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Kinds of Possession

There are two categories of possession - possession in fact and possession in law. Possession in fact is actual physical possession, while possession in law means possession recognized by law. There are three main modes of acquiring possession: 1) delivery, where possession is transferred with consent; 2) taking, which occurs without consent; and 3) operation of law. Possession can also be categorized as corporeal or incorporeal, mediate or immediate, constructive, adverse, de facto, and de jure. Possessory remedies exist to protect possession against claims of ownership.

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100% found this document useful (1 vote)
4K views4 pages

Kinds of Possession

There are two categories of possession - possession in fact and possession in law. Possession in fact is actual physical possession, while possession in law means possession recognized by law. There are three main modes of acquiring possession: 1) delivery, where possession is transferred with consent; 2) taking, which occurs without consent; and 3) operation of law. Possession can also be categorized as corporeal or incorporeal, mediate or immediate, constructive, adverse, de facto, and de jure. Possessory remedies exist to protect possession against claims of ownership.

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Mohit Malhotra
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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4) Categories of Possession: Possession is divided into two categories.

a) Possession in fact and


b) Possession in law.

Possession in fact is actual or physical possession. It is physical relation to a thing.


Possession in law means possession in the eye of law. It means a possession which is
recognized and protected by law. There is sometimes a discrepancy between possession in
fact and position in law, although usually possession exists both in fact and in law in the same
person. A person who is in de facto possession of a thing also comes to have de jure
possession.

6) Modes of acquiring possession:

There are two modes of acquiring possession i) Delivery and ii) Possession.

i) Delivery: Delivery completes voluntary act from one person to another. The transferor
gives actual position to the transferee. It is usually a lawful mode of possession. Delivery
may be actual of constructive. In actual delivery the thing is physically delivered.

ii) Taking: Taking implies an Act exclusively on the part of the person who physically takes
the Possession. It is acquisition of the Possession without the consent of previous Possessor.
It is the possession without the consent of the Possessor. Sometimes it is said to be unilateral
act. Transferee acquires the possession without the knowledge or consent of the former
Possessor of the thing. It is usually possessio-civilis. It may or may not be lawful. If it is
lawful then it is legal possession. i.e. possessio-juri.

Transfer or acquisition of possession can be done in three ways, Viz., by taking, by


delivery and by the operation of law.

1) As regards the acquisition or transfer of possession by taking, it is done without the


consent of the previous possessor. This also may be done in two ways. One is called the
rightful taking of possession and the other the wrongful taking of possession. A shopkeeper is
entitled to get some money from a customer. This is an example of the rightful taking of
possession. If a thief steals from an individual, his acquisition of possession is wrongful.
However, if a person captures a wild animal which does not belong to anybody, possession is
called original.

2) Another way of acquisition of possession is by delivery or traditio in such a case, a thing is


acquired with the contents and cooperation of the previous possessor, delivery is of two
kinds, Viz., Actual and constructive. In the case of actual delivery immediate possession is
given to the transferee. There are two categories of actual delivery. According to one
category, the holder retains mediate possession and according to the other the holder does not
retain mediate possession. If I lend sell the same, I do not retain any mediate possession.

Constructive delivery is that which is not direct or actual. There are certain things which
cannot actually be Transferred by the owner to the purchaser or by the transferor to the
transferee. In such Cases, constructive delivery alone is possible. There are three kinds of
constructive delivery and those are traditio brevi manu, Constitution possessorium and
attornment in the case of of traditio brevi manu, possession is surrendered to one who has
already immediate possession. In such a case, it is only the Animus that is transferred as the
corpus of possession already with the transferee. I have already lent a book to somebody, if I
sell the same book to him, it is a case of traditio brevi manu. In the case of
Constitution possessorium it is only the mediate possession that is transferred and the
immediate possession is retained by the transferor. I may sell my car to somebody but I may
retain the physical possession of the same for some time in spite of the payment of price to
me . In such a case, the Animus is lost and I keep the car on behalf of the purchaser. It is to be
observed that in all cases of constructive delivery, there is a change of Animus alone and
corpus of possession remains where it was before.

3) Transfer of possession can be made by the operation of law as well. This happens when, as
a result of law, possession changes hands. If a person dies, the possession of his property is
transferred to his successor and legal representatives.

(7) Kinds of Possession

The institution of property has indispensable relationship with the mankind. There are
two important rights related to property namely i) ownership and ii) possession.
Possession is an evidence of ownership. It is very difficult conception of
utmost practical importance in legal theory.

Following are the important kinds of possession.

1) Corporeal Possession :

Those things, which are having physical or material existence, wherein direct relationship
with the thing, are possible. for example, House has physical existence which can be
perceived by our senses. The possession in the house therefore is Corporeal Possession.
Therefore corporeal possession is the possession of material things, movable as well as
immovable such as the Car , book , pen, wristwatch, etc.
2) Incorporeal Possession :

It means Possession of immaterial or intangible things. These are the things,


which do not have physical existence and therefore cannot be perceived by our senses.
Therefore possession in respect of this thing is known as incorporeal possession. for example
- Copyright, Trademark, Patent, Goodwill etc.

According to Salmond, corporeal possession is Possession of an object whereas


incorporeal possession is the possession of a right.

3) Mediate Possession :

It is the Possession of a thing through another, either through his friend, servant
for agent. As the thing remains, in possession with another, the possessor has lesser degree of
physical control over such thing.

Illustration :

a) 'X' has a car, which he leaves with his driver. The possession of the driver will be
immediate whereas the Possession of 'X' will be mediate.

b) 'A' purchased a house through his agent and the agent got the possession. A's possession is
said to be the mediate possession.

4) Immediate Possession :

It is also called as Direct Possession. Direct or primary possession by a person


over a particular object, which acquires or gets directly or personally. In immediate
possession, as the thing is in possession of the possessor directly, he has higher degree of
control over such thing. It means that there is no other person holding the thing.

Illustration :

a) 'X' has a car and he keeps it in his garage, this constitutes immediate possession.

b) 'A' purchased a house and takes Possession of the property it is called direct or
immediate Possession.

5) Constructive Possession :

Constructive possession is not actual possession it is a possession in law and not


possession in fact. According to Pollock and Wright, it is a possession which arises only by
the construction of law.

Example : The delivery of the keys of a building.

6) Adverse Possession :

It means holding the land on his own behalf of some other person. if adverse
possession continues peaceful and undisturbed for that number of years, he can claim
ownership and the true owner's right( ownership) gets extinguished.

7) De facto Possession :

De facto Possession exists where the thing is in the immediate occupancy of a


party. The person in de facto possession has the physical control of the thing to the exclusion
of others and has Animus and Corpus over the material object. De facto possession may be
described as actual Possession.

8) De jure Possession :

De jure possession can be described as posssession in law. De jure possession exists


when person claims a thing as his own in natural normal legal manner by occupying a thing
without any dispute as to his legal right to possess and enjoy the thing. Legal possession may
exist with or without property in possession. In case of De jure possession it is just possible
that a man I have ceased to live in a house but without intending and to abandon it for good
as the owner of the house.

8) Possessory Remedies:

Possessory Remedies are those which exists the protection of Possession even against
ownership. Proprietary remedies are those which are available for the protection of
ownership. In many legal systems, possession is provisional or temporary title even against
the true owner. Even a wrongful Possessor who is deprived of his possession can recover it
from any person whatsoever on the ground of his possession. Even the true owner, who
retakes his own, must first restore possession to the wrongdoer and then proceed to secure a
possession on the ground of his ownership.

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