Possession and Its Kinds Jurisprudence [Possession, said Erle, C.J., is one of the most vague of all vague terms, and shifts its meaning according to the Subject-matter to which it is applied Varying very much in its Sense, as it is introduced either in civil or criminal proceedings.] Sahil Ahmad, B.A. LL.B- 54, 5th Semester, Faculty of Law, Jamia Millia Islamia

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Table of Contents

Acknowledgement03

Table of Cases04

Introduction ..06

Definition: Possession..09

Possession in Old English and Roman Law.10

Cases on Possession in English Law12

Propositions extracted from above Cases about Possession18

Reasons for the Protection of Possession in Law.19

Elements of Possession 20

Classical Theories of Possession23

Savignys Theory.23

Iherings Theory..24

Salmonds Theory..25

Fredrick Pollocks Theory.26

Holmes Theory.26

Conclusion28

Kinds of Possession..29

Mediate and Immediate Possession.30

Corporeal and Incorporeal Possession.31

Possession in Law and Possession in Fact..32

Adverse and Constructive Possession32

The concept of Possession in India.33

Possession in Ancient and Medieval Indian Laws.....38

Cases of Possession in India..39

Conclusion..43

Bibliography.44

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Acknowledgement

The project on this topic of Jurisprudence was a challenging task. The complication involved in

the subject is of immense magnitude. Jurisprudence being the sole of the legal system is of

outmost importance in the making of a good Lawyer. Hence doing a project of such magnitude

requires guidance by the subject teacher. The enlightening experience provided by my teacher

Dr. Asad Malik proves to be the continues guiding source in this endeavor. I owe him sincere

gratitude, for his untiring and constant academic and intellectual support. His inspiration tickles

down every nerve in our system.

I would also like to take due cognizance of the efforts of my classmates who support me and

always help me in every way they can.

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Table of Cases

1. Armory v. Delamirie, [1722] 1 Stra 505

2. Boynton-Wood v. Trueman, [1961]177 Estates Gazette

3. Bridges v. Hawakesworth, [1851] 15 Jur 1079

4. Boynton-Wood v. Trueman, [1841] 7 and W. 623

5. Cartwright v. Green, [1802] 8 Ves. 405

6. Collection of Customs (NSW) v. Southern Cities Company Ltd

7. Elwes v. Brigg Gas Co., 1886 33 ChD 562

8. Elmore v. Stone,

9. Grafstein v. Hlme and Freeman, 1958 12DLR 727

10. Hannah v. Peel, 1945 KB 509

11. Haig v. West

12. In re Cohen, 1953 CH 88

13. London corp. V. Appleyard and another, 1963 2 All ER 834

14. Merry v. Green, 1841 7 and W. 623

15. Moor v. Burke

16. Moorgate Merchantile Co. Ltd v. Finch 1962 1 QB 701

17. R. v. Harding

18. Rose v. Mart

19. Reg v. Riley, 1853 Dears CC 149

20. R. v. Hudson, 1943 KB 458

21. R. v. Rowe, 1859 Bell CC 93

22. R. v. Moore

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23. R v. Chissiers, 1678 L. R. 275

24. South Staffordshire Water Company v. Sharman, 1896 2 QB 44

25. Thomas v. Metropolitan Housing Corporation Ltd, 1936 1 All ER 210

26. Wrightson v. Mc Arthur and Hutchisons Ltd, 1991

Indian Cases:

27. Chitta v. Chotter Lal, AIR 1947

28. Dwarkadas v. N. Nandu, 1923 Mad 364

29. Maharaja Sashi Kant Acharya Bahadur V. Nayjan Bewa, AIR 1945 Cal 611

30. Narendra Nath v. State, AIR 1951 Cal. 140

31. Nandlal v. Bank of Bombay, 18 Bom. LR 386

32. Queen Empress v. Sita, 1893 118 Bom. LR 28

33. Ram Charan v. Emperor,

34. Sarajul Haq v. Emperor, 1922 23 Cr. Lj 408

35. Trimbak v. State of M.P, AIR 1954 SC 39

36. Limbaji v. State of Maha., AIR 2002 SC 491

37. Murli v. Emperor, AIR 1929 All 720

38. West Bengal v. Anil Kumar, AIR SC 52

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POSSESSION

(a prima facie evidence of ownership)

Introduction

Physical control of a thing by a person is a fact which is external to and independent of Laws.

When laws came into existence, this fact, known as possession was taken into account in the

sense that certain advantages are attached to the possessors1. In Roman laws the chief of these

were2:

(a) That the possession was prima facie evidence of ownership.

(b) Possession was the basis of certain remedies, especially the possessor interdicts. Even a

wrongful possessor was protected, not only against the world at large, but also against the true

owner who dispossessed him without due process of law.

(c) Possession was an important precondition in the acquisition of ownership in various ways.

(d) In the law of pledge, possession of the thing pledged constituted the creditors security

without any presumption of ownership.

These apply substantially in English law as well where there is also the advantage that the

possessor may exceptionally confer a good title on another though he has none himself. In both

systems there are other advantages besides these.

If the idea of possession had remained wedded to physical control, the position would have been

relatively simple. Difficulties arose when it became necessary, because of the widening of legal

activities, to attribute to persons who were not actually in control some or all of the advantages

that were enjoyed by the persons actually in control. Tradition and technicality combined to

complicate the matter. Traditionally, possession was the basis in law of these advantages. They

attached to man because he had physical control, which was synonymous with possession, but

1 For the basis of possessio as Romans saw it. 2 Dias, Jurisprudence Aspects of Justice P. 272

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when it became necessary to give the same benefits to a man who was not in control,

possession came to be ascribed to him without the need for physical control. Reasoning then

took the form that whenever a man has these advantages, this must be because he has possession.

The consequence was to bring about a contrast between actual holding and possession as well

as a shift in the meaning of the term possession. Physical control came to be distinguished from

possession under the nomenclature of custody or detention. A person is said to be in

Custody where the holder either lacks full control or else has no animus to exclude others, for

customer examining a ring in the presence of the jeweler. It simply means to take care and keep

anything for a temporary period which belongs to another e.g., the property of the master in the

custody of the servant. Mere custody therefore is insufficient to constitute possession. And the

Roman term detentio means full physical control in fact which for some reason is not regarded

as possession in law. Or it means to withhold or to keep in custody the goods from a person

lawfully entitled to the possession of such goods.

If the control falls short of what the law requires, the person controlling the thing is said to have

detention or custody merely1.

Three situations had thus become possible2.

a. A man could have physical control without possession and its advantages (in case of a

servant having physical control but immediate possession lies with the master),

b. A man could have possession without physical control (where a person goes outside his

house everyday for work though not in physical control would still have possession);

c. or he could have both.

Possession therefore, became a technicality of law.

The separation of possession from physical control gave it flexibility, which the administrators of

the law have not been slow to utilize in fulfilling the demands of policy and convenience.

It would be thought absurd in English law if an owner had no right to retake the purse seized

from him or to eject a trespasser who entered his house during his absence. Sometimes the

1 Prof. S.N. Dhyani, Jurisprudence- a study of Indian legal system, p. 300 2 Dias, Jurisprudence Aspects of Justice P. 273

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solution is sought in the doctrine that possession seized by violence is not true possession, as was

evident in Roman law, but this produces internal conflicts with what is usually taken to be the

central notion of possession, however convenient it may be in allowing the owner to act

effectively. The problem when self help should be allowable is always a difficult one1. An

understanding of the way in which lawyers employ the term possession has been obscured by

too much theorizing and, worse still, by the distortion of actual decision so as to fit them into

preconceived ideas2.

Salmond has pointed out two reasons for which the concept of possession is considered as one of

the difficult legal concepts which is only less than Contract3. First, possession is an abstract

notion and involves the same sort of difficulties which we find with other abstract terms such as

law and rule. Secondly, possession is not a pure Legal concept.

