Possession & OWNERSHIP.pptx

JURISPRUDENCE

1. UNIT II Possession By Dr Pramod Kumar

2. Introduction “Possession” is a  polymorphous  term which may have diverse importance in various aspects. It is difficult to work out and draw a totally consistent and exact meaning of “possession” relevant to all circumstances with regards to all statutes. It is the most troublesome and complicated to define the “word” which fits in the definition clause of, estimate it and different speculations have been made about it. The courts in their choices on “possession” have not pursued any biased definition. This has made the origination a very confounded one. In this way, “possession” is a subject of extraordinary scholarly intrigue. In the meantime, it is of most extreme pragmatic significance. Thus, obtaining possession of the property is far easier than to define the word “possession” in its real sense.

3. Meaning of “Possession” To comprehend the idea, we should initially need to comprehend the historical background of the word, i.e., the significance of the word in its root, in its history. Pollock  says that having physical power over a thing which establishes  possession. As indicated by Salmond “the possession of a material item is the proceeding with the exercise of a case to its select utilization”. This, possession includes two things.” The claim of selective client and Conscious or genuine exercise of this guarantee, for example, physical command over it. The previous is a mental element called  “animus possession” , and the last is a physical element as the “ corpus possidendi ”.

4. Meaning of “Possession” Zacharias  sees that possession is a connection between an individual and a thing which shows that the individual has an expectation of having that thing and has the limit of arranging off. Savigny,  in his hypothesis of possession, says that the pith of physical possession is to be found in the physical intensity of rejection. The first is “corpus” for example is the physical capacity to have a thing out of the blue. The second is having at first obtained the thing, there must be the physical capacity to hold it.

5. Meaning of “Possession” Salmond,  be that as it may, does not concur with  Savigny’s view  that the holder must have the physical capacity to prohibit outsider obstruction. The genuine test, as indicated by him isn’t the physical intensity of rejection. In any case, he stated the  “unlikelihood of obstruction by the other”. Pollock  called attention to that in like  manner discourse  a man is said to have or to be in possession of anything of which he has the evident control, or from the utilization of which he has the clear intensity of barring others.

6. Meaning of “Possession” As per   Markby  “possession is the assurance to practice physical authority over a thing all alone benefit combined with the ability to do as such”. Maine  characterizes possession as “physical confinement combined with the goal to hold the thing kept as one’s own.” Kant  characterizes possession and says that “there must be an observational reality of taking possession conjoined with the will to have an outer item as one’s own.

7. Element of Possession These are two elements of Possession. The  physical element  which comprises of physical command over the thing. A  mental element  which comprises the assurance to practice that control. The physical element is known as the “corpus possession”  and the mental element is called’ as the “ enmity possidendi ”.   It is said that to establish a substantial and complete possession both these elements must be available for example, there must be  “animus possidendi ” which means the aim to have just as  “corpus possession”  for example, the thing must really be controlled by the individual who has the aim to have it. It is to be noted that the above two are very much essential in order to constitute the  Corpus and the viable acknowledgement  in the truth of the case of the holder while the ill will is the abstract element. Savigny was of the view that both the elements, for example, corpus and hostility must be there to comprise possession.

8. Theory of Possession The theory of possession has been explained and analysed by various scholars and thinkers. Analysis of the theory by various legal jurists is as follows. Savigny Theory of Possession Savigny, based on the content of Roman Jurist Paul, said that there are two elements of possession: 1) Corpus possessions “commonly known as ‘corpus’ 2) Animus Domini ”known as ‘animus ‘.

9. 1) Corpus possessions “commonly known as ‘corpus’ 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.

10. 1) Corpus possessions “commonly known as ‘corpus’ 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.

11. 2) “Animus Domini ”known as ‘animus’ 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 said that those cases were abnormalities and recommend that they were the cases of “derivative possession”.

12. Possession in Law and Fact Possession has thus been divided into two categories which are as follows. Possession in Fact Possession in Law

13. Possession in Fact It indicates physical possession of an individual and a thing. For instance, if an individual has confined a parrot, he would be deemed to have possession of it in as much as the parrot is in the possession of that man yet when the parrot escapes from the man then if it counterbalances freely then only he would have possession over it. Certain points regarding possession, actually, must be painstakingly evaluated. They are as follows. There are certain things over which an individual can’t have physical control.

14. Possession in Fact The physical command over the item need not be continuous. For instance, I have my jacket when I am wearing it, regardless I have possession of it when I take it off and hang it on a pag when I rest. The fundamental idea is that I ought to be in a position to resume power over it in the typical course at whatever point I so desire. In other words, physical control may continue regardless of whether an individual relinquishes real control briefly. In order to comprise possession actually, just having physical control of a thing isn’t sufficient yet it must be joined by the ability to exclude others from the possession of it. Be that as it may, a few legal scholars don’t consider the component essential for possession. In simple words, the relation between a person and a thing which he possesses is called possession in fact or “de facto possession ”.

