January 23, 2022

Concept of Possession of Property in India

Meaning of Possession of Property

The dictionary meaning of the term ‘Possession’ implies that one has physical control over an object or thing. Generally, it expresses the closest and immediate relation of the fact that can exist between a thing and the person possessing it. However, in the legal terms, possession is not only limited to physical control rather extends to include an intention to exercise that physical control. For possession to exist, there must be an exclusion of other individuals from its enjoyment. [1]

Nature and Concept  of Possession of Property

Possession is prime evidence of transferring ownership. The term ‘possession’ is ordinarily used in both civil law and criminal law. In fact, both laws are based on the concept of possession, for instance, under civil laws, possession is used in the form of trespassing in the law of torts, possession of goods in contract laws and in the transfer of property in property law. Whereas, in criminal laws, theft is the most common example of possession as it implies dishonestly taking away any movable property out of the possession of any person without that person’s consent.

Elements of Possession: Corpus Possidendi and Animus Possidendi are two elements of possession which have been recognized in English, Roman and Indian laws.

1) Corpus Possidendi: Physical control over the possessed object

2) Animus Possidendi: Intention or will to exercise the power.[2]

Theories of Possession of Property

In the words of Sir Fredrick Pollock, Possession is expressed as “In common speech a man is said to possess or to be in possession of anything of which he has the apparent control or form the use of which he has the apparent power of excluding others”.

John Salmond stated possession as “Possession is the continuing exercise of a claim to the exclusive use of an object.” He totally rejected the two concepts of possession, i.e. possession in fact and possession in law and reiterated one as ‘possession in truth and in fact’. Hence for Salmond, possession is both corpus as well as animus.

Savigny’s theory was the first theory on the concept named possession. According to him, there are two elements in possession that are corpus possessionis and animus domini, where the former implies effective control and latter means the pure intention to hold as the owner. He further classifies corpus possessionis into two parts, one being the initiation of possession and the other is retention of possession. In the words of Savigny, “I must take him by bridal or ride upon him or have him in my immediate presence, so that I can prevent all others from interfering with me. And since detentor and possessor have same physical relation to the res, the difference between them must be found in the mental element, i.e. animus domini. He clearly focuses physical control and intention for the possession to constitute.

Holme’s theory: In the words of Holmes, “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 who are in search.” He further suggested that the element namely, ‘animus domini’ is not required under the English law, and has the intent to exclude others. [3]

Possession in Law and Possession in Fact

Possession in fact refers to physical or actual possession. It basically means a physical relation to a thing and one has actual control of it. For the actual control to exist, there must be a relation of the possessor with another person and simultaneously relation of the person to the thing so possessed. Possession in fact is also known as De facto possession and in roman language, it is read as naturalis possession.

One has to keep in mind the fact that there are certain things on which physical control is impossible like sun, stars, moon, etc. Also, it is not necessary that the physical control over a thing will be continuous which means even when an individual loses its actual control, the physical control will not be put to an end.

Possession in law implies the possession in the eye of law. Possession in law is recognized and at the same protected by law. Possession in law is also known as De Jure possession and in roman language, it is read as possession civilic. The law mainly protects for two major reasons that are by conferring legal rights on the possessor and by punishing the individuals interfering the possession. Three causes between possession in fact and possession in law are as follows:

  1. Possession in fact and Possession in law
  2. Possession in fact but not in law
  3. Possession in law but not in fact

Kinds of Possession of Property

1) Corporeal Possession: Those things/objects that constitute physical or material existence and have a direct relationship with that thing, are referred to as incorporeal possession. For eg. Pen, car, house, book etc.

2) Incorporeal Possession: Those things/objects that does not constitute any physical or material existence and cannot be felt by senses are referred to as incorporeal possession. For eg, Patent, Goodwill, Trademark etc.

3) De facto Possession: It is also known as Possession in fact. Such possession exists whenever an individual is in immediate possession of the object/thing and in the exclusion of others. This possession is not lawfully recognized but it exists in reality.

4) De jure Possession: It is also known as Possession in law or Juridical Possession. Such possession exists whenever an individual claims the object/thing to be his own through the legal way by occupying it without having any argument as to his legal right of possessing that thing. This possession is lawfully recognized irrespective of the fact of whether it exists in reality or not.

5) Mediate Possession:It is also called Indirect Possession. Mediate Possession is one where the property/thing is possessed through a mediator which can be either friend, servant or any agent. In this case, there is a lesser degree of physical control with the possessor as the possession over object/ thing is with another person.

6) Immediate Possession:It is also called Direct Possession. Immediate Possession is one where the property/thing is possessed by the possessor himself. In this case, there is a higher degree of physical control with the possessor as the possession over object/ thing is with the same person.

7) Constructive Possession: Wright and Pollock defined Constructive Possession as the one which arises only by construction of law. It is not possession in fact but it certainly is possession in law.

8) Adverse Possession: It refers to holding of the land/immovable property of any other party on his own behalf. When Adverse Possession continues without any hindrance or obstruction for a certain period of time, the person holding the property can claim for it thereby subsequently extinguishing the true owners’ rights. [4]

For more notes on Jurisprudence, click here.


[1] https://www.slideshare.net/JaiveerSinghBhati/possession-jurisprudence
[2] https://www.legalbites.in/possession/
[3] https://www.legalbites.in/possession/
[4] https://www.toppr.com/guides/legal-aptitude/jurisprudence/kind-of-possessions/

Author Details: Yashika Kapoor

Law Library LawBhoomi

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