$e, but he none the less spent the sovereign and thereby converted it. +e was convicted of larceny of the sovereign. In the last resort the conviction was affirmed by an e)ually divided 6ourt for 6rown 6ases 1eserved consisting of fourteen 'udges. !he conviction involved a decision that the accused did not ta$e possession of the sovereign until he $new it was a sovereign, although the 'udges who so held gave different reasons for saying that he had not ta$en possession until that time. -( #( Moore !he prisoner had pic$ed up and converted to his own use a ban$ note which had been dropped on the floor of his shop. +e converted the ban$ note in spite of the fact that he $new the owner of it could be found. It was held that he was rightly convicted of larceny% that is, that he had not obtained possession of the note

while it was lying on the floor of his shop before he had discovered it, and further that the owner’s  possession was in some way etended, at least fictionally, after he had lost the note in the accuser’s shop. &art)right #( /reen A bureau was delivered to a carpenter for repairs. !he carpenter discovered money in a secret drawer which he appropriated to his own use. It was held that he committed larceny by feloniously ta$ing the money into his possession. In this case of course the carpenter was merely a bailee of the bureau but none the less by the ordinary rules would be held to have possession of it. It follows from his decision that he did not obtain  possession of it. It follows from the decision that he did not obtain obtain possession of the money when he obtained possession of the bureau, but only at the time he discovered it and wrongfully formed the intention to convert it to his own use. Hi!!ert #( Mc 0iernan !he appellant had been convicted for the larceny of golf balls, the property of the secretary and members of a golf club. +e had ta$en the golf balls, which had been abandoned by their original owners, while he was trespassing on the golf lin$s owned by the member of the golf club. It was held that the appellant had been rightly convicted 9 that is to say that the golf balls he had ta$en had been, at the time of his ta$ing, in the  possession of the secretary and members of the club although no one one $new where they were or how many  balls might be at any time lying abandoned on the various parts of the lin$s. -'e #( -ead !he respondent had been ac)uitted of larceny in the following circumstances. +e had, while drun$, ta$en a  bicycle from a public place, and it was accepted at first instance that at the time of ta$ing he had no larcenous intent. hen sober he found he had the bicycle. +e consigned it by rail to a non%eistent person at a railway station some distance away. !he magistrates had held that he had no intention of permanently depriving the owner of his property land was incapable of framing such an intention at the time of ta$ing the  bicycle had been a trespass and, although not then felonious, felonious, the subse)uent misappropriation of the machine on the following day amounted to larceny and the respondent should have been convicted, 1.v.1iley 1.v.1iley :supra; was followed. -oe #( Matt !he respondent, when purchasing some goods, deposited a cloc$ which he owned, with the vendor, as security for the price of the goods he was purchasing. It was agreed between them that the vendor would be entitled to sell the cloc$ if the respondent did not pay for the goods within one month. !he respondent later returned to the vendor’s vendor ’s shop and too$ the cloc$ without  paying the price of the goods. 2n appeal it was held that the respondent should have been convicted convicted of larceny. !he (inding 6ases In all these cases the issues are civil and not criminal ones, and are between two or more  persons claiming to be entitled to the benefits of possessory en'oyment of a chattel%the assumption being that, if there is a true owner, he cannot be found. 0ind o* poeion: 3 &orporeal and incorporeal poeion 6orporeal possession is the possession of a material ob'ect whereas incorporeal possession is the possession of anything other than a material ob'ect. In corporeal possession, the actual use or corpus possession is not essential while in the case of incorporeal possession, actual continuous use and en'oyment is essential. 6orporeal possession is commonly $nown as the possession of a right. In 1oman law, corporeal possession is called as ‘possessio coporis’ and incorporeal possession is $nown as ‘possessio 'uris’. According to some 'urists possession can only be corporeal and there is nothing li$e incorporeal possession. , Immediate and mediate poeion According to almond, 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. !he possession thus held by one man through another may be termed mediate possession while that which is ac)uired or retained directly or personally may be distinguished as immediate or direct. 3 &onc'rrent poeion It was a maim of the civil law that two persons could not be in possession of the same thing at the same thing at the same time. As a general proposition, two adverse claims of eclusive use cannot both be effectively reali*ed at the same time. -ut, those claims which are not adverse admit of concurrent or duplicate possession.

