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:

1. 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 Crowhurst v. Amersham Burial Boardi, 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.

2. Unrestricted disposition

Though it is stated that the disposition is without any restriction, there will be a reasonable
restriction imposed.

3. Unlimited duration

The ownership remains with a person until the destruction of such property.

 According to Holland, “ownership is a plenary control over object”ii

The three rights on subject owned:

1. Possession
2. Enjoyment
3. 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 iii

The two attributes of ownership are:

1. Ownership is a relation between people and right that is vested in him.

2. 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.

 It is indefinite in point of user.

  It is unrestricted in terms of disposition.
 Right to possess the things which he owns.

SUBJECT MATTER OF OWNERSHIP

o The right to manage

o The right to posses
o The right to capit al
o The right to income.

These are the general rights that would be included in the concept of ownership.

CLASSIFICATION OF OWNERSHIP

There are different kinds of ownership like, corporeal & incorporeal, sole ownership & co-
ownership, legal & equitable ownership, vested & contingent ownership, etc.

 Corporeal and incorporeal ownership: corporeal ownership is the ownership of a

material object (eg: house) and incorporeal ownership is the ownership of a right (eg:
intellectual property)iv
 Sole ownership and co-ownership: when a property is owned by an individual it is
called as sole ownership, whereas when it is owned by more than one person, it is called
as co-ownership. Co-ownership can be converted as sole ownership by partition. v
 Legal and equitable ownership: in legal ownership the origin is from that of the
common law, while in equitable from that of the rule of equity. vi
 Vested and contingent ownership: if the owner has a perfect title over the future
property, then it is called as vested ownership, if he has imperfect title then it is called as
contingent ownership. vii

In Sashi Kantha v. Pramodechandra viii , 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.ix
 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.x

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
xi
(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. xii

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. xiii
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. xiv

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.xv 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, “in the whole range of legal theory , there is no conception more
difficult than that of possession”.

A POSSESSOR HAD TWO ADVANTAGE:

1. First, he had a right to protection by the possessory interdicts.

2. Second, after the expiry of the prescribed period, the possessor could acquire ownership.
ELEMENTS OF POSSESSION :

There are two elements of possession and those are the corpus of possession and
animus are the intention to hold possession.

CORPUS OF POSSESSION:

Corpus means that there exists such physical power or physical contact of the
possession in relation to the thing possessed so as to give rise to the reasonable assumption that
other people will not interfere with it. It can consider under two heads:

 Relation of the possessor to other persons.

 Relation of the possessor to the thing possessed.

1) relation of the possessor to other person:

A person is in possession of a thing when the facts are such to create a

reasonable expectation that he will not be interfered with the use of it. He must have some sort of
security for the acquiescence and not inferior with other persons.

The measure of security is that which normally and reasonably satisfies the
animus domini. The following are the sources from which such measure of security can be
derived.

2) relation to the possessor to the thing possessed :

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:

1) 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.
 2) 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.
3) 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.

i
(1878) 4 Ex D 5
ii
Holland on Jurisprudence, pg. 226
iii
Salmond on Jurisprudence, pg. 328
iv
V. D. Mahajan , “Legal theory and Justice”, pg. 335
v
V. D. Mahajan , “Legal theory and Justice”, pg. 335
vi
Jurisprudence by Biswas
vii
Section 6 of transfer of property act, 1882
viii
AIR 1932 Cal 600
ix
Legal theory by Biswas, pg. 151
x
Ibid.
xi
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
xii
Rama Jois, “legal and Constitutional History”, pg. 287
xiii
Inder Sein v. Naubt (1885) ILR All 553
xiv
Biswas, “Modern Jurisprudence”, P.539
xv
Pollock and Maitland History of English Law II, at p.153n.
Jurisprudence - Ownership

Jurisprudence - Ownership

Legal experts have defined ownership in different ways.

All of them accept the right of ownership as the complete or supreme right that can be exercised
over anything.

According to Hibbert ownership includes four kinds of rights within itself.

· Right to use a thing

· Right to exclude others from using the thing

· Disposing of the thing

· Right to destroy it.

Austin’s definition:

Austin while defining ownership has focused on the three main attributes of ownership, namely,
indefinite user, unrestricted disposition and unlimited duration.

