Possession its various kinds & modes of acquisition of possession

Possession its various kinds & modes of acquisition of possession

1. Introduction:

Possession is one of the most important concepts 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:

According To Salmond:

“The possession of the material object to the continuing exercise of a claim is the exclusive use of it.”

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 three modes of acquiring possession.

 

(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:

(a)    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.

(b)    Wrongfully taking of possession: If a thief steals something from an individual, his acquisition of possession is wrongful.

(c)    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.It is of two Kinds:

(a)    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.

(b)    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. It may take may of 3 forms or kinds.

1)     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.

2)     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.

3)     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:

The rule does not apply if the owner of the property on which the thing itself and the property.

If the finder finds the thing as the servant or agent of another  person.

If the possession of the thing was got through trespass or other wrongful, act.

4. Kinds of Possession Following are the kinds of possession.

(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:

(a)    Corporeal Possession: Corporeal possession is the possession of a material object e. g., possession of a car, books etc.

(b)   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 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

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.