Table of Contents
POSSESSION
Possession basically means having or taking control. Jurists have defined possession according to their own notions such as:
Pollock – He says that having physical control over a thing constitutes possession.
Zacharie – He observes that the possession is a relation between person and thing which indicates that the person has an intention to possess that thing and has the capacity of disposing it of.
Sir William Markby – He defined possession as “the determination to exercise physical control over a thing on one`s own behalf coupled with the capacity of doing so.”
Two Types of Possession:
- Possession in Fact – This refers to the physical or actual control over a property or object, regardless of whether the person has a legal right to it. The relation between a person and a thing which he possess is called possession in fact or defacto possession. It indicates the physical control over a thing. It is not necessary that the physical control over the object to be continuous. The physical control over a thing should also be accompanied by the capacity to do so.
- Possession in Law – It refers to the possession of goods when one has legal right vested in it. The concept of possession in law is also known as de jure possession. The law protects possession for two main reasons which are:
- For conferring certain legal rights on the possessor
- By penalizing the person who interfere with the possession of a person.
POSSESSION UNDER ROMAN LAW
In Roman Law, the concept of possession was recognized in two distinct senses, each reflecting a different level of control and intent:
- Corpus Possessionis- This refers to the actual, physical control over a thing — the basic act of possessing an object or property. A person who merely holds or uses something physically is said to have corpus possessionis
🛠️ Example: Holding a piece of land or an object, even if one doesn’t legally own it.
- Civil Possessionis- Civil possessionis goes beyond physical control and includes a person’s legal right to possess something — often recognized and protected by law. A person with civil possessiois has not just control, but also the authority to exclude others from interfering. This form of possession holds more weight in legal claims and rights.
POSSESSION UNDER ENGLISH LAW
The concept of possession holds a prominent place in English law, where it is treated with significance in both civil and criminal contexts. Whether it’s a landlord-tenant dispute or a theft case, the idea of who is in possession often plays a crucial role.
In English jurisprudence, possession is not merely physical holding — it is legally safeguarded for several reasons:
It simplifies proof of ownership.
It maintains peace and order by discouraging unlawful interference.
It supports public policy by rewarding those who take care of things.
According to Dias, possession has three main aspects which are:
- The relation between a person and thing is act.
- Advantage attached by law to that relation is a matter of law.
- These advantages are attributed to a person when certain other facts exist.
POSSESSION UNDER INDIAN LAW
In India, the concept of possession plays a vital role in determining title to land. Rather than relying solely on documentation, courts often consider actual possession as evidence of ownership.
Katyayan’s Classification of Possession
The ancient jurist Katyayan recognized two types of possession:
Possession with Title – When the possessor has a legal ownership document or valid claim to the property.
❌ Possession without Title – When the possession exists without any legal claim to ownership.
📌 Important: Under Indian law, merely possessing a property without a valid title does not confer ownership rights.
Ancient Texts on Possession
Early Hindu legal texts also reflect nuanced understanding of property rights:
Yajnavalkya Smriti- This smriti suggests that if a person allows their property to be used by someone else uninterruptedly for 20 years, without raising any objection, they may lose ownership through prescription.
📖 Gautama Dharma Sutra & Narad Purana- This theory also mention the concept of property acquisition through continued possession.
Case- Trimbak vs State of Madhya Pradesh (AIR 1954 SC 39) – In this case it was held that article recovered from the place which is in possession of accused but the general public also has access to that place, then in such a case article cannot be said in the possession of accused.
ELEMENTS OF POSSESSION
According to Holland, legal possession has two essential elements which are:
- Corpus or Physical control – It means the existence of such physical contact of a person with things as to give rise to a reasonable assumption that others will not interfere with it. Sometimes there can be actual physical contact and sometimes not.
- Animus or Intention – Animus basically means intention to hold possession again all others except the true owner. The animus is the conscious of the intention of an individual to exclude the others from the control of an object.
KINDS OF POSSESSION
- Corporeal Possession- It refers to the possession of tangible/ material objects. It involves physical control and the right to enjoy the item at will. In roman law it is known as possessio corporis
- Incorporeal Possession- It refers to the possession of intangible objects. In roman law, it is known as possessio juris.
