xv OWNERSHIP AND POSSESSION ‘owNERSHIP "The concept of ownership is one of the fundamental juristic concepts common to all systems of law, This concept has been discussed by most of the waiters before that of possession. However, i is pointed out that it is not the right method. Historically speaking, the jdea of possession came first in the minds of people and it was Jater on thatthe idea of ownership came into existence. ‘The idea of ownership followed the idea of possession. Development of the Idea of Ownership ‘The idea of ownership developed by slow degrees growth of civilization. So long ax the people were wandering from place to place and had no settled place of residence, they “The idea began to grow when they started planting trees, cultivating lands and building their homes. ‘The transition from a pastoral o an agricultural economy helped the development ofthe idea of ownership. People began to think in terms of “mine and thine’. To begin with, no distinction was ip and__possession. However, with the tion, the distinction became clearer and "Roman law. ‘Two dint terms were uscd to point out the dit were “dominion” and ‘fers’. Domine denoted the able Tight to m thing. Peceaio implied. only phyical contol over 8 thing. The Engh notion of cwnenhip i sinilar tothe conte ‘of dominium in Roman law. According to Holdsworth, the Engl lw reached the concept of ownership aa an abolte ight through developments nthe la of pomesion. Definition of Ownership “According. o. Keeton: ‘The sight of owneship ita cones tion clearly easy to understand but difficult to define with exacti- OwnERSEEP AND posseston 35 tude. There are two main theories with regard to the idea of ‘ownership. The great exponents of the two views are Austin and Salmond. According to one view, ownership it a relation which subsists between person and a thing which is the object of ovner- ship. According to the second view, ownership is a relation bet- ween a person and a right that is vested in him.” Austin According to Austin: “Ownership means a right which against everyone who 1 subject to the Inw conferring the right to put thing to user of indefinite nature.” Full ownership ie defin- ‘ed as ‘a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration”. Ie isa right in rom which is available against the whole world. (1) According to Austin, the {ist attriute of ownership is that is indefinite in point of user because the thing owned may be ‘used by the owner in very many ways. ‘The owner of land may build a houte on it. He may use it for cultivation. He may convert it intoa garden. He may make any use of ft he pleases. Hovever, restrictions may be imposed on the use of the thing by ‘means of an agreement or by the operation of law. The owner may morigage the land to somebody for a specific period and also hhand over the possession of the same. He may lease the land 10 somebody for a specified number of years. He may create an ‘easement in favour of another person. The owner of the land ‘eannot be allowed to use the same in 2 way which is injurious to other Referente may be made to two maxims in this connec- don, The first maxim is: “So use your own property as not to injure your neighbour's.”” ‘The second maxim is: “tis mot awful to build upon your land to the injury of another.” In the case of Crowhurst ¥. Amershem Banal Board, whe Burial Board was held responsible for damages tothe extent of the price of the horse which ied on account of eating a portion of a yew tree planted by the Burial Board o its own land and about 4 feet from its boundary railings, ‘The horse was grazing in a neighbouring meadow and died of the poison inthe leaves of that tres. ‘The owner of a piace fof land cannot erect a building on his land ia such a way as to interfere with the use of the adjoining property. (1878) 4 Ex. . 5. (2) The second atinbute of ownership isa right of transfer or326 JURIPRUDENGE AND LEGAL THEORY [Gme. disposition without any restriction. However, experience shows that in all advanced legal systems, certain restrictions are imposed fon the right of disposal of the owner. The tranafer of property is not allowed if its object is merely to defeat or delay the creditors. Th the case of France, certain restrictions are imposed fon the right of alienation in the interests of the family. In the case of Germany, transferor division of small farms is not allowed. (8) The third atribue of ownership is the permanence of the right of ownership. ‘Thus right exists so long as the thing exists ‘The right is extinguished with the destruction of the thing. ‘Ownership is inherited by hve successor. Austin’s view of ownership has been enticzed on various grounds. (1) Tt is pointed out that ownership is not a right but a bundle of rights. Its the aggregate or sum — total ofthe rights ‘of user and enjoyment. Even if some of the rights are removed and given to another person, the perton an whom vests the residue isatill the owner. The owner of a piece of Iand may mortgage the same to another person. Although he has transferred. right, he sail the owner, (2) Ownership is not merely a sight but also a relationship between the right owned and the perton owning it. (5) The idea ofthe right of indefinite user is also attacked. Many limtations can be put upon that wer.” The owner must use his property in such a way as not to interfere with the rights of others, He may have to pay taxes to the State in connection with the property. He may not have the right to exclude the officers of the government who are entitled to enter upon it on certain gfounds. In the case of joint ownership of property, the rights of each are controlled by those of others. Restrictions my ‘be imposed upon ownership by encumbrances, Restrictions. may also be imposed on the power of disposition of property by owner ‘An owner of property isnot allowed to dispose of the same with # View to defeat or delay his creditors. There are certain disabil- es imposed on infants and lunatics with regard to the disposal of property. XIV] ‘OWNERSHIP AND Possession a7 Holterd The view of ownership as given by Austin has also been followed by Holland. Holland defines ownership as “a plenasy control over an object”. According to him, an owner has three kinds of powers viz, possesion, enjoyment and ownership, How- ever, the same ean be lost by means ofa lease or morigage. “The right of enjoyment implies a right of user and of acquiring the fruits or increase ofthe things as timber, the young cattle or soil added to an estate by alluvion. The right is limited only by the rights of the State or of other individuals.” The right of dispost- tion implies the right of alteration, destruction or alienation of Property. Morksy Markby also holds similar views. To quote him: “If all the rights over a thing were centred in one person that person would be the ovener of the thing; and ovnership would express the con- ition of such a person in regard to that thing. But the inaumer- fable rights over a thing thus centred in the owner are not ‘conceived at separately existing. ‘The owner of land has not one right to walk upon it and another sight to till it, the owner of a piece of furniture has not one right to repair it and another right to sel it; all the various sights which an owner has over a thing are conceived as merged in one general right of ownership.” Hibben ‘According to Hibbert, ownership involves four sights and thone are the right of using the thing, excluding others from using 4, the disposal of the thing and the destruction of the thing. Under the English law, no one can have absolute ownership in land as land cannot be destroyed. One ean have merely an estate init, An eatate means the legal interest of a party in land ‘meatured by duration and entitling the party to put the land to user of an indefinite nature. Paton "According to Paton, the sights of an owner are the power of enjoyment, the right of possesion, the power to alienate inter seer for to charge as security, and the power to leave the rest by wall. ‘According to Hohfeld, ownership is a collection of rights,328 [JURISPRUDENCE AND LEGAL THEORY [cear. privileges and powers, some of which are frequently found 10 reside, either for a limited period or perpetually, in persons other than the owner, Ownership is no more conceived as an aggregate of distinct rights than a bucket of water is conceived as an aggre: gate of separate dropt. As we can take one drop or many drops from the bucket, likewise we can detach one or several rights from ownership. According to Buckland, ownership is “the ultimate right to the thing of what ie left’ when all other rights vested in variows people are taken out”. According to Noyes, ownership is the magnetic core which remains when all present tights of enjoyment are removed from it ‘and which attracts to itself the various elements temporarily held by others as they Iapee. According to Pollock: “Ownership may be described as the entirety of the powers of use and disposal allowed by law. This implies that there i some power of disposal, and in. modern times we should hardly be disposed to call a peston an owner who had zo such power at all, hough we are familiar with ‘limited ownes” fn recent usage. If we found anywhere a system of law which Aid. not recognise alienation by acts of partie at all, we should be likey to say not that the powers of an owner were very much restricted in that system, but that it did not ecognise ownestip ‘The term, however, s not strictly a technical one in the Commer Law. We must not suppose that all the powers of an owner need be exercisable at once and immediately; he may remit ‘owner though he has parted with some of them fora ime. He ‘may fora time even part with his whole powers of use and enjoy" rent, and suspend his power of disposal, provided that be reserves for himself or his successor, the right of ultimately reclaiming. the thing and being restored to his power. This isthe common case of hiting land, buildings or goods. Again, the ‘owner's powers may be limited in particular divections for vefnite time by rights as permanent in thei nature as ownerthiP its. Such isthe ease where the owner of Whiteacre has aright of way over his neighbour's Geld of lackacre. As this example shows, what is thus subtracted from one owner's powers is ge3= rally added to another's, In short, the owner of thing i# sot XIV) owsenstne AND posession 329 cea the pron who atx given time hs the whole poe of tze end pint vry onthe such perme eat isk forthe penn ving the rendu af al wh oven When we have secu for enry detached and ated pon of ty and be wll be the owner even te Smmednte power of coma and tie ieewbere Inthe me ways arts dos not cnet be toverign prince marcy brine ha unde ety yh he hegre wo fre xl he ers fi oven poe Sn panics rapes Guia and eed Boge pe 30. Salen ‘According Salmond: “Owen nim comprehensive ftom, denote te ren beers apes an gh