Relation between Possession and Ownership: Propose to repealing the law of obtaining ownership by possession, would be inconsistent with the general principle of law of the possession:
Possession in law recognises a person’s right to possess an object even though he is not physically in possession of it. On the other hand, ownership is simply a legal concept. As a result, the nature of both conceptions complements and supplements one another.
The concepts of possession and ownership are inextricably linked. One is a factual concept, whereas the other is strictly legal. Individuals’ right to property is governed by both of these notions. The concept of ownership is derived from the concept of possession, and the demonstration of superior title (ownership) over an item by one person results in the loss of possession of that thing by another. As a result, evaluating the interrelationship between possession and ownership is critical in order to comprehend both concepts and use them properly fully, and precisely to solve legal challenges.
Possession has been described by jurists depending on their personal ideas. As per Salmond, it is the most primal contact between man and objects. Henry Maine, on the other hand, characterised it as “interaction with an object that includes the exclusion of other people from enjoying it.” As per Frederick Pollock, a man is deemed to own something over which he appears to have power or influence over others.
“The objective realisation of ownership is possession.” It is the de facto declaration of a claim to a certain piece of property, as well as the de facto equivalent of ownership. Contrary to the de jure link of ownership, possession of a right is the de facto connection of continuous practice and enjoyment. Possession is the actual exercise of a right to a particular piece of property. It is the most common way for people to make claims. It is in this manner that claims are most frequently manifested.
Elements of Possession:
As per Holland, legal possession consists of two components:
The term corpus refers to two things:
- The possessor’s physical relationship to the res or object, as well as
- The possessor’s relationship to the rest of the world.
The first point emphasises that a person must have some physical contact with whatever he possesses in order to have a legitimate expectation that others will not meddle with it, i.e. that others will not infringe on the possessor’s right to consume or cherish it. This non-interference guarantee can be accomplished in a number of ways:
- The possessor’s physical ability: The possessor’s physical control over the thing in his possession acts as a guarantee that it will be utilised. It also ensures that others will not infringe on his rights. The person in possession often uses fences, gates, doors, and locks to keep others from tampering with his legal title.
- The possessor’s physical presence is required: Even if he lacks the physical ability to combat interference, the possessor’s mere physical presence is often adequate to preserve ownership. A penny in a child’s hand, for example, serves to demonstrate his possession of the currency, despite the fact that he lacks the physical capacity to do so.
- Secrecy: If a person keeps an object in a hidden spot, it is an effective strategy for preventing external interference and keeping a thing in one’s possession secure.
Unlawful ownership is seldom viewed positively in modern cultures, therefore respect for a legitimate claim keeps others from meddling with the possessor’s legal possession.
- Possession of other things provides some protection: Possession of one object might occasionally lead to the acquisition of related or complementing items. As a result, having land gives you possession of anything on or beneath it. The situation in this respect is not totally obvious
Animus Possession (See above elements of possession)
Possession is not synonymous with simple contradiction. It must suggest the ability to exercise physical control and the willingness to do so. The mental component of possession is animism.
Roman Imperial jurists recognized two levels of jurisdiction over a possessed thing, the lower of which was known as detention and the highest as possession, as it was properly known.
Possession without Ownership:
There may be rights that exist in reality but are not recognized by the law. As a result, while one may be in lawful possession of a thing, he or she may not have any right to it, i.e., no ownership. Intellectual property rights, for example, may exist even if they are not recognised as legal rights.
Jurists have defined ownership in a variety of ways. They all believe, though, that ownership is the broadest and most powerful right one can have over something. Ownership, as per Hibbert, involves three categories of rights: –
- The ability to make use of something
- The right to stop other people from using the object
- Having the power to destroy it
“A set of rights to use and enjoy the property, including the right to transmit it to others,” according to the definition of ownership.
As a result, ownership is defined as the legal recognition of a claim to a particular piece of land. As a result, Hibbert believes that because land cannot be eradicated, no one can have full ownership rights to it.
Ownership without Possession:
There are some rights that can lawfully be owned but not possessed. These are referred to as temporary rights. These rights can’t be owned because they can’t be utilised without destroying them. The creditor’s right to recover the sum owed to him is an illustration of this. He possesses but does not possess such a right because it vanishes once he successfully applies his right to reclaim the debt.
Possession is transient, while ownership is more long-term. Possession occurs as long as a person has physical control over the object he owns and intends to keep his right to exclusive use of the object. Ownership, on the other hand, relates to the legal title and only arises if the individual has a valid legal title to the item. When ownership is passed to someone else through a legal process, ownership stops. As a result, ownership is considered to be more lasting.
The distinction between Possession and Ownership:
- Ihering claims that
Possession is the claim’s de-facto exercise, while ownership is the claim’s de-jure validation.
- Salmond claims that
An individual is the owner of an item if his claim is protected and recognized by the law, but ownership can be performed and realised even if the claim is not protected or recognized by the law.
The only person whose claim(right) is safeguarded and recognized by law is the owner.
Illegal possession, such as mesne profit, occurs occasionally (the person has to pay it back with interest). Possession may not be legally recognized or recognized.
- Dr. Asthana claims that
The mind is ownership, the body is possession, and the presence of the body is required for the realisation of the mind.
However, ownership is defined as a de jure recognition of a claim to a specific piece of property. Possession is the goal of ownership realisation.
Nayem H Ovi | Law to Justice