Meaning, Definition and Elements of
Possession || Jurisprudence ||
In this article, we are going to
discuss the topic Possession its meaning, definition, and elements under
Jurisprudence. Let’s begin.
Introduction:-
Possession is very difficult to define in
English Jurisprudence. But it is a very important topic. Human life and society
would become impossible without the 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 a continuing claim for use of the item. It may be legal or illegal.
It is a prima facie evidence of ownership and anyone desiring to disturb
a possessor must show a better title or a better possessory right.
Meaning of possession:-
In
Roman law possession was termed as a ‘Possessio’. The term possessio
denoted physical control over things. In legal terminology, there is no
word more ambiguous in its meaning than possession whether considered in
relation to immovable property. In law, possession means a fact or condition of
a person having such control of property that he may legally enjoy it to
exclusion of others except against the true owner or prior possessor.
It
has been claimed by eminent jurists that the conception of possession is very
difficult to define and important in the range of legal theory.
Possession
originally expresses the simple notion of a physical capacity to deal with the
thing by as we like to the exclusion of everybody else.
Possession,
to begin with, meant only physical control over the thing. It was only later that
this fact started receiving recognition and protection by the laws from
various aspects.
Possession is of two types according to the Salmond:-
1. When the possession included a physical or actual
relation with the object is called possession in fact, And
2. When it got recognition by law it termed as a possession
in law,
For
example, in English law, a servant is not deemed to be in possession of Master’s
goods while things are in his (Master’s) control. Thus, a servant under English law
has possession in fact. Possession in law is the 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 one's own account and in one's own name.
Definitions:-
Savigny definition:-
Savigny
define possession as, “Intention coupled with the physical power to exclude
other from the use of material objects”.
His definition involves two essential elements:-
A. The animus domini, i.e., the intention to hold the
goods; and
B. The corpus possessionis, i.e., the physical control
of such goods.
Thus,
according to Savigny the permanent loss of one element 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 possession
may be of two kinds, one related to the commencement of possession and the
other relates to the retention of the possession.
Criticism:-
Savigny has
used the expression of physical power to exclude others without adding any
qualification to it. He did not mention the fact that the exclusion is subject
to one exception, i.e., that possessor cannot exclude a person who has a better
title over the use of that particular material object.
Ihering:-
Ihering, says -- whenever a person looks like
and owner in relation to a thing he has possession unless possession is denied
to him by rule of law based on convenience.
Salmond:-
Salmond divides
possession into incorporeal and corporeal and define corporeal possession as ‘the
continuing exercise of a claim to the exclusion of others. Again, he says -- Possession
is a de facto relation between a person and thing. It is not right. Thus, for
Salmond corporeal possession is a title of right but it is not a right itself.
Criticism:-
Markby
has criticised Salmond's definition and said that the Law treats possession not
merely is a physical condition but also as a right. He adds that the possession
confers on the possessor all the rights of the owner except as against the
owner and prior processor.
Elements of possession:-
There are two elements of possession:-
1. Physical control or power over the object possessed;
and
2. The intention or will to exercise that power.
Corpus or physical control:-
1. The possessor’s physical relation to the rest of the
object;
2. The relation of the possessor to the rest of the world.
Corpus means that the existence of such physical contact of a person with
thing as to give rise to a reasonable assumption that the others will not
interfere with it. There may be an actual physical contact, (a coin in my hand
or in my purse in the pocket) or there may be the cases when there is no
physical contact e.g., when a person takes out the purse and drops by mistake coin in
the gutter; he walks ahead without noticing the loss-- here the corpus remains
with him until someone else picked it up.
The second element of the 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.
Animus or intention:-
Animus means an intention to hold possession again all
others except the true owner. That is to say, the animus is the conscious of the intention of an individual to exclude the others from the control of an object.
The mental element in the possession may conceivably be manifested in the following
ways:-
First, the person holding the property need not be the
owner and may exercise animus to exclude others on behalf of the owners.
Secondly, animus to exclude others need not be in the interest of the processor or on his own behalf.
Thirdly, animus to exclude others need not be specific.
Fourthly, the animus to exclude others need not be
based on the legally enforceable claim. It may be the result of a wrongful act.
Fifthly, the animus to exclude others need not be
absolute. A person possesses a piece of land notwithstanding the fact that some other person or even the public at large possesses a right of way over it.
Sixthly, the animus to exclude others must be wide
enough to include the actual thing considered.
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