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12/11/19

Meaning, Definition and Elements of Possession || Jurisprudence ||

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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