JAMIA MILLIA

ISLAMIA

FACULTY OF LAW

JURISPRUDENCE ASSIGNMENT
On

“POSSESSION AND ITS

KINDS”

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 Submitted to: Prof. EQBAL HUSSAIN
Submitted by: MS. SHAHISTA KHAN
Course: - BA.,L.L.B (H), Vth semester
Sec.- B

Acknowledgement

I am feeling highly elated to work on the topic “Possession and its Kinds” under the
guidance of Prof. Eqbal Hussain. I am very grateful to him for his exemplary
guidance. I would like to enlighten my readers regarding this topic and I hope I have
tried my best to pave the way for bringing more luminosity to this topic.

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 Table of contents

1. INTRODUCTION

2. DEFINITION

3. ELEMENTS OF POSSESSION

-Corpus

-Animus

4. THEORIES OF POSSESSION

-Savigny’s Theory

-Ihering’s Theory

-Salmond’s Theory

-Fredrick Pollock’s Theory

-Holmes’ Theory

5. KINDS OF POSSESSION

-Mediate and Immediate Possession

-Corporeal and Incorporeal Possession

-Possession in Law and Possession in Fact

-Adverse and Constructive Possession

6. CONCLUSION

7. BIBLIOGRAPHY

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 Introduction

Physical control of a thing by a person is a fact which is external to and independent

of Laws.When laws came into existence, this fact, known as ‘possession’ was taken
into account in the sense that certain advantages are attached to the possessors1. In
Roman laws the chief of these were2:

(a) That the possession was prima facie evidence of ownership.

(b) Possession was the basis of certain remedies, especially the possessor interdicts.
Even a wrongful possessor was protected, not only against the world at large, but
also against the true owner who dispossessed him without due process of law.

(c) Possession was an important precondition in the acquisition of ownership in

various ways.

1For the basis of possessio as Romans saw it.

2Dias, Jurisprudence Aspects of Law P. 272.

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(d) In the law of pledge, possession of the thing pledged constituted the creditor’s
security without any presumption of ownership.

These apply substantially in English law as well where there is also the advantage
that the possessor may exceptionally confer a good title on another though
he has none himself. In both systems there are other advantages besides these.

If the idea of possession had remained wedded to physical control, the position
would have been relatively simple. Difficulties arose when it became necessary,
because of the widening of legal activities, to attribute to persons who were not
actually in control some or all of the advantages that were enjoyed by the persons
actually in control. Tradition and technicality combined to complicate the matter.
Traditionally, possession was the basis in law of these advantages. They attached to
man because he had physical control, which was synonymous with possession, but
when it became necessary to give the same benefits to a man who was not in control,
‘possession’ came to be ascribed to him without the need for physical control.
Reasoning then took the form that whenever a man has these advantages, this must
be because he has possession. The consequence was to bring about a contrast
between ‘actual holding’ and ‘possession’ as well as a shift in the meaning of the
term ‘possession’. Physical control came to be distinguished from possession under
the nomenclature of ‘custody’ or ‘detention’. A person is said to be in ‘Custody’
where the holder either lacks full control or else has no animus to exclude others, for
customer examining a ring in the presence of the jeweler. It simply means to take
care and keep anything for a temporary period which belongs to another e.g., the
property of the master in the custody of the servant. Mere custody therefore is
insufficient to constitute possession. And the Roman term ‘detentio’ means full
physical control in fact which for some reason is not regarded as possession in law.
Or it means to withhold or to keep in custody the goods from a person lawfully
entitled to the possession of such goods.

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If the control falls short of what the law requires, the person controlling the thing is
said to have detention or custody merely3.

Three situations had thus become possible4.

a. A man could have physical control without possession and its advantages (in case
of a servant having physical control but immediate possession lies with the
master),

b. A man could have possession without physical control (where a person goes
outside his house everyday for work though not in physical control would still have
possession);

c. or he could have both.

Possession therefore, became a technicality of law. The separation of possession

from physical control gave it flexibility, which the administrators of the law have not
been slow to utilize in fulfilling the demands of policy and convenience. It would be
thought absurd in English law if an owner had no right to retake the purse seized
from him or to eject a trespasser who entered his house during his absence.

