Possession-transfer Of Property

DEFINITION AND PHILOSOPHY OF POSSESSION: Possession is as difficult to define as it is essential to protect. It is an abstract notion and it is not purely a legal concept. As with most words in the English language, the word ‘possession’ has a variety of uses and a variety of meanings. Depending on the context, The lexicographer maybe found to give meanings such as the following: ‘the holding of something as one’s own; actual to a sovereign ruler or state; the fact of being possessed by a demon; the action of an idea or feeling possessing a person; the action of keeping oneself under control- as in self-possession” . The lexicographer, in attempting to assign the meaning of the word as used in English law, may well find himself saying something like the following: ‘The visible possibility of exercising over a thing such control as attaches to lawful ownership; the detention or enjoyment of a thing by a person himself or by another in his name; the relation of a person to a thing over which he may at his pleasure exercise such control as the character of the thing permits, to the exclusion of other persons.’ Possession is considered as the prima facie evidence of ownership. Anyone who interferes with the possession of another must show either title, or better possessory right. Acting on this principle, law may have to protect even wrongful possession up to a certain point. For instance, if a thief steals someone’s watch, he has possession, which the law will protest against everyone except the owner, or some person lawfully acting on the owner’s behalf. The law of torts gives right of action in respect of the immediate and present violation of possession. In the case of property, there may be situations when proof of title is difficult, and transfers of property require intricate formalities. In such situations, it would be unjust to disturb possession or to impose an obligation to prove a flawless title. The most practical approach would be to protect possession until somebody proves a superior title. Thus, it may be said that possession confers on the possessor all the rights of the owner except against the true owner and earlier possessor. Possession also entitles a person to seek certain remedies called possessory remedies. Possession is also recognized as one of the methods of acquiring ownership. According to Salmond: Few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection. Human life and human society, as we know them, would be impossible without the use and consumption of material things. We need food to eat, clothes to wear and tools to use in order to win a living from our environment. But to eat food, we must first get hold of it; to wear clothes, we must have them, and to use tools, we must possess them. Possession of material things that is essential to life; it is the most basic relationship between men and things. Salmond wrote, ‘whether a person has ownership depends on rules of law; whether a person has possession is a question that could be answered as matter of fact and without reference to law at all.’ Inherent in this idea is that the concept of possession exists before legal society and is therefore independent of, and, prior to the law. The idea of possession as involving detention is taken by jurists to suggest that, unlike ownership, which is essentially a de jure relationship between a person and a thing, possession is a de facto relationship between a person and a thing. According to Henry Maine: Possession means that contact with an object which involves the exclusion of other persons from the enjoyment of it. The possession of a thing is as good title against the whole world except the real owner. Long possession creates ownership by prescription. Ihering adopts a more objective theory, “A man possesses who is, in relation to the thing, in the position in which an owner of such things ordinarily is, animus being merely an intelligent consciousness of the fact.” According to Sir Fredrick Pollock: “In common speech, a man is said to posses or to be in possession of anything which he has the apparent control or from the use of which he has the apparent power of excluding others.” Possession is the combination of two essentials, corpus possessionis and animus possedendi, the physical control over the object and the intention of that physical control respectively. So, according to Sir Thoma Erskine Holland: “A moment’s reflection must show that possession in any case of the term must imply firstly some actual power over the object possessed and secondly some amount of will to avail oneself of that is out of my reach

nor the mere power which I have without the least notion of exercising it to seize a horse which I find standing at a shop door, will suffice to put me in possession of the bird or horse. The Romans by whom this was treated with great fullness or subtlety describe these essential elements of possession by the terms corpus and animus respectively.” These definitions consist of two elements, which are essential to the concept of possession. One is physical control over the thing or the physical element, which is called the corpus possessionis. The second is the determination to exercise physical element, the mental element, which is called the animus possedendi. In normal situations, when an owner is in actual physical control of an article, there is no difficulty in understanding the concept of possession. For instance, when I send my watch for repair through my servant, I cease to have actual physical custody of the watch. The servant is in custody of the watch, or we may say that he is in possession of the watch. This is de facto possession. This must be distinguished from the possession in law or de jure possession. For possession in law, there must be a manifest intent not merely to exclude the world at large from