POSSESSION

Possession originally expresses the simple notion of a physical capacity to deal with the thing to the
exclusion of everybody else.
It is the most fundamental interaction between man and things, according to Salmond. However,
Henry Maine defined it as “interaction with an object that includes the exclusion of other people
from enjoying it.”
Possession in simple words can be described as to when man is considered to own a thing over
which he has seeming control or over which he has apparent authority to exclude others.

ELEMENTS:
Legal possession, according to Holland, comprises two fundamental elements:
1. Corpus Possessionis
2. Animus Posidendi

Corpus Possessionis
By corpus is meant an effective physical control of the object. The physical power of dealing with
the subject immediately and of excluding any foreign agency over it, which must exist in every
acquisition of possession.
Corpus denotes two things:
1. a) the possessor’s physical relationship to the res or object; and
2. b) the possessor’s relationship to the rest of the world.
A person must have some physical touch with whatever he owns to have a reasonable expectation
that others will not interfere with it, i.e. that others will not interfere with the possessor’s right to
use or enjoy that object.
This guarantee of non-interference can be obtained in a variety of ways:
1. The possessor’s physical power over the object
2. Possessor’s physical presence is enough to keep ownership
3. An efficient method of avoiding external influence and keeping an object in one’s possession
secure if a person maintains it in a hidden area.
4. Protection afforded by the possession of other things with it or accessory to it

Animus Possidendi
Possession does not imply mere juxtaposition. It must imply the possibility of bodily control, as
well as a desire to exert such power. Animism is the mental component of possession. By
animus it is meant the mental element or the intention to hold the object as owner against all others.
In other words, it is a conscious intention to exclude others from the object. Without this mental
element, there can be no possession. It refers to the intention of the possessor.
In the case of N.N. Majumdar v. State [vi] it was held that corpus without animus is ineffective.
Following are a few important points in respect of animus:
• It is not necessary that the animus must be rightful.
• The animus need not be absolute.
• It is not necessary that the animus must be to hold the thing as an
owner.

Savigny theory
Savigny based his idea of possession on the Roman Jurist Paul’s text, emphasizing that possession
consists of two essential elements:
1. Corpus Possession
2. Animus Domini

• According to Savigny, the essence of possession is to be found in the physical power of

exclusion. He maintained that possession is consisted of two elements, namely, corpus
possessionis, i.e., physical control, and animus domini, i.e., an intention to hold as owner.
• Since, possession involved both these elements, the permanent loss of one or the other
brought possession to an end.
• Savigny also thought that since the detentor and possessor have the same physical retention
to the res, the difference between them should be detected in the mental element, and the
intent which demarcates a possessor, is animus domini, i.e., a desire to hold for oneself and
on behalf of others.
• According to him, possession protection is a subset of personal protection, and just as
any act of violence against a person is illegal, so is any act that disrupts possession
through deception.

Mediate Possession
Mediate possession of an object is the possession of a thing through a mediator (middleman) like an
agent, friend or servant. It is also called indirect possession. For example: If a landlord let his house
to a tenant. The tenant is bound to hand over the house to the landlord whenever he decides. So the
landlord has the mediate possession of the house through the tenant.
Salmond instances three categories of mediate possession as follows:-
-Possession acquired through agent or servant;
-Possession held through a borrower or hirer to the tenant where the res i.e., the object can be
demanded at will;
-Where the property is lent for a fixed period of time or delivered as security for the repayment
of a debt.

Immediate Possession
When the possessor himself possesses the property or thing, we call it immediate possession or
direct possession. Thus, the relation between the possessor and the thing possessed is a direct one,
and immediate without intervening agency. For example: when I buy a pen from a shop and keep it
for myself. The pen is in the immediate possession of mine.

Corporeal Possession

Objects which have physical or materialistic manifestation, and which our senses can perceive are
corporeal possession. Thus, it is the persistent exercise of a claim on the use of material or tangible
objects. For Example House, car, cycle, pen, etc.

Inorporeal Possession
Objects which don’t have any physical or materialistic manifestation, and which our senses cannot
perceive are incorporeal objects. Thus, it is the persistent exercise of a claim on the use of
immaterial or intangible objects. For example Trademark, goodwill, patent, copyright, etc.

De facto possession

This sort of possession relates to the physical custody of a tangible asset. A

person who has physical control over a thing has de facto possession of it.
De facto possession consists of two basic components: ‘corpus’ and ‘animus.’

De jure possession

Possession in law, often termed as ‘possessio civilis,’ refers to the legal

possession of a property.