Sometimes the solution is sought in the doctrine that possession seized by violence
is not true possession, as was evident in Roman law, but this produces internal
conflicts with what is usually taken to be the central notion of possession, however
convenient it may be in allowing the owner to act effectively. The problem when self
help should be allowable is always a difficult one5. An understanding of the way in
which lawyers employ the term ‘possession’ has been obscured by too much

3
Prof. S.N. Dhyani, Jurisprudence- a study of Indian legal system P. 300.
4
Dias, Jurisprudence Aspects of Law P. 273.

5
Dr. Gokulesh Sharma, Intro. to Jurisprudence, P.711

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theorizing and, worse still, by the distortion of actual decision so as to fit them into
preconceived ideas6.

Salmond has pointed out two reasons for which the concept of possession is
considered as one of the difficult legal concepts which is only less than
Contract7. First, possession is an abstract notion and involves the same sort of
difficulties which we find with other abstract terms such as‘law’ and ‘rule’. Secondly,
possession is not a pure Legal concept.

One important reason for the complexity surrounding possession is that there is an
inevitable and continuing conflict between logic of the law and the demand of
convenience in particular cases.

Definition: Possession

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. I

6
Suggested by Prof. GL Williams and Dr. JWC Turner.
7
Salmond, Jurisprudence, P.266

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t 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.

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 ownership.

To a layman possession implies a relation to an object which involves exclusion of

other person from enjoyment of it.

Oxford English Dictionary says, ‘the visible possibility of exercising over a thing such
contact as attaches to lawful ownership. The detention or enjoyment 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 exercise such control as the character of the thing
permits to the exclusion of other persons.

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’.

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Savigny says, ‘intention 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’.

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 Elements of Possession

Both in English and Roman laws possession has two distinct elements. They are:

1. Physical control or power over the object possessed called corpus possessini, and

2. Intention or will to exercise that power, called animus possidendi.

Both these are necessary to constitute possession. The term corpus or physical
control meansthe power to use the thing possessed and the existence of grounds for
the expectation that the possessor’s use will not be interfered with the intent
consists the desire and the will to use thing so possessed. A person cannot be said to
be in possession of a thing unless he has animus possidendi. Markby in this context
says; ‘there are physical element and mental element in the legal conception and in
order to constitute possession in a legal sense there must exists not only the physical
power to deal with things as we like and to exclude others but also the
determination to exercise that power or control on our own behalf’.

Corpus implies two things, namely.

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i) Possessor’s physical relation to the res i.e the object; and

ii) The relation of the possessor to the rest of the world

Physical control of the thing lies at the bottom of possession. Possession must
consist in the undoubted control over a thing to the exclusion of others. Possession
must be direct, physical and actual and not merely symbolic or fictitious. However
direct contact need not be necessary with the thing although it is true that most of
the things that we possess are in direct contact with us. For example a man walking
along the road with a bundle sits down to rest and place his bundle on the ground at
a short distance from him. No one thinks of doubting that the bundle remains in his
exclusive possession not symbolically but really and actually.‘Physical contact’,
therefore, is not necessary for possession. It is rather the possibility of dealing with a
thing as we like and of excluding others. According to Holland and keeton the
question whether corpus (physical relation) exists or not depends among other
things upon the nature of the thing itself and the probability that others will not
interfere with the enjoyment of it. Thus corpus may be secured by:

a. Continued physical control of the thing;

b. Presence near the thing;

c. Exclusive knowledge of the situation of the thing,

d. Continuous possession of the thing unless it is disturbed by some physical force or

violence.

A man who leaves home and goes to neighboring town for his business still retains
possession of his land or house. So is the case with movable and domestic animals
which live in domestic state. As regard wild animal which are in the wild state are
only in our possession as long as they are in our captivity. A wild animal that has
been wounded by us mortally is not in our possession until we have laid hold of it.

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Possession therefore, lasts so long as there is any physical control over things and
ceases when that control ceases.

The second element of corpus is that the possessor must have the ability to exclude
others. There is no hard and fast rule regarding the amount of power to exclude
others. Therefore, ‘physical control’ does not mean ‘physical power’ to exclude
others. Even the weakest person may have the corpus element (physical control). It
depends more upon the general expectation that the possessor must have the ability
to exclude others. There is no hard and fast rule regarding the amount of power to
exclude others. There is a case on this point. In R v. Chissiers8, a person came to a
shop and asked for a particular a particular kind of cloth (linen). The shopkeeper
handed over some piece of cloth to him but before any sale was completed, he ran
away with it. This was held to be larceny as there was no change of possession until
he ran away. It is clear from this case that the corpus of possession is not necessary
synonymous with the physical power to exclude others.

