Law Basics: Ownership and Possession

Law Basics: Ownership and Possession

In simple terms while both ownership and possession may seem to define a state, act, or right of owning something. However, in legal terms, they have different meanings. Let us learn about ownership and possession in jurisprudence and the difference between the two.

Ownership

The ownership is an important right in relation to property. It is a juristic concept in Roman law. Ownership has been taken as an absolute right over a thing. The term Ownership was used in English law for the first time in 1853.

Definitions of Ownership

According to Marvi Ownership means the vesting of powers in the owner for the thing.

According to Hibbert ownership includes within it four kinds of rights.

  • Right to use of thing:
  • Right to exclude others from using the thing
  • Disposing of the thing
  • Right to destroy it.

Austin defines ownership as right which avails against everyone who is subject to the law conferring the right to put to user of indefinite nature He further says that ownership is a right indefinite in point of user unrestricted in point of disposition and unlimited in point of duration.

According to Salmond, Ownership in its most comprehensive signification denotes the relation between a person & right is vested in him. Thus in generic sense ownership signifies relation between the person of inherence and the object of ownership. It consists of a complex of rights all of which are rights in rem in Salmond s view ownership exhibits the following incidents:

  1. An owner shall have a right to possess the thing which he owns, he may however not be necessarily in actual possession of it.
  2. He had normally the right to use and enjoy the thing owned.
  3. The owner has a right to consume destroy or alienate the thing.
  4. Ownership has the characteristic of being indeterminate in duration
  5. Ownership has a residuary character. For instance if a land owner gives a lease of his property to A, an easement to B & a right of profit to C then his ownership shall consist of the residual rights.

Elements of Ownership

The following are the elements of ownership:

  • Possendi: Power to possess a thing.
    In the case of Ramsigh versus Central Bureau of Narcotics AIR 2011 SC 2490 it has been held by the supreme court that control over goods is one of tests to ascertain conscious possession so also title.
  • Utendi: Capacity to use or utilize.
  • Dispondendi Power of disposition.

Characteristics of Ownership

  1. Ownership contains a right of the owner to exclude others.
  2. Ownership provides a power to alienate a thing or property intervivos or the charge security This power is limited by various laws specially by family laws to ensure the absolute power over such property.
  3. Ownership gives power to a person owner to leave such property etc. by will.
  4. The right of ownership can be exercised under certain conditions imposed by various laws An insane minor cannot use his right of ownership. As such a right of ownership as in one sense an ultimate right or the collection of rights privileges & power which the state permits.
  5. An owner can destroy property or can exercise power of ejectment as he pleases such power is subject to
    1. the law of nuisance,
    2. state control and
    3. agreement between owner& other.
  6. On the basis of its classification, ownership can be divided into:
    • absolute
    • restricted
  7. On the basis of the limitation, ownership can be
    • Voluntary
    • Compulsory .
  8. A right of ownership can be curtailed or restricted during war or emergency. If any land or property is required for the use of army during war it can be acquired by the Government.
  9. The right of ownership is protected by state.
  10. It can be exercised in such a way that the rights of other persons may not be disturbed or violated.
  11. The right fo ownership is a permanent right In case the owner dies the ownership is passed on to his or her successors.
  12. The rights of ownership of the minors idiots and lunatics is protected by the state.
  13. Everything except natural air light and heat contains ownership.

Law Basics: Ownership and Possession

Possession

Possession is an important factor in the jurisprudence. Salmond has to say that possession on physical goods is essential for human life. A person can utilize a physical goods on the grounds of possession in absence of it human life is impossible. Actually possession is an expression of a fundamental relation between persons and goods.

Definitions of Possession

It is being said that the understanding of the conversion of possession is easy but to define it is very hard. Various jurists have defined the possession as under:

According to Salmond, possession is a continuing defects relation between a person and thing.

According to Fedrick Pollock possession means the physical control over anything.

According to English law there are three conception regarding possession

  1. Any person can have both possession and physical control.
  2. Any person can maintain possession over thing even without a physical control and
  3. Any person can have physical control over a thing even without the possession over a thing.

Thus the physical control of a person on thing and desire to retain such physical control is a possession. When a person has physical control over a thing and he desires to continue to retain such physical control then it is said that there is a possession of that person on that person on that thing.

Essential Elements of Possession

Physical element– First essential element of possession is corpus possessions. It is called the physical element of possession. This element is an indicator of real possession on a thing It may also be said a physical contract. The word corpus means a single contract over the thing and have a capacity that others may not interfere with it under it.

Mental Element– Second essential element of possession is Animus Possidendi. It is called mental element of possession. In real, it is an intention to appropriate oneself the executive use and enjoyment of the things possessed It is the conscious intention of the possessor to exclude others from interfering with his right of possession In other words it may be said that apart from the physical power to deal with the thing the possessor must also have a will to exercise such control.

Law Basics: Ownership and Possession

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