that ie ewted Ih tins Tint otic amin ene bal ange Wen, tis often he eat, we speak of the onsen fa ata Dajte le merely comeing of apect Toon eee er one reper egaoag d Ith acy namely the fing ot Api, “owen tn She nec ms, xen to al et of igh wher keene ey me eT Time, Cay com 4 de or 4 morgage or atareina Copy, o money nt pean os epg or ewe pri een een aii rer Wand, “Every right omnes and ing one owned rept 2 Sgt Brey an hte omar of On righn ich we Ba ‘toring to Slmond,ovaenp lator Blween = ponon tod any igh tn vedi "hat whih ean owen Fghcand nota ting: To own a pice oflond mea to ow @ Pande Hd of ih nthe ln Chitin {i Sunn’ vew of ep hs hen ese by many wie" Acnding to Dugas owmrhip a rl tren Tpewen and tng oversee pole on acount af eget enc mee ore ec oo pee Eo lnperpare eae eennarenalrs Botreces panon anda nights toineeduce nearer conto, Gren the nine othe bone of gh330 JURISPRUDENCE AND LEOAL THEORY [Cne, (8) According to Kocourek, ownership is relationship of the Jat toa thing which can be economically enjoyed. ‘Theright of ownership i a matter of legal protection. The apologists of Salmond point out that Salmond has defined ownership in two diferent senses. Tn the comprehensive sense, ‘ownership denotes the relation between a. person and any right that i vested in him. In this senge it includes both corporeal and incorporeal ownership. In narrow sense, ownership rltion- ship between person and a material thing’ In this sense, cor poreal ownership it included. ‘To quote Salmond : “Although the ubjectmatter of ownership in its widest sense iin al exes right, there is a narrow sense of the term in which we speak of the ownership of material things. We speak of owning, aequiing or transfering, not rights i land of chattels, but the land or cates Ahemielves.” This wat the original and’ still i the commonest meaning of the word ‘ownership’. "We call it by the name of corporeal ownership to datinguith it from the ownership of ght ‘which may be called “inorporeal ownership.” Eosentials of Ownership (1) The fest esvental of ownership is that it is indefinite io point of user. Iti impossible to define or sum up exhaustively the wide variety of ways in which the thing owned may be used by the person entitled ots ownership. Although this is common ly ealed a right to pouess and une such things, these rights are, in fact, liberties. ‘The owner has actually a liberty ws the thing. He is under no duty not to use it, Others are under a duty not to se itor otherwise interfere with it ‘Those who are not owners may be entitled to poses oF we # ‘thing, but the period for which they are entitled to wes of Timited duration. In the ease of an owner, ii of an indeterminate duration. "The interest ofa baile or a fesee comet to an en ‘when the period of hire or ofthe leate comes to an end. How ver, the interest ofthe owner is perpetaal. Te docs not termine ven with his own death, Im the ese of death, the property 6° to his legates or her or next of kin. Under all mature legal systems, qualifications have beet limposed on the wser of property. Every owner must so we tht xv) ‘owners an PossEsiON sat object of ownership as not to injure the right of other persons. No landowner can accumulate manure on his land in such away as to cause a nuisance to his neighbours Officers of justice have fright to enter on the premises of anyone in pursuance of a warrant issued by a court of justice. Ownership may be subject to encumbrance in favour of others in which ease the power of user of the owner as curtailed by the rights of the encumbrancere (2) Another esential of ownership is that iis unrestccted ia point of duposiuon The night of alienation is considered by Austin as a necestary incident of ownership. An owner can tffecvely dispose of his property by conveyance during his lifetime or by wil after hs death. A person who not the owner ‘cannot normally transfer the ight of ownership, even though he tnay have postion ofthe thing in question This is bused on the maxim that he who has not can give no However, restrictions are imposed by law on the power of Aisporal of an owner. Both in English and Indian Jaw, transfers of property made with ntenc to defeat or delay creditors can be set aside. The power of disposition may be limited by the existence ofthe rights of encumbrancers. Hence, it cannot be id that an essential feature of ownership is the existence of an unrestricted power of disposition. Hindu jurisis have explained a significant feature of the concept of ownership as fitness for free disposal. ‘The Viramurodaye gives the simile of a seed which contains within it the capacity to germinate and be converted into ‘sprout, Various causes may impede this capacity but it cannot be said that the capacity to germinate and take the shape of a young plant is not possessed by the seed. Likewise, although the Power of'an owner to deal with his property may be restrained by various considerations, it cansot be said that ownership docs not ‘connote fitnes for free disposal. (2) The owner has a sight to posses the thing which he owns. It is immaterial whether he hat actual possession of itor not. ‘What matters is that he should have a right to possesion. Even if the ear of ¥ is stolen by 1, Y has posession of the car but X remains the owner. Likewite, if gives his ear to Yon hire, hnar neither posesion of the car nor the immediate right to potses it, he is ail the owner as he retains a reversionary interest382 JUREPRUDENOE AND LEGAL THRORY [Crar. jn the car. He hat the right to repossess the car on the termina- tion of the period of hire. (#) Another extential of ownership is that the owner has the right to exhaust the thing while using it, i the nature of the thing owned is such. (6) Another esential of ownership is that it has a reaiduary character. An owner may part with several rights in reapect of the thing owned by him. In spite of that, he continues to be the ‘owner of the thing in view of the reiduary character of ownership. X, an owner, may give a lease of his property to Y and an fearement to Z, His ownership of the land stil consists of the residual rights (6) Generally, the owner has the right to destroy or alienate the thing he owns. Subject Matter of Ownership ‘The primary subject matter of ownership consists of material ‘objects like Jand and chattels, The wealth of a man may ako consist of other things such as interests in the land of other people, ddebis due to him by his debtors, shares in companies, patents, copyrights et. A may have the right to walk over the land of B, fr the right to catch fishin the pond of G, or a debt owing from D, shaves in a limited company, various patents, copyrights ele: None of these is a physical or material thing. ‘They are merely rights ‘The view of Salmond is that the true subject matter of ownership has-to be a right in all cases, It will bea logical absurdity ifthe subjett matter of the ownership was sometimes 3 ‘material object and at other times aright. The view of Salmond is supported by English law. However, if the term is wed s# always applying to a right, it would not be in keeping with law and legal usage as itis usually said that a person owns land and chattel. As owning a chattel normally means having certaia rights in respect to it, to describe this as owning rights in respect fof the chattels would lead to rather complicated conclusion that owner would be said to have rights to rights in respect of such chattels. Normally man is anid to have a right and not to ows aright. Aman dees not own a right to his reputation. That xiv) owns AND possesion 333 a right which he has. Itis therefore preferable to speak both of owning things in the sense of material objects and of owning rights. What thing can form the subject matter of ownership I depend upon the rules of each system of law Broadly speaking, certain things qualify as capable of being owned but at not in fact heing owned. Islands outside the territory of a State and wild animals in a yungle cannot be owned. There are things which by mature are incapable of being owned. The living Persons, corpses other than anatomical specimen, the air and the fa, the sun, the meon and the stars cannot be owned. However, if English law were to permit slavery, living persons could be owned. Law may provide that the air and the sea might be owned, sold, bought, rented ete Right of Ownership and Ownership of a Right Corporeal ownership is the right (o the entirety ofthe lawful uses ofa corporeal thing In this sense, the corporeal ownership for the right of ownership is not so much one right as a bundle of rights, erties, powers and immunities. Pollock writes: “Owner- ip may be described at the entirety of the powers of use and Aisposal allowed by lav.” ‘The ownership of right describes the jural relation between a person and a right. Tn this sense, it denotes that he is neither a postesior nor an encumbraneer, but the ovner of the righ ‘Thus ight has to be distinguished from the right of ownership which is the complex pattera of the bundle of rights, liberties, powers and immunities. Tn the case of ownership of a right it only suggests that there is particular legal relationship between ‘aperton and a right. The ownership of @ right is also known as incorporeal ownership. In English law, the interest which is by way of a perpetual ‘ownership is called 2 fee simple in which ownership passes to the heir by devolution A life interest or an interest for a specified number of years isnot considered asa right of ownership because it is not perpetual. Modes of Acquisition of Ownership "There are two modes of acquisition of ownership and thote are cviginal and derisatve, There are three kinds of original modes ofau JUREPRUDENCE AND LEOAL THEORY [Cuar. brolute when the same i acquired over previously ownerles objects. Ownership is extinctive af the ownership ofa previous person is finished on account of adverse osesion by the acquirer. It i aecesory if the ownership it scquired as reslt of accesion. Absolute ownership can be scquired in two ways and those are by means of occupation and ‘apecification’. The role in the cate of an ovnerles thing is chat the first occupier becomes the owner. The physical control of the thing is estential an the case of occupation. Such an ownership is acquired in the case of wild animals, birds, sh in sivers, precious stones, gems, ete ‘The English law on the subject is that fish and ‘animale are in the postesion of the person on whose land they are found. The landowner is their owner even ifthe ih are captured or the wild animals are killed. In the ease of hidden ‘reasures, the same belong to the Grown in England. Under the Roman law, the treature was divided equally by the finder and ‘owner of the place. Tn the ease of specification, materials belong ing to one person are given a new shape. Clay may belong to one person but the sculptor may make a statue out of it Original