vustudents
09-07-2011, 12:15 AM
Q. Define possession. What are various kinds of possession? (2002)
Q. Discuss the difference between possession and ownership. (2000)
Q. Write a comprehensive note on direct, indirect and duplicate possession. Give illustrations whenever necessary. (1999)
1. Introduction:
Possession is one of the most important concept in the whole range of legal history. It is a mere fact which has an enormous legal significance to which legal rights are attached and legal consequences flow from the loss and acquisition of possession. So that topic of acquisition of possession is very important in the study of possession. Possession is also divided into eight different kinds.
2. Definition Of Possession:
I. According To Salmond:
The possession of the material object to the continuing exercise of a claim is the exclusive use of it.
II. According To Pollock:
In common speech, a man is said to possess or to be in possession of anything which has the apparent control or from the use of which he has the apparent power of excluding others.
3. Modes Of Acquisition Of Possession:
Possession is acquired whenever the animus and corpus united. So there are there modes of acquiring possession.
I. Taking
II. Delivery
III. Operation of the law
I. Taking:
Possession is acquired by taking with the requisite animus, and it is done without the consent of the owner. It may be done in the following ways:
(i) Rightful taking of possession:
A shopkeeper is entitled to get some money from a customer and the shopkeeper takes possession of the things of the customer. This is an example of the rightful taking of possession.
(ii) Wrongfully taking of possession:
If a thief steals something from an individual, his acquisition of possession is wrongful.
(iii) Original taking of possession:
If a person captures a wild animal which does not belong to anybody, the possession is called original.
II. Delivery:
Another way of acquisition of possession is by delivery. In this case, a thing is acquired with the consent and co-operation of the previous possessor.
A. Kinds Of Delivery:
It is of two Kinds:
(i) Actual
(ii) Constructive
(i) Actual delivery:
In Actual delivery, the union of the corpus and animus is brought about for the first time in the transferee, as a result of the delivery by the transferor. The transferor may or may not retain mediate possession depending on the nature of the transaction.
Example:
A lend his book to B A retain the mediate possession of the book but if A sells this Book to him, he lose mediate possession.
(ii) Constructive Delivery:
To salmond, constructive delivery is that which is not actual, that is to say there are no physical dealings with the thing but mere change of animus intention possession is secured.
Forms of constructive delivery:
It may take may of 3 forms or kinds.
(a) Traditio brevi manu:
In this case, possession is surrendered to one who has already in possession of it e. g., I lend you a book, afterwards make a presents of it to you.
(b) Constitutum Possessorium:
In this case, mediate possession is transferred to the transferee and transferor to the transferee and and transferor still holds the immediate possession.
Example:
I buy books from the shop. The shopkeeper agrees to holds books on my account, it is a constructive delivery.
(c) Attornment:
In this case, there is transfer of mediate possession from the transferor to the transferee while the immediate possession remains outstanding in some third person.
Example:
A sells land to B C is in possession as a tenant C agree with the B to hold for the future on his account of A Here B secures mediate possession by constructive delivery by way of attornment.
III. Operation Of Law:
The law removes goods from the control of one person to the control of another e. g., If a person dies, the possession of his property is transferred to successors and legal representative.
Resnullius:
According to this principal, the first finder of a thing has a good title to that thing against all but the true owner.
Exceptions:
This rule is subject to the following exceptions:
(a) The rule does not apply if the owner of the property on which the thing itself and the property.
(b) If the finder finds the thing as the servant or agent of another person.
(c) If the possession of the thing was got through trespass or other wrongful, act.
I. Immediate And Mediate:
(i) Immediate possession:
Immediate possession is also called direct possession. If the relation between the possessor and the thing possessed is a direct one it is a case of immediate possession.
Example:
If A go to the bazaar and buy thing personally, it is a case of immediate possession.
(ii) Mediate possession:
Mediate possession is also knows as indirect possession. When the relation between the possessors and the thing is through the intervention or agency of some other person, it is called mediate possession.
Example:
If A send his agent to the bazaar to buy something and he does make the purchase, the possession of A is mediate.
Categories of Mediate Possession:
There are three categories of mediate possession.