One important reason for the complexity surrounding possession is that there is an inevitable and

continuing conflict between logic of the law and the demand of convenience in particular cases.

1 Dr. Gokulesh Sharma, Intro. to Jurisprudence, p. 711 2 Suggested by Professor G L Williams and by Dr. J W C Turner 3 Salmond, Jurisprudence, p. 266

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Definition: Possession

It is said that in legal terminology there is no word more ambiguous in its meaning than

possession whether considered in relation to immovable or movable property. It is not only an

abstract and highly imaginative concept but it is also most difficult and controversial concept. It

nature, scope, extent, and limits vary from time to time and system to system. It is a variable

term having different meaning depending upon the circumstances in which this is used.

In law possession means a fact or condition of a person having such control of property that he

may legally enjoy it to the exclusion of other except against the true owner or prior possessor.

An old proverb says, it is nine point of law, which implies that he who has conscious control of

an object need only surrender his control in one who can establish superior claim in law1. That is,

possession constitutes ninety percent of ownership2.

To a layman possession implies a relation to an object which involves exclusion of other person

from enjoyment of it.

Oxford English Dictionary says, the visible possibility of exercising over a thing such contact

as attaches to lawful ownership. The detention or enjoyment of a thing by a person himself or by

another in his name, the relation of a person to a thing over which he may at his pleasure exercise

such control as the character of the thing permits to the exclusion of other persons.

Bentham says, possession is to recall the image which presents itself to the mind when it is

necessary between two parties which is in possession of a thing and which is not.

Maine says, physical detention with the intention to hold the thing detained as ones own.

Savigny says, intentioned coupled with physical power to exclude others from the use of

material object.

Salmond says, possession of material thing is essential to life, it is the most basic relationship

between man and things.

1 Class Notes 2 Gleanwill Wiliams, Learning the Law

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Possession in Roman law

Roman law recognized two degree of possession:

1. Possessio naturalis, and

2. Possession civilis.

Roman law was mainly concerned with developing a theory to distinguish between detention and

possession from each other. It was this possession civilis which gave rise to the special protection

conferred by the possessor interdicts1. These interdicts went on the general principle that one

who was in possession was not to be disturbed therein, whether he had legal title or not except by

a legal proceeding. Unless ones possession was tainted by certain forms of wrong-doing, the

possessor had the protection of these interdicts2. In Roman law possession was also important in

connection with acquisition of ownership by possession if possession is acquired for a certain

time and barring of claims by lapse of time.

As broad generalization, facts needed to acquire possession was physical control corpus

possessionis, and will to exercise such control, animus, which was based on Pauls text.

Savigny thought that since the detentor and possessor have the same physical relation to res, the

difference between must be found in the mental element. The intent, which distinguishes a

possessor, is the animus domini, which meant, the desire to hold for oneself. This theory

explains why the tenant, the borrower, and the agent did not have possession in Roman law, for

they did not hold in their own right. On the other hand this theory faced difficulties because

Roman law sometimes gave a non-owner possessory rights. These examples he explained as

anomalies. Jhering can explain those cases which Savigny found difficult, but it itself cannot

account for those where the law refuses possessory rights to those who are in effective physical

control3.

Fewer facts were needed to continue possession then to acquire it, but they varied from case to

case. In some cases possession continued despite loss of animus, whether temporarily or

1 These were formulas framed and used by the procter, by which he ordered something to be done, chiefly in disputes about possession. 2 Dias, Jurisprudence(3rd Edition) p. 334 3 Dr. Gokulesh Sharma, Intro. to Jurisprudence, p. 715

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permanently, and the rule was expressly grounded on convenience. In some cases a person did

not lose possession by loosing corpus alone, and this rule is also expressly based on convenience

(e.g., a runaway slave, is under continued possession). It was said both corpus and possession has

to be lost before possession is lost, but at other times that possession was retained even though

both were lost. The element common to all these application seems to be that it was a device of

convenience, utilized chiefly to effectuate the policy of the law in different branches. It is thus

obvious these cannot reflect any single principle. Most of the decision were given in actual

situations and were designed to meet the practical requirements of a particular case.

Possession in English law

Possession was termed Seisin in early English law and was used to describe possession of both

chattels and real property. A modified version of Savignys theory has exercised considerable

influence on English writers. The term possession didnt confine to physical control. As

Roskikill LJ has said; having something in ones possession does not mean of necessity that

one must actually have it on ones person1. This is to some extent reflected in the phrases

sometimes encountered, such as possession in fact and possession in law. Salmond2 has

distinguished between them. According to him, possession in fact is an actual relation between a

person and a thing. Law does not define the mode in which it may commence or cease. A servant

is not deemed to be in possession of the masters good while things are in his masters control or

a buyer in whom the title to goods is vested but he has, for the time being, only a letter with him

addressing to the warehouse people to deliver the goods to him. So long he does not get the thing

he has possession in law, not in fact. Possession in law has a legal relation. It implies a manifest

intention to exclude the world at large from interfering with the thing in question and to do so on

ones own account and in ones own name. Law defines the modes in which it commences and

ceases. The master has possession in law because the intention to possess is attached to the

master. Possession in fact and possession in law are co- terminus but are not necessarily

available at the same time.

1 R. v Prudy (1975) QB 288 2 Salmond on Jurisprudence ch.6

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Larceny Cases

Larceny requires (a) a taking- without a claim of right made in good faith, (b) and the carrying

away of something capable of being stolen, (c) without the consent of the owner, (d) and with the

intent, at the time of such taking, permanently to deprive the owner thereof.

Reg v. Riley1: In this case the accused drove off amongst his own lambs, but without knowing it,

the lamb belonging to the prosecutor. After he had discovered the error he even sold the lamb as

his own. He was convicted of larceny.

R. v. Moore: the prisoner had picked up and converted to his use a bank note which had been

dropped on the floor of his shop. He converted it in spite of the fact that he knew the owner of it

could be found. It was held that he was rightly convicted of larceny- that is he had not obtained

possession of the note while it was lying on the floor of his shop before he had discovered it, and

further that the owners possession was in some way extended, at least fictionally, after he had

lost the note in the accuseds shop.

Merry v. Green2: An action for assault and false imprisonment- the defense was that the assault

and imprisonment was justified because the plaintiff had committed larceny. The relevant facts

were that the plaintiff had purchased a bureau at an auction and subsequently discovered a purse

in a secret drawer. The purse contained money and other valuable things. The plaintiff

appropriated that property to his own use. At first instance the plaintiff obtained judgment in his

favor. On appeal the matter was sent back for a new trial because it was not clear from the

evidence just what the terms of sale the bureau had been. In his judgment Baron Parke laid it

down that if the auctioneer had sold the bureau with express notice that the purchaser was not

gaining title to the contents of it, if there happened to be any, then the plaintiffs appropriation of

the purse and other valuable could constitute larceny- is to say that the mere delivery of the

bureau did not necessarily carry with it delivery of possession of its contents, at best if it was

made clear that the contents were not being sold with bureau.

1 [1853] Dears CC 149 2 [1841] 7 and W. 623

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Cartwright v. Green1: a bureau was delivered to a carpenter for repairs. The carpenter

discovered money in a secret drawer which he appropriated to his own use. It was held that he

committed larceny by feloniously taking the money into his possession. In this case of course the

carpenter was merely a bailee of the bureau but none the less by ordinary rules would be held to

have possession of it. It follows from the decision that he did not obtain possession of the money

when he obtained possession of the bureau, but only at the time he discovered it and formed the

intention to convert it to his use.

R. v. Rowe2: this accused had taken piece of iron which he found on the bed of a canal when the

canal was drained of water. The iron had fallen overboard from barges. The accused was

convicted of larceny of the iron from the company which owned the canal- that is to say the

company had possession of the iron merely because it was resting upon the companys land.

