Most of us think that the terms ownership and possession refers to the same thing. Both ownership, as well as possession, can simply define as a state, act, or right of owning something. However, the right to ownership is most important right. The earlier legal systems did not recognise the distinction between ownership and possession. With the advancement
of civilization that the two were considered as separate and distinct concepts. In Roman law, ownership and possession were respectively termed as ‘dominium’ and ‘possessio’ to get a better idea about the difference between these two terms.
In Black’s Law Dictionary (6th Ed.) ownership has been defined as “collection of rights to
use and enjoy property, including right to transmit it to others.” Therefore, ownership is de jure recognition of a claim to certain property.
Definition by Salmond:
He observes that the concept of possession is as difficult to define as it is essential to protect. According to him it’s the most basic relationship between men and things. His theory denied the conception of possession in fact and possession in law are two different conceptions and observed that there is only one conception which is position in fact he distinguished between suggestion of physical objects which he called corporal possession and possession of rights which he termed as in corporal position according to him corporal possession is the continuing exercise of claim to the inclusive or exclusive use of it the exercise of claim involves two elements Corpus possessionis and animus possidendi.
Meaning of Possession
Possession is the most basic relation between man and things. Possession of material things isessential to life because the existence of human life and human society would be rather Impossible without the consumption and use of material things. Many important legal consequences flow from acquisition and loss of procession. Besides being a prima facie evidence of ownership, it is also one of the modes of transferring ownership.
Salient Differences between Ownership and Possession
Possession is a relation of a person to an object which law recognizes as possession. It has been treated as an external evidence of ownership. According to Ihering, possession is the objective realization of ownership is a relation of a person to an object which is exclusive or absolute and ultimate. It may be noted that position is prima facie evidence of owners only in certain situations.
For example, a rented house is actually in possession of the tenant, but the ownership of it is vested in that of a landlord. A claim to possession may be maintained by one’s self asserting will but a claim to ownership is legally protected by the will of the state.
It is submitted that the distinction on the basis of fact and right is not tenable. To say that one is fact and other is right is misleading. Though there may be difference of degree, both the things, Fact and Right are present in both the concepts. Salmond pointed out the ownership has the guarantee of law but possession has some measure of security and value for from the facts, without any possibility of support from law.
The separation of possession and ownership is an exceptional incident, due to accident,
wrong or the special nature of the claims in question. Dr. Sethna states that Possession
without ownership is like body without soul. The two things stand mutually to coincide.
Ownership strives to realize itself in possession and possession endeavors to justify itself as ownership. Salmond pointed out that the law of prescription determines the process by which through the influence of time possession without title ripens into ownership and ownership without possession withers away and dies.
According to Salmond, the subject matter of possession and ownership is more or less the same thing. A thing which may be owned may also be possessed and vice versa. There are however certain exceptions to this general principle. A man may possess copyrights, trademarks and other forms of monopoly, though law may refuse to defend the same. There are many rights which can be owned but not possessed. For example, right of the creditor to recover his debt. A right in rem can both be owned and possessed but right in personam can be owned but it cannot be possessed.
Relevant Cases Laws:
- Hannah v. Peel (1945) 1 KB 509
The defendant purchase the house in 1938 but he never occupied it. In 1940, the house was requisitioned by the Government Royal Artillery. The plaintiff, a soldier who was stationed in this house found the brooch on the top of a window frame covered by a dust. The brooch was handed over to the police who without attempting to discover the rightful owner delivered it to the defendant who was the owner of the house. The defendant sold the brooch (jewel) for £ 66. The plaintiff (soldier) claim the Jewel or its value as the finder of it. The defendant contended that he being the owner of the house in which the brooch was found was entitled to it as the owner of it. The court, however, ruled then the plaintiff was entitled to the brooch or its value since his claim as finder revealed over all others accepting the rightful owner. The court further observed that since the defendant was never in possession of the house and had no further knowledge of the brooch until it was brought to his notice he never had de facto possession of it nor the animus of excluding others, therefore, he had no right over the brooch.
- R. v. Riley (Lamb Case) (1853) dears CC 149
In this case, the accused was driving his heard of sheep, some of the prosecutor’s sheep joined the herd and were driven away by the accused along with his own. The mistake came to his notice after he sold the entire flock 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.
The rights of possession and ownership are substantially the same. However, possession and ownership differ in their mode of acquisition. The transfer of possession is comparatively easier and less technical, but for the transfer of ownership in most cases involves a technical process of conveyancing.
Lastly, possession is a judicial concept and an instrument of judicial policy. Ownership is
more than that, it is also a social concept and an instrument of social policy.
Thus, ownership is not and should not be confused with the right to possession. Though ownership contains a bundle of rights with it and possession may be one of those rights but it is not the only right and even in the absence of right of possession, ownership may exist. Superficially it seems to be correct to say that ownership is the best right to possess, technically it seems to be not foolproof for various reasons.
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