INDIAN INSTITUTE OF LEGAL STUDIES
PROJECT ON
JURISPRUDENCE
TOPIC: ELEMENTS OF POSSESSION
GUIDED BY: Mr. SOURYADEEP RAKSHIT
ASST. PROF IN LAW
PRESENTED BY: ADITYA THAKUR
COURSE: B.Com LLB
SEMESTER : VII
ROLL NO. 18
REGISTRATION NO. 1021606040007
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JURISPRUDENSES FOR LAW COLLEGES, Lecture notes of Law of Evidence
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INDIAN INSTITUTE OF LEGAL STUDIES
PROJECT ON
JURISPRUDENCE
TOPIC: ELEMENTS OF POSSESSION
GUIDED BY: Mr. SOURYADEEP RAKSHIT
ASST. PROF IN LAW
PRESENTED BY: ADITYA THAKUR
COURSE: B.Com LLB
SEMESTER : VII
ROLL NO. 18
REGISTRATION NO. 1021606040007
ACKNOWLEDGEMENT
With profound gratitude and sense of indebtedness I place on record my sincerest thanks to Mr. Souryadeep Rakshit, Asst. Prof in law , Indian Institute of Legal Studies, for his invaluable guidance, sound advice and affectionate attitude during the course of my studies.
I have no hesitation in saying that she molded raw clay into whatever I am through his incessant efforts and keen interest shown throughout my academic pursuit. It is due to his patient guidance that I have been able to complete the task.
I would also thank the Indian institute of Legal Studies Library for the wealth of information therein. I also express my regards to the Library staff for cooperating and making available the books for this project research paper.
Finally, I thank my beloved parents for supporting me morally and guiding me throughout the project work.
Date: 1st Sept, 2018 Name: Aditya Thakur
SYNOPSIS
STATEMENT OF PROBLEM
This project basically deals with the elements of possession.
RESEARCH OBJECTIVES
- To discuss the meaning of possession.
- To discuss elements of possession.
RESEARCH QUESTIONS
- What do you mean by possession?
- What are the elements of possession?
RESEARCH METHOD
Doctrinal methods are used for this project and also library work and research.
SOURCES OF DATA
Secondary sources:
BOOKS:
WEBSITES
CHAPTER 2
INTRODUCTION
MEANING OF POSSESSION
show either title or better possessory right. For example, a thief who steals may watch has a possession which the law will protect against everyone except myself or some person acting on my behalf. Not forcibly is a wrongful act though the possession of the person turns out to be wrongful. The defendant cannot take the defence that some other person than the other person dispossessed, had a title to the land2 *. The remedy to recover possession is called “possessory remedy” as provided by the statues'5. Accroding to HENRY MAINE, possession means that contact with an object which involves the exclusion of other person from the enjoyment of it. Possession denotes physical contact resumable at will. In other words, it does not signify mere physical detention but physical coupled with the intention to hold the thing detained as one’s own4.
CHAPTER 3
ELEMENTS OF POSSESSION
To constitute possession it is essential that following elements must be present, viz.
- “animus possidendi ”, i.e. intention to possess and
- “corpus possessions ” i.e. the thing is in actual possession. But these elements but must be present in the case of possession and neither of them alone is sufficient to constitute possession. Corpus is the effective realization in fact of the claim of the possessor while animus is the subjective element. SAVINGNY was of the view that both the elements i.e. corpus and animus must be there to constitute possession. POSSESSION IN FACT Possession is divided into two categories, viz.
