Notes on Ownership and Possession (Legal Theory)

  • Ownership is an ‘exclusive legal right’ over a thing.
  • The concept of ownership developed with the development of civilization when people started to settled life in place of a nomadic life.
  • Then people started thinking about ‘mine’.
  • This concept developed first of all in ‘ROMAN LAW’.
  • In India also, it developed during ancient time.
  • Indian law and Roman laws are the ones which recognized the difference between possession and ownership right from the beginning, but in English law tis difference was determined later on.
Roman Law
  • This (ownership) concept first of all developed in Roman. In this law, ‘DOMINIUM’ word was used for ownership and ‘POSSESSIO’ word was used for possession.
  • Dominium means absolute right over a thing.
  • Possessio means physical control over a thing.
  • Roman law gave more importance to ownership.
English Law
  • Under this law, the ‘concept of possession’ developed first and the concept of ownership was thought\ presumed to be a part of the concept of possession.
Indian & Hindu Law
  •  The concept of ownership developed long back in Hindu Law.
  • According to the law, ownership includes ‘legal title’ and the right of possession and enjoyment of the thing.
  • Much evidence is there that proves the development of the concept of ownership in Indian law.
  • Such as.
    ⇒ Brahma Purana:-In Brahma Purana, seven ways of obtaining legal title have been mentioned.
    ⇒ Manu Smriti:- In Manu Smriti, sale is considered as the right way of transpiring ownership, and based on sale two types of ownership have also been mentioned.
  •  In this law the concept of property had developed which is directly related to the concept of ownership.
  • In ancient time, property was divided into- Jangam (MOVABLE) and Sthavar (Immovable)
Relation of Western Law & Indian Law
  1. In Western law, ownership was considered over corporeal and Incorporeal things. But In Indian law, limited and absolute ownership was accepted
  2. Under Western law, ownership was given importance but legal title did not get enough importance. But In Indian law, legal title was given the most importance
  3. In Western law illegally establishing ownership was not punished. The concept of punishment developed later. But  Under Indian law, the concept of punishment had developed earlier which is evident in MANU SMRITI
Views of Western Jurist

AUSTIN- (Person- Thing).
→ According to Austin ownership is a relationship between a person and a thing. Which is owned? Austin gave by of ownership in this May.
→ “Ownership is right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration”

The views of Austin were critiqued a lot which is as follows.
(i) Ownership is not a single and right, but a group bundle/ of rights. Even if the owner gives away few rights the residue are still owned by him and he still remains the owner. eg- Landlord and Tena  nt.
(ii) Ownership does not have an unrestricted right of disposition and owners’ rights can be curtailed by the state eg:- restriction on illegal use of property.
(iii) The duration of ownership is not unlimited because government can take over ownership in public interest. eg:- Nationalization of Banks.
Abolition of Zamindari System.

 SALMOND (Person- Right):-
→  According to Salmond, ownership is the relationship between a person and a right that is vested in him.
→ The owner has rights that he exercises to the exclusion of all others and He defined incorporeal ownership

In the definition of ownership following things are included by Salmond:-
(i) Right of possession.
(ii) Use and enjoyment
(iii) Disposition and Destruction
(iv) Right of maintain ownership for Indefinite duration.
(v) Rights of owner over residuary powers.

Characteristics of Ownership

(1) Ownership may be either absolute or restricted ownership can be limited during a period of emergency.
(2) The owner has to pay taxes and duties to maintain his ownership over a thing.
(3) Ownership can be used to injure others or to cause injury to others.
(4) Illegal disposition is not allowed.
(5) Ownership does not get over with the death of the owner, and it gets transferred to his successors.
(6) Law does not confer ownership on an insane person, or a person who is not an adult.

Types of Ownership


→ Corporeal ownership is an ownership over material car, Bunglow etc.
→ Incorporeal ownership means ownership over a right. eg:- IPR (Intellectual property Rights.)


Sole ownership means an ownership vested in an individual.
Co-ownership means an ownership which is vested in more than one person.


An ownership is vested ownership when it is immediate and its does not depend on any condition.
Contingent ownership can be established by fulfilling some condition.


