OWNERSHIP

One of the basic juristic ideas common to all systems of law is the notion of ownership. Most of
the scholars addressed this definition before that of possession. It is pointed out however, that it
is not the best technique. Historically speaking, the notion of possession first came into people's
minds, and it was later that the idea of ownership came into being. The idea of possession was
accompanied by the idea of ownership.
DEVELOPMENT OF THE IDEA OF OWNERSHIP
The concept of ownership evolved by slow degrees with the growth of society. As long as the
people were moving from place to place and had no settled place of residence, they had no sense
of ownership. When they started planting trees, cultivating land and constructing their homes, the
concept began to evolve.
The emergence of the concept of ownership enabled the transition from a pastoral to an
agricultural economy. "In terms of "mine and thine," people started to think. No distinction was
made between ownership and possession to begin with. The distinction became clearer and
clearer, however with the development of humanity. In Roman law, this distinction was quite
specifically made. To point out the difference, two distinct words were used and these were
'dominium' and 'possessio'. The absolute right to a thing was denoted by Doininium. Only
physical influence of something was implied by Possessio. In Roman law, the English notion of
ownership is identical to the definition of dominium. According to Holdsworth, the definition of
ownership as an absolute right was reached by English law through innovations in the law of
possession. Ownership Description According to Keeton:"The right of ownership is a conception
clearly easy to understand but difficult to define with exactitude. There are two main theories
with regard to the idea of ownership. The great exponents of the two views are, Austin and
Salmond. According to one view, ownership is a relation which subsists between a person and a
thing which is the object of pwnership. According to the second view, ownership is a relation
between a person and a right that is vested in him."
AUSTIN
According to Austin: "Ownership means a right which avails against everyone who is subject to
the law conferring the right to put thing to user of indefinite nature." Full ownership is defined as
"a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of
duration". It is a right in rem which is available against the whole world.
 i. The first characteristic of ownership, according to Austin, is that it is infinite in terms of
consumer since the owned thing can be used in so many ways by the owner. The land
owner is permitted to build a house on it. For agriculture, he will use it. He could just
transform it into a garden. He can make any use of it that he likes. Limitations can
however be placed on the use of the item by means of a contract or by means of law. For
a defined amount, the owner will mortgage the land to someone and also hand over the
possession of the same. For a specified number of years, he will lease the land to
someone. He can establish an easement for another person's benefit. In a way that is
harmful to others the owner of the property cannot be permitted to use the same. In this
relationship, reference can be made to two maxims.
a. The first maxim is: "So use your own property as not to injure your neighbours".
b. The second maxim is: "It is not lawful to build upon your land to the injury of
another."
In the case of Crowhurst v. Amersham Burial Board, the Burial Board was held liable
for damages to the sum of the price of the horse that died as a result of eating a portion of
the yew tree planted on its own land by the Burial Board and about 4 feet from its border
railings. In a nearby meadow, the horse was grazing and died of the poison in the leaves
of that oak. A building on his land should not be erected by the owner of a piece of land
in such a way as to interfere with the use of the adjoining lands.
ii. A right of sale or disposition without any limitation is the second feature of ownership.
Experience demonstrates, however, that such limitations are placed on the owner's right
of disposal in all advanced legal systems. If its intention is merely to defeat or postpone
the creditors, the transfer of property is not permitted. In the case of France, in the
interests of the family, such limitations are placed on the right of alienation.
iii. The permanence of the right to ownership is the third characteristic of ownership. As
long as things happen, this right remains. With the destruction of the object, the right is
extinguished. By his heir, ownership is inherited.
For different reasons, Austin's view of ownership was criticized—
i. It is pointed out that ownership is a bundle of rights rather than a right. It is the aggregate
or number of consumer and enjoyment rights complete. And if some of the rights are
stripped and granted to another individual, the owner is still the individual in whom the
 residue is vested. The owner of a piece of land may give another person the same
mortgage. And if a right has been transferred, he is still the beneficiary.

ii. Ownership is not merely a right, but also a bond between the owner of the right and the
person who owns it.
iii. The definition of an infinite user's right is also threatened. It is possible to impose several
restrictions on that person. The owner must use his land in a way that does not conflict
with others' rights. In relation to land, he will have to pay taxes to the state. He does not
have the right to exclude, on any grounds, government officers who are eligible to
participate in it. In the case of joint property ownership, each person's rights are
controlled by those of others. Restrictions may be imposed by encumbrances on
ownership. Restrictions can also be imposed on the power of owners to dispose of land.
In order to defeat or postpone its creditors, the owner of the property is not permitted to
dispose of it. With respect to the disposal of land, there are certain disabilities placed on
infants and lunatics.
HOLLAND
Holland has also been accompanied by the view of ownership as offered by Austin. Holland
defines ownership as a plenary control over an object. An owner, he states, has three forms of
forces, namely, possession, enjoyment, and ownership. The same may, however be lost by means
of a lease or mortgage. The right of enjoyment implies the right of the consumer to obtain the
fruits or increase items such as wood, young cattle or 5011 added by alluvion to the estate The
right is restricted solely by the rights of the State or of other persons.' The right of disposal
implies the right of modification, destruction or disposal of properties.
MARKBY
Markby holds similar opinions as well. In order to quote him: "If all the rights over a thing were
centred in one person that person would be the owner of the thing; and ownership would express
the condition of such a person in regard to that thing. But the innumerable rights over a thing
thus centred in the owner are not conceived as separately existing. The owner of land has not one
right to walk upon it and another right to till it; the owner of a piece of furniture has not one right
to repair it and another right to sell it; all the various rights which an owner has over a thing are
conceived as merged in one general right of ownership."
HIBBERT
Ownership includes four rights, according to Hibbert, and those are the right to use the object,
preventing others from using it the disposal of the thing, and the destruction of the thing. No one
can have full ownership of land under English law, as land can not be lost. You can only have an
estate in it. An estate means a party's legal interest in land that is measured by length and entitles
the party to use the land indefinitely.
PATON
The rights of the owner are according to Paton, the power of enjoyment, the right of possession,
the power to alienate or charge inter vivos as protection, and the power to leave the rest at will.
Ownership is according to Hohfeld, a set of rights, privileges and powers, some of which are
often found to exist in persons other than the owner, either for a limited time or perpetually.
Since we can take one drop or several drops from the bucket, we can also separate one or more
rights from possession.
Ownership is according to Buckland, "the ultimate right to the thing or what is left when all other
rights vested in various people are taken out".
Ownership, according to Noyes, is the magnetic core that remains after all existing enjoyment
rights are stripped from it and that draws to itself the different elements temporarily retained by
others when they expire.
In conjunction with Pollock: "Ownership may be described as the entirety of the powers of use
and disposal allowed by law.” This means that there is some power of disposal, and in modern
times, while we are familiar with 'small owners' in recent use, we should hardly be prepared to
label an individual an owner who had no such power at all. If we found a rule of law somewhere
that did not recognise alienation by actions of parties at all, we should possibly conclude that in
that system the powers of an owner were very limited, but that it did not recognise ownership.
However in common law, the concept is not purely technical. We must not presume that all the
powers of an owner must be exercisable at once and immediately; while he has split from some
of them for a period, he can remain the owner. He can also part with his entire powers of use and
enjoyment for a period, and suspend his power of disposal, provided that he retains the right to
eventually regain the thing and be returned to his power for himself or his successors. This is the
general case of land, buildings or products being employed. Again in particular, the powers of
the owner can be limited for an infinite period by rights as eternal in their existence as ownership
itself. This is the case where the owner of Whiteacre has a right of way over Blackacre, his
neighbor's land. As this example illustrates, what is thus subtracted from the powers of one
owner is normally added to that of another. In short, the owner of a thing is not always the one
who has the absolute control of use and disposal at a given time; there is most often no such
person. When we have accounted for any disconnected and restricted portion of it we must look
for the individual having the residue of all such powers; and even if the immediate power of
control and use is elsewhere, he will be the owner. Similarly, a king does not cease to be a
sovereign prince merely because he has made a treaty by which he has decided, in specific ways,
to forego or restrict the exercise of his sovereign power.
SALMOND
As per to Salmond: "Ownership, in its most comprehensive signification, denotes the relation
between a person and right that is vested in him. That which a man owns is in all cases a right.
When, as is often the case, we speak of the ownership of a material object, this is merely a
convenient figure of speech. To own a piece of land means in truth to own a particular kind of
right in the land, namely, the fe simple of it." Again, "ownership, in this generic sense, extends to
all classes of rights, whether proprietary or personal in rent or in personam, in re propria or in re
aliena. I may own a debt, or a mortgage or a share in a company, or money in the public funds,
or a copyright or a lease or a right of way, ora power of appointment, or the fee simple of land.
Every right is owned, and nothing can be owned except a right. Every man is the owner of the
rights which are his."
Ownership is a relationship between a person and any right that is vested in him, according to
Salrnond. A right and not a thing is what a man owns. Owning a piece of land means owning a
certain kind of right on the land.
Criticism
i. The view of ownership by Salmond has been criticised by several authors. According to
Duguit, ownership is a relationship between a person and a thing over which full
disposal, use and enjoyment is permitted on account of this relationship. What is
inherited-is a thing, not a right.
ii. There are several rights that an individual can possess, according to Cook, and using the
term'owner 'to express the relationship between a person and a right is to create needless
confusion. The name given to the package of rights is Ownership.
According to Kocourek, ownership is an owner's partnership and a right to something that can be
enjoyed economically. A matter of legal rights is the right of ownership.
Salmond's apologists point out that Salmond has described ownership in two distinct ways.
Ownership, in the general sense, denotes the relationship between a person and any right that is
vested in him. It involves both corporeal and incorporeal ownership in this context Ownership is
in a narrow sense, a relationship between an individual and a material thing. Corporeal
ownership is included in this context. Salmond, to quote:"Although the subject-matter of
ownership in its widest sense is in all cases a right, there is a narrow sense of the term in which
we speak of the ownership of material things. We speak of owning, acquiring or transferring, not
rights in land or chattels, but the land or chattels themselves. This was the original and still is the
commonest meaning of the word 'ownership'. We call it by the name of corporeal ownership to
distinguish it from the ownership of rights which may be called 'incorporeal ownership".
ESSENTIALS OF OWNERSHIP

i. i. The first key to ownership is that it is infinite in terms of users. The broad variety of
ways in which the thing owned can be used by the person entitled to its ownership can
not be described or summed up exhaustively. Although this is generally referred to as a
right to possess and use certain things, these rights are in fact, freedoms. Actually, the
owner has the right to use the object. He's under no obligation not to use it. Others are
under an agreement not to use it or mess with it in any other way. Those who are not
owners may be entitled to possess or use an item, but it is for a limited period of time that
they are entitled to use it. It is of an indeterminate length in the case of an owner. When
the hire time comes to an end, the interest of a bailee or a lessee comes to an end. The
owner's interest is however, perpetual. And with his own death, it does not stop. The
property goes to his legatee or successor or next of kin in the event of death.

ii. Qualifications have been placed on the consumer of propp in all mature legal structures.
Each owner must use the object of ownership in order not to damage the right of other
persons. No landowner on his land may collect manure in such a way as to cause his
neighbours a nuisance. Ownership can be subject to encumbrance in favour of others in
which case the privileges of the encumbrancers decrease the control of the owner's
consumer.
 iii. Another key to ownership is that it is unregulated in terms of disposal. Austin considers
the right to alienation to be an incident of ownership required. Via a conveyance during
his lifetime or by will after his death, an owner may effectively dispose of his land. A
person who is not the owner, even though he may have possession of the thing in
question, may not normally pass the right of ownership. This is based on the idea that one
who does not have should not offer.

Restrictions on the power of disposal of an owner are however, imposed by statute.