R. v. Hudson3: by mistake the department of government posted the accused a letter in which

was a cheque intended for someone else. The accused appropriated the cheque to his own use

and it was held that he was guilty of larceny. Although the accused had received possession of

the cheque innocently, the view taken was that he could not have been said to have acquired

possession of the cheque until he was aware of its existence and at the time he became aware of

its existence he took it animus furandi.

R. v. Harding: the court of criminal appeal upheld a conviction for larceny of mackintosh from

servant of the person who would, for other purposes, have certainly been held to not only the

owner but the possessor of the mackintosh.

Rose v. Mart: the respondent, when purchasing some goods, deposited a clock which he owned,

with the vendor, as security for the price of the goods he was purchasing. It was agreed between

them that the vendor would be entitled to sell the clock if the respondent did not pay the goods

within one month. The respondent later returned to the vendors shop and took the clock without

paying the price of the goods. On appeal it was held that the respondent should have been

convicted of larceny.

1 [1802] 8 Ves. 405 2 [1859] Bell CC 93 3 [1943] KB 458

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The Finding Cases

In all these cases the issues are civil not criminal, and are between two or more persons claiming

to be entitled to the benefits of possessory enjoyment of a chattel- the assumption being that, if

there is a true-owner he cannot be found.

Bridges v. Hawakesworth1: the plaintiff found a parcel of notes on the floor of the defendents

shop. It was held that the plaintiff had acquired a good title to them, as against the defendant, as

he was the first to acquire possession of the notes. The defendant had not previously acquired

possession because he had not known of the notes existence until after they were found by the

plaintiff.

Elwes v. Brigg Gas Co.2: the plaintiff, a tenant for life in possession had leased an area of land to

the defendant company for the purpose of erecting gas works. In the lease all mines and minerals

were reserved for the lessor. The lessor retained certain supervisory rights over the gas holder

and other structures to be built by the defendant company. In the course of the defendant

companys excavation of the land a pre-historic boat was found some six feet below the surface.

It was held that the plaintiff was entitled to the boat as against the company. The judgment does

not make it clear which of several possible grounds for the decision is the one to be relied on. It

does, however assert clearly enough that the plaintiff was in possession of the boat for one

reason or another before it was found by the defendant company and that it made no difference

in these circumstances, that the plaintiff was not aware of the existence of the boat.

South Staffordshire Water Company v. Sharman3: Sharman was employed by the plaintiff to

clean out a pool on land owned and occupied by the plaintiffs. He found certain gold rings in the

mud at the bottom of the pool. It was held that the plaintiff company was in first possession of

the rings. And that sharman therefore had acquired no possessory title as against the plaintiff.

Grafstein v. Hlme and Freeman4: An employee of a store-keeper found a locked box in the

basement rubbish of the store premises. He brought the box to his employer who told him to put

1 [1851] 15 Jur 1079 2 [1886] 33 ChD 562 3 [1896] 2 QB 44 4 [1958 ] 12DLR 727

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it aside on a shelf. Some two years later the employee opened the box and found that it contained

some 38,000 dollars in bank notes. It was held that the employer was entitled to the money, as

against the employee who had found it, on the basis that the employer had, when the finding of

the box had been communicated to him, taken lawful possession not only of the box but its

content as well. His possession of the money therefore was prior to any claim to possession that

the finder may have made arising out of his discovery of the contents after opening the box. It is

significant that the court came up with this decision without relying on any arguments which

turned up the master servant relationship.

Armory v. Delamirie1: the plaintiff, a chimney-sweeps boy, found a jewel and took it to a

goldsmith to find out what it was. The goldsmith refused to return it to him. It was held that as

against the goldsmith the plaintiff was entitled to the jewel. Here the plaintiff is acknowledged as

prior possessor, which has better title than the goldsmith.

All the above cases attribute possession to the owner of land merely on the presumed non-

existence of anyone with a better claim. Just as title may be attribute on the basis of possession,

so may possession be attributed on the basis of title.

In re Cohen2: Cohen and his wife had lived in a flat which was owned by the wife. After they

both had died, a large sum of money was discovered hidden in various part of the flat. There was

no evidence as to the origin of money, or as to the when and by whom, or for what purpose the

money had been secreted. It was held that the lawful possession of money must be attributed to

the wife as the owner and one of the occupiers of the premises on which it was found, and that as

between the estate of the husband and the estate of the wife it must be treated, therefore, as

having been the property not of the husband but of the wife.

1 [1722] 1 Stra 505 2 [1953] Ch 88

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Landlord and Tenant Cases

It has been customary that the tenant should have the right to exclusive possession. A tenancy

relationship between landlord and tenant may be brought to an end in a number of ways other

than by mere expiration of term. If the tenant surrenders possession to the landlord and that

surrender is accepted, then the tenancy is at an end. What would be held to be an actual change

of possession from tenant to landlord were the subject of litigation on a number of occasions,

and, inter alia it was held that if the tenant returns the keys of premises concerned and if the

landlord accepts them with the intention of accepting and taking possession, then possession was

effectively transferred. It was held that the landlords consent to the delivery of keys was

essential enable such a method of transferring possession to be treated as effective in law. The

central notion being in these cases was that the landlord had to be shown to be accepting and

taking physical control over the premises once more to the exclusion of tenant1.

Thomas v. Metropolitan Housing Corporation Ltd2: it was held that the landlord had regained

actual possession when the tenant had dropped the key of the leased premises into the letter box

at the office of the landlords agent- even though the office was closed for the week.

The case of Wrightson v. Mc Arthur and Hutchisons Ltd3, provides an interesting comparison.

In which certain goods being set aside by the defendant as security for debts, were locked in a

room in premises owned by and in the possession of the defendants and the key to that room was

given to the plaintiff. It was held that on delivery of the key, possession of the goods passed to

the plaintiff and was subsequently retained by him although the goods remained upon the

premises possessed by the defendants.

In Boynton-Wood v. Trueman4, it was held that the handing over of the key to carry our repairs

work was not surrender of possession.

1 Dr. Gokulesh Sharma, Intro. to Jurisprudence, p.724 2 [1936] 1 All ER 210 3 [1991] 4 [1961]177 Estates Gazette

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To protect tenants possession more strictly than that of landlord; they even adopted a corpus and

animus view of it. What construed animus and corpus depended on whether the court thought

that the tenant was trying to take unfair advantage or not.

Miscellaneous Cases

Moor v. Burke: Burke, who was employed on the wharves he had the right to use a cloth locker,

was found to have goods suspected of being stolen in his locker. He was held not to be in actual

possession of the goods because he shared the locker with another and so could not be said to

have exclusive control of the goods concerned while they were in the locker.

Collection of Customs (NSW) v. Southern Cities Company Ltd: A Consignment of tobacco was

delivered to the defendant company for shipmen out of the state of New South Whales. The

defendant put the tobacco in a store, on the warf from which shipment would be made, owned by

the Maritime Service Board. The store was locked and the keys lodged in the customs office

which was itself locked overnight- so that the keys to the store were not available to the

defendant except in an emergency. During the night the store was broke open and the tobacco

was stolen.

Sec. 60(1) of the excise Act, 1901-52(Cwealth) casts certain liability upon the person who have

the possession, custody, or control of excisable goods

It was held (inter alia) that defendant did not possession of the tobacco when it was locked in the

store and the keys locked in the custom office.

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Propositions extracted from above Cases about Possession

1. Possession of the chattel is not required when mere physical control is taken such

acquisition waits upon knowledge by the taker of the nature of the thing acquired.

2. The owner and the possessor of land may be in possession of a chattel his land in spite of

the fact that he is not now the nature of the thing or even that exists.

3. The owner and possessor of shop is not in possession of chattel on the floor of his shop

until he knows of their presence there.

4. The owner of the house, who may well have been in possession of the house for the

purpose of taking action against a trespasser, may not be in possession of a chattel found

on the premise if he was never physically occupied the house.

5. The owner and possessor of land may not be in possession of chattels on his land even

though he owns those chattels another person not on the land, may be in possession of

them.