Animus:

Another aspect is mental element without which the physical control would remain
only as a mere fact having no legal consequence. Animus is the conscious intention
of an individual to exclude others from the control of an object. The mental element
in possession may be manifested in the following ways:

a. The person holding the property need not be the owner and may exercise animus
to exclude others on behalf of the owners. A tenant or a morgagee, e.g., may
have possession no less than that of the owner himself. (it may be described as
representative possession)

8[1678] L.R. 275

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b. The animus to exclude others need not be in the interest of the possessor or on
his own behalf but in the interest of bailee or lessor. A carrier of goods, a servant or
agentor a trustee may have true possession (by having corpus as well as animus)
though he makes no claim to the thing possessed on his own behalf but on behalf of
the owner.

c. Animus to exclude others need not be specific. A person having a library has
the possession of every book in the library though he might have forgotten
the existence of some of the books.

d. The animus to exclude others need not be based on a legally enforceable claim. It
may be the result of a wrongful act. Thus if ‘B’ steals goods from ‘A’ and ‘C’ in turns
teals it from ‘B’, then although ‘A’ has a right of claim against both ‘B’ and ‘C’ yet in
spite of this ‘B’ as a prior possessor (although a thief) against ‘C’ and theoretically he
can legally recover possession of the goods from ‘C’.

e. The animus to exclude others need not be absolute. Sometimes a person may
possess a piece of land notwithstanding the fact that some other person or even the
public at large, possess a right of way over it.

Classical theories of Possession

Savigny’s theory:

Savigny was the first to give a theory on possession. He based his work on the text of
Paul. He said possession consists of two ingredients, first is corpus possessionis

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(effective control) and other being animus domini (the intention to hold as owner).
He believed since possession involved both of these, the permanent loss of one or
the other brought possession to an end. Savigny further observed that the essence
of possession is to be found in the physical power of exclusion. He says that the

corpus possesionis maybe of two kinds, one relates to the commencement of

possession and the other relates to the retention of possession. The corpus required
at the commencement of possession is the present or actual ‘physical power’ of
using the thing by oneself and excluding others from the use of it., whereas the
corpus required for the retention of possession once acquired may consists merely in
the ability to reproduce that power at will. Thus, according to Savigny, for getting the
possession of a horse, ‘I must take him by the bridal or ride upon him or have him in
my immediate presence, so that I can prevent all other persons from interfering with
me. And since detentor and possessor have same physical relation to the res, the
difference between them must be found in the mental element, animus domini.

He says possession exists when

a. the holder believes himself to be the owner of the object, or

b. having merely found it, means to keep it subject to the possibility of the owner
making his presence, or

c. Having stolen it he means to keep it against all comers. Thus, he emphasizes

intention as well as physical control to complete possession. Salmond and Pollock
also agree with Savigny on this point.

Criticism of Savigny’s Theory:

1. He used the expression ‘physical power to exclude others’ without adding any
qualifications to it. He did not mention the fact that the exclusion is subject to one
exception, i.e., the possessor cannot exclude a person who has better title over the
use of that particular material object.

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2. Salmond has rightly criticized Savigny’s definition and observes that even at the
commencement a possessor need not have physical power of excluding other
persons. It is the absence of an improbability of foreign interference that constitute
the physical element and not the existence of any power of exclusion. He further
adds that a little child and a man in death bed may have no physical power as against
a strong man and yet possess the money in their hands. He thus says that savigny
committed an error by including the element of physical power in the definition of
possession.

3. Dias has also criticized Savigny’s definition and raised the following objections:

a. That it was erroneous to assume that corpus and animus, which were only
conditions sometimes for required for acquisition and loss of possession, constitutes
possession itself. Even Paul’s text on which he relied so much also says ‘we acquire
possession by means of corpus and animus not that possession is both these
things’.

b. Savigny’s idea of animus domini, the intention to hold as owner fails to explain the
cases of the pledgee, leasee, who had possession but did not intent to hold as
owners.

c. The application of Savigny’s rigid theory of the continuation and loss of possession
reveals its weakness. Possession did sometimes continue despite loss of animus or
corpus or even both. On his theory it should follow that possession was lost if even
one or the other element was lost.

