POSSESION

JURISPRUDENCE ASSIGNMENT

Submitted by
ANUSHREE BELWARIAR – 18010324023
MAHEK AGARWAL: 18010324073
MAYANK SHARMA - 18010324077

Course: BBA LLB

Division: ‘C’
Semester: 3

Symbiosis Law School, Hyderabad

In
September 2019

Under the guidance of

MR.GANESH
Faculty-in-charge
 POSSESSION

The concept of possession has grown through many centuries. As the civilization escalated
and started to progress, people started taking possession of certain objects and thus the idea
began to grow. The struggle of the above mentioned practice was so harsh that people started
to take things and considered it as their own. They began to take pride in the possession of
those things and were not prepared to allow outsiders to interfere with them. They were
determined to exercise continuous control to the exclusion of all others. From a humble
beginning, the concept of possession and ownership began to grow and much progress has
been made in this connection.

Difference between jus possessionis and jus possidendi:

Jus possessionis is the right of possession. It means the right of the possessor to continue to
possess. It is a right to remain in possession except against a person who has a better life.
Even a robber has the right of possession and only the true owner can interfere with hiss
possession. If someone gives something to their servant which is to be kept in custody on the
owner’s behalf, he has the physical possession of the thing be he has no legal right to it. He
has the jus possessions and not jus possidendi. Jus possidendi means the right to possess. This
is due to the fact that in the above example the servant has merely the corpus of possession
and not the animus or the intention of exercising control over it.

Possession in fact and possession in law:

The concept of possession is divided into two categories which are possession in fact and
possession in law. Possession of fact means actual possession. It refers to something tangible
or physical. It is a physical relation to the thing. Possession in law means possession in the
eye of law. It means possession which is recognised and protected by law. There is
sometimes a discrepancy between possession in fact and possession in law, although usually,
possession exists both inn fact and in law in the same person. A person who is in de facto
possession of a thing, also comes to have de jurre possession.

But there are times when possession may exist in fact and not in law. If a servant holds
certain things in his custody on behalf of the master, he has the actual possession of those
things but in the eyes of the law, the possession still lies with the master. At times there are
cases where possession lies in law but no in fact. This is called constructive possession. For
example, a tenant may be occupying a certain building but the landlord has the constructive
possession of the same. The same is the case with in the examples of Bailee, agents, pledgee
etc.

The fundamental element in possession in fact and possession in law is the same. The
element is the possibility of excluding every person other than the possessor from thr use or
control of the thing. According to Keeton. “Possession in law and possession in fact are not
invariably coterminous, although very frequently they are.”

The Roman lawyers made a distinction between possession in fact as possession naturalis,
and possession in law as possession civilis. In consequence of this divergence, pardy
intentional and avowed and partly accidental and avowed, between the law and the fact f
possession, it is impossible that any abstract theory should completely harmonise with the
detailed rules to be found in a legal system which has enveloped with absolute logical rigout,
undistributed by historical accidents and unaffected by any of those special considerations
which in all parts of the law prevent the inflexible and consistent recognition of general
principles.

Elements of possession

Corpus of possession: By corpus is implied a compelling physical control of the object.

Savigny clarifying it says: the physical intensity of managing the subject promptly and of
barring any remote office over it is the factum which must exist in each obtaining of
possession.This quick physical power isn’t important to proceed with the possession, as was
required to offer ascent to it, and proceeding with possession depends rather on
the consistent intensity of duplicating the first relationship freely. For this reason, we don’t
lose possession by unimportant non-appearance structure of the subject, which we have
once appropriated to ourselves, in spite of the fact that the physical connection in which we
currently remain to it, would not have gotten the job done in the primary case to get
possession.

At the end of the day, as per Savigny, the quintessence of possession is to be found in the
physical intensity of prohibition. He sees that the “corpus possessions” might be of two
sorts, proportionately as it identifies with the initiation or maintenance of possession.