ownership may be acquired by long and conti- noone and undispoted posession of a thing as over. The principle of adverse possesion works in thie connection, The fwnership of one person is extinguished and that of another is created. Original ownership can also be acquired by means of ace ‘The owner of a tree has the right to the fruits of the tree. Likewise, the owner of land has the right to the erop grown ont, ‘The owner of an animal has the right to it ofprings. Ifsome land is added on account of a change in the course of the river, the same is acquired by the owner of the property adjoining it Different Kinds of Ownership Experience shows that there are many kinds of ownership and tome of them ate corporeal and incorporeal ownership, sole Tegal and equitable ownership, vested and contingent ownership, trust and beneficial ownership, co-ownetship and joint ownership and absolute and limited ‘ownership. XIV] ‘owwensiar Axo Possession 385 Corporeat and Incrporel Ownership: Corporeal ownership it the ownership of a material object ‘and incorporeal ownership is the ownership of right. Ownership ‘ofa house, a table or 2 machine is corporeal ownership. Owner~ ship of a copyright, patent or a trade mark is incorporeal ownership. The distinction between corporeal and incorporeal ‘ownership. is connected with the distinction between corporeal and incorporeal thing: Incorporeal ownership is described as owner- ship over intangible things. Corporeal things are thase which ean be perecived and felt by the senses and incorporeal things are those which eannot be perceived by the senses and which are intangible. Incorporeal ownership includes ownership over intellectual objects ‘and encumbrances, ‘Tract ond Benafiial Ouneship ‘Trait ownership is an instance of duplicate ownership. Trust, operty is that which is owned by two persons at the same ime. The relation between the two owners is such that one of them is under an obligation to use hie 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. Th a trust, the relationship 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 former is called the trustee and his ownership is ‘rust ownership. The latter is called the beneficiary and his ‘ownership is called beneficial ownership. ‘The ownerhip of 1 trustee is in fact nominal and not real although in the eye of law, he represents his beneficiary. If property i given to fon trust for Y, X would be the trustee and T would be the bene- Ficiary or cst: que tmst. X would be the legal owner of the Property and 1 would be the beneficial owner. X is under an igation to use the property only for the benefit of T. ‘A trustee has no right of enjoyment ofthe trust property. His ownership is only a matter of form and not of substance. It is nominal and not real. In the eye of law, a trustee is not mere agent but an owner. He is the person to whom the property of someone cls is fititiously given by law. ‘The trustee har to use lus power for the benefit of the beneficiary who isthe real owner.338 [JURISPRUDENCE AND LEOAL THEORY [onae, Trust ond Agecy:—There is some resemblance between 2 trust and an agency. Both a trustee and an agent administer property on behalf of another. Neither of them is the beneficial ‘owner of that property. However, there are many diferences between trust and agency In the eye of law, a ust ie the cowagr of the rst property, but the agent isnot the owner of the property which actually belongs to the principal. The result is {hat outside the ephore of his authority, an agent cannot past x legal tide toa tied person even ifthe Tater a bona fide pure chaser for value without notice. However, a Son fide purchaser for value without note of the trust froma teusies obtains a valde against the whole world. Inthe eye of aw, trustee i the legal owner. Hence he i personally liable forall the contracts entered into by him on behalf ofthe rust. Tfan agent enters into a contract as agent, the contrat is with the principal and the agent is ot lable per- ronally. ‘The authority ofa trusteis derived from the trust deed and the wishes of the beneficiary may have nothing to do with i ‘The authority of the agent to deal with the property depends ‘upon what has been delegated to him. He has to act for the Principal. A beneficiary can follow the trust property in the hands of the trustee. Likewise, the principal has the right: follow the property inthe hands of the agent if the Tater ser hin power in an vnauthorsed manner. Tn spite ofthis, there i zo trust relationship. ‘An agency artes from an expres or implied contract to act for some other perton and property need not be involved at all. ‘Ateast arses when a peson receives or holds property in such circumstances that he ought to employ it for the benefit of the lbneficiary ofan object ote than his own, Traut and Morlgge:—There is also'a distinction between a test and 2 morgage. The elation. between’ mortgagor and mortgages purely contractual, but thas some analogy t0 trust relationship. ‘The reason ie thatthe mortgagor has, in els & beneficial interest in the property which is the equity of redexp- tion. In the eye of aw, a mortgagee has an absolte estate after theme fied for redemption has pated. However, the mort xIV) ‘OWNERSHIP AND PossEEION 339 gages {s not a trustee for the mortgagor. He does not hold the legal estate forthe benefit of the mortgagor as a trustee holds for the beneficiary. The mortgagee has not only the legal interest, in the property mortgaged, but also a beneficial interest adverse to that of the morigagor ‘Ashburner writes that the morigagee becomes a trustee only after he has been paid. His right in the property does not go beyond what is necessary to secure the repayment of the money due to him, If the mortgagee hat sold the mortgaged property and reimbursed himself his money out of the proceeds of sale, Ihe becomes a trustee of the surplus proceeds for the person enticed to the equity of redemption. Legal ond Enuitable Oumeship ‘Legal ownership fs that which hae fe origin in the rules of common law and equitable ownership is that which proceeds froin the rules of equity Tn many eases, equity recognises ownership where law does not recognise ownership owing to some legal Sofect, ‘Thus fact can be illustrated by an example. is the cowner of shares in a company. He transfers thore shares to 7 ‘who pays him the amount of the consideration but proper tearafer‘deed, as required by the rules of the company, is not exccuted with the reslt that the company refuse to recognise.” 8 the holder of those shares In such a eaze law may give no relief to Yaz the legal requicements of transfer have not been complied with, but equity may step in to provide that though is all the legal owner ofthe shares, he holds them ae a. trustee for 1 and moun give 1 all the dividends and other amounts realized on account of those shares Legal rights may be ene enforced in personam as equi ced invem but equitable rights are cist persona. ‘One person may be the legal owner and another perzon the equitable owner of the same thing or right at the same time When debt is verbally asigned by X10 Py X remains the legal owner of it but Y'becomes its equitable owner. ‘There is only one debt as before though it has now two owners. ‘The equitable owne ownership of an equi of a tegal right is different from the leight. The ownership of an equitable340 |JURBPRUDENCE AND LEOAL THEORY [cxae, mortgage is different from the equitable ownership of a legal mortgage. Before the passing of the Judicature Acts of 1873 and 1975, there were two kinds of courts in England with separate jurisdic. tions. hove courts were known as common law courts and the chancery or equity courts. The rights recognised and protected by the common law courts were called legal rights and those recognised and protected by equity courts were called equitable rights. The courts of common law refused to recognise equitable ‘ownership and maintained that the equitable owne was not an ‘owner at all. Keeton writes: “Equitable ownership always predicates an outstanding legal ownership, the legal owner being restrained by the rules of equity from using his legal ownership to the detriment of the equitable owner. On the other land, legal ownership does not necessarily imply the existence of an equitable owner. The pro- pperty legislation of 1925. has made use of this conception of dual ‘ownership in order to facilitate the transfor of real property in England. Many interests which may exist with regard to land and otherwise would tend to impede the disposition of it, are now permitted to exist ar equitable interests only, and it is enacted that a purchaser of a legal ettate, provided that the requisite formalities are observed, may obtain a clear «itle, from most equitable interests, which operate upon the purchase money. ‘A. good example is the life interest. Formerly, this could exist both as a legal and as an equitable estate Now it may exist as ‘an equitable interest only. The most commion example of equitable ownership is that which exists under a trust.” ‘There is no distinction between legal and equitable estates jn India. Under the Indian Trusts Act, a trustee isthe legal ‘owner of the trust property and the beneficiary has no direct interest in the trust property itself. However, he has aright against the trustes to compel them to carry out the provisions of the trust. Vested ond Ceatinget Ounership: Ownership is either vested or contingent. Tt is vested ‘when the tile of the owner is already perfect. It is contingent ownership when the tile of the owner is yet XIV] OWNERSHIP AND POSSESSION sat imperfect but is capable of becoming perfect on the fulfilment ‘of some condition. {nthe case of vested ownership, ownership fs absolute, In the case of contingent ownership, it is merely conditional. In the ease of vested ownership, the investitive fact from which he derives the right is complete in all its parts. In the ease of contingent ownershio, itis incomplete on account of the absence of soine necessary element which is nevertheless capable of being supplied in the future, In the meantime, his ownership is contingent and it will not become vested until the nnecersary condition i fulflled. For example, a testator may leave property to his wafe for her fe and on her death to X if he is then alive, butt is then dead, to 7. Xand Yare both owners of the property in question, but their ownership is merely contin- gent, ‘The ownership of .V is conditional on his surviving the widow of the testator The ownership of 1s conditional on the death of ¥ during the lfetiine of the widow. In Englith law, an estate may be vested even though it does not give a night to immediate possession. On a devise to X for life with remainder to Tn fee simple, the interest of is vested because there 1s nothing but the prior interest of X'to stand between him and the actual enjoyment of the land. ‘Technically speaking, the interest of T's vested in interest, though not vested in posses- sion. It becomes vested in possession only on the death of . Ifa Hindu widow adopts a son but there is an agreement postponing the estate of the son during the lifetime of the widow, the interest created in favour of the adopted son is a vested right. It does not depend upon any condition precedent. If it isto take effect on the happening of an event which is certain (the death of the widow), the adopted son has a present pro- prictary right in the state, the right of possession and enjoyment being deferred. He ean tansfer the property even during the Fifetinve of the widow. Under a deed of gift, a donee is not to take possesion of the sifted property until after the death of the donor and hie wife. ‘The donee is given a vested interest subject only to the life interest fof the donor and his wife. The donee can transfer the pro- perty during the lifetime of the donor and his wife. ‘Under a compromise decree, it was settled that X was to hlod32 JORISPRODENGE AND LEOAL THEORY [un fan estate till his death after which it wat to go to Y. The interest acquired by Tunder the decree i a vested interest as it was bound to take effect from the death of X which was a certain event. A. vested interest is regarded as a property which is divisible, ransfer- able and heritable. Gontingent Iterest.