JURISPRUDENTIAL ASPECTS

OF POSSESION AND
OWNERSHIP
JURISPRUDENCE ASSIGNMENT

SANDEEP CHAWDA
BA.LLB (H)
REGULAR
ACKNOWLEDGEMENT

I would like to express my gratitude towards our Jurisprudence professor Mr. EQBAL HUSSAIN
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.

Sandeep chawda

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Contents
RESEARCH METHODOLOGY .......................................................................................................................... 3
INTRODUCTION ............................................................................................................................................. 4
THE CONCEPT OF POSSESSION ..................................................................................................................... 4
POSSESSION .................................................................................................................................................. 5
Corporeal and Incorporeal Possession ......................................................................................................... 6
Immediate and Mediate Possession ............................................................................................................. 7
Concurrent or Duplicate Possession ............................................................................................................. 7
DEFINITION OF OWNERSHIP ......................................................................................................................... 9
OWNERSHIP UNDER ANCIENT HINDU LAW .................................................................................................. 9
MODERN LAW AND OWNERSHIP ............................................................................................................... 10
SUBJECT MATTER OF OWNERSHIP ............................................................................................................. 10
OWNERSHIP VS. POSSESSION ..................................................................................................................... 12
CONCLUSION............................................................................................................................................... 12
BIBLIOGRAPHY ............................................................................................................................................ 14

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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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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 one’s 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.

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 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

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

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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.

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 master’s
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.
3. The animus possidendi need not amount to a claim of intent to use the thing as owner.

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 4. The animus possidendi need not be a claim on one’s 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 possessor’s 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 possessor’s account and on
his own, but who recognizes the actual possessor’s 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.

Incorporeal Possession

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

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 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.

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.

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. 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.

2
Holland on Jurisprudence at p.226

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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

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 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.

3
Supra note.2 at p. 325

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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”.

Austin’s 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 Austin’s definition:

Austin’s 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
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

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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

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."

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.

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

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  ·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 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

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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.

BIBLIOGRAPHY
References
Books
1. Salmond, “Jurisprudence”, 4th Edn. Butterworth’s Publications, New Delhi.
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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 Constitutional 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 Law–I,
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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