Questions and Notes on Possession 1

Questions and Notes on Possession 1

1.      Who said “Every person who wrongfully possesses a property, has a good title against the world at large except the true owner”?

Pollock

2.      Who said “Possession is the most basic relation between man and things”

Salmond

3.      Who said “The concept of possession is as difficult to define as it is essential to protect”?

Salmond

4.      Who said “Possession means that contact with an object which involves the exclusion of other persons from the enjoyment of it. It does not signify mere physical detention but physical detention coupled with the intention to hold the thing detained as one`s own”?

Maine

5.      Possession in Roman law

a.      Corpus Possessionis – A person has simply control over the things,

b.      Civilis Possessionis – A person has exclusive control over the thing.

The physical control is known as `Corpous`. The mental element to hold possession and control over a thing to the exclusion of all others is called `Animus`.

They recognized two degrees of control over object possessed:

i)                    Detentio: when the intention to dispose of the object in possession is limited by the recognition of the outstanding right of another,

ii)                  Possessio: The Possessor believes himself to be the sole rightful owner of the object.

6.      Which Section of the Indian Evidence Act says that `possession is the prima facie of ownership, continuous long Possession is deemed sufficient to confer Ownership to the person in Possession”?

Section 110

7.      Who said “The possession of a material object is the continuing exercise of a claim to the exclusive use of it”?

Salmond

8.      Who said “To define possession is to recall the image which presents itself to the mind which it is necessary to decide between the two parties, which is in possession of a thing and which is not”?

Benthem

9.      Who said that existence of corporeal possession is to be found in the physical power of exclusion?

Salmond

10.  According to whom “Improbability of interference by other” is true test of Possession?

Salmond

11.  Who said “To gain possession a man must stand in certain physical relation to the object and to the rest of the world, and must have certain intent”?

Justice Holmes

12.  Who defined Possession as “The determination to exercise physical control over a thing on one`s own behalf coupled with the capacity of doing so”?

Markby

13.  In which the Queen`s Bench held that `the bundle of notes found on the floor of a shop passed into the possession of the finder rather than the shop-keeper`?

Bridges v Hawkesworth

14.  In which case the King`s Bench held that `the plaintiff, who was the finder of a brooch in the house of defendant, was entitled to the brooch or its value since his claim as finder prevailed over all others excepting the rightful owner.` As per the facts, the defendant owner of house, never possessed it and lived somewhere else.

Hannah v Peel

15.  Who said “Exclusiveness is the essence of possession”?

Salmond

16.  Who said “The law is not normally concerned with the question which of the parties before the court has the best right to possess; it is concerned with the question as to which of the parties has the better right to possess”?

Fitzgerald

17.  Holland`s theory on possession:

He believed that legal possession has two essential elements:

a.      Corpus: physical possession

b.      Animus: Mental element required to possess and exclude others

18.  Essentials of `Corpus Possessionis`:

a.      Possessor`s physical elation to the object: Some physical contact of a person with a thing which he possess so as to give rise to a reasonable assumption that others will not interfere with it.

b.      The relation of the Possessor to the rest of the word: It is manifestation of animus domini. An intention to assert sovereignty or ownership over a territory. Refer to comment of Holland about necessity of a will to exercise control over the object.

19.  Essentials of `Animus Possidendi`:

a.      Physical control accompanies by a `will` to exercise such control. This mental element is called animus.

20.  Savigny`s theory of Possession:

a.      He founded his theory on the text of Roman jurist Paul,

b.      Possession has two basic elements, i.e., Corpus Possessionis and Animus Domini.

c.       Similar to that of Holland.

d.      He maintained that both were necessary to define possession.

21.  Ihring`s theory of Possession:

a.      Practical and realistic, based upon sociological explanation of possession,

b.      He said “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 conventions.”

22.  Who said “Possession is one of the vaguest of all terms, and shifts its meaning according to the subject matter tow which it is applied”?

Erle CJ

23.  Kant`s theory on Possession

He said “Men are born free and equal. Freedom of will is the essence of man. Possession is the embodiment of the will of a man, by taking possession of a thing, a man incorporates his will and hence his personality in that thing”

24.  Salmond`s theory of Possession

He denied difference in possession in fact and possession in law. He distinguished between possession of physical objects which he called corporeal possession and possession of `rights` which he called incorporeal possession. In Roman law corporeal possession is called as possession corporis and incorporeal possession is known as possession juris.

25.  Types of Possession:

a.      Corporeal and Incorporeal: As defined above by Salmond.

b.      Mediate and Immediate Possession: Mediate possession is possession of a thing through another person, also known as indirect possession. As per Salmond, there are three types of mediate possession: through servant or agent, through a borrower or hirer to tenant, the object can be demanded at will and where the property is lent for a fixed period of time or delivered as security for the repayment of debt. Immediate possession like, when we buy a good we have immediate possession of it without any intervening agency.

c.       Quasi Possession: It extends to control which the person exercise over certain advantages, short of ownership, which may be derived from objects. Like the right over passage way over other`s land.

d.      Concurrent Possession or Duplicate Possession: Two persons cannot be in possession of the same thing at one and the same time. Mediate and Immediate possession may co exist as in case of possession of servant over his master`s things where the servant has an immediate possession and the master has immediate possession, another example is of co owners, which Roman law called compossessio.

e.      Constructive Possession: Pollock said that constructive possession is possession in law and not actual possession.

26.  Modes of acquiring Possession:

27.  Constructive Delivery:

a.      Traditio Brevi Manu: Surrender of mediate possession,

b.      Constitutum Possessorium: Transfer of mediate possession while the immediate possession remains with the transferor.

c.       Attornment: Transfer of mediate possession while immediate possession is in hands of a third person.

28.  Who suggested that concept of possession is prior to that of ownership, and that possession has evolved right out of ownership?

Maine

29.  Who said “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”?

Salmond

30.  What is the doctrine of jus tertii?

If a person interferes with the right of possession of another and the possessor brings a suit against the intruder, in that case the defendant may take the plea that neither he nor the possessor has a rightful claim to possession but some third person has title to it. The defendant is not allowed to take defense that some third person has the title instead of the possessor and therefore he (the defendant) be allowed the possession.

Questions and Notes on Possession 1

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