Transfers of property made with the intent to defeat or postpone creditors may be set
aside both in Enlish and Indian law. The presence of the rights of encumbrancers can
restrict the power of disposition. Hence, it cannot be claimed that the presence of an
unregulated power of disposition is an integral feature of ownership. A major feature of
the notion of ownership as health for free disposal has been clarified by Hindu jurists.
The Virarnitrodaya gives the image of a seed possessing the ability to germinate and
transform to a sprout inside it. Various causes can hinder this ability, but it can not be
said that the seed does not possess the ability to germinate and take the form of a ybung
plant. Similarly, while the power of an owner to deal with his property can be limited by
different factors, it can not be said that ownership does not mean the free disposal of
health.
iv. The owner is entitled to possess the object he owns. Whether or not he has physical
ownership of it is immaterial. What counts is that he needs to be entitled to possession.
Even if Xi's car was stolen by Y, Y owns the car, but X remains the driver. Likewise, if X
gives his car to Y for hire, X has neither the ownership of the car nor the immediate right
to own it, since he holds a reversionary interest in the vehicle, he is still the owner. Upon
the expiration of the rental contract, he has the right to repossess the vehicle.
v. Another essence of ownership is that if the existence of the thing owned is such, the
owner has the right to exhaust the thing when using it. 
vi. Generally, the owner has the right to kill the thing he owns or alienate it.
SUBJECT-MATTER OF OWNERSHIP
The main object of ownership consists of material objects, such as land and chattels. A man's
wealth can also consist of other things, such as interest in other people's property, debts owed to
him by his debtors, business shares, patents, copyrights, etc. A might have the right to walk over
B's property, or the right to catch fish in C's pond, or D's debt, restricted company shares,
different patents, copyrights, etc. None of these are items that are tangible or material. They are
merely rights.
Salmond's view is that in all situations, the true object of possession must be a right. If the
subject matter of ownership was sometimes a material substance and sometimes a right, it would
be a logical absurdity. Salmond's opinion is backed by English law. However if the word is used
as it often applies to a right, as it is generally said that an individual owns land and chattels, it
will not be in accordance with law and fair usage. As owning a chattel normally means having
certain rights in respect to it, to describe this as owning rights in respect of the chattels would
lead to rather complicated conclusion that owner would be said to have rights to rights in respect
of such chattels. Normally a man is said to have a right and not to own a right. A man does not
own a right to his reputation. That is a right which he has. Therefore in the sense of tangible
objects and of owning rights, it is preferable to talk both about owning things. What the subject
matter of ownership may constitute depends on the rules of each system of law. Some items,
generally speaking, qualify as worthy of being owned, but not actually owned. It is not possible
to own islands outside the borders of a state or wild animals in a jungle. There are objects which
are incapable of being owned by nature. It is impossible to obtain living beings, bodies other than
biological specimens, the air and the sea, the sun, the moon and the stars. However if English
law were to legalise slavery, it would be possible to own living people. The law may provide that
the air and the sea may be owned, sold, purchased, leased, etc.
RIGHT OF OWNERSHIP AND OWNERSHIP OF A RIGHT
Corporate ownership is the right to the totality of a corporeal thing's legal uses. In this context,
the corporeal possession or the right of ownership is not so much one right as a bundle of
privileges, freedoms, powers and immunities. Writes Pollock: "Ownership may be described as
the entirety of the powers of use and disposal allowed by law."
The ownership of a right defines the legal relationship between an entity and a right. It denotes in
this sense that he is neither the creator nor the encumbrancer, but the owner of the right. The
right to land, which is the dynamic pattern of the package of rights, privileges, powers and
immunities, must be separated from this right. It merely implies that there is a clear legal
relationship between an individual and a right in the case of possession of a right. Often known
as incorporeal possession is the ownership of a right. In English law, the permanent ownership
interest is referred to as a simple fee through which ownership transfers by devolution to the heir.
For a given number of years, a life interest or an interest is not regarded as a right of ownership
because it is not perpetual.
MODES OF ACQUISITION OF OWNERSHIP

There are two modes of acquisition of ownership and those are original and derivative. There are
three kinds of original modes of acquisition. Ownership is absolute when the same is acquired
over previously ownerless objects. Ownership is extinctive if the ownership of a previous person
is finished on account of adverse possession by the acquirer. It is accessory if the ownership is
acquired as a result of accession. Absolute ownership can be acquired in two ways and those are
by means of occupation and 'specification'. It is possible to gain total ownership in two ways and
those are by occupation and 'specification'. The rule is that the first occupier becomes the owner
in the case of an ownerless thing. In the case of occupation, physical control of the object is
necessary. In the case of wild animals, birds, fish in rivers, precious stones, gems and so on, such
ownership is acquired. The English law on the subject is that the person on whose land they are
found is in possession of fish and wild animals. If the fish are caught or the wild animals are
killed, the landowner is their owner. In the case of hidden treasures, the same is true of grown
treasures in England. The treasure was shared equally by the finder and the owner of the place
under Roman law. In the case of requirements, a new shape is given to materials belonging to
one person. Clay may belong to one person, but out of it the sculptor may make a statue. Original
ownership may be acquired as a proprietor by long, continuous and undisputed possession of a
thing. In that contemplation, the concept of adverse possession functions. One individual's
ownership is extinguished and that of another is established.
It is also possible to obtain original ownership by means of accession. The owner of a tree is
entitled to the tree's fruits. Similarly, the owner of property has the right to the crop grown on it.
An animal's owner is entitled to its offspring. If, due to a change in the course of the river, any
land is added, the same is purchased by the owner of the adjoining property.
DIFFERENT KINDS OF OWNERSHIP
Experience demonstrates that corporate and incorporeal ownership, sole ownership and co-
ownership, legal and equal ownership, vested and contingent ownership, trust and beneficial
ownership, co-ownership and shared ownership and total and limited ownership are several
forms of ownership.
i. CORPOREAL AND INCORPOREAL OWNERSHIP
The ownership of a material entity is corporeal ownership and the ownership of a right is
incorporeal ownership. Corporeal ownership is ownership of a home, a table or a computer.
Incorporeal ownership is the ownership of a copyright, a patent or a trade mark. The difference
between corporeal and incorporeal ownership is similar to the difference between corporeal and
incorporeal stuff. Ownership of intangible objects is known as incorporeal ownership. Corporeal
things are those that the senses can perceive and feel, and incorporeal things are those that the
senses can not perceive and that are intangible. Ownership of intellectual objects and
encumbrances requires incorporeal ownership.
ii. TRUST AND BENEFICIAL OWNERSHIP

An example of duplicate ownership is trust ownership. Trust property is that which at the same
lime is owned by two people. The relationship between the two owners is such that for the good
of the other, one of them has a duty to use his ownership. Ownership is regarded as profitable
ownership. Ownership of a nominal trustee i.e., and not rai, but the trustee represents the
beneficiary in the eye of law. In a trust, the relationship between the two owners is such that for
the good of the other, one of them is obliged to use his land. The former is referred to as the
trustee, and trust ownership is his ownership. The latter is referred to as the receiver and its
possession is referred to as beneficial ownership. In fact, the ownership of a trustee is nominal
and not actual, even though it represents the beneficiary in the eye of the law. If property is
granted to X on the Y trust, the trustee will be X and the beneficiary will be Y. The legal owner
of the property would be X and the beneficial owner would be Y. X is under an agreement only
for the benefit of Y to use the land.

A trustee has no right to enjoy the property of the trust. Just a matter of shape and not of
substance is his ownership. It's nominal and it's not real. A trustee is not a mere agent in the eye
of the law, but an owner. He's the person to whom someone else's property is fictitiously
provided by law. It is for the good of the beneficiary who is the real owner that the trustee must
use his authority. The property belongs to the beneficiary, as between the trustee and the
receiver, and not the trustee. The trustee is assumed to be the legitimate owner of the property as
a consequence of a fiction, as between the trustee and other persons. The trustee, when engaging
with the world at large, is clothed with the rights of his beneficiary.

Confidence and Bailment: A distinction between trust and bailment must be made. When a
trustee sells trust property in violation of a trust, a bonafide buyer takes good title from the
trustee for cash without notice of the trust. If a bailee allows an illegal selling of the goods,
without warning of the bailor's rights, a bona fide buyer for value gets no title to the goods. The
explanation is that the bailee from whom he bought the estate was not the owner of the goods. A
common law rule is that a seller should not offer a better title than what he himself owns. If a
bailee converts his own use of the goods, he is guilty of larceny (theft). The explanation is that
the goods are not the owner of the bailee. If a trustee misappropriates trust property, under
common law, he is not guilty because a person does not steal what he owns and possesses
himself. However, legislation now specifies that while not for larceny, the trustee will be legally
responsible.
Trust and Executorship: There is also a difference between trust and executorship. The executor
shall, however be obliged to exercise his rights in such a way that the excess of the estate is
passed to those individuals who are entitled to the property of the deceased. An executor or
administrator, although he can become a trustee for them under some conditions, is not a trustee
for the legatee or next of kin. It may be difficult to conclude in a given case whether a man was
merely an executor or administrator or a trustee. This problem is of great practical significance.
The explanation for this is that the statute of limitation distinguishes between a lawyer's action
against an executor and a beneficiary's action against his trustee. After the lapse of 12 years, an
attempt by a legatee against an executor to reclaim a legacy is barred, but a trustee is unable to
acknowledge the plea that the case against him is time-barred in the following cases:
a. Where the trustee has been guilty of fraud.
b. Where the action is to recover trust property retained by the trustee or converted by him
to his own use. If an executor makes himself an express trustee of legacy within the
meaning of the Trusts Act, his position is that of a trustee.
A trust is to be differentiated from a mere contractual duty to negotiate on behalf of someone
else with one's land. A trust is more than a duty, for the good of another to use one's land. It is a
responsibility to use it for the good of someone in whom it is already vested simultaneously. A
beneficiary has more than a mere personal right to meet the duties of the trust with respect to his
trustee. He himself is the property owner of the trust.
Trust and Contract:— A confidence varies from a contract. In the case of a contract, the contract
will not be enforced by the person who is not a party to the contract purporting to confer a
benefit on him. In the case of a trust, the beneficiary can enforce the trust, even if he is not a
party to the trust-making contract. Historically, in common law, contracts were enforceable but
trusts were under the exclusive jurisdiction of the chancery court. The trust was not enforced by
Equity as an arrangement, but as a matter of confidence.
A trust is typically established by a two-person agreement, but a trust may also be created by a
unilateral act. A man is bound by his own declaration or actions by a trust, even though the
beneficiary knows nothing about it. Even when a trust is established by an agreement between
two parties, as is the case in a contract, no formal offer or approval between the parties is
required. In a contract, a party who is a stranger to a contract does not gain rights or obligations
under the contract, but trusts are not protected by this law. The recipient is not a party to the
contract in a trust, but still has an equal recourse against the testator. Right in personam, a
contract establishes a right that is valid against the promisor. A beneficiary's right is like an in
rem right as it can be exercised against all parties involved except for the benefit of a bona fide
purchaser.

Trust and Agency:— Between a trust and an entity, there is some resemblance. Both a trustee
and an attorney, on behalf of another, manage land. Neither is the beneficial owner of the estate.
There are several distinctions between trust and agency, however. A trustee is the owner of the
trust property in the law's eye, but the agent is not the owner of the property that really belongs
to the principal. The consequence is that an agent can not move on a legal title to a third party
outside the sphere of his jurisdiction, even though the latter is a bonafide buyer for value without
warning.
A bonafide buyer for value, however, obtains a legitimate title against the entire world without
warning of the trust from a trustee. A trustee is the legitimate owner in the eyes of the law.
Therefore on behalf of the trust, he is directly responsible for all the contracts signed by him. The
contract is with the principal and the agent is not legally responsible if an agent enters into a
contract as an agent. A trustee's power is derived from the trust deed and the beneficiary's wishes
can have little to do with it. The agent's authority to deal with the property depends on what has
been assigned to him. For the principal, he has to act. In the possession of the trustee, a
beneficiary may monitor the trust property.
Likewise, if the latter uses his power in an improper way, the principal has the right to pursue the
property in the hands of the agent. Despite this there is no relationship of trust. An entity
emerges from an express or implied contract to work for some other person and it is not
appropriate to involve property at all. When a person receives or retains property in such cases, a
trust exists that he should use it for the good of the receiver or for an object other than his own.
Trust and Mortgage:— The difference between a trust and a mortgage is also different. The
relationship is strictly contractual between a mortgagor and mcrtgagee, but it has some analogy
to the relationship of confidence. The explanation is that the mortgage has, in equity, an
advantageous interest in the asset that is the redemption equity. In the eye of the law, after the
time set for redemption has expired, a mortgagee has an absolute estate. However for the
mortgageor, the mortgagee is not a trustee. As a trustee keeps for the recipient, he does not hold
the legal estate for the gain of the mortgage. Not only does the mortgagee have a legitimate
interest in the mortgaged land, but also a beneficial interest which is unfavourable to that of the
mortgagee. Ashburner writes that once he has been paid, the mortgagee becomes a trustee. His
right to property should not go beyond what is required to ensure that the money owing to him is
repaid. If the mortgagee has sold the mortgaged property and reimbursed his money out of the
sale proceeds, the individual entitled to the redemption equity becomes a trustee of the surplus
proceeds.
iii. LEGAL AND EQUITABLE OWNERSHIP
Legal ownership is based on the laws of common law and equal ownership is the product of the
rules of equity. In certain ways, equity acknowledges ownership where ownership is not
recognised by statute due to a certain legal defect. An example will explain this fact. X is the
owner of shares in a company. He transfers those shares to Y, who pays him the amount of the
consideration, however as provided by the company's laws, a proper transfer deed is not
performed, resulting in the company refusing to accept Y as the holder of those shares. In such a
situation, Y may not be relieved by statute because the legal conditions for the transfer have not
been met, but equity may step in to ensure that although X is still the legal owner of the shares,
he holds them as a trustee for Y and must give Y all the dividends and other amounts realised on
account of those shares.

