Possession

You leave your umbrella at a restaurant table and go to wash your hands. Do you still possess it? Almost everyone says yes. Now you leave it in a train and get off. Do you still possess it? Most say no. Now a stranger picks it up in the train and takes it home. He possesses it, though it is not his. Nothing about the umbrella has changed in these stories; what has changed is control and intention, and the law's view of both. That is why Salmond said that in the whole range of legal theory there is no conception more difficult than possession. It is also why possession matters so much: the saying goes that possession is nine-tenths of the law, because the possessor is protected even before anyone asks who owns the thing.

Figure: The rising relation to a thing: custody (bare holding for another), possession (control plus the animus to exclude) and ownership (the best right), with possession as the outward mark of ownership

1. Meaning and Importance

Salmond defines possession as the continuing exercise of a claim to the exclusive use of a material object. Each word counts. It is a continuing exercise, not a single act. It is a claim, so the possessor must intend to exclude others, but the claim need not be lawful. It is to exclusive use, because possession shared with the whole world is not possession. And in its primary sense it relates to a material object, though Salmond extends it by analogy to incorporeal things.

Possession is important for five reasons. It is protected for its own sake by possessory remedies. It is prima facie evidence of ownership, so the possessor is presumed owner until a better title is shown. Long possession can ripen into ownership through adverse possession. The transfer of possession (delivery) is the usual way of transferring ownership of goods, and a necessary step in gifts and pledges. And many crimes, above all theft, are offences against possession rather than ownership.

2. Corpus and Animus

Possession has two elements, both taken from Roman law. Corpus possessionis is the physical element: effective control. Animus possidendi is the mental element: the intent to exclude others. Both are needed. A servant holding his master's tools has control but no animus on his own account, so he has only custody. A man who intends to keep a ring he has dropped in the sea has the animus but no control, so he has no possession.

Salmond on the corpus

Salmond explains the corpus as two relations. The possessor must stand in a relation to the thing (a present power to use it) and a relation to the rest of the world (a reasonable expectation that others will not interfere). Physical contact is not required. A man possesses his house while at work, and his car parked on the street, because others will in practice leave them alone. Protection may come from the possessor's own strength, from locks and walls, from the respect others show for his claim, or from the law itself.

Salmond on the animus

3. The Theories of Possession

Roman law

Roman law distinguished possessio civilis, possession recognised by the civil law, which (with a lawful cause and good faith) could ripen into ownership by usucapio, from possessio naturalis, mere physical holding (detention) without those legal effects. A tenant or a borrower usually had only natural possession. The possessor in the stronger sense was protected by the praetor's interdicts, which restored him without any inquiry into title.

Savigny: the subjective theory

Savigny, in Das Recht des Besitzes (1803), built a theory from the Roman texts. Possession requires corpus plus animus domini, the intention to hold as owner. A tenant, a borrower or a depositary, who recognises another's ownership, has only detention. Savigny had to treat the Roman exceptions (the pledge creditor and a few others who were protected though they did not claim as owners) as derivative possession. His theory is called subjective because it turns on the holder's state of mind.

Jhering: the objective theory

Jhering attacked Savigny's reliance on animus. The law protects possession, he argued, because possession is the outwork or bulwark of ownership: in the ordinary case the possessor is the owner, and protecting the visible fact of possession spares the owner the burden of proving title every time. Hence whoever stands to a thing in the relation an owner ordinarily does is a possessor. The animus is implied in the corpus, and the person who denies possession must show a rule of law that turns the holding into mere detention. His theory is objective because it looks at the outward relation, not the inner will. Modern systems, including the German Civil Code, lean towards Jhering.

Salmond and the English writers

Salmond keeps both elements but reduces the animus to the intent to exclude, so tenants, bailees and pledgees possess. Pollock and Wright (1888) built the English doctrine on physical control and distinguished possession in fact, possession in law and the right to possess. Holmes in The Common Law (1881) also rejected the demand for an animus domini.

4. The Kinds of Possession

Possession in fact and in law

Possession in fact (de facto) is actual control; possession in law (de jure) is what the law recognises and protects. Usually they coincide. The law may recognise possession without present control (constructive possession, as of goods in a locked warehouse whose key one holds) and may deny it despite control (a servant's custody).