De jure possession happens when a person claims a property in the speci ed

legal method in their region (for example, by a sale deed, rent agreement, or
will) and inhabits it with no disagreement in order to own and use that
property.

It is critical to emphasise that de jure possession is not the same as

“ownership.” De jure possession can also refer to a tenancy, in which a renter
legally dwells in a property after signing a lease agreement with the owner.

In most cases, an individual who has de facto possession of a property also

has de jure possession of it. There are, though, limitations. A domestic
assistant, for instance, may have mere physical authority over a property; yet,
the factual and legal possessor is the property’s owner in the legal sense.
fi
MEANING

Ownership refers to the legal right of an individual, group, corporation or government to the
possession of a thing.
In terms of Jurisprudence, Ownership refers to the relation that a person has with an object
that he owns. It is an aggregate of all the rights and interest that he has with regards to the
said object. Ownership includes rights are in rem, that is, they can be enforced against the
whole world and not just any specific person.

According to Austin, ownership refers to “a right indefinite in point of user, unrestricted in point
of disposition and unlimited in point of duration.”

Concurring with Austin’s view, Holland defines “ownership as the right of absolute control over

an object.” According to him, ownership is an aggregate of all rights pertaining to the possession,
enjoyment and disposition of an object.

Characteristics of Ownership
1.
2. It is absolute or unrestricted. An owner of a property may be its absolute owner and nobody
else may have any interest in the same. There may also be certain restrictions on the right

Ownership means to own an object. The owner has a legitimate claim over the property. It
implies absolute authority

The owner has unrestricted ownership of the property in terms rights, of disposition and
unlimited ownership in terms of duration. Through this, there is absolute authority over the
property.

It is a union of ownership and possession. It consists the bundle of rights and all the rights are
right in rem.
It is a de jure concept and is wider in nature.It is backed by legal sanction
 of ownership and those restrictions may be imposed either by law or by voluntary
agreement. In another case, the deposition of rights under ownership in the hands of the
owner is unrestricted.

2. It is also possible that certain restrictions may be imposed on the owners of property in times of
national emergency. The house of any owner may be requisitioned and any compensation may be
fixed by the prescribed authority.

3. The ownership of a person does not come to an end with his death. He is entitled to leave his
property to his property to his successors. The owner can distribute the property even in his own
lifetime.

ESSENTIAL ELEMENTS OF OWNERSHIP

Indefinite point of user- The owner of a property has the liberty to use it. Others have the duty to
not to use it or to not to interfere with the owner’s right to use it.
Unrestricted point of disposition- The owner has the right to dispose of the property at his own
will. A person needs to have the ownership of a thing in order to transfer that ownership to someone
else. Mere possession does not give the power to dispose of the ownership.
(i) Right to use: The owner has right to use the subject-matter of ownership as per his own
discretion.
(ii)Right to the capital or alienation: The owner has absolute right of alienating with the thing.
(iii) Right to income: The owner has the right to the income arising out of the thing within the
limits, if any, laid down by any law.
(iv) Right to possess: The owner of a thing has a right to possess it, and the owner has exclusive
control of a thing.
(v) Right to manage: The owner has the right to manage i.e., he has the right to decide how and
by whom the thing shall be used.

Modes of acquiring Ownership

Under modern law, modes of acquiring ownership may be classified under two heads:

(i) Original mode:

This mode is the result of some independent personal act of the acquirer himself. It is of
following kinds:
(a) Absolute mode: In this mode, ownership is acquired over previously ownerless object. It occurs
when in a given situation things which had not been owned before and can be acquired by
possession and eventual ownership
(b) Extinctive mode: In this mode, there is extinction of previous ownership by an independent
adverse act on part of the acquirer.
(c) Accessory mode: In this mode, requisition of ownership is the result of accession.

(ii) Derivative mode:

When ownership is derived from a previous owner, it is called derivative acquisition of ownership.
It is derived by any of the following modes:
(a) Title of prior owner/Purchase: In agreement, a title is acquired with the consent of the
previous owner. It is only limited to contracts but includes all bilateral acts which create an
interest. Such agreement may be either by grant or by assignment.
(c) Gift: It should be voluntary and without consideration and it may be movable or
immovable. As per Section 123 of the Transfer of Property Act, the transfer by way of gift
must be affected by a registered instrument signed by or on behalf of donor and attested by at
least two witnesses, or by way of delivery.
(d) Succession: In this regard, it has been held in several judgments that genuineness of will has to
be established.

The above definition of Austin cannot be regarded as exact.