(a) First category:
In it, the owner has possession through an agent or servant who acquires and retails possession of a thing entirely on behalf of the owner without claiming any interest for himself e. g., buying a book on behalf of owner.
Criticism:
It is pointed out that in case of an agent or servant, he dose not possess the thing but has merely the custody of the thing. The animus possidendi is lacking.
(b) Second category:
In the second category, the immediate possession is whit a person who holds the thing on his behalf and the behalf of some other person and who is bound to hand over the thing whenever that other person desire e. g., where someone borrows a book from someone.
Criticism:
It is pointed out that two persons cannot be in possession of the same thing at the same time adversely to each other. The reason is that if one person has both the corpus of possession and the animus possidendi he has full possession of the thing.
(c) Third category:
In the case of third category, the immediate possession is with one person but he is bound to return the same after a certain period or on the fulfillment of certain conditions.
Example:
If A owe some money to B and pledge certain things to him B has immediate possession of the thing pledged but is bound to return the same to the A on payment of the debt.
II. Corporeal And Incorporeal Possession:
(i) Corporeal Possession:
Corporeal possession is the possession of a material object e. g., possession of a car, books etc.
(ii) Incorporeal Possession:
Incorporeal possession is the possession of anything other than material object. It is the possession of a right e. g., possession of a copyright etc.
III. Representative Possession:
Representative possession is that in which the owner has possession of a thing through an agent or servant. The essence lies in a fact that the master has the animus (intent) to exercise control over the thing in the hands of his servant or agent.
IV. Concurrent Possession:
In the case of concurrent possession, the possession of a thing may be in the hands of two or more persons at the same time but heir claims are to adverse or destructive to each other.
Example:
I am possess a piece of land and another person may have the right of way on the same land.
V. Derivative Possession:
In derivative possession, the holder of the thing combines in himself both the physical and mental elements which constitute legal possession e. g., creditor has derivative possession of the thing pledged to him.
VI. Constructive Possession:
It is not an actual possession. It is a possession in law and not in fact.
Example:
Giving of key of a building is the giving constructive possession of the building.
VII. Adverse Possession:
The possession of property by a person is adverse to every other person, having or claiming to have right to the possession of the same, by virtue of a different title when adverse possession is established, it extinguishes the title of true owner.
Condition for Adverse Possession:
(a) Possession must be an invasion of the ownership of another i. e., ownership must belong to some other person.
(b) Possession should be actual exclusive and adequate in continuity and publicity.
(c) Possession must be exercised without violence.
(d) It should be exercised openly i. e., without stealth.
(e) The act of possession must be without permission.
VIII. Duplicate Possession:
Claims to possession which admit of concurrent realization give rise to duplicate possession.
5. Difference Between Possession And Ownership:
Ownership and possession have the same subject-matter. The two things stand mutually to coincide ownership strives to realize itself in possession endeavours to justify itself as ownership. Following are the differences between these two term.
(i) Nature:
Possession is the de facto exercise of a claim while ownership is the de jure recognition of that claim.
(ii) As to Guarantee:
Possession is the guarantee of the facts while ownership is the guarantee of law.
(iii) As to spirit.
Possession without ownership is the body of fact uninformed by the spirit of right. While ownership without possession is right unaccompanied by that environment of fact in which it normally realizes itself.
(iv) Effect:
Possession is a evidence of ownership while the ownership is not the evidence of possession.
(v) Effect of Time:
Through the influence of time, possession without title ripens into ownership and ownership without possession withers away and dies.
(vi) As to conception:
Ownership is concrete is the absolute while possession is the concrete realization of that concept.
(vii) As to Alienation or destruction of a thing:
The owner may alienate a thing or even destroy it is such a manner that he does not disturb the rights of other people. While a possession has no such rights as regards to the thing possessed.
(viii) Acquisition:
The transfer of possession is comparatively easier and less technical but the transfer of ownership is most cases involves a technical process of conveyance.
(ix) Remedies:
For the protection of ownership, proprietary remedies are available while for the protection of possession, possessory remedies are available.
6. Conclusion:
To conclusion, I can say that possession is an essential concept in legal system. It is a prime facie evidence of ownership. It is classified into different kinds and different ways are provided for the acquisition of it.
