JURISPRUDENCE II

JURISPRUDENTIAL ASPECTS OF OWNERSHIP AND POSSESSION

Submitted by

Shivanshu Pandey

(2012099)

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM

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 ACKNOWLEDGEMENT

I would like to express my gratitude towards our Jurisprudence professor Mr. Sreenu Sir for
giving me the opportunity to work on this topic and guiding towards completing the project in an
appropriate manner. I would like to thank everyone who has supported me and guided me
towards completing this project.

Shivanshu Pandey

(2012099)

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 INDEX:

1. INTRODUCTION:
2. THE CONCEPT OF POSSESSION:
3. POSSESSION
4. DEFINITION OF OWNERSHIP:
5. OWNERSHIP UNDER ANCIENT HINDU LAW
6. MODERN LAW AND OWNERSHIP
7. SUBJECT MATTER OF OWNERSHIP
8. OWNERSHIP VS. POSSESSION
9. CONCLUSION
10. BIBLIOGRAPHY

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 RESEARCH METHODOLOGY

Aim of Project
This project aims at to study of jurisprudential aspects of ownership and possession.

Scope of the Project:

The scope of this project is limited to the detailed reference to the ownership and possession.

Methodology:
The project is purely based on doctrinal research with analytic approach. The sources include
the textbooks, magazines, newspaper articles, web sites and other secondary sources and
published works on this issue.

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JURISPRUDENTIAL ASPECTS OF OWNERSHIP AND POSSESSION

1. INTRODUCTION:

As with most words in the English language, the word possession has a variety of uses
and a variety of meanings. Reference to any reasonably comprehensive English dictionary
provides sufficient illustration. Possession is given as: the action or fact of possessing
something or of being possessed. Depending on the context, the lexicographer may be found to
give meanings such as the following: the holding of something as ones own: actual occupancy
as distinguished from ownership; a territory subject 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 keeping
oneself under control- as in self-possession.1

It may be objected, however, that it is the concept of possession in the law that is of
interest here, and not the varied used to which the word possession may be put in the English
language. It may be, and has been, urged that there is a unitary concept of possession so far as
the law is concerned, and that the analysis and explanation of that concept is the proper function
of jurisprudence. It is not difficult to demonstrate, however, that the search for a unitary concept
of possession in the law is one doomed.

2. THE CONCEPT OF POSSESSION:

The concept of is one of the fundamental juristic concepts common to all systems of law.
This concept has been discussed by most of the writers before that of possession. However, it is
not the right method. The idea of possession came first in the minds of people and it was later on
that the idea of ownership came into existence. Ownership is a complex juristic concept which
has its origin in the Ancient Roman Law. In Roman law ownership and possession were
respectively termed as dominium and possession. The term dominium denotes absolute right
to a thing while possession implied only physical control over it. They gave more importance to
ownership because in their opinion it is more important to have absolute right over a thing than
to have physical control over it. In English law the concept of ownership developed much later
than possession. The earlier law gave importance to possession on the misconception that

1
The Shorter Oxford English Dictionary (3rd dc.) vol. Ii, 1550.

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possession includes within its ownership as well. Holds worth observed that the English law
accepted the concept of ownership as an absolute right through gradual the gradual development
in the law of possession. The concept of ownership consists of a number of claims such as
liberty, power and immunity in regard to the thing owned. Ownership is thus a sum total of
possession, disposition and destruction which includes the right to enjoy property by the owner.
The owner has to side by side abide by the rules and regulation of the country.

3. POSSESSION

Salmond on Possession

Salmond said that in the whole of legal theory there is no conception more difficult than
that of possession. The legal consequences which flow from the acquisition and loss of
possession are many and serious. Possession, for example, is evidence of ownership; the
possessor of a thing is presumed to be the owner of it, and may put all other claimants to proof of
their title. The transfer of possession is one of the chief methods of transferring ownership.

Salmond also said that possession is of such efficacy that a possessor may in many cases
confer a good title on another, even though he has none himself.

He also made a distinction between possession in fact and possession in law.

1. Possession may and usually does exist both in fact and in law. The law recognizes as
possession all that is such in fact, and nothing that is not such in fact, unless there is some
special reason to the contrary.
2. Possession may exist in fact but not in law. Thus the possession by a servant of his
masters property is for some purposes not recognized as such by the law, and he is then
said to have detention or custody rather than possession.
3. Possession may exist in law but not in fact; that is to say, for some special reason the law
attributed the advantages and results of possession to someone who as a matter of fact
does not possess. The possession thus fictitiously attributed to him is termed constructive.

In Roman law, possession in fact is called possessio naturalis and possession in law
as possessio civilis.

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Corporeal and Incorporeal Possession

Corporeal Possession is the possession of a material object and Incorporeal Possession is

the possession of anything other than a material object.

