Possession is very difficult to define in English Jurisprudence. But it very important topic. Human life and society would become impossible without retention and consumption of material and non-material things. Food, clothes, tools, etc. are essential items to use. We get hold over the first to claim possession. It is not just acquisition of things but it is continuing claim for use of them. It may be legal or illegal.
How the possession is acquired: Following are some points which can be referred to acquire or loss the ownership:
1. Possession itself is evidence being owner. Pen in my hand is evidence being owner, regardless legally or illegally.
2. The person in possession is presumed to be the owner. A house in my possession is presumed my ownership along-with all the things lying in it.
3. Anything can be held wrongfully or by fraud.
4. Long possession of twelve years confers the title in property, which may belong to others. When a title is conferred to another even without ownership is acquisition of possession.
Possession is defined as “it is continuing exercise of a claim to the exclusive use of it.” It does not cover incorporeal possession. Possession is different from ownership but normally possession and ownership lie together.
How the possession is acquired: Lease, renting out, pledge, mortgage, theft, fraud, and bailment etc. is the general mode of acquisition of possession.
Possession is of two kinds, i.e., possession in fact or de facto and possession in law or de jure. Some discordance in law and fact occurs. Law something presumes which may not actually exist. Normally possession in law and possession in fact exist in a person but it may vary.
1. Possession in fact or de facto: It means the possession, which physically exists in term of control over it. It can be seen landlord and tenant where tenant holds possession of house physically or de facto, but it is not possession in law or de jure.
2. Possession in law or de jure: It is the possession which, in the eyes of law, exists. It may exclude physical control over it. It is also called constructive possession. A servant may possess car, but in the eyes of law, it is possession of master. Possession of bailor through bailee is de jure possession on the part of bailor.
Corporeal and incorporeal possession: Corporeal possession is the possession of a material or tangible objects, thus it is continuing exercise of a claim on the use of material or tangible object.
Incorporeal possession is the possession of a non-material or intangible object. Thus it is continuing exercise of a claim on the use of non-material or intangible object.
There are two essential elements of possession, i.e., animus and corpus.
1. Animus is the intent or mental condition or activity or claim of exclusive use of the thing possessed. Cloth at tailor’s shop is in possession of tailor but he may not intend to exclude the owner or subject of the owner.
Animus may be legal or illegal. The only test is whether the man in possession intends to exclude others or not. General intent is enough to constitute possession.
All books in library, all fishes in net, all sheep in flock, are subject of intent whether in knowledge or not, thus possession completes.
2. Corpus is second element, which is essential and completes possession. It is objective part of possession. Both animus and corpus are necessary for possession.
The intent to exclude to others from interfering with the object possessed must be evidenced by physical facts. If there is no action then no intention is expressed. Pen in my pocket, ring on my finger, or goods in my home, are corpus of my possession of each of these.
Completion of possession:
1. Power of possession: It shows possession. Books or watch in my hand excludes others thus possession is complete. Things under lock and key are also possession.
2. Presence of possession: A person may be feeble and unable to exclude other but his presence may command respect. Cash in the hand of child is possession.
3. Secrecy: Mere knowledge that I have cash in bank, which is exclusive knowledge, is possession.
4. Continuing use: I use pen continuously, read book continuously, use of transport continuously, is possession.
5. Customs: In some localities people are not allowed to interfere to other things even presence is not there, like in Saudi Arabia where people leave their shops remain open and go to offer prayer and no interference is allowed. It is possession even in absence.
6. Respect of rightful claim: In law-abiding societies people do not interfere in the right of other and rightful claim generally obtain security from general acquisition.
Res nullius means ownerless things or objects. Terra nullius means no man land. A person, who finds lost goods, while passing on road, e.g., a wallet, being first finder, he has good title against the whole world except the true owner, even if it is found on another person property without committing trespass. This is the rule. Any other person who looks at finder of lost goods cannot demand his share from lost goods.
If a customer finds a lost wallet while shopping in a store which is not identifiable, can retain till reasonable time to wait its true owner. He is obliged to bring this matter into the knowledge of shopkeeper and give him his own address. If true owner did not come till reasonable time, he will hold title.
There are many other things which have no owner, i.e., gems stone, metal, gold, silver, natural resources, bird, animal, provided these things are found in way, without committing trespass. Precious stone cannot be held from the area specified by government. Bird or fish cannot be hunt from the area of property holder. Things cannot be hold from others house. Bird cannot be hunt, which is prohibited.
There are three exceptions in this rule:
1. Owner of the property on which the thing is found is in possession of the thing itself as well as property, or
2. If the finder is servant or agent then master or principal has title, or
3. Wrongful act does not constitute possession. Trespass is not allowed.
Natural resources in economic zone like water, sea, land etc. belong to government. If treasure comes out from others property will also belong to government.
Kinds of corporeal possession: Immediate possession means direct or proximate possession without agency and mediates possession means in between or remote possession. It is acquired with agency.
F A being a servant holds something for his master B. A has immediate possession while possession of B is mediate.
F Where both claim possession, e.g., tenant and landlord.
F In case of bailment, pledge or mortgage, both have claim.
A has exclusive right of possession on his land while right of way over his land is concurrent.
Acquisition of possession: Possession is acquired when both the animus and corpus are acquired:
1. By taking: When someone takes anything, he has possession. It may either be rightful or wrongful possession.
2. By delivery: The thing is acquired by delivery with consents of previous possessor.
Actual delivery is a kind in which goods are delivered while constructive delivery is the rental or sold goods.
