Simply, Possession is the status of holding something. It is one of the most important concepts in the whole range of legal history. Possession is a conception clearly easy to understand but difficult to define.
According to Prof. Salmond, ‘In the whole range of legal theory, there is no conception more difficult than that if possession.’
According to Prof. Holland, ‘The ascertainment of the nature of legal possession is, in fact, indispensable in every department of law.’
According to Prof. Bentham, ‘To define possession is to recall the image with presents itself to the mind when it is necessary to decide between to parties which is in possession of a thing and which is not. Although the legal possession cannot be defined absolutely and perfectly, but for particular purposes certain conditions and rules of legal possession can be laid down for the guidance of the courts.’
According to the Oxford Dictionary of Law, ‘Possession is an actual control of property combined with the intention to use it, rightly or wrong, as one’s own.’
According to Legal Dictionary by A.N. Saha, ‘ Possession is the visible possibility of exercising physical control over a thing, coupled with the intention to going so, either against all the world or against all the world except certain persons. There are, therefore, three requirements of possession –
- there must be actual physical control
- physical control is not possession, unless accompanied by intention
- the control and intention must be visible or evidenced by external signs.’
According to Judicial Dictionary by K.J. Aiyar, ‘Possession implies a right and a fact; the right to enjoy is annexed to both the right of property and the fact of the real intention. It involves power of control and intent to control.’
According to the famous case Soorajmal v. State of MP [1992 CrLJ 3206 at3208 (MP)], ‘Possession is not a purely legal concept but also a matter of fact. Possession, in fact, is a relationship between a person and a thing.’
Many important legal consequences follow from the acquisition and loss of possession. Possession is the prima facie evidence of the title of ownership. Transfer of the possession is one of the chief modes of transfer ownership.
The first possession of a thing which as yet belongs to no one is a good title of right. Possession is so important that a possessor may in many cases confer a good title on another even though he has none himself. It is a property is already owned, its wrongful possession is a good title for the wrongdoer as against all persons of the world except the true owner.
Elements of Possession:
There are two elements of possession. The two elements must be present in the case of possession and neither of them alone is sufficient to continue possession, these elements are –
- Corpus of possession
- Animus Possidendi
1. Corpus of possession:
By corpus is meant that there exists such physical power or physical contract of the possessor in relation to the thing possessed so as to give rise to the reasonable assumption that other people will not interfere with it. The corpus of possession can be considered under two heads –
- the relation of the possessor to the other persons, and
- the relation of the possessor to the things possessed.
2. Animus Possidendi:
An Animus possidendi is the subjective element of possession and express the intent to appropriate to oneself the exclusive use of the thing possessed. The Animus possidendi is the conscious intention of the individual to exclude other from the control of an object.
Modes of acquisition of Possession:
There are two modes of acquiring possession. These are Take and Delivery.
- Take: Possession may be acquired by taking the thing with the requisite intention and such taking may be lawful or wrongful.
- Delivery: Delivery is the voluntary relinquishment of possession by one person in favour of another.
Different Kinds of Possession:
1. Possession in Fact (de facto) and Possession in Law (de jure)
Possession in fact is actual or physical possession. It is a physical relation to the thing. Possession in law means possession in the eye of law. It means a possession which is recognized and protected by law. There is sometimes discrepancy between possession in fact and possession in law, although usually possession exists both in the fact and in law in the sane person. A person who is in possession in fact of a thing also comes to have possession in law.
2. Immediate Possession and Mediate Possession
Immediate Possession is also called direct possession and Mediate Possession is also known as indirect possession. If the relation between the possessor and the thing possessed is a direct one, it is a case of immediate possession. When the relation is through the intervention or agency of some other person, it is called mediate possession.
3. Corporeal Possession and Incorporeal Possession
Corporal Possession is the possession of a material object and Incorporeal Possession is the possession of an immaterial object. Possession of house, book or cow is the example of corporal possession. And the possession of a copyright, a patent or a trademark is the example of incorporeal possession.
4. Representative Possession
Representative Possession is that in which the owner has possession of a thing through an agent or a servant. Here legal possession is hold by some one and the real possession is hold by his representative.
5. Concurrent Possession
In the case of Concurrent Possession, the possession of a thing may be in the hands of two or more persons at the same time.
6. Derivative Possession
In the case of Derivative Possession, the holder of the thing combines in himself both the physical and mental elements which constitute legal possession. A creditor has a derivative possession of the thing pledged to him.
7. Constructive Possession
Constructive Possession is not actual possession. It is a possession in law and not possession in fact. The goods sold by me are lying in a warehouse and if I hand over the keys of the warehouse to the purchaser, it latter comes to have the constructive possession of the thing.
8. Adverse Possession
The possession of property by a person is adverse to every other person having or claiming to have a right to possession of that property by virtue of a different title.
9. Duplicate Possession Possession is a right to exclusive use and it is not possible for two persons to have independent and adverse claims to possession of the same thing at a time. The possession of a thing by one person is compatible with its possession by another only where the two claims are not mutually adverse. Claims to possession which admit of concurrent relation give rise to duplicate possession.