interfering with the thing in question, but to do so on one’s account, and in one’s own name. When I send my watch for repair through my servant, he has got de facto possession, while I have de jure possession. when somebody tries to forcibly take the watch from him, he may resists the relief aggressor. He does it not on his behalf, but on behalf. He has the feeling in his mind that he resists the thief not for himself, but for his master. If I myself take the watch to the repair shop and a stranger forcibly tries to take it from me, I resist him with the feeling that the watch is my own, and I possess the right to exclude all others in the world. In other words, I resist the aggressor on my account, and in my own name. This is de jure possession. ELEMENTS OF POSSESSION: There are two elements which are essential to the concept of possession. One is a physical element and consists in physical control over the things and is known as corpus possessionis and the second is a mental element i.e., animus possedendi which consists in the determination to exercise that control. Corpus possessionis: The objective element of possession is called the corpus and consists in an exclusive physical control over the thing. According to Savigny, the corpus possessionis consists in the existence of physical power to exclude foreign interference and secure the enjoyment of the thing to oneself. This is the corpus required for the commencement of possession. The corpus possessionis can be discussed under two points, one is in the relation of the possessor to other persons and other is in relation of the possessor to the thing possessed. • Relation of possessor to other persons Salmond says that a thing is possessed, when it stands with respect to other persons in such a possession with the possessor, having a reasonable confidence that his claim to it will be respected, is constant to leave where it is. Following are the sources from which such security may be derived— I. Physical power of the possessor, II. Personal presence of the possessor, III. When the members of the society develop a respect for rightful claims, a person may also enjoy such security, IV. For avoiding the interference of others, when a person is able to hide a thing and keep it in secrecy, V. A person might enjoy security and protection by the possession of other thing, for example, by keeping the key of a house, protection is afforded to the house and other things kept there. • Relation of possessor to things possessed The second element for the purpose of possession is that the relation between the possessor and the thing possessed is such as to admit of his making use of the thing as he likes, consistent with the nature of the thing. There must be no barrier between him and it, inconsistent with the nature of the claims he makes to it. Animus possidendi: The subjective or mental element in possession is called animus possidendi which implies intention to appropriate to oneself the exclusive use and enjoyment of the thing possessed. It is the intention of the possessor to include others from interfering with his right of possession, in animus possidendi following points are important— I. The possessor must have the exclusive claim over the thing in his possession. II. The animus or desire to possess need not necessarily be rightful, it may even be consciously wrongful.

III. The animus need not amount to a claim or an intention to use the thing as owner. IV. The animus need not be necessarily that of possessor himself. V. The animus possidendi need not be specific, it may be general. For example, A may intend to possess all the books on his book-shelf, though he might have forgotten the existence of some of the books on the shelf. This general intention to possess all the books in the book-shelf is sufficient animus for A possessing every book on the shelf. Early law on possession: In the early law, the concept of ownership and possession was not clearly divorced. This was evident from the fact that it was impossible to gain recognition of a right to possess which was good against the whole world or to vindicate any right to possess without reference to the concept of possession itself. In the early law possession was explained through the concept of ‘seisin’; a concept described as lying ‘at the root of the historical development of English land law.’ The idea behind seisin lay in the actual or de facto possession of land which was determinate of whether a proprietary right in land was granted. There were no abstract ideas of title and right; instead possession decided whether a person had a right to land. As such seisin was not a question of right; but rather a question of fact, although fact might then lead to a right through the passage of time. Long sustained possession meant peace and order and seisin literally denoted quiet and peaceful enjoyment of land. From the Fifteenth Century onwards seisin became confined to persons who held an estate in freehold and seisin gave a presumption of ownership of land. A person who claimed land as a result of losing it to a wrongful possessor had to show his seisin, in other words his possession, in order to recover land back. However, given that seisin was a question of fact, even a person who wrongfully took possession of land could raise a presumption of ownership, which could only be defeated by a better showing of seisin in another person, that is the previous possessor pointing to a better seisin. The concept of seisin was not particular to land and it was used to protect property interests in chattels as well as land. However, it became to be employed predominantly in real property law and through the passage of time became to be understood as origin of title or right in land. Today the concept of seisin does not play the same degree of importance in real property law that it did in its early