6. The finder of a lost chattel obtains possession of it, and hence title to it as against those

who have no claim to it, prior to it.

7. A finder of chattel who finds in the course of his employment does not obtain possession

of it his master does.

8. As between two or more persons who are in apparent physical control and enjoyment of

the use of the chattels, the owner of the chattel is in possession of them.

9. And between two or more persons apparently in the physical control and enjoyment of

the use of land (which is owned by one of them) and of chattels upon that land, where

ownership of chattel is in doubt, the owner of the land is in possession of the chattels and

hence is presumptively the owner of them.

10. To acquire the possession of a thing it is necessary to exercise and to evince an intention

to exclude others.

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11. But possession may be acquired of a thing, by transfer through another, without any

change in the physical control of the thing concerned.

Conclusion: In the light of all above cases the conclusion must be that in English law, as in the

Roman law, possession is no more than a device of convenience and policy. This has been

appreciated by few writers and most clearly by Shartel, who said, I want to make a point that

there are many meaning of the word possession; that possession can only be defined with

reference to the purpose in hand; and that possession may have one meaning in one connection

and on other meaning in another1. Moreover after the old law of larceny in England was

replaced by the Theft Act, 1968, it has relegated them in historical shelf.

The reasons for the protection of possession by law2

1. It aids the criminal law by preserving the peace. Savigny gave this reason and said that

possession is protected not because it is so intimately connected with ownership but in

the interest of public order and safety. Order is best secured by protecting a possessor and

leaving the true owner if there is one to seek remedy in court of law.

2. Possession is manifestation of will hence should be protected by law according to Hegal.

As kant said that a man by taking possession of a thing has brought it within the sphere of

his will.

3. Ihering is of the view that protection of possession is necessary as the protection of the

right to property. He said that roman interdicts were formulated just for this very purpose.

The Law does not always know that the person in possession is unlawful. And in the

early stages of the development of law of property when proof of this title was difficult, it

was felt to be unjust to cast on a person whose possession was disturbed the burden of a

flawless title3.

4. Possession is protected as part of the law of Tort. Against the violations of legal private

right e.g., trespass, etc.

1 Shartel Meaning of Possession (1932) Minnesota Law Review 611 2 Dr. Gokulesh Sharma, Intro. to Jurisprudence, p. 3 Windschids view on purpose of protection of possession.

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Elements of Possession

Both in English and Roman laws possession has two distinct elements. They are:

1. Physical control or power over the object possessed called corpus possessini, and 2. Intention or will to exercise that power, called animus possidendi.

Both these are necessary to constitute possession. The term corpus or physical control means the

power to use the thing possessed and the existence of grounds for the expectation that the

possessors use will not be interfered with the intent consists the desire and the will to use thing

so possessed. A person cannot be said to be in possession of a thing unless he has animus

possidendi. Markby in this context says; there are physical element and mental element in the

legal conception and in order to constitute possession in a legal sense there must exists not only

the physical power to deal with things as we like and to exclude others but also the determination

to exercise that power or control on our own behalf.

1. Corpus (physical control): it implies two things;

a. The possessors physical relation to the res i.e., the object.

b. The relation of the possessor to the rest of the world i.e., ability to exclude others.

Physical control of the thing lies at the bottom of possession. Possession must consist in

the undoubted control over a thing to the exclusion of others. Possession must be direct,

physical and actual and not merely symbolic or fictitious. However direct contact need

not be necessary with the thing although it is true that most of the things that we possess

are in direct contact with us. For example a man walking along the road with a bundle

sits down to rest and place his bundle on the ground at a short distance from him. No one

thinks of doubting that the bundle remains in his exclusive possession not symbolically

but really and actually. Physical contact, therefore, is not necessary for possession. It is

rather the possibility of dealing with a thing as we like and of excluding others.

According to Holland and keeton the question whether corpus (physical relation) exists or

not depends among other things upon the nature of the thing itself and the probability that

others will not interfere with the enjoyment of it. Thus corpus may be secured by:

a. Continued physical control of the thing;

21 | P a g e

b. Presence near the thing;

c. Exclusive knowledge of the situation of the thing,

d. Continuous possession of the thing unless it is disturbed by some physical force or

violence.

A man who leaves home and goes to neighboring town for his business still retains

possession of his land or house. So is the case with movable and domestic animals which

live in domestic state. As regard wild animal which are in the wild state are only in our

possession as long as they are in our captivity. A wild animal that has been wounded by

us mortally is not in our possession until we have laid hold of it. Possession therefore,

lasts so long as there is any physical control over things and ceases when that control

ceases.

The second element of corpus is that the possessor must have the ability to exclude

others. There is no hard and fast rule regarding the amount of power to exclude others.

Therefore, physical control does not mean physical power to exclude others. Even the

weakest person may have the corpus element (physical control). It depends more upon

the general expectation that the possessor must have the ability to exclude others. There

is no hard and fast rule regarding the amount of power to exclude others. There is a case

on this point. In R v. Chissiers1, a person came to a shop and asked for a particular a

particular kind of cloth (linen). The shopkeeper handed over some piece of cloth to him

but before any sale was completed, he ran away with it. This was held to be larceny as

there was no change of possession until he ran away. It is clear from this case that the

corpus of possession is not necessary synonymous with the physical power to exclude

others.

Concept of Corpus in International Law:

The problem of corpus is also equally important in International Law. The question here

arises is whether mere discovery or planting of a flag of a state by its nationals gives

exclusive control over the things which so far belonged to none. Several states have

discovered in Modern times have explored Antarctica, Moon and other satellites and

1 [1678] L. R. 275

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there may be conflicting claims for their possession on the basis of discovery or planting

of flag as in the case of USA which may claim possession of the Moon on the ground that

its astronauts were the first to plant its flagon the moon. It is understood that mere

discovery or planting of flag will not create possession but it must be accompanied by

colonization and settlement in a peaceful and undisturbed way.

2. Animus: another aspect is mental element without which the physical control would

remain only as a mere fact having no legal consequence. Animus is the conscious

intention of an individual to exclude others from the control of an object. The mental

element in possession may be manifested in the following ways:

a. The person holding the property need not be the owner and may exercise animus to

exclude others on behalf of the owners. A tenant or a morgagee, e.g., may have

possession no less than that of the owner himself. (it may be described as

representative possession)

b. The animus to exclude others need not be in the interest of the possessor or on his

own behalf but in the interest of bailee or lessor. A carrier of goods, a servant or agent

or a trustee may have true possession (by having corpus as well as animus) though he

makes no claim to the thing possessed on his own behalf but on behalf of the owner.

c. Animus to exclude others need not be specific. A person having a library has the

possession of every book in the library though he might have forgotten the existence

of some of the books.

d. The animus to exclude others need not be based on a legally enforceable claim. It

may be the result of a wrongful act. Thus if B steals goods from A and C in turn

steals it from B, then although A has a right of claim against both B and C yet

in spite of this B as a prior possessor (although a thief) against C and theoretically

he can legally recover possession of the goods from C.

e. The animus to exclude others need not be absolute. Sometimes a person may possess

a piece of land notwithstanding the fact that some other person or even the public at

large, possess a right of way over it.

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Classical theories of Possession

Savignys theory: Savigny was the first to give a theory on possession. He based his work on

the text of Paul. He said possession consists of two ingredients, first is corpus possessionis

(effective control) and other being animus domini (the intention to hold as owner). He believed

since possession involved both of these, the permanent loss of one or the other brought

possession to an end. Savigny further observed that the essence of possession is to be found in

the physical power of exclusion. He says that the corpus possesionis maybe of two kinds, one

relates to the commencement of possession and the other relates to the retention of possession.