The corpus required initiation of possession in the present or real physical intensity of
utilizing the thing oneself and of barring every single other individual from the utilization of
it, while the “corpus” required for the maintenance of possession once procured may
comprise simply in the capacity to duplicate this power voluntarily.

Consequently, for instance, I get possession of a pony when I take him by the harness or ride
upon him or have him in my quick nearness, with the goal that I can anticipate all different
people from meddling with me. However, no such prompt physical connection is important to
hold the possession so required. I can put the horse in the stable or let it eat in the field but
then be in possession of him, in a much as I can take him by the harness when I wish and use
him to the avoidance of others.

Animus Possidendi

Animus basically means the mental element or the aim to hold the possession as proprietor
against all others. In simple words, it is a cognizant aim to avoid others from the objective
aim of possession. Without the mental element, there can be no possession.

Savigny’s hypothesis discloses with respect as to why the occupant, the borrower, and the
operator had no possession “of the articles, objects so let, loaned or endowed to manage
them” in Roman law.

They had no “animus domini” as they didn’t plan to hold the object in their very own right.
Be that as it may, Savigny’s hypothesis neglects to clarify those cases where Roman law had
given the possessory right “the privilege to get or recuperate possession” to the people who
were not the proprietors of the item or property.

SAVIGNY’S THEORY OF POSSESION

Savigny has defined possession as “intention coupled with the physical power to exclude
others from the use of material object”. He also recognizes the importance of protection of
person to be a branch of protection of possession.
Savigny mainly pointed the two main elements of possession which are , corpus possessionis
, effective control and animus domini , which is the intention to hold as the owner. These
elements are much of importance under possession that a permanent loss if any of one of
them can lead to the end of the complete possession theory. But the temporary loss of one did
not affect the possession unless it was reproducible at will , therefore he could not escape ,
however from cases in which possession was continued although one was lost and it was
explained by the theory of temporary loss and possession. The proviso was essential to his
thesis that possession “was” both corpus and animus.
Firstly, Savigny had overlooked the sudden drift in meaning of the word “possession” , to
which there has been some attention drawn and also he seems to have fallen into fallacy that
words must correspond with the factual counterpart. Hence , his desire is to find such a
content for possession. He has also referred the content on the utterances of one jurist Paul. In
any case , it was erroneous to come to an assumption that the only two conditions , corpus
and animus which were in use for the acquisition and loss of possession , constituted
possession itself. Savigny’s concept of animus domini , which indicates the intention to hold
the owner has failed to explain the cases of pledge , emphyteuta , sequester and precario
tenens who had the possession but did not intend to hold as owners.
Thus in the words of Savigny in order to obtain the possession of a horse he states “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 i.e., animus domini”. He further specifies on the intention as well the physical ability
to control in order to constitute and complete possession.
The indication to his theory was that possession was lost when one or the other was lost.
Savigny’s qualification which was that only temporary loss of one ingredient did not matter
provided there was an ability to reproduce it at will which also proved to be inconsistent with
the texts. But it does not specify and elaborate on the possession of a fugitive slave despite
owners inability to reproduce the corpus element at will nor the continued possession by a
madman. The theory of Savigns directly bears a relation with the Roman law.