—Where on the tranafer of property, an interest i erated therein forthe benefit ofan unborn person, the latter acquires, upon his birth, a vested interest in that property. Where on a transfer of property, an interest is ereated therein in favour of perton to take effect only on the happening or not happening of a specified uncertain event, such a person acquires contingent interest in the property. That interest becomes a ‘vested interest on the happening ofthe event or when the happening ‘of the event becomes imposible, at the ease may be, A contingent {interest is one in which neither any proprietary interest nor aright ‘of enjoyment is given at present, but both depend upon future ‘uncertain events ‘hte are three main features ofa contingent inte. Tt sold depentent upon the alflnnt of a condition so tat nce cf'nonfulliment ofthe condition, the interes may al through, It the tacfeee dle before eblaining pssson, the contingent intrest fle and the propery rovers tothe amen, A cote tent inert i nether tncferable nor heb Ansa bequeathed to 'unl he shall marry and after that event to. "The intrcn of Pin the bequest contagent sit depends upon acondlon precedent which the marrage of X, an event which may or may not happen. has, t preset to propisiary intrest in the cate and he cant aia AS toon ts arc the contingent nest off becomes a vested Intorat beet of the happening of mariage of on which twat Contingent. In + contingent intern the ans not compete Sn the specie even happens or dot not happen. points of dstnetion beoween a weed nce and 2 omnes (1) Ion a transfer of property, an interest therein is created in favour of.a person without specifying the time when iis to xIV) OWNERSHIP AND POSSESSION 383 take effec, or specifying that itis to take effect at once, or on the happening of an event which must happen, that interest is ealled vested interest. If that interest it to take effect only on the happening of a specified uncertain event or if a speciied uncertain event shall not happen, the interest acquired is contingent interest. (2) Avested interest dacs not depend upon the fulGlment of any condition. It ereates an immediate right though the enjoy- ment may be postponed toa future date. A contingent interest 's solely dependent upon the fulfilment of the condition. The result i that if the condition is not fulfilled, the interest falls through. (8) A vested interest is not defeated by the death of a trans- feree before he obtains possession. A contingent interest cannot take effect in the event of the death of the transferee before the fulfilment of the condition. (2) A vested interest is transferable and heritable. A_contin- ‘gent interest i neither transferable nor heritable. (6) Hehe transferee ofa vested interest dts before actual enjoy- ‘ment, that vested interest passes on to hus heirs. In the case of| contingent interest, the anterest does not pass on to his heirs because such an interes is inalienable and incapable of descending to hie heirs. (6) A. vested interest is a present immediate right, even though its enjoyment is postponed. A contingent interest is not fa present right. ‘There is merely a promise for giving such right ‘and such a promise may be nullifed by the failure of the condi In Sashi Kantha v. Pramodockandra, the Calcutta High Court pointed out the distinction between a vested interest and a cantin- ‘gent interest in these words: “An estate or interest is vested a5 distinguished from contingent either when enjoyment of it is presently conferred or when its enjoyment is postponed, the time of enjoyment will cerainly come to pass, in other words, an ‘extate or interest 1s vested when there is immediate right of pre- tent enjoyment or a present right of future enjoyment. An estate fr interest is contingent if the right of enjoyment is made to Gepend upon some event or condition which may or may notaH {JORISPRUDENGE AND LEOAL THEORY [Guar, happen. In other words, an estate or interest is contingent when the right of enjoyment isto accrue on.an event which is dubious for uneertain.”” (ATR 1932 Cal 609) Condition Precedent ond Subsequnt.—A conditvon precedent is one the fulflment of which completes an inchoate ttle. A condition subsequent i one the fulllinent of which extinguishes a ttle already completed A condition precedent always comes before the ereation ofan interes\. A coneitow subsequent always follows the vesting of an interest which 1s already complete. ‘The right is contingent in the ease of a condition precedent. It is already vested in the case of a condition subsequent. If the condition precedent ie satisfied, the vesting of the right becomes complete although the same was being held conditionally before. A eondli- tion subeequent completes the lox of right aleady lost condi tionally. A condition precedent involves an inchoate or incomplete investtive fact. A condition subsequent involves an incomplete or inchoate divestiive fact. He who owns property subject to = power of sale or power of appointment visted sn someone els, ‘ovine it subject to a condition subsequent. Hie utle is complete Dut there is already in existence an incomplete divesuive fact which ‘may one day complete itief and cut short his ownership. A testator may bequeath his property to hisson T but at the same 1e may leave a residuary power of alienation to hie widow X. In case X chooses to exercise her power, the son is deprived of the property. The ownership of Fis already vested but Hable to Premature determination by completion of a divestitive fact which fs already present in part, X wills his property to T, his wife, on the condition that om hher marriage, the same would be paited on to hus sons A and B. ‘When X dies, the ownership of the property vests in Y and A and ‘Bhave conungent ownership.” If Fremarris, she is divested of hher vested ownership and the contingent ownership of A and 8 becomes vested ownership. What is a condition subsequent for 7 is a condition precedent for A and B. ‘There are four characteristics of a condition precedent. A condition precedent is one which must happen before the estate ‘can vest. The estate is not in the grantee until the condition is performed. In the case of a condition precedent being or xv] lownensmP AND Possess" 45 becoming impossible of performance or being immoral or opposed to public policy, the transfer will be void. A condition precedent is deemed to be fulfilled if it i substantially complied with. ‘Thore are four characteristics of a condition subsequent. An ing estate is defeated by the happening of a condition subse- quent, In the case of a condition subsequent, the estate immedi rests in the grantee and remains with him till the condition is broken In the ease of an impossible, unlawful and immoral condition subsequent, the estate becomes absolute and the condition has to be ignored. Where a gift was made with a ‘condition that the donee should marry a particular person on oF before he attained the age of 21 and the person named died before she attained the age of 21, it was held that as the fulfilment of ‘the condition subsequent had become impossible, the estate became absolute. gift to which an immoral condition is subsequently attached romaine good gift, though the condition is void. A condition subsequent has to be strictly complied wit Distsetion betocen condition precedent and subsequent 1, condition precedent comes before the creation of the interest. {nthe cate of condition subsequent, the interest is ‘reated before and the condition subsequent can operate and vest it afterwards. 2, In the case of condition precedent, the vesting of the ‘estate is postponed lll the performance of the condition precedent. In the ease of condition subsequent, vesung is complete and not ‘postponed. 3, In the ease of condition precedent, an interest once vested ‘can never be divested by reason of non-fulilment of the condition, In the case of condition subsequent, interest, even though vested, ble to be divested by reason of the non-fulfiment of the condition, 4. Inthe se of condition precedent, an estate is not in the condition precedent is performed. Tn the n subsequent, the estate immediately vests in the {grantee and remains in him tll the condition is broken. 5. In the cate of condition precedent, transfer will be void if the condition precedent is impossible of performance, or immoral,346 JURISPRUDENCE At LEGAL, THEORY [Gna ‘or opposed to public policy. In the case of condition subsequent, the transfer becomes absolute and the condition will be ignored if that condition is impossible of performance or immoral or opposed to public policy. 6, In the case of condition precedent, the condition precedent ‘must be vali in law. In the case of condiuon subsequent, it need not beso and the invalidity of the condutions can be sgnored. 