- Possession in fact, and
- Possession in law Possession in law means possession in the eye of law. It means a possession which is recognized and protected by law. There is sometimes a discrepancy between possession in fact ‘and possession in law, although usually possession exists both in fact and in law in the same person. A person who is in “de facto” possession of a thing also comes to have “de jure” possession. Of possession in fact and in law there may be three situations viz.,
- Possession in fact as well as hi law
- Possession in fact not in law
- Possession in law and not in fact The first type of possession is the perfect possession while the second type of possession is not called as the possession actually simply a custody as the possession of servant over 757
possession, the distinctive feature is the desire of the person whether he desires to retain possession or not. POSSESSION IN LAW Possession in law is also termed as “de jure " possession. It has already been stated that the law protects possession for two obvious reasons, namely, i) By conferring certain legal rights on the possessor; ii) By penalizing the persons who interfere with the possession os a person or by making him pay damages to the possessor. Whenever a person brings a suit for possession the first thing that the court ascertains is whether the plaintiff was formerly in real possession of the thing in dispute. It is true that in most of the actual or factual possession testifies legal possession yet there are many situations when a person does not have possession in law although he is in actual possession of the object. In the legal sense, possession is used as a relative term. The law is generally not concerned with the question as to who has the best title, but it is concerned as to which of the parties before it has a better title. A few cases may be cited in support of this content.
CHAPTER 4
ELEMENTS OF POSSESSION
According to MARKBY, possession is ""the determination to exercise physical control over a thing on one’s own behalf coupled with the capacity to do so 1 Section - 145 Cr.P.C. 2 The Transfer of Property Act, 1882; The Specific Relief Act, 1963, The Indian Contract Act, 1872, etc. 779 Justice HOLME defines possession as "to gain possession, a man must stand in a certain physical relation to the object and to the rest of the world and must have a certain intent According to KANT. “there must he the empirical fact of taking possession conjoined with the will to have an external object as one \s own. " According to ZACHARIAL, “possession is that relation between a subject matter and man which intimates that the man has the animus domine and that he is also able to put into execution ’’. According to SALMOND, "the possession of a material object is the continuing exercise of a claim to the exclusive use of it". Again, "it is a continuing 'defacto' relation between person and a thing which is known as possession". Actually possession is a relation of fact and not one of right. It may be and commonly is, title of right, but it is not right itself. Possession is the defacto relation between the possessor and the thing possessed. SALMOND, however, does not think that "animus’’ should always be present in legal possession. LIGPITOOD also supports SALMOND and holds that power to eliminate external interference need not be an essential element of possession1. SALMOND illustrates his view by an example. He says that an infant has no physical capacity to exclude others from depriving him of his possession like a strong and healthy man nevertheless if he holds a coin with him, he would be deemed to have legal possession of
i) the “corpus ” of possession and ii) “animus " or the intention to hold possession. The two elements must be present in the case of possession and neither of them alone is sufficient to constitute possession. According to HOLLAND, “a moment's reflection must show that possession in any sense oj the term must imply firstly some actual power 1 DIAS & HUGHES : Jurisprudence, P. 781 over the object possessed and secondly seme amount of Mali to avail oneself of the power. Neither the mere wish to catch a bird which is out of my reach nor the mere power which I have without the least notion of exercising it, to seize a horse which I find standing at a shop door, will suffice to put me in possession of the bird or the horse. The Romans by whom this topic was treated with great fullness or subtlety describe those essential elements of possession by the terms 'corpus' and 'animus ’ respectively CORPUS POSSESSION “corpus" is the effective realization in fact of the claim of the possessor. Effective realization means that the fact must amount to the actual present exclusion of all alien interference with the thing possessed together with a reasonably sufficient security of the exclusive use of it in the future. The possessor has physical power or physical contact over the thing possessed. The possessor has the absolute power of dealing with the thing in any way he pleases. He has also the absolute power of excluding others form the possession, private use or enjoyment of the thing concerned. The test of possession, is sometimes the appearance of power to exclude others. The exclusion of others may be by means of physical strength, physical barriers, concealment, vigilance, the personal presence of the possessor, custom or the manifestation of the will to hold or “animus domini”. The possessor may use physical force to exclude others. He may lock up his thing to maintain his possession. He may conceal his things from
others so that they may not run away with them. He may keep a dog or a chowkidar to protect his possession. The moral sentiment, religion or law may protect the possession of the possessor. The same may be done by the custom of the country or the personal presence of the possessor. > je It is pointed out that it is not necessary that the possessor must have physical contact with the thing possessed. All that is necessary is that he must have the physical power of dealing with the thing exclusively as his own. 782 1 put some money in a box and lock up the same with the key. Although I have no physical contact with the box, the box is in my possession s the key of the box is in my possession. A person has some money in a pocket and some of it is dropped on the road. He continues to be the possessor of the money fallen on the road till the same is picked up by somebody else. When a person gives a dinner, his silver forke while in hands of his guests, are still in his possession. In the case of tamed animals like a cow, a dog, a horse, a bullock, etc. the owner does not lose his possession even if he loses his physical control over them. A master may be away but he still maintains his possession of his dog or horse. In the case of wild, animals like fish bird and other animals which are "ferae nature ” if the owner loses physical contact with them, he also loses their possession. They become the property of the person who captures them. In the case of India, if a bull is set free according to the Hindu usage, he is not he property of any individual and no person can be guilty of theft. However, it has been held in certain case that if a bull is dedicated to an idol and allowed to move about at will, the trustee of the temple is in possession of that bull. The fish in a creek or in an open irrigation tank are not in the possession of the person who catches them. However, the fish in a closed tank are in the possession of the owner of the tank.
