Concept of property

The term property means things which are owned. In other words, it means those things on which right of ownership can be expanded. It includes both living and non living things. In broader sense, it means the things without which a person cannot live and it includes rights to live, personal liberty and all those rights which the person an exercise against others.

The term Property is defined by many scholars but Salmond defines it more specifically then all the others. He defined it as the law of property is the law of proprietary rights ‘right in rem’, the law of proprietary rights ‘in personam’ is distinguished from it as the law of obligations. According to this usage, a freehold or leasehold estate in land, or patent or copyright is included in property but debt or shares or benefit arising out of a contract is not property.

According to Salmond, the term property has variety of sense.

1) Legal rights: these rights are owned by the way of way. A person can exercise them on others and it includes personal and proprietary rights.

2) Proprietary rights: it means land, chattels, debts are included in property but not right to life and reputation are included.

3) Corporeal rights it says that only land chattels which can be seen are covered under corporeal rights but not debts and shares.

Types of property

Ø CORPOREAL

It includes material property which can be touched e.g. land, money, chattels and it further divided into two parts and these are:

1) Movable and immovable property

Immovable property is permanently attached to the earth and cannot be moved from one place to another for example land, house, etc. But movable property can be moved from one place to another with the help of a person and that includes chattels, ornaments.

2) Real and personal property

There is no basic difference between the real and personal property but all those rights which are recognised by law are real rights whereas personal rights includes proprietary rights over the property whether right in rem or right in personam.

Ø INCORPOREAL

Basically, incorporeal rights are those proprietary rights which are covered in right in rem and are not tangible in nature. It can further divide into two parts.

1) Jura in re aliena

Jura in re aliena is also known as encumbrances. It is basically property of one person that is used by other person.

It includes: Lease; Servitude; Securities; Trusts

2) Jura in re propria

It is the right over the immaterial things. The person attains this right due to his skill and labour.

It is categorized into following:

1) Patent

2) Copyright

3) Commercial Goodwill

Possesion of property

As said by salmon possession is the most basic relation between a man and a thing. Since the human life and human society is not possible without material things, it makes the possession of these material things very necessary. With the process of civilization, with the people struggling

for existence started taking the possession of certain objects and considered them their own. Possession being a legal as well as factual concept it becomes impossible to define covering all the legal scenarios and situations in which it may apply.1

Some of the jurists have defined possession in some ways,

According to Salmond, “possession is the continuing exercise of a claim to the exclusive use of an object.”

Savigny defines Possession as, “intention coupled with physical power to exclude others from the use of a material object.”

According to Ihering, “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.”

Speaking the legal sense, possession is not just having a control over a thing but rather it should be coupled with an intention of exercising that particular power, excluding others from it. A number of legal consequences get attached with possession, its acquisition and loss and hence it is a difficult concept in legal perspective considering its subjectivity. It is evident that we work under the assumption that if a thing is in the possession of someone, then he is the owner and any other person claiming the thing needs to prove better possessory rights.

This principle has even been invalidated under Indian Evidence Act, 1872 under section 10 as follows –

Burden of proof as to ownership- when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the persons who affirms that he is not the owner.

Even in the case of B. Gangadhar v. B.R. Rajalingam2, while explaining the relation between possession and ownership, the Supreme Court of India stated that possession is the external form in which claims normally manifest themselves. It is in fact, what ownership is in right enforceable at law to or over the thing.

Types and elements of possession

Types – Possession in fact or the de facto possession of a thing refers to the physical possession over a thing which needs not be continuous. Mere intention to exercise the physical control and to exclude others from it is enough to constitute possession in fact. There needs to be a physical contact. While if we talk about possession in law or the de jure possession of a thing refers to the possession of the thing which is recognized by the law. Generally, a person who is in de facto possession of a thing also has a de jure possession over it. But still it has certain exceptions. Like for example in case your servant has a physically has something with him but still the real possessor remains the master. And hence it becomes a case of possession in fact but not possession in law and the vice versa case also exists that is called constructive possession. So we can say they mostly exist together but still not always. Even the Roman law recognizes the difference between these two.

Elements – Possession constitutes of two elements, one being corpus of the possession and the other being animus of the possession. Corpus of the possession refers to the object or the body which is in the possession of the possessor and animus refers to the intention to hold or retain the possession. Both of them are required to constitute a valid possession as neither one of therm alone is sufficient. Corpus possessionis cannot exist without animus possidendi.3

Acona v. Rogers- Here, the owner of a house allowed a lady to keep her luggage in one of the rooms of the house. But the keys of that room were with the lady and not with the owner of the house. And thus, the court held that in the eye of law the lady was in possession of the luggage and not the owner of the house.4

Elwas v. Rogers- the plaintiff gave their land on lease to the defendant for erecting a gas plant. The defendant found a pre-historic boat below the land. The court held that the plaintiff had the right to possession over the boat.5

At the end it can be concluded by saying that though possession of property is the most fundamental relation between a thing and a man but yet when it comes to simplifying or defining it is one of the most difficult concept. Law protects possessor of a thing against every person other than someone who has a better title or possessory right and it is evident through various remedies that our law gives like the doctrine of jes tertii and some statutory remedies are also there.

Author: Akshat Agarwal Legal Intern at Legal Desire (June 2020)

Akshat is from Icfai University, Dehradun and is always interested to know more about the world