7. In the ease of condition precedent, the doctrine of per applice and the condition precedent is fulfilled if tis substantially complied with. AS regards condition subtequent, it aust be strillyfullled. The doctrine of expres does not apply. Sole Ounershp and Co-onersip Ordinarily, aright is owned by one person only at a. time. However, duplicate ownership is as much possible a sole owner ship. Two or more persons may have the same ight vested an them. ‘That may be done in many ways and one of them is that of eo ownership The right is an undivided unity. By meats of partition, the co-ownershup can be ended and the parties concern- ced can have their own separate shaver. ‘The members of a partnership are co-owners ofthe partnership property. When the right of ownership is vested exclusively none peison, it is called sole ownership. Salmond wntes: ‘'Co-ownership, like all other {forms of duplicate ownership, is posible only so far as law makes provision of harmonising in some way the conflicting claims of the ‘iffeent owners nur In the case of co-owners, the ttle of fone is rendered consistent with that of the others by the existence of the reciprocal obligations of restricted use and enjoyment.” Partners are co-owners of the chattels sehich constitute their stockin-trade ‘Their right is not a divided right, each of them ‘owning 2 separate part, The right is an undivided unity which is vested at the same time in more than one person If two part- ners have in their bank a credit balance of Rs, 4000, there is one debt of Rs 4000 due from the bank to both of ‘them at once and rot two separate debts of Rs. 4000 due to each of them in dually. Each party is entitled to the whole sum of Rs. 4000 just seach would ove 10 the bank the whole of the firm’s overdraft. ‘Co-ownership involves the undivided integrity ofthe right owned. in English law are distinguished as int ownership. The most important difference between these ‘elates {0 the effect of death of one of the co-owners. If ownership is common, the right of a dead. man descends to his successors ike other inheritable rights, but om 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 suri vvorship or jus acrtcendi.”” Ifa property belongs to Xand Yin equal shares and if it fs a case of ownership in common, half the property will pass to the hers of X on his death and the other half will remain with Y. However, if X and 1 are joint owners, T would _be entitled to the whole property and the heirs of ¥ would got nothing. ach owner in common is interested in a part or in 1 share but not in the whole of the property. Common ownership is familar to Hindu law Joint owner- hp of the English Jaw type is rather foreign to Hindu law and the presumption usually made where the grantees are Hindus, is that they hold in common. The joint ownership familiar to Hindu law isthe special kind of which the joint holding by the members of an undivided Mitalshara joint family isthe type ‘The disunguishing feature of a Mutakshara coparcenary is the right of survivorship postessed by its members. Tt resembles the Joint tenancy of English law. However, a Mitakshara coparcenary Js liable to be enlarged by the birth of male issue to the coparce- ners. Invested with a right by birth, the male iste also becomes 2 coparcener. ‘This feature is abtent in the joint ownership of English law. Absolute ond Uimsted ownership ‘An absolute owner sone in whom are vested all the rights lover a thing to the exclusion ofall, Thit means that excepting the absolute owner, there is no other person who has any claim whatsoever to the thing in question. However, this does not mean that he ean use his property in any way he likes. Restrictions can ‘be imposed both by law and also by voluntary agreement38 {JORISPRUDENGE AND LEOAL THEORY [onar. When there are limitations on the user, duration or disposal of sights of ownership, the ownership i Himited ownership. An ‘example of imited ownership in English law is life tenancy when fan estate is held only for life Before 1956, the estate of a woman, in the Hindu law was a limited ownership. If a Hindu woman inherited. property from a male or a female, it was called woman's state. She held the property only for her life and she had only a limited power of disposal. After her death, the property went to the heirs of the last holder of the property. POSSESSION According to Salmond, “in the whole range of legal theory, there is no conception more difficult than that of possesion.” ‘According to Bentham : “To define possession ie to recall the image which presents itself to the mind when itis necesary to decide between two parties, which is in posession of a thing and which is not. But af this image is different with different men if many do not form any image oF if they form a different one on diferent ‘occasions, how shall a definition be found to fix an image so un- certain and vanable. Defining the concept of possesion inlaw 1s like defining the geometric conception of roundness, Absolute roundness cannot be defined and is nowhere to be found. We may say that a thing is round when it is round enough for practi cal purposes, in other words, @ thing i round when it 1:50 nearly ound that one is not conscious that itis not round. ‘Thus, for practical purpotes ping-pong boll i taken at round although stip not absolutely round. Similarly legal possesion cannot be defined absolutely and perfectly, but for practical purposes certain, conditions and rules of legal possesion can be laid down forthe ‘guidance of the courts.” Importance Possession is one of the mott important concepts in the whole range of legal history. According to Holland : “The ascer- tainment of the nature of legal possession i, in fket, indispensable in every department of law. It is as exential tothe determina~ tion of international controversies arising out of the setlement ‘of new countries, or to the conviction ofa prisoner for larceny, asit sto the selection of the plaintiff in an action of trover oF trespass” XIV) ‘OWNERSHIP AND PossEssION 349 ‘Many important legal consequences flow from the acquisition land loss of posession” Possession is the prima face evidence of the title of ownerthip. Transfer of possession is ne of the chief modes of transferring ownership. The first possesion of a thing Which as yet belongs to no one, is 2 good title of right. Possession is so important that a possessor may in many eases confer a good title on another even though he has none himself. Ifa property is already owned, sts wrongful possession is a good ttle for the wrongdoer as against all the world except the true owner In Hanah v. Ped, the plaintiff was serving in the Royal Anillery. He was stationed in a house requisitioned by the government and he accidentally found @ brooch in an upstairs room occupied by hin. The brooch was handed over to the police. The police were not able to find out the rightful owner and delivered it to the defendant who was the owner of the house “The defendant sold the jewel for £65. A suit was brought for recovery of the brooch or its jewel. “The plainuff claimed the jewel as the finder. ‘The contention of the defendant was that he was entitled to it as the owner of the property on which it was found ‘The defendant was never in possession of the house and had no knowledge of the brooch until it was brought to his nauce Te was held that the defendant had neither de facto control nor the ‘animus of excluding others and as such had no possession The plaintif’ was entitled to the brooch or its value since his claim as finder prevailed overall but the rightful owner [(19¢8) 2 All ER 288: (1945) 1 KB 509). Tn Bridger v. Hawkesworth, the plaintiff’ found a bundle of banknotes on the floor of ashop The notes had been dropped there by a stranger by accident The party who lost them could rot be found. It was held that the plaintiff as the finder had property in the notes as against everyone but the true owner. The defendant had no prior possession which could prevail over the claim of the plaintiff. About this case, Salmond says that the shopkesper (defendant) had not the requisite animus for posession. Pollock is of the view that eorpur poserionis was itself Incking as the shopkeeper had no de facto control. Goodhart and Glanville Williams are of the opinion that this case was wrongly decided ‘The shopkeeper had a general animus and eufficient control requisite for legal possession asthe thing was in his shop. (1851) 21 LJQB 75.350 JUREPRUDENCE AND LEGAL THEORY fener, In South Staffordshire Water Co. v. Sharman, the defendant was leaning out a pool of water on their land under the orders of the plaintiffs and he found wo ings. He declined to deliver them to the plaintfs but filed to discover the true owner. An action was brought for the ecovery of the ring It was held that the plaintis ‘wore entitled to the rings. Lord Rusel of Killowen C.J. obsere- cd “Where a person has possession of a house or land, with a ‘manifest intention to oxercse control over it and the things which ‘may be upon or init, then, if something is found on that land, ‘whether by an employee ofthe owner or by astranger, the presurmp tion ie that the possesion of that thing ie in the owner of the locas we uno” Tes contended that the possession of land may not recessanly confer possesion ofall chattels attached to or under the land. To have potesion ofthe chattel, the corr and. the animur (poradend should co-exst. Ifa chattel i unattached and lying loose ‘upon the land, it is more than doubtful whether possession can be clarmed by the owner of the land without showing that he had the rnecesary animus and carpus pocearionis with reference tothe chattel (1996) 2 Qp 44), In Mery v. Green the plaintiff purchased a bureau at an auc- tion and got possesion of it Ina seeret drawer. there was money belonging to the vendor. As the plaintiff had no animus in regard to that money when he took possesion from the vender, he did not acquire possession of i The poreesson of the vendor was continu ing in the eye of law as to the mone; in the secret drawer ‘The plains? subsequently found the money and appropriated i. In doing so, he was depriving the vendor unlawfully and without Ihe consent of posession which in lave was all with im. Te was hheld that the plaintiff had committed the offence of larceny or theft by appropriating the money _[(1841) 7 M and W 623}. In Atumulle Penckeyat Board v. Venkate Reddt, a public latrine was under the control of the Panchayat Board. While carrying fut certain repairs, che Board was obstructed by the defendant who had no ttle tthe Iatrine. Tt was held that the Panchayat Board were entitled to a declaration of theie possesion and an injunction ing the trespacer from interfering with the work of the Board in carrying out the repairs The fact that the Panchayat Board had no legal tite to the site on which thelatrine stond, was XIV] OWNERSHIP AND POSSESSION 351 ammaterfal as the defendant himself was not the owner of that te. (1945) 2 MLJ 176), Development of the Concept of Possession ‘Asin the case of ownership, the concept of possesion also hhas_grawn gradually in the course of many centuries. As eiviliza- tion began to progress, the people started taking pottesion of certain objects and thus the idea of ownership began to grow ‘The struggle for existence was so bitter that individuals began to take possession of certain obycets and considered them as their ‘wn They began to take prude in the possession of those things and were not prepared 10 allow oulsiders to intecfere with them They were determined to exercise continuous control to the exclusion