days. The means by which ownership in land is transferred to another no longer depends on mere delivery of seisin, or in the early language ‘livery of seisin’, but rather on a grant that does not require actual entry. The idea of actual possession reflecting seisin does, however, play a role in determining issues such as adverse possession of land. Although notions of ownership and title may have become more abstract, the English law of property has and to some extent will continue to recognize that ownership, even where based on clear legal ideas of right and title, is a relative concept. The idea of relativity of title and ownership holds that there is no such thing as absolute title to land and as such a claim to land, and for that matter other property such as chattels, depends on the non existence of a better claim to the same thing. COMMON LAW ON POSSESSION The common law tradition regards ownership as a relative concept as opposed to an absolute one. This simply means that possession is a good title to a thing enforceable against anyone who cannot show a better title. Relativity of ownership, sometimes referred to as relativity of title, lies at the heart of property law in the common law tradition. Relativity of ownership originates from the force of possession in the common law. The very first principle of possession is that it raises a presumption of ownership. A person in actual possession of a thing is presumed to be the owner of it, albeit, that this presumption, like any presumption, can be rebutted. In lay language this may be summarized by saying that ‘possession is nine-tenths the law’. However, there are sound legal justifications behind the presumption. Firstly, possession in fact is prima facie evidence of legal possession and that the possessor has all the legal remedies to protect such possession. Possession is said to be the root of title in that it is only through possession that ownership is born or the chain of title begun. Thus, an equally important principle operating here is that a person may be presumed to be the owner of a thing even when that person has no ownership in it, as, for example, where such a thing is found or taken without the authority of the true owner. Suppose that B finds a gold watch which in law belongs to A. If B takes possession, B's possession raises a presumption of ownership, which is good against the whole world except the true owner who has a better title to it. The true owner can of course

rebut the presumption of ownership, however, until such time, B will be deemed to have a possessory title to the gold watch. The concept of possessory title now calls for discussion. A possessory title is one that is good against everyone except the true owner. Lord Campbell once explained the rule by commenting that ‘against a wrongdoer possession is title.’ The origins for the rule of possessory title lie in the fact that English law never developed a sophisticated system of rules for the vindication of ownership rights. Instead, the right to ownership largely depended on the right to possession and it was possession that was accorded remedies. In the words of Pollock and Wright, ‘the common law never had any adequate process in the case of land, or any process at all in the case of goods, for the vindication of ownership pure and simple. So feeble and precarious was property without possession, or rather without possessory remedies, in the eyes of medieval lawyers, that possession largely usurped not only the substance but the name of property…’ It is important to appreciate that many of the remedies that seek to protect property interests in both land and chattels depend on possession rather than on absolute notions of ownership. Property interests in land and chattels are protected by what are known as property torts. In the case of land, an action for trespass to land requires that the claimant had possession or a right to immediate possession. In the normal course of things the possessor will be the owner, however, it is quite clear that a squatter will have sufficient standing to sue in trespass. This is because the squatter has possession in fact and law when he has control in fact and intends to control. In the case of chattels there are two torts that seek to protect property interests, namely trespass to goods and the tort of conversion. The success of both of these torts depends on whether the claimant has possession or an immediate right to possession. Trespass to goods is a wrongful physical interference with them. The tort of conversion amounts to a dealing with goods in a manner inconsistent with the right of the true owner. It is sometimes thought that, unlike trespass to goods, the tort of conversion is a truly proprietary remedy in that it protects ownership rather than mere possession. However, it is quite clear that a person in actual possession, such as a bailee of goods, can sue for conversion. What follows is that a person who has no possession or no immediate right to possession cannot sue for conversion. Thus, an owner who has no possession and neither an immediate right to possession cannot sue for conversion. Finally, where damage is caused to a chattel through the negligence of another person, the claimant must show that he either had ownership in the chattel or a possessory title. Thus, possession plays an important role in the transfer and creation of property interests in personal property. Legal ownership generally cannot be transferred in a chattel until such time delivery of possession is made. In so far as possessory security interests in chattels are concerned, possession is all-important. Both a lien and a pledge require delivery of possession in order for the interests to be effective. FOREIGN CASES ON POSSESSION Reg. v. riley In this well-known case the accused drove off amongst his own lambs, but without knowing