Corporeal possession is termed in Roman law possessio corporis. Incorporeal possession

is distinguished as possessio juris, the possession of a right, just as incorporeal ownership is the
ownership of a right.

Salmond further said that corporeal possession is clearly some form of continuing
relation between a person and a material object. It is equally clear that it is a relation of fact and
not one of right.

What, then, is the exact nature of that continuing de facto relation between a person and a
thing, which is known as possession?

According to Salmond, the possession of a material object is the continuing exercise of a

claim to the exclusive use of it.

It involves two distinct elements, one of which is mental or subjective, the other physical
or objective.

The mental element comprises of the intention of the possessor with respect to the thing
possessed, while the physical element comprises of the external facts in which this intention has
realised, embodied, or fulfilled itself.

The Romans called the mental element as animus and the subject element as corpus. The
mental or subjective element is also called as animus possidendi, animus sibi habendi, or animus
domini.

The Animus Possidendi - The intent necessary to constitute possession is the intent to
appropriate to oneself the exclusive use of the thing possessed. It is an exclusive claim to a
material object. Salmond made following observations in this regard.

1. It is not necessarily a claim of right.

2. The claim of the possessor must be exclusive.

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 3. The animus possidendi need not amount to a claim of intent to use the thing as owner.
4. The animus possidendi need not be a claim on ones own behalf.
5. The animus possidendi need not be specific, but may be merely general. It does not
necessarily involve any continuous or present knowledge of the particular thing
possessed or of the possessors relation to it.

The Corpus Possessions The claim of the possessor must be effectively realized in the
facts; that is to say, it must be actually and continuously exercised. The corpus
possessionis consists in nothing more than the continuing exclusion of alien interference,
coupled with ability to use the thing oneself at will. Actual use of it is not essential.

Immediate and Mediate Possession

The possession held by one man through another may be termed mediate, while that
which is acquired or retained directly or personally may be distinguished as immediate or direct.

There are three kinds of Mediate Possession:

1. Possession that is acquired through an agent or servant who claims no interest of his own.
2. The direct possession is in one who holds both on the actual possessors account and on
his own, but who recognizes the actual possessors superior right to obtain from him the
direct possession whenever he choose to demand it.
3. The immediate possession is in a person who claims it for him 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.

Concurrent or Duplicate Possession

1. Mediate and Immediate Possession co-exists in respect of the same thing as already
explained above.
2. Two or more persons may possess the same thing in common, just as they may own it in
common. This also called as compossessio.
3. Corporeal and Incorporeal Possession may co-exist in respect of the same material object,
just as corporeal and incorporeal ownership may.

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Incorporeal Possession

In Incorporeal Possession as well, the same two elements required, namely theanimus and
the corpus. In the case of incorporeal things, continuing non-use is inconsistent with possession,
though in the case of corporeal things it is consistent with it.

Incorporeal possession is commonly called the possession of a right, and corporeal

possession is distinguished from it as the possession of a thing. The distinction between
corporeal and incorporeal possession is clearly analogous to that between corporeal and
incorporeal ownership.

Corporeal possession, like corporeal ownership, is that of a thing; while incorporeal

possession, like incorporeal ownership, is that of a right. In essence, therefore, the two forms of
possession are identical, just as the two forms of ownership are.

Hence, Possession in its full compass and generic application means the continuing
exercise of any claim or right

Paton on Possession

Paton said that even though Possession is a concept of law still it lacks a uniform
approach by the jurists. Some jurists make a distinction between legal and lawful possession.
Possession of a thief is legal, but not lawful. In some cases, where possession in the popular
sense is meant, it is easy to use some such term as physical control. Possession is also regarded
as prima facie evidence of Ownership.

According to Paton, for English law there is no need to talk of mediate and immediate
possession. The Bailee and the tenant clearly have full possession: Salmond's analysis may be
necessary for some other systems of law, but it is not needed in English law.

Oliver Wendell Holmes and Von Savigny on Possession

Savigny with other German thinkers (including Kant and Hegel) argued that possession,
in the eyes of the law, requires that the person claiming possession intend to hold the
property in question as an owner rather than recognize the superior title of another person,

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so that in providing possessory remedies to lessees, Bailees, and others who lack such
intentions, modem law sacrifices principle to convenience.

To this Holmes responded that he cannot see what is left of a principle which avows
itself inconsistent with convenience and the actual course of legislation. The first call of a theory
of law is that it should fit the facts. It must explain the observed course of legislation. And as it is
pretty certain that men will make laws which seem to them convenient without troubling
themselves very much what principles are encountered by their legislation, a principle which
defies convenience is likely to wait some time before it finds itself permanently realized2.