According to Austin ownership has the following three elements
;

1. Indefinite in point of user.

2. Unrestricted in point of disposition.

3. Unlimited in point of duration.

1. Indefinite in point of user.—This implies that the owner

of a thing is free to use or even misuse it in any manner
he likes. The use of the word ‘indefinite has a special
significance because the use of land by the owner can be
restricted 1 y agreements or by operation of law. Firstly, the
right of user of an owner is not absolute ; it is subject to
various restric-tions. At common law everyone is bound to use
his property in such a way as not to harm others in their just
right e.g., one should not so use his land as to cause nuisance
to his neighbours. Encumbrances also may restrict the
owners’s right of user e.g., so long as a lease subsists, the
owner cannot take the yield of the property. But no such
restriction on the right of user would negative the existence of
ownership in him rights may be restricted by agreement also.

2. Unrestricted in point of disposition.—Austin says that an

owner of a thing has unrestricted right to dispose it of in a way
he likes. Thus he regards right of alienation as a
necessary incident of ownership. But to say that an owner
has an unrestricted right of disposition is not correct. An
owner’s right of disposition need not be quite unrestricted. A
minor can own properties though he cannot alienate them,
Hindu families and Marnmakattayam Tanvads do own
properties though their powers of alienation are limited to
occasions of legal necessities. Government may acquire lands
for public purposes irrespective of the owner’s dissent as if the
right superior of disposal is in the Government and not in the
owner.

3. Unlimited in point of duration.—However, to say that

ownership is unlimited in point of duration is also not correct.
An owner’s right is not quite unlimited in point of duration, it
may end with his solvency or it may be terminated by
Government compulsorily acquiring the land for them-
selves. This apart Government is empowered to pass any law
and at any time so as to restrict a person from exercising his
right of ownership.
OWNERSHIP POSSESSION
Ownership means to own an Possession is the claim over Legitimste /physical
object. The owner has a the property. It implies
legitimate claim over the physical control over the
property. It implies absolute property
authority
The owner has unrestricted Possession is a continuous and Limit
ownership of the property in exclusive exercise of claim,
terms rights, of disposition and this is a limited concept.
unlimited ownership in terms
of duration.
Through this, there is absolute Through possession, there is Absolute
authority over the property. more physical authority on
property.
It is a union of ownership and It is a single concept giving no Union/singular
possession right of ownership.
It is a de jure concept and is It is a de facto concept and De jure/de facto
wider in nature includes only the consumption
right.

It consists the bundle of rights It is prima facie a proof or Rights in rem/ prima fascia
and all the rights are right in evidence of ownership.
rem.
It is a legal right. It is only considered to be a Legl right/ possessory claim
possessory claim
It has no technical obstructions It faces the technical obstacles Transfer
to transfer for transfer.
Transfer of ownership is a Transfer of possession is an Complex process
complex process. easy process
It is backed by legal sanction It may or may not be backed legal sanction
by legal sanctions (sometime
are even unlawful)

Sociological School
The idea of Sociological School is to establish a relation between the Law and society.
Law is a social phenomenon and law has some direct or indirect relation to society. This school
laid more emphasis on the legal perspective of every problem and every change that take place
in society. Sociological School of Jurisprudence focuses on balancing the welfare of state and
individual was realized.

Sociological School of Jurisprudence studies the relationship between the law and sociology. Every
problem or concept has two different aspects. One is sociological view and other is a legal aspect.
For eg. Sati.

Roscoe Pound
Social Engineering Theory
-According to Pound, sociological jurisprudence should ensure that lawmaking,
interpreting, and applying law take account of social facts. Pound linked the lawyer’s work to
engineering. Roscoe Pound described the work of modern law as social engineering. The purpose
of social engineering is to build as much of a scientific structure of society as possible, which
requires the satisfaction of the maximum of wants and with the minimum of friction and
waste. It is the job of a jurist to assist the country by identifying and classifying social interests
and ensuring that are protected by law.
-Social engineering refers to the balance of competing interests in society. He observed:
“Law is the body of knowledge and experience with the aid of which a large part of social
engineering is carried on. It is more than the body of rules. It has conceptions and standards for
conduct and for the decision, as well as doctrines and modes of professional thought and
professional rules by which the precepts for conduct and decision are applied and given effect.
Like an engineer’s formulae, they represent experience, scientific formulations of experience and
logical development of the formulations, but also inventive skill in conceiving new devices and
formulating their requirements by means of a developed technique.”
Social Engineering must study the real social implications of legal institutions and legal
principles, study the means of making legal rules effective, sociological study in preparation for
lawmaking, study of judicial method, and sociological legal history.