15. Possession in Law Possession in law is likewise named as “ de jure ” possession. It has just been expressed that the law secures possession for two clear reasons, in particular, which are as follows. By conferring certain lawful rights on the owner By penalizing the people who interfere with the possession as an individual or by making him pay harms to the holder. At whatever point an individual brings a suit for possession, the principal thing that the court ascertains regardless of whether the plaintiff was some time ago in genuine possession of the thing in debate. The facts demonstrate that in the more significant part of the real possession which affirms legitimate possession yet there are numerous circumstances when an individual does not have possession in law in spite of the fact that he is in real possession of the article.

16. Possession in Law In a legitimate sense, possession is utilized as a relative term. The law is by and large not worried about the inquiry with respect to who has the best title; however, it is worried concerning which of the gatherings before it has a superior title.

17. Ownership

18. Definitions Ownership refers to the relation that a person has with an object that he owns. Austin- “a right indefinite in point of user unrestricted in point of disposition and unlimited in point of duration over a determinate thing.” Holland defines “ownership as the right of absolute control over an object.” According to Salmond, “ownership, in its most comprehensive signification, denotes the relation between a person and right that is vested in him.”

19. Essentials of Ownership Indefinite point of user- The owner of a property has the liberty to use it. Others have the duty to not to use it or to not to interfere with the owner’s right to use it. Unrestricted point of disposition- The owner has the right to dispose of the property at his own will. A person needs to have the ownership of a thing in order to transfer that ownership to someone else. Mere possession does not give the power to dispose of the ownership.

20. Essentials of Ownership Right to possess- The owner has the right to possess the thing which he owns. Right to exhaust- If the nature of the thing which is owned is such that it can be exhausted then the owner has the right to exhaust it at his own will. Residuary character- The owner may part with several rights with regards to the thing he owns. This does not take away the ownership from him. Right to destroy or alienate- An owner has the right to destroy or alienate the thing that he owns.

21. Subject Matter of Ownership One of the subject matters of ownership is material objects. Salmond is of the view that the real subject matter of ownership is rights. This particular view of Salmond is supported by the common law system. However, it has also received some amount of criticism. It has been argued that law generally recognizes ownership of land and chattels and not of any right. A person is said to have certain rights and not own rights. The subject-matter of ownership is essentially determined by the legal system of a state.

22. Ownership may be acquired in two ways Firstly, ownership may be acquired over a thing which has no owner. Such things are known as res nullius and the ownership may be acquired by possession. Secondly, there may be things which are already owned by someone else. The ownership in such cases can be acquired using the derivative method, that is, by way of purchase, gift, inheritance, etc. The acquisition of ownership, unlike possession, has to be done strictly by lawful means

23. Kinds of Ownership Ownership may be of the following kinds: 1. Corporeal and Incorporeal Ownership: Corporeal ownership refers to the ownership of material objects whereas incorporeal ownership refers to the ownership of a right. Incorporeal ownership can also be said to be the ownership of intangible things. Examples of corporeal ownership include ownership of a house, table, car, etc. whereas those of incorporeal ownership includes ownership of trademarks, copyright, patents, etc.

24. Kinds of Ownership 2. Trust and Beneficial Ownership: The subject-matter of such ownership consists of property owned by two persons wherein one person is obligated to use it to the benefit of the other. The person under such an obligation is called the trustee and his ownership is known as trust ownership. The person to whose benefit the property is to be used is called the beneficiary and his ownership is known as beneficial ownership. Trust ownership is only a matter of form and not a matter of substance. This means that a trustee’s ownership of the property is only nominal in nature. He is given someone else’s property fictitiously by law and thereby obligating him to use it to the real owner’s benefit.

25. Kinds of Ownership 3. Legal and Equitable Ownership: Legal ownership refers to the ownership as recognized by the rules of a legal system whereas equitable ownership refers to the ownership as recognized by the rules of equity. There may be cases wherein law does not recognize the ownership due to some effect but equity does. In such situations, the ownership is said to be equitable ownership. Legal ownership is a right in rem whereas equitable ownership is a right -in personam since equity acts are in personam . A person may be the legal owner of a thing and another may be the equitable owner of the same thing at the same time.

26. Kinds of Ownership 4. Vested and Contingent Ownership: All kinds of ownership may either be vested or contingent. Ownership is vested ownership when the title of the person is perfect. On the other hand, ownership can be said to be contingent if it is imperfect and can be perfected subject to the fulfilment of certain conditions. Thus, contingent ownership is conditional in nature.

27. Kinds of Ownership 5. Sole Ownership and Co-ownership: Under ordinary circumstances, a right can be owned by only one person at a time. Such ownership is known as sole ownership. However, in certain cases, same right may be vested in two individuals at the same time. This is known as co-ownership. For instance, partners of a firm are co-owners of the partnership property.

28. Ownership and possession- distinguished Salmond has stated that, possession is in fact, what ownership is in right. Ownership is the guarantee of the law, possession is the guarantee of facts.  Ownership cannot be last without the consent of the owner whereas accident may be lost either by accident or by the wrongful act of another. There may be ownership without possession of a debt which is capable of being owned but not possessed. Possession and ownership differ in their mode of acquisition also. 

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