ofall thers From a humble beginning, the concept fof potsestion and ownership began to grow and much progiess has been made sn this connection A distinction has to be made between sus pavsernons or the right of possesion and jus posndends or the right to posest. Jur possessions the right of the posessor to continue to possess Tt fi a right to remain 1m powession except against a person who has a better ttle Even a robber has the right of possession and conly the true owner can interfere with his possession IFT give something to my servant to be kept in custody on my behalf, he has physical possesion of the thing but he has no legal right to at, He has the ur posteznons and not jus pasidends. This is due (0 the fact that my servant has merely the erpus of possesion and not the animus or the intention of exercising control over it Potsesson on Fact and m Lato Possesion 1s divided nto two categories, oz , possesion fact and possesion in law —Possesion in fact ie actual or physi- ‘eal postesion It isa physical relation to thing Possesion jn Jaw means possession in the eye of law. It means a posession Wwhich is recogiised and protected by Inw There we ometimes a discrepancy between possession in fact and possession in lav, although usually possession exists both in fact and in law in the ‘same person A person who is im de faclo possession of a thing also comes to have de jure possession However, sometimes possession may exist in fact and not in Jaw. If-a servant holds certain things in his eustody on behalf352 {JURISPRUDENCE AND LEGAL THEORY [Cane, fof the master, he has the actual possession of those things but in the eye of law, the possesion is with che master. In cert cases, powesion may exit inlaw and not in fact. This sso in the ease of constructive postion, A tenant may be occupying 1 particular building but the landlord has the constructive posse flon of the same The same is the case with the things in the possesion of servants, agents and bales. ‘The fondamental element both in possesion in fact and in Jaw isthe same. That element s the posbility of excluding every person other than the possessor from the use ot control of the tong. According to Keeton ‘Possession in law and possesion in fact are not snvariably cotermunus, although very frequently they are.” The Roman lawyers made a distinction beween possesion Jn fact as passesso naterals and possession in law as pases rls In consequence of this divergence, partly intentional and avowed ‘and partly accidental and unavowed, between the law and the fact of possesion, i is amposthle that’ any abstract theory shold completely Harmonize with the detailed rules to be found in any concrete body of law. Such harmony would be possible onty in a legal system which had developed with absolute logical rigour, tndisturbed by historical aceidents and unaffected by any of those special considerations which in all paris of the law prevent the inflexible and consistent recognition of general prnespes. Moments of Posesion ‘There are two elements of possession and those ate the carpur ‘of pesvetion and animus or the intention to hold posession. The ‘oo elements must be present an the case of posession and neither fof them alone 18 sufficient to consioute posesion. According to Holland . “A moments reflection must shove that possession m any sense of the term must imply Frsly some actual power over the ‘object possesed and secondly some amount of wall to avail oneself oF that power Neither the mere wish to catch a bied which 8 ‘out of my reach nor the mere power which I have without the least notion of exercising it, to seize a horse which T find standing ‘AC a shop door, will suice to put me in possesion of the bird oF the horse. The Romans by whom thi topic was tented. with great fullness or subtlety describe these esential elements of posses lon by the terms eorpur and animus respectively.” xIv) “OWNERSHIP AND POSSESSION 353 Gorpus of Pessesion By corpus is meant that there exists such physical power or physical contact of the possesor in relation to the thing possessed 40.25 to give rise to the reasonable assumption that other people will not interfere with it “The corpus of possesion can be considered, under two heads: the relation of the pestessor to the other persons and the relation of the posvesso to the thing possessed Relation of the Pesesor to Other Persons.—When I possess a thing At means that others shall not interfere with the use of that thing. According to Pellock, the reality of de facto dominion is measured jn inverse ratso (o the chances of effective opposition. A person asm posession of a thing when the facts are such as to create a reasonable expectation that he will not be interfered with in the tise of it He must have some sort of security for the acquiescence land not interference by other persons The security for non interference maw vary from a mere chance to moral certainty. The mesture of sccurity i that which normally and reasonably satis the animus down’ The following are the sourece from ‘which such measure of security ean be derived : (1) The frst source is the physical power of the possessor. Tam in possession when I lock up my money in a safe and thus realise my animus porndends. Writers Ike Savigny are of the view that possession means an intention coupled with the phusical power to exclude all persons from the use of that material object. Bi T may own a farm hundreds of miles away or I may inherit a fortune during my infancy and may not be a position 10 prevent trespass or mususe of mv fortune and yet 1am mn possession of the same The ‘assumption of phvncal power to exclude aliens is no Detter than a flcwon The true test ie not the physical power of preventing interference but the improbabnl from interfercace from whatever source it may arise (2) Another source is the personal presence of the possessor ‘The physical power of the possesior and the pertonal presence of the possesor, though they commonly. coincide, are not necesary. The respect shown to the person of a man wall commonly extend to all things claimed by him that are in his immediate presence.354 JURBPRUENCE AND EROAL THEORY [cuar. Presence iva ie protection, ols, ars and. stone wall wll give me the physical power of exclsion without any personal presence om my part. ‘There tmny abo be penonal presence without any. real power echaion.” A litle child sno physical power as fgsinet a grown-up man, yeti posts the money in hands, A dying man may retain or acquire posses- son by his personal presence but not by any pial owe left in him (8) Another measure of eeurity may be secrecy. Ifa man swans to Kee a thing safe fom others, he may hide it, In that case, he will gain a reasonable guarantee of enjoyment which i fut ar efecivly in poserdon of the thing ss & strong armed) man keep he goods in = (6) Another measure of security i cuom. ‘There a tendeney among homnan beings to acqiece in eablish- ce wage and this is an important source of de fo Security and poneston. Tf ploughed and sowed and feaped the harvest of a fld fast year and the year before, then unless there is someting tothe coneary ean reasonably expect to doit again thie year and 1 amin pomesion ofthe fd. (©) Another measure of security respect for ightol ei Righifoiner ofthe ean or rather a publi conv of is ight floes isan important cement i the aU tion of petesion, A rightful laim wil readily obtain that general aequecence which i ewenGel to de fore Security. A wrongfal daim wil not be respected. “The two forms of seurity, deface and de jo, tend 10 Ceincide. Posesion tends to draw owner aft fod ownership attrac ponesion An owner will Dost his property on mach en tems than those of thief il pons Hs ponds (6) Another meacure of security is the manifesiation of the ‘xinu: damn. ‘The visibility of the claim is another clement in the de faci secunty of its enjoyment. A ‘manifested intent’ iz much more likely to obtain the Scourty of general acquiescence than on which i has xiv] lowwenstr AND Possession 355 never assumed 2 visible form. Open use of a thing carries with 3 prima facie rightosindedness with it. (7) Another measure of security is the protection afforded by the possession of other things. The possesion of a thing tends to confer possession of any other thing that is connected with it or accessory to it. The possesion fof land confers 2 measure of security regarding the ppostesion of chattels situated upon it. The postesion ‘of a house may confer possession of chattels inside it. ‘The proposition that the possession of land necessarily confers possesion of all chattels that are on or under it does not appear to be true. Whether the possesion of one thing necessarily carries with it the possession of another depends upon the circumstances of exch ease. In the case of cattle straying on the land of neighbours, the owner of the land hat neither the animus nor the cpus to posses it Aman effectually gives delivery of a load of bricks by depositing them on my land even in my absence, but he could not deliver a roll of bank notes by laying them upon my doorsteps ‘The view of Pollock and Wright is that the possesion of and carries with it in general possesion of everything which is attached to or under the land. The defendant employed by the company to.clean a pond upon their land found certain gold rings at the bottom. It was held that the company, and not the defendant, Ihad the frst postession of it. ‘The defendant lessee company dist covered a pre-historic boat six feet below the surface of the land while excavating for the purpose of erecting gas works It was held that the lestor ane not the lesee had first posession of the boat In Bridges v Hawkeseorth, a parcel of bank notes dropped. by another person on the floor of the shop of the defendant was found by the plainuff-costomer. Tt was held that the plaintiff hhad a good title to it and not the defendant. (1851) 21 LJQB 75. Tn WN. Mecumder v, Stat, it was held. that corpus without the animuis i ineffective. (AIR 1951 Cal 140). Relation of possessor tothe thing possessed —The second element fn the corpus possessions isthe relation of the possessor to the thing356 {JURIEPRUDENCE AND LEGAL THEORY Teume, possessed. All that is necessary is that the postssor must have the physical power of dealing with the thing exchirively as his own, Savigny wntes: The physical power of dealing with the subject immediately and of excluding any foreign agency over its the factum which most exist in every acquisition of possesion. This minimum physial power is not necessary to continue the pores ‘as was required to give rite to xt and continuing possession ‘depends rather on the constant powers of reproducing. the orginal relationship at will. For this reason, we do not lose posession bby mere absence from the subject which we have once appropriat- fed to ourselves, although the physical relation in which we now stand (o it would