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Written by: R. CHARU LATHA B.B.A., LL.B (2ND^ YEAR) SCHOOL OF EXCELLENCE IN LAW rcl110797@gmail.com
OWNERSHIP AND POSSESSION
Ownership is considered as one of the essential juristic concepts. It is both legal and social in nature. It consists of immeasurable claims, liberties, powers, and immunities. In the earlier stages there was no distinction made between ownership and possession. With the process of civilization there was a clear distinction made between the term concepts. This distinction was made by Roman law. There were two terms used, ‘dominio’ and ‘possessio’. Dominio means absolute right thing, while possessio means only physical control.
DEFINITIONS of OWNERSHIP:
♦ As per AUSTIN , the term ownership has been defined as “ ownership means a right which avails against everyone who is subject to the law conferring right to put thing to user of infinite nature .”
The three main attributes are:
- Indefinite user
This states that in case of complete ownership there can be restriction imposed only b the operation of law. But, there are 2 basic principles.
a. Use your own property and not that of others. b. The things constructed on your property for the injury of others are considered as unlawful.
In C rowhurst v. Amersham Burial Board 1 , it was held that the burial board is responsible for damages to the extent price of the horse which died on account of eating a portion of yew tree planted by the burial board on its own land.
- Unrestricted disposition Though it is stated that the disposition is without any restriction, there will be a reasonable restriction imposed.
- Unlimited duration The ownership remains with a person until the destruction of such property. ♦ According to Holland, “ ownership is a plenary control over object ” 2
The three rights on subject owned:
- Possession
- Enjoyment
- Disposition
♦ Salmon has defined it in the following words, “ ownership is in is most comprehensive signification, denotes the relation between a person and that right is bested in him. ” According to Salmond to own a piece of land means in truth to own a particular kind of right in the land, namely the fee simple of it 3
The two attributes of ownership are:
- Ownership is a relation between people and right that is vested in him.
- Ownership is incorporeal body or form.
ESSENTIALS OF OWNERSHIP
From various definitions given by eminent jurists, we could sum up the following to be the essentials of ownership.
In Sashi Kantha v. Pramodechandra 8 , the Calcutta Hugh Court has pointed out the distinction between this vested and contingent ownership. It was held that in vested ownership there is the immediate right of present enjoyment but if the right of enjoyment is made to depend upon some event or condition, which may or may not happen then it is contingent ownership. ▲ Trust and beneficial ownership: in this circumstance two persons enjoy the ownership of a property at the same time. Here, the relation between the owners will be in such a manner wherein one of them is an obligation of one to act for the benefit of the other. This ownership is called beneficial ownership.^9 ▲ Absolute and limited ownership:^ if the ownership rights are completely vested with one person, then it is known as absolute ownership, when the rights are restricted it will be called as limited ownership.^10
INDIAN CONCEPT OF OWNERSHIP
According to jurists, ownership is possession coupled with a legitimate title.
In ancient Indian concept the property was considered to be of two kind, Jangama (movable) and sthavara (immovable). In laws relating to purchase and sale they were considered as Panya 11 (saleable property). It was considered that the person who holds the title of ownership can transfer it to another by sale.
In smritikara time, only a person having valid title could transfer the property. In Yagnavalka smriti also, it is mentioned that the transfer of property by a person not having a better title is considered to be null and void. The ancient texts held that when it is established that if a vendor sold the property without actual ownership then he should restore the property to the actual owner and should pay the vendee the price received by him, and shall also pay a fine to the kind.
“If the person who is claiming his ownership fails to prove it then he will be liable to be punished like a thief by the king.”
Rama Jois has opined that the essential under the ownership of Hindu law was the title of the property. He states that though the ancient Hindus considered possession to be one of the
important attributes of ownership, they didn’t consider possession to be absolute proof of ownership. 12
The ‘transfer of ownership’ marks the difference between a sale and a mortgage. In case of mortgage, the mortgagee holds the property as a security or debt, and not absolutely, and therefore having a limited interest on the property. 13
In Indian law co-owner is entitled to have three essentials of ownership, right to possession, right to enjoy, and right to dispose. Therefore if an owner is deprived of his property, he has right to be put in possession thereof.