The corpus required at the commencement of possession is the present or actual physical power

of using the thing by oneself and excluding others from the use of it., whereas the corpus

required for the retention of possession once acquired may consists merely in the ability to

reproduce that power at will. Thus, according to Savigny, for getting the possession of a horse, I

must take him by the bridal or ride upon him or have him in my immediate presence, so that I

can prevent all other persons 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, animus domini. He says possession exists when

a. the holder believes himself to be the owner of the object, or

b. having merely found it, means to keep it subject to the possibility of the owner making

his presence, or

c. Having stolen it he means to keep it against all comers.

Thus, he emphasizes intention as well as physical control to complete possession. Salmond and

Pollock also agree with Savigny on this point.

Criticism of Savignys Theory:

1. He used the expression physical power to exclude others without adding any

qualifications to it. He did not mention the fact that the exclusion is subject to one

exception, i.e., the possessor cannot exclude a person who has better title over the use of

that particular material object.

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2. Salmond has rightly criticized Savignys definition and observes that even at the

commencement a possessor need not have physical power of excluding other persons. It

is the absence of an improbability of foreign interference that constitute the physical

element and not the existence of any power of exclusion. He further adds that a little

child and a man in death bed may have no physical power as against a strong man and yet

possess the money in their hands. He thus says that savigny committed an error by

including the element of physical power in the definition of possession.

3. Dias has also criticized Savignys definition and raised the following objections:

a. That it was erroneous to assume that corpus and animus, which were only conditions

sometimes for required for acquisition and loss of possession, constitutes possession

itself. Even Pauls text on which he relied so much also says we acquire possession

by means of corpus and animus not that possession is both these things.

b. Savignys idea of animus domini, the intention to hold as owner fails to explain the

cases of the pledgee, leasee, who had possession but did not intent to hold as owners.

c. The application of Savignys rigid theory of the continuation and loss of possession

reveals its weakness. Possession did sometimes continue despite loss of animus or

corpus or even both. On his theory it should follow that possession was lost if even

one or the other element was lost.

Iherings Theory: He approached possession as a sociological jurist. He posed the question why

Roman law protected possession by means of interdicts. It was devised to benefit the owners by

protecting their holding of property and so placing them in the advantageous position of

defendants in any action as to Title. He said, whenever a person looks like an owner in relation

to a thing he has possession, unless possession is denied to him by rules of law based on practical

convenience. He did not emphasize on animus like Savigny. What is necessary according to him

is the awareness of the thing which can give possession to the person. His approach was said to

be more practical than Savigny. He gave a functional definition of possession. However gives no

clear idea of possession. But was important in a sense that it brings out the notion of policy and

convenience implying that the concept may have a changing meaning for different purposes and

in different frames of law.

25 | P a g e

Salmonds Theory: he began by distinguishing between possession in fact and possession in

law. Possession in fact is a relationship between a person and a thing. I possess, roughly

speaking, those things which I have: the things which I hold in my hand, the clothes which I

wear, and the objects which I have by me. To possess them is to have my physical control. If I

possess a wild animal, I get possession of it; if it escapes from my control I lose possession of it.

It can be said to have actual control. It is said that whether possession has been acquired, lost or

abandoned intention in assessing that is highly relevant. But in certain cases it is doubtful

whether in ordinary usage possession could be ascribed to a person utterly to form any intention

whatsoever: it would be odd to describe a day old baby or a man in coma as actually (as opposed

to legally) possessing anything at all. As against this, however, we may find counter example of

possession unaccompanied by intention. I should normally be said to possess a coin in my

pocket, even if unaware of their existence and so unable to form any intention in respect of them.

We can say then that what possessor needs is a minimum intention, intent to exclude others from

whatever may be in his pocket. Salmond further clarified that we have to ask whether the facts

are such that we can expect him to be able to enjoy the use of it without interference on the part

of others. Corpus possessionis he thought comprised both the power to use the thing possessed

and the existence of ground for the expectation that the possessors use will not be interfered

with. An expectation of non-interference is not necessary for the continuation of possession

for, as Mr. Parker, a former editor of Salmond, pointed out; a man continues to possess his

pocketbook although he is being pursued by swifter bandits, who will interfere with his use of it

in a few moments. Nor is it necessary even for the commencement of possession for, taking an

example from Holmes, a child and a ruffian may both make for a purse lying in the road, but if

the child is the first to pick it up, it cannot be doubted that he gets possession even though the

ruffian is certain to interfere in few moments.

The trouble arises from the assumption that corpus and animus, which are only conditions for the

acquisition of possession, are possession itself. Salmond denied that possession is one thing at its

commencement and something else later on, and he therefore declared that possession is lost

when either corpus or animus is lost. Professor G L Williams the learned editor of the 11th

edition, altered the text on this point, and said that assuming that both corpus and animus are

required to initiate possession, the possession once acquired may continue even though corpus

26 | P a g e

or animus, or even both, disappear. This it is submitted, is true, but destroys the foundation of

Salmonds contention that possession is corpus and animus.

Possession in Law exists when a person claims a thing as his own in a natural normal manner by

occupying a thing without any dispute as to his legal right to possess. Legal right may exist with

or without possession. Law can provide protection in two different ways. Firstly, the possessor

can be given certain legal rights, such as a right to continue in possession free from interference

by others. This primary right in rem can then be supported by various sanctioning rights in

personam against those who violate the possessors primary right; he can be given a right ot

recover compensation and a right to have his possession restored to him.

And obviously there will be a need for legal criteria to determine whether a person is in

possession of an object. Indeed the protection would be of little point if legal protection ceased

the moment possession was lost.

In common law possession is a relative matter. If A momentarily hands his wallet to B, from

whom it is stolen by C, who then loses it on Ds property, where it is then found by E, the

question who has the right to possess- will depend on who brings action against whom.

Against all subsequent parties Es title would prevail (except against the true owner, who is not

claiming in this case), for finding confers a good Title. In an action between D and E, however, it

would seem that D would have a better right if he could show that the article was found on

property from which he had a general intention to exclude others. In Bridges V. Hawkeworth1

decided that notes found on the floor of a shop passes into the possession of the finder rather than

the shopkeeper. In Hannah V. Peel2, a soldier, who found a brooch in a requisitioned house, was

held entitled to the brooch as against the owner. Here, however, the owner had never been in

possession of the house. In London corp. V. Appleyard and another3, money found on land was

held to be in the possession of the occupier and not of the finder. The concept of legal possession

parts company from ordinary notion of possession. Hence we may find that one who is not

actually a possessor is nevertheless considered as such in the eyes of the law; and vice-versa.

1 [1851] 15 Jur 1079 2 [1945] KB 509 3 [1963] 2 All ER 834

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Of all the divergences between legal and actual possession what is most notable is that outside

the law possession is used in an absolute sense whereas within the law it is employed in a

relative sense. Outside 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. Then unnecessary difficulties

would arise in understanding decisions. Like R. v. Harding in which the accused was held guilty

of stealing a raincoat from a servant, who as against master had mere custody of the goods. How

could the servant in this case have possession of the Raincoat, if the law used possession in an

absolute sense, then of course servant could not have had possession of it. As it is she had

possession as against the thief but not against the employer.

Salmond then distinguished between possession of physical objects which he called corporeal

possession and possession of rights (intangible things), which he called incorporeal

possession.

Corporeal possession: it is claim to the exclusive use of material things like land, buildings and

other movable or immovable things. The exercise of this claim consists of two ingredients,

Corpus Possessionis and Animus Possidendi. This case of possession consists of firstly,

continuous exclusion of alien interference. Secondly, enjoyment of the thing at will without

interference by others. Actual use of it is not essential. A man may lock his watch in a safe and

dont look at it for 20 years. Here he has exercise continuous claim to it, by continuously

excluding any other person from interfering with it.

Incorporeal Possession: it is connected with intangible things such as trade mark, goodwill,

right to vote, right to passage, etc. In this case things are to be used continuously, as non-use of it

may give rise to non-existence of possession for such thing. One can acquire and retain

possession of a right of way only through actual and repeated use of it. English law defined it as

the continuing exercise of right rather than the continuous exercise of claim.