Legal rights may be implemented in rem but as equity acts in personam, equal rights are
enforced in personam.
One individual can simultaneously be the legal owner and another individual the fair owner of
the same thing or right. X remains the legal owner of it when a debt is verbally transferred by X
to Y, however Y becomes its equal owner. As before, there is only one debt, even though it now
has two owners. The equitable ownership of a legal right varies from the ownership of an equal
right. The ownership of an equitable mortgage is different from that of a legal mortgage that is
equitable.
There were two forms of courts in England with different jurisdictions until the passage of the
Judicature Acts of 1873 and 1875. Those courts were known as the courts of common law and
the courts of chancery or equity. The rights recognised and secured by common law courts were
referred to as legal rights and equal rights were referred to as those recognised and protected by
equity courts. The common law courts declined to accept equal ownership and held that the
equitable owner was not at all an owner.

Keeton writes: "Equitable ownership always predicates an outstanding legal ownership, the legal
owner being restrained by the rules of equity from using his legal ownership to the detriment of
the equitable owner. On the other land, legal ownership does not necessarily imply the existence
of an equitable owner. The property legislation of 1925 has made use of this conception of dual
ownership in order to facilitate the transfer of real property in England. Many interests which
may exist with regard to land and otherwise would tend to impede the disposition of it, are now
permitted to exist as equitable interests only, and it is enacted that a purchaser of a legal estate,
provided that the requisite formalities are observed, may obtain a clear title, from most equitable
interests, which operate upon the purchase money. A good example is the life interest. Formerly,
this could exist both as a legal and as an equitable estate. Now it may exist as an equitable
interest only. The most common example of equitable ownership is that which exists under a
trust."
In India, there is no disparity between legal and equitable estates. A trustee is the legal owner of
the trust property under the Indian Trusts Act and the receiver has no financial interest in the
trust property itself. However he is entitled to force the trustees to carry out the terms of the trust.
iv. VESTED AND CONTINGENT OWNERSHIP
It is either 'jested or contingent' ownership. When the owner's title is already fine, it is vested
ownership. When the owner's title is still incomplete, but is able to become perfect on the
fulfilment of any condition, it is contingent ownership. Ownership, in the case of vested
ownership, is absolute. It is merely conditional in the case of contingent ownership. In the case
of vested ownership, in all its elements, the investigative reality from which it derives the right is
total.
In the case of contingent ownership, due to the absence of a certain required element which is
nevertheless capable of being supplied in the future, it is incomplete. In the meantime, his
ownership is dependent and unless the requisite condition is met, it will not become vested. For
instance, if he is then alive, a testator will leave property to his wife for her life and on her death
to X, but if X is then dead, Y X and Y are both owners of the property in question, but their
ownership is merely contingent. X's ownership is conditional on the widow of the testator
surviving it. Y's ownership is conditional upon the death of X during the widow's lifetime.
In English law, even if it does not grant a right to immediate possession, an estate can be vested.
The interest of Y is vested on a devise to X for life with the remainder to Yin fee simple, so there
is nothing but X's prior interest to stand between him and the true enjoyment of the land. Y's
interest, legally speaking, is vested in interest, but not vested in possession. Only on the death of
X does it become vested in possession. If a Hindu widow adopts a son but there is an agreement
postponing the son's estate during the widow's lifetime, a vested right is the interest generated in
favour of the adopted son. It does not rely on any precedent for a situation. If it is to take place
on the occasion of an event that is definite (the widow's death), the adopted son has a present
proprietary right to be deferred to the estate, the right of ownership and enjoyment. Even during
the widow's lifetime, he may move the land; ownership of the gifted property under a gift deed
until after the donor and his wife. The donee is given a vested interest subjeäothe 'ife interest of
the donor and his wife. The donee caR fran tlepriperty during the lifetime of the donor and his
wife. Under a compromise ieqee. it wasettled that X was to hold an estate till his death after
whithitwàs to to Y, The interest acquired by Yurider the decree isa seditert as it was bound to
take effect from the death of X which was a certainevent. A vested interest is regarded as a
property which is divisible, transferable and heritable.
Contingent Interest: — Where an interest is generated in the transfer of property for the benefit
of an unborn child, the latter acquires a vested interest in that property upon birth. Where an
interest is generated in the transfer of property in favour of an individual to take effect only on
the occurrence or non-occurrence of a stated unknown event, a contingent interest in the property
is obtained by that person. The interest becomes a vested interest in the occurrence of the event
or when, as the case may be the occurrence of the event becomes unlikely. A contingent interest
is one in which no exclusive interest or right of enjoyment is presently granted, but both depend
on potential unpredictable events. There are three key features of a contingent interest. It is
solely dependent on the fulfilment of a condition that the interest will fall through in the event of
non-fulfillment of the condition. If before acquiring possession, the transferor dies, the
contingent interest fails and the asset returns to the transferor. Neither transferable nor heritable
is a contingent interest. An estate is forgiven to X before he gets married, and to Y after that
case. Y's participation in the bequest is contingent as it relies on a precedent condition that is X's
engagement, an occurrence that may or may not occur. Y has no proprietary interest in the estate
at present, and he may not alienate it. The contingent interest of Y becomes a vested interest as
soon as X marries, owing to the occurrence of X's marriage upon which it was contingent. The
transition is not completed in the contingent interest until the event stated occurs or does not
occur.
DISTINCTION BETWEEN VESTED AND CONTINGENT INTEREST:—
There are six points of distinction between a vested interest and a contingent interest.
a. If an interest therein is generated in favour of an individual on a transfer of property
without specifying the time it is to take effect, or specifying that it is to take effect at
once, or on the occurrence of an event that must occur, that interest is called the vested
interest. If that interest is to take effect only on the occurrence of a specified uncertain
event, or if there is no occurrence of a specified uncertain event, the interest received is
contingent interest.
b. A vested interest does not depend on any condition being fulfilled. This provides an
automatic right, even though the enjoyment may be deferred to a future date. A
 contingent interest depends entirely on the condition's fulfilment. The implication is that
the interest falls through if the requirement is not met.

c. c. The death of a transferee before he obtains possession does not defeat a vested interest.
In the case of the transferee's death before the satisfaction of the clause, a contingent
interest cannot take effect.
d. d. Transferable and inheritable is a vested interest. Neither transferable nor heritable is a
contingent interest.

e. If before real enjoyment, the transferor of a vested interest dies, the vested interest passes
on to his heirs. In the case of a contingent interest, the interest is not passed on to its
heirs, since that interest is inalienable and cannot be passed on to its heirs.
f. A vested interest is an immediate right at present, even if its enjoyment is delayed. A
contingent interest is not a right which is present. There is only a commitment to grant
such a right, and the promise can be annulled by the failure of the condition.
In Sashi Kantha v. Pramodachandra, the Calcutta High Court pointed out in the following
words, the distinction between a vested interest and a contingent interest: "An estate or interest is
vested as distinguished from contingent either when enjoyment of it is presently conferred or
when its enjoyment is postponed, the time of enjoyment will certainly come to pass; in other
words, an estate or interest is vested which there is immediate right of present enjoyment or a
present right of future enjoyment. An estate or interest is contingent if the right of enjoyment is
made to depend upon some event or condition which may or may not happen. In other words, an
estate or interest is contingent when the right of enjoyment is to accrue on an event which is
dubious or uncertain."'

Condition Precedent and Subsequent:— A precedent of a situation is one whose fulfilment

completes an inchoate title. A subsequent condition is one whose fulfilment extinguishes a title
that has already been completed. The precedent of a situation often comes before the
development of an interest. A subsequent condition often follows the vesting of an interest that is
already complete. In the case of a conditional precedent, the right is contingent. In the case of a
subsequent situation, it is already vested. The vesting of the right becomes complete if the
preceding condition is met, although the same was previously held conditionally. A subsequent
condition completes the depletion of a right already conditionally lost. A precedent of a
condition involves an inchoate or incomplete investing fact. A subsequent circumstance requires
an incomplete or inchoate divestitive truth. He who holds property subject to a power of sale or
appointment power vested in someone else, possesses it subject to a corresponding condition.
His title is complete, but there is an unfinished divestitive truth still in existence that will one day
complete itself and cut its ownership short. A tester may bequeath his property to his son Y, but
may at the same time leave his widow X with a residual power of alienation. If X chooses to
assert her authority, the son would be deprived of the land. By completion of a divestitive reality
that is already present in part, the ownership of Y is already vested but responsible for premature
determination.
X will give his property to Y, his wife, on the condition that the same will be passed on to his
sons A and B upon their marriage. The value of the property vests in Y and A and B will have
contingent ownership when X dies. If Y remarries, her vested equity is divested and A and B's
contingent ownership becomes vested ownership. What is a condition subsequent for Y is a
condition precedent for A and B.
A situation precedent has four characteristics. Before the estate will vest, a condition precedent is
one that must exist. Until the condition is executed, the estate is not in the grantee. In the event
that a precedent requirement is or becomes impossible for success or is unethical or contrary to
public policy, the transition will be invalid. A precedent requirement is considered to be met if it
is substantially complied with. There are four features of the resulting condition. An existing
estate is defeated by the resulting occurrence of a condition. In the event of a subsequent
condition, the estate automatically vests in the grantee and remains with him until the condition
is violated. In the event of a subsequent unlikely, unconstitutional and unethical circumstance,
the estate becomes absolute and the condition must be ignored. Where a gift was made on the
condition that the donor should marry a specific person on or before he reached the age of 21 and
that the person named died before she reached the age of 21, it was held that the estate became
absolute as the fulfilment of the condition subsequently became impossible. Although the
condition is void, a gift to which an unethical condition is subsequently added remains a good
gift. A corresponding provision must be strictly adhered to.
Distinction Between Condition Precedent And Subsequent
 a. a. A precedent of a situation comes before the interest is established. In the case of a
subsequent condition, the interest is created before and the subsequent condition will
function and divest it afterwards.
b. b. In the case of condition precedent, after the success of the condition precedent, the
vesting of the estate is deferred. In the event of a subsequent condition, vesting is
complete and not delayed.
c. In the case of condition precedent, by reason of non-fulfillment of the condition, an
interest once vested can never be divested. In the event of a subsequent circumstance,
interest, although vested, is liable to be divested on account of the non-fulfillment of the
condition.
d. In the case of condition precedent, before the condition precedent is performed, an estate
is not in the grantee. The estate automatically vests in the grantee in the event of a
subsequent circumstance and remains in it until the condition is broken.
e. In the case of condition precedent, if the condition precedent is impractical to carry out or
unethical, or contrary to public policy, the transition would be invalid. The transition
becomes absolute in the event of a subsequent situation, and the condition would be
ignored if that condition is impossible or unethical or contrary to public policy.