- Mediate Possession- Mediate possession is the possession through someone else acting on your behalf.
- Immediate Possession- It refers to the directly by oneself, without the role of intermediaries.
- Concurrent Possession- It refers to the possession where two or more individuals possess the same property at the same time. For example, Co owners of a flat.
- Constructive Possession- Constructive possession means to have power and intention of retaining control over property but without actual control or actual presence of it. It is basically a right to recover possession For example- Giving keys of a warehouse.
- Adverse Possession- It is a kind of possession where a person occupies someone else’s land and eventually claiming ownership by denying the original owner’s title.
- De Jure Possession- De jure possession refers to the kind of possession where person claims possession through a proper legal framework and documentation.
THEORIES OF POSSESSION
1. Savigny’s Theory of Possession
Founder: Friedrich Carl von Savigny
Source: Based on Roman jurist Paul’s writings
Core Elements:
Corpus (Physical Control): The person must have physical control over the object. This may or may not involve actual touch but must indicate exclusivity.
Animus (Intent): The possessor must intend to hold the object against everyone but the true owner.
💬 Criticism:
Savigny claimed both elements (corpus + animus) are essential for possession. However, in real-life scenarios, possession can exist even if one element is missing (like holding something accidentally or unconsciously).
2. Ihering’s Theory of Possession
Thinker: Rudolf von Ihering
Key Idea:
“If someone looks like the owner, they should be treated as the possessor—unless the law says otherwise.”
Highlights:
Focuses on practical convenience rather than strict legal elements.
Believes animus is secondary, not central. What matters is factual control that resembles ownership.
💬 Criticism:
This theory struggles to explain cases where legal possession is denied even when someone is in actual control—such as tenants or unlawful occupiers.
3. Kant’s Theory of Possession
Thinker: Immanuel Kant
Philosophical Viewpoint:
“Possession is not just about control—it’s about will, freedom, and identity.”
Essence:
Possession embodies a person’s will.
To possess something is to project one’s personality and freedom into the object.
Why It’s Unique:
This theory gives moral and philosophical depth to possession—making it not just a legal, but also a personal concept.
4. Salmond’s Theory of Possession
Jurist: Sir John Salmond
Key Insight:
“There is only one true conception of possession—possession in fact.”
Distinctions Made:
Corporeal Possession: It deals with the physical objects (like land, books).
Incorporeal Possession: It deals with rights or intangibles (like patents or copyright).
Takeaway:
Salmond denies the difference between legal and factual possession—he believes all possession is essentially a matter of fact.
5. Holmes’ Theory of Possession
Jurist: Oliver Wendell Holmes
Approach:
Very similar to Savigny, but with a twist.
Elements:
Emphasizes both corpus and animus.
However, he places more importance on corpus (physical control).
MODES OF ACQUIRING POSSESSION
1. By Taking (Without Consent)
Definition: It is a method in which possession is acquired without the consent of the previous owner.
Example: Imagine you’re hiking and come across an abandoned sculpture in the forest that belongs to no one—you pick it up and take it home. That’s possession by taking.
🔸 Important: It’s not necessary that the item was already in someone else’s possession. You can take possession of ownerless goods (also called res nullius).
2. By Delivery (With Consent)
Definition: Possession is acquired with the consent and cooperation of the former possessor.
There are two main types of delivery:
A. Actual Delivery
It is the physical handover of the object.
Example: Giving someone a book directly into their hands.
B. Constructive Delivery
No physical handover, but the intention to transfer possession is clear.
Example: Giving someone the keys to a locked storage where goods are kept. The control is symbolically passed.
Think of it this way:
Actual delivery is hand-to-hand, while constructive delivery is symbolic but still legal.
3. By Operation of Law
Definition: It is the condition where possession changes hands not by human action but through the authority of law.
Example: When a person passes away, their property automatically goes to their legal heirs. They acquire possession by operation of law—no consent or delivery is needed.
References:
- Studies in Jurisprudence and Legal Theory by Dr. N.V. Pranjape
- Jurisprudence and Legal Theory by Dr. V.D. Mahajan
