Introduction
The idea of property has existed simultaneously with humans. From early ages to the modern period, human beings have identified property as something owned exclusively by them. This notion of property went on to mean tangible and intangible, movable and immovable, transferable and non-transferable property as well. At present, the concept of property is well-defined and attaches with itself certain rights, liabilities, and related concepts. Two such concepts are that of ownership and possession, but more often than not, people use them interchangeably. It becomes crucial to determine the definitions of both these concepts, since they are very different from each other, and generate different kinds of rights and liabilities, both in general as well as in law.
The earliest civilization to distinguish between ownership and possession was the Roman Empire, and it is possible that the English common law may have derived this distinction from Roman laws. Under Roman law, possession was called possessio and ownership was called dominium; in fact, Ulpian, a Roman jurist, wrote that ownership had nothing in common with possession (nihil commune habet proprietas cum possession). Over the course of time, ownership and possession came to be defined as separate concepts, and have separate places in property law. But before looking at them, it is important to understand the root from which these two branches have emerged.
Definition of Property
Property, as defined in law, means an object generating legal rights, creating a legal relationship between the person and the thing over which he has a right. According to Salmond, property can mean one of the following:
- Property means all the legal rights of a person, including absolute ownership on corporeal as well as incorporeal things.
- Property may also mean proprietary rights, and not necessarily personal rights, of a man.
- Property may also signify the rights of ownership in material things, such as buildings, automobiles etc.
Salmond’s definition gives us a wider meaning of property because it goes on to include all kinds of property, whether tangible or intangible, within its ambit, and thereby giving the owner right over it. Similarly, Austin also states that property is the highest right of enjoyment there is, whether on tangible or intangible objects. However, if we consider Bentham, he narrows the concept down to mean proprietary rights only on material things. The Supreme Court of India has taken a broad view in terms of defining property, and went on to include not only corporeal things such as land and furniture, but also incorporeal property such as copyrights and patents.[1]
The recent trends have shown that the Apex Court has also included rights and liberties under the ambit of property, in the light of Article 21 of the Indian Constitution.
From the above definitions, it is clear that property is not only composed of material objects, but also of those which cannot be seen through the eye, such as rights, but exist in an incorporeal form. So, property may be divided into two categories: corporeal and incorporeal. Corporeal property would mean property in the form of land, vehicles, jewellery etc. Intellectual property is a fine example of incorporeal property. Ownership and possession exist in both kinds of properties, corporeal and incorporeal. But possession has a weaker standing in law when compared to ownership.
Possession
Possession signifies custody, or physical control. It is the most typical form in which claims are made. It is a factual control over something, and Salmond defines it as a fact that creates a relationship between a man and the thing he possesses. In Roman law, possession indicates ownership, i.e. it is an evidence to show ownership, and long possession of a certain property converts into ownership. Therefore, possession is the first stage of ownership. But it may not always be true. Possession only entails ongoing exercise and enjoyment[2], and the person possessing the property may not necessarily be the owner of that property. In order to hold something within one’s possession, it is necessary to have physical connection with that thing, and to disallow anyone else to have possession of that thing.
According to Savigny, possession consists of two elements: corpus possession and animus domini. Corpus possession means physical control over a property, and immediate physical power to prevent others from acquiring or possessing that property. Animus domini means the intention to hold some property in possession. Without the intention to hold property in possession, there can be no possession in reality, i.e. without animus domini, there cannot be corpus possession. Because the intention to possess property exists, the person exercises physical control over that property.
Salmond stated that possession is of two kinds: possession-in-fact and possession-in-law. Possession in fact indicates actual, physical possession of property, even though that person may not be the owner of that property, whereas possession-in-law indicates that possession of the property by someone is recognised and protected by law.
According to Ihering, a person who is in possession is the owner, and a person exercising ownership need not prove his title against someone who is in possession of property unlawfully.
Thus, possession consists of actual physical control over some property, as well as of the intention to hold that property in possession. Even though possession is an evidence of ownership, a person may possess property unlawfully and in such a case cannot exclude the real owner from possession of that property.