f. The condition precedent must in the case of condition precedent, be true in law. In the
event of a subsequent condition, this need not be the case because it is possible to ignore
the invalidity of the conditions.
g. In the case of condition precedent, whether it is substantially complied with the law of
cypres applies and the condition precedent is met. As for the following criterion, it must
be strictly fulfilled. The Cypres doctrine does not apply.
v. SOLE OWNERSHIP AND CO-OWNERSHIP
A right is usually held by only one person at a time. Duplicate ownership, though, is as much as
possible as exclusive ownership. Two or more people can have the same rights given to them. In
certain respects, it can be achieved and one of them is that of co-ownership. The right is a unity
undivided. The co-ownership can be terminated by a partition and the parties involved can have
their own separate shares. The partnership members are -co-owners of the property of the
partnership. When the right of ownership is granted solely to one person, it is referred to as sole
ownership. "Co-ownership, like all other forms of duplicate ownership, is possible only so far as
law makes provision of harmonrsing in some way the conflicting claims of the different owners
inter se. In the case of co-owners, the title of one is rendered consistent with that of the others by
the existence of the reciprocal obligations of restricted use and enjoyment."
Partners are co-owners of the chattels that make up their stockin-trade. Their right is not a
divided right, each of which owns a separate portion. The right is an undivided unity which is, at
the same time granted to more than one individual. If two partners have a credit balance of Rs
4000 in their bank, there is one debt of Rs 4000 due from the bank to both of them at once and
not two different debts of Rs 4000 due separately to each of them. Each party is entitled to the
full amount of Rs 4000, just as each would owe to the bank the whole of the company's
overdraft. Co-ownership requires the undivided integrity of the right of ownership.
vi. CO-OWNERSHIP AND JOINT OWNERSHIP
According to Salmond, "co-ownership may assume different forms. Its two chief kinds in
-English Law are distinguished as ownership in common and joint ownership. The most
important difference between these relates to the effect of death of one of the co-owners. If
ownership is common, the right of a dead man descends to his successors like other inheritable
rights, but on the death of one of two joint owners, his ownership dies with him and the survivor
becomes the sole owner by virtue of this right of survivorship or jus accrescendi". If the property
belongs to X and Y in equal shares and if it is generally owned, half of the property will be
passed to the heirs of X at the time of his death and the other half will remain with Y. However if
X and Y were joint owners, Y would have been entitled to all the land, and the heirs to X would
have received nothing. Each common owner is interested in part or share, but not in the entire
property. Common ownership is well established under Hindu law.
Joint ownership in the English form of law is very alien to Hindu law, and the inference
generally made where the grantees are Hindus is that they have a shared ownership. Popular
ownership familiar to Hindu law is the particular form of joint ownership of the members of the
undivided joint family of Mitakshara. The defining characteristic of the Mitakshara coparcenary
is the right of survival of its members. It is similar to the common tenancy in English law.
However the coparcenary of Mitakshara may be expanded to coparceners by the birth of the
male issue. Invested with the right of birth, the male issue often becomes a coparcener. This
feature is not part of the joint ownership of English law.
vii. ABSOLUTE AND LIMITED OWNERSHIP
An absolute owner is one in whom all rights are given to the exclusion of all. This means that
except for the absolute owner, there is no other person who has any claim whatsoever to the
matter in question. This does not mean, however, that he can use his property in whatever way he
wants. Restrictions can be enforced both by statute and by mutual agreement.
In cases where there are restrictions on the user, length or disposal of the rights of ownership,
ownership is restricted. Life tenancy is an example of restricted ownership in English law where
the estate is owned for life only. Before 1956, the property of a woman under the Hindu law was
reduced in ownership. If a Hindu woman had inherited property from a male or a female, it was
called a woman's estate. She owned the property only for her life, and she had limited power to
dispose of it. The pro after her death. After her death, the property went to the heirs of the last
holder of the property.
POSSESSION
According to Salmond, "in the whole range of legal theory, there is no conception more difficult
than that of possession." According to Bentham: "To define possession is to recall the image
which presents itself to the mind when it is necessary to decide between two parties, which is in
possession of a thing and which is not. But if this image is different with different men; if many
do not form any image; or if they form a different one on different occasions, how shall a
definition be found to fix an image so uncertain and variable. Defining the concept of possession
in law is like defining the geometric conception of roundness. Absolute roundness cannot be
defined and is nowhere to be found. We may say that a thing is round when it is round enough
for practical purposes; in other words, a thing is round when it is su nearly round that one is not
conscious that it is not round. Thus, for practical purposes a ping-pong ball is taken as round
although it is not absolutely round. Similarly legal possession cannot be defined absolutely and
perfectly, but for practical purposes certain conditions and rules of legal possession can be laid
down for the guidance of the courts."
IMPORTANCE
Possession is one of the most important concepts in the whole range of legal history. According
to Holland: "The ascertainment of the nature of legal possession is, in fact, indispensable In
every department of law. It is as essential to the determination of international controversies
arising out of the settlement of new countries, or to the conviction of a prisoner for larceny, as it
is to the selection of the plaintiff in an action of trover or trespass."
Many important legal consequences flow from the acquisition and loss of possession. Possession
is the prima facie evidence of the title of ownership. Transfer of possession is one of the chief
modes of transferring ownership. The first possession of a thing which as yet belongs to no one,
is a good title of right. Possession is so important that a possessor may in many cases confer a
good title on another even though he has none himself. If a property is already owned, its
wrongful possession is a good title for the wrongdoer as against all the world except the true
owner.
In Hannah v. Peel, the plaintiff was serving in the Royal Artillery. He was stationed in a house
requisitioned by the government and he accidentally found a brooch in an upstairs room
occupied by him. The brooch was handed nyc to the police. The police were not able to find out
the rightful owner and delivered it to the defendant who was the owner of the house. The
defendant sold the jewel for £.66. A suit was brought for recovery of the brooch or its jewel. The
plaintiff claimed the jewel as the finder. The contention of the defendant was that he was entitled
to it as the owner of the property on which it was found. The defendant was never in possession
of the house and had no knowledge of the brooch until it was brought to his notice. It was held
that the defendant had neither defacto control nor the animus of excluding others and as such had
no possession. The plaintiff was entitled to the brooch or its value since his claim as finder
prevailed over all but the rightful owner.'
In Bridges v. Hawkesworth, the plaintiff found a bundle of banknotes on the floor of a shop. The
notes had been dropped there by a stranger by accident. The party who lost them could not be
found. It was held that the plaintiff as the finder had property in the notes as against everyone but
the true owner. The defendant had no prior possession which could prevail over the claim of the
plaintiff. About this case, Salmond says that the shopkeeper (defendant) had not the requisite
animus for possession. Pollock is of the view that corpus possessionis was itself lacking as the
shopkeeper had no defacto control. Goodhart and Glanville Williams are of the opinion that this
case was wrongly decided. The shopkeeper had a general animus and sufficient control requisite
for legal possession as the thing was in his shop.
In South Staffordshire Water Co. v. Sharnuin, the defendant was cleaning out a pool of water
on their land under the orders of the plaintiffs and he found two rings. He declined to deliver
them to the plaintiffs but failed to discover the true owner. An action was brought for the
recovery of the ring. It was held that the plaintiffs were entitled to the rings. Lord Russel of
Killowen G.J. observed: "Where a person has possession of a house or land, with a manifest
intention to exercise control over it and the things which may be upon or in it, then, if something
is found on that land, whether by an employee of the owner or by a stranger, the presumption is
that the possession of that thing is in the owner of the locus in uno." It is contended that the
possession of land may not necessarily confer possession of all chattels attached to or under the
land. To have possession of the chattel, the corpus and the anirnus possidendi should co-exist. If
a chattel is unattached and lying loose upon the land, it is more than doubtful whether possession
can be claimed by the owner of the land without showing that he had the necessary animus and
corpus possessionis with reference to the chattel.
In Merry v. Green, the plaintiff purchased a bureau at an auction and got possession of it. In a
secret drawer, there was money belonging to the vendor. As the plaintiff had no animus in regard
to that money when he took possession from the vendor, he did not acquire possession of it. The
possession of the vendor was continuing in the eye of law as to the money in.the secret drawer.
The plaintiff subsequently found the money and appropriated it. In doing so, he was depriving
the vendor unlawfully and without his consent of possession which in law was still with him. It
was held that the plaintiff had committed the offence of larceny or theft by appropriating the
money.
In Akumella Panchayat Board v. Venkata Reddi, a public latrine was under the control of the
Panchayat Board. While carrying out certain repairs, the Board was obstructed by the defendant
who had no title to the latrine. It was held that the Panchayat Board were entitled to a declaration
of their possession and an injunction restraining the trespasser from interfering with the work of
the Board in carrying out the repairs. The fact that the Panchayat Board had no legal title to the
site on which the latrine stood, was immaterial as the defendant himself was not the owner of
that site."
DEVELOPMENT OF THE CONCEPT OF POSSESSION
As in the case of ownership, the concept of possession also has grown gradually in the course of
many centuries. As civilization began to progress, the people started taking possession of certain
objects and thus the idea of ownership began to grow. The straggle for existence was so bitter
that individuals began to take possession of certain objects and considered them as their own.
They began to take pride in the possession of those things and were not prepared to allow
outsiders to interfere with them. They were determined to exercise continuous control to the
exclusion of all others. From a humble beginning, the concept of possession and ownership
began to grow and much progress has been made in this connection.
A distinction has to be made between jus possession is or the right of possession and jus
possidendi or the right possess. Jus Possessionis is the right of the possessor to continue to
possess. I t is a right to remain in possession except against a person who has a better L:le. Even
a robber has the right of possession and only the true owner can interfere with his possession. If I
give something to my servant to be kept it, in custody on my behalf, he has physical possession
of the thing but he has no legal right to it. He has the jus possessions and not jus possidendi. This
is due to the fact that my servant has merely the corpus of possession and not the animus or the
intention of exercising control over it.
POSSESSION IN FACT AND IN LAW
Possession is divided into two categories, viz., possession in fact and possession in law.
Possession in fact is actual or physical possession. It is a physical relation to a thing. Possession
in law means possession in the eye of law. It means a possession which is recognised 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 defacto possession of a thing also comes to have de jure possession.
However, sometimes possession may exist in fact and not in law. If a servant holds certain things
in his custody on behalf of the master, he has the actual possession of those things but in the eye
of law, the possession is with the master. In certain cases, possession may exist in law and not in
fact. This is so in the case of constructive possession. A tenant may be occupying a particular
building but the landlord has the constructive possession of the same. The same is the case with
the things in the possession of servants, agents and bailees.
The fundamental element both in possession in fact and in law is the same. That element is the
possibility of excluding every person other than the possessor from the use or control of the
thing. According to Keeton. "Possession in law and possession in fact are not invariably
coterminus, although very frequently they are."
The Roman lawyers made a distinction between possession in fact as possessio naturalis and
possession in law as possessio civilis. In consequence of this divergence, pardy intentional and
avowed and partly accidental and unavowed, between the law and the fact of possession, it is
impossible that any abstract theory should completely harmonise with the detailed rules to be
found in any concrete body of law. Such harmony would be possible only in a legal system
which has developed with absolute logical rigour, undisturbed by historical accidents and
unaffected by any of those special considerations which in all parts of the law prevent the
inflexible and consistent recognition of general principles.
ELEMENTS OF POSSESSION
There are two elements of possession and those are the corpus of possession and 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 of the term must imply firstly some actual
power over the object possessed and secondly some amount of will to avail oneself of that
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 these essential elements of possession
by the terms corpus and animus respectively."
CORPUS OF POSSESSION
By corpus is meant that there exists such physical power or physical contact pf the possessor in
relation to the thing possessed so as to give rise to the reasonable assuthptiorl that other people
will not interfere with it. The corpus of possession can be considered under two heads: the
relation of the possessor to the other persons and the relation of the possessor to the thing
possessed.
Relation of the Possessor to Other Persons:-When I possess a thing it means that others shall not
interfere with the use of that thing. According to Pollock, the reality of defacto dominion is
measured in inverse ratio to the chances of effective opposition, A person is in possession of a
thing when the facts are such as to create a reasonable expectation that he will not be interfered
with in the use of it. He must have some sort of security for the acquiescence and not
interference by other persons. The security for noninterference may vary from a mere chance to
moral certainty. The measure of security is that which normally and reasonably satisfies the
anims dornini. The following are the sources from which such measure of security can be
derived:
i. The first source is the physical power of the possessor. I am in possession when I lock up
my money in a safe and thus realise my animus possidendi. Writers like Savigny are of
the view that possession means an intention coupled with the physical power to exclude
all persons from the use of that material object. But I may own a farm hundreds of miles
away or I may inherit a fortune during my infancy and may not be in a position to prevent
trespass or misuse of my fortune and yet I am in possession of the same. The assumption
of physical power to exclude aliens is no better than a fiction. The true test is not the
physical power of preventing interference but the improbability from interference from
whatever source it may arise.
ii. Another source is the personal presence of the possessor. The physical power of the
possessor and the personal presence of the possessor, though they commonly coincide,
are not necessary. The respect shown to the person of a man will commonly extend to all
things claimed by him that are in his immediate presence. Presence itself is protection.
Bolts, bars and stone walls will give me the physical power of exclusion without any
personal presence on my part. There may also be personal presence without any real
power of exclusion. A little child has no physical power as against a grown-up man, yet it
possesses the money in its hands. A dying man may retain or acquire possession by his
personal presence but not by any physical power left in him.
iii. Another measure of security may be secrecy. If a man wants to keep a thing safe from
others, he may hide it. In that case, he will gain a reasonable guarantee of enjoyment
which is just as effectively in possession of the thing as a strong armed man keeps his
goods in peace.
iv. Another measure of security is custom. There is a tendency among human beings to
acquiesce in established usage and this is an important source of defacto security and
possession. If ploughed and sowed and reaped the harvest of a field last year and the year
before, then unless there is something to the contrary I can reasonably expect to do it
again this year and I am in possession of the field.
v. Another measure of security is respect for rightful claim. Rightfulness of the claim or
rather a public conviction of its rightfulness is an important element in the acquisition of
 possession. A rightful claim will readily obtain that general acquiescence which is
essential to defacto security. A wrongful claim will not be respected. The two forms of
security, defacto and de jure, tend to coincide. Possession tends to draw ownership after it
and ownership attracts possession. An owner will possess his property on much easier
terms than those on which a thief will possess his plunder.
vi. Another measure of security is the manifestation of the animus domini. The visibility of
the claim is another element in the de facto security of its enjoyment. A manifested intent
is much more likely to obtain the security of general acquiescence than on which it has
never assumed a visible form. Open use of a thing carries with it a prima facie
rightmindedness with it.
vii. Another measure of security is the protection afforded by the possession of other things.
The possession of a thing tends to confer possession of any other thing that is connected
with it or accessory to it. The possession of land confers a measure of security regarding
the possession of chattels situated upon it. The possession of a house may confer
possession of chattels inside it. The proposition that the possession of land necessarily
confers possession of all chattels that are on or under it does not appear to be true.
Whether the possession of one thing necessarily carries with it the possession of another
depends upon the circumstances of each case. In the case of cattle straying on the land of
neighbours, the owner of the land has neither the animus nor the corpus to possess it. A
man effectually gives delivery of a load of bricks by depositing them on my land even in
my absence, but he could not deliver a roll of bank notes by laying them upon my
doorsteps.
The view of Pollock and Wright is that the possession of land carries with it in general
possession of everything which is attached to or under the land. The defendant employed by the
company to clean a pond upon their land found certain gold rings at the bottom. It was held that
the company, and not the defendant, had the first possession of it. The defendant lessee company
discovered a pre-historic boat six feet below the surf'ce of the land while excavating it for the
purpose of erecting gas works. It was held that the lessor and not the lessee had first possession
of the boat.
In Bridges v. Hawkesworth, a parcel of bank notes dropped by another person on the floor of the
shop of the defendant was found by die plaintiff-customer. It was held that the plaintiff had a
good title to it and not the defendant.
In N. N. Muzumdar v. State it was held that corpus without the animus is ineffective.
Relation of possessor to the thing posscssed:—The second element in the corpus possessionis is
the relation of the possessor to the thing possessed. ll that is necessary is that thepossessor