it, sell to the prosecutor. After he had discovered the error he sold the lamb with his own. He was convicted of larceny. The court rationalized the decision by on a notion of ‘continuing trespasses based on the ground that the accused had undoubtedly made himself liable in trespass when he first drove off the lamb even though he did not know that he had the lamb at the time. R. v. Ashwell In this case the accused had asked the prosecutor to lend him a shilling. In a poor light, the prosecutor Pulled from his pocket what he thought was a shilling and handed it to the accused. Later the accused discovered that he had been given a sovereign by mistake, but he none the less spent the sovereign and thereby converted it. He was convicted of larceny of the sovereign. In the last resort the conviction was affirmed by an equally divided Court for Crown Cases Reserved consisting of fourteen judges. The conviction involved a decision that the accused did not take possession of the sovereign until he knew it was a sovereign, although the judges who so held gave different reasons for saying that he had not taken possession until that time. R. v. Moore The prisoner had picked up and converted to his own use a bank note which had been dropped on the floor of his shop. He converted the bank note in spite of the fact that he knew the owner of it could be found. It was held that he was rightly convicted of larceny- that is, that he had not obtained possession of the note

while it was lying on the floor of his shop before he had discovered it, and further that the owner’s possession was in some way extended, at least fictionally, after he had lost the note in the accuser’s shop. Cartwright v. Green A bureau was delivered to a carpenter for repairs. The carpenter discovered money in a secret drawer which he appropriated to his own use. It was held that he committed larceny by feloniously taking the money into his possession. In this case of course the carpenter was merely a bailee of the bureau but none the less by the ordinary rules would be held to have possession of it. It follows from his decision that he did not obtain possession of it. It follows from the decision that he did not obtain possession of the money when he obtained possession of the bureau, but only at the time he discovered it and wrongfully formed the intention to convert it to his own use. Hibbert v. Mc Kiernan The appellant had been convicted for the larceny of golf balls, the property of the secretary and members of a golf club. He had taken the golf balls, which had been abandoned by their original owners, while he was trespassing on the golf links owned by the member of the golf club. It was held that the appellant had been rightly convicted – that is to say that the golf balls he had taken had been, at the time of his taking, in the possession of the secretary and members of the club although no one knew where they were or how many balls might be at any time lying abandoned on the various parts of the links. Ruse v. Read The respondent had been acquitted of larceny in the following circumstances. He had, while drunk, taken a bicycle from a public place, and it was accepted at first instance that at the time of taking he had no larcenous intent. When sober he found he had the bicycle. He consigned it by rail to a non-existent person at a railway station some distance away. The magistrates had held that he had no intention of permanently depriving the owner of his property land was incapable of framing such an intention at the time of taking the bicycle had been a trespass and, although not then felonious, the subsequent misappropriation of the machine on the following day amounted to larceny and the respondent should have been convicted, R.v.Riley (supra) was followed. Rose v. Matt The respondent, when purchasing some goods, deposited a clock which he owned, with the vendor, as security for the price of the goods he was purchasing. It was agreed between them that the vendor would be entitled to sell the clock if the respondent did not pay for the goods within one month. The respondent later returned to the vendor’s shop and took the clock without paying the price of the goods. On appeal it was held that the respondent should have been convicted of larceny. The Finding Cases In all these cases the issues are civil and not criminal ones, and are between two or more persons claiming to be entitled to the benefits of possessory enjoyment of a chattel-the assumption being that, if there is a true owner, he cannot be found. Kinds of possession: • Corporeal and incorporeal possession Corporeal possession is the possession of a material object whereas incorporeal possession is the possession of anything other than a material object. In corporeal possession, the actual use or corpus possession is not essential while in the case of incorporeal possession, actual continuous use and enjoyment is essential. Corporeal possession is commonly known as the possession of a right. In Roman law, corporeal possession is called as ‘possessio coporis’ and incorporeal possession is known as ‘possessio juris’. According to some jurists possession can only be corporeal and there is nothing like incorporeal possession. • Immediate and mediate possession According to Salmond, in law one person may possess a thing for and on account of someone else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate possession while that which is acquired or retained directly or personally may be distinguished as immediate or direct. • Concurrent possession It was a maxim of the civil law that two persons could not be in possession of the same thing at the same thing at the same time. As a general proposition, two adverse claims of exclusive use cannot both be effectively realized at the same time. But, those claims which are not adverse admit of concurrent or duplicate possession.