WESTERN CONCEPT OF OWNERSHIP
The term ‘ownership’ is often used to describe generally the position of any person who has a right or right over thing. That is any person who has a right over a thing (jus in re) is called the owner of that right. 14
Ownership in English law has to be approached historically, for its evolution is bound with the remedies that used to be available. The piecemeal development through actions prevented the formation of a clear cut development. The reason for such argument is that unlike Roman law it did not have anything like absolute ownership.
According to Maitland, quoting Dr. Murray, the term ‘owner’ occurred in 1340, and the term ‘ownership’ in 1583.^15 In modern law there are many cases, which show that ownership of land is only a question of the ‘better right’ to retain or obtain possession relative to other party to the dispute.
The right of ownership comprises of benefits and burdens. An owner may be divested of his claims to such an extent that he may be left with no immediate practical benefit.
A person is said to be the owner under English law when a person becomes entitled in specified ways to something designated as such, the scope of which is determined by policy; and his interest, constituted in this way, will outlast the interest of other persons in the same thing.
POSSESSION
According to salmond, “the necessary relations between the possessor and the thing possessed is such as to admit of his making such use of it as awords with the nature of the thing and of his claim to it.”
ANMUS POSSIDENDI:
- Animus possidendi or the subjective element in possession is the intent to appropriate to oneself the exclusive use of the thing possessed the animus is possidendi the conscious intention of the individual to exclude other from the control of an object.
- According to Holland, “to some possibility of physical control, there must at any rate for the commencement of possession be super added a will to exercise such control.
- There are certain aspects of animus possidendi have to be consider: a. The animus possidendi is not necessarily a claim of right it may be consciously wrong full. The thief has a possession not less real than that of true owner. b. The claim of the possessor may be exclusive. He must intend to exclusive other person from the use of the things possessed. However, the exclusion need not be absolute. c. The animus domini need not amount to a claim intent to use the thing as owner .The animus possidendi need not be claim to the use of the thing at all as in the case of a pledge or a bailer. d. The animus possidendi need not be claim on one’s own behalf it may even through servant, agent or trusted. e. The animus possidendi need not be specified but may be merely general. A general intent with respect to a class of things is sufficient to confer possession of the individual object belonging to that class even though their individual exercise is unknown.
POSSESSION IN FACT/LAW:
■ Possession de facto: It means the possession, which physically exits in terms of control over it. ■ Possession de jure: it is the possession which, in the eyes of law, exists. It may exclude physical control over it.
ACQUISITION OF POSSESSION:
Possession is acquired when both the animus and corpus are acquired:
- By taking: when someone takes anything, he has possession. It may either be rightful or wrongful possession.
- By delivery: the thing is acquired by delivery with consents of previous possessor.
- Actual delivery: it is a kind in which goods are delivered while constructive delivery is the rental or sold goods.
CONCLUSION
Though in the initial stages the terms ownership and possession were used synonymously and interchangeably, later with the civilization they evolved as two distinct terms, wherein ownership means that holding the title of the property, while possession means that the physical control over a property. 1 (1878) 4 Ex D 5 2 Holland on Jurisprudence, pg. 226 3 Salmond on Jurisprudence, pg. 328 4 V. D. Mahajan , “Legal theory and Justice”, pg. 335 5 V. D. Mahajan , “Legal theory and Justice”, pg. 335 6 Jurisprudence by Biswas 7 Section 6 of transfer of property act, 1882 8 AIR 1932 Cal 600 9 Legal theory by Biswas, pg. 151 10 Ibid. 11 Goods as defined under Section 2(7), in so far is it relates to movable property, and the meaning of word sale in section 4 of Sale of Goods Act, 1930, carry substantially the same meaning as meant by panyaand kraya respectively 12 Rama Jois, “legal and Constitutional History”, pg. 287 13 Inder Sein v. Naubt (1885) ILR All 553 14 Biswas , “ Modern Jurisprudence ”, P. 15 Pollock and Maitland History of English Law II, at p.153n.