musthave the physical poer of dealing with the thing exclusively as his own Savigny writes:
_'Tht- physical power of dealing with the subject immediately and of excluding any foreign
agency ever it is the factum which must exist in.very acquisition of possesspn; This minimum
physical power is not ntessary to continue the possession as was required to give rise to it and
continuing possession depends rather on the constant powers of reproducing the original
relationship at will. For this reason, we do not lose possession by mere absence from the subject
which we have once appropriated to ourselves 1 although the physical relation in which we now
stand to it would not have sufficed in the first instance to obtain possession." Markby observes:
'Corporeal contact is not the physical element which is involved in the conception of possession.
It is rather the possibility of dealing with a thing as we like and of excluding others. If we
consider the various modes in which possession is gained and lost, we shall recognise this very
clearly.
I 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 as the key of the box is in my possession. A
person has some money in his pocket and some of it is dropped on the road. He continues to be
the possessor of the money fallen on he road till the same is picked up by somebody else. When
a person gives a dinner, his silver forks while in the 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 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 naturne, 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 Hindu usage, he is not the property of any individual and no person
can be guilty of theft. However, it has been held in certain cases 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 thatbul1. The
fish in a creek or in an open irrigation tank are not in the pOssession of the person who has right
of fishery. They become 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.
AMNIUS POSSIDENDI
Anirnus posszdcndz or the subjective element in possession is the intent to appropriate to one
self the exclusive use of the thing possessed. The animus possidendi is the conscious intention of
the individual to exclude others from the control of an object. Markby writes, “In order to
constitute possession in a legal sense there must exist not only physical power to deal with the
thing as we like and exclude others but also the determination to exercise that physical power on
our own, behaIf.” The view of Savigny is that every case of possession is formed on the state of
consciousness of unlimited physical power. Holland observes: "To some possibility of physical
control, there must at any rate for the commencement of possession, be superadded a will to
exercise, such control." Kant says: "There must be the empirical fact of taking possession
apprehension conjoined with the will to have an external object one's own."
There are certain aspects of animus possidendi which have to be considered.
i. The animus possidendi is not necessarily a claim of right. It may be consciously
wrongful. The thief has a possession no less real than that of the true owner.
ii. The claim of the possessor must be exclusive. He must intend to exclude other persons
from the use of the thing possessed. A mere intent or claim of use cannot amount to the
possession of the material thing itself. However, the exclusion need not be absolute. One
may possess his land notwithstanding the fact that some other person or the public at
large possess a right of way over it. Subject to this right of way, the animus possidendi is
still a claim to the exclusive use or control of the land.
iii. The animus domini need not amount to a claim or intent to use the thing as owner. A
tenant or borrower may have possession. Any degree or form of intended use or control,
however limited in extent or in duration, may, if exchsive for the time being, be sufficient
to constitute possession. The anunus possidendi need not be a claim to the use of the
thing at all as in the case of a pledge or a bailee with a lien.
iv. The animus possidendi need not be a claim on ones own behalf. A servant, agent of
trustee, may have true possession though he claims the exclusive use or control of the
thing on behalf of another.
 v. The animus possidendi need not be specified but may be merely general. A general intent
with respect to a class of things is sufficient (if coupled with the necessary physical
relation) to confer possession of the individual object belbnging to that class even though
their individual exercise is unknown. A fisherman is in. possession of all the fish secured
in his net. Likewise, I possess all the books in my library even though I may have
forgotten the existence of many of them.
It may be thought that when a person has possession of a receptacle such as a box, a
cabinet or envelope, his possession of the receptacle gives him possession of its contents.
SAVIGNY'S THEORY OF POSSESSION
According to Savigny, both the corpus of possession and the amimns possidendi must be present
to constitute possession. As regards the corpus of possession, it is necessary that in every
acquisition of possession there must exist in the possessor a physical power of dealing with the
subject immediately and of excluding others. When the possession of a thing has been acquired
and that possession is intended to be continued, the possessor must have the ability to bring forth
physical power to exclude others if they try to interfere with him in any way. However,
immediate physical power of the possessor over the thing is not necessary.
As regards the second element, Savigny remarks thus: "Animus possidendi must be explained by
animus domini or animus sibi habendi, and he only is to be looked on as in possession who deals
as owner with the subject of which he has the detention. That is to say, he must contemplate
dealing with it practically just as an owner is accustomed to do by virtue of his right and
consequently not as one recognizing anybody better entitled than himself."
Critics point out that there are certain shortcomings in the theory of possession of Savigny.
Possession is one conception and there are no separate aspects of it with regard to its acquisition
and possession. But it can be pointed out that the acquisition of possession differs from its
continuance. Reasonable expectation of non-interference by others is essential for the acquisition
of possession and not for its continuance. X snatches away the book of Y X does not acquire the
possession of the book as Y or anybody else may snatch-away the same from him. He comes to
have possession when there is expectation of noninterference.
Moreover, physical power to exclude others is not essential to the concept of possession. It is not
always possible to exclude others. It is not always necessary to exclude others whether in
acquiring or retaining possession. This is due to the fact that there are certain objects which
cannot be physically possessed. This is particularly so in the case of incorporeal possession. X
may have the right of way over the land of another person but this does not mean that I have
physical possession of the same. Thus, the theory of Savigny does not apply to incorporeal
possession. A child or a weak person has not the power to exclude others from possession as the
other parties are physically stronger. Moreover the same thing may be possessed by many
persons at the same time. In the case of joint possession, the possession by one party cannot be
exclusive.
About Savigny's theory, Lightwood points out that the requirements of a power to exclude
foreign agency goes too far. To quote him: "It is the absence and improbability of foreign
interference that constitutes the physical element and not the existence of any power of
exclusion." Salmond points out that a little child may have no physical power as against a strong
man and may yet possess the money in its hand. The view of Savigny that the corpus
possessionis is of two kinds according as it relates to the acquisition or the retention of
possession, is criticized by Salmond and Holmes. Salmond contends that there is no reason why
possession which represents a certain relation between a person and a thing, should be one thing
at its commencement and another in its continuance. The view of Holmes is that when once a
right is acquired, there is no ground on which the law need hold that right at an end except in the
clear manifestation of some fact inconsistent with its existence. On this principle, "it is only a
question of tradition or policy whether a cessation of the power to reproduce the original
physical relations shall affect the continuance of the rights." Possession may continue in law
even if the ability to reproduce the physical power of exclusion does not exist.
According to Dias and Hughes, the theory of Savigny as an explanation of Roman law is
demonstrably wrong. In the first place, Savigny overlooks the shift in the meaning of the word
"possession". He seems to have fallen into the common fallacy that words must necessarily
correspond to facts, and hence his desire to find factual content for possession. Secondly, he
based his statement of this factual content on the utterances of Paul, the jurist. Academic
speculation was nevcr the strong point of the Romans and Paul was no exception to it. In the
third place, it was erroneous to assume that corpus and animus which were only conditions
sometimes required for the acquisition and loss of possession, constituted possession itself.
Fourthly, Savigny's idea of animus domini, the intention to hold as owner, fails to explain the
cases of the pledgee, Emphyteuta, Sequester and Precario, Tenens, who had possession but did
not inter)d to hold at owners. He first condemned them as anomalous, hinted at "historical
reasons" and then suggested that they were cases of "derivative possession" or possession
derived from the owner. The view of Savigny that the temporary loss of one ingredient of
possession did not matter provided there was the ability to reproduce it at will, is also
inconsistent with the texts. It does not explain the continued possession of a fugitive slave
despite the owner's inability to reproduce the corpus element at all. The only conclusion is that
the theory of Savigny completely misrepresents Roman law.
It is not necessary that the possessor must intend to use the thing as owner. It is also not
necessary that he should recognize no one as having a better title to the thing than himself. A
bailee recognizes the title of the owner but he has still the possession of the thing. The same is
the case with the hirer of an article or a pawnee or a pledgee. Thus, Savigny's theory of
possession is not accepted in modern times.
It is generally agreed that Ihering was able to demolish the theory of Savigny. He approached the
idea of possession as a sociologist. He tried to answer the question as to why Roman law
protected possession by means of interdicts. His view was that interdicts were devised to benefit
owners by protecting their holding of property and so placing them in the advantageous position
of defendants in any action as to title. Persons who held property would in the majority of cases
be owners and possession was attributed to such persons in order to make interdicts available to
them. The view of Ihering was that whenever a person looked like an owner in relation to a thing
he had possession of it unless possession was denied to him by rules of law based on practical
convenience. The animus element was simply an intelligent awareness of the situation.
Critics point out that the view of Ihering is unduly coloured by the angle of his approach, i.e., the
interdicts. The special reasons of policy that lay behind the interdicts require that the person in
control should be protected. To that extent the idea of possession for purposes of interdicts had a
factual basis. The shift in the meaning of possession occurred outside that sphere and their
factual basis ceased to be true. The view of Ihering seems appropriate as an explanation of
interdictal possession. But as a general description of possession, it is needlessly narrow.
However, it is infinitely superior to the view of Savigny.
The view of Markby is that possession is "the determination to exercise physical control over a
thing on one's own behalf coupled with the capacity to do so". This definition is criticised on the
ground that it puts emphasis on the animus or the mental element of possession and ignores the
corpus or the objective part. It applies only to material objects and not to incorporeal objects or
rights. Moreover, the capacity to exercise physical control is not absolutely necessary to acquire
possession.
Holmes who started by refuting a priori philosophical ideas, perceived that less facts are required
to initiate possession than to acquire it. What constitutes possession can be best studied only
when possession is first gained. Accordingly, he pointed out that "to gain possession, then 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. These relations and this intent are the facts of which we are in search". Holmes
suggested that English Law does not require the animus domini element, but merely the intent to
exclude others. For instance, the tenant desires not to hold as owner of the land but only to
exclude the landlord.
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 a person and a thing
which is known as possession". Possession is a relation of fact and not one of right. It may be,
and commonly is, a title of right, but it is not a right itself. Possession is the defacto relation
between the possessor and the thing possessed. Critics point out that the view of Salmond is not
correct. Holland says that a right is "the capacity residing in a person of controlling with the
assent and assistance of the State, the action of others".
Pollock has given his own view of possession. According to him: "In common speech, a man is
said to possess or to be in possession of anything of which he has the apparent control, or from
the use of which he has the apparent power of excluding others." Pollock lays stress not on
animus but on defacto control which he defines as physical control. A general intent is sufficient.
The reduction of possession to a general criterion such as defacto control has led Pollock to face
certain difficulties. His theory does not explain how servants have custody for some purposes
and possession for others. Physical control to exclude others might be an important factor in a
primitive and lawless society but the more settled the community is, the less important is actual
physical power in the acquisition of possession. A child has not the physical power to exclude
the ruffian but he still has possession unless the ruffian actually takes it away from him. It is
clear from the above theories of possession that in English Law emphasis is laid on animus or
intent. The intent which constitutes possession is the intent to exclude others. According to
Holmes: "Such an intent is all that the commoh law deems needful and that on principle no more
should be required." Shartel writes: "1 want to make the point that there are many meanings of
the word possession, that possession can only be usefully defined with reference to the purpose
in hand and that possession may have one meaning in one connection and another meaning in
another."
Salmond writes: "Of all divergences between legal and actual possession, this is the most
notable, viz., that outside the law, possession is used in an absolute sense, whereas within the law
it is employed in a relative sense. Ouiside the law, we do not speak of a person having possession
as against someone else; we say that he either has or has not got possession. In law we talk rather
of possession as something which one person has against another."
METHODS OF TRANSFER OF POSSESSION
Transfer or acquisition of possession can be done in three ways, viz., by taking, by delivery and
by the operation of law.
i. As regards the acquisition or transfer of possession by taking, it is done without the
consent of the previous possessor. This also may be done in two ways. One is called the
rightful taking of possession and the other the wrongful taking of possession. A
shopkeeper is entitled to get some money from a customer and the shopkeeper takes
possession of the things of the customer. This is an example of the rightful taking of
possession. If a thief steals something from an individual, his acquisition of possession is
wrongful. However, if a person captures a wild animal which does not belong to
anybody, the possession is called original.
ii. Another way of acquisition of possession is by delivery or traditio. In such a case, a thing
is acquired with the consent and cooperation of the previous possessor. Deliveiy is of two
kinds, viz., actual and constructive. In the case of actual delivery immediate possession is
given to the transferee. There are two categories of actual delivery. According to one
category, the holder retains mediate possession and according to the other the holder does
not retain mediate possession. If I lend a book to somebody I retain the mediate
possession of the book but if I sell the same, I do not retain any mediate possession.
Constructive delivery is that which is not direct or actual. There are certain things which
cannot actually be transferred by the owner to the purchaser or by the transferor to the
transferee. In such cases, constructive delivery alone is possible. There are three kinds of
constructive delivery and those are traditio brevi manu, constitution possessorium and
 attornment. In the case of traditio brevi man u, possession is surrendered to one who has
already immediate possession. In such a case, it is only the animus that is transferred as
the corpus of possession is already with the transferee. I have already lent a book to
somebody, if I sell the same book to him, it is a case of traditio brevi manu. In the case of
constitution possessorium it is only the mediate possession that is transferred and the
immediate possession is retained by the transferor. I may sell my car to somebody but I
may retain the physical possession of the same for some time in spite of the payment of
price to me. In such a case, the animus is lost and I keep the car on behalf of the
purchaser. It is to be observed that in all cases of constructive delivery, there is a change
of animus alone and corpus of possession remains where it was before.
iii. Transfer of possession can be made by the operation of law as well. This happens when,
as a result of law, possession changes hands. If a person dies, the possession of his
property is transferred to his successors and legal representatives. Res nullius: According
to this principle, the first finder of a thing has a good title to that thing against all but the
true owner. It is immaterial if the tiling is found on the property of another person.
However, there are certain exceptions to this general rule. The rule does not apply if the
owner of the property on which the thing is found is in possession of the thing itself and
the property. The same is the case if the finder finds the thing as the servant or agent of
another person. The rule also does not apply if the possession of the thing was got
through trespass or other wrongful act. X wounds a hare in the forest and Y catches it on
his own field. Y has the better right to the animal. A parcel of bank notes is found by X, a
customer, at the floor of the shop of Y. Y had no knowledge of the existence of those
hank notes. X acquires a better title to the bank notes as the first possessor than Y. As the
shopkeeper was not aware of the existence of the bank notes, he could not be presumed to
be in their possession. In another case, a bank note was dropped in the shop of X. The
shopkeeper picked up the note and although he knew the owner of that note, he did note
return the same and converted it to his own use. He was held guilty of theft. In another
case, it was held that the first finder did not become the owner as he was merely an agent.
In still another case, it was held that the finder did not become the owner as his action of
removing the boat was a trespass.
KINDS OF POSSESSION
i. Immediate and Mediate: Immediate possession is also called direct possession and
mediate possession is also known as indirect possession. lithe relation between the
possessor and the thing possessed is a direct one, it is a case of immediate possession.
When that relation is through the intervention or agency of some other person, it is called
mediate possession. If I go to the bazar and buy a thing personally, it is a case of
immediate possession. If I send an agent to the bazar to buy something and he does make
the purchase, his possession is mediate and the possession of the agent is mediate. When
the agent hands over the thing to me, my possession also becomes immediate. There are
three categories of mediate possession. In the case of the first category, the owner has
possession through an agent or servant who acquires and retains possession of a thing
entirely on behalf of the owner without claiming any interest for himself. I send my
servant to the bazar on a bicycle to buy for me a pair of socks. In this case, I have mediate
possession of the bicycle and the socks. Likewise, if I deposit certain goods in a
warehouse or in a store, the latter holds those goods on my behalf and I retain their
mediate possession. Irl the second case, the immediate possession is with a person who
holds the thing on his own behalf and on my behalf and who is bound to hand over the