METHODS OF TRANSFER OF POSSESION

The three ways in which the transfer of possession takes place are by taking, by delivery and
by operation of law.
1) The acquisition/transfer of possession by taking , it it usually done without any means
of consent by the previous possessor. The two ways are wrongful possession and
rightful taking of possession. An example of rightful taking of possession is a
shopkeeper who is entitled to take some money from a customer. Whereas if a thief
resorts to stealing from an individual, his acquisition is wrongful. But in cases where
there is a capture of an object like wild animal that doesn’t belong to anybody, herein
will be termed as original possession.
2) The second way of acquisition of possession is by delivery or by tradition , wherein a
thing acquired with contents and cooperation of the previous possessor , wherein
delivery is of 2 kinds which are actual and constructive. Where the delivery is in
immediate possession to the transferee is called actual delivery. The division of actual
into 2 components are , first where holder retains mediate possession and the other is
where he does not retain any mediate possession. For instance, if I lend sell the same,
I don’t retain any mediate possession. Constructive delivery is where the thing cannot
actually be transferred by owner to the purchaser or by the transferor to the transferee.
The division of this delivery is into 3 components which are tradition brevi manu ,
constitution possessorium , and attornment in case of tradition brevi manu ,
possession is surrendered to one who has already immediate possession. In such a
case , animus is the only one which is transferred as the corpus of possession is
already with the transferee. It is tradition brevi manu when one has lent the book to
 somebody and sells the same book to him. When only mediate possession is
transferred and there is retainment of immediate possession, it can be termed as
Constitution possessorium For example , I may sell my car to someone but I may
retain the physical possession inspite of payment of price to me. In such a case animus
is lost and I keep the car on behalf of the purchaser. Whenever there is a change only
in Animus alone and the corpus of possession remains the same is all under the
constructive delivery.
3) During transfer of possession by operation of law , as a result possession changes
hands. If there is a death of any person the legal heirs and representatives of that
person takes over the charge of possession of his property.

KINDS OF POSSESION
1) CORPOREAL POSSESION
Objects which prove to have a physical/materialistic manifestation also which our
senses can perceive are corporeal possession. Hence it is the exercise of any claim on
the utilization of material or tangible objects. For instance car , box , pen , house etc

2) INCORPOREAL POSSESION
The objects which do not have any physical/materialistic manifestation and the senses
cannot perceive them are incorporeal objects. For example , trademark , goodwill ,
copyright , etc.

3) MEDIATE POSSESION
The possession takes place through middleman like an agent , friend , servant which is
also called as indirect possession. For example , if a landlord lets out his house to a
tenant. The landlord decides the terms on which the tenant is bound to hand over the
house. So landlord is entitled to the mediate possession of the house through the
tenant.

4) IMMEDIATE POSSESION
When the possession himself posses the property or thing it is termed as immediate or
direct possession. For instance , the buying of pencil from shop for myself , the pencil
is in an immediate possession of mine.

5) CONSTRUCTIVE POSSESION
When there exists an authority over any object without actually having a possession
of that material. Constructive possession is not in possession in fact but a possession
in law. For instance , the delivery of my key by my car driver , so he was in the
constructive possession of it until he delivered the key.

6) ADVERSE POSSESION
The possession of property or object without imposing any legal title for a certain
time period is sufficient enough to acknowledge him as the legal owner. In an
informal way , it is defined as “squatter’s rights”. There is a requisite to prove the
intention to keep it absolutely for oneself. A mere claim to the property or liabilities
 being paid off without any possession is not sufficient. For instance, continuous
utilization of private land or agricultural field of an unused piece of land.

7) DE FACTO POSSESION
There is no legal recognition for the object but there is possession which exists in
reality sense. For instance, a common law spouse can be considered as a de facto wife
or de facto husband though they are not lawfully married yet they live like a married
couple.

8) DE JURE POSSESION
De jure is a Latin word which means “In law “: lawful , matter of law or legitimate in
nature. The possessions of De jure are legally indentified irrespective of whether they
have their existence in reality or no. It can also be called as juridical possession which
means possession in eyes of law. For example , when it is a case of De jure possession
an owner of house could cease a man to live in a house but without intending and to
abandon it for good.

DIFFERENCE BETWEEN POSSESION AND OWNERSHIP

 Ownership includes the absolute rights and legitimate claims to an object. It

implies the ownership of an object by the owner. But possession is more the
physical control of an object. The possessor has a better claim to the title of
the object than anyone, except the owner himself.
 Ownership is the right of the owner against the world indefinite in point of the
user, unrestricted in point of disposition or destroying and unlimited in point
of duration over a thing. But possession is the continuous exercise of a claim
to exclusively possess and use the object/thing.
 The transfer of ownership is a technical and long process and involves
conveyance. But Transfer of possession is fairly easier and less technical.

Ownership is essentially a bundle of rights, all rights in rem. But possession It is not a right,
just a prima facie