Holmes also criticized Savigny and other German theorists by saying that they have
known no other system than the Roman. In his works, Holmes proved that the Anglo-American
Law of Possession derived not from Roman law, but rather from pre-Roman German law.

One of Holmes's criticisms of the German theorists, signally including Savigny, is that
they "have known no other system than the Roman, 'and he sets out to prove that the Anglo-
American law of possession derives not from Roman law, but rather from pre- Roman German
law.

4. DEFINITION OF OWNERSHIP:

Jurists have defined ownership in different ways. All of them accept the right of ownership as
the complete or supreme right that can be exercised over anything. Thus, according to Hibbert
ownership includes four kinds of rights within itself.
1. Right to use a thing
2. Right to exclude others from using the thing
3. Disposing of the thing
4. Right to destroy it.

5. OWNERSHIP UNDER ANCIENT HINDU LAW

Ancient Hindu jurist have said much about the means of acquiring ownership.
Manu declared that there are seven virtuous means of acquisition of wealth viz.

2
Holland on Jurisprudence at p.226

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inheritance, gain, purchase, conquest, application, employment of the work and of and
acceptance of gifts from proper persons. Gautama gives almost the same seven ways of
acquiring ownership but he puts some modification to the list given by Manu.

6. MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring ownership which may be broadly
classed under two heads;
1. Original mode
2. Derivative mode

7. SUBJECT MATTER OF OWNERSHIP

Normally ownership implies the following:
1. The right to manage
2. The right to posses
3. The right to manage
4. The right to capital
5. The right to the income.

Salmond on Ownership
Ownership denotes the relationship between a person and an object forming the subject-
matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being
good against the entire world and not merely against specific persons3.

Incidence of Ownership
1. The owner has the right to possess things that he owns.
2. The owner normally has a right to use or enjoy the thing owned, the right to manage it, the
right to decide how it shall be used and the right of income from it. However, Right to possess is
not a right strictu sensu because such rights are in fact liberties as the owner has no duty towards

3
Supra note.2 at p. 325

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others and he can use it in any way he likes and nobody can interfere with the enjoyment of his
ownership.
3. The owner has the right to consume, destroy or alienate the things. The right to consume and
destroy is again straight forward liberties. The right to alienate i.e. the right to transfer the
existing rights involves the existence of power.
4. Ownership has the characteristic of being indeterminate in duration and Ownership has
a residuary character. Salmond contrasted the rights of the owner with the lesser rights of the
possessor and encumbrance by stating that the owner's rights are indeterminate and residuary
in a way in which these other rights are not.

Austins Concept of Ownership

Ownership or Property may be described accurately enough, in the following manner:
the right to use or deal with some given subject, in a manner, or to an extent, which, though
is not unlimited, is indefinite.
Now in this description it is necessarily implied, that the law will protect or relieve the
owner against every disturbance of his right on the part of any other person. Changing the
expression, all other persons are bound to forbear from acts which would prevent or hinder the
enjoyment or exercise of the right.
Austin further said that Ownership or Property, is, therefore, a species of Jus in rem.
For ownership is a right residing in a person, over or to a person or thing, and availing
against other persons universally or generally. It is a right implying and exclusively resting
upon obligations which are at once universal and negative.
Criticism against Austins definition:

Austins definition has been criticized by many writers. They argue that it is fallacious to
think that ownership is a single right. In fact, it is a bundle of rights including the right of
enjoyment by the user. Even if the owner gives away his few rights in ownership, the residue are
still owned by him. For example, mortgage of property by the owner.

Dias on Ownership
After referring to the views of Salmond and other Jurists, Dias came to the conclusion
that a person is owner of a thing when his interest will outlast the interests of other persons

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in the same thing. This is substantially the conclusion reached by many modern writers, who
have variously described ownership as the residuary, the ultimate, or the most enduring
interest.
According to Dias, an owner may be divested of his claims, etc., to such an extent that he
may be left with no immediate practical benefit. He remains owner nonetheless. This is
because his interest in the thing, which is ownership, will outlast that of other persons, or if he is
not presently exercising any of his claims, etc., these will revive as soon as those vested in other
persons have come to an end.
In the case of land and chattels, if the owner is not in possession, ownership amounts to
a better right to obtain the possession than that of the defendant. It is 'better' in that it lasts
longer. It is apparent that the above view of Dias substantially agrees with that of Salmond.
According to Dias it is the outlasting interest and according to Salmond, ownership has the
characteristic of being indeterminate in duration and residuary in nature 4

8. OWNERSHIP VS. POSSESSION

Although the two terms are often confused, possession is not the same as ownership. No
legal rule states that "possession is nine-tenths of the law," but this phrase is often used to
suggest that someone who possesses an object is most likely its owner. Likewise, people often
speak of the things they own, such as clothes and dishes, as their possessions. However, the
owner of an object may not always possess the object. For example, an owner of a car could lend
it to someone else to drive. That driver would then possess the car. However, the owner does not
give up ownership simply by lending the car to someone else.5
The myriad distinctions between possession and ownership, and the many nuances of possession,
are complicated even for attorneys and judges. To avoid confusion over exactly what is meant by
possession, the word is frequently modified by adding a term describing the type of possession.
For example, possession may be actual, adverse, conscious, constructive, exclusive, illegal, joint,
legal, physical, sole, superficial, or any one of several other types. Many times these modifiers
are combined, as in "joint constructive possession." All these different kinds of possession,
however, originate from what the law calls "actual possession."

