Kinds of possession
Explain possession. Explain the kinds of possession and modes of acquisition of possession.
1) Introduction
Possession is one of the most important concepts in legal history. The ownership, control or occupancy of land or personal property by a person is called possession. A person may have the right of possession of some property while possession does not show ownership. The right of possession means that someone holds something in hand and this person may be the temporary holder or the long-term owner of a thing
2) Meaning of possession
“Possession means physical control over things”
3) Definition of possession
A person who is the possessor of anything has complete control over the thing and has the right of exclude others is called possession
4) Modes of acquisition of possession
Following are the three modes of acquisition of possession
1. Taking
Possession can be acquired by taking the thing physically. It is possible without the willingness of the owner
a. Rightful taking of possession
A shopkeeper is entitled to get some money from a customer and the shopkeeper gives possession of the thing to the customer. This is an example of the rightful taking of possession
b. Wrongful taking of possession
If a thief steals something from the custody of an individual, his acquisition of possession is wrongful taking of possession
c. Original taking of possession
If a person captures a wild animal which does not belong to anybody, such kind of possession is called the original taking of possession
2. Delivery
Another way of acquisition of possession is by delivery. In this case, such kind of possession is possible with the willingness or co-operation of the previous possessor
A. Actual delivery
Actual delivery refers to delivering the physical control of a thing to another person is called actual delivery, in this case, the deliverer can or can not recollect possession because it all depends on the nature of the transaction
Example
A lends his book to B. A recollects the possession of the book but A sells his book to B, so A cannot collect his possession
B. Constructive delivery
Constructive delivery refers to an act of transfer of possession by operation of law while actual transfer is impossible in this kind of delivery
Forms of constructive delivery
a. Traditio brevi manu
In this case, possession is surrendered to one who is already in possession of it e.g. I lend you a book and later on I present it to you
b. Attornment
Attornment in English is real property law, which is the acknowledgement of a new lord by the tenant on the departure from the land.
Example
A sells land to B and C is in possession as a tenant C agrees with B, to hold it for the future on his account instead of on account of A Here B secures mediate possession by constructive delivery by way of attornment
3. Operation of law
The law moves goods from the control of one person to the control of another e.g. if a person dies, the possession of his property will be transferred to his successors and legal representatives
1. Res nullius
According to this principle, the first finder of such thing becomes the owner res nullius including wild animals or wild property
2. Exceptions
This rule has the following exceptions
- If a person finds things as the servant of another person
- It is the possession of the thing obtained through trespass or other wrongful act.
5) Kinds of possession
Following are the different kinds of possession
1. Immediate and mediate possession
a. Immediate possession
Immediate possession is also called direct possession if the relation between the possessor and the thing possessed is direct so it a a case of immediate possession
Example
If A goes to the bazaar and buys a thing personally, the possession of A is immediate
b. Mediate possession
Mediate possession is also called indirect possession. If the relation between the possessor and the thing, through a third person it is a case of mediate possession
Example
If A sends his servant to the bazaar to buy something and the servant does make the purchase. The possession of A is mediate possession kinds of Mediate possession
First Kind
The owner has the right of possession on the thing which is under the possession of his servant on his behalf and his servant has no right of possession on that thing e.g. buying a book on behalf of the owner
Second Kind
In this case, possession is with a person who holds the thing on his behalf or behalf of another person and who is bound to hand the thing whenever other person desires e.g. some borrow a book from someone
Third Kind
In this case, possession is with one person but he is bound to return the thing after a certain period
Example
If A gives some money to B and pledges certain things against money A has immediate possession of things but is bound to return things to B on payment of the debt
2. Corporeal and incorporeal possession
a. Corporeal possession
Corporeal possession is the possession of a material or physical thing, e.g., a car, books, etc.
b. Incorporeal possession
Incorporeal possession is the possession of immaterial things e.g. possession of copyright etc.
3. Representative possession
Representative possession is that which the owner has possession of a thing through his servant
In simple words, the owner can exercise control over the things in the hands of his servant
4. 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 claims are destructive for each other
Example
I may possess a piece of land and another person may have the right of way on the same land
5. Derivative possession
Derivation possession is a lawful possession, and it comes into existence by making a contract between the parties such possession is without ownership of the property e.g. creditor has derivative possession upon things pledged to him
6. Constructive possession
Constructive possession is a possession in law not in fact. where an individual has legal control over a property instead of having physical control over the property
Example
Giving the key to the building is giving constructive possession of the building
7. Adverse possession (possession against one’s interest)
Under certain circumstances, an occupant can come into your land, occupy it, and gain legal ownership of it. The legal term for this is "adverse possession." And it will remove the title of the true owner
Conditions for adverse possession
Following are the conditions for adverse possession
- Possession must be exercised without violence
- Possession must be exercised openly i.e. without stealth
- The possession must be without legal permission
8. Duplicate possession
More than two persons cannot have possession of the same thing at the same time. The possession of a thing by one person is compatible but it is possible when claims are not against one another .it can be clarified that by accruing a contract between two parties, duplicate possession is exercised
Example
The possession of co-owners is a case of duplicate possession
6) Conclusion
Possession is an essential concept in the legal system. Possession is a prima facie (First impression which is right until it is disproved) of ownership. It is classified into different kinds and different ways for the acquisition of it