Isha, a 2nd year at Lloyd law college has written this article explaining Ownership and possession in Jurisprudence
In the realm of property and legal rights, the concept of ownership and possession play pivotal roles. While they may seem interchangeable at first glance, they are, in fact, distinct ideas with varying implications in different contexts. Understanding the difference between ownership and possession is essential for ensuring clarity in matters of property rights and legal responsibilities.
Ownership refers to the relation that a person has with an object that he owns. It is an aggregate of all the rights that he has with regards to the said object. These rights are right in rem it means that they can be enforced against the whole world and not just any specific individual. The concept of ownership includes a number of claims such as power, liberty and immunity in regard to the thing owned. Therefore, ownership is a sum total of possession, destruction, and disposition which includes the right to enjoy property by the owner.
Austin says ownership refers to “a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration”.
- Indefinite user
- Unrestricted disposition
- Unlimited duration
Criticism against definition- It is fallacious to think that ownership is a single right, in fact it is a bundle of rights including right of user and enjoyment, second that the owner has an unrestricted right of disposition is not correct. The right of ownership can be curtailed by the state subject to injurious to public health/ or for public use as per constitution of India Art 31(2), any property can be taken by the state for public use.
Hibbert define Ownership which includes within its four kinds of right
- Right to use a thing
- Right to exclude others from using the thing
- Disposing of thing
- Right to destroy
- Salmond defines “ownership, in its most comprehensive signification, denotes the relation between a person and right that is vested in him”
According to Pollock– ownership is the entirety of the powers to use and disposal allowed by law”. He further says that it is not necessary that all the powers of an Owner need be exercisable at once and immediately.
Hohfeld expresses a similar view that of Salmond, when he says ownership is not a right but a bundle of rights, privileges, powers, etc.
Essentials of Ownership
- There are three main things in ownership i.e., Right of possession, right of enjoyment and power to dispose of the property.
- Ownership is Unlimited, unrestricted and indefinite in point of user.
- Ownership is residuary in character. Owner is the one who is entitled to the ‘residue of rights’ with respect to an object left after the limitation resulting from the voluntary acts of the owner such as mortgage, lease, etc. or those imposed by law are exhausted.
- Law does not give ownership rights benefit to unborn child or an insane person because they are incapable in thinking the nature and consequences of their acts.
- The right of ownership does not end with the death of the owner, instead, it is transferred to his heirs.
Types of Ownership
Corporeal and Incorporeal
The ownership of material and tangible things (object which can be touched and perceived) movable or immovable is called Corporeal Ownership. Ownership of house, table, land, machinery, etc. are few of the examples of corporeal ownership.
The ownership of Rights is called incorporeal Ownership, it is the ownership of Intangible objects such as copyright, patent, trademark, right of way etc.
Sole ownership and co- ownership
Sole ownerships are those ownership which is vested in a single person. Co-ownerships are those in which ownership is vested in two or more persons at the same time.
Trust and Beneficial Ownership
In this ownership a property owned by two persons wherein one person is obligated to use it for the benefit of the other. The person under such an obligation is called the trustee and his ownership is known as trust ownership. The person to whose benefit the property is to be used is called the beneficiary and his ownership is known as beneficial ownership.
Legal and equitable ownership
The ownership recognized under the rules of common law was legal ownership. Whereas, the ownership recognized under the equity courts on equitable principle was called equitable ownership.
Vested and Contingent ownership
All kinds of ownership may either be vested or contingent. Ownership is said to be vested when ownership title is already perfect. Whereas, ownership is said to be contingent ownership if it is little imperfect, but can be made perfect by fulfilling certain conditions.
Absolute and Limited ownership
When a person has all the rights of ownership i.e., possession, enjoyment and disposal without any restrictions except those laws which are imposed by law in the interest of society, his ownership is absolute. On the other hand, if the ownership has limitations in use, duration or disposal, the ownership is limited ownership.
MODES OF ACQUIRING OWNERSHIP
There are two generally known mode of acquisition of ownership
This mode is the result of some independent personal act of the acquirer.
- Absolute- when there is no previous owner of the thing i.e., res nullis (ownerless thing) then it is absolute ownership.
- Extinctive- when the ownership of a previous owner is terminated by the acquirer or when person by his personal acts extinguishes the ownership of previous owner is known as extinctive ownership.
- Accessory mode- in this ownership is acquired through accession.
when ownership is derived from the previous owner is known as derivative mode of ownership.
- Title of previous ownership– A title is acquired when previous owner gives its consent, it is only limited to contracts but includes all bilateral acts which create an interest.
- Purchase– A contract for sale does not confer title in immovable property. According to section 54 of transfer of property act, a contract for sale of immovable property is a contract that such sale shall take place on terms settled between the parties.
- Gift– Gift should be voluntary and without any consideration and it may be movable or immovable.
- Succession– In several judgements it was held that genuineness of will has to be established.
Possession is the most basic relation between man and things. It provides the evidence of ownership. It is the most important and practical concept. Literal meaning is the physical control over something but later expanded to intentions along with the physical power. Its main intention is the exclusion of others from the use of it.
