January 27, 2022

Right of Possession in the light of Jurisprudence


There are two important rights related to property:

1. Possession

2. Ownership

Regarding possession, as Salmond says, it is the most basic relation between a man and a thing. Possession of material things is necessary because human life and human society would rather be impossible without the use and consumption of material things. As civilization began to progress, the struggle for existence was so bitter that people 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. And from a humble beginning, the concept began to grow and now much progress has been made in this connection.

Nature of Possession

Possession is the most basic relation between man and things. Possession of material things is essential to life because the existence of human life and human society would be rather impossible without the consumption and use of material things. Besides being a prima-facie evidence of ownership, it is also one of the modes of transferring ownership. According to Salmond, exclusive use and actual exercise of actual control and claim are two main requisites of possession. According to Henry Maine, possession means that contact with an object which involves the exclusion of other persons from the enjoyment of it.

Possession in Fact and Possession in Law

At the beginning, it was only a fact; it meant physical control over a thing. Later on, this fact started receiving a recognition and protection by law. Thus, possession includes a physical relation with the object as well as its recognition by law. These aspects are, sometimes, called as ‘possession in fact’ and ‘possession in law.’

A few decided cases may be cited to illustrate this point further:

In the case of Bridges v. Hawkesworth {(1851) 21 LJ QB 75}, it was decided by the court that the bundle of notes found on the floor of a shop passed into the possession of the finder rather than the shopkeeper. The decision has been supported by Pollock and Salmond. Pollock holds that since the shop-keeper “defendant” has no “corpus” in the bundle of knots, he has no “defacto” control over it. Salmond has taken this view that the shopkeeper has no “animus” for possession. The decision has, however, been criticized by Prof.Goodhart and Glanville William. In their opinion this case was wrongly decided because the defendant shopkeeper had a general “animus” and sufficient control requisite for legal possession of the notes were physically found in the shop itself.

In this case of R. v. Riley {(1852) DEARS CC 149}, where the accused was driving his herd of sheep, some of the prosecutor’s sheep joined the herd and were driven away by the accused along with his own. The accused was held to have taken possession of the sheep which belonged to the prosecutor and which he unknowingly drove with his own flock to the market.

In the instant case of R. v. Moore {(1861) L&C 1}, a bank note was dropped in the shop of the accused he took it and converted it to his own use. The accused was convicted of larceny since he was not in possession of the note until he actually discovered it.

Theories of Possession

Savigny’s Theory of Possession

Savigny founded his theory of possession on the text of Roman jurist Paul and emphasised that possession has two basic elements, namely, (1) Corpus Possessionis, and (2) Animus Domini.

By corpus, he meant effective physical control of the thing, that is, immediate physical power to exclude any foreign agency’s interference by the possessor.

The animus in possession signified mental element or conscious intention to hold the object or thing as owner against all others. Savigny conceived that there can be no possession by fraud or force, is unlawful.

According to him, protection of possession is a branch of the protection to person and as any act of violence to person is unlawful, so is the act which disturbs possession by fraud or force, is unlawful.

Ihering’s Theory of Possession

Ihering’s theory of possession appears to be more practical and realistic. He justified protection of possession under Roman law and said, “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.” Thus, Ihering was more practical in approach and did not insist on presence of animus as an element of possession. He considered animus only as a supplemental element for possession.

Salmond’s Theory

Salmond denied that conception of possession in fact and possessions in law are two different conceptions and observed that there is only one conception, which is possession in fact. He distinguished between possession of physical objects, which he called “corporeal possession” and possession of rights; which he termed as incorporeal possession. According to him, corporeal possession is ‘the continuing exercise of claim to the exclusive use of it.’

Holland’s Theory

Holland’s theory of possession is founded on preservation of peace in society. In his view, the predominant motive that has induced the law to give protection to possession was probably a concern for the preservation of peace. Possession connotes respect for rightful claim of a person.

Kinds of Possession

1. Corporeal and Incorporeal Possession

Corporeal possession is the possession of material things like land, house, buildings and movables like books, chattels etc. In the case of corporeal possession, the corpus consists firstly in confirming exclusion of other’s interference and secondly in the enjoyment of the thing at will without external interference.

Incorporeal possession, on the other hand, means possession of immaterial or intangible things which we cannot touch, see or perceive. For e.g., copyright, trademarks etc.

