possession-transfer of property

7/26/2019 Possession-TRANSFER OF PROPERTY

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DEFINITION AND PHILOSOPHY OF POSSESSION:

Possession is as difficult to define as it is essential to protect. It is an abstract 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 contet, !he leicographer maybe found to give meanings such as

the following" the holding of something as ones 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 $eeping oneself

under control% as in self%possession& .

!he leicographer, 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 eercising 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 eercise such

control as the character of the thing permits, to the eclusion 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 on this principle, law may

have to protect even wrongful possession up to a certain point. (or instance, if a thief steals someones

watch, he has possession, which the law will protest against everyone ecept the owner, or some person

lawfully acting on the owners behalf. !he law of torts gives right of action in respect of the immediate and

present violation of possession. In the case of property, there may be situations when proof of title is

difficult, and transfers of property re)uire intricate formalities. In such situations, it would be un'ust todisturb 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 ecept 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 epect 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 thatis 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 eists before legal society and is therefore independent of, and, prior to the law. !he idea of

possession as involving detention is ta$en by 'urists to suggest that, unli$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 eclusion of other persons from the

en'oyment of it. !he possession of a thing is as good title against the whole world ecept 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% 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 ecluding 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 moments 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


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nor the mere power which I have without the least notion of eercising 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.&

!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 eercise 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 eclude the world at large from interfering

with the thing in )uestion, but to do so on ones account, and in ones 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 eclude all others in the world. In other words, Iresist 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 eercise that control.

&orp' poeioni:

!he ob'ective element of possession is called the corpus and consists in an eclusive physical control over

the thing. According to avigny, the corpus possessionis consists in the eistence of physical power to

eclude 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 therelation 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 power of the possessor,

II. Personal presence of the possessor,

III. hen the members of the society develop a respect for rightful claims, a person may also en'oy such

security,

I4. (or avoiding the interference of others, when a person is able to hide a thing and $eep it in secrecy,

4. A person might en'oy security and protection by the possession of other thing, for eample, by$eeping the $ey of a house, protection is afforded to the house and other things $ept there.

, -elation o* poeor to thing poeed

!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 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 eclusive 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 following

points are important5I. !he possessor must have the eclusive claim over the thing in his possession.

II. !he animus or desire to possess need not necessarily be rightful, it may even be consciously

wrongful.


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III. !he animus need not amount to a claim or an intention to use the thing as owner.

I4. !he animus need not be necessarily that of possessor himself.

4. !he animus possidendi need not be specific, it may be general. (or eample, A may intend to possess

all the boo$s on his boo$%shelf, though he might have forgotten the eistence 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 poeion:

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 eplained through the concept of seisin# a concept described as lying at the root of the

historical development of English land 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 who held an estate infreehold 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$. +owever, given that seisin was a )uestion of fact, even a person who wrongfully too$ 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 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 indetermining 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 etent will 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 eistence 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 inthe 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, 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 possession that ownership is

born or the chain of title begun. !hus, an e)ually important principle operating here is that a person may be

presumed to be the owner of a thing even when that person has no ownership in it, as, for eample, where

such a thing is found or ta$en without the authority of the true owner. uppose that - finds a gold watchwhich in law belongs to A. If - ta$es possession, -7s possession raises a presumption of ownership, which is

good against the whole world ecept the true owner who has a better title to it. !he true owner can of course


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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 ecept the true owner. /ord 6ampbell once eplained 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

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 has possession in fact and law when he has 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 ofboth of these torts depends on whether the claimant has possession or an 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, where damage is caused to a chattel through the 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 possessionis 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.

!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.

-( #( Ah)ellIn 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 floorof 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


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while it was lying on the floor of his shop before he had discovered it, and further that the owners

possession was in some way etended, at least fictionally, after he had lost the note in the accusers 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 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 $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 abicycle 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%eistent 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, the subse)uent misappropriation of the

machine on the following day amounted to larceny and the respondent should have been convicted,

1.v.1iley :supra; was followed.

-oe #( 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 laterreturned to the vendors shop and too$ the cloc$ without

paying the price of the goods. 2n appeal it was held that the respondent should have been 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* poeion:

3 &orporeal and incorporeal poeion

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 poeion

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 poeion

It was a maim of the civil law that two persons could not be in possession of the same thing at the samething at the same time. As a general proposition, two adverse claims of eclusive use cannot both be

effectively reali*ed at the same time. -ut, those claims which are not adverse admit of concurrent or

duplicate possession.


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, Poeion in Fact and Poeion in 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 eclude the world at large from

interfering with the thing in )uestion, but to do so on ones account, and in ones 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 mans 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 or possession. !he purpose of this section is to

restrain a person from using force and to dispossess a person without his consent otherwise than in the duecourse 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 the thing is in the danger of perishing or losing 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#ere poeion:

!he law on adverse possession is contained in the Indian /imitation Act. ection = years for a suit for possession of immovable property or any


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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 ection =?.

ection =< as well as ection =? shall be read with ection @ which bears the heading 9 0Etinguishment 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 etinguished.&

!hat means, where a cause of action eists 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 etinguished. !he section assists the person in possession to

ac)uire prescriptive title by adverse possession. hen the title to property of the previous owner is

etinguished, it passes on to the possessor and the possessory right gets transformed into ownership.

ection @F is an eception to the well accepted rule that limitation bars only the remedy and does not

etinguish the title. It lays down a rule of substantive law by declaring that after the lapse of the period, the

title ceases to eist and not merely the remedy . It means that since the person who had a right to possession

has allowed his right to be etinguished by his inaction, he cannot recover the property from the person inadverse 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


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6ourt states" 0It is well%recogni*ed proposition in law that mere possession however long does not

necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession

which is epressly or impliedly in denial of title of the true owner.&

&ON&L=SION

It is )uestionable whether in the twenty first century the concept of possession has survived the

significance it once occupied in the early law. !here are number of factors which have contributed to its

demise. !he first factor that may impact on the significance of possession is the human rights one. !he

Indian limitation Act, >=B, ection =< of which, tal$s about the adverse possession which means a person

suppose a tenant is in possession of a property for > years and the owner of the property does not ma$e any

interruption during this time then he loses his legal status of being its owner. !his concept of long sustained

possession giving rise to adverse possession of land is seem in violation of Article >, Protocol > of the

European 6onvention on +uman 1ight.

econd factor that may further impact on the significance of possession is Indian registration Act, >C

which aims to create an accurate and complete register of land titles, does not and cannot accommodate for a

system of rules which automatically defeat the title of the registered proprietor by long sustained possession

of land. !he ob'ective of the Indian registration Act, >C is to ma$e title to land absolute. In this respect,

the concept of adverse possession, relying on long sustained possession of the land, does not fit into a

system of land registration where ownership is ac)uired by the act of registration and not possession.

possession-transfer of property

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