An absolute ownership includes all the rights such as use, ENJOYMENT, POSSESSION, AND RIGHT TO DISPOSE OWNED things.
Limited ownership means limited, rights of possession, use and disposition etc. which is generally controlled by a contract. eg:- Spring Board Academy Building we can use it but can’t can sell it.


Legal ownership means the ownership which is established by the rules of common law of state.
Equitable ownership depends on the equity and shares.


In trust ownership the ownership is not used for the benefit of the owner but it is used for the benefit of
others, Trust ownership is limited because it only includes the management of the owned thing.
In Beneficial ownership, ownership is used for the benefit of the owner.


  • Possession means to intentionally establish physical control over a thing.
  • Possession over a thing can be obtained with the help of will (intention) and physical control.
  • Long-term possession can be converted into ownership.
  • Possession provides a better title against the whole world except the real owner of the thing.’
  • Possession gives power to exclude others from using the possessed object.
Defination of Possession

(1) Salmod:- Possession is the ‘Continuing exercise of a claim’ to the exclusive use of an object’.

(2) SIR FREDRICK POLLOCK:- According to him possession is a physical control over a thing.

(3) SAVIGNY:-Sawigny defines possession an ‘intention coupled with physical power.’ to exclude
others from the use of material object.

(4) MAINE:- Maine defines possession as physical detention coupled with the intention to hold
the things detained as one’s own and to exclude others from its use.

Elements of Possession:-

Possession has two important elements which are as follows:-

→ The mental element of possession has been derived from the ‘ANIMUS’ term of Roman Law.  Animus means ‘will and intention’ to establish possession over a thing.

→ The physical element of possession has been derived from the ‘CORPUS’ term of Roman Law.  Corpus means to ‘establish physical control over a thing.

According to salmond, “to establish possession over something there two elements are essential”.

Methods of Acquiring Possession

Possession is either one-sided or two- sides and there are there ways and methods of acquiring possession over something.

    ⇒ In this method the possession of the thing is obtained without the constant of its previous owner/ possessor.
    ⇒ When the possession of a thing is obtained with the help of the consent of its previous
    ⇒ When a thing/ property is transferred from one person to other by enforcement of law.
Characteristics of Possession

1. To obtain possession elements like ‘physical control’ and intention are necessary.
2. To maintain possession other people are to be excluded from establishing possession over there.
3. Possession is ‘Prima facie’ evidence of ownership.
4. Possession is the ‘9th point of law; Possession is also called 9\10th of law:- becoming the possessor is considered as the owner.
5. The person who challenges the possession of the possessor has to prove a better claim.
6. The onus of proving a better claim is on the person who challenges the possessor.
7. Therefore the possessor is in a better position than the rest of the world and he has more rights.
8. The possessor can be excluded from the thing the possesses only by the real owner of the thing.

Relation Between Ownership and Possession
  •  The concepts of possession and ownership are related to each other. In both concepts some rights are provided over a thing as rights to use, enjoyment, disposition, and destruction of a thing that is owned.
  •  Possession includes the right to use and enjoyment.
  •  Ownership can be represented in the form the possession and possession is ‘prima facie’ evidence of ownership.
  •  To transfer ownership possession has to be transferred.
  •  Despite these similarities and closed relation there are many differences between these two concepts which are as follows.
Difference b/w Ownership and Possession
1 It is always ‘LEGAL’ It can be ‘LEGAL’ as well as ILLEGAL’
2 Ownership shows legal situation, ‘DE JURE’ It shows factual situation, ‘DE FACTO’
3 ‘Legal Title’ is necessary for Ownership Intention and physical control is necessary for Possession.
4 Physical control does not determine the duration of ownership. Physical control determines the duration of possession.
5 For the transfer of ownership legal process is required For the transfer of possession legal
formalities are not always required.
6 Ownership is always right and according to law and rules. Possession can be wrong and illegal
7 Ownership includes the right to possession. Possession does not always include
Reasons for protecting Possession

1. Possession is the primo radio evidence of ownership.
2. Possession helps in maintaining pace because it is required that no one is detained for possessing something against the law.
3. Possession controls Tort Cases\ Circuit Cases. Any interface in possession is considered as trespassing and the trespasser can be punished under the law.

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