.Fredrick Pollocks Theory: Pollock1 Said, In common speech a man is said 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. He laid stress not on Animus but de facto control

(physical control). For Pollock a general intent seems to suffice.

1 Pollock And White, Possession in the Common law

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Holmes Theory: Holmes1 began promisingly by rejecting a priori philosophical idea. He also

perceived that fewer facts are needed to continue possession than to acquire it. It is not dissimilar

to that of Savigny and other Roman law jurists. He emphasized that to gain possession a man

must stand in a certain relation to the object and to the rest of the world and must have certain

intent2.

Conclusion: Law in its early stages is fluid, and later a theory is invented as a means of

rationalizing decisions that have already been reached. It is therefore submitted that all that is

needed are rules, which determine what view should be taken of different situations of fact. It

should serve as a warning against a priori approach. Misquoting, misinterpretation and

allegations of wrong decisions have been the result of trying to force the law as it is into

preconceived pattern. Thus, no single theory can explain possession. Analysis reveals the

influence of policy and convenience behind these rules (which Ihering was quick to grasp).

Corpus and animus are the conditions which the law generally requires for the commencement of

possession. Though, it is an answer but by no means the only one. Each case therefore should be

looked on its own merit. The question that whether possession is a matter of fact or of law, is not

clearly provided either in English or Roman law. According to Dias, Possession has three

aspects3:

a. The relation between a person and a thing is a fact,

b. The advantages attached by law to that relation is a matter of law,

c. These advantages when attributed to a person in any given type of case in a matter of law.

Kinds of Possession

1. Mediate and Immediate Possession,

2. Corporeal and Incorporeal Possession, 1 Holmes, The Common Law ch. 6 2 Holmes, The Common Law, p. 216 3 Dias, Jurisprudence p. 290

29 | P a g e

3. Possession in Law and Possession in Fact,

4. Adverse and Constructive Possession

Mediate and Immediate possession:

In law one person may possess a thing for and on account of someone else. In such a case the

latter is in possession by the agency of him who so holds the thing on his behalf. The possession

thus held by one man through another may be termed mediate, while that hitches acquired or

retained directly or personally may be distinguished as immediate or direct.

It is also known as indirect possession. It has three kinds. The first is that which I acquire

through an agent of servant; that is to say, through someone who holds solely on my account and

claims no interest of his own. In such a case I undoubtedly acquire or retain possession, as for

example when I allow my servant to use my tools in his work, or when a warehouseman who

holds them on my account, or when I send my boots to a shoemaker to be repaired. In all such

cases, though the immediate possession is in the servant, warehouseman the mediate possession

is in me; for the immediate possession is held on my account.

The second kind of mediate possession is that in which the direct possession is in one who holds

both on my account and on his own, but who recognizes my superior right to obtain from him the

direct possession whenever I choose to demand it. That is to say, it is the case of a borrower or

tenant at will. I do not loose possession of a thing because I have lent it to someone who

acknowledge my title to it and is prepared to return it to me on demand, and who in the

meantime holds it and looks after it on my behalf. There is no difference in this respect between

entrusting a thing to a servant or agent and entrusting it to a borrower.

There is yet a third form of mediate possession. It is the case in which the immediate possession

is in the hands of a person who claims it for himself until some time has elapsed or some

condition has been fulfilled, but who acknowledges the title of another for whom he holds the

thing, and to whom he is prepared to deliver it when his own temporary claim has come to an

end: as for example when I lend a chattel to another for a fixed time, or deliver it as pledge to be

30 | P a g e

returned on the payment of a debt. Even in such a case I retain possession of thing so far as third

persons are concerned.

Mediate legal possession is to be found in the law of prescription. In Haig v. West it is said by

Lindley, L.J.: the vestry by their tenant occupied and enjoyed their lanes as land belonging to

the parish. The parish has in our opinion gained a title to those lanes by the statute of limitations.

The vestry have by their tenants occupied and enjoyed the lanes for more than a century.

In Elmore v. Stone, A brought a horse from B, a livery stable keeper, and at the same time

agreed that it should remain at livery with B. It was held that by this agreement the horse had

been effectually delivered by B to A, though it had remained continuously in the physical

custody of B. That is to say, A has acquired mediate possession from B.

In Larceny, where a chattel is stolen from a bailee, the property, i.e., the possession that has

been violated, may be laid either in the bailor or in the bailee, at any rate where the bailment is

revocable by the bailor at his pleasure either unconditionally or upon a condition that he may

satisfy at will. A bailor at will can also bring a civil action of trespass where a chattel is taken

from his bailee; but a bailor for a term cannot do so. Thus the third form of mediate possession is

not recognized for the purpose of action of trespass. Also, where land is let, whether for a term of

years or at will, the landlord cannot bring trespass so long he is out of immediate possession; but

after re entry he can recover damages in respect of acts done even while he was out of

possession. In Moorgate Merchantile Co. Ltd v. Finch1 , the defendant used the plaintiffs car

for transporting uncustomed watches. The car was seized and forfeited by the custom officials

under the customs and excise Act, 1952. The car was said to be in the immediate possession of

the defendant.

In all cases of mediate possession two persons are in possession of the same thing at the same

time. If I deposit goods with an agent, he is in possession of them as well as I. He possess for me,

and I possess for him.

There is an important distinction to be noticed. If I deposit goods with a warehouseman, I retain

possession as against all other persons; because as against them I have the benefit of

1 [1962] 1 QB 701

31 | P a g e

warehousemans custody. But as between warehouseman and myself, he is in possession not I.

So in case of a pledge, the debtor continues to possesso against the world at large; but as between

debtor and creditor, possession is in the latter. The debtors possession is mediate and relative;

the creditors is immediate and absolute. So also the same with other mediate possession.

Corporeal and Incorporeal Possession:

Corporeal possession is the continuing exercise of a claim to exclusive use of a material thing.

The elements of this possession are just, the mental element of the claimant, the intent to possess,

to appropriate to oneself and second, the effective realization of this attitude. The effective

realization involves the exclusive control and enjoyment of thing at will without interference by

others. Actual use of it is not essential. It includes material things like land, house, building etc.

Incorporeal possession is connected with intangible things such as trade mark, goodwill, right to

vote, right to passage, etc. In this case things are to be used continuously, as non-use of it may

give rise to non-existence of possession for such thing. One can acquire and retain possession of

a right of way only through actual and repeated use of it. Incorporeal possession is commonly

called the possession of a right, and corporeal possession is distinguished from it as the

possession of a thing.

Adverse and Constructive possession:

Adverse possession by a person holding the land on his own behalf of some other person and

setting up his claim as the true owner of the land. It diverse possession is continues, peaceful,

undisturbed, and open for more than the year prescribed in different legal system then, in India it

is 12 years, the title of the true owner is extinguished and the person in possession becomes the

true owner. The essentials of adverse possession are:

a. The possession must be adequate in continuity,

b. In publicity, and

c. Possession must be to the extent to show that it is possession adverse to the competitor,

Nec vi nec calur nec precario.

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Both animus and corpus is necessary to constitute adverse possession. Adverse possession, in

short, is the actual, open and notorious possession continued for a certain length of time, held

adversely and in denial and opposition to the title on the part of the person maintaining it as

against another person who is out of possession.

Constructive Possession is not actual but assumed to exist, where one claims to hold by virtue of

some title, without having the actual possession of the thing. The possession of master, landlord

is constructive if things or land is not in their possession but in the custody of the servant or

tenant. It may be called as legal possession. Salmond said it covers two cases, one that is

discussed above, and another when one person has lost possession and no one else has acquired

it yet. Pollock and Wright, confine it to cases where there is a mere right to recover possession.