4
(1878) 4 Ex D 5
5
http://legal-dictionary.thefreedictionary.com/Possession+versus+Ownership

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 9. CONCLUSION
While analyzing this paper the research has come to certain conclusions. Those are as follows,
Ownership consists of an innumerable number of claims, liberties, powers and
immunities with regard to the thing owned.
According to some jurist a person owns a house means he has just those claims in
respect of it. According to them there is no point in having the concept of ownership
without these claims. But many jurists have disagreed on this idea of ownership.
According to them ownership means a bundle of right.
In fact this right includes complete control over a property, this gives the owner a power
to alienate and even destroy the property.
In ancient Indian concept the property was considered to be of two kinds. Jangama
(movable) and sthavara (immovable). In the laws relating to the purchase and sale both
are considered to be Panya (salable property). There it was said that a person who is the
owner of a property, whether movable and immovable, is entitled to transfer his
ownership to another person through sale. In ancient time, which is mostly found in
smrities is that they used to consider sale as a valid mode of transfer like present time. In
fact in India the right of swamitva (ownership) of property as comprising of title to the
property with bhakti or bhoga (possession). In Indian concept of ownership the researcher
found out that there was a development of & criminal jurisprudence as he has found out
that in case of transfer without ownership or fraudulent transfer there was instances
where the person was fined. In ancient time property was largely held by major holders
like taluk, inam, watan, jagir, and muafi. In India the concept of co-ownership is still well
recognized. According to Indian laws co-owner is not allowed to cause prejudice to other
co-sharers by putting up a substantial construction during the pendency of a suit. But in
case of dwelling house if the co-owner is not in actual possession of the property, then it
cannot be transferred. Therefore, it may be concluded that In case of co-owner in India
there is no absolute ownership.
In western concept there are both corporeal and incorporeal properties. There ownership
comprises of benefits and burdens. In western concept of ownership the owner may be divested
of his claims to such extent that he may be left with no immediate practical benefit. Though a

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person who holds any property without owner's concept was considered to be a trespasser. Also
in western concept of ownership in some cases there can be a transfer of property without a valid
execution of deed.
Therefore Indian and Western concept of ownership can be distinguished in certain points. In
India we had concept of movable and immovable property from the ancient time. In western
countries they had corporeal and incorporeal property. Though subsequently there has been
recognition for both these concepts in other places. But in India there was no valid transfer till
today without a proper executed deed, even in Indian concept there has been no recognition of a
valid transfer of ownership in case of a settlement deed. But in certain cases in western countries
ownership could have been transferred without proper execution of a deed. Also in ancient
Indian concept there was a presence of a limited amount of punishment for a fraudulent transfer.
Western countries are now adopting this concept of punishment also. The researcher thinks that
there should have been a development of new jurisprudence where there is presence of both
western and Indian concept of ownership.
Lastly the researcher thinks that with the recognition of intellectual property right there has been
a requirement of redefining the concept of ownership because in case of intellectual property the
idea of assignment is a sort of transfer of limited ownership, and also the concept of moral right
thus required to be revised, as it can be transferred only in certain cases.

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10. BIBLIOGRAPHY
References
Books
1. Salmond, Jurisprudence, 4th Edn. Butterworths Publications, New Delhi.
2. V.D. Mahajan, Legal Theory and Justice, Orient Longman Pub., New Delhi (1991).
3. Holland, Jurisprudence, 4th edn. Sweet & Maxwell Publishers (London).
4. Rama Jois, Legal and Constituional History, Universal Law Publishers, New Delhi
(1986).
Articles
1. Kunal Chatterjee, Indian Concept of ownership, AIR 2004 Journal 222
2. Ownership, Great Books.
3. Articles on Jurisprudential concept of property, Course material on Property LawI,
National Law Institute University, Bhopal.
Statutes
1. Constitution of India
2. Transfer of Property Act, 1882
3. Sale of Goods Act, 1930
Websites
1. www.manupatra.com
2. www.courtnic.nic.in
3. www.lawmin.nic.in
4. www.infochangenews.com

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