Legal Interest:-
According to Pound, there are three categories of legal interests, namely private
(individual), public and social interests.

Individual interests:-
Individual interests are emphasized for personal life titles. This logically leads to the fact that as
these interests by and large only involve the individual, interests fall within the purview of private
law, although in actual equilibrium this is a generalization that may not always be true.

Public Interest:-
The public interests are generally regarded as the claims of a politically organized society thought
of as a legal entity

Social interests:-
Social interests were originally included by Pound as a separate and important set of interests
under which they were described as the claims or demands or desires involved in social life in a
civilized society.
The three types of interests are differentiated so that they are balanced against each other in
unity, which is the aim of sociological jurisprudence. However, Pound did not really insist on
having these interests completely separate from each other.

Criticism of the theory:-

Pound’s theory of social engineering has been criticized for its use of the term
engineering, which equates society to a factory like a mechanism. Law is a social process rather
than the result of applied engineering. It is also not right to equate society with a factory because the
former is changing and dynamic in nature while the latter is more or less stable. Again, Pound’s
emphasis on engineering ignores the fact that law evolves and develops in society according to
social needs and wants that for which law can develop in society according to social needs and for
which either in law approval or rejection may occur.
Natural Law:
Natural law is a school of thought asserting that certain rights are inherent by virtue of human
nature.
Endorsed by nature, traditionally by God or a transcendent source.
Simply, Natural Law theorists, unlike promulgators of positive law, believe that we define human
laws by morality, and not by an authority figure. Thus law emanates from divine authority
and morality. Thus, Natural law is also known as the moral law Divine law, the law of God,
law of Reason, law of nature, Universal law and unwritten law.

Therefore, their human nature guide humans to figure out what their laws should be, and to act in
conformity with those laws.

They hold the primary view that there are certain objective principles in every man of inherent
narure , no matter his colour, race or tribe, that tells him what action or any form of act is right, fair
and just.

These principles motivate him to do what is good and abstain from what is evil.
3. The sources of Natural law was that-
◦ God
◦ Nature
◦ Reasons

The natural law theory is stated to have existed without even the requirement of human
understanding or any kind of political order or legislature. Natural law incorporates the idea that
humans understand the difference between “right” and “wrong” inherently.Therefore, it is said to be
discoverable through the exercise of reason.

1. It is not always a simple school of thought. The determination of what is right and what is
sometimes as hard as anything.
2. Natural law philosophy stresses ‘what ought to be done’ and not necessarily ‘what is done.’
3. The theory is based solely on right reasoning, which is a criterion that cannot be verified
through empirical scrutiny.
4. There is what we call ‘the multiple-conscience problem.’ That is to say, different individuals
have different explanations for, and determinations of, what is right and what is wrong. As
regards this problem, we call the Natural Theory of Law ‘a harlot.’

Ancient period/classical period

GREEK

Heraclites-The foundation of Natural law philosophy was by the Heraclites and it also gives three
aspects- unlimited goals, stages and reason are important for the natural law.
Socrates-Law is a product of correct reasoning”1. ‘Human insight’ that a man has capacity to
distinguish between good and bad and is able to appreciate the moral values. This human ‘insight’ is
the basis to judge the law.
Aristotle- According to him, man is a part of nature in two ways: Firstly he is the part of the
creatures of the god and secondly, he possesses insight and reason by which he can shape his will.”
Roman - the division of Roman law into three distinct divisions _ jus civil, jus gentiam and jus
natural. It also gives natural law is equal to universal law and the code of gaudier also. Cicero said
the law is the highest reason, implanted in nature which commands what ought to be done and
forbids the opposite
Renaissance Period
Hobbes was a supporter of absolute power of the ruler and subjects had no right against the
sovereign.
Locke recognized the existence of certain inalienable natural rights. He categorized them as ‘’life,
liberty and estate
Rousseau believed He believed that the state of nature was an idyllic state where in man did not
reason things out and lived in absolute liberty with the free mind.
Immanuel Kant gave a sharp distinction between natural law rights and acquired rights and
recognized only one natural right that is the right to freedom.
Modern The decline of natural law theories took place in the 18th- 19th Century with the
advancement of empirical methods of study and scientific behavior. Natural law theories were
denounced primarily because its source was said to be a divine entity. The profounder Austin
rejected Natural law on the ground that it was ambiguous and misleading and mercilessly criticized
the natural law school The revival of Natural law theories. During the end of the 19th century, we
saw the revival of natural law theories mainly due to the following reasons:
1. It emerged as a reaction against the legal theories which had exaggerated the importance of
positive law.
2. It was realized that abstract thinking was not completely futile.
3. Positivist theories failed to solve the problems created by the changed social conditions.
4. The ideologies of Fascism and also led to the revival of natural law theories, as at that time
during the two world wars, the world witnessed great destruction of human lives and property
and principles of natural law were approached in order to attain peace.