Q. Discuss the difference between possession and ownership. (2000)
Q. Write a comprehensive note on direct, indirect and duplicate possession. Give illustrations whenever necessary. (1999)
1. Introduction:
Possession is one of the most important concept in the whole range of legal history. It is a mere fact which has an enormous legal significance to which legal rights are attached and legal consequences flow from the loss and acquisition of possession. So that topic of acquisition of possession is very important in the study of possession. Possession is also divided into eight different kinds.
2. Definition Of Possession:
I. According To Salmond:
The possession of the material object to the continuing exercise of a claim is the exclusive use of it.
II. According To Pollock:
In common speech, a man is said to possess or to be in possession of anything which has the apparent control or from the use of which he has the apparent power of excluding others.
3. Modes Of Acquisition Of Possession:
Possession is acquired whenever the animus and corpus united. So there are there modes of acquiring possession.
I. Taking
II. Delivery
III. Operation of the law
I. Taking:
Possession is acquired by taking with the requisite animus, and it is done without the consent of the owner. It may be done in the following ways:
(i) Rightful taking of possession:
A shopkeeper is entitled to get some money from a customer and the shopkeeper takes possession of the things of the customer. This is an example of the rightful taking of possession.
(ii) Wrongfully taking of possession:
If a thief steals something from an individual, his acquisition of possession is wrongful.
(iii) Original taking of possession:
If a person captures a wild animal which does not belong to anybody, the possession is called original.
II. Delivery:
Another way of acquisition of possession is by delivery. In this case, a thing is acquired with the consent and co-operation of the previous possessor.
A. Kinds Of Delivery:
It is of two Kinds:
(i) Actual
(ii) Constructive
(i) Actual delivery:
In Actual delivery, the union of the corpus and animus is brought about for the first time in the transferee, as a result of the delivery by the transferor. The transferor may or may not retain mediate possession depending on the nature of the transaction.
Example:
A lend his book to B A retain the mediate possession of the book but if A sells this Book to him, he lose mediate possession.
(ii) Constructive Delivery:
To salmond, constructive delivery is that which is not actual, that is to say there are no physical dealings with the thing but mere change of animus intention possession is secured.
Forms of constructive delivery:
It may take may of 3 forms or kinds.
(a) Traditio brevi manu:
In this case, possession is surrendered to one who has already in possession of it e. g., I lend you a book, afterwards make a presents of it to you.
(b) Constitutum Possessorium:
In this case, mediate possession is transferred to the transferee and transferor to the transferee and and transferor still holds the immediate possession.
Example:
I buy books from the shop. The shopkeeper agrees to holds books on my account, it is a constructive delivery.
(c) Attornment:
In this case, there is transfer of mediate possession from the transferor to the transferee while the immediate possession remains outstanding in some third person.
Example:
A sells land to B C is in possession as a tenant C agree with the B to hold for the future on his account of A Here B secures mediate possession by constructive delivery by way of attornment.
III. Operation Of Law:
The law removes goods from the control of one person to the control of another e. g., If a person dies, the possession of his property is transferred to successors and legal representative.
Resnullius:
According to this principal, the first finder of a thing has a good title to that thing against all but the true owner.
Exceptions:
This rule is subject to the following exceptions:
(a) The rule does not apply if the owner of the property on which the thing itself and the property.
(b) If the finder finds the thing as the servant or agent of another person.
(c) If the possession of the thing was got through trespass or other wrongful, act.
I. Immediate And Mediate:
(i) Immediate possession:
Immediate possession is also called direct possession. If the relation between the possessor and the thing possessed is a direct one it is a case of immediate possession.
Example:
If A go to the bazaar and buy thing personally, it is a case of immediate possession.
(ii) Mediate possession:
Mediate possession is also knows as indirect possession. When the relation between the possessors and the thing is through the intervention or agency of some other person, it is called mediate possession.
Example:
If A send his agent to the bazaar to buy something and he does make the purchase, the possession of A is mediate.
Categories of Mediate Possession:
There are three categories of mediate possession.