direct possession of the same whenever I desire. This is the case of a hirer, tenant at will
or a borrower. They all recognise the superior title of another person. In the case of third
category, the immediate possession is with one person but he is bound to return the same
after a certain period or on the fulfilment of certain conditions. If I owe some money to
somebody and pledge certain things to my creditor, the pledgee has immediate possession
of the thing pledged but is bound to return the same to the pledgor or on the payment of
the debt. The threefold classification of mediate possession has been criticised by certain
writers. It is pointed out that in the case of an agent or servant, he does not possess the
thing but has merely the custody of the thing. The animus possidendiis lacking.
Even if a thing is given to a servant for sale, he merely acquires the custody of the thing
in possession. The reason is that if he had immediate possession of the thing, he could not
be held guilty of theft in case of misappropriation. It is also pointed out that it is the
bailee and not the bailor who can sue for interference with the possession of the bailee. It
is the bailee who has the possession and not the bailor. In the case of a bailee at will, both
the bailor and the bailee have possession of the thing and both of them can sue for
 interference with their possession. It is also pointed out that two persons cannot be in
possession of the same thing at the same time adversely to each other. The reason is that
if one person has both the corpus of possession and the animus possidendi, he has full
possession of the thing and no other person can have possession to the same thing. The
case is different in the case of coowners. They are joint owners and neither of the two has
any right to exclude the other.
In the case of bailment at will, the bailor and bailee are both in possession of the same
thing at the same time.
ii. Corporeal and Incorporeal: Corporeal possession is the possession of a material objet and
incorporeal possession is the possession of anything other than a material object. I have
corporeal possession of my car and books, but I have incorporeal possession of a trade
mark, a patent and a copyright. Corporeal possession is the possession of a thing and
incorporeal possession is the possession of a right. According to the Italian Civil Code:
"possession is the detention of a thing or the enjoyment of a right by any person either
personally or through another who retains the thing or exercises the right in his name."
According to Burns: "Just as corporeal possession consists not in actual dealing with the
thing but only in the power of dealing with it at will, so incorporeal possession consists
not in the actual exercise of a right but in the power of exercising It at will; and it is only
because the existence of this power does not become visible as an objective fact until
actual exercise of the right has taken place that such actual exercise is recognised as an
essential condition of the commencement of possession."
iii. Representative possession: Representative possession is that in which the owner has
possession of a thing through an agent or a servant. The real possession is that of the
actual owner and not that of the representative. I put some money in the pocket of my
servant to buy certain things from the bazar. Money in the pocket of the servant is not in
his possession. It is a case of representative possession. The essece of representative
possession lies in the fact that the master has the ani,nus to exercise control over the thing
in the hands of his servant or agent.
iv. Concurrent possession: In the case of concurrent possession, the possession of a thi g
may be in the hands of two or more persons at the same time. Claims which are not
adverse and which are not mutually destructive, admit of concurrent realisation. In the
 case of concurrent possession, mediate and immediate possession may exist in respect of
the same thing. The possession of my servant over a thing of mine may be immediate but
my mediate possession is also there. Two or more persons may possess the same thing
jointly. Corporeal or incorporeal possession may exist with regard to the same material
thing. I may possess a piece of land and another person may have the right of way on the
same land.
v. Derivative possession: In the case of derivative possession, the holder of the thing
combines in himself both the physical and mental elements which constitute legal
possession. A creditor has a derivative possession of the thing pledged to him. Likewise,
a watchmaker has a derivative possession of 'a watch entrusted to him for repairs so long
as the repair charges are not paid. A bailee has a derivative possession of the goods bailed
to him. In these cases, the title of the holder of the thing is derived from the person who
entrusts the thing. It is pointed out that if the owner of the watch takes away the watch
forcibly without making the payment, he is guilty of theft.
vi. Constructive possession: Constructive possession is not actual possession. It is a
possession in law and not possession in fact. The goods sold by me are lying in a
warehouse and if I hand over the keys of the warehouse to the purchaser, the latter comes
to have the constructive possession of the thing. If! hand over the key of a building to a
tenant, Igive constructive possession of the building to the tenant. The handing over of
the key shows that possession has changed in law although not in fact.
vii. Adverse possession: The possession of property by a person is adverse to every other
person having or claiming to have a right to the possession of that property by virtue of a
different title. To be adverse, possession must be an invasion of the ownership of another.
It should be actual, exclusive and adequate in continuity and publicity. The acts of
possession must be exercised without violence, without stealth and without permission.
When these conditions are present, possession is considered to be adverse. The
conception of adverse possession is very important in law because when it is had for the
period laid down by law, it extinguishes the title of the true owner and creates a title in
the adverse possessor.
viii. Duplicate possession: Possession is a right to exclusive use and it is not possible for two
persons to have independent and adverse claims to possession of the same thing at the
 same time. The possession of a thing by one person is compatible with its possession by
another only when the two claims are not mutually adverse. Claims to possession which
admit of concurrent realisation give rise to duplicate possession.
The possession of co-owners is a case of duplicate possession and is usually called
compossessio.
Corporeal and incorporeal possession may coexist in respect of the same object. One
person may possess a land and another person can have a right of way over that land.
This is another illustration of duplicate possession. The most important case of duplicate
possession is what is called by Salmond as mediate and immediate possession.
Possession may be held on account of someone else. The person for whom possession is
held has mediate possession of property while the person holding the thing directly has
immediate possession. Examples of duplicate possession are furnished by the possession
of landlord and tenant, bailor and bailee and master and servant. The tçnant, the bailee
and the servant have immediate possession. They recognise the right to possession of the
landlord. The landlord and the bailor have mediate possession which avails against all the
world except the immediate possessor. The servant can claim no interest of his own and
holds solely for his master. The possession of the master is mediate possession and avails
even against the immediate possessor.
WHY POSSESSION IS PROTECTED?
There are many reasons for the protection of possession.
i. Protection of possession aids the criminal law by preserving the peace. According to
Savigny, the protection of possession is a branch of protection to the person. Possession
is protected in order to obviate unlawful acts of violence against the person in possession.
Interference with possession inevitably leads to disturbance of peace. Order is best
secured by protecting a possessor and leaving the true owner to seek his remedy in a
court of law. Justice Holmes writes: "Law must found itself on actual facts. It is quite
enough therefore for the law than man, by an instinct which he shares with the domestic
dog and of which the seal gives the most striking example, will not allow himself to be
dispossessed either by force or by fraud, of which he holds, without trying to get it back
again. To obviate the violence resulting from this, possession is protected by the law."
 According to Ihering, possession is ownership on the defensive. The possessor must be
protected and he must not be asked to prove his title. Most of the possessors are the
rightful owners and it is desirable that they should be protected. Possession is the
evidence of ownership. Possession is patent to all. Possession is the nine points of law
and hence protection should be given to possession.
According to Holland: "The predominant motive was probably a regard for the
preservation of the peace." The view of Windschield is that protection to possession is
given in the same way as protection is given against injuria or the violation of a legal
private right.
ii. Possession is protected as a part of the law of tort. Law protects possession not only from
disturbance by force but from disturbance by fraud. The protection thus afforded is a part
of the law of tort.
iii. According to the philosophical school of jurists, possession is protected because a man by
taking possession of an object has brought it within the sphere of his will. The freedom of
the will is the essence of personality and has to be protected so long as it does not conflict
with the universal will which is the State. As possession involves an extension of
personality over the object, it is protected by law. As the reputation of a person is
protected against defamatory attack, his possession is protected as he has projected his
personality over the object of possession.
Kant says that men are born free and equal. Freedom of will is the essence of man and it
must be recognised, respected, protected and realised by all governments. Possession is
the embodiment of the will of man. By taking possession of a thing, a person on
incorporates his will and personality in that thing. Possession is the objective realisation
of free will and the will of a person as expressed in possL:cion must be protected. Puchta
writes: "The will which wills itself, that Is, Fhe recognition of its own personality, is to be
protected." The view of Cc"is is that "the will is of itself a substantial thing to be
protected and this individual will has only to yield to the higher common will."
iv. Possession is protected as a part of the law of property. Cairns writes: "Possession was
originally protected to aid the Law of Crime and Tort; it came at length to be protected in
order to aid the law of property."" In the early stages of the development of the law of
property when proof of title to property was difficult, it was considered to be unjust to
 cast on a person whose possession was disturbed the burden of proving a flawless title.
Therefore, the law presumed that the possessor was the owner until a superior title was
shown to exist in someone else. In this way, possession came to be protected by law.
The view of Salmond is that distinct possessory remedies are not required and the
punishments of criminal law and the sanctions of the Law of Tort are sufficient to prevent
the evils of violent self-help. An owner who has dispossessed a trespasser need not be
required to deliver possession to the trespasser and recover it back in an independent
proprietary action. As for assistance rendered to the law of property, the modern law of
evidence can adjust the burden of proof suitably and avoid the duplication of proprietary
and possessory remedies. While these considerations are entitled to great weight,
expediency requires that possession as such must be protected. In India, a compromise
has been made between proprietary and possessory remedies. If the dispossessed owner
brings his suit promptly within six months, he is allowed to succeed merely on proof of
possession even against the true owner. If he brings his suit beyond that period, he is non-
suited if the defendant proves a superior title in himself.
POSSESSORY REMEDIES
Possessory remedies are those which exist for the protection of possession even against
ownership. Proprietary remedies are those which are available for the protection of ownership. In
many legal systems, possession is provisional or temporary title even against the true owner.
Even a wrongful possessor who is deprived of his possession can recover it from any person
whatsoever on the ground of his possession. Even the true owner who retakes his own, must first
restore possession to the wrongdoer and then proceed to secure possession on the ground of his
ownership.
There are many reasons why possessory remedies are recognised.
i. Possession often amounts to evidence of ownership. A finder of goods becomes its owner
against the whole world except the true owner. This is on the ground that he is in
possession of it. If a person is in adverse possession of a property for 12 or more years, he
becomes the legal owner of that property and the right of the original owner is
extinguished.
ii. The evils of violent self-help are very serious and in all civilised countries, those are
prohibited. Experience shows that there can be better conditions in society if the use of
 force is avoided by the real owners. Lawful methods are always to be preferred and no
one should take the law into his own hands.
iii. Another reason for possessory remedies is to be found in the serious imperfection of early
proprietary remedies. Those were cumbersome, dilatory and inefficient. Every claimant
had to undergo many hardships. The position of the plaintiff was a very difficult one and
no person was to be allowed to occupy the advantageous position of the defendant. It was
under these circumstances that it was provided that the original state of affairs must be
restored first. Possession must be given to him who had it first and then alone the claims
of the various persons could be settled. Under the old legal systems, it was extremely
difficult to prove one's ownership and recover the property on the ground of title. Very
often, small technicalities resulted in the defeat of one's title to property.
iv. Another reason for possessory remedies is that it is always more difficult to prove
ownership than to prove possession. Hence it is unjust that a person who has taken
possession of property by violence should not be allowed to transfer the heavy burden of
proof from his own shoulders to that of his opponent. He who takes a thing by force must
restore it and he is free to prove that he is the owner.
POSSESSORY REMEDIES AND DOCTRINE OF JUS TERTII
Possessory remedies have been rejected by English Law but other provisions have been made to
protect possession. There are three rules in this connection. Prior possession is prima facie proof
ol title. He who is in possession first in time has a better title than the one who has no possession.
A defendant is always at liberty to rebut that presumption by proving that he has a better title. A
defendant who has violated the possession of the plaintiff is not allowed to set up the defence of
jus tertii which means that he cannot plead that though neither the plaintiff nor he has the title,
some third person is the true owner but the plaintiff is not. This defence is not valid under
English Law as prior possession is always a prima facie proof of title. Though the title of a third
person is not a good defence, English Law considers jus tertii as a good defence under the
following circumstances:
i. When the defendant defends the action on behalf of and by the authority of the true
owner.
ii. When he committed the act complained of by the authority of the true owner.
iii. When he has already made satisfaction to the true owner by returning the property to him.
DISTINCTION BETWEEN POSSESSION AND OWNERSHIP
According to Ihering: "Possession is the objective realisation of ownership." It is the external
realisation of ownership. It is a valuable piece of evidence to show the existence of ownership. It
is in fact what ownership is in right. It is the defacto exercise of a claim while ownership is the
de jure recognition of that claim. Possession is the defacto counterpart of ownership. It is the
external form in which rightful claims normally manifest themselves.
By ownership in law is meant the right of an individual or a body corporate or incorporate to
possess a thing to the exclusive use of it, to alienate it, and even to destroy it in such a manner
that he does not disturb the rights of other people. In the strict sense of the term, ownership is a
right to the enjoyment of the uses of the subject-matter, with a right to deal with it in any manner
the owner pleases. It is not necessary that the owner of the corpus should enjoy all the rights or
uses at the same time. He may either use it or keep it locked in the house. He may use it
everyday or sparingly. He may exclude strangers or outsiders from using it. He may gift it away
to anybody. He may even destroy it. His right is against the whole world. Nobody can disturb
him in the peaceful enjoyment of the thing owned by him. In the case of incorporeal rights such
as a copyright, trade mark or patent, he can use all those rights to the exclusion of all others.
According to Austin, ownership in its wider sense is a right "indefinite in point of user,
unrestricted in point of disposition and unlimited in point of duration". The right of alienation of
property is a necessary incident to the right of ownership, but there are many restrictions with
regard to the alienation of property today.
According to Pollock: "Ownership may be described as the entirety of the powers of use and
disposal allowed by law. The owner of a thing is not necessarily the person who at a given time
has the whole power of use and disposal; very often, there is no such person. We must look for
the person having the residue of all such power when we have accounted for every detached and
limited portion of it, and he will be the owner even if the immediate power or control and user is
elsewhere."
According to Salmond, ownership in its widest sense implies "the relation between a person and
any right that is vested in him". According to Salmond, possession "is in fact what ownership is
in right. Possession is the de facto exercise of a claim; ownership is the de fore recognition of
one. A thing is owned by me when my claim to it is maintained bythe will of the State as
expressed in the law; it is possessed by me when my claim to it is maintained by my own self-
assertive will. Ownership is the guarantee of the law; possession is the guarantee of the facts."
Again, "possession, therefore, is the de facto counterpart of ownership. It is the external form in
which rightful claims normally manifest themselves. The separation of these two things is an
exceptional incident, due to accident, wrong or the special nature of the claims in question.
Possession without ownership is the body of fact, uninformed by the spirit of right which usually
accompanies it. Ownership without possession is right, unaccompanied by that environment of
fact in which it normally realises itself. The two things stand mutually to coincide. Ownership
strives to realise itself in possession and possession endeavours to justify itself as ownership. The
law of prescription determines the process by which, through the influence of time, possession
without title ripens into ownership, and ownership without possession withers away and dies."
Ownership and possession have the same subject-matter. Whatever can be owned can also be
possessed and whatever can be possessed can also be owned. However, there are certain claims
which can be realised and exercised in fact without receiving any recognition or protection from
law. There is no right vested either in the claimant or in anyone else. There is possession without
ownership. Man may possess copyrights, trade marks and other forms of monopoly though law
may refuse to defend the same. There are many rights which can be owned but hot possessed.
There are transitory rights which do not admit of continuing exercise and possession. They
cannot be possessed as they are destroyed after their fulfilment. A creditor does not possess a
debt as it is a transitory right. However, a person can possess an easement over a piece of land as
its continued existence is possible. A right in rem can both be owned and possessed but a right in
personam can be owned but it cannot be possessed.
Possession and ownership differ in their mode of acquisition. The transfer of possession is
comparatively easier and less technical, but the transfer of ownership in most cases involves a
technical process of conveyancing. The distinction between possession and ownership on the
basis of fact and right is not tenable. Fact and right are not quite separate and independent ideas.
One cannot exist without the other. To say that one is a fact and the other is a right is not correct.
Though there may be a difference of degree, both the things (fact and right) are present in both
the concepts.
MEANING OF PROPERTY