• Possession in Fact and Possession in Law Possession, in fact, is a relationship between a person and a thing which he possesses. It is also known as de facto possession. Salmond says— I possess those things which I have: If I capture a wild animal, I get possession of it; if it escapes from my control, then I lose possession. For possession in law, there must be a manifest intent not merely to exclude the world at large from interfering with the thing in question, but to do so on one’s account, and in one’s own name. When I send my watch for repair through my servant, he has got de facto possession. Possession in law is also known as de jure possession. Law provides protection to possession in two ways. First, the possessor is given certain legal rights, such as a right to continue in possession free from interference by others. Secondly, the law can protect possession by prescribing criminal penalties for wrongful interference and for wrongful dispossession. By such civil and criminal remedies the law can safeguard a man’s de facto possession. INDIAN LAWS ON POSSESSION: Specific Relief Act, 1963: S. 5 of the Act deals with action for recovery of possession of specific immovable property based on title. The essence of this section is that whoever proves that he has a better title in a person is entitled to possession. The title may be on the basis of ownership or possession. The purpose of this section is to restrain a person from using force and to dispossess a person without his consent otherwise than in the due course of law, S. 6 states he or any person claiming through him may by suit recover possession thereof. Code of Criminal Procedure, 1973: S.145 lays down a procedure where a dispute concerning land or water is likely to cause breach of peace. The Supreme Court has observed that the object of the section no doubt is to prevent breach of peace and for that end to provide speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court. S. 456 of the Act provides that when a person is convicted of an offence attended by criminal force or criminal intimidation any person has been disposed of any immovable property the court may within one month after the due date of conviction order that possession of the same be restored to that person. Sale of Goods Act, 1930: S. 47 of the Act provides for seller’s lien, lien is a right to retain possession of goods until certain charges due in respect to them are paid. The unpaid seller has a right to retain the goods until he reserves that price. S. 47 provides that the unpaid seller of goods who is in possession of them is entitled to retain his position until Payment of the price in the following cases: 1) Where the goods are being sold without any stipulation as to credit. 2) Where the goods are being sold on credit but the term of credit has expired. 3) Where the buyer becomes insolvent. S.48 provides for part delivery where an unpaid seller has delivered a part of the goods he may exercise his lien on the remainder. Indian Contract Act, 1872: S. 168 of the Act provides for right of finder of goods. Section 168 provides that the finder of goods has no right to sue the owner for compensation for trouble and expense voluntarily incurred by him to preserve the goods and to find out the owner but he may retain the goods against the owner until he receives such compensation and where the owner has offered a specific reward for the return of goods lost, the finder may claim such reward and retain such goods till the reward is given. S. 169 provides that when a thing which is commonly the subject the sale is lost, if the owner cannot with reasonable diligence be found or if he refuses upon demand to pay the lawful charges of the finder, the finder may sell it: 1) When the thing is in the danger of perishing or losing the greater part of its value. 2) When the lawful charges of the finder in respect of the thing found amounts to two thirds of its value. Indian Limitation Act, 1963 (Adverse possession): The law on adverse possession is contained in the Indian Limitation Act. Section 65, Schedule I of The Limitation Act prescribes a limitation of 12 years for a suit for possession of immovable property or any

interest therein based on title. It is important to note that the starting point of limitation of 12 years is counted from the point of time “when the possession of the defendants becomes adverse to the plaintiff”. Section 65 is an independent section applicable to all suits for possession of immovable property based on title i.e., proprietary title as distinct from possessory title. Section 64 governs suits for possession based on possessory right. 