Explain the relation between the possession and ownership


Q.13. Explain the relation between the possession and ownership .

Ans. Possession and Ownership Possession is in fact, ownership is in right; This distinction mis-leading.–Ownership is a kindred conception of possession, there-fore it will not be out of place to say a few words on the relationship between the two. Salmond makes a distinction between the two on the basis of fact and right. ‘Possession is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the de jure recognition of one. A thing is owned by me when my claim to it is maintained by the will of the State as expressed in the law; it is possessed by me, when my claim to it is maintained by my own self-assertive will. Ownership is the guarantee of the law; possession is the guarantee of the facts. It is well to have both forms of security if possible, and indeed they normally co-exist. It is submitted that a distinction on the basis of fact and right is not tenable. It has been observed earlier that fact and right are not quite separate and independent ideas; one cannot exist without the other. Therefore to say that one is fact and the other is right is misleading. Though there may be a difference of degree, both the things (fact and right) are present in both the concepts. However, we shall mention the relation and the points of distinction between the two.

Rights of ownership superior; One changes into the other : Two sets of facts.—The right of ownership is superior and ‘comprehensive and it includes the right of possession. Generally ownership and posses-sion coincide and their separation is due to special reasons. They are very akin to each other and are of the same species. Ownership tends to realise itself into possession and possession tends to become owner-ship. The one cannot remain divorced from the other for a very long time. Possession for a long time ripens into ownership and ownership without possession for a long time is destroyed. Rights called possession and ownership are attached to two different sets of facts. The facts to which the right called possession is attached are corpus and animus. The facts to which the right called ownership is attached are possession of (res nullius), or prescription (possession of the object for a prescdbed period without the consent of the previous owner), or conveyance from the previous owner of the object. Sometimes, rights analogous to those of ownership may be given by the legislature to persons of whom a defined set of facts is true, such as a patentee.

Difference in modes of acquisition; Different rules for transfer; Rights of both are substantially the same. — Possession and ownership differ in their mode of acquisition also. The transfer of possession is comparatively easier and less technical but the transfer of ownership in most cases involves a technical process of conveyancing. The rights of possession and ownership are substantially the same. Within the limits prescribed by policy, the owner is allowed to exercise his natural power over the subject, matter uninterfered with, and is, more or less, protected in excluding other people from such interference. The owner is allowed to exclude all and is accountable to no one. The possessor is allowed to excluded all but one, and is accountable to no one but to him.