· Indefinite User

· Unrestricted Disposition

· Unlimited Duration

State can interfere in the ownership. The abolition of Zamindari system in India , the abolition of
privy purses, Nationalization of Bank and Companies, etc. are some example of the fact that the
ownership can be cut short by the state for public purpose and its duration is not unlimited.
Austin’s definition has been followed by Holland. He defines ownership as plenary control over
an object. According to him an owner has three rights on the subject owned

· Possession

· Enjoyment

· Disposition

Planetary control over an object implies complete control unrestricted by any law or fact. Thus,
the criticism levelled against Austin’s definition would apply to that given by Holland in so far
as the implication of the term “plenary control” goes.

Salmond’s Definition:

According to the Salmond - ownership vests in the complex of rights which he exercises to the
exclusive of all others. For Salmond what constitute ownership is a bundle of rights which in
here resides in an individual. Salmond’s definition thus point out two attributes of ownership:

· Ownership is a relation between a person and right that is vested in him

· Ownership is incorporeal body or form

MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring ownership which may be broadly
classed under two heads, viz,.

1. Original mode:

2. Derivative mode:

Original mode:
The original mode is the result of some independence personal act of the acquire himself. The
mode of acquisition may be three kinds

Absolute: when a ownership is acquired by over previously ownerless object.

Extinctive: which is where there is extinctive of previous ownership by an independence adverse

act on the part of the acquiring. This is how a right of easement is acquiring after passage of time
prescribed by law.

Accessory: that is when requisition of ownership is the result of accession. For example, if three
fruits, the produce belongs to the owner unless he has parted with to the same. When ownership
is derived from the previous version of law then it is called derivate acquisition. That is derived
mode takes place from the title of prior owner. It is derived either by purchase, exchange, will,
gift etc.

Indian Transferee Acts of property rules for the transfer of immovable property, Sale of goods
Acts for the transfer of property of the firm and the companies Act for the transfer of company
property.

SUBJECT MATTER OF OWNERSHIP

Normally ownership implies the following:

· The right to manage

· The right to posses

· The right to capital

· The right to the income

CHARACTERISTICS OF OWNERSHIP

An analysis of the concept of ownership, it would show that it has the following characteristics:
Ownership may either be absolute or restricted, that is, it may be exclusive or limited. Ownership
can be limited by agreements or by operation of law. The right of ownership can be restricted in
time of emergency. An owner is not allowed to use his land or property in a manner that it is
injurious to others. His right of ownership is not unrestricted. The owner has a right to posses the
thing that he owns. It is immaterial whether he has actual possession of it or not. The most
common example of this is that an owner leasing his house to a tenant. Law does not confer
ownership on an unborn child or an insane person because they are incapable of conceiving the
nature and consequences of their acts.

· Ownership is residuary in character. The right to ownership does not end with the death of
the owner; instead it is transferred to his heirs. Restrictions may also be imposed by law on the
owner’s right of disposal of the thing owned. Any alienation of property made with the intent to
defeat or delay the claims of creditors can be set aside.

Kinds of Ownership

There are many kinds of ownership and some of them are corporeal and incorporeal ownership,
sole ownership and co-ownership, legal and equitable ownership, vested and contingent
ownership, trust and beneficial ownership, co- ownership and joint ownership and absolute and
limited ownership.

Ownership may be classified under the following heads :

I. Corporeal and incorporeal ownership;

2. Sole ownership and co-ownership;

3. Legal and equitable ownership;

4. Trust and beneficial ownership; .

5. Vested and contingent ownership; and .

6. Absolute and limited ownership;

Corporeal and Incorporeal Ownership

Corporeal ownership is the ownership of a material object and incorporeal ownership is the
ownership of a right. Ownership of a house, a table or a machine is corporeal ownership.
Ownership of a copyright, a patent or a trademark is incorporeal ownership. The distinction
between corporeal and incorporeal ownership is connected with the distinction between
corporeal and incorporeal things.

Incorporeal ownership is described as ownership over tangible things. Corporeal things are those
which can be perceived and felt by the senses and which are intangible.

Incorporeal ownership includes ownership over intellectual objects and encumbrances.

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by
two persons at the same time. The relation between the two owners is such that one of them is
under an obligation to use his ownership for the benefit of the other. The ownership is called
beneficial ownership. The ownership of a trustee is nominal and not real, but in the eye of law
the trustee represents his beneficiary.

In a trust, the relationship between the two owners (one is trustee owner and another is
beneficiary owner) is such that one of them is under an obligation to use his ownership for the
benefit of the other. The former is called the trustee and his ownership is trust ownership. The
latter is called the beneficiary and his ownership is called beneficial ownership.

In simple terms, A trust is an instance of duplicate ownership namely, trust ownership and
beneficial ownership. In a trust certain property is given in trust or confidence to a person or a
definite group of persons to be held under an obligation for the benefit of some other persons or
group of persons.