not have sufficed in the fist instance to obtain posession.”” Markby observes: “Corporeal contact is not the physteal element which is iavolved in the conception of posesion. Tt is asther the possibilty of desling wath a thing ae we Hike and ‘of excluding others we consider the various modes in. which postesion is gained and lost, we shall recone this very cleatly.”” T put some money in a box and lock up the same with the key. Although T have no physical contact with the box, the box fs in my possesion as the key of the box is an my possession. ‘A person has some money in his pocket and some oft is dropped fon the road. He continues to be the pessssor of the money fallen fon the road sill the same is picked up by somebody else. When ‘2 person gives a dinner, hs silver forks while in the hands of his fuests are still i his possession. In the ease of tamed animals like 2 com, a dog, a horse, a bullock, etc , the owner docs not lose his possession even if e loses physical control over them. A. master may be away but he stil maintains his possesion of his dog or horse. In the case of wild animale like fish, bird and other animale which are feraenaluae, if the owner les physical contact ‘with them, he alo loses their possession ‘They become the property of the person who captures them. Tn the case of India, a bull is set fee, according to Hindu usage, he is not the property of any individual and no perton ean be guilty of theft However, it has been held in certain cases that if a bull is dedicated to an idol and allowed to move about at will, the trustee of the temple is in possession of that bull The fish in a creek or n an open irrigation tank are not in the possesion of the person who has right of fishery. They become the possession xv] OWNERSHIP AND POSSESSION 387 fof the person who catches them. However, the fish in a closed tank are in the possession of the owner of the tank. Annas Possdendi Anus possidends or the subyective element in possession is the intent to appropiinic (© oncself the exchusive use of thet possessed The anmus fostdends is the conscious intention of the individual 10 exclude others from the control of an object. Markby writes’ ‘In order to constitute possesion an a legal sense, there must exist not only the physical power to desl with the thing as we lhe ancl to exclude others, but also the determination co exercive tat physical power on our own behalf” ‘The view of Savigny 3 that “every case of possesion is formed on the state of consciousness of unbnited physical power". Holland observes. “To some possibilty of physical control, there must, at any rate for the commencement of possesion, be superadded ‘2 will to exercize such control.” Kant says: ‘There must be the ‘empirical fact of taking possesion apprelensia conjoined with the will to have an external object one’s own.”” ‘Phere are certain aspects of animus posdends which have to be considered (1) The anmur porsidend is not necesssily a claim of right. It may be consciously wrongful The thief has a posession no less real than that of the true owner. (2) The clam of the possestor must be exclusive. He ‘must intend to exclude other persons from the use of the thing possessed A mere intent or claim of use cannot amount to the possesion of the material thing itself. However, the exclusion need not be absolute. One may portest Jus land notwithstanding the fact that some other person or the publie at arge posses: 2 right fof way over it Subject to ths right of way, the ‘animut pezadend stil a claim to the exclusive use or control of the land, (2) The anmus domint need not amount to a claim or intent to use the thing as owner, A tenant or borrower may Ihave possesion. Any degree or form of intended tse oF control, however limited in extent or in duration, may, if exclusive for the time being, be sufficient to358 JURISPRUDENCE AND LEOAL THEORY [ouar. constitute possesion. The animus poradends need not bea claim to the use of the thing at all asin the case of 1 pledge or a baile with a lien, (4) The eninusposidend neod not be a claim on one’s own behalf. A servant, agent of trustee, may have true possession though he claums the exclusive use or cantrl of the thing on behalf of another. (8) The enmus pasidend! need not be specified but may bbe merely general. A general intent with reepect 1 a clase of things i suffiient (@f coupled with the necessary physical relation) to confer possesion of the individual object belonging to that class even though their individual exercise 1s unknown. A Ssherman is in posession of all the fish secured in his net Likewise, I possess all the books in my hbrary even though T'may have forgotten the existence of many of them. Iemay be thought that when a person has possesion of receptacle such as a box, a cabinet or envelope, his possesion of the receptacle gives him possession of is contents Sovigny's Theory of Possession ‘According to Savigny, both the carpus of possesion and the ‘aninus possdends must be present to constivute possesion. As regards the cour of possesion, it is necessary that in every Acquisition of possesion there must exist inthe possessor a physi- cal power of dealing with the subject immediately and of exclud- ing others. When the posesion of a thing has been acquired fand that possstion is intended to be continued, the possessor 1 power to exclude others they try to interfere with him in any way. However, immediate physical power of the possesor over the thing is not necessary. ‘As regards the second element, Savigay remarks thus: “Animus posndendi must be explained by ammus dominio anmas sbi habends, and be only isto be looked on as in possession who deals. at owner with the subject of which he has the detento That is to say, he must contemplate dealing with it practically ust as an ovner i accustomed to do by virtue of his right and xv) ‘OWNERSUP AKD POESESTON 359 consequently not as one recognizing anybody better entitled than himself” itis point out that there are certain shortcomings in the theory of possession of Savigny. Postession iz one conception and there are_no separate aspects of it with regard to its acqu tion and possession. But it can be pointed out that the acquis tion of possesion differs from its continuance. Reasonable expectation of non-interference by others is essential for the acquisition of possession and not for its continuance. X snatches away the book of Y Xdoes not acquire the possession of the book as 7 or anybody else may snatch avvay the same from him Hie comes to have possession when there is expectation of non- interference Moreover, physical power to exclude others is not essential to the concept of possesion. Tt is not always possible to exclude others. It is not always necessary to exclude others whether in acquiring or retaining pottesion. This is due to the fact that there are certain objects which cannot be physically posessed. ‘This is particularly goin the case of incorporeal possession. I may have the right of way over the land of another person but this does not mean that I have physical possession of the same. Thus, the theory of Sovigny doce not apply to incorporal possesion. A child oF ‘a weak person has not the power to exclude others from possession 5 the other parties are physically stronger. Moreover the same thing may be possesed by many persons at the same time. In the cus of int posesion, the puscton by one pry cannot be About Savigny’s theory, Ligntwood points out that the requirements of a power to exclude forcign agency gots to0 far. ‘To quote him: “Itis the absence and amprobability of foreign interference that constitutes the physical clement and not the existence of any power of exelusion.”” Salmond points out that a ule child may have no physical power as against a strong man and may yet posses the money in its hana. ‘The view of Savigny that the corpur posernonis is of two kinds according as i vlates to the acquisidon or the retention of possesion, is eriized by Salmond and Holmes, Salmond contends that there is no reason ‘why possesion which represents a certain relation between a person360 {JURISPRUDENCE AND LUGAL THEORY [Cuae, Janda thing, shouldbe one thing at its commencement and ane other in its contuauance. The view of Holmes is that when once fright is acquired, there is no groutid on which the law need hold that right at an end except im the clear manifestation of some fact inconsistent yath its existence. On this principle, “1 is only question of tradition or policy whethes « ecsation of the power to reproduce the oniginal physical relatzont shall affect the cont nuance of the sights” Possesion may continue im law even if the ability to reproduce the physical power of excision does not According to Duss and Hughes, the theory of Savigny as fan explanation of Roman law 1 demonstrably wrong. Inthe first place, Savigny overlooks the shift in the meaning of the word *ponenion”’. He sect to have fallen snto. the common fallacy that words must necesarly correspond to facts and hence his desire to find factusl content for possesion. Secondly, the based hus statement of lus factual content on the utterances of Paul, the jurist. Academe speculauon was never the strong pint of the Romans and Paul was no exception to it, In the turd place, at was erroneous to assume that corfus and animus which were only conditions someumes required for the acquis toon and los of possesion, consututed possesion itself. Fourthly, Savigny's idea of animus doment, the intention to hold as owner, fails to explain the cases of the pledgee, Emphyteuta, Sequester and Precario, Tenens, who had possession but did’ not intend to hold at owners. He first condeinned them as anomalous, hhinted at “historical reasons’” and then suggested that they were cates of “derivative possesion” or possession derived from the owner. ‘The view of Savigay that the temporary loss of fone ingredient of passesion did not matter provided there was the ability to reproduce st at will, is also inconsistent with the texts, Tt does not explain the continued passession of a fugitive slave despite the owner's inability to reproduce the corpur element atall. The only conclusion ie that the theory of Savigny com- pletely misrepresents Roman law. eis not necessary that the possessor must intend to use the thing as owner. Its also not necessary that he should recognize noone as having a better title to the thing than himself. A ballee recognizes the tide of the owner but he has still the xv) OWNERSHIP AND POSSESSION 361 possesion of the thing The same is the eae with the hirer of an atile or a pawnee ora pledges Thus, Savigny’s theory of possesion isnot aceepted in modern times. 