Possession as 9/10th of Ownership

B.A. / B.B.A LL.B (Integrated Law degree course)

Transfer of Property Act 1882 (IV Semester)

“Project Work”

“Possession as 9/10th of Ownership”

Submission To: Submitted By:

Dr. Sugato Mukherjee Rajat Kaushik

Faculty of Transfer of Property Act Roll no: 17RU11020

Designation: Assistant Professor Semester-IV

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ACKNOWLEDGEMENT

We take this opportunity to express our humble gratitude and personal regards to Mr. Sugato
Mukherjee for inspiring me and guiding me during the course of this project work and also for
his cooperation and guidance from time to time during the course of this project work on the
topic “Possession as 9/10th of Ownership”

Date of Submission: 05-05-2019

Name of Student: Rajat Kaushik

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Introduction:
Possession as 9/10th of Ownership, the topic defines that the concept of Possession is likely same
to the concept of Ownership as the possession of a particular immovable property makes the
possession holder to use and do what a owner of that property can do but there is only one thing
that he cannot do as the owner has the right to sale the property as in the case of absolute
ownership but in the case of possession the possession holder may and may not have the right to
sell the immovable property.

So from this point of view three questions were come into mind i.e.

1. Whether possession is equal to the Ownership?

2. Whether the possession gives the right to sale the property?
3. Whether mere Ownership gives the right to sale the property?

The main gist of the project is that how the ownership and possession differs and have the
contradictions in the Transfer of Property act and also the similarities between the concept of
ownership as well as possession.

Possession:
"Possession" literary means physical control over a thing or an object. It expresses the closest
relation of fact that can exist between a thing and the person, who possess it. In law, possession
means it includes not only physical control over a thing but also an intention to exercise that
physical control. Example: A has an article in his hand. In other words, he is in possession of that
article. The person who is in possession is called a 'Possessor'. In human life, consumption of
material things is very essential and it would be Impossible without the position of the material
things. Therefore the concept of possession is of utmost practical importance in human life.

Definition:-

The concept of possession is though basic and essential in human life, it is a difficult to define.
There is no fixed or precise definition of possession because it is legal as well as factual
concept. Supreme Court in Superintendent Remembrancer Legal Affairs vs Anil Kumar1, held
that it is impossible to work out a completely logical and precise definition of Possession
uniformly applicable to all situation in the context of all the statutes.

Elements of Possession

 Actual power over the object possessed. i.e. corpus possessionis and

1
AIR 1980 SC 52

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 Intention of the possessor to exclude any interference from others. i.e. animus
possidendi.

According to John Salmond, both corpus and animus must be present to constitute Possession.
Ownership is a legal concept whereas Possession is factual as well as legal concept.

Categories of Possession

 Possession in fact and

 Possession in law.

Possession in fact is actual or physical possession. It is physical relation to a thing. Possession in

law means possession in the eye of law. It means a possession which is recognized and protected
by law. There is sometimes a discrepancy between possession in fact and position in law,
although usually possession exists both in fact and in law in the same person. A person who is
in de facto possession of a thing also comes to have de jure possession.

Ownership:
Definition:

Most comprehensive real right a person can have with regard to a thing. In principle, a person
can act upon with his thing as he / she pleases. This apparent freedom is restricted however, by
the law & rights of others.

Defined with ref to its:

1. Inviobility;
2. inherent nature
3. entitlements

1. Inviobility
Principle that a person cannot lose his ownership w/o his consent, with its proposition
that follows that a person cannot pass a better title than he has nemo plus iurus ( no one
may transfer more rights to another person than he has himself).

2. Inherent Nature
Most comprehensive real right person can have to his thing it refers not only to fact that
owner can enforce his ownership against the world at large but also to the number of
entitlements / extent of entitlements flowing from ownership.

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3. Entitlements:

Capacities conferred on legal subject by virtue of a right (i.e. real right of ownership).

Originate from rights on the basis of which a legal subject may perform certain acts in
regard to the thing.