The word "property" is not a term of art. It has been used in a number of ways.
 i. In the broadest sense of the word, property contains all the legal rights of an individual of
any type. The property of a man is all that he has in law. Such use of the word is popular
in old books, even though it is becoming out of fashion in modern times. In Blackstone's
view: "The inferior hath no kind of property in the company, care or assistance of the
superior, as the superior is held to have in those of the inferior." According to Hobbes: Of
things held in propriety, those that are dearest to man are his own life and limbs; and in
the next degree, in most men, those that concern conjual affection and after them riches
and means of living." According to Locke: "Every man has a property in his own
person." Every individual has a right to preserve "his property, that is, his wife, liberty
and estate".

ii. In a narrower context, property comprises the property rights of a person and not his or
her personal rights. Proprietary rights shall constitute his estate or property, and personal
rights shall constitute his status or personal condition. In this sense, land, chattels, shares
and debts owed to a person are his property, but not his life or liberty or reputation. This
is the most common context in which the word is used in modern times, although the
other meanings still have equal authority.

iii. In another context, the word property includes only those rights that are both proprietary
and real. The law of property is the law of property rights in rem. In this context, a
freehold or a leasehold property in land or a patent or copyright is a property and not a
debt or a gain of a contract.

iv. In the narrowest usage of the term, property constitutes nothing more than physical
property or the right of possession of material property. According to Ahrens, property is
"a material object subject to the immediate power of a person".