Possession in Fact and Possession in Law:

Possession in law is also known as dejure possession. It exists when a person claims a thing as

his own in a natural normal manner by occupying a thing without any dispute as to his legal right

to possess. Legal right may exist with or without possession. It is just possible that a man may

have ceased to live in a house but without intending to abandon it for good as the owner of the

house. Possession in Fact is also known as defacto possession. It exists when the thing is in

immediate occupancy of a person. The person has physical control of the thing to the exclusion

of others. And has animus and corpus over the material object. It is actual possession, which can

be held to be prima facie evidence of ownership.

Of all the divergences between legal and actual possession what is most notable is that outside

the law possession is used in an absolute sense whereas within the law it is employed in a

relative sense. Outside 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.

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Concept of Possession in Indian Law

Analogous to Roman and British Legal theory and practice on possession, the Indian Law has

developed on the same lines insisting the existence of physical control and mental element to

constitute possession1. In India the framers of IPC didnt define Possession. There is difference

between possession as understood in India and England. Thus English cases on possession are

therefore not a safe guide for determining possession under the IPC. Further the distinction in

English law between Custody and Possession is not expressly recognized in IPC. In India

Section 27, IPC abrogates the distinction between possession and custody. The section provides

that when the property is in the possession of wife, clerk or servant on account of that person it is

deemed to be in possession of wife, clerk or servant, unlike English Law where it would have

been considered custody. What would be custody in English Law would be Possession in Indian

Law2.

Law Commission in their Report said, We believe it to be impossible to mark with precision

by any words, the circumstances which constitute possession. It is easy to put cases about which

no doubt whatever exists and about which the language of the lawyers and of the multitude be

the same. It will hardly be doubted, for example, that a gentlemans watch lying on a table in his

room, is in his possession, though it is not in his hand; and though he may not know whether it is

on his writing table or on his dressing table. As little will be doubted that a watch, which a

gentleman lost a year ago on a journey and which he never heard of since, is not in his

possession. It will not be doubted that when a person gives a dinner, his silver forks while in the

hands of his guest are not in his possession; so also when he has deposited them with a

pawnbroker as a pledge. But between these extreme cases lie many cases in which it is difficult

to pronounce with confidence, either that property is or that it is not in a persons possession3.

Possession and Indian Penal Code, 1860:

It is well known fact that right to defend property is the right to defend possession of property

and not the mere right to possession whereas the civil law is more concerned with the title than

1 Maharaja Sashi Kant Acharya Bahadur V. Nayjan Bewa, AIR 1945 Cal 611 2 Prof. S.N. Dhyani, Jurisprudence- a study of Indian legal system, p. 309 3 PSA Pillai, Criminal law, p. 1004

34 | P a g e

possession. The criminal law protects the possession irrespective of the fact that how the

possession was acquired and protects the possession even of a thief except against the true

owners. In India the IPC in Section 403 and 408 provides to a greater extent for the protection of

possession of movable.

Section 4031 says whosever dishonestly misappropriates or converts to his own use any

movable property, shall be punished.. In one case illustrated, there is that A takes property

belonging to Z, out of Zs possession, in good faith, believing, at any time when he takes it,

that the property belongs to him. A is not guilty of theft; but if A, after discovering his mistake,

dishonestly appropriates the property to his own use, he is guilty of an offence under this section.

According to Old English Law this case would fall under Larceny as after realizing his mistake

he can be said to have acquired the possession of the good that very moment, and if he uses it as

his own he can be said to have committed Larceny2. Thus were an act was Criminal

misappropriation in Indian penal Code, it was Larceny in England.

A concept of possession of movable property can be clearly analyzed from Section 378, IPC,

which says, whoever, intending to take dishonestly any movable property out of the possession of

the any person without that persons consent, moves that property in order to such taking, is said

to commit theft.

In case where a lady who wanted a railway ticket, handed the money to a stranger, who was near

to the window of the ticket office, that he might procure a ticket for her, and he ran away with

the money, this was held to be theft, as she never parted with the dominium over the money and

merely used his hand in place of her own. Possession was with the lady until the stranger formed

an intention to run away with it.

In case of immovable property, criminal law in India attaches little importance to the mere right

of possession which is left to the civil courts and protects possession only for preventing breach

of peace and intimidation to person in possession.

1 IPC, 1860 2 R. V. Riley [1885] 16 QBD 190

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The provisions of IPC relating to possession of property fall into two cases.

A. Those which are intended to prevent disturbance of possession. Examples are: Theft (S.

378, S. 381), Robbery (S. 390), Dacoity (S. 391), and offence involving trespass on

immovable property (S. 382, S. 383).

B. Then there are those special cases in which it is not the object of the law to protect

possession but punishment is provided for being merely in possession of certain things.

For Example: Cases of possession of instruments for counterfeiting of coins ( S. 235),

Govt. Stamps (S. 256), Trade Marks (S. 409D), possession of counterfeit coins (S. 242,

S.243, S.252, S.253),of government Stamps (S. 259), of false weight and measures (S.

266), of obscene books (S. 293), Counterfeiting Seals (S. 473), False Currency notes (S.

489), etc

The doctrine that possession follows title is a well recognized rule in India. section 110, Indian

Evidence Act, 1872; section 3 Explanation 2, Transfer of property Act, 1882; Section 27 Specific

Relief Act, 1877 and section 27 Indian Sales of Goods Act, 1930 incorporate the principle that

possession follows title.

Possession in Indian Evidence Act, 1872:

Section 110 of the Indian Evidence Act provides that when when the question arises whether

anything of which he is shown to be in possession, the burden of proving that he is not the owner

is on the person who affirms that he is not the owner. In other words where plaintiff is in long

possession of land which leads to presumption of title the burden would shift on other side to

displace the presumption that possession is prima facie wrongful. However, once the initial title

of another person is established, Section 110 no longer applies and the possessor must prove that

Title has somehow or other been terminated. A person therefore in possession of land without

Title has an interest in the property against all the world except the true owner, an interest which

unless and until the true owner interferes is capable of being disposed of by deed, will or sale,

just in the same way it could be dealt with if title were unimpeachable. It is possession in fact

which law protects against all others.

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Possession in Transfer of Property Act, 1882:

Explanation 2 of Section 3 of the TPA imposes a duty on the part of an intending purchaser to

conduct an inquiry into the nature of actual possession where the possession of the property is

with a person other than the vendor at the time of purchase. Where he fails to do so law would

impute him constructive notice of nature of actual possession which may be against him. Actual

possession only operates as a constructive notice. Constructive possession is not notice. Vague

rumors from strangers of suspicious circumstances do not amount to such notice. This principle

is also further embodied in Section 27 of the specific Relief Act, 1877. According to it where a

tenant is in possession under a lease or an arrangement, a person purchasing it must be bound to

inquire on what terms that tenant is in possession. Thus, where property is in actual possession of

a mortgagee it behaves the prospective purchaser to ascertain what rights the person in actual

possession has in respect of the property.

Indian Sale of Goods Act, 1930:

There is a rule in English law nemo dat qui non-habit, i.e., no man can pass a better title than

he possesses, which can be termed as an exception to the rule that physical possession is the root

of title. The Indian law follows the English law with some reservations. Actual possession has

greater possibility conferring rights of ownership both in India and English Law, but in all such

cases the possession must be effective, undisturbed, open, and continuous. A mere symbolic

possession does not confer such rights. The buyer acquires no better title to the goods than the

transferor had and therefore he may be compelled to surrender the goods to the true owner.

Except however, in certain circumstances a person in possession of goods can give title to an

innocent purchaser, although possessor had no better right than a thief would have had.

Possession and the Arms Act:

Section 3 provides that no person shall acquire arms in his possession and control without

license. The word possession in Section 19(f) of the Arms Act means exclusive possession

and the word control means effective control.

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In Narendra Nath v. State1, Mr. Justice P.B. Mukharji observed that the concept of possession

under the Penal Code is not necessary the same as the concept of possession under the Arms Act.