Difference between Ownership & Possession

Ownership Possession
Actual control of the Thing Physical control of thing with intention of an
owner amino domini
Always lawful therefore it is a real right Always unlawful it is only a real relationship
not a real right

The word possession in land law often coincides with ownership. Although both words are often
confused and majority of people take these words to mean same thing. Today, you would learn
that possession is not the same as ownership. Possession means having physical custody or
control of a property with an intention to continuously retain the property, while ownership is the
exclusive legal right to possesses something.
A person can either possess a land lawfully or unlawfully.
INSTANCES OF LAWFUL POSSESSION:

 The relationship between a landlord and a tenant; after all necessary agreement has been met
by the tenant to the landlord, the tenant is said to lawfully possess the house.

 A person that has the consent of the owner to stay on the property is said to lawfully possess
the land.

 A person that has occupied a land for years without disturbance and claim to the land is said
to lawfully possess the land and such person can sue any trespasser on the land even if the
land is not legally owned by such possessor.

INSTANCES OF UNLAWFUL POSSESSION:

 A tenant that has not met with the terms and conditions of the tenancy agreement and is in
arrears of his rent, is in unlawful possession of the property.

 A trespasser on a property is said to own an unlawful possession of the land or property.

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 A person that has occupied a land without the consent of the owner is said to have unlawful
possession of a land.

It is, however, important to note that ownership gives right to possession while possession does
not give right to ownership. Now you know there is a difference between ownership and
possession.

The above said gist of the possession and ownership clearly states that:

1. The concept of possession is equal to the concept of ownership to some extend but
according to the law and interpretation of ownership with regards to the ownership of a
immovable property is that the right of owner on the immovable is absolute that he can
use the property for self purpose or he can transfer the possession of the as in other words
‘one who has the ownership of a property can transfer the possession as well as the
ownership of that property’ but it is not in the case of possession as one who has the
possession cannot transfer the ownership of the property but can be able to transfer the
possession for the same in other words ‘one who has the possession can transfer the
possession but cannot transfer the ownership as he is not entitled to sale the property’
So in the case of the ownership and possession, we can say that possession is equally and
likely similar to the concept of ownership but it doesn’t give absolute rights to the
possession holder on the property.

2. The concept of possession gives right to sale the property in some cases but the absolute
right to sale the property lies along with the owner itself. The possession holder of the
property can sale the property when the owner is dead or when it was specifically
mentioned in the contract of transferring the possession otherwise all the rights to sale or
any other rights regarding the alienation of the property remains with the owner.
If the case was such that the party who has the possession of the land is the beneficiary
party then only he has to prove the instance that the emerging benefits that is arising out
of land is vested in the possession holder itself not with the owner.
The owners can sale the land only when the contract of transferring the possession has
completed or only when he take back the possession of that property.
The rights of possession holder limits to some extent but the rights of the owner is
absolute as he has the ownership of the property that made him legal to sale or alienate
the property according to his will, but the possession holder is merely a party who is
enjoying the benefits of that property so he has non right to sale that property without the
consent of the owner.

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3. The mere ownership also not give the right to sell the property as if the property affects
the easement of another person then he was note be able to use it either way.
The main reason behind the said statement is that the mere ownership cannot give the
owner an absolute right to sell the property if the interest arising from that property lies in
the possession holder. For example: a person ‘X’ takes a property in name of his brother
‘Z’ and ‘X’ used to grow crops on the land for his survival. So here ‘Z’ is not entitled to
sell the land without the prior consent of ‘X’ as all the interests arising out of that land is
vested with ‘X’ and the burden to prove that all the interest arising out of that land is with
the possession holder is on himself.
So in this case the owner has the right to sale the property but only if there is nop intrest
vested with the possession holder.

As in the all three scenario it was clear that possession is 9/10th of ownership as the possession
holder has all the rights of the owner except that the owner has the absolute rights to sell the
property but the possession holder can use the property as the owner does by taking proper and
due care.

The concept of Adverse Possession:

Adverse possession by a person holding the land on his own behalf of some other person and
setting up his claim as the true owner of the land. It diverse possession is continues, peaceful,
undisturbed, and open for more than the year prescribed in different legal system then, in India it
is 12 years, the title of the true owner is extinguished and the person in possession becomes the
true owner. The essentials of adverse possession are:

 The possession must be adequate in continuity,

 In publicity, and
 Possession must be to the extent to show that it is possession adverse to the competitor,

Both animus and corpus is necessary to constitute adverse possession. Adverse possession, in
short, is the actual, open and notorious possession continued for a certain length of time, held
adversely and in denial and opposition to the title on the part of the person maintaining it as
against another person who is out of possession.