2. Mediate and Immediate Possession

Mediate possession is the possession of a thing through another person. It is also known as ‘indirect possession.’ For e.g., if I purchase a book through any agent or servant, I have mediate possession so long as the book remains in my agent’s or servant’s possession.

Immediate possession is also known as ‘direct possession.’ If the relation between the possessor and the thing possessed is a direct one, it is called immediate possession. For e.g., if I purchase a book myself, I have immediate possession of it without any intervening agency. The things in possession of a master, principal and owner are said to be in their immediate possession.

3. Quasi-Possession

The doctrine of quasi-possession also known as possession juris extends to control which the person exercises over certain advantages, short of ownership, which may be derived from objects. For e.g., a right of way or passage over other’s land etc.

4. Constructive Possession

Constructive possession means having power and intention of retaining control over property but without actual control or actual presence over it.

5. Adverse Possession

Adverse possession implies the possession by a person initially holding the land on behalf of some other person and subsequently setting up his own claim as a true owner of that land. If adverse possession continues peacefully undisturbed for a prescribed period (in India this period is 12 years), the title of the true owner is extinguished and the person in possession becomes the true owner of that land.

Modes of Acquisition of Possession

Possession is acquired whenever the two elements of the corpus and animus are existent and the loss of either of these elements will usually destroy possession. There are three known modes of acquiring possession which are as follows:

1. By Taking

It implies an act exclusively on the part of the person who takes the possession. Taking is ‘original’ or ‘derivative.’ The ‘original’ takes place when the object has no previous owner as res nullius. When the possession of a thing is taken which has already a previous owner, it is ‘derivative’ taking. Here ‘taking’ means acquiring possession without the consent of that previous owner or possessor. This taking (derivative) may be rightful or wrongful.

2. By Delivery

Delivery means the voluntary relinquishment of possession by one person in favour of another. Delivery may be actual or constructive. Actual delivery means the transfer of immediate possession. A delivered a watch to B. This is the actual delivery of possession to B. All that is not actual delivery is constructive delivery. The delivery of the key of a house with the intention of delivering the possession of the house is the constructive delivery of the house.

3. By operation of law

A third mode of the acquisition of possession is by operation of law. It takes place when by the operation of law goods are removed from the possession of one person to the other. For example, when a person dies, the things in his possession pass to his personal representatives.

Possessory Remedies

Possession is a good title against all except the person who has better title. The law protects possession, or in other words, helps the person in retaining his possession. It also helps in recovering the possession if it is taken by anybody else from the person in possession unlawfully, although the former might by the real owner himself. This remedy (to recover possession) is called ‘possessory remedy’. This ‘possessory remedy’ is provided by statutes.


Possession is said to be as one of the essential requirements for the procurement of ownership. Also, it is to be considered as the common method of shifting ownership is by transfer of possession. It is very essential to know the value of legal consequences which flow from the concept of possession. Possession is regarded to be as one of the strongest evidence of ownership. The major purpose related to the law is that it protects the possession right of a thief over a stolen object for everyone excluding the real owner who does already have a far better title to it. It could be understood as likely possession is one of the most fundamental relations between person and an object, but as it also related certain complex concepts relating the field of law. If we see accordingly it is seen that the exchange of possession is quite easier and less problematical. Although the exchange of possession among many of the cases includes a distinct procedure for convincing. The privileges that are obtained from possession and proprietorship are more or less regarded to be as equivalent. The owner is permitted to keep out everything excluding one and is therefore not accountable to anybody but himself. On the other hand a proprietor is given an option to exclude everything and is not responsible to anybody. Therefore the concept of Possession is regarded to be as one of the most important relationship between a man and a thing. Possession is certainly an evidence of ownership which does not have any fixed definition of its own because it is although a legal as well as factual concept.


1. Dr. N.V. Paranjape, Studies In Jurisprudence & Legal Theory, Central Law Agency, Allahabad, 9th Edition, 2019.

2. Dr. B.N. Mani Tripathi, Jurisprudence, 330, Allahabad Law Agency, Allahabad, 19th Edition, 2013.

3. https://shodhganga.inflibnet.ac.in/bitstream/10603/71969/5/05_chapter%203.pdf

4. https://www.toppr.com/guides/legal-aptitude/jurisprudence/kind-of-possessions/

Author Details: Ali Mohammed Khan and Devesh Chauhan (Faculty of Law, Aligarh Muslim University, Aligarh)

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