Application
Natural law Theory and Fundamental Rights
Articles – 14, 19 and 21
The Articles like Article 14, 19 and 21 has been widely interpreted in the India scenario especially
by the Indian judiciary due to largely impact of natural law theory. Moreover, the Fundamental
Rights and Duties conferred under the Indian Constitution have a large base in natural law theory. In
India the constitution gives certain fundamental rights like right to life, right to equality etc, all
these rights are also based on the principles of natural law, not only this the principle of natural
justice is also based on the principles of natural law. In the end it could be said that natural
school of law has made a great contribution to the legal jurisprudence of the world including
India. This could be found through the case laws:-
Case 1:- Maneka Gandhi v. Union of India
In this case, the meaning and content of life and personal liberty under Article 21 came up for
consideration and the Supreme Court held that the law established by the state should be just, fair
and reasonable.
Reference to Locke’s theory whereby the natural right of men such as the right to life, liberty
and property remained with him, so in the Maneka Gandhi case also the Natural law theory
principle could be evolved.
Case 2:-tAir India V Nargesh Mirza, shows the implementation of natural law by the supreme
court of India, the case brought a challenge to regulations 46 and 47 of the Air India Employees
Service Regulations because they created disparities in the promotional opportunities available to
male and female flight attendants, different retirement ages, and provisions regarding the
termination of the air hostesses' services in cases of pregnancy or marriage. (35,58)
Also regulation 47, gave certain exclusive powers to the Managing Director, who could on his own
discretion increase the retirement age as per his interest, which was considered an arbitrary order.

It was held that the clauses regarding retirement and pregnancy are unconstitutional and declared it
void with immediate effect along with the Regulation 47. The judgment made by the Honorable
court was in line with the natural law principles. The basic tenet of natural law is that it does not
create arbitrary distinctions and by dissolving the regulations, the court acted in accordance
with the natural law

Case 3:-
An example to understand the same can be understood through a case law i.e. National Legal
Services Authority vs. Union of India & Ors, “in this case, the petitioner argued that the
transgender community also faces bias, and social discrimination”. This was in fact the violation of
the constitutional rights including the “rights to a dignified life, equality before the law, non-
discrimination and freedom of expression”. A gross violation of their fundamental rights, also the
transgenders should be given the status of third gender. These were the facts of the case.

The decision gave the transgender population the freedom to self-identify and a third gender
identity. Natural law, according to John Locke, "was held to treat people with distinguishing traits
equally and believe in honoring every individual's diversity, and it was held that discrimination
towards the transgenders is against the natural law."
Kelsen Theory of Law

The law is a ‘normative science’, According to Kelsen, a norm is a rule prescribing a

certain behaviour. He distinguishes between legal norms and moral norms. He told that moral
norm only says that “what a person should do or not do” but the legal norm says if a person does
any act against the norm then he will be punished by the State.

Kelsen does not admit the command theory of Austin as it introduces a psychological
element into the definition of law which Kelsen avoids. Kelsen believes the law should be defined
as Depsycholised command. Kelsen also considers ‘sanction’ as an essential element of law but he
prefers it to call it ‘norm’. NORM is the meaning of an act of will by which certain behaviour is
commanded or permitted, or authorized.

Kelsen’s theory of law is an analysis free of all ethical and political judgements or values
i.e moral norms. According to Kelsen, in order to assign the legal meaning to an act, we take the
help of Legal norms.

Kelsen limits the scope of jurisprudence by excluding its relation with other social sciences.
He differentiates law from politics, sociology, metaphysics, and all other extra-legal disciplines.
According to Kelsen, an acceptable theory of law must be pure i.e. logically self-supporting, and
not dependent upon extra-legal values, the law of nature, or any other extraneous factor

Kelsen’s pure theory of law is based on a pyramidical structure of hierarchy of norms which
derive their validity from the basic norm which he termed as ‘Grundnorm’. In other words, we can
say that if the other norms are against the Grundnorm then those norms will be invalid. Constitution
is our Grundnorm, all the other laws like IPC, CrPC, CPC, and other laws check their validity from
the Grundnorm which is Constitution