Ownership
Although a number of definitions by different jurists come up when we begin to define ownership, a common factor found in all is that ownership has been considered the highest and most comprehensive right that can be exercised over anything. It not only includes the right to own and control some property physically, but also gives the right to transfer or destroy the property. It is a legal acknowledgment of a claim of some property, and ownership is recognised and protected under law.
According to Austin, ownership is an absolute right, and is more powerful than possession. It exists in rem, i.e. against everyone else in regard to the property subject to the law, and exists for an indefinite period. The one point where Austin is criticised is that according to him, ownership is a single right, whereas other jurists claim that ownership is a bundle of rights, and the notion that ownership rights exist for an indefinite period of time is very problematic because when right can be extinguished or taken away only depends upon time.
Ownership is a de jure recognition of a claim on property. It can be either corporeal or incorporeal, vested or contingent, sole or joint, absolute or limited, and ownership can be acquired through original mode, where ownership is exercised over property not belonging to anyone, or through derivative mode, where ownership exists but is transferred from one person to another.
Difference Between Ownership And Possession
The difference between ownership and possession are:
Possession and ownership are rights accruing on property, but ownership in essence is a greater right than possession. Ownership exists even though a person may not be in direct physical contact with his property, but since he has a better title on that property than anyone else, the property best belongs to him, even if it is in the possession of someone else. Possession is only an objective realisation of ownership; a claim being exercised on the property. In this way, it can be said that possession comes from ownership, but ownership does not come from possession. It is true that possession is an evidence to claim ownership, but in many cases, a person may hold property under a false or fraudulent title, which needs to be ascertained. For example, a house given on rent is in possession of the tenant, but the actual owner of the house is the landlord, and the landlord has a better title on the property than the tenant.
When a person is in possession of property, he has an exclusive right on that property and can exclude others from exercising the same or similar rights on that property. However, these rights can be exercised by a person if he is the owner of that property, and the property is not owned by the possessor, since ownership is absolute and unconditional, whereas possession is conditional.
Ownership not only provides possessory rights, such as the right to use the property, but also proprietary rights, such as the right to dispose of property or to transfer it to another person. Possession, however, does not grant proprietary rights, but only possessory rights. As a result, the transfer of property when it is owned, is more difficult than transfer of property when it is merely in possession.
The point of difference that possession is related to fact and ownership is related to law is not entirely correct. Possession also involves some rights which are available to the person in possession of the property, but they are not equivalent to ownership. Salmond reduced possession to state that it does not have any security in law, which is not true in all cases, such as when the doctrine of “finder keeper” is applied.
Possession and ownership may be distinct, but are not entirely exclusive of each other. At several points they coincide, and one is only a subset of another. Both concepts relate to acquisition of property, and exist in law to provide certain rights and liabilities.
FAQs On Difference Between Ownership And Possession
What is the fundamental difference between ownership and possession?
The major difference between ownership and possession is that ownership is a greater right than possession. Ownership exists even though a person may not be in direct physical contact with his property, but since he has a better title on that property than anyone else, the property best belongs to him, even if it is in the possession of someone else. Possession is only an objective realisation of ownership; a claim being exercised on the property.
Possession is a judicial concept whereas ownership is more than that: explain.
Possession is a judicial concept because when certain property does not belong to anyone, a person who acquires it becomes the owner of that property in the eyes of law. But if a property is owned by someone else, and is possessed by someone else, the person in possession will be defeated in law and the property will pass on to the owner, because he had acquired it in the first place. Thus, possession is defeated against ownership, and can only be restored or granted through law. Ownership, however, is also a social concept, and ownership rights exist against the world in general.
From where did the concepts of ownership and possession originate?
The concepts of ownership and possession originated with the origin of the concept of property, which has been in existence since time immemorial. Possession came in earlier, because of the abundance of property, but when societies came to be governed by laws, possession was regulated and a distinction between ownership and possession was created. This distinction is apparent in the Roman laws, and is also followed in the English common law system.
[1] R. C. Cooper v. Union of India, AIR 1970 SC 564.
[2] B. Gangadhar v. Ramalingam, (1995) 5 SCC 238.