, Poeion in in Fa Fact an and Po Poeion in in La La) Possession, in fact, is a relationship between a person and a thing which he possesses. It is also $nown as de facto possession. almond says5  I possess those things which I have" If I capture a wild animal, I get possession of it# if it escapes from my control, then I lose possession. (or possession in law, there must be a manifest intent not merely to eclude the world at large from interfering with the thing in )uestion, but to do so on one’s account, and in one’s own name. hen I send my watch for repair through my servant, he has got de facto possession. Possession in law is also $nown as de 'ure possession. /aw provides protection to possession in two ways. (irst, the possessor is given certain legal rights, such as a right to continue in possession free from interference by others. econdly, the law can protect possession by prescribing criminal penalties for wrongful interference and for wrongful dispossession. -y such civil and criminal remedies the law can safeguard a man’s de facto possession. INDIAN LA.S ON POSSESSION: Speci*ic -elie* Act$ 1234:  . < of the Act deals with action for recovery of possession of specific immovable property based on title. !he essence of this section is that whoever proves that he has a better title in a person is entitled to  possession. !he title may be on the basis of ownership ownership or possession. !he purpose purpose of this section is to restrain a person from using force and to dispossess a person without his consent otherwise than in the due course of law, . = states he or any person claiming through him may by suit recover possession thereof. &ode o* &riminal Proced're$ 1254:  .>?< lays down a procedure where a dispute concerning land or water is li$ely to cause breach of peace. !he upreme 6ourt has observed that the ob'ect of the section no doubt is to prevent breach of peace and for  that end to provide speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status )uo until their rights are determined by a competent court. . ?; hen hen the the thi thing ng is in the the dan dange gerr of of per peris ishi hing ng or losi losing ng the the greater part of its value. ; hen the lawful charges of the finder in respect of the thing found amounts to two thirds of its value. Indian Limitation Act$ 1234 9Ad#ere poeion: !he law on adverse possession is contained in the Indian /imitation Act. ection = years for a suit for possession of immovable property or any

interest therein based on title. It is important to note that the starting point of limitation of > years is counted from the point of time 0when the possession of the defendants becomes adverse to the plaintiff&. ection =< is an independent section applicable to all suits for possession of immovable property based on title i.e., proprietary title as distinct from possessory title. ection =? governs suits for possession based on  possessory right. > years from the date of dispossession is the starting point of limitation under under ection =?. ection =< as well as ection =? shall be read with ection @ which bears the heading 9 0Etinguishment of  right to property&. It lays down" 0At the determination of the period hereby limited to any person for instituting the suit for possession of any  property, his right to such property shall be etinguished.&  !hat means, where a cause of action eists to file a suit for possession and if the suit is not filed within the  period of limitation prescribed, then, not only the period of limitation comes to an end, but the right based on title or possession, as the case may be, will be etinguished. !he section assists the person in possession to ac)uire prescriptive title by adverse possession. hen the title to property of the previous previous owner is etinguished, it passes on to the possessor and the possessory right gets transformed into ownership. ection @F is an eception to the well accepted rule that limitation bars only the remedy and does not etinguish the title. It lays down a rule of substantive law by declaring that after the lapse of the period, the title ceases to eist and not merely the remedy . It means that since the person who had a right to possession has allowed his right to be etinguished by his inaction, he cannot recover the property from the person in adverse possession and as a necessary corollary thereto, the person in adverse possession is enabled to hold on to his possession as against the owner not in possession. Tran*er o* Property Act$ 1778 In this whole act the concept of ‘possession’ is center. Govable properties may generally be transferred by delivery of possession. Hnder ection >B of the Act, gift of an immovable property must be made through registered document but the gift of movable property may be made only by delivery of possession. According to section B:;, actionable claim mean a claim to beneficial interest in movable property not in  possession of the claimant. ection