Trust is defined as an obligation annexed to the ownership of property, and arising out of a
confidence reposed in and accepted by the owner, or (b) declared and accepted by him for the
benefit of the other.

Legal and Equitable Ownership

Legal ownership is that which has its origin in the rules of common law and equitable ownership
is that which proceeds from the rules of equity. In many cases, equity recognizes ownership
where law does not recognize ownership owing to some legal defect.

Legal rights may be enforced in rem but equitable rights are enforced in personam as equity acts
in personam. One person may be the legal owner and another person the equitable owner of the
same thing or right at the same time.

The equitable ownership of a legal right is different from the ownership of an equitable right.
The ownership of an equitable mortgage is different from the equitable ownership of a legal
mortgage.

There is no distinction between legal and equitable estates in India. Under the Indian Trusts Act,
a trustee is the legal owner of the trust property and the beneficiary has no direct interest in the
trust property itself. However, he has a right against the trustees to compel them to carry out the
provisions of the trust.

For information, but in English law recognises two forms of ownership—legal and equitable. In
England before the passage of Judicature Acts of 1873, and 1875 there existed two kinds of
Courts with two quite distinct jurisdictions. These two Courts were known as the Common Law
Courts and the Equity Courts.

The rights reognised and protected by the Common Law Courts were called legal or Common
Law Rights and the rights enforced by Equity Courts were known as equitable rights.

Legal ownership is, therefore, that ownership which was or recognised by the rules of Common
Law, while equitable ownership is that which originated from the rules of equity.

Equitable ownership was thus not recognised by the Common Law Courts. The Chancery or
Equity Courts recognised legal ownership as well as the equitable ownership.

Keeton says, “This quality of legal and equitable ownership arises, whenever one person holds
the legal title to property, the beneficial enjoyment of which is vested in another. Thus the legal
owner is he whom the Common law could designate as the owner ; the Equitable owner is that
person whom the Court of Chancery would formerly have protected in the enjoyment of a thing.”

Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested ownership when the title of the owner is
already perfect. It is contingent ownership when the title of the owner is yet imperfect but is
capable of becoming perfect on the fulfillment of some condition.

In the case of vested ownership, ownership is absolute. In the case of contingent ownership it is
conditional.

For instance, a testator may leave property to his wife for her life and on her death to A, if he is
then alive, but if A is dead to B. Here A and B are both owners of the property in question, but
their ownership is merely contingent. It must, however, be stated that contingent ownership of a
thing is something more than a simple chance or possibility of becoming an owner. It is more
than a mere spes acquisitionis. A contingent ownership is based upon the mere possibility of
future acquisition, but it is based upon the present existence of an inchoate or incomplete title.

It is vested when the owner’s title is already perfect; it is litingent when his title is as vet
imperfect, but is capable of becoming perfect on the fulfilment of some condition or
contingency. Vested own-ership is absolute, contingent ownership is conditional. It is subject to
conditions and it may be made to commence or cease upon the ascertainment that a certain fact
does not exist.

Thus, I may be the owner of a piece of land on condition of paying a certain fixed sum of money
annually to the State. My ownership is thus conditional on the annual payment of the money.

Contingent ownership is not spes acquisitionis—Simple chance or mere possibility of becoming

owners—but more than that. It is more than a mere future possibility but the existence of an
inchoate or incomplete title in the present, capable of achieving completion and perfection on the
happening of a given contingency in future.

The conditions on which ownership depends may be either ‘condition precedent’ or ‘condition
subsequent’. A condition precedent is one by the fulfilment of which a title is completed ; a
condition subsequent is one on the fulfilment of which a title already completed is extinguished.
In the former case ownership which was formerly conditional becomes ab-solute. In the later
case the ownership which is already lost conditionally, is lost absolutely. In case of a condition
subsequent ownership is not contingent but vested. For the condition attached to the ownership it
is not with regard to commencement of ownership but with regard to continence of it.

Sole Ownership and Co-ownership

Ownership may be either sole or duplicate. When it is vested in one person it is called sole
owner-ship ; when it is invested in two or more persons at the same time, it is called duplicate
ownership.

The chief instances of duplicate ownership are ;

(i) Co-ownership;

(ii) Trust and beneficial ownership;

(iii) Legal and equitable ownership;

(iv) Vested and, contingent ownership.

Co-ownership that is to say, ownership shared by several persons with equal or co-ordinate
results may be of two kinds, namely:—

(a) Joint ownership, and

(b) Ownership-in-common.

