Possession: corpus and animus, kinds and possessory remedies

1. Meaning and importance

Salmond calls possession “the most basic relationship between men and things.” In fact, possession is the continuing exercise of a claim to the exclusive use of a thing. Its legal importance is that possession is prima facie evidence of ownership, that a possessor can keep his possession against everyone except a person with a better title, that it may ripen into ownership by adverse possession, and that many crimes (theft, criminal misappropriation) and transactions (delivery, pledge, bailment) are defined in terms of possession.

The Supreme Court has said that possession is a polymorphous term which assumes different colours in different contexts, so that no single definition fits every statute: Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 INSC 157, (1979) 4 SCC 274.

2. Theories

• Savigny: possession needs physical power over the thing (corpus) and the intention to hold it as owner (animus domini). On this view a bailee or a tenant, who does not claim to be owner, is not a possessor.
• Ihering rejected the requirement of animus domini. Possession is the outward visible relation of a person to a thing which corresponds to ownership; whoever appears to be using a thing as an owner normally would has possession. Intention is not a separate element. Ihering’s view is nearer the modern law, which treats tenants and bailees as possessors.
• Salmond: possession consists of corpus possessionis and animus possidendi, but the animus is the intention to exclude others from the thing, not the intention to be owner. A thief has it; so has a bailee.
• Pollock: physical control is the essence of possession in fact; possession in law is the possession the law recognises, which may or may not coincide with it.

3. Corpus and animus

Corpus is the physical relation to the thing, together with the reasonable expectation that others will not interfere. It does not require continuous physical contact: a man possesses his house while he is travelling. Salmond identifies its two parts: the relation of the possessor to the thing (the power to use it) and his relation to the rest of the world (the security that others will not interfere, because of his presence, his locks, or the protection of the law).

Animus possidendi is the intention to appropriate to oneself the exclusive use of the thing. It need not be rightful (a thief has it), need not claim ownership (a bailee has it), need not be specific (a person possesses the contents of his locked room, even objects he does not know of), and may be on behalf of another (a servant holds for his master).

4. Possession in fact and in law

Possession in fact (de facto) and possession in law (de jure) usually coincide, but may not.

• Possession in fact without possession in law. A servant holding his master’s goods has physical custody, but the law treats the master as possessor. A guest using cutlery at a dinner has custody only.
• Possession in law without possession in fact. The owner of goods stolen from him, or of a house left empty, retains possession in law; the law treats him as possessor for the purpose of remedies. This is constructive possession.

5. Kinds of possession

• Corporeal and incorporeal. Possession of a material thing, and possession of a right such as an easement (the continuing exercise of a right of way).
• Immediate and mediate. Immediate possession is held directly; mediate possession through another person. When A lends his book to B, B has immediate possession and A mediate possession. Salmond’s three cases of mediate possession: through an agent or servant; through a bailee who holds for the owner but is entitled to keep the thing until a term ends; and through a borrower or tenant who holds for himself but acknowledges the owner’s title.
• Concurrent possession: two or more persons in possession of the same thing, either jointly (co-owners) or as mediate and immediate possessors.
• Constructive possession: possession in law without physical control.
• Adverse possession: possession hostile to the true owner, open, continuous and peaceful. After twelve years for immovable property (Article 65 of the Schedule to the Limitation Act, 1963) the owner’s title is extinguished by section 27 and the possessor acquires title. In Ravinder Kaur Grewal v. Manjit Kaur, 2019 INSC 930, (2019) 8 SCC 729, a three-judge bench held that a person who has perfected title by adverse possession can sue on it as a plaintiff, not only use it as a shield.

6. Acquisition and loss

Possession is acquired by taking (rightful or wrongful, as in occupation or theft) or by delivery, which may be actual (handing over), symbolic (handing over keys), constructive by traditio brevi manu (a bailee in possession buys the goods) or by constitutum possessorium (the seller keeps the goods as bailee for the buyer), or by attornment (a third party holding the goods agrees to hold for the buyer). It is lost when either corpus or animus is lost: abandonment, or loss of control through theft or the escape of a wild animal.

7. Possessory remedies

The law protects possession for its own sake, so that disputes are settled in court and not by force.

• Section 6 of the Specific Relief Act, 1963. A person dispossessed of immovable property without his consent and otherwise than in due course of law may recover possession by suit, whatever title the other side may set up. The suit must be filed within six months of dispossession, does not lie against the Government, and no appeal or review lies from the order, though the losing party may still sue on title.
• Section 5 of the same Act provides for recovery of specific immovable property on title, and section 7 for recovery of specific movable property.
• Settled possession. Even a trespasser in settled possession (effective, undisturbed and long enough to be known to the owner) cannot be evicted by force; the owner must take recourse to law. The Supreme Court restated this in Poona Ram v. Moti Ram, 2019 INSC 101, where a plaintiff who could not prove settled possession failed against defendants who had proved title.
• Criminal law protects possession through the offences of theft (section 303 of the Bharatiya Nyaya Sanhita, 2023, formerly section 378 IPC), which is defined as taking movable property out of the possession of any person without his consent, and of criminal trespass.

8. Problem: the finder

A, a customer, picks up a gold ring from the floor of a shop owned by B and hands it to B to keep for the owner. No owner claims it. Who is entitled to the ring, A or B? Would it differ if A had found the ring buried in B’s private garden?

Issue. Whether the finder or the occupier of the place has the better right to possession of a lost chattel against everyone except the true owner.

Law. A finder acquires a possessory title good against all except the true owner: Armory v. Delamirie (1722), where a chimney sweep’s boy who found a jewel recovered its value from a jeweller who would not return it. In Bridges v. Hawkesworth (1851), banknotes dropped on the floor of the public part of a shop belonged to the customer who found them, because the shopkeeper had not exercised control over them. Things in or attached to land, or in a place over which the occupier shows a clear intention to control, belong to the occupier: South Staffordshire Water Co. v. Sharman (1896), rings found in the mud of a pool. Parker v. British Airways Board (1982) restated the rules: an occupier has the better right to things on his premises only if he has manifested an intention to exercise control over the premises and things on them.

Application. The shop floor is open to the public and B has shown no intention to control lost articles on it. On Bridges and Parker, A’s possession is the better one. Handing the ring to B for safe keeping did not give it up; B holds it as a bailee for A. In the second case the ring was buried in a private garden. B occupies the land and has possession of everything in it, whether he knows of it or not (Salmond’s point that the animus need not be specific). B’s possession is prior to A’s, and Sharman applies.

Conclusion. A is entitled to the ring found on the shop floor, subject to the true owner’s claim; B is entitled to the ring found in his garden. In India a finder who dishonestly appropriates the ring commits dishonest misappropriation, and must take reasonable steps to find the owner (section 314 of the Bharatiya Nyaya Sanhita, 2023, formerly section 403 IPC).

How this is examined

As an essay: “Explain the possession and possession in law under the jurisprudence” (January 2026, Q.7). As a short note: “Possessory remedies” (February 2025, Q.4(b)). Define, give the theories with Salmond’s corpus and animus, the divergence between possession in fact and in law with examples, the kinds, and the remedies. If a finder problem is set, use the four English cases in order and decide on the occupier’s manifested control.