Relation between Possession and Ownership

Introduction

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 fully comprehend both concepts and use them properly and precisely to solve legal challenges.

Possession

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 of excluding others.

The Indian Supreme Court focused on the concept of possession in B. Gangadhar v. Ramalingam[1]. “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. In 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:

1. Corpus
2. Animus

Corpus Possession

The term corpus refers to two things: 

1. The possessor’s physical relationship to the res or object, as well as 
2. 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 expectations 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:

1. 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.
2. 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.
3. Secrecy: If a person keeps an object in a hidden spot, it is an effective strategy of 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.
4. 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, as it was in South Staffordshire Waterworks Co. v. Sharman[2].

Animus 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 recognised 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 recognised 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.

Ownership

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 four 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. [3]

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 of 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 utilized 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. In the case of Rahimtoola v. Nizam of Hyderabad[4], the creditor, the Government of Pakistan, was said to be in “possession and control” of the right to recover a bank debt.

Duration

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 to exist. As a result, ownership is considered to be more lasting.

Case Laws

Merry v. Green[5]

Facts

The plaintiff bought a table at an auctioneer and discovered the wallet in one of the drawers. He then found that the vendor’s money was hidden in a concealed drawer, which he seized.

Issue

Whose wallet was it, exactly? Is the plaintiff willing to accept it or does she have the right to keep it?

It was assumed that it was not the plaintiff’s purse, but rather the seller’s, since the element of purpose for that wallet was absent throughout the transaction. The seller had no intention of selling the wallet, and the consumer had no intention of purchasing it.

Held

Because the buyer was unaware of the presence of money and the secret drawer, the court judged him convicted of larceny (stealing). As a result, he cannot be considered to have possession of that cash and could not plan to possess the goods of the concealed drawer until he discovered it.

Sharman v. South Staffordshire Waterworks Co. [6]

Facts

The plaintiff corporation had a pond on its property in this case. The defendant was hired by the firm to clean the pond. The defendant discovered gold rings at the bottom of the pond while cleaning it.

Held

The court decided that because the firm owned the pond, it had early possession of the rings and that the defendant seemed to have no right to it.

Hannah v. Peel[7]

The plaintiff in this case was a soldier who was requested to remain in a house where he discovered a broach. The soldier was sued by the defendant, but the broach was not returned to the owner since he did not take physical possession of the property, and the broach was discovered on the ground.

Two factors were taken into account in this case:

The corpus element was never in the house owner’s favour.

The notion of res nullis was also relevant because of how the broach was found.

Distinction between Possession and Ownership

1. Ihering claims that
   Possession is the claim’s de-facto exercise, while ownership is the claim’s de-jure validation.
2. Salmond claims that
   An individual is the owner of an item if his claim is protected and recognised by the law, but ownership can be performed and realised even if the claim is not protected or recognised by the law.
   The only person whose claim(right) is safeguarded and recognised by law is the owner.
   Illegal possession, such as mesne profit, occurs from time to time (the person has to pay it back with interest). Possession may not be legally recognized or recognised.
3. Dr. Asthana claims that
   The mind is ownership, and the body is possession, and the presence of the body is required for the realisation of the mind.

Conclusion

The terms “ownership” and “possession” are frequently confused and used interchangeably. Both of these terms, however, have distinct legal definitions in the legal field. Ownership is defined as a de jure recognition of a claim to a specific piece of property. Possession is the goal of ownership realisation. It is the act of asserting a title to a particular piece of property. Possession of a right, in contrary to the de jure relationship of ownership, is the de facto relationship of continuing use and enjoyment.

---

References:

[1] B. Gangadhar v. Ramalingam, (1995) 5 SCC 238

[2] South Staffordshire Waterworks Co. v. Sharman, (1896) 2 QB 44

[3] Black’s Law Dictionary

[4] Rahimtoola v. Nizam of Hyderabad, A.C. 379 (1958)

[5] Merry v. Green, 7 M & W 623 (1847)

[6] Sharman v. South Staffordshire Waterworks Co. 2 QB 44 (1896)

[7] Hannah v. Peel 1 KB 509 (1945)

Other Sources:

• Sneha Mahawar, Concept of possession and ownership – iPleaders iPleaders (2021), https://blog.ipleaders.in/concept-possession-ownership/#Case_laws (last visited Sep 1, 2021).
• Mayank Shekhar, Relation between Possession and Ownership Legal Bites – Law And Beyond (2019), https://www.legalbites.in/relation-between-possession-and-ownership/#duration (last visited Sep 1, 2021).
• Pooja Pawar, Relation between possession and ownership | Law column Law column (2020), https://www.lawcolumn.in/relation-between-possession-and-ownership/ (last visited Sep 1, 2021).