Immediate and mediate possession

Immediate (direct) possession is held by a person himself. Mediate (indirect) possession is held through another, who has immediate possession. Salmond gives three forms.

Other kinds

Corporeal possession is of a material thing; incorporeal possession is the continuing exercise of a right, such as a right of way enjoyed over a neighbour's land. Concurrent possession is shared, as by co-owners, and immediate and mediate possession may exist in the same thing at once. Adverse possession is possession held against the true owner (section 9).

5. Acquisition and Loss

Possession is acquired by taking (without the consent of the former possessor, whether lawfully, as by catching a wild fish, or wrongfully, as by theft), by delivery (with the consent of the former possessor), or by operation of law (as when possession passes to an executor). Delivery may be actual, by handing over the thing, or symbolic, by handing over the means of control, such as keys. In addition there are three forms of constructive delivery, in which the thing does not move at all, only the animus changes. They are a favourite MCQ.

Possession is lost when either element fails: when control goes (the thing is taken or lost beyond recovery) or when the animus is abandoned (the thing is thrown away).

6. Possession, Custody and Ownership

Custody (detention) is physical holding without possession in law. A servant using his employer's goods, a guest using his host's cutlery and a customer examining goods in a shop have custody only; possession remains with the master, host or shopkeeper. The line turns on whether the holder has an independent claim to exclude. Ownership is a right; possession is (in its core) a fact. They usually go together but can separate completely: a thief has possession without ownership, and an owner whose goods are with a bailee has ownership with only mediate possession (see Note 31).

7. Finders of Lost Property

The finder cases apply these ideas. A finder acquires possession, and with it a title good against everyone except the true owner or someone with a prior possession. The hard question is when the owner or occupier of the place where the thing lay already possessed it.

8. Why the Law Protects Possession

9. Possession in Indian Law

Section 6, Specific Relief Act 1963 gives a summary possessory remedy. A person dispossessed of immovable property without his consent otherwise than in due course of law may sue to recover possession, whatever the title set up against him. The suit must be brought within six months of dispossession, cannot be brought against the Government, and the decree is not open to appeal or review; but any person, including the owner, may still sue on title afterwards. It is a pure protection of possession as such.

The Limitation Act 1963 fixes 12 years for a suit for possession of immovable property based on previous possession (Art. 64, from dispossession) and on title (Art. 65, from when the defendant's possession becomes adverse). For suits by or on behalf of the Government the period is 30 years (Art. 112). At the end of the period, s.27 extinguishes the right to the property itself. Where a dispute over land is likely to cause a breach of the peace, the Magistrate may decide who was in actual possession and maintain him in it until evicted by due course of law (formerly Section 145 CrPC); the inquiry is into possession, not title.

In criminal law, theft (Section 303 BNS, formerly Section 378 IPC) is an offence against possession: even an owner commits theft if he takes his own watch from a pawnbroker who holds it in pledge. Under the NDPS Act, possession means conscious possession: control plus knowledge.

Adverse possession

Adverse possession is possession held against the true owner which, maintained for the limitation period, extinguishes his title and vests title in the possessor. The possession must be nec vi, nec clam, nec precario: not by force (peaceful), not in secret (open and notorious, so the owner can know of it) and not by permission (hostile to the owner, not as licensee or tenant). It must also be continuous for 12 years and held with the animus of excluding the owner. Mere long possession is not enough; the possessor must plead and prove when his possession became adverse.

10. Frequently Asked Questions

Q. Does a tenant possess the land?
A. On Salmond's view, yes: the tenant has immediate possession and the landlord mediate possession. On Savigny's view, no: the tenant lacks animus domini and has only detention.

Q. Can a true owner forcibly evict a trespasser?
A. Only while the trespass is fresh. Once the trespasser is in settled possession, the owner must go to court (Krishna Ram Mahale, 1989; Rame Gowda, 2004), and a person dispossessed without due process may sue under s.6 of the Specific Relief Act within six months.

Q. Can a person who has acquired title by adverse possession sue?
A. Yes. Ravinder Kaur Grewal v Manjit Kaur (2019) held that adverse possession can be used as a sword as well as a shield.

See also: Note 28 (rights and duties), Note 31 (ownership), Note 32 (property), Note 36 (title).