v. According to Austin, the word "property" is often used to denote the greatest right of
enjoyment known to the law, excluding servitudes. Life interests are often represented as
land. Even the servitudes are represented as property in the sense that they have a legal
title. Often, property means all of a man's estate, including both rights in rem and rights
in personam.
 Intellectual or intangible property has become very important in modern times. Examples
of such property are copyrights, trade marks, concept property and patents. It's according
to Erie J.: "The notion that noting is property which cannot be earmarked and recovered
in detenu or trover, may be true in an early stage of society when property is in its
simplest form and the remedies for the violation of it are also simple, but it is not true in a
more civilized state when the relations of life and the interests arising therefrom are
complicated."
KINDS OF PROPERTY
Property is basically of two kinds: corporeal and incorporeal. Corporeal property can be further
divided into movable and immovable property and real and personal property. Incorporeal
property is of two kinds: rights in re propria and rights in re aliena or encumbrances.
I. CORPOREAL PROPERTY
Corporeal property is sometimes called tangible property because it has a tangible presence in
the universe. It has to do with material things. The right of ownership of a material thing is the
general, permanent and inheritable right of the user. Land and chattel ownership is the sum-total
of the rights of the user.
a. a. Corporeal property is of two types, movable and immovable. Land is an immovable
property and chattel is a movable property. The immovable piece of property, he says,
has several components. It is a defined portion of the earth's surface. It involves the land
below the surface down to the centre of the world. It also contains an ad infinitum
column of space above the floor. In Coke's view: "The earth hath in law a great extent
upwards, not only of water as hath been said but of air and all other things even up to
heaven." According to the German Civil Code, the land owner occupies the area above it.
He has no right to ban actions that are so far from the surface that they do not in any way
impact his interests. The right of free and innocuous passage at a fair height over the land
shall be protected and regulated by the Air Navigation Act, 1920. It also involves
artefacts on or below the surface in its natural state, e.g. minerals and natural vegetation.
They're all part of the ground, although they're not physically bound to it. Land often
involves all items placed on or under the surface of a human agency for the purpose of
permanent annexation. Examples include houses, doors, fences, etc.
 Under the General Clauses Act of 1897: "Immovable property includes land, bnefits
arising out of land and things attached to the earth or permanently fastened to anything
attached to the earth." According to the Indian Registration Act: "Immovable property
includes land, building, hereditary allowance, rights of way, lights, ferries, fisheries or
any other benefit to arise out of land and things attached to the earth or permanently
fastened to anything attached to the earth but not standing timber, growing crops or
grass." The Indian Transfer of Property Act excludes standing timber, growing crops and
grassfrom the definition of immovable property. Movable property includes all corporeal
property which is not immovable.
b. Rent and Personal Property: The distinction between real and personal property is closely
related, but not similar, to the distinction between movable and immovable property. The
relation, however is historical and not factual. Real property shall mean all rights in
respect of land recognised by statute. Personal property shall mean all such proprietary
rights, whether they be rights in rem or rights in personam. According to Paddy: "Real
property and immovable property form intersecting circles which are very nearly though
not quite coincident. The law of real property is almost equivalent to the law of land,
while the law of personal property is all but identical with the law of movables. The
partial failure of coincidence is due not to any logical distinction but to the accidental
course of legal development; and to this extent the distinction between real and personal
property is purely arbitrary and possesses no scientific basis. Real property comprises of
rights over land, with such advantages and exceptions as the law has seen fit to establish.
All other proprietary rights, whether in rem or in personnm pertain to the law of personal
property."
II. INCORPOREAL PROPERTY
Incorporeal property is intangible property. It is often referred to as intellectual or traditional
property. It encompasses all those important interests which are covered by law. Recently,
the identification and security of intangible assets has been secured. In the past, property in
the form of land alone was considered to be all significant. In modern times, a lot of the
country's property can be found in the form of limited partnership shares.
a. Rights in re propria: Incorporeal property is of two kinds viz., rights in re propria and
rights in re a1iena. Rights in re propria are those ownership rights to one's own property
that are not exercised on material items. The law of property usually deals with material
objects. Ownership of such non-material objects created by human capacity and labour is
however, known as property in certain instances. The most important of such rights are
patents, literary copyright, artistic copyright, musical and dramatic copyright, commercial
goodwill, trade marks and trade names.

i. The subject-matter of a patent is a new concept or a specific method of

manufacture created or discovered by human talent and labour. Patents become
commercially important when a monopoly of exploitation is granted to the patent
holder. Law shall take action against anyone who infringe patents in some way
whatsoever.

ii. Literary copyright is the property of the author of books. No person is permitted
to print it and if he does, he will be fined. Literary copyright is a huge bonus to
the authors of the world. It is this right that allows them to make a living and to
make provision for their successor. Copyright remains not only throughout the
lifetime of the author and the co-author, but also after their death.
iii. In the case of artistic copyright, unique designs or types are the subject matter.
The artist alone shall have the exclusive use of design or type. Such copyright
exists in the case of drawings, paintings, photos, etc.

iv. Musical and dramatic copyright consists of musical and dramatic works. The
composer, the musician and the playwright have the exclusive right to use their
material. Any improper performance or representation can be punished with
imprisonment or fines or both.
v. The goodwill of a corporation is a precious right obtained by an individual for a
significant period of time by his labour and abilities. Quite often the selling of
goodwill gives a lot of money to the owner.

vi. Trade names and trademarks are also the property of those who own them.
They're shielding the public from cheating. They guarantee a special standard of
the products.
 vii. Holland   introduces a new category of intangible property to the list. To quote
it:"With such intangible property should probably also be classified those royal
privileges subsisting in the hands of a subject which are known in English Law as
franchises, such as right to have a fair or market, a forest, free warren or free
fishery."
b. Rights in re aliena: Rights in re aliena are known by the name of encumbrances. They are
privileges in the realm of being held by another. Such rights shall run with the res
encumbered. They're keeping the res in whose hands it may pass. Encumbrances are the
rights of a specific user and are separated from the rights of the general user.
Encumbrances prohibit the owner from exercising those rights in respect of his land. The
key forms of liabilities are loans, servitudes, shares and trusts.
i. Leases: A lease is a fee granting the right to own and use the property of another
person. It is the transfer of the right to enjoy a particular property. It's either for a
limited time or in perpetuity. This is an agreement by which the owner of the
property or the lessor transfers his right of possession to the lessor. It is not an
utter transfer of all rights to land. It's just a partial move. What is transferred is
just the right of possession and use of the land. It distinguishes ownership from
the property. Ordinarily, the lease is in respect of the property. However any right
that may be possessed may be the subject of a contract. Thus, copyright leases,
trademarks, rights of way, the right to obtain interest on government promissory
notes, etc can exist.
ii. Servitudes: — A servitude is "that form of encumbrance which consists in a right
to the limited use of a piece of land without possession of it". According to Paton,
In rem, the holder of a servitude has the right to either place a res belonging to
another class of definitely limited uses or to prohibit the res owner from
transferring it to a certain class of definitely determined uses. There is no
possession in the case of servitude, and this distinguishes it from a contract. If I
secure, without owning, the exclusive possession of a piece of land, I shall acquire
a lease.
The right of way through the property of others the right of light and air, the right
of point of view, the right of the public to pass through the land, the right of
farmland, the right of recreation on a piece of land, the right to fish, the right of
public navigation, etc are examples of servitudes.
Kinds of servitudes:—Servitudes have been categorised in several respects. Some
identify them as praedial, personal and positive and negative. A praedial or actual
or apprehensive servitude is the one enjoyed by the owner for the time being by
land or a house over another piece of land. The land at the house is called the
dominant tent, and another piece of land is called the Servient tenement. Such
servitude is the right to use one property for the gain of another property.
Dominant property is necessary. The servitude passes through the transition of the
dominant tenement. That's why it’s called "appurtenant to the dominant
tenement".
It is difficult to distinguish a true servitude from the dominant tenement. The right
of way, the right of support of a building by the neighbouring soil, the right of
access to light from the windows, etc are examples of such facilities. A personal
servitude is one that, due to his pennaIity, is vested in an individual. No particular
tenement is connected to such a right. The right of one person to fish in another
person's pond is an example of such servitude.

One that entitles the owner to do something is a positive servitude. The Ri to walk
across another person's land is an indication of such servitude.
A negative servitude entitles the master to stop doing anything for the servant
owner. Higher than that of the dominant owner, the servnt owner can be stopped
from constructing his home. The vision, possibility, light or air that the dominant
owner enjoys can be prevented from obstructing him. The owner is entitled to do
anything by a constructive servitude and the negative servitude entitles him to
stop doing something by another rom. A positive servitude can be lost by non-
users, but with a negative servitude, it can not be the case. Only if the servient
owner breaches the servitude and the dominant owner submits to it may the latter
be lost.
Sir John Salmond classifies servitudes as gross, public and private, and
appurtenant servitudes. Appurtenant servitudes are enjoyed by the owner of land
 or a house over another piece of land for the time being. Servitudes in gross are
those that are not attached to any particular land or building or are accessory to it.
The public right to navigate or fish, the public right of way or the right of pasture
are examples of such servitudes.
Some people own private servitudes and public servitudes vest in the public at
large. The right to light, the right of way, the right to fish, etc., which one person
owns, are examples of private service. The right of the public to travel through a
specific field or a house is an example of public service. Reference to what are
called easements can be made. An easement is in a way, the same thing as
servitude. Servitudes, however, may be split into easements and a take income.
Easements only require the servitudes of the private and appurtenant. The right of
way is one example of an easement. The profits of a take only include the right to
obtain those profits from the tenement of the servant. The right to graze animals,
or the right to fish in a pond, is an example of such servitude.
iii. Securities: —According to Lord Wrenbury: "A security is a possession such that
the grantee or holder of the security holds as against the grantor a right to resort to
some property or some fund for the satisfaction of some demand, after whose
satisfaction the balance of the property or fund belongs to the grantor. There are
two owners and the right of the one has precedence over the right of the other."
According to Salmond: "A security is a. jus in re aliena, the purpose of which is to
ensure or facilitate the fulfilment or enjoyment of some other right (usually
though not necessarily a debt) vested in the same person." Protection varies from
security. In the case of a security, the debt is paid to a specific res. In the case of a
surety, if the latter fails to pay the debt of another, the security is obliged to pay
the debt of another.
Mortgage and Lien:— According to Salmond, the securities are of two kinds:
mortgages and lien. A mortgage is the transfer of an interest in a single
immovable property in order to guarantee the loan payment of the money
advanced. A lien is the right to keep the property of another person as protection
for the performance of an obligation. In the case of a mortgage, the property is
passed to the mortgage holder, but it stays with the owner in the case of a lien. In
 the case of a mortgage, the redemption equity is owned by the mortgageor. Via
paying back the money, he can get back the house. Both the mortgageor and the
mortgagee hold limited property rights. Ownership remains with the debtor in the
case of the lien, but the borrower is granted custody of the item and he is entitled
to hold the same until his claim is fulfilled. A lien is a right of protection and an
accessory, but an independent or principal right is a mortgage. Therefore the right
of lien vests completely in it. The mortgage right is more than a defence and vests
conditionally and not fully. As a lien is applied to the loan, the extinction of the
debt is immediately brought to an end. A mortgage is an individual right and can
survive long after the debt has been extinguished. In the case of a lien, there is no
transfer of a right, but in the case of a mortgage, there is a transfer of a right. It is
possible to mortgage any valuable transferable right. A lien is only formed by
means of encumbrance, so either transfer or encumbrance creates a mortgage. In
the case of a lien, absolute legal and equal ownership is retained by the debtor.
The creditor only has rights and powers that can safeguard his interest, such as
sale, possession, etc. Where a mortgage is generated by the transfer of the debtor's
right to the borrower, the beneficial or equal owner is the debtor. The mortgagee
becomes a mere trustee upon the payment of the debt.
Kinds of Liens:— Liens are of several kinds: possessive bond, right of distress or
seizure, power of sale, power of forfeiture and fee. A possessive lien is the right to
maintain the possession of chattels or other property of the debtor. The right of
distress or seizure shall be the right to take possession of the property of the
debtor, with or without the power of sale. Examples of such a lien are the right of
re-entry of the landlord, the power of the seller to forfeit the earnest money paid
by the prospective purchaser, etc. The compensation shall be the right of the
borrower to obtain payment from a particular fund or from the proceeds of a
specific asset.
iv. Trust:— The trust is a responsibility attached to the ownership of the land. It
emerges out of a trust rested upon and agreed by the owner or declared and
accepted by the owner for the good of another person or another and the owner.
The individuals for whose interest trusts are formed are babies, madmen, unborn
persons, etc. According to Paton: "The trust has served in many fields. Firstly, it
has been used by associations as a means whereby the group property can be
applied to the desired purposes. Secondly, the problem of endowments and of
gifts for charitable and religious purposes is made easy, for the property may be
vested in trustees for such purposes as the settler desires. Thirdly, the trust has
been of great social importance in making possible a facile settlement of family
property; the young have been protected from their inexperience; a married
woman, through the help of equity, secured a certain measure of economic
independence in spite of the common law rule which then vested her chattels in
her husband."