Ihering’s Theory:

He approached possession as a sociological jurist. He posed the question why Roman

law protected possession by means of interdicts. It was devised to benefit the
owners by protecting their holding of property and so placing them in the

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advantageous position of defendants in any action as to Title. He said, ‘whenever a
person looks like an owner in relation to a thing he has possession, unless possession
is denied to him by rules of law based on practical convenience. He did not
emphasize on animus like Savigny. What is necessary according to him is the
awareness of the thing which can give possession to the person. His approach was
said to be more practical than Savigny. He gave a functional definition of possession.
However gives no clear idea of possession. But was important in a sense that it
brings out the notion of policy and convenience implying that the concept may have
a changing meaning for different purposes and in different frames of law.

Salmond’s Theory:

He began by distinguishing between ‘possession in fact’ and ‘possession in law’.

Possession in fact is a relationship between a person and a thing. I possess, roughly

speaking, those things which I have: the things which I hold in my hand, the clothes
which I wear, and the objects which I have by me. To possess them is to have my
physical control. If I possess a wild animal, I get possession of it; if it escapes from my
control I lose possession of it. It can be said to have actual control. It is said that
whether possession has been acquired, lost or abandoned intention in assessing that
is highly relevant. But in certain cases it is doubtful whether in ordinary usage
possession could be ascribed to a person utterly to form any intention whatsoever: it
would be odd to describe a day old baby or a man in coma as actually (as opposed to
legally) possessing anything at all. As against this, however, we may find counter
example of possession unaccompanied by intention. I should normally be said to
possess a coin in my pocket, even if unaware of their existence and so unable to
form any intention in respect of them. We can say then that what possessor needs is
a minimum intention, intent to exclude others from whatever may be in his pocket.
Salmond further clarified that we have to ask whether the facts are such that we can
expect him to be able to enjoy the use of it without interference on the part of
others.

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Corpus possession is he thought comprised both the power to use the thing
possessed and the existence of ground for the expectation that the possessor’s use
will not be interfered with. An ‘expectation of non-interference’ is not necessary for
the continuation of possession for, as Mr. Parker, a former editor of Salmond,
pointed out; a man continues to possess his pocketbook although he is being
pursued by swifter bandits, who will interfere with his use of it in a few moments.
Nor is it necessary even for the commencement of possession for, taking an example
from Holmes, a child and a ruffian may both make for a purse lying in the road, but if
the child is the first to pick it up, it cannot be doubted that he gets possession even
though the ruffian is certain to interfere in few moments. The trouble arises from
the assumption that corpus and animus, which are only conditions for the
acquisition of possession, are possession itself. Salmond denied that possession is
one thing at its commencement and something else later on, and he therefore
declared that possession is lost when either corpus or animus is lost. Professor G L
Williams the learned editor of the 11th edition, altered the text on this point, and
said that assuming that both corpus and animus are required to initiate possession,
‘ the possession once acquired may continue even though corpus or animus, or even
both, disappear. This it is submitted, is true, but destroys the foundation of
Salmond’s contention that possession is corpus and animus.

Possession in Law 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. Law can provide protection in two
different ways. Firstly, the possessor can be given certain legal rights, such as a right
to continue in possession free from interference by others. This primary right in rem
can then be supported by various sanctioning rights in personam against those who
violate the possessors primary right; he can be given a right to recover compensation
and a right to have his possession restored to him. And obviously there will be a
need for legal criteria to determine whether a person is in possession of an object.
Indeed the protection would be of little point if legal protection ceased the moment
possession was lost. In common law possession is a relative matter.

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If A momentarily hands his wallet to B, from whom it is stolen by C, who then loses it
on D’s property, where it is then found by E, the question who has the right to
possess- will depend on who brings action against whom. Against all subsequent
parties E’s title would prevail (except against the true owner, who is not claiming in
this case), for finding confers a good Title. In an action between D and E, however, it
would seem that D would have a better right if he could show that the article was
found on property from which he had a general intention to exclude others.

In Bridges V. Hawkeworth9 decided that notes found on the floor of a shop passes
into the possession of the finder rather than the shopkeeper.In Hannah V. Peel10, a
soldier, who found a brooch in a requisitioned house, was held entitled to the
brooch as against the owner. Here, however, the owner had never been in
possession of the house. In London corp. V. Appleyard and another11,money found
on land was held to be in the possession of the occupier and not of the finder. The
concept of legal possession parts company from ordinary notion of possession.