1 i generally agreed that Thering was able to demolish the theory’ of Savigny He approached the idea of possesion as a sociologit He ied co antwer the question a8 to why Roman law proticted passion by means of inordits, His view was thet interdiis were devised to benefit owners by protecting their halding of property and o placing them in the advantageous position of defendants in any action. as to tle, Penons who held property would in the majority of eases be ‘owners and poszsion was attributed to such persons in order to make imterdiets available to them. ‘The view of Thening wat that whenever a person looked like an owner an relation to a tung he had poscsion of it unless possesion was denied to him’ by roles of law based on practical convenience The numus element was simply an intelligent awareness of the Gri point out thatthe wew of Ihering is unduly. coloured by the angle of his approach, Le, the interdis, ‘The spec reasons of policy that lay behind che anterdicts require that the person in conttol should be protected fo chat extent the ides of powesion for purposes of interdict had a factual basis. ‘The shafe in the meaning of posesion occurred outside that sphere and ther facial basis ceased to be true The view of Theang seems appropriate as an explanation of interdictal postion. Bat as a general description of possswon, iti needesly narrow, oowever iis ifiaitely superior to the view of Savigny. “The view of Markby is that posesion ip "the determination to exercise physical control over a thing on one’s own behalf coupled with the capacty to do #0”. This definition i criticised on the ground that it puts emphasis on the animos or the mental clement of possession and ignores the corpus or the objective part. 11 applies only to material objects and not to incorporea objects or rights, Moreover, the capacity to exercise phyrical control i not abrolutely necessary to acquire possesion. Holmes who started by sefuing¢ prior’ philosophies! ideas, perceived that less fete are required to inate possesion than to362 [JURISPRUDENCE AND LEGAL THEORY [cxa. acquire it, What constitutes posession can be best studied only ‘when ponsestion x fit gained. Accordingly, he pointed out that ‘to gain posession, then a man must stand an a certain physical relation to the object and to the rest of the world, and must have ‘2 certain intent, These relations and this intent are the facts of ‘which we are in search?” Holmes suggested that English law docs ‘not require the amu domet clement, but merely the mtent to exclude others For instence, the tenant desires not to hold az ‘owner ofthe land but only to exclude the landlord. According to Salmond “The possession of material object 1 the continuing exercise of a claim to the exclusve use of it.” Again, “its a continuing defacto relation between a person and a ‘hang ‘sehich os known ss posesion””. Poscason isa relation of| fact and not one of ight. It may be, and commonly is, a ttle of right, but its not a right itself. Possession isthe de facto relation between the possessor and the thing posse, Grines point out that the view of Salmond 1s not correct. Holland says that aright s “the capactty residing in a person of ccontrolhng with the assent and asustance of the State, the action of others”. Pollock has given his own view of posession. According to Jum: “In common speech, a man 1 said to posts or to bean possession of anything of which he has the apparent control, oF from the use of which he hae the apparent power of excluding others ” Pollock Iaysstres not on animus but on de fale control whieh he defines as physical control. A general intent isuficient ‘The reduction of potsesion to a general criterion such as de facto, control has led Pollock to face certain difcuties His theory does rot explain how servants have custody for some purposes and possession for others Physical control to exclude others might be fn important factor ina. primitive and lavwles society but the ‘more setled the community iy the les important is actual physical ower in the acquisition of possesion. A chuld has not the Physical power to exclude che ruffian but he all hs possession unless the ruffan actuslly takes it away from him. {1 clear from the above theories of possession that an English Jaw emphasis i Ind on antmur or intent. ‘The intent which constitutes posesion is the intent to exclude others. According xv] ‘ownensniP ap possesstont 363 to Holmes: Such an intent is all that the common law deems needful and that on principle no more should be required.” Shartel writes: “I want to make the point that there are many meanings of the word possession, that pottesion can only be ‘usefully defined with reference to the purpose in hand and that possesion may have one meaning in one connection and another ‘meaning in another.” Salmond writes: “Of all divergences between legal and actual posession, this e the most notable, vie, that outside the aw, Possession is used in an absolute sense, ‘whereas within the law it is employed in a relative sense. Ouiside the law, we do not speak of a person having possesion as against someone elses we say that he either has or has not got possession. Tn law we tale rather of possesion as something which one person has against ‘another ”” Mebhods of Trangfer of Poem Transfer or acquisition of pousssion can be done in three ways, viz, by taking, by delivery and by the operation of law. (1) As regards the acguistion oF transfer of possesion by {akug, is done without the consent of the previous possesior This also may be done sn two ways. One i called the rightful taking of possesion and the other the wrongfal taking of poses sion, A. shopkeeper is entitled to get some money from a custo- ter and the shopkeeper takes postession ofthe things of the eus- tomer. Thus is an example of the rightful taking of possesion. Ifa Uiet steals something from an individual, his acquisition of fostesion i wrongful. However, if a person captures a wil ‘animal which does not belong to anybody, the possession is ealled orignal (2) Another way of acquisition of possesion as by delioery or fredtio, In such a cate, thing is acquired with the consent ‘and cooperation of the previous posesor. Delivery is of two Kinds, viz., actual and constructive, In the cast of actual deli- very immediate pesestion is given to the transferee. There are two categories of actual delivery. According to one category, the hholder retains mediate posesion and according to the other the older docs not retain mediate possesion. IFT lend a book to364 [JURISPRUDENCE AND LEGAL THEORY [ouar. somebody I retain the mediate possesion of the book but if I sell the same, T do not retain any mediate possesion. Concrutse delivery is that which i not direct or actual. ‘There sre certain things which cannot actually be tansferred by the owner tothe purchaser or by the transferor to the transferee. In such cases, constructive delivery alone is possible. ‘There ate three kinds of constructive delivery and those are tradiio bre ‘mana, comtitutum posesorum and elorament. nthe ease of tradtio ‘vax mana, possession is surrendered to one who has already im- ‘mediate possesion. Tn such a case, it is only the animus that is twansferred as the carpus of posession is already with the transferee. T have already lent a book to somebody, af T sell the same book to him, it is a case of traditio breot manu, Tn the case of consietam possesoraum it is only the mediate posession that i transferred and the immediate posession is retained by the transferor. I may sell my car to somebody but A may retain the physical possesion of the same for some time jn spite of the payment of price to me. In such a case, the sanumus is lost and Tkeep the car on behalf of the purchaser. Tt is to be observed that in all cases of constructive delivery, there is a change of anus alone and corpus of possession remains ‘where it was before (8) Transfer of possesion can be made by the opertton of law as well. This happens when, as a reault of law, possesion changes hands. Ifa person dict, the possesion of his property, is transferred to his successors and legal representatives. ‘es mls: According to this principle, the frst Hinder of = thing has a good ttle to that thing against all but the true owner. It is immaterial ifthe thing is found oa the property of another person, However, there are certain exceptions to this general rule. ‘The rule does not apply if the owner of the property on ‘which the thing is found isin potsession of the thing itself and the property. The same ie the ease if the finder finds the thing as the servant of agent of another person, The rule also does not apply if the possesion of the thing was got through trespass or other wrongful act. Xwounds a hare in the forest and eatches it on his own field. Y hae the better right to the animal. A parcel of bank xv COwweRaHtP AND POSSESSION 365 notes is found by X, a customer, at the floor of the shop of 1 had no knowledge of the existence of those hank notes acquires a better ttle to the bank notes as the first possessor than 7 As the shopkeeper was not aware of the existence of the bank roter, he could not he presumed to be in their pnsscssion. In another case, a bank note was dropped in the shop of X The shopkeeper picked up the note and although he knew the owner ff that note, he did note return the same and converted 1 to fn ‘own use He was held guilty of theft In another case, st was Iheld that the firw finder did not become the ovner as he was merely an agent. In till another case, was held that the finder didnot become the owner as his action of removing the boat was a trespast Kinds of Possession (1) Immediate and Mediate. Tmeediate possession is also called direct possession and mediate postesion 1s also known as indirest possesion Ifthe relation between the pastessor and che thing ppossesed is a direct one, it is a case of immediate possesion. ‘When that relation is through the intervention or agency of some other person, at is called mediate possesion. IF {go to the bazar ‘and buy a thing personally, ics ease of immediate possesion. If L send an agent to the bazar co buy something and he doct smake the purchase, his possession is mediate and the postession of the agent i mediate When the agent hands over the thing to ‘me, my possession also becomes immediate ‘There are three categories of mediate possession Tn the ease fof the first category, the owner has possession through an agent fr servant who acquires and retains possession of a thing entirely fon behalf’ of the owner without claiming any interest for himeclt send my servant to the bazar on a bicycle to buy for me a pair of socks In this ease, I have mediate potsesion of the bicycle and the socks. Likewise, iT deposit certain good in a warehouse for in a store, the latter holds those goods on my behalf and T retain theie mediate possesion. Tn the second ease, the imimedinte possesion is with person who holds the #hing on his own behalf and on my behalf and who is bound to hand over the direct possesion of the same whenever I desire. This ie the ease of a hirer, tenant at will or a borrower. They all recognise the superior