12 years from the date of dispossession is the starting point of limitation under Section 64. Section 65 as well as Section 64 shall be read with Section 27 which bears the heading – “Extinguishment of right to property”. It lays down: “At the determination of the period hereby limited to any person for instituting the suit for possession of any property, his right to such property shall be extinguished.” That means, where a cause of action exists to file a suit for possession and if the suit is not filed within the period of limitation prescribed, then, not only the period of limitation comes to an end, but the right based on title or possession, as the case may be, will be extinguished. The section assists the person in possession to acquire prescriptive title by adverse possession. When the title to property of the previous owner is extinguished, it passes on to the possessor and the possessory right gets transformed into ownership. [Section 27] is an exception to the well accepted rule that limitation bars only the remedy and does not extinguish the title. It lays down a rule of substantive law by declaring that after the lapse of the period, the title ceases to exist and not merely the remedy . It means that since the person who had a right to possession has allowed his right to be extinguished by his inaction, he cannot recover the property from the person in adverse possession and as a necessary corollary thereto, the person in adverse possession is enabled to hold on to his possession as against the owner not in possession. Transfer of Property Act, 1882 In this whole act the concept of ‘possession’ is center. Movable properties may generally be transferred by delivery of possession. Under Section 123 of the Act, gift of an immovable property must be made through registered document but the gift of movable property may be made only by delivery of possession. According to section 3(2), actionable claim mean a claim to beneficial interest in movable property not in possession of the claimant. Section 54 of this act defines “sales”, which says delivery of tangible immovable property takes place when the seller places the buyer or such person as he directs, in possession of the property. Section 55(b), (e), (f) of the act uses the word possession to define the rights and liabilities of buyer and seller. Section 58(b) says the possession of the mortgage-property is not given to the mortgagee. Section 60 talks about the redemption of mortgaged property which are in the possession of mortgagee. INDIAN CASES ON POSSESSION: Mohan Lal v. State of Rajasthan In this case court elaborately defined the concept of possession. The court says, It needs no emphasis that the expression “possession” is not capable of precise and completely logical definition of universal application in the context of all the statutes. “Possession” is a polymorphous word and cannot be uniformly applied; it assumes different color in different context. In the context of Section 18 of the Act once possession is established the accused, who claims that it was not a conscious possession has to establish it because it is within his special knowledge.” When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to “actus of physical control and custody” Noor Aga v. State of Punjab and Anr Court held that, “The provisions being exceptions to the general rule, the generality 18 thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.” Dharampal Singh v. State of Punjab The Court was referring to the expression “possession” in the context of Section 18 of the NDPS Act. In the said case opium was found in the dickey of the car when the appellant was driving himself and the contention was canvassed that the said act would not establish conscious possession. Saroop Singh v. Banto & Ors. In the instant case, the appellant categorically states that his possession is not adverse as that of true owner; the logical corollary is that he did not have the requisite animus. T. Anjanappa & Ors. v. Somalingappa & Anr.

Court states: “It is well-recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner.” CONCLUSION It is questionable whether in the twenty first century the concept of possession has survived the significance it once occupied in the early law. There are number of factors which have contributed to its demise. The first factor that may impact on the significance of possession is the human rights one. The Indian limitation Act, 1963, Section 65 of which, talks about the adverse possession which means a person suppose a tenant is in possession of a property for 12 years and the owner of the property does not make any interruption during this time then he loses his legal status of being its owner. This concept of long sustained possession giving rise to adverse possession of land is seem in violation of Article 1, Protocol 1 of the European Convention on Human Right. Second factor that may further impact on the significance of possession is Indian registration Act, 1908 which aims to create an accurate and complete register of land titles, does not and cannot accommodate for a system of rules which automatically defeat the title of the registered proprietor by long sustained possession of land. The objective of the Indian registration Act, 1908 is to make title to land absolute. In this respect, the concept of adverse possession, relying on long sustained possession of the land, does not fit into a system of land registration where ownership is acquired by the act of registration and not possession.