Ill) Secrecy If a person keeps a thing which is in his possession in a hidden place, it is an effective mode of excluding external interference and keeping that thing secured. iv) In modem societies, wrongful possession is not deemed with favour, therefore, respect for rightful claim prevents others from interfering with the legal possession of the possessor. El Protection Afforded by the Possessior of Other Things At times possession of an object tends to confer possession of certain other things which are connected with it or accessory to it. Thus, possession of land confers possession of things that are on or under it. But the position in this regard is 784 however, not very clear as seen in the case of South Staffordhire Water Works Co. V. Sharman 1 vi) Another measure of security of possession is the manifestation of the "animus ciomim The visibility of the claim is another element in the factual security of its enjoyment. Thus using a thing openly carries with it a “prima facie” rightmindedness of its possession. One notable feature of “corpus" is that possession is not lost by temporary absence of the possessor from the object. As rightly observed by MARKBY, "corporeal contact is not the physical element which is involved in the conception of possession. I is rather the possibility or dealing with a thing we like and of excluding others If we consider the various modes in which possession is gained or lost, we shall recognize this very clearly”. An illustration would further make the point clear. If a person throws a net in the tank to catch fishes, he does not acquire possession over the fishes until they are caught in the net. Likewise, the possession of a person over his pet dog which is let-loose to move about freely is not lost during the time it is moving freely, because he still has the “corpus " and
"animus " over it
CHAPTER 5
THE ACQUISITION OF POSSESSION OR METHODS OF TRANSFER OF
As pointed out by Professor KEETON, “where an inn-keeper seizes the goods of Ins guest, who has failed to pay his bill, there is an acquisition of possession against the will of the previous possessor. But M’here a thief steals a watch, it is still an acquisition of possession against the will of the previous owner, but it is wrongful i.e. not in pursuance of legal right". In so far as “taking” method is known, it is either “original” or “destructive". The “original” taking is that when the object has no previous owner. An example of it is “res nullius". According to GROTIOUS, all things were originally "res nullius". But men in society came to a division of things by agreement. Things not so divided were afterwards discovered by individuals and reduced by possession. Thus things came to be subjected to individual control “ROSCOE POND, an introduction of the philosophy of law, P.115". But when the possession of a thing, which has a previous owner, is taken, it is called a “derivative" taking. In this, taking here means acquiring possession without the consent of the previous possessor. Such a taking may be rightful or wrongful depending upon the circumstances in which the possession is obtained. Thus, where the innkeeper seizes the goods of the guest who has failed to pay his bill, there is an acquisition of possession without the consent of the previous possessor, but it is rightful taking of possession, but where the thief steals a watch, this is an acquisition of possession against the wishes of the true possessor, but is wrongful since it is not in pursuance of a legal right. Briefly, this is the acquisition of possession without the consent of the previous possessor. It may be rightful or wrongful. 813 Delivery Another way of acquisition of possession is by “delivery or tradition. In such a
case, a thing is acquired with the consent and co-operation of the previous possessor.
Chapter 5