The offence under the Arms Act must connote an element of consciousness in the person

charged with such offence. Possession as a test or an element of crime must be of such

character as can relate to the fundamental principle of mens rea in criminal jurisprudence. The

animus must be there and mens rea must be there. Unless these notions are specially excluded by

any statute under consideration they are basic test which must be satisfied before a person can be

said to have committed a crime whose basis is possession. It is this element of consciousness or

intention or knowledge which must be established and must be present as fact before possession

under the Arms act can be said to constitute an offence. It does not matter whether possession is

actual or constructive, physical or mediate or immediate, direct or indirect, joint or concurrent or

exclusive. Nor mere physical relation of a person to a thing can have any significance in criminal

jurisprudence unless it is the outward form in which the needful animus or interest have fulfilled

and realized itself. Corpus without the animus is ineffective..

Possession of Master and Servant:

Possession of master and servant is always construed as possession of master. A servant using a

gun belonging to his master would no doubt have the weapon under his control so long as the use

continued but weapon would remain in the masters possession.

Possession of Husband and wife:

Sec 27 of the IPC provides that when property is in the possession of a persons wife, clerk, or

servant on account of that person, it is that persons possession. But this inference is rebuttable.

The fiction of law that wife and husband is one and the same person, however romantic, cannot

be extended to say that wifes crimes are the husbands crime and vice-versa. No man can be

said to possess a thing without his knowledge. In other words to make possession culpable the

accused must have mens rea. In modern times it is not uncommon for both wives and husbands

to have separate boxes where things are locked up without the knowledge of other spouse. So the

inference that possession of the wife is possession of husband is dangerous and may lead to

unfortunate result.

1 AIR 1951 Cal. 140

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Possession in ancient Indian and other laws.

Ancient Indian Laws: the law of possession under ancient Indian Law was nothing but a legal

contrivance based on consideration of dharma. The use and enjoyment of property in accordance

with Indian tradition was restricted and controlled by the Holy Scriptures1. In old Hindu Law

possession was of two kind; a. with Title or b. without Title where possession continued for three

generations. Nevertheless Hindu Law gave enough importance to Title to prove possession.

Katyayana says- There can be no branches without root, and possession is the branch2.

Possession without title never created ownership. Possession was proof of ownership if it

fulfilled five conditions:

1. It was supported by Title,

2. It was continued for a long time and there was no break in it,

3. There was no protest ever raised against it

4. And it was in the presence of the opposite party

So a person in possession of a property without a Title was regarded3, as a thief masquadering

under the cloak of possession

Possession in Old Mohammedan Law: Possession is also an important concept in

Mohammedan law. Here the man in possession of a property although by wrongful means has

obvious advantages over the possessor4. The possessor is entitled to protection against the whole

world except the true owner. There are cases where the existence of a substantive right depends

upon possession of specific property by the claimant. These cases are:

a. The completion and validity of a gift transaction depending upon delivery of possession

by the doner to the donee5 (though TPA, 1882 does not regard delivery of possession by

the doner to the donee as an essential ingredient of a gift transaction).

1 Smritichandrika, 602. 2 Katyayana in Parasharamadhava- Vyasa 102. 3 Narada in Mayaukha, 30 4 Abdur Rahim, The Principles of Mohammedan Jurisprudence (1911), pp. 276-277 5 Section 129 of the Transfer of Property Act, 1882 provides exception to Mohammedan Law gifts.

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b. A Muslim widows right to retain the property of her husband, the possession of which

she had obtained during the lifetime of her husband lawfully and without force or fraud1,

in lieu of Dower.

c. A Wakf (the settler) in addition to a declaration of the Wakf, appoints a superintendent of

the Wakf property and delivers to him the possession of the wakf property.

Cases on Possession in India

Under Indian Penal Code:

English decisions have perhaps little significance for courts because of clear legislative policy

and statutory measures adopted in India. In India there are different statutes which have made

legislative policy clear on matters concerning possession and ownership.

In Nandlal v. Bank of Bombay2, where a person obtains the goods of another innocently and

disposes them fraudulently for the benefit of himself or a third person was held guilty of

conversion.

In Dwarkadas v. N. Nandu3, the accused kept a buffalo tied up to the verandah of his house

which was open to the gaze of the public going about in the street, and the buffalo itself

apparently had strayed into his house and he himself had a month previously lost a buffalo, and

wherein the accused claimed it as his own as against the complainants assertion. It was held that

in these circumstances the dishonest intention cannot be imputed to the accused. Similarly,

where the accused4 took possession of a wandering cow of which no owner could be discovered

was not guilty of an offence under Section 403, IPC. The court rightly observed that the a person

finding property of which, from the nature of it, there must be an owner, must take reasonable

care of it, and endeavor to find the owner. But he is not bound to adopt extra-ordinary means for

1 Mullah, Principles of Mohammedan Law, p. 255-257 (14th Ed. 1955) 2 18 Bom. LR 386 3 [1923] Mad 364 4 Sarajul Haq v. Emperor, [1922] 23 Cr. Lj 408

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the discovery, nor is he bound to be out of pocket in discovering the owner by means of

advertisement.

In Queen Empress v. Sita1, the accused found a gold Mohur on an open place in a village and

sold it the next day for its full value without making an attempt to discover the owner of the gold

Mohur. The accused was charged of dishonest misappropriation and conversion of movable

property. The court held that it was possible that the gold Mohur had been abandoned by the

original owner and so the accused did not commit any offence under Section 403, IPC.

Possession of the head of the Family:

There is controversy among the different High Courts whether possession of a thing found is

possession of the head of the family. As in English law things found in the place owned by

someone, the thing would be considered to be in possession of the owner of the land. Madras,

Calcutta and Nagpur High Court are of the view that in case of an illicit article is recovered form

a place of occupation of the members of joint Hindu family to which people in general have no

access, there is also a presumption that the head of the family is in the possession of the article in

question. On the other hand the Allahabad and Patna High courts have held that the mere fact

that the accused is the head of the joint family is not sufficient to hold that he is in possession of

the articles recovered from the house. It would depend on the circumstances whether his

possession over the article can be proved or not.

In Ram Charan v. Emperor, two silver ornaments were found in a corn bin containing dried

mehwa flowers in the house occupied by Ram Charan, his three grown-up sons and his wife.

Niamatulla, J., observed: it seems to me that police and the magistrate proceeded on the

assumption that property found in the house occupied by several male and female members

residing therein should be considered to be in possession of the head of the family. This is

wholly unwarranted assumption and can have no place in cases in which possession and criminal

interest form the essential element of an offence possession implies dominion and

consciousness in the mind of the person having dominion over an object that he has it and can

exercise it. It cannot be said to be in possession of a thing unless it is shown by evidence that he

had dominion over it and knew that he had it. The mere fact the thing is found in a house

1 [1893] 118 Bom. LR 28

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occupied by a person in common with others or at a place in the house which is as much

accessible to others as to him is no prove that he was in possession of it. It is submitted that in

view of the fact that possession required under the act is to be actual and conscious, the head of

the family cannot be held, simply because he is the head of the family, liable for articles found in

a place occupied by members of joint Hindu family.

Possession and Treasure Trove Act, 1878:

It applies to things which are hidden in the soil or affixed thereto. If the things are not hidden in

the soil but are found on the soil this act has no application. If the finder discovers some treasure

he shall give notice to the collector of the district and either deposit the treasure in the

government treasury or give security for producing it when required. The notice shall be given

by the collector to the owner of the land where treasure is found. The discovery of the treasure

shall be advertised and all claimants to forward their claims within six months. If there is a

reason to believe that the treasure was hidden or deposited more than 100 years previously no

claim of any outside person is to be admitted except the finder. In case of treasure found in a

public place such as digging canal etc such treasure shall vest if more than one hundred year old,

in the proportion of three-fourth in the finder and one-fourth in the government.

As regard the interpretation of the word treasure it must be hidden unknown and discovered

later on by the finder. It denotes previous ignorance as to the existence of t