(a) First category:
In it, the owner has possession through an agent or servant who acquires and retails possession of a thing entirely on behalf of the owner without claiming any interest for himself e. g., buying a book on behalf of owner.
Criticism:
It is pointed out that in case of an agent or servant, he dose not possess the thing but has merely the custody of the thing. The animus possidendi is lacking.
(b) Second category:
In the second category, the immediate possession is whit a person who holds the thing on his behalf and the behalf of some other person and who is bound to hand over the thing whenever that other person desire e. g., where someone borrows a book from someone.
Criticism:
It is pointed out that two persons cannot be in possession of the same thing at the same time adversely to each other. The reason is that if one person has both the corpus of possession and the animus possidendi he has full possession of the thing.
(c) Third category:
In the case of third category, the immediate possession is with one person but he is bound to return the same after a certain period or on the fulfillment of certain conditions.
Example:
If A owe some money to B and pledge certain things to him B has immediate possession of the thing pledged but is bound to return the same to the A on payment of the debt.
II. Corporeal And Incorporeal Possession:
(i) Corporeal Possession:
Corporeal possession is the possession of a material object e. g., possession of a car, books etc.
(ii) Incorporeal Possession:
Incorporeal possession is the possession of anything other than material object. It is the possession of a right e. g., possession of a copyright etc.
III. Representative Possession:
Representative possession is that in which the owner has possession of a thing through an agent or servant. The essence lies in a fact that the master has the animus (intent) to exercise control over the thing in the hands of his servant or agent.
IV. Concurrent Possession:
In the case of concurrent possession, the possession of a thing may be in the hands of two or more persons at the same time but heir claims are to adverse or destructive to each other.
Example:
I am possess a piece of land and another person may have the right of way on the same land.
V. Derivative Possession:
In derivative possession, the holder of the thing combines in himself both the physical and mental elements which constitute legal possession e. g., creditor has derivative possession of the thing pledged to him.
VI. Constructive Possession:
It is not an actual possession. It is a possession in law and not in fact.
Example:
Giving of key of a building is the giving constructive possession of the building.
VII. Adverse Possession:
The possession of property by a person is adverse to every other person, having or claiming to have right to the possession of the same, by virtue of a different title when adverse possession is established, it extinguishes the title of true owner.
Condition for Adverse Possession:
(a) Possession must be an invasion of the ownership of another i. e., ownership must belong to some other person.
(b) Possession should be actual exclusive and adequate in continuity and publicity.
(c) Possession must be exercised without violence.
(d) It should be exercised openly i. e., without stealth.
(e) The act of possession must be without permission.
VIII. Duplicate Possession:
Claims to possession which admit of concurrent realization give rise to duplicate possession.
5. Difference Between Possession And Ownership:
Ownership and possession have the same subject-matter. The two things stand mutually to coincide ownership strives to realize itself in possession endeavours to justify itself as ownership. Following are the differences between these two term.
(i) Nature:
Possession is the de facto exercise of a claim while ownership is the de jure recognition of that claim.
(ii) As to Guarantee:
Possession is the guarantee of the facts while ownership is the guarantee of law.
(iii) As to spirit.
Possession without ownership is the body of fact uninformed by the spirit of right. While ownership without possession is right unaccompanied by that environment of fact in which it normally realizes itself.
(iv) Effect:
Possession is a evidence of ownership while the ownership is not the evidence of possession.
(v) Effect of Time:
Through the influence of time, possession without title ripens into ownership and ownership without possession withers away and dies.
(vi) As to conception:
Ownership is concrete is the absolute while possession is the concrete realization of that concept.
(vii) As to Alienation or destruction of a thing:
The owner may alienate a thing or even destroy it is such a manner that he does not disturb the rights of other people. While a possession has no such rights as regards to the thing possessed.
(viii) Acquisition:
The transfer of possession is comparatively easier and less technical but the transfer of ownership is most cases involves a technical process of conveyance.
(ix) Remedies:
For the protection of ownership, proprietary remedies are available while for the protection of possession, possessory remedies are available.
6. Conclusion:
To conclusion, I can say that possession is an essential concept in legal system. It is a prime facie evidence of ownership. It is classified into different kinds and different ways are provided for the acquisition of it.