- Holmes – Acc. To Holmes, to gain possession a man must stand with the physical relation with the object and rest of the world.
- Henry Maine defines possession as contact with an object which provides the rights of exclusion of other form the enjoyment of it.
- Pollock defines possession as physical control over a thing.
- Savigny defines physical power of exclusion.
Possession of material thing is essential to life because the existence of human life and human life and human society. It is also one of the modes of transferring ownership. Possession is said to be nine out of ten points of law meaning thereby that it is evidence of ownership.
ELEMENTS OF POSSESSION
- Corpus (physical)
- Animus (Mental element)
Corpus denotes two things:
- The possessor’s physical relationship to the res or object; and
- The possessor’s relationship to the rest of the world.
It refers to the possessor’s physical contact with an object in such a way that it conveys the possessor’s intention to utilize the object exclusively. In this a person must have some physical touch with whatever he owns to have a reasonable expectation that others will not interfere with it, i.e., that others will not interfere with the possessor’s right to use or enjoy that object.
More physical contact or control over a thing is not enough, but it must be accompanied with a will or intention to exercise such control. Elements of animus Poissidendi-
- It may not be rightful e.g., possession of thief
- The claim of the possessor must be exclusive but the exclusion need not be absolute.
- The person having the animus is not necessarily the owner. E.g., Possession of the tenant.
- It need not be a claim on one’s own behalf. (Master and servant)
POSSESSION IN FACT AND POSSESSION IN LAW
What is Possession in fact
Possession in fact is also known as the De facto possession, it is actual or physical possession or physical possession, it is actual or physical possession or physical relation to a thing. De facto possession exists where the thing is in the immediate occupancy of a party. The person in De facto possession has the physical control of the thing to the exclusion of others and has animus and corpus over the material object. It may be described as actual possession.
Possession in law
Possession in law also known as the De Jure possession means it is recognized and protected by law. De jure possession exists when person claims a thing as his own in natural legal manners by occupying a thing without any dispute as to his legal right to possess and enjoy the thing.
MODES OF ACQUIRING POSSESSION
- Delivery– Transferring the possession voluntarily is delivery. The transfer gives the actual position to the transferee. It is usually a lawful mode of possession.
- Actual delivery- Going to the shop to buy gold and when we pay money, we get the actual delivery of gold.
- Constructive delivery- when we give our car keys to a mechanic for repair or servicing, giving car keys is constructive delivery.
- Taking– taking implies an act exclusively on the part of the person who physically takes possession. It is the acquisition of the possession without the consent of the previous possessor. It is the possession without the consent of the possessor.
- Legal or Rightful – tenant ran away without paying the rent so the owner has right to take over the goods left behind.
- Illegal or wrongful – Theft goods like thief has taken my purse.
- Operation of law– when delivery is by legal action. Example – Deceased’s property goes to his legal heirs.
TYPES OF POSSESSION
- Duplicate/concurrent possession– When the possession of a thing is in the hands of two or more people at the same time.
- Mediate and Immediate Possession– When a third person is involved in possession is known as Mediate possession, whereas immediate possession is relationship between possessor and the thing. For Example- A send B to buy a book from a shop here A gets the mediate possession and B gets the immediate possession.
- Corporeal and incorporeal possession– Corporeal is material object or tangible things like book, watch etc. Incorporeal is any other things like copyright, patent etc.
- Constructive possession– It is not the actual possession. It is possession in law and not in fact. For example- A goes to a car showroom to buy a car, shopkeeper gives receipt and key also given to the owner so that the car can be taken from the warehouse but the actual possession of car is not given. For example- Jewelry kept in the locker of the bank. Owner only has keys of the same not the actual possession.
- Derivatives Possession– One derives the right from the person who has lawful occupation or custody of the property. For example- when we give our car for servicing or watch for repair then we willingly give possession to someone.
- Adverse possession– Someone using a piece of land uninterrupted, undisturbed and continuous peaceful enjoyment of such land. Possession of land belonging to another person by a person on his own behalf and setting up claim as the true owner of the land is adverse possession. For example – someone is using land without the owner’s permission.
DIFFERENCE BETWEEN POSSESSION AND OWNERSHIP
|It has limited right (physical control) over the thing.||It has absolute right over the object.|
|Only right to use the property for temporary period.||It has right to use for unlimited period.|
|Person has no right to transfer, dispose or alienate.||Person has right to transfer, dispose or alienate.|
|It has prima facia evidence of ownership.||Bundle of rights is with the owner|
|Possession has less scope.||Ownership has wider concept.|
|Possession can be given to anyone.||Ownership is always with the owner.|
CONCLUSION: OWNERSHIP AND POSSESSION
Ownership and possession are distinct yet interconnected concepts. Ownership denotes the legal rights and entitlements over a property, whereas possession refers to the physical control or occupancy. While ownership typically includes possession, possession itself does not always imply ownership. Understanding these concepts is crucial for maintaining clear property rights, settling disputes, and upholding justice in matters related to property and assets.