ALIGARH MUSLIM UNIVERSITY - PowerPoint Presentation

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ALIGARH MUSLIM UNIVERSITY

TOPIC: POSSESSION AND OWNERSHIP

SYNOPSIS

INTRODUCTIONCONCEPTUAL ANALYSIS OF OWNERSHIP AND POSSESSION

ELEMENTS OF POSSESSIONTHEORIES OF POSSESSION

OWNERSHIP- DEFINITIONSRIGHT OF OWNERSHIP

DIFFERENCE BETWEEN OWNERSHIP OF RIGHT AND RIGHT OF

OWNERSHIP

CASELAWS

CONCLUSION

POSSESSION

DEFINITIONSSalmond

: It is the most basic relationship between men and things.Paton, however, expressed a view that English Judges have been reluctant to lay down any logical and exhaustive definition of possession and preferred to dispose of particular cases so as to ensure justice in every case.

Henry Maine: Possession means that contact with an object which involves the exclusion of other person from the enjoyment of it.

ELEMENTS OF POSSESSION

c

orpus

possessionis

-

Physical control over the thing.

c

ivilis

possessionis

-

Exclusive control over a thing.

THEORIES OF POSSESSION

Savigny’s

Theory of Possession He founded his theory of possession on the text of Roman jurist Paul and emphasised that possession has two basic elements, namely, (1)

corpus

possessionis

, and (2)

animus

possessionis

.

Acc. To him, protection of possession is a branch of the protection to person and as any act of violence to person is unlawful, so is the act which disturbs possession by fraud or force, is unlawful.

Criticism

-

Savigny

was wrong in assuming that possession cannot be acquired without corpus and animus and possession is lost when either of these elements are lost. In actual practice we see that possession continues even when one of the elements is lost and in some instances even in absence of both the elements.

Ihring’s

Theory of Possession

It appears to be more practical and realistic.Taking an objective view he adopted a sociological approach explaining the concept of possession in his theory.He justified protection of possession under Roman law and said, “ whenever a person looked like an owner in relation to a thing, he had possession of it, unless possession was denied to him by rules of law based on practical convenience”.

Ihring

contended that possession is ownership on the defensive.

Criticism

-It failed to explain the cases where law refused ‘possessory rights’ to persons who were in effective physical control of the thing possessed.

Kant’s Theory of Possession

Emanuel Kant says, “men are born free and equal

”. Freedom of will is the essence of man. Possession is the embodiment of the will of a man. By taking possession of a thing, a man incorporates his will and hence his personality in that thing.

Holland’s Theory of Possession

Holland

’s theory of possession is founded on preservation of peace in society. In his view, the predominant motive that has induced the law to give protection to possession was probably a concern for the preservation of peace.

CaseLaws

▪

R. v. RileyIn this case where the accused was driving his herd of sheep, some of the prosecutor’s sheep joined the herd and were driven away by the accused along with his own. This mistake came to his notice after he had sold the entire lock of sheep. The accused was held to have taken possession of the sheep which belonged to the prosecutor and which he unknowingly drove with his own flock to the market.

▪ R. v.

Chissers

A person went in a shop and took some cloth to see. Then he ran away with the cloth. He was convicted for larceny as the Court held that he had not obtained the possession of the cloth merely by taking and it was still in possession of the shopkeeper.

▪

Boynton-wood v.

Trueman

It was held that handing over the key to the landlord to carry out repairs was not surrender of possession.

OWNERSHIP

DEFINITIONS

▪ According to Hibbert ownership includes within it four kinds of rights-

Right to use of a thing; Right to exclude others from using the things;

Disposing of the things; and

Right to destroy it

.

▪ Austin

defines

o

wnership “

as a right which avails against everyone who is subject to the law conferring the right to put thing to user of indefinite nature

”.

▪ According to

Holland

, “

ownership is a plenary control over an object

”.

▪ Pollock

says “

ownership is the entirety of the powers of the use and disposal allowed by law

”.

RIGHTS OF OWNERSHIP

The main rights of ownership are three-

The right of possession of the property owned;The right of enjoyment of the property; it includes the power to deal with the property as the owner pleases.

The power to dispose of the property.There are certain restrictions

upon these rights in the interest of the society or as a matter of policy but subject to these restrictions, the rights have been recognised in democratic societies. The Indian Constitution makes it a Fundamental Right. Article 19 of the Constitution says-

▪All citizens shall have the right to acquire, hold and dispose of property.

▪The state can impose reasonable restrictions on the exercise of the right by law in the interests of the general public, or for the protection of the interests of any Schedule Tribe.

RIGHT OF OWNERSHIP AND THE OWNERSHIP OF A RIGHT-DISTINGUISHED

The right of ownership is the right to the entirety of the lawful use of a corporeal thing and includes a bundle of rights, liberties, powers and immunities. Pollock has described right of ownership as ‘

entirety of the powers to use and disposal allowed by law’. On the other hand, ownership of a right denotes that he is neither the possessor nor an

encumbrancer, but the owners of the right. Ownership of a right is also known as

incoporeal

ownership

whereas right of ownership is called

corporeal

ownership

.

CaseLaws

Growhurst v. A

mersham Burial Board(1878) It was held that the owner of a thing cannot be allowed to use the thing in a manner which is injurious to others. This is expressed by the maxim, “so use your property as not to injure your neighbours”.

Hannah v. Peel(1945) It was held that the right of ownership can be restricted in time of emergency. For instance, building or land owned by private individuals can be requisitioned and used for lodging army personnel during the period of war.

Rylands

v. Fletcher(1848)

An owner is not allowed to use his land or property in a manner that it is injurious to others. In this sense, his right of ownership is not restricted.

CONCLUSION

Ihring rightly pointed out, ‘possession is the external realisation of ownership’. Possession is

de facto exercise of a claim; ownership is the de jure recognition of it. For

eg. A rented house is actually in possession of the tenant but the ownership of it is vested in the landlord. It can be concluded that possession is the external evidence of ownership whereas long possession is a source of ownership. Acc. to Dr.

Sethna

the

relationship between possession and ownership is same as that of body with soul

.

REFERENCE

❶STUDIES IN JRISPRUDENCE AND LEGAL THEORY-Dr.

N.V.ParanjapeeCentral law AgencyAllahabad

❷JURISPRUDENCE (LEGAL THEORY)-Dr.

B.N.Mani

Tripathi

Allahabad Law Agency

Faridabad

THANKYOU