Hence we may find that one who is not actually a possessor is nevertheless
considered as such in the eyes of the law; and vice-versa. 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. Then
unnecessary difficulties would arise in understanding decisions. Like R. v. Harding in
which the accused was held guilty of stealing a raincoat from a servant, who as
against master had mere custody of the goods. How could the servant in this case
have possession of the Raincoat, if the law used possession in an absolute sense,
9[1851] 15 Jur 1079
10[1945] KB 509
11[1963] 2 All ER 834

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then of course servant could not have had possession of it. As it is she had
possession as against the thief but not against the employer. Salmond then
distinguished between possession of physical objects which he called ‘corporeal
possession’ and possession of rights (intangible things), which he called ‘incorporeal
possession’.

Fredrick Pollock’s Theory:

Pollock said, ‘In common speech a man is said to be in possession of anything of

which he has the apparent control or from the use of which he has the apparent
power of excluding others’. He laid stress not on ‘Animus’ but ‘de facto’ control
(physical control). For Pollock a general intent seems to suffice.

Holmes’ Theory:

Holmes began promisingly by rejecting a priori philosophical idea. He also

perceived that fewer facts are needed to continue possession than to acquire it. It is
not dissimilar to that of Savigny and other Roman law jurists. He emphasized that to
gain possession a man must stand in a certain relation to the object and to the rest
of the world and must have certain intent.

Law in its early stages is fluid, and later a theory is invented as a means of
rationalizing decisions that have already been reached. It is therefore submitted that
all that is needed are rules, which determine what view should be taken of different
situations of fact. It should serve as a warning against a priori approach. Misquoting,
misinterpretation and allegations of wrong decisions have been the result of trying
to force the law as it is into preconceived pattern. Thus, no single theory can
explain possession. Analysis reveals the influence of policy and convenience behind

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these rules (which Ihering was quick to grasp). Corpus and animus are the conditions
which the law generally requires for the commencement of possession. Though, it
is an answer but by no means the only one. Each case therefore should be looked on
its own merit. The question that whether possession is a matter of fact or of law, is
not clearly provided either in English or Roman law. According to Dias, Possession
has three aspects:

a. The relation between a person and a thing is a fact,

b. The advantages attached by law to that relation is a matter of law,

c. These advantages when attributed to a person in any given type of case in a

matter of law.

Kinds of Possession

Possession may be of.may kinds. It may either be corporeal or incorporeal; mediate

or immediate, constructive, concurrent possession, adverse possession and so on.

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

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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 warehouse man who holds them on my account, or when I
send my boots to a shoemaker to be repaired. In all such cases, though the
immediate possession is in the servant, warehouse man 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 some time 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.

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

21
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.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 o fa 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. It diverse possession is
continues, 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 is 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

22
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 I 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.

Possession in Fact and Possession in Law:

Possession in law is also known as dejure 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 defacto 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.

Conclusion

“Possession" is polymorphous term which may have different meaning in different

contexts. It is impossible to work out a completely logical and precise definition of

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“possession ” uniformly applicable to all situations in the context of all statues. It is
the most difficult conception of the legal theory. Since very early times attempts
have been made to analyze and theorize it and various theories have been given
about it. The courts in their decisions on "possession” have not followed any
preconceived theory. This has made the conception a very complicated one.
Therefore, “possession ” is a subject of great academic interest. At the same time it
is of utmost practical importance.

The Indian legal system though have 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 property.

Possession exists in one who has physical control, weather rightful or wrongful, over
a corporeal thing. But it is not that there is no recognition of dejure possession in
India. A person (owner)who has no physical control over a thing will be deemed in
law to have possession of a thing in the eye of the law.

‘Means rea’ which is very much part of criminal law statutes in India unless
it explicitly exclude it, has been seen to have larger impact in conviction for different

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crimes involving possession,specially where possession of certain things is a crime,
examples being the Cases of Joint Hindu Family, Conversion, and Possession of Arms
etc.

Therefore it is submitted that meaning of possession differs according to the context

of law it is used in. Possession should be read with the intent of the lawmakers.

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 Bibliography

1. Dias, Jurisprudence

2. Prof. S. N. Dhyani, Jurisprudence – a study of Indian legal theory,

3. Salmond, Jurisprudence.

4. Dr. Gokulesh Sharma, An introduction to Jurisprudence.

5. Dr. Harris, The concept of possession in English Law, Oxford Essays on

Jurisprudence.

6. Markby, Elements of Law.

7. B.N. Mani Tripathi, Jurisprudence.

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