(a) ‘Joint ownership’ is that where on death of one of the co-owners the whole right ensures for
the benefit of surviving co-owner or co-owneers, until at last when the last survivor of the joint
owners, dies, it would devolve on his heirs. The heirs of a predeceased co-owner will not get any
share at all in the property of the joint owner.

(b) “Ownership-in-common” is that where, on the death of one of the co-owners, his heirs step
into his shoes.
Ordinarily, a right is owned by one person only at a time. However, duplicate ownership is as
much possible as sole ownership. When the ownership is vested in a single person, it is called
sole ownership; when it is vested in two or more persons at the same time, it is called co-
ownership, of which co-ownership is a species. For example, the members of a partnership firm
are co-owners of the partnership property.

Under the Indian law, a co-owner is entitled to three essential rights, namely

· Right to possession

· Right to enjoy the property

· Right to dispose

Co-ownership and Joint Ownership

According to Salmond, “co-ownership may assume different forms. Its two chief kinds in
English law are distinguished as ownership in common and joint ownership. The most important
difference between these relates to the effect of death of one of the co-owners. If the ownership
is common, the right of a dead man descends to his successors like other inheritable rights, but
on the death of one of two joint owners, his ownership dies with him and the survivor becomes
the sole owner by virtue of this right of survivorship.

Absolute and Limited Ownership:

An absolute owner is the one in whom are vested all the rights over a thing to the exclusion of
all. When all the rights of ownership, i.e. possession, enjoyment and disposal are vested in a
person without any restriction, the ownership is absolute. But when there are restrictions as to
user, duration or disposal, the ownership will be called a limited ownership.

For example, prior to the enactment of the Hindu Succession Act, 1956, a woman had only a
limited ownership over the estate because she held the property only for her life and after her
death; the property passed on to the last heir or last holder of the property. Another example of
limited ownership in English law is life tenancy when an estate is held only for life.
Difference between Possession and Ownership
Most of us often confuse the terms ‘ownership’ and ‘possession’ and use them as synonyms.
However, in law, both these terms have distinct legal definitions that are quite distinguished. Let us
learn about ownership and possession in jurisprudence and the difference between the two.

As per Salmond ownership can be described as the relation between a person and any said object
which forms the subject matter of this said ownership. Ownership also consists of a complex web of
many rights all of which are rights in rem, and not merely rights against persons.

So ownership is actually the sum total of the rights of possession, the right of disposition and even
the right of destruction. There are six essential characteristics of ownership as per the law. They are
as follows,

 The owner has the absolute right to possession. It is immaterial if the owner in actual
possession of the object, as long as he has the right of possession.
 The owner has the liberty or the right to use and enjoy the benefits of the said object. No one
can interfere with his right to use the object he owns.
 Ownership also means that the owner has the right to exhaust the object while using it.
 And he also has the right to destroy or alienate the object. This means he can destroy or
dispose of the object during his lifetime or via his will. This right is sometimes restricted by
law.
 Ownership is also for an indeterminate duration. Possession or the right to use is for a limited
period, but the ownership of an object is for an indeterminate period of time.
 And finally, ownership is residuary in character. So for example, if the owner leases the
object, or gives it for use, etc. he still remains the owner.

Possession

Salmond defines possession (in legal terms) as the continuous exercising of a claim, to the exclusive
use of an object or a thing constitutes possession of the object. In simpler words, if a person has
apparent control of an object and apparent power to exclude others from the use of the object, then
we can say he has possession.

Now it is a de facto relation between a man and an object. So a man can possess a thing he doesn’t
own. Say for example the possession of a property that he has leased from someone (who will be
the owner). And the opposite is also true. One can own some object and not possess it.
Ownership vs Possession

Ownership Possession

Possession is more the physical control of an

Ownership involves the absolute rights and legitimate claim to an object. The possessor has a better claim to the
object. It means to own the object by the owner. title of the object than anyone, except the owner
himself.

Ownership is the right of the owner against the world indefinite in As per the definitions, it is the continuous
point of the user, unrestricted in point of disposition or destroying and exercise of a claim to exclusively possess and
unlimited in point of duration over a thing use the object/thing.

However, it does not indicate the right to

Ownership itself gives the owner the right to possession.
ownership.

The transfer of ownership is a technical and long process and Transfer of possession is fairly easier and less
involves conveyance technical.

It is not a right, just a prima facie evidence of

Ownership is essentially a bundle of rights, all rights in rem.
ownership

CONCLUSION

There were two terms used, ‘dominio’ and ‘possessio